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finding that witnesses were not unavailable where "the government has offered to assist in obtaining visas . . . to facilitate their presence at trial"
Summary of this case from U.S. v. Paredes-CordovaOpinion
00-CR-1014.
March 7, 2001
LORETTA E. LYNCH, United States Attorney, Brooklyn, New York, By: Julie Myers, Assistant United States Attorney, Attorney for the Government.
NORMAN A. BLOCH, ESQ., New York, New York, Attorney for Defendant.
MEMORANDUM AND ORDER
Defendant Grigori Oudovenko has moved pursuant to Rule 15 of the Federal Rules of Criminal Procedure for an order permitting pretrial depositions to be taken of five witnesses in Russia. On February 16, 2001, I denied the motion orally and promised that this opinion setting forth my reasons would follow.
BACKGROUND
M.N.A. Atlantic Ltd. ("M.N.A. Atlantic") is a Russian corporation that exports dried fish and caviar from Russia to other countries, including the United States. Oudovenko is indisputably a high-level employee of M.N.A. Atlantic; the government alleges that he is the company's president, whereas Oudovenko describes himself as a consultant hired to obtain caviar for export by the company.
On July 17, 2000, a shipment from M.N.A. Atlantic arrived in Newark, New Jersey. The invoice filed with the United States Customs Service, which was signed by Oudovenko, listed the contents of the shipment as 1250 boxes of dried fish. However, a search of the boxes by agents of the United States Fish and Wildlife Service revealed over 1900 pounds of sturgeon roe, a highly prized caviar obtained from an endangered species, hidden among the boxes of dried fish. On September 5, 2000, Oudovenko was arrested and charged with illegally importing sturgeon roe, in violation of 18 U.S.C. § 545, and with importing, transporting, receiving or acquiring sturgeon roe with knowledge that it had been taken, possessed or transported in violation of United States law, in violation of 16 U.S.C. § 3372 (a)(1) and 3373(d)(1)(A).
Oudovenko has moved for an order permitting him to take the depositions of five M.N.A. Atlantic employees in Moscow.
DISCUSSION
Rule 15(a) provides as follows: "Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may . . . order that testimony of such witness be taken by deposition...." The "exceptional circumstances" requirement of Rule 15 is met "if [the] witness' testimony is material to the case and if the witness is unavailable to appear at trial." United States v. Johnpoll, 739 F.2d 702, 708 (2d Cir. 1984), cert. denied, 469 U.S. 1075 (1985). The burden is on the moving party to demonstrate both the materiality of the testimony and the unavailability of the witness. See United States v. Whiting, 308 F.2d 537, 541 (2d Cir. 1962), cert. denied, 372 U.S. 919 (1963).
In the present case, the foregoing standards have not been met. While the proffered testimony of the persons sought to be deposed is material to the defense, Oudovenko has not demonstrated that the witnesses would be unavailable at trial.
"Unavailability is to be determined according to the practical standard of whether under the circumstances the [party seeking to take the deposition] has made a good-faith effort to produce the person to testify at trial." Johnpoll, 739 F.2d at 709 (citing Ohio v. Roberts, 448 U.S. 56, 74 (1979)). Although a court may accept the representations of counsel with respect to the unavailability of a witness, see United States v. Sindona, 636 F.2d 792, 804 (2d Cir. 1980), cert. denied, 451 U.S. 912 (1981), "[c]onclusory statements of unavailability by counsel are insufficient." United States v. Chusid, 2000 WL 1449873, *1 (S.D.N.Y. Sept. 27, 2000) (citing Whiting, 308 F.2d at 541); see also United States v. Varbaro, 597 F. Supp. 1173, 1181 (S.D.N Y 1984) ("Although the rule does not necessarily require a showing of certainty that a witness will be unavailable, surely it requires a showing of a specific reason why the witness might not be available. Unfounded speculation is not enough.").
In an effort to establish unavailability, Oudovenko repeats the same allegation for each witness, i.e., each stated that he or she "would not travel voluntarily to the United States to testify at Mr. Oudovenko's trial." Affirmation of Norman A. Bloch, Esq. ("Bloch Aff.") at 9 (Linda Kudridhova); Bloch Aff. at 10 (Tamara Zakharko); Bloch Aff. at 12 (Maria Miloradova); Bloch Aff. at 13 (Nicolai Trofimov); Bloch Aff. at 15 (Sergei Ershov). However, counsel's affirmation fails to establish that he or Oudovenko made a good faith effort to secure the presence of these witnesses at trial, such as by offering to pay their travel expenses. See Johnpoll, 739 F.2d at 709 (government demonstrated good faith effort by "offer[ing] to pay [witnesses] travel expenses, $30 per day witness fee and $75 per day subsistence fee"); Sindona, 636 F.2d at 804 (good faith effort established by government's promise to pay all expenses of the witnesses); Mann, 590 F.2d at 367 ("the government must show dingent effort on its part to secure the [witness's live testimony]," such as offering to pay the witness's transportation expenses.); United States v. Bronston, 321 F. Supp. 1269, 1272 (S.D.N.Y. 1971) (denying defendant's Rule 15 motion because, in part, "the unwillingness of a witness to come to this country unless his expenses are paid does not necessarily mean that he is `unable to attend or prevented from attending' the trial").
Furthermore, all of the witnesses at issue are employees of M.N.A. Atlantic. The government argues, and I agree, that Oudovenko's position in that company and his obvious influence within it suggests that he could prevail upon the witnesses to travel to the United States to testify in his defense. Indeed, all of them have already met with Oudovenko's attorney, and have given detailed statements to him. InUnited States v. Sandoval, 1997 WL 566252, *1 (N.D. Ill. Sept. 8, 1997), a case with facts similar to those presented here, the court denied a defendant's motion to take the deposition of witnesses who resided in Mexico. After reviewing cases in which courts have found witnesses to be "unavailable" under Rule 15 because they were beyond the subpoena power of the United States and had declared their unwillingness or inability to testify at trial, the court distinguished those cases as follows:
The court cited and discussed United States v. Des Marteau, 162 F.R.D. 364 (M.D. Fla. 1995) (granting defendant's motion to depose 11 Canadian witnesses who were hostile to the defense and unwilling to come to the United States to testify), and United States v. Sun Mvung Moon, 93 F.R.D. 558 (S.D.N.Y. 1982) (granting defendant's motion to depose 120 Japanese witnesses who were unable to come to the United States to testify at trial).
In [those cases], the witnesses the defendants sought to depose were independent third-parties; they had no long-term, working or business relationship with the defendants. However, [two of the witnesses in this case] have worked for Sandoval for several years. [A third witness] worked with Sandoval for several years. The court recognizes that these witnesses have expressed their unwillingness to travel to the United States. However, unlike the witnesses in Des Marteau, these witnesses have a substantial connection to defendant Sandoval; they are not hostile witnesses. While Sandoval can not compel them to come to the United States to testify, the court can not overlook that Sandoval has developed a close working relationship with these witnesses. The court finds that while they have expressed their unwillingness to come to the United States to testify, these three witnesses are not "unavailable" like the 120 Japanese witnesses in Sun Mvung Moon or the 11 hostile Canadian witnesses in Des Marteau.Sandoval, 1997 WL 566252, at *1-2 (citations omitted). The same is true here. Oudovenko is seeking to depose persons with whom he has had a close working relationship, in some instances for many years, not independent third-parties who would have no reason to travel to the United States to testify at his trial. Moreover, the government has offered to assist in obtaining visas for these witnesses to facilitate their presence at trial. In these circumstances, Oudovenko has failed to establish that the witnesses he seeks to depose are "unavailable" within the meaning of Rule
Finally, more than one court has observed that "foreign depositions are suspect and, consequently, not favored." United States v. Drogoul, 1 F.3d 1546, 1551 (11th Cir. 1993); see also United States v. Salim, 855 F.2d 944, 949 (2d Cir. 1988); United States v. Alvarez, 837 F.2d 1024, 1029 (11th Cir.), cert. denied, 486 U.S. 1026 (1988); Sandoval, 1997 WL 566252 at * 1. This is due, in part, to the use of different procedures related to inter alia the oath, the translation process, and the opportunity for cross-examination. See. e.g., Salim, 855 F.2d at 950 (recognizing the court's "considerable concern about the possible abuses of foreign methods of examining witnesses"); Drogoul, 1 F.3d at 1551 ("because of the absence of procedural protections afforded parties in the United States, foreign depositions are suspect").
In this case, for example, the government would not have a full opportunity to cross-examine the witnesses, and might not even be permitted to ask any of the questions. See Oudovenko's Letter to the Court dated February 2, 2001, at 1-2 (conceding that the witnesses' testimony may not be obtained through "voluntary" depositions, but rather must go through the formal procedures required by Russia); see also Declaration of Jennafer M. Litschewski, Esq., of the United States Department of Justice Office of International Affairs, at ¶ 6 (During discussions of the Mutual Legal Assistance Agreement between the United States and Russia, "the Russian authorities advised that only Russian law enforcement authorities may legally pose questions directly to a witness in Russia in connection with a criminal investigation or prosecution."). In addition, even if the witnesses in this case are placed under oath, the significance of that oath is diminished because there is no realistic perjury sanction. An oath to tell the truth, in whatever form, is designed to "awaken the witness" conscience and impress the witness' mind with the duty" to tell the truth. Fed.R.Evid. 603. But that impression is difficult to make when the witness is beyond the reach of the court. See Alvarez, 837 F.2d at 1029 ("Foreign deposition testimony, because of the absences of a sanction for perjury, is suspect."); United States v. Feijodo-Tomala, 751 F. Supp. 40, 43 (E.D.N.Y. 1990) (same). Oudovenko does not dispute the government's assertion that it would be unable to prosecute the witnesses for perjury, as there is no extradition treaty with Russia. Particularly in light of the circumstances set forth above, which suggest that Oudovenko may exercise some control over these witnesses, there is a heightened risk that an oath will be unable to instill in them a duty to tell the truth even if the truth hurts Oudovenko.
This risk is aggravated by yet another factor for the law's aversion to depositions in criminal trials, which is the "factfinder's inability to observe the demeanor of the deposition witnesses." See Drogoul, 1 F.3d at 1152. By depriving the jury of the opportunity to observe the witnesses as they testify, the jury is hampered in its ability to make credibility assessments and to weigh the evidence fairly. Although this deficiency may be ameliorated in part by the use of videotape, it remains true that the jury's ability to assess a witness's demeanor is significantly curtailed. See United States v. Gigante, 166 F.3d 75, 81 (2d Cir. 1999) (affirming decision to admit testimony obtained through closed-circuit television procedure but noting that "[t]here may well be intangible elements of the ordeal of testifying in a courtroom that are reduced or even eliminated by remote testimony"), cert. denied, 528 U.S. 1114 (2000).
CONCLUSION
For the reasons set forth above, defendant's motion for an order permitting pretrial depositions to be taken is denied.