UNITED STATES of America v. Jon C. COOPER, Defendant.
Criminal Action No. 12-211 (JDB).
United States District Court, District of Columbia.
June 3, 2013.
947 F. Supp. 2d 108
JOHN D. BATES, District Judge.
H. Heather Shaner, Washington, DC, for Defendant.
JOHN D. BATES, District Judge.
Before the Court is [37] defendant Jon Cooper’s motion to reconsider the Court’s December 28, 2012 order granting the government’s motion to depose two Indonesian witnesses under
BACKGROUND
On December 28, 2012, the Court granted the government’s motion to take the depositions of Hotasi Nababan and Tony Sudjiarto. See 12/28/12 Order [ECF 20]. Nababan and Sudjiarto are executives of Company A, an Indonesian company allegedly defrauded by Cooper as set forth in the superseding indictment. See Superseding Indictment [ECF 36]. In support of its motion to take the foreign depositions, the government represented that, in the course of the alleged fraudulent
Based on the allegations in the indictment and the government’s representations, the Court concluded that (1) the deposition testimony sought was material and (2) the two witnesses were unavailable to testify at trial, and hence that the depositions could be taken under Rule 15. See 12/28/12 Order 1-2 (citing
Following the Court’s December 28, 2012 order, Indonesian officials approved the taking of the depositions of Nababan and Sudjiarto, and the United States took steps to schedule the depositions and gain permission to conduct the depositions as proposed. The government has submitted a series of status reports indicating the posture of its requests to the Indonesian authorities. See Status Reports, Dkt. Nos. 24, 25, 29, 42, 43.
On April 4, 2013, Cooper moved for reconsideration of the Court’s order granting the motion to take depositions. At that time, it appeared “likely” that the Indonesian authorities would require the depositions to proceed by written questions to be asked by a magistrate. See Def.’s Mot. to Reconsider Order to Take Foreign Deps. [ECF 37] (“Mot. to Reconsider”), Ex. D, 3/27/13 Email. In other words, government and defense counsel would have to submit their questions and exhibits to Indonesian officials in advance of the depositions, and an Indonesian magistrate would ask the questions at the depositions. See id. Government counsel had informed defense counsel of its request that the witnesses be deposed in trial-like fashion and of the Indonesian authorities’ response that they “would consider whether to grant an exception.” See id. As to other requested procedures, the Indonesian authorities had not yet given government counsel a response. See id. In Cooper’s motion to reconsider, he argued that the anticipated deposition procedures would not adequately protect his confrontation rights for two main reasons: no oath would be administered, and he would not have a meaningful opportunity for cross-examination. See Mot. to Reconsider 6-15.
On April 26, 2013, government counsel met with Cahyo R. Muzhar, Director of the Indonesian “Central Authority,” to further discuss the depositions. See Gov’t’s 5/10/13 Status Report [ECF 42] 1. At the meeting, Muzhar agreed to many of the government’s requests regarding the deposition procedures, including the requests that an oath or affirmation be adminis-
5. Oath. Indonesia will permit a United States consular officer to place each witness under oath or affirmation, and draw their attention to the importance of giving truthful testimony.
...
7. Mode of Questioning and Examination. Indonesia will permit examination by both the United States and Counsel for Mr. Cooper. Indonesia will permit examination in the style of a deposition conducted pursuant to Rule 15 of the Federal Rules of Criminal Procedure in the United States and associated rules. Understanding that a videotape of the depositions may be used at a trial in the United States, the examination will follow the pattern of such trial testimony: it will begin with direct examination by the United States, followed by cross-examination by Counsel for Mr. Cooper, and concluding with re-direct examination by the United States.
Id.
According to the government, Muzhar also acceded to its requests for the following: the use of an official interpreter at the depositions; permission for Cooper to have a second interpreter for his private use; videotaping of the depositions; transcription of the depositions either in real time or after the fact; the parties’ ability to lodge objections on the record; a video and audio link allowing Cooper to observe the depositions live; and the opportunity for Cooper to consult privately with his counsel by phone. Id.1 Muzhar has agreed to put these procedures in writing, but to date has not yet done so. See id. at 1.
On May 16, 2013, the Court held a hearing on Cooper’s motion to reconsider. After the hearing, the government filed a further status report, following a May 29 conversation with Muzhar. In relevant part, the status report provides that: the depositions are currently scheduled for the five days beginning June 24, 2013, and ending June 28, 2013; the government has “reiterated its request to reach a written agreement or understanding on deposition procedures” and Muzhar has “reiterated his earlier statement that he believed such a written agreement/understanding could be reached prior to the depositions; and the procedures expected to be used at the depositions are the same as the procedures set forth in the government’s previous status report, except for the following changes as to the manner of questioning and examination, as described by the government:
5. Mode of Questioning and Examination. Mr. Muzhar has earlier made representations about the mode of questioning both in a meeting on or about March 27 and in a meeting on or about April 26. In the May 29 phone call, Mr. Muzhar stated that, in the initial stage of questioning, an Indonesian magistrate will question the witnesses based upon written questions submitted by the parties. However, both parties would be permitted to ask follow-up questions, and there would be no restrictions on the follow-up questions, including the ability to re-ask questions posed by the Indonesian magistrate. The
undersigned expressed his particular concern that the defense be permitted to cross-examine the witnesses through counsel. More than once, Mr. Muzhar gave his personal assurance that both parties would be able to ask all questions that they desired. Based on the nature of this and previous conversations, it is the undersigned’s impression that Mr. Muzhar was navigating a situation where (a) Indonesian practice and institutions ordinarily require examination by magistrate; (b) there is no Mutual Legal Assistance Treaty between the United States and Indonesia, and thus no formal policy covering these depositions; and (c) Mr. Muzhar’s personal willingness (not shared by other Indonesian agencies, or within his agency) to permit such a mode of questioning during the depositions.... 6. Submission of Questions. After reiterating the United States’ request that direct questioning be permitted, particularly on defense cross-examination, the parties discussed what Indonesia required to implement the magistrate-questioning procedure described. Mr. Muzhar requested that each party (United States and defendant) provide a list of questions and topics to be covered, which list could be as short as one page. Mr. Muzhar requested that such questions be submitted prior to the deposition by either email to him or to his office by FedEx express mail. Mr. Muzhar did not impose any earlier deadline, but did indicate that express mail usually takes 5 days for delivery. The undersigned reiterated the previously-expressed defense concern that neither the United States nor the witnesses be permitted to see proposed defense cross-examination prior to the depositions.
5/29/13 Status Report 1-3 (footnotes omitted). Cooper has filed a response to the government’s May 29, 2013 status report.
DISCUSSION
At the May 16, 2013 motions hearing, defense counsel expressed three main objections to the Rule 15 depositions as envisioned on that date: first, that Nababan and Sudjiarto are no longer unavailable; second, that there remains too much uncertainty surrounding the deposition procedures because the Indonesian authorities have not yet committed to them in writing; and finally, that Cooper is entitled to full discovery—i.e., all discovery that he would have before trial—before the depositions can be taken. The Court will address these issues in turn.
I. Unavailability
In criminal cases, depositions may be taken only “to preserve testimony for trial” and “because of exceptional circumstances and in the interest of justice.”
To show unavailability at this stage, the party seeking the deposition need not prove conclusively that the prospective deponent will be unavailable to testify at trial. See United States v. Drogoul, 1 F.3d 1546, 1553 (11th Cir.1993) (quoting United States v. Sines, 761 F.2d 1434, 1439 (9th Cir.1985) (“It would be unreasonable and undesirable to require the government to assert with certainty that a witness will be unavailable for trial months ahead of time, simply to obtain authorization to take his deposition.”)). As the Eleventh Circuit has stated, a prospective deponent will be unavailable for purposes of Rule 15(a) if “a substantial likelihood exists that [he or she] will not testify at trial.” Id.
Here, the Court concludes, the government has made a sufficient showing of unavailability for the depositions to be taken. It is true that the government’s showing would be stronger if, for example, a firm travel ban were still in place, or the witnesses had signed affidavits stating that they refused to come testify in the United States. But the most up-to-date information before the Court—as represented by the United States—indicates that Nababan and Sudjiarto would not be permitted to leave Indonesia if they asked to do so at this time, and there is no indication whether or when that may change before trial. Moreover, Indonesian officials have thus far prevented the United States from even contacting Nababan and Sudjiarto. Hence, the government has had no way to ask the witnesses if they would be willing to testify at Cooper’s trial, much less obtain affidavits from them. And given the United States’s lack of success in reaching Nababan and Sudjiarto, it would not be at all surprising if the United States could not secure their presence at trial, which is now set for January 2014, just over seven months away. Finally, even if Nababan
The Court’s determination that the Rule 15 depositions may proceed “does not determine [their] admissibility” at trial.
II. Confrontation
Cooper’s initial Confrontation Clause challenges were premised on the likely deposition procedures as of the time he filed his motion to reconsider. See Mot. to Reconsider 8-15 (arguing that lack of oath and opportunity for cross-examination would violate confrontation rights). As noted, however, the procedures to be used have evolved and, according to the government, are now expected to include both the administration of an oath or affirmation and an opportunity for full cross-examination (albeit after initial questioning by a magistrate). As such, most of Cooper’s initial challenges are no longer viable.
Cooper raises several additional objections to the proposed deposition procedures in his reply, contending that even as revised the procedures would deprive him of his confrontation rights. See Reply 4-9. Most of these objections, however, assume procedural defects that may in fact pose no barrier to Cooper’s effective exercise of his confrontation rights. Cooper complains, for example, that Indonesia does not have a procedure to compel witnesses to answer all questions, that the Court would not be ruling contemporaneously on objections, and that the depositions may not be transcribed in real time. See id. at 6-7. But this Court is aware of no authority saying that effective cross-examination requires a means of compelling witnesses to answer questions, contemporaneous ruling on objections,3 or real-time transcription. If Cooper has any problems cross-examining the witnesses because of these aspects of the depositions, he may raise those problems later, as arguments against admissibility of the deposition testimony. See Drogoul, 1 F.3d at 1555 (“If irreconcilable differences arise after the depositions have been taken and the translations made, then the depositions might properly be
In response to the government’s most recent status report, Cooper also claims that “contrary to the procedures earlier promised, [he] will not be allowed full-ranging cross-examination.” Status Resp. 2. But that is not what the status report says. It says that the depositions will begin with questioning by an Indonesian magistrate, and following that, both parties may then ask follow-up questions, with “no restrictions on the follow-up questions, including the ability to re-ask questions posed by the Indonesian magistrate.” 5/29/13 Status Report 2. The status report says, moreover, that “Muzhar gave his personal assurance that both parties would be able to ask all the questions that they desired.” Id. There is no indication that the follow-up questions will be limited to topics touched on by the magistrate’s questions. And although the questioning by the magistrate will make the depositions different from a typical Rule 15 deposition, it is not clear to the Court that Cooper’s right to full and effective cross-examination will be abridged in any way. See Drogoul, 1 F.3d at 1555 (district court might have had discretion to deny deposition request “were it abundantly clear that the depositions could not possibly be admitted at trial”). Hence, the government’s May 29, 2013 status report does not present a reason not to take the Rule 15 depositions. See id. at 1554-55 (distinguishing between propriety of taking depositions and propriety of using them at trial).
The defense’s final and now most strongly pressed objection to the deposition procedures is that the Indonesian authorities have not yet committed to the procedures in writing. At this point in the proceedings, the government has gone back and forth with Indonesian officials over the procedures to be used at the depositions, and the government has represented to the Court that the Indonesians have agreed to most of the government’s requests, including the request that counsel for both sides be allowed to “ask all the questions that they desire[ ],” even though witness questioning is ordinarily done by magistrate in Indonesia. See 5/28/13 Status Report 2-3; 5/10/13 Status Report 3-4; see also Drogoul, 1 F.3d at 1555. Although a written agreement on the deposition procedures would be preferable to oral assurances—and the Court certainly encourages the government to continue to seek such an agreement—the government has acted in good faith here, and it may be that oral assurances are the best that it can get. Based on those assurances, as relayed by the United States, the Court is sufficiently confident that the deposition procedures outlined in the government’s
III. Discovery
Cooper claims that he will be prejudiced by the taking of the Rule 15 depositions in advance of trial because discovery in this case is not yet complete. He contends that he cannot meaningfully cross-examine the witnesses unless he has first received all materials required to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and the Jencks Act,
Yet Cooper insists that he is entitled to every piece of discovery in this case—including all Jencks, Brady, and Giglio materials that the government would have to disclose before trial—in advance of the depositions of Nababan and Sudjiarto. Cooper cites In re Grand Jury Proceedings, 697 F.Supp.2d 262, 275 (D.R.I.2010), in which the court conditioned the taking of pre-indictment depositions on the government’s “full disclosure” of “all materials which would be disclosed in the usual course under
Here, the government has represented that it has already disclosed all “statements” (including emails) of Nababan and Sudjiarto in its possession and that it does not have any Brady or Giglio that it has not already disclosed. And Cooper has not identified any materials that the government has but has not disclosed that would be relevant to the Rule 15 depositions. Hence, the Court will not impose a disclosure obligation on the government beyond that set forth in
Cooper also argues that under
The Court finds that the government has met (and likely exceeded) any obligation it has under
IV. Additional Matters
Having concluded that the Rule 15 depositions may go forward as scheduled, the Court will briefly address several related matters. First, the Court will grant Cooper’s request to require the United States to pay the reasonable travel and subsistence expenses for both of Cooper’s attorneys to attend the deposition. See
Finally, the parties have agreed on a January 2014 trial date, and defense counsel in particular has represented that tolling the speedy trial clock is necessary for effective trial preparation. In this complex case, there are voluminous discovery materials, and the foreign depositions authorized today will not be completed until the end of June. Accordingly, the Court finds that the ends of justice served by granting a further continuance in this case outweigh the best interests of the public and defendant in a speedy trial. See
CONCLUSION
For the foregoing reasons, Cooper’s motion to reconsider will be denied. A separate order accompanies this memorandum opinion.
JOHN D. BATES
United States District Judge