Case 3:18-cr-04683-GPC Document 261 Filed 08/03/21 PageID.2973 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES OF AMERICA,
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`v.
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`JACOB BYCHAK, et al.,
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`Plaintiff,
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`Defendants.
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` Case No.: 18-CR-4683-GPC
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`ORDER DIRECTING
`GOVERNMENT TO PROVIDE
`ADDITIONAL MATERIALS TO
`THE DEFENSE RELATING TO
`RULE 15 MOTION TO DEPOSE
`WITNESS
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`[ECF Nos. 242, 253 and 256.]
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`On June 23, 2021, the Government filed a Motion to Take Deposition of two
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`witnesses, LWT and SAD, under Federal Rule of Criminal Procedure (“Rule”) 15. (ECF
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`No. 242.) Following the filing of the Motion, the Government provided twenty-four
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`redacted email exchanges between the government (agents, prosecutors and support staff)
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`and witness SAD which revealed attempts to subpoena SAD for trial and SAD’s position
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`regarding his availability. Thereafter, Defendants filed their response to the Rule 15
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`Motion which attached eight of the twenty-four emails and expressed no objection to the
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`deposition of LWT but objected to the deposition of SAD on the grounds that the
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`Government had failed to demonstrate exceptional circumstances to take the deposition
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`Case 3:18-cr-04683-GPC Document 261 Filed 08/03/21 PageID.2974 Page 2 of 4
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`of SAD. (ECF No. 253.) Further, Defendants challenged the redactions made by the
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`Government in eight of the email exchanges, alleged that the redacted emails referenced
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`other emails or voicemails that had not been produced, and questioned the timing of
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`SAD’s claims that his health did not permit him to travel to San Diego for trial.
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`On July 8, 2021, with the consent of all the Defendants, a telephonic hearing on the
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`Rule 15 Motion was held. Following the arguments of counsel, the Court granted the
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`Rule 15 Motion, in part, as to witness LWT. (ECF No. 254.) The Court instructed the
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`parties to meet and confer as to the time, date, location and means of deposition of LWT.
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`(Id.) As to SAD, the Court denied the Motion without prejudice. (Id.)
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`At the July 8, 2021 hearing, the Court further directed the Government to provide
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`in camera the unredacted e-mails between Agent Booth and witness SAD that were
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`referenced in the Defendant’s Opposition, Exhibits A-H. (See ECF No. 253.) In response
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`to this order, the United States submitted, for in camera review, twenty-four unredacted
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`email communications between the government (agents, prosecutors and support staff)
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`and witness SAD. (ECF No. 256.) However, the defense only attached eight of the
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`twenty-four emails and did not include the exchanges identified by the Government in
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`Exhibits 1, 3, 5-6, 8-15, 19, 22-24. The defense has not raised objections as to any
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`redactions relating to these sixteen exhibits. As such, this Court’s ruling is limited to
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`objections related to Exhibits A-H.
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`Having reviewed all the documents submitted in camera and the case record, the
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`Court DIRECTS that the Government produce certain documents that are further
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`discussed infra pages 3–4, or show cause no later than August 6, 2021 as to why these
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`documents should remain redacted or withheld.
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`Legal Standard on Motion for Deposition Testimony
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`Rule 15(a) provides in pertinent part: “[a] party may move that a prospective
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`witness be deposed in order to preserve testimony for trial. The court may grant the
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`Case 3:18-cr-04683-GPC Document 261 Filed 08/03/21 PageID.2975 Page 3 of 4
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`motion because of exceptional circumstances and in the interest of justice.” Fed. R. Crim
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`P. 15(a). A physical disability qualifies as exceptional circumstances, warranting a
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`deposition to preserve the testimony and use it at trial. See Furlow v. United States, 644
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`F.2d 764, 767 (9th Cir. 1981). “[S]evere and chronic” medical issues that impair a
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`witness’s mobility qualify as exceptional circumstances. United States v. McGowan, 590
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`F.3d 445, 454 (7th Cir. 2009).
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`Discussion
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`Here, in support of its motion to depose SAD, SAD reportedly advised Agent
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`Booth that he has numerous physical and medical conditions that would make it difficult,
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`if not impossible, to travel to San Diego. (See ECF Nos. 253-1 at 20-21.) These maladies
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`are set out and include a compromised immune system, pulmonary lung disease, and a
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`limited mobility to due to knee surgery. (Id.) While these conditions would support a
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`finding that exceptional circumstances prevent SAD from traveling to San Diego for trial,
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`there was no reference to these conditions in the early exchanges between SAD and
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`Agent Booth when arrangements to serve SAD with a subpoena were discussed. Instead,
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`SAD initially reported in March 2021 that he was not available on November 30, 2021
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`due to vacation plans and would not be available until December 13, 2021. (Id. at 7.) It
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`was not until May 31, 2021 when SAD reported that he suffered from a compromised
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`immune system and that traveling by plane for six hours would not be good for his
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`health. (Id. at 21.) Given this sequence of events, Defendants are concerned that the
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`redactions surrounding the March to May 2021 emails. Exhibits A-H, may evidence
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`coaching by the Government of SAD calculated to produce exceptional circumstances
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`justifying the deposition of SAD.
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`The Court has conducted its review of the unredacted materials that were furnished
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`to defense counsel. (ECF No. 256.) The Court finds no evidence of coaching in the
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`redacted information. As to the redactions, a number of them conceal the email address of
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`Case 3:18-cr-04683-GPC Document 261 Filed 08/03/21 PageID.2976 Page 4 of 4
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`Agent Booth and/or the phone number of SAD. The Court concludes these redactions are
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`proper and finds the defense is not entitled to them. In addition, there are several
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`redactions that remove headers preceding a number of the subject emails which reflect
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`the date and time that Agent Booth forwarded his email communications with SAD to
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`AUSA Pierson and Case Agent Chabalko. While innocuous, the headers do not appear to
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`be discoverable and the Court will not direct the Government to unredact the headers
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`from the furnished documents.
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`Next, there are a number of redactions in Defendants’ Exhibits A to C which
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`consist of Agent Booth explaining why he was contacting SAD and attempting to
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`schedule or reschedule serving a trial subpoena on SAD. The emails appear to provide
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`context as to the responses that follow. Nothing is apparently sensitive or confidential
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`about these communications and the Court DIRECTS the Government to turn over these
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`pages which are Bates Stamped as ADCONNION-DISC32-00011, 00016, and 00027, or
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`show cause why these communications should remain redacted. If the Government elects
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`to resist the production of these pages, it should file a response to this order to show
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`cause no later than August 6, 2021.
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`IT IS SO ORDERED.
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`Dated: August 3, 2021
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