## Facts

- Christopher P. Drogoul, manager of an Atlanta branch of an Italian bank, was indicted in federal court on charges arising from alleged fraudulent, unauthorized loan activity.
- The prosecution expected to rely heavily on testimony from Italian nationals (including bank officials) located in Italy.
- Because the witnesses were outside U.S. subpoena power and several indicated they would not or could not travel to the United States, the government moved under Federal Rule of Criminal Procedure 15 to take videotaped depositions in Rome before an Italian judicial officer, with defense participation and cross-examination.
- The district court denied the motion, requiring a definitive pre-deposition showing that each witness would be unavailable at trial.
- After the government renewed its motion with additional evidence that multiple witnesses could not or would not appear, the district court again denied relief, citing timing, potential trial delay, and doubts about admissibility of foreign depositions.
- The government pursued an interlocutory appeal from the order denying the renewed Rule 15 motion.

## Issues

1. Whether the district court abused its discretion by denying the government’s Rule 15 motion to take videotaped depositions of material foreign witnesses outside the court’s subpoena power.
2. Whether Rule 15 requires conclusive proof of trial unavailability before authorizing a deposition, or instead permits depositions upon a showing of exceptional circumstances based on materiality and probable unavailability.
3. Whether concerns about later admissibility (including Confrontation Clause considerations) and potential delay justified categorically refusing to authorize the depositions.

## Decision

- The Eleventh Circuit reversed and remanded, holding the district court abused its discretion in denying the Rule 15 motion.
- The court held Rule 15 does not require definitive proof that a witness will be unavailable at trial before a deposition may be taken.
- The government’s showing of material testimony and a reasonable probability of unavailability for foreign witnesses beyond subpoena power satisfied Rule 15’s “exceptional circumstances” and “interest of justice” standards.
- The district court’s reliance on speculative delay and premature admissibility concerns was improper; admissibility could be evaluated at trial based on how the depositions were taken and whether the witnesses were actually unavailable then.
- The court directed that the depositions be permitted subject to appropriate safeguards, including defense participation and cross-examination, with audiovisual recording.

## Legal Principles

- Federal Rule of Criminal Procedure 15(a) authorizes depositions in criminal cases upon a showing of “exceptional circumstances” and that taking the deposition is “in the interest of justice.”
- Exceptional circumstances generally require (1) material testimony and (2) unavailability or a reasonable probability of unavailability at trial; conclusive proof of future unavailability is not required before taking the deposition.
- For foreign witnesses outside U.S. subpoena power, a substantial likelihood that the witness will not appear at trial can justify preserving testimony by deposition.
- Confrontation Clause concerns do not categorically bar foreign depositions where the defendant has an opportunity to attend and cross-examine and the procedure permits a reliable record (including demeanor evidence via video); admissibility is typically determined at trial.

## Conclusion

The Eleventh Circuit required a flexible application of Rule 15 for material foreign witnesses beyond subpoena power, holding that probable unavailability can justify preserving testimony through safeguarded videotaped depositions, and that courts should not deny depositions based on rigid pretrial unavailability demands or speculative admissibility and scheduling concerns.


United States v. Drogoul, 1 F.3d 1546 (11th Cir. 1993)