United States v. Abu Ghayth
17 F. Supp. 3d 289 (2014)
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Rule of Law:
Under Federal Rule of Criminal Procedure 15, a defendant may only take the testimony of an unavailable witness by deposition or similar means if they demonstrate 'exceptional circumstances,' which requires showing the testimony is material, admissible, and non-cumulative, and that the request is made in a timely manner.
Facts:
- In June 2001, Sulaiman Abu Ghayth traveled to Afghanistan from Kuwait, where he was a religious leader.
- During the summer of 2001, Abu Ghayth met with Usama bin Laden several times and agreed to serve as an orator and spokesperson for al Qaeda.
- On the night of the September 11, 2001 attacks, bin Laden summoned Abu Ghayth to a mountain hideout.
- Abu Ghayth agreed to deliver al Qaeda's message and subsequently appeared in videos praising the 9/11 attacks and threatening that a 'Storm of Airplanes will not abate.'
- In late 2001, al Qaeda initiated the 'shoe-bomb plot,' which involved suicide bombers detonating explosives in their shoes on civilian aircraft.
- Khalid Sheikh Mohammed ('KSM') took over operational control of the shoe-bomb plot after its initial planner, Abu Hafs al Masri, was killed in late 2001.
- Abu Ghayth was arrested by U.S. authorities in 2013.
Procedural Posture:
- The United States indicted Sulaiman Abu Ghayth in the U.S. District Court for the Southern District of New York for conspiring to kill U.S. nationals, later adding charges of providing material support to terrorists.
- During his jury trial, after the government rested its case-in-chief, Abu Ghayth moved to take the testimony of Khalid Sheikh Mohammed (KSM), an enemy combatant detained at Guantanamo Bay.
- The motion requested that the testimony be taken either via live closed-circuit television or through a deposition pursuant to Federal Rule of Criminal Procedure 15.
- The district court denied the motion from the bench.
- Abu Ghayth then moved to renew and reargue his motion, which the district court also denied from the bench.
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Issue:
Does a criminal defendant meet the 'exceptional circumstances' standard under Federal Rule of Criminal Procedure 15 to depose an unavailable witness when the request is made mid-trial after unexcused delay and the proposed testimony is not shown to be material, admissible, and non-cumulative?
Opinions:
Majority - Lewis A. Kaplan
No. A criminal defendant does not meet the 'exceptional circumstances' standard to depose a witness when the request is untimely and fails to demonstrate the testimony's materiality. First, the court found Abu Ghayth's motion was untimely. The defense knew KSM was a potential witness for months but failed to diligently pursue access or seek the court's assistance until the eve of trial, and the formal motion to depose was not filed until after the government had rested its case. Second, the court determined the proposed testimony was not material. KSM's written statement admitted that much of its content was not based on personal knowledge, rendering it inadmissible under Federal Rule of Evidence 602. The parts that might have been admissible were cumulative of other evidence already presented at trial, such as the meaning of 'bayat' or the contents of 'brevity cards.' Finally, KSM's statements about Abu Ghayth's lack of knowledge of the shoe-bomb plot were not exculpatory because they were equivocal, stating spokespersons do not 'necessarily' know details of operations, and KSM himself was not in a position to know what Abu Ghayth knew during the relevant time period.
Analysis:
This decision reinforces the high procedural and substantive threshold for obtaining a deposition in a criminal case under Federal Rule of Criminal Procedure 15. It clarifies that 'exceptional circumstances' require not only the witness's unavailability but also a strong, specific showing of materiality, admissibility, and non-cumulative value. The ruling serves as a stark warning to defense counsel that a lack of diligence and untimely motions, especially those that would delay a trial, will be met with judicial disfavor. It establishes that a court is not required to permit a 'fishing expedition' deposition in the mere hope that something useful might be discovered.
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