Memorandum Order — No. 1:21-cr-00054 (Dkt. 98, D. Md.)

Summary

A Memorandum Order, Document 98, filed April 28, 2022 in United States v. Medard Ulysse, et al., Criminal No. RDB-21-054 (Case 1:21-cr-00054-RDB), in the U.S. District Court for the District of Maryland, signed by Richard D. Bennett, United States District Judge. The defendants are charged in a seven-count Superseding Indictment with conspiracy to commit mail fraud under 18 U.S.C. § 1349 and mail fraud under 18 U.S.C. § 1341. The court grants in part and denies without prejudice in part the government's Motion for Rule 15 Depositions of alleged victims, vacates the May 6, 2022 jury selection, and sets a pretrial conference for October 17, 2022 and a two-week jury trial beginning October 24, 2022.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

            Case 1:21-cr-00054-RDB Document 98 Filed 04/28/22 Page 1 of 5



                     .IN THE UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF MARYLAND

                                                *
UNITED STATES OF AMERICA
                                                *
       v.                                               Criminal No. RDB-21-054
                                                *
MEDARD ULYSSE, et al.,
                                                *
       Defendants.
                                                *
*      *        *     *      *       *      *       *      *       *      *      *       *     *


                                 MEMORANDUM ORDER

       Defendants Medard Ulysse (“Ulysse”) and Eghosasere Avboraye-Igbinedion

(“Igbinedion”) are charged in a seven-count Superseding Indictment with the following

offenses: Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. § 1349 (Count One);

and Mail Fraud in violation of 18 U.S.C. § 1341 (Counts Two through Seven). (Superseding

Indictment, ECF No. 75.) Presently pending before this Court is the Government’s Motion

for Rule 15 Depositions. (ECF No. 88-1 *SEALED*.) The parties’ submissions have been

reviewed, and on April 28, 2022, this Court heard the arguments of counsel at a virtual

motions hearing. For the reasons stated on the record, and as supplemented below, the

Government’s motion is GRANTED IN PART and DENIED WITHOUT PREJUDICE

IN PART.

                                         ANALYSIS

I.     Rule 15 Depositions

       The Government seeks a ruling of this Court permitting three elderly alleged fraud

victims to testify at the trial in this case by way of videotaped deposition pursuant to Federal
           Case 1:21-cr-00054-RDB Document 98 Filed 04/28/22 Page 2 of 5



Rule of Criminal Procedure 15. 1 As noted on the record at the motions hearing, Defendant

Ulysse does not oppose the motion. Defendant Igbinedion, however, has opposed the

Government’s request. Under Rule 15(a) of the Federal Rules of Criminal Procedure, “[a]

party may move that a prospective witness be deposed in order to preserve testimony for

trial. The court may grant the motion because of exceptional circumstances and in the

interest of justice.” Fed. R. Crim. P. 15(a). While there is limited Fourth Circuit authority

addressing the exceptional circumstances prong of Rule 15, district courts in this Circuit

routinely consider the following factors when deciding whether to exercise the discretion to

permit testimony by deposition at a criminal trial: (1) whether the witness will be unavailable

to testify at trial, (2) whether the witness’s testimony will be material, and (3) whether the

witness’s testimony is necessary to prevent a failure of justice. See United States v. Jefferson, 594

F. Supp. 2d 655, 663-65 (E.D. Va. 2009); see also United States v. Nuss, No. 2:09-cr-00222,

2010 U.S. Dist. LEXIS 36010, at *8 (S.D. W. Va. Apr. 12, 2010).

        As this Court stated on the record, the Government’s motion is granted as to Mr.

Reid Hansen and Mr. Francis Williams and denied without prejudice as to Mr. Lloyd Harkey.

First, Igbinedion does not contest the materiality of the alleged victims’ testimony. Second,

as other courts have noted, serious health conditions can render a witness unavailable to

travel for trial such that preservation of the witness’ testimony by deposition is warranted.

See, e.g., United States v. Prokop, No. 2:09-cr-00022-MMD-GWF, 2014 U.S. Dist. LEXIS



1 It its motion, the Government requested that all six of the alleged victims referenced in the substantive wire

fraud counts be permitted to testify by Rule 15 deposition. At the motions hearing, the Government
amended its request and is now seeking that this Court permit only three of the alleged victims to testify by
deposition. The Government represents that none of the alleged victims will be able to identify either Ulysse
or Igbinedion.
                                                       2
          Case 1:21-cr-00054-RDB Document 98 Filed 04/28/22 Page 3 of 5



37729, at *8 (D. Nev. Mar. 20, 2014). The Government has proffered that Mr. Hansen, who

lives in Washington state, is 93 years old. The Government has also submitted a note from

Mr. Hansen’s medical provider recommending that he not travel for trial due to his medical

conditions. (ECF No. 88-2 *SEALED*.) As for Mr. Williams, the Government has

proffered that he is 90 years old and suffers from severe knee problems and a rare form of

Lyme disease that requires chemotherapy treatment. As to both Mr. Hansen and Mr.

Williams, this Court concludes that they are likely unavailable to testify at trial given their

advanced ages and serious medical conditions. As to Mr. Harkey, however, the government

has proffered that he is an 80-year old resident of Washington state who suffers from edema

and ankle sores that require frequent treatment. On the record as it exists now, this Court

cannot conclude that Mr. Harkey is unlikely to be able to appear in person at trial.

Accordingly, the Government’s motion is denied without prejudice as to Mr. Harkey. The

Government is free to raise this matter closer to trial if there is a change in Mr. Harkey’s

circumstances.

       Lastly, this Court concludes that Mr. Hansen’s and Mr. William’s deposition

testimony is necessary to prevent a failure of justice. The alleged victims have relevant

testimony to offer, which, absent stipulation, cannot be obtained any way other than by

deposition. The Government is entitled to offer the alleged victims’ testimony to prove the

charges in the Superseding Indictment. At the same time, the Defendants enjoy the Sixth

Amendment right to confrontation. Videotaped depositions at which the alleged victims are

subject to cross-examination will safeguard that right. Finally, this Court notes that it is not

ruling on the admissibility of any particular statement that may come out at any deposition.


                                                 3
           Case 1:21-cr-00054-RDB Document 98 Filed 04/28/22 Page 4 of 5



The Defendants will have the opportunity to challenge the admissibility of any testimony the

Government seeks to admit at trial.

II.      Scheduling in this Case

         At the conclusion of the April 28 motions hearing, this Court noted that due to

unforeseen circumstances related to the health of certain participants in this case, a

postponement of the trial is necessary. The Government, Defendant Ulysse, and Defendant

Igbinedion consented to the postponement. Additionally, Defendant Igbinedion has

submitted correspondence to this Court requesting that he be allowed time to retain new

counsel to replace his Court-appointed counsel. (ECF No. 95 *SEALED*.) That request is

granted. However, any counsel Defendant Igbinedion retains must be able to try the case in

accordance with the following schedule. This Court has set in an off-the-record scheduling

call with counsel for Tuesday, June 7, 2022 at 2:00 pm. The pretrial conference in this matter

is set for Monday, October 17, 2022 at 4:00 pm in Courtroom 5D. The two-week jury trial in

this case is set to begin Monday, October 24, 2022 at 9:30 am in Courtroom 5D.

                                       CONCLUSION

         For the reasons set forth on the record and as supplemented above, it is HEREBY

ORDERED this 28th day of April 2022 that:

      1. The Government’s Motion for Rule 15 Depositions (ECF No. 88-1 *SEALED*) is
         GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.
         Specifically, the motion is GRANTED as to Mr. Hansen and Mr. Williams, and
         DENIED WITHOUT PREJUDICE as to Mr. Harkey;
      2. The May 6, 2022 jury selection in this case is VACATED. Instead, this Court will
         hold an off-the-record scheduling conference with counsel on June 7, 2022 at 2 pm.
         The pretrial conference in this matter will take place on October 17, 2022 at 4:00 pm
                                               4
     Case 1:21-cr-00054-RDB Document 98 Filed 04/28/22 Page 5 of 5



   in Courtroom 5D, and the two-week jury trial will begin on October 24, 2022 at 9:30
   am in Courtroom 5D;
3. To the extent Defendant Igbinedion wishes to retain new counsel, such counsel must
   be able to participate in the June 7 status conference and must be available to try this
   case according to the new schedule.



                                                       _______/s/_______
                                                       Richard D. Bennett
                                                       United States District Judge




                                           5


File and source

File

98.pdf

Size

103,009 bytes

SHA-256

16f926bed724572125c9a2d1b133bd26fdb8df177f81f9de02a1a026863cebf8

Our copy

98.pdf

Original

No public link identified.