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United States v. Aquart

United States District Court, D. Connecticut

January 27, 2016



Janet Bond Arterton, U.S.D.J.

The Government moves [Doc. # 1252] for reconsideration of this Court’s Order [Doc. # 1251] granting Defendant’s Motion [Doc. # 1250] to Perpetuate Evidence. For the following reasons, the Government’s motion is denied.

I. Background

On September 29, 2015, Defendant Azibo Aquart filed a motion to perpetuate evidence pursuant to Fed.R.Civ.P. 27(b), seeking court authorization to inspect and test crime scene latex gloves and glove fragments in the Government’s possession for possible future use in a motion under 28 U.S.C. § 2255. This evidence had been seized at the scene of the triple homicide of which a jury found Mr. Aquart guilty and to be sentenced to death. (Mot. to Perpetuate at 1-2.) Mr. Aquart’s appeal of the final judgment is currently pending.

Based on counsel’s representations regarding the risk of degradation to this evidence during the pendency of Mr. Aquart’s direct appeal, which will be exhausted before a § 2255 motion is filed, presumably to consolidate all issues to be raised, the Court granted his motion to perpetuate new chemical testing results for later use, which might otherwise be unobtainable at a later date. Although the existence of Government opposition was noted by Defendant in his motion, the Government filed no opposition. After its silence while the motion was under consideration, it now seeks reconsideration, asserting, as a threshold matter, that the Court lacked jurisdiction to entertain Mr. Aquart’s motion.

II. Discussion [1]

Because of the pendency of Defendant’s appeal before the Court of Appeals for the Second Circuit, the Government contends that this Court was divested of jurisdiction to act on Defendant’s motion, which, it argues, involves “substantive aspects of the case involved in the appeal, ” i.e., sufficiency of evidence. (Gov’t’s Mot. Recons. at 3.)

However, Rule 27(b)(1) provides an exception to the general rule of divesture by “permitting the court where a judgment has been rendered . . . if an appeal has been taken” to authorize depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in that court. The purpose of this rule does not implicate any determination of substantive rights but “afford[s] a simple ancillary or auxiliary remedy to which the usual federal jurisdictional and venue requirements do not apply.” Mosseller v. United States, 158 F.2d 380, 382 (2d Cir. 1946); see also Dresser Indus., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979) (“There need not be an independent basis of federal jurisdiction in a proceeding to perpetuate, but it must be shown that in the contemplated action, for which the testimony is being perpetuated, federal jurisdiction would exist and thus is a matter that may be cognizable in the federal courts.”)

The Government contends that Rule 27 is inapplicable because (1) it applies only to depositions and not to the type of discovery Defendant seeks, (2) Defendant is improperly attempting to discover new evidence, and (3) Defendant’s discovery requests predate the filing of a § 2255 motion.

A. The Scope of Rule 27

The Government maintains that Rule 27 provides “only for the perpetuation of testimony through deposition.” (Gov’t’s Reply [Doc. # 1257] at 2.) While the plain language of Rule 27(b)(1) refers only to the perpetuation of witness testimony, the Rule’s complete text extends well beyond depositions, reflecting a 1948 amendment to the Rule, which provides that courts may “issue orders like those authorized by Rules 34 and 35.”[2] Fed. R. Civ. P. 27(b)(3). As the Ninth Circuit explained in Martin v. Reynolds Metals Corp., 297 F.2d 49 (9th Cir. 1961):

[T]he purpose of the [1948] amendment [wa]s to make Rules 34 and 35 applicable in proceedings to perpetuate testimony. Common sense says that there will be cases in which they should be applicable where a deposition is not necessary or appropriate. It may frequently occur that the only thing likely to be lost or concealed is a paper or object that should be subject to inspection, etc., under Rule 34, or the physical or mental condition of a party, who should be subject to physical or mental examination by a physician under Rule 35.

Id. at 56; see also Gen. Bd. of Glob. Ministries of the United Methodist Church v. Cablevision Lightpath, Inc., No. CV06-3669 (DRH) (ETB), 2006 WL 3479332, at *4 (E.D.N.Y. Nov. 30, 2006) (enabling petitioner to obtain subscribers’ IP addresses from Cablevision in order to ascertain the names of adverse parties before Cablevision destroyed the data, pursuant to Rule 27); Application of Deiulemar Compagnia Di Navigazione S.p.A. v. M/V Allegra, 198 F.3d 473, 478, n.5 (4th Cir. 1999) ...

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