1:11-cr-00205
S.D.N.Y.Nov 7, 2023Background:
- Hugo Armando Carvajal Barrios, former Venezuelan military intelligence director, is indicted for narco-terrorism and cocaine-importation conspiracies involving Cartel de los Soles, FARC, and others.
- Carvajal moved under Fed. R. Crim. P. 15(a)(1) to depose and preserve testimony of Fernando Blengio, a Mexican national deported and barred from reentering the U.S.
- Blengio would allegedly testify he arranged a 2006 plane transaction, was told to pay someone presented as Carvajal, never met Carvajal, and was later shown a photo indicating he had been tricked; defense says this shows lower-level actors used Carvajal's name to solicit bribes and that Carvajal was unaware.
- The government opposed, arguing Blengio’s testimony is speculative, not material to proving the existence of the charged conspiracy, and may be inadmissible at trial.
- The Court found the government’s contention that Blengio could apply for reentry unpersuasive but agreed that Blengio’s proffered testimony was neither material to proving the conspiracy nor necessary to avoid a failure of justice.
- The Court denied the Rule 15 deposition motion; pretrial conference set and time excluded in the interest of justice.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unavailability of witness | Blengio deported and barred from reentry, so unavailable under Rule 15 | Government: he could seek permission to reenter, so not strictly unavailable | Court: government’s reentry point specious but did not rely on it; treated other factors dispositively |
| Materiality of testimony | Testimony would impeach government witnesses and tend to exculpate Carvajal by showing bribes used his name without his knowledge | Government: testimony is speculative, doesn't address existence of the conspiracy or whether Carvajal agreed to criminal scheme | Court: testimony not sufficiently material to central issue of conspiracy and could not rebut key allegations |
| Necessity / Failure of justice | Denial would violate Sixth Amendment right to present a defense; preserving testimony necessary to avoid failure of justice | Government: even if unavailable, testimony not necessary because inadmissible or irrelevant to proving agreement element | Court: denying deposition would not produce a failure of justice; Rule 15 relief denied |
Key Cases Cited
- United States v. Cohen, 260 F.3d 68 (2d Cir. 2001) (sets Rule 15(a) three-factor test: unavailability, materiality, necessity)
- United States v. Vilar, 568 F. Supp. 2d 429 (S.D.N.Y. 2008) (defines materiality as highly relevant to a central issue or challenging central allegations)
- United States v. Stein, 482 F. Supp. 2d 360 (S.D.N.Y. 2007) (Rule 15 may be denied where proposed testimony would be inadmissible)
- United States v. Shabani, 513 U.S. 10 (1994) (in drug-conspiracy prosecutions the agreement itself is the actus reus)