Reply in Support of Motion by the United States to Take Deposition under Federal Rule of Criminal Procedure 15 — No. 1:24-cr-00528 (Dkt. 71, D.N.J.)

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A Reply in Support of Motion by the United States to Take Deposition under Federal Rule of Criminal Procedure 15, Document 71, filed June 2, 2025 in United States v. Arthur Spitzer, Mendel Deutsch and Joshua Feldberger, Crim. No. 24-528 (ESK), before Hon. Edward S. Kiel in the U.S. District Court for the District of New Jersey. Submitted for United States Attorney Alina Habba, it asks the court to authorize a pretrial deposition of a witness identified as Individual-6, citing the considerations of materiality and unavailability under United States v. Ismaili, 828 F.2d 153, 159 (3d Cir. 1987). It answers the defendants' two arguments, that the government lacks independent evidence of unavailability and that live testimony is preferred, and says the government supplements its motion with a physician's notes. The reply is nine pages.

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Case 1:24-cr-00528-ESK    Document 71       Filed 06/02/25   Page 1 of 9 PageID: 263




                      UNITED STATES DISTRICT COURT
                         DISTRICT OF NEW JERSEY



UNITED STATES OF AMERICA                :       Hon. Edward S. Kiel, U.S.D.J.
                                        :
            v.                          :
                                        :       Crim. No. 24-528 (ESK)
ARTHUR SPITZER,                         :
MENDEL DEUTSCH, and                     :
JOSHUA FELDBERGER                       :




 REPLY IN SUPPORT OF MOTION BY THE UNITED STATES TO TAKE
 DEPOSITION UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 15




                                             ALINA HABBA
                                             United States Attorney
                                             401 Market Street
                                             Camden, New Jersey 08101
                                             (856) 757-5026



On the Memorandum:
Daniel A. Friedman
Elisa T. Wiygul
Assistant United States Attorneys
 Case 1:24-cr-00528-ESK       Document 71        Filed 06/02/25   Page 2 of 9 PageID: 264



      The Court should authorize the deposition of a critical fact witness, Individual-

6, in advance of trial. In determining whether to order a Rule 15 deposition, courts

consider two things: the materiality of the potential testimony and the unavailability

of the witness. See United States v. Ismaili, 828 F.2d 153, 159 (3d Cir. 1987). Both of

these considerations weigh in favor of authorizing the deposition of Individual-6.

      Defendants do not dispute that Individual-6’s testimony is material to essential

elements of several charges in the Indictment. Nor do they dispute that death or

incapacitation from a terminal illness would render a witness unavailable. In

opposing the Government’s motion, they make two arguments, both of which are easily

defeated. First, defendants contend that the Government has not provided

“independent evidence” of Individual-6’s medical condition and prognosis, nor has the

Government demonstrated with certainty that his cancer will make him unavailable

to testify at trial. But certainty is not required, and to quash any doubt about the

seriousness of Individual-6’s illness and prognosis, the Government today supplements

the information provided in its motion with the notes of his treating physician, a

gastrointestinal oncologist at Memorial Sloan Kettering Cancer Center’s Rockefeller

Outpatient Pavilion, following an office visit on May 6, 2025.

      Second, defendants argue that the interests of justice are not advanced by the

taking of a deposition because live testimony is “preferred.” Def. Br. at 4; see also id.

at 1, 11 (stating “preference” for live testimony in criminal matters). But the question

of live versus deposition testimony is not the question before the Court at this

juncture. Rather, the question is allowing the videotaped testimony to be preserved for

trial versus potentially no testimony at all. If Individual-6 is not deposed, and he


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subsequently is too infirm to testify or passes away before trial, then the jury will not

have any opportunity to hear from this relevant and material witness whatsoever.

Conversely, if he is deposed and later proves available for trial, then he can testify in

person.

      The interests of justice are undoubtedly furthered by preserving the testimony

of a key witness who likely will be unavailable to testify at trial.

      A.     The Government Has Met Its Burden of Showing Individual-6’s
             Unavailability.

      The Government has satisfied its burden to show unavailability. While

defendants assert that a “conclusory” statement of unavailability does not suffice, the

Government’s showing in its motion was not conclusory. Rather, it was supported by

specific information showing the high likelihood of the witness’s unavailability. The

Government related the medical diagnosis (stage four metastatic colon cancer that has

spread to his liver); the date of diagnosis (spring 2024); the treatment (chemotherapy)

and its lack of success; and his prognosis (providing the two-year survival rate at just

37% and the five-year survival rate at 13%). The cases cited by the defendants

involved far different circumstances where the moving party provided no reason at all

to believe the witness would be unavailable at trial, see United States v. Gibbs, Case

No. 23CR00035 (MN), 2024 WL 2017609, at *2 (D. Del. May 7, 2024) (the defendant

“has given no indication that any of his requested deponents . . . will be unavailable at

trial”); United States v. Varbaro, 597 F. Supp. 1173, 1181 (S.D.N.Y. 1984), or simply

asserted that they were outside the United States with no details why they could not

travel to the United States to testify, see United States v. Chusid, Case No. 00CR0263,

2000 WL 1449873, at *1 (S.D.N.Y. Sept. 27, 2000). By contrast, here the Government

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has provided a “specific reason why the witness might not be available.” Varbaro, 597

F. Supp. at 1181.

         There is no requirement that the showing of unavailability be made by affidavit.

See United States v. Drogoul, 1 F.3d 1546, 1553 (11th Cir. 1993) (“The moving party

may demonstrate the probable unavailability of a prospective deponent ‘through

affidavits or otherwise.’”) (quoting United States v. Alvarez, 837 F.2d 1024, 1029 (11th

Cir. 1988)); United States v. Konrad, 1996 WL 735566, at *1 (N.D. Ga. Nov. 27, 1996)

(a showing of unavailability “can be made through the introduction of affidavits, or

simply through in-court representations by counsel”). To the extent “independent”

evidence is helpful, in the form of medical records or a letter from a physician, the

Government now supplements the record with notes of Individual-6’s treating

oncologist following an office visit less than a month ago, which support the

Government’s argument that Individual-6 is likely to be unavailable at trial. See Ex.

A (provided to chambers and counsel redacted and under seal to protect Individual-6’s

privacy). For instance, the summary states that Individual-6’s cancer is

“unresectable” (inoperable), “metastatic,” and has shown “recent progression.” Ex. A at

1. The report documents that “[s]ince January 31, 2025, [there has been an] increase

in size and number of hepatic metastases,” the cancer has spread to the liver and

lungs, and Individual-6 is looking at participating in clinical trials (which tends to

indicate that traditional therapies have been unsuccessful). Id. at 2. Defendants can

no longer complain that Individual-6’s unavailability is shown by counsel’s assertions

alone.




                                             3
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      The Government need not, as defendants assert, prove with absolute certainty

that Individual-6 will die or be incapacitated before trial. Courts regularly authorize

Rule 15 depositions of witnesses with terminal illnesses and uncertain prognoses, as

even defendants’ own cases demonstrate. See Drogoul, 1 F.3d at 1552-53 (a

prospective witness need only be “unlikely to appear at trial,” and a showing of the

witness’s unavailability “need not be conclusive before a deposition can be taken”);

United States v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998) (“Rule 15(a) does not

require any conclusive showing of ‘unavailability’ or ‘material testimony’ before a

deposition can be taken in a criminal case.”); United States v. Karoly, 2009 WL

1872083, at *2 (E.D. Pa. June 29, 2009) (authorizing Rule 15 deposition because

witness with serious health conditions and a history of cancer “may be unavailable at

trial” (emphasis added)). 1

      Defendants are also wrong to suggest that the Court should analyze

unavailability for purposes of Rule 15 by Federal Rule of Evidence 804’s standard.

Rule 15 explicitly states that “[a]n order authorizing a deposition to be taken under

this rule does not determine its admissibility. A party may use all or part of a

deposition as provided by the Federal Rules of Evidence.” Fed. R. Crim. P. 15(f). To




1 United States v. Salko, 2008 WL 4006747, at *20 (M.D. Pa. Aug. 26, 2008), is

inapposite because there, the witness’s mobility was limited by a temporary condition
(a broken foot) and the witness merely had a history of cancer, not active, stage 4,
treatment-resistant cancer like Individual-6 does. Indeed, one of the cases that Salko
distinguishes, United States v. Schwimmer, 1987 WL 30635 (E.D.N.Y. Dec. 22, 1987),
granted the government’s motion for a Rule 15 deposition because the witness
“recently was gravely ill, and there is some likelihood that his health could take a
serious turn for the worse prior to trial.” Id. at *1 (emphasis added). This case is an
even more compelling case for preserving testimony than Schwimmer and,
accordingly, the Rule 15 deposition should be granted.

                                            4
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admit the deposition at trial, the Government will need to satisfy Rule 804. But “the

test [for unavailability under Rule 15] is less stringent [than under Rule 804],

inquiring whether ‘exceptional circumstances’ exist and whether justice would be

served by preserving the deposition testimony.” Konrad, 1996 WL 735566, at *1 (N.D.

Ga. Nov. 27, 1996) (citing Drogoul, 1 F.3d at 1553); Karoly, 2009 WL 1872083, at *3

(“The deposition testimony may be used at trial under F.R.Cr.P. 15(f) if the

government shows that Ms. Glisson is unavailable as a witness within the meaning of

F.R.E. 804(a).”). Indeed, the existence of many cases analyzing whether a witness who

is alive at the time of trial is nevertheless “unavailable” such that previously-taken

deposition testimony is admissible, presupposes that a witness who is deposed will not

always be unavailable at trial.

      B.     The Interests of Justice Strongly Favor Preserving Individual-6’s
             Testimony by Deposition.

      Second, defendants argue that the interests of justice militate against taking

Individual-6’s deposition because live testimony is “disfavored.” This argument fails,

too, because the question before the Court is not whether live testimony is preferable

to deposition testimony. The question is whether videotaped deposition testimony of a

key witness is better than no testimony at all.

      The interests of justice are significantly advanced by preserving the testimony

of a key witness so the jury is able to hear it. Rule 15 embodies a recognition that

justice is furthered by material testimony even if sometimes that testimony cannot be

obtained through live testimony at trial. Rule 15 protects the defendants’

confrontation rights by requiring that defendants be permitted to attend the witness’s

deposition and that their lawyers be permitted to cross examine the witness. While

                                            5
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defendants speak of a desire to have the jury observe the witness’s demeanor, the

deposition will be videotaped—allowing the jury to see the witness answering

questions. 2 “The unavailability of a witness with material testimony to give is an

exceptional circumstance and the admission of his or her prior deposition does not

violate the right of confrontation.” United States v. Coker, 1992 WL 59156, at *1 n.2

(E.D. Pa. Mar. 18, 1992), aff’d, 5 F.3d 1491 (3d Cir. 1993) (citing United States v.

Johnpoll, 739 F.2d 702, 709–10 (3d Cir. 1984)). Again, the Government merely seeks

to take Individual-6’s deposition to preserve his material testimony for trial, so that it

will be available in the event that Individual-6 is infirm by the time of trial or has

passed away. If, miraculously, Individual-6 is alive and healthy at the time of trial,

then the Court can insist on live testimony and decline to admit his deposition.




2 Moreover, the cases the defendants cite are inapposite. In United States v. Jones, 404

F. Supp. 529 (E.D. Pa. 1975), the court admitted at trial, over the defendant’s Sixth
Amendment objection, a reading (not recording) of prior sworn testimony of an
unavailable witness. In fact, the very sentence that defendants quote, Def. Br. at 13,
goes on to state that “it is nevertheless well settled that [the opportunity of the jury to
observe the witness’s demeanor] is not an essential ingredient of the confrontation
privilege.”
      In United States v. Oudovenko, Case No. 00CR1014, 2001 WL 253027 (E.D.N.Y.
Mar. 7, 2001), the court denied the defendant’s motion to take depositions in Russia,
where the Government would not be permitted to ask questions and no realistic
perjury penalty would attach. Id. at *3-4. That situation has absolutely no bearing on
the one here, where a Rule 15 deposition in the United States, driving distance away,
would properly and adequately protect the rights of all parties, including the
defendants’ confrontation rights.

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      C.     CONCLUSION

      Rule 15 exists for exactly the reason presented in this case: to preserve the

testimony of a material witness who is likely to be unavailable at trial. The Court

should follow the Rule and governing Third Circuit law and authorize the deposition.

                                                 Respectfully submitted,

                                                 ALINA HABBA
                                                 United States Attorney

                                                 /s/ Elisa T. Wiygul
                                       By:       DANIEL A. FRIEDMAN
                                                 ELISA T. WIYGUL
                                                 Assistant United States Attorneys

Dated: June 2, 2025




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 Case 1:24-cr-00528-ESK      Document 71     Filed 06/02/25   Page 9 of 9 PageID: 271



                           CERTIFICATE OF SERVICE
      The undersigned certifies that, on this day I caused to be served, via the Court’s

Electronic Filing System (“ECF”), a copy of the Reply In Support of Motion By the United

States to Take Deposition Under Federal Rule of Criminal Procedure 15.


                                             Respectfully submitted,


                                             ALINA HABBA
                                             United States Attorney

                                             /s/ Elisa T. Wiygul
                                             ELISA T. WIYGUL
                                             Assistant United States Attorney
Date: June 2, 2025


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