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01-2486 Ueland v. U.S.

By: dmc-admin//June 10, 2002//

01-2486 Ueland v. U.S.

By: dmc-admin//June 10, 2002//

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“Use of depositions as substantive evidence is normal in federal practice. What is even more disappointing than the district judge’s spontaneous refusal to admit the deposition is the United States Attorney’s defense of that decision. A claim of harmless error would not be tenable (and is not made); the judge hearing Chong-Won Tai’s own suit believed his testimony and awarded him $900 in damages. Instead the United States asks us to condition the use of any deposition on proof that determined attempts to bring the witness to court had failed- here by asking the district judge to issue a writ of habeas corpus ad testificandum. In other words, the United States contends that Rule 32(a)(3)(D) should be the exclusive ground of admissibility, and that no separate function should be allowed to Rule 32(a)(3)(B). This is not a tenable reading of the rule. Subsection (3) lists five circumstances that make a deposition admissible as substantive evidence. These are separated by the word ‘or’; satisfying any one of the subsections thus is enough. Subsection (3)(B) says that a deposition is admissible if ‘the witness is at a greater distance than 100 miles from the place of trial or hearing . . . unless it appears that the absence of the witness was procured by the party offering the deposition’. The party offering the deposition is forbidden to procure the deponent’s absence (or distance); this is a far cry from requiring the litigant to procure the deponent’s presence. It is the United States that by holding Chong-Won Tai captive has placed him outside the 100-mile radius from the court. The United States readily could have produced him in Chicago if it wanted to cross-examine him in the judge’s presence. It does not sit well for the United States to chastise Ueland for employing a deposition rather than live testimony.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Easterbrook, J.

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