United States of America v. Azibo Aquart

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. Discussion1

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

1 Motions for reconsideration require the movant to set “forth concisely the matters or controlling decisions which [the movant] believes the Court overlooked in the initial decision or order.” D. Conn. L. Civ. R. 7(c)1. The Second Circuit has explained that “[t]he major grounds justifying reconsideration are ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18B C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 4478). This standard is “strict,” however, and reconsideration should be granted only if “the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). If “the moving party seeks solely to relitigate an issue already decided,” the court should deny the motion for reconsideration and adhere to its prior decision. Id. The Government fails to address the strict standards governing motions for reconsideration; the Court assumes, therefore, that the grounds for the Government’s motion fall under the “need to correct a clear error” factor.

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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

2 The amendment “made clear that the court may also make orders for the discovery and production of documents and things for inspection, copying, or photographing as provided in [Federal Rule of Civil Procedure] 34, and for the physical and mental examination of persons as provided in [Federal Rule of Civil Procedure] 35.” Wright and Miller, Federal Practice and Procedure § 2076, at 404–05 (2010).

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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) (“Perpetuation

of testimony includes the inspection of documents and things.” (referencing Martin, 297

F.2d at 56)).

Thus, Defendant has properly utilized Rule 27 as the basis for his motion.

B. Perpetuation of Evidence

The Government next insists, relying on Petition of Ford, 170 F.R.D. 504 (M.D.

Ala. 1997), that even if the rule applied to non-testimonial evidence, it only applies to the

perpetuation of such evidence, and Defendant improperly attempts to use Rule 27 as a

discovery tool.

The Government’s reliance on Petition of Ford is misplaced, however. There, a

prospective civil rights plaintiff sought leave to take a witness deposition to determine

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whom to sue, lest “the memories of those involved fade or become dist[or]ted by

publicity.” Id. at 506. The district court found that Rule 27 did not authorize such pre

complaint relief absent any credible showing of a use to prevent this testimony from

being lost. Id. at 507.

Here, however, the crime scene evidence sought to be chemically tested may lose

the properties to be tested over time as a result of the process of degradation described by

Defendant’s submission if he is required to wait the years anticipated for his appellate

process to be completed. This situation certainly presents the type of special

circumstances contemplated by Rule 27’s remedy.

C. Rule 27 Timing Criteria

Finally, the Government maintains that Rule 27(a)(1)(A) requires the petitioner to

show that it “expects to be a party to an action cognizable in a United States court but

cannot presently bring it or cause it to be brought” and that “nothing prevents the

defendant from filing a motion under § 2255 while his direct appeal is pending, and then

moving to conduct discovery pursuant to his motion.” (Gov’t’s Mot. Recons. at 4

(emphasis added).)

However, Rule 27(b), which concerns motions brought “Pending Appeal” has no

requirement that a petitioner be presently unable to file the motion, providing only that a

petitioner provide the “name, address, and expected substance of the testimony” sought

and “the reasons for perpetuating” the testimony. Defendant has amply satisfied these

requirements by identifying the specific evidence to be tested, as well as the methods that

will be used, as described in the declaration of Dr. Robson Storey, a recognized researcher

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and expert in the field of polymer chemistry and science who will be conducting the test.

Given that Defendant has articulated a particularized need to test this evidence now in his capital conviction case, the Court finds that perpetuating the evidence “may prevent a failure or delay of justice” and is thus warranted under Rule 27(b)(3). For the foregoing reasons, the Government’s Motion [Doc. # 1252] for Reconsideration is DENIED.