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observing that witnesses had no connection to defendant that would provide them with an incentive to testify at trial
Summary of this case from U.S. v. Ionia Management S.AOpinion
Criminal Action No. 3:06 CR 323 (CFD).
June 26, 2007
RULING ON DEFENDANT'S MOTION FOR DEPOSITIONS PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 15
The defendant, Stora Enso North America ("Stora Enso"), moved the Court to order the depositions of Hans Sohlstrom and Kevin Lyden pursuant to Federal Rule of Criminal Procedure 15 [docket # 98]. Sohlstrom was the senior vice-president of sales and marketing for the magazine paper division at UPM-Kymmene, Inc. ("UPM") from 2002 to 2004. Lyden was the head of UPM's North American operations during the time of the alleged conspiracy between Stora Enso and UPM. Stora Enso argues that these depositions are necessary because the witnesses are unavailable and their testimony is material to Stora Enso's defense. The government opposes the motion as untimely and asserts that the witnesses' testimony is not material for purposes of Rule 15. For the reasons that follow, Stora Enso's motion is granted as to Kevin Lyden and denied, without prejudice, as to Hans Sohlstrom.
Under Rule 15, a trial court may order a deposition in a criminal case for use at trial "because of exceptional circumstances and in the interest of justice." Fed.R.Crim.P. 15(a). A district court must "review these motions on a case-by-case basis, examining whether the particular characteristics of each case constitute `exceptional circumstances.'" United States v. Stein, 482 F. Supp. 2d 360, 363 (S.D.N.Y. 2007) (citation and quotation marks omitted). The party seeking the deposition bears the burden of proving that "(1) the prospective witness is unavailable for trial, (2) the witness' testimony is material, and (3) the testimony is necessary to prevent a failure of justice." United States v. Cohen, 260 F.3d 68, 78 (2d Cir. 2001).
"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." United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984); see United States v. Oudovenko, No. 00-CR-1014, 2001 WL 253027, at *1 (E.D.N.Y. Mar. 7, 2001). Here, both the government and Stora Enso agree that Lyden and Sohlstrom are foreign nationals outside the subpoena power of this Court, and that neither man will voluntarily come to the United States to testify at trial. These witnesses also have no connection to Stora Enso that provides them with an incentive to testify at trial. See Oudovenko, 2001 WL 253027, at * 2-3 (finding proposed witnesses available where witnesses had "a substantial connection to [the] defendant" and "were not hostile witnesses" or "independent third parties who would have no reason to travel to the United States to testify at [the] trial"). The Court therefore finds that both Lyden and Sohlstrom are unavailable within the meaning of the Rule.
With regard to the other two Cohen factors, the Court finds that Stora Enso met its burden for Lyden but not for Sohlstrom. To establish materiality, "it is not necessary that the defendant show the testimony will surely acquit him." United States v. Grossman, No. 03CR1156, 2005 WL 486735, at *3 (S.D.N.Y. Mar. 2, 2005) (citation and quotation marks omitted). "[T]estimony is material if it is `highly relevant to a central issue in the case.'" Id. (quoting United States v. Drogoul, 1 F.3d 1546, 1556 (11th Cir. 1993)). The Court denies Stora Enso's motion as it pertains to Sohlstrom because Stora Enso's papers and accompanying affidavit provide little basis for finding his testimony material other than his initial inclusion on the government's witness list. For Lyden, however, Stora Enso sufficiently established materiality. The government initially included Lyden on its witness list for trial, and the government's Brady letter included statements by Lyden. Lyden served as the head of UPM's North American operations, he reported directly to Tynkkynen, and he was the immediate superior to another UPM employee, Heikki Malinen, the head of UPM's North American sales, who will testify for the government at trial. Lyden is also mentioned repeatedly in the FBI's 302 reports from interviews with Tynkkynen and Malinen that the government disclosed to Stora Enso. Stora Enso expects Lyden to testify that UPM's management independently decided to raise prices and that he knew nothing about the alleged price fixing agreement between Tynkkynen and Stora Enso's president, Kai Korhonen. Given Lyden's position within UPM's management and his seemingly extensive interactions with Tynkkynen around the time of the price increase, the Court concludes that Lyden's testimony is material to Stora Enso's defense that no price fixing agreement existed between UPM and Stora Enso.
The third requirement, that the testimony is necessary to prevent a failure of justice, is satisfied "when the witness is unavailable, his testimony is material, and there are no substantial countervailing factors militating against the taking of the deposition." Id. (citing Johnpoll, 739 F.2d at 709). The Court finds that justice requires granting Stora Enso's motion to depose Lyden. The only countervailing factor identified by the government that weighs against granting Stora Enso's motion is a possible delay of the trial, which is currently scheduled for jury selection on July 11, 2007. However, Stora Enso informed the government and the Court that it would move for this deposition only one week after the government submitted its final witness list, which excluded Lyden. Aside from this motion the case has moved forward quickly. The potential delay from granting this motion, without more, is insufficient to justify denying the motion in light of the materiality of Lyden's testimony.
Stora Enso's motion for depositions pursuant to Rule 15 [docket # 98] is granted as to Kevin Lyden and denied as to Hans Sohlstrom. As to the latter, the motion is denied without prejudice to Stora Enso making an additional showing under Cohen and Rule 15.
Because of the additional time required to take Lyden's deposition, jury selection, previously set for July 11, 2007, shall be postponed. See 18 U.S.C. § 3161(h)(8)(B)(iv). The Court finds that the ends of justice served by postponing jury selection outweigh the best interest of the public and Stora Enso in a speedy trial. See 18 U.S.C. § 3161(h)(8)(A). Counsel for Stora Enso shall submit a duly executed waiver of Stora Enso's rights under the Speedy Trial Act, Title 18, United States Code, Section 3161, et seq., and the speedy trial provisions of the Sixth Amendment of the United States Constitution within one week of this order.
SO ORDERED.