United States v. Ismaili, Lakbir Moulay. Appeal of Lakbir Moulay Ismaili

SLOVITER, Before BECKER GARTH, Judges. Circuit investigation concluded, OF THE COURT OPINION further, that Ismaili had no sales force to GARTH, Judge: Circuit East; sell vans the Middle appeals from the denial of Lakbir Ismaili advertising campaign that no for the vans pretrial pre- motions that were several planned. been had.ever appeal at the time he entered a served presented grand its case to a jury in Janu- of nolo contendere pursuant plea to a plea ary of 1981. Zudick, agreement. See (3d Cir.1975). We affirm.

B.

I. appearances In Ismaili’s before the first grand jury in he allegations denied all A. of fraud. Ismaili compa- asserted that his Between 1979 and Decem- November ny, Incoser, legitimate enterprise 31, 1980, the claims ber which failed a consequence of difficul- company Ismaili and the that he Lakbir ties Iran-Iraq created the war. He Incoser, engaged operated, allegedly in a compelled claimed that had been he to use and switch” fraud scheme which in- “bait personal purposes for his the funds re- alia, volved, inter promotion the and sale ceived from the van manufacturers and throughout the of customized vans Middle corporate Incoser’s explained account. He government, According East. Ismai- that he did so currency because the laws in li would American manufacturers approach prevented Morocco him obtaining from his vehicles, customized and other vans personal funds that were located Moroc- products claim that he could sell their over- co, and that he therefore the used funds in through use seas the of a force which sales Philadelphia banking Incoser’s account for he maintained several countries. He personal purposes. He claimed that he proposed purchase their vans resale personal used his funds in Morocco for the The abroad. commitment needed purposes advertising the vans. indicated, sellers, from the Ismaili was the reason, claimed, It was for this Ismaili money produce separa- needed to “color he separa- decided have the color separations tions.” Color of color are sets tions made Morocco instead of in New negatives produce magazine quali- used to Jersey. He claimed further that his broth- ty photographs allowing them be adver- helped organize er Rachid had on his Using approach, abroad. this Ismaili tised behalf, force; Eastern Middle sales totaling $43,210.80 payments received Ismaili, he, arranged had with a Mo- nearly twenty individual van manufactur- produce roccan named or Zarai ers. separations color for Ismaili’s sales bro- The investigated the com- turn, chures. In Ismaili contends that Ez- plaints which it received about Ismaili. engaged Agadir zarai Color studio to investigation The Ismaili disclosed that process separations. the color color-separation money placed the he had account, paid Philadelphia grand jury’s investigation been into a bank end- money without return of per- and converted the to his own ed an indictment. In use; 1983, however, grand separations jury investigation sonal that no color September In published; grand made or brochures that Is- resumed. purchased indictment, jury maili never had vans from returned a seventeen-count charging The investi- Ismaili with mail under 18 manufacturers resale. fraud gations arranged 1341 and also revealed that U.S.C. 1342. Ismaili §§ Jersey for his customers at New visits plant

printing sepa- he claimed color where C. fact, rations were to be made. indictment, Following plant processed any sepa- never color Ismaili made such pretrial rations for Ismaili. motions which three subject of structure are the sales existed. The telex indi- denied and which unwilling cated that the witnesses were appeal. spend money “time or to come to the U.S. depose number of Ismaili moved App. A.” Morocco, Syria and Saudi Ara- witnesses government argued that these wit- bia. defendant, nesses not exonerate the dismiss the indictment moved to material, testimony that their was not grand jury grounds of abuse showing good that there was “no of a faith alleging prosecutor failed process, produce effort to the witnesses the Unit- present grand obligation to in his States,” specifically ed because the wit- telex that Ismaili dis- jury exculpatory an impression, nesses seemed to be under the during requesting course of covered up pay way to them to their “its own motion, to that Brady material. Pursuant United States.” prosecutor has claimed that also Ismaili contended that grand jury process in the abused material, these market- hearsay presenting to it. course vans, ing managers for the sale of the and moved to dismiss the indictment Ismaili im- that the witnesses were not under the government allegedly abused they pression pay expenses. had to grand jury process by prejudicial its denying In on Ismaili’s motion June delay obtaining in pre-indictment indict- 1985, the district court stated: ment. Having pointed viewed the telex [which motions, denying After Ismaili’s the dis- to the reluctance of three Saudi Arabian May accepted Ismai- trict court States], come witnesses to to the United li’s nolo contendere plea pursuant to considering arguments and which plea agreement. agreement, In the Ismaili counsel, by I have been made find an pleaded nolo contendere to one count inadequate ordering deposi- basis fraud, right he to mail but reserved tions under our court rules. appeal pretrial the denial of his mo- brought to witnesses should be 12, 1986, August On the court sen- tions. showing United States and a should be doing, tenced Ismaili. In so the court sus- convincing is more as to not made which pended placed proba- sentence and him on only how would assist in the de- years. Imposing tion for five a fine of fense, providing for them but that to $1,000 condition, special as a the court or- still inade- come to the United States is repay dered Ismaili to as restitution the get quate to them here. $43,210.80 by paid the victims of Ismaili’s areas, I In both have concluded that scheme, and recommended that Ismaili not showing inadequate. There is deported. Aug. Order of 1986. Is- preference having distinct witnesses appealed. maili present jury for the criminal trials view, assess, themselves confront. II. concept having depositions is an We turn first to the district court's denial technique presenting these inferior depose of Ismaili’s motions to witnesses jury. witnesses to a Morocco, Syria and Saudi Arabia. If there were a situation which these could be shown to be essential witnesses A. through to the defense and available Ismaili, by The first motion filed might depo- which depositions, the Court order witnesses, pertained Indeed, to the deposi- Saudi Arabian I ordered sitions. supported designed past. a telex exhibit tions in criminal cases How- ever, papers argu- viewing establish that the three witnesses consti- and the par- part tuted a of Ismaili’s sales force in the ments have been made case, Middle I do not find a basis for East and would therefore refute the ticular country, government’s argument marketing ordering depositions foreign in a that no require police, and I that witnesses Ezzarai knowledge disclaimed Incoser, to be considered whose knowing and denied even to the brought should be United States knowing name. He also denied Ismaili. for trial. According Thompson, Ezzarai was asked police go if he would at 124. U.S. App. testify, replied, you get If and “Yes. me a Thereafter, changed and Ismaili counsel passport pay my my taxes and feed again depo- sought on November Then I’ll say children. never I’ve heard of foreign witnesses. sitions Incoser.” at 75. sought depose Syrian wit- Moroccan depose his motion and renewed nesses Thompson’s reported affidavit an in- also App. at 48-52. Saudi Arabian witnesses. Ismaili, terview with Rachid however, time, This Ismaili’s motions stated, Rachid reported by brother. sought all to have the bear Thompson, that he had discussed with his deposi- expenses in connection with the project making brother color [Ismaili] juncture set Trial at that had been tions. separations in either Egypt Morocco or 20, 1985. for November he was to find someone who could [Rachid] support second motion de- them, necessary make and if develop abroad, Ismaili pose witnesses submitted negatives sent from the He was also pri- Thompson, affidavits of two Josiah begin organizing a sales force. The investigator retained his new vate interview continued stating with Rachid present counsel. One affidavit included given 60,000 dirham Thompson transcripts of interviews that money holding from Rachid was for his Syrian conducted with four witnesses who brother; addition, in get was to Ezzarai allegedly part were Ismaili’s Middle cars, however, two cars as collateral. The interviews, In the Eastern sales team. by were seized Customs authorities and they witnesses stated that were familiar project, were never retrieved. The Rachid Incoser, familiarity but their with stemmed claimed, terminated because of the out- hearsay. from second-hand third-hand or Iran-Iraq App. break of the at war. 73-79. affidavit, reported This the testimo- Thompson also interviewed U.S. vice- witnesses, of all four ny indicated one that counsel, Stanley. Thompson’s Julia R. affi- organize orga- Ahmed was about to or was reports although davit he was not team, nizing alleged sales but that the permitted to see had a cable which been van-selling collapsed venture Rabat, Embassy sent in warring from region. at App. elements in by reportedly Stanley was told that it con- 88-110. tained information Ezzarai and his about A second included affidavit an account business, including an with some- interview by Thompson of conversations he had one who claimed that he Ezzarai and con- Rachid Ezzarai in Morocco. These approached that he in who stated had been versations concerned involvement work; Incoser to do some Rachid and with Ismaili and their Ezzarai several had been collateral for cars left as willingness to to the United come States work, they but that been seized had testify Thompson’s on his behalf. affidavit customs; that he had bill to sent a Incoser recited that Ezzarai met Rachid about Stanley appar- reply. but had received no gave develop 1975. Rachid Ezzarai film to ently experienced stated that also Ezzarai beginning in fifty Some 1980. films getting passport difficulty given period Rachid over a passports routinely are denied Moroccan to four re- two months. Because the film subjects, diplomatic that she but had sent special processing, quired it was forwarded foreign get in order ministry note Agadir Morocco, Color in a firm which reported passport. him longer She also Thompson re- business. also App. some ported and Ezzarai owed back taxes. two interviews between Ezzarai police. During 73-110. the interviews with appear deposition by stating, do not motions For reasons which “the de- record, 1985 trial date depose the November fendant’s motion to witnesses out- continued, February evidently and on require side the United States and to request of Ismaili’s coun- at the expenses Government to bear the sel, hearing was held at which the another depositions hereby and it is be denied.” testimony from in- district court received (docket App. entry). Shortly at 6 there- 131, 140, App. vestigator Thompson. after, pleaded pur- nolo contendere plea agreement, suant to a as set forth opinion. earlier in this witnesses, Syrian respect to the With Thompson testified that were “abso- lutely they were un- unavailable” because B. States, willing to come to the United due to 15(a) Prior to Rule of the Federal App. prejudice Syria. anti-American explicitly Rules of Criminal Procedure re “Anyone has Thompson said that who quired could taken in a be anything embassy the American do with upon showing criminal pro case “that a generally Americans in the Arabic or with spective witness be unable to attend suspicion are and it’s world viewed with prevented attending a trial or hear something people enormously are reluctant ing, testimony that his is material and that point to do at this to the [come States] is necessary to take his “Many time.” at 213. of them are prevent justice.” order a failure of draft, subject Syrian and for that interpreted cases which the former Rule require special governmental reason would 15(a)required depositional that the testimo go permission country. out of the I minimum, material, ny at a be and that the suspect they actually whatever the reasons deposed, witness who was to had to be gave tape, me on the underneath that is unavailable for live at trial. See very heavy prejudice against having e.g., Whiting, 308 United States v. anything to do with the United States.” (2d Cir.1962), den., cert. 372 U.S. App. at 215-216. (1963); 9 L.Ed.2d 718 United witnesses, respect With to the Moroccan (2d Singleton, 460 F.2d 1148 Cir. States Thompson (Ismaili’s stated that Rachid 1972). proof of burden rested with the

brother) “certainly willing was to come” to party seeking deposition to conduct the States, the United passport but “held a unavailability demonstrate both and materi lapsed,” which had and learned that it was Rosenstein, ality. 474 F.2d See U.S. v. 705 get often difficult for Moroccan citizens to (2d Cir.1973). passports. App. Thompson at 204-205. 1975, 15(a) Effective December Rule was Ezzarai, testified who is related to amended, amended. As a motion to take a Ismaili, yet did not passport a and grant- in criminal case be Thompson reluctant witness. said exceptional ed due to circum- position “[w]henever that Ezzarai had taken the that “I case it is in the interest of stances of the you get if passport; you will come me a prospective taxes; justice testimony that the of a pay my you pay my back and if for party preserved of a taken and witness be According wife and children to live.” 1 Thompson, very for use at trial.” “He’s reluctant and be- anything came ever more reluctant to have 15(a) The 1975 amendment to Rule to do with this.” interpretations only carries forward the rule, given by In an opinion Order issued without on the cases to earlier but it 28, 1986, February features, the district denied also reflects other all but one of court 15(a) testimony provides part: parties as amended in relevant notice to the order that of by deposition be taken such witness and exceptional Whenever due to circumstances document, book, any designated paper, justice of the case it is in the interest of record, recording, privi- testimony prospective or other material of a witness of a trial, party leged, produced preserved be at the same time and be taken and use at may upon party place____ the court motion of such and

159 which, tion, Adcock, are relevant the issues see 397, U.S. v. 558 F.2d 406 (8th First, signif- Cir.), den., 921, case. as a matter of historical 434 cert. U.S. only, amendment (1977). icance authorized the 54 277 L.Ed.2d depositions. to take Under the Notwithstanding the 1975 amendment of rule, taking depositions earlier 15(a), Rule it been nevertheless has estab change limited to defendants. This is not lished that when district court exercises present proceeding, relevant to the how- ruling 15(a) its discretion in on a Rule mo ever, it only here defendant tion, (of materiality considerations of applied depositions has to take who (of testimony) unavailability the wit prospective of his witnesses. nesses) remain critical. See United States Johnson, Second, (6th Cir.1985) v. the amendment continues to dis- (unavailability important still an factor tinguish deposi- between favored use context, determining exceptional whether circum tions in a civil and their disfavored exist); Bello, stances instance, United States v. use in the criminal context. For (5th Cir.1976) (testimony of although “deposition” in the term a civil foreign business associates not considered ordinarily taking context connotes the material “exceptional so that circumstanc testimony discovery purposes, that con- justice” es” compel “interests did not misleading respect notation finding that the district court abused its 15(a). practice under Rule See U.S. Cut- in denying depositions discretion under (9th Cir.1986). ler, 806 F.2d Rule 15(a)); Rule see also United States Sun 15(a) depositions prospec- are restricted to Moon, (S.D.N.Y.1982), Myung 93 F.R.D. 558 party. of a tive witnesses The rule does den., rt. S.Ct. taking depositions not authorize of a ce (1984)(motion granted L.Ed.2d 818 party, witness of an adverse is the case by upon district court determination una practice. in civil vailability materiality). Third, criminal must be au Thus, although availability witness thorized of court and are order immateriality proposed testimony preserve taken to use through depositions be obtained are not Advisory trial. See the Note of the rigid grounds or automatic for the denial of Rule 15. Committee to The 1975 amend 15(a) were, as they motion once it is emphasizes ment the use of discretion post-amend- nonetheless evident that determining whether defining “exceptional ment case law cir- “exceptional circumstances” exist to autho justice” cumstances” and “interests of still taking preservation rize the testimo Hence, focuses those considerations. ny by deposition. Thus our review the is difficult to conceive of a district court action on whether court’s centers abusing denying its discretion Rule properly the district its dis court exercised 15(a) motion where the movant has not Johnpoll, cretion. See v. materiality established both the tes- Cir.), (2d cert. den. 469 U.S. timony unavailability and the of the wit- (1984) (“the 83 L.Ed.2d 511 ness. grant deny decision to or a motion to take a

deposition rests within the sound discretion C. of the trial ... and will not be dis suggests pursuant turbed clear abuse of that discre absent a that to tion”). 15(a) proof “exceptional in a Rule Rule 15 he burden has demonstrated which, noted, motion to continues rest with the movant to circumstances” as we have necessity preserving encompass materiality demonstrate the must both factors of unavailability.2 prospective deposi- witness’ and referred, however, 2. It holds should also be noted that Ismaili claims that no case which or right depose suggests he has a even when are located these witnesses under witnesses court, process” power "compulsory subpoena clause the sixth outside of the "compulsory process” guarantees Appellant’s 20. clause the de- amendment. Brief at We are anything to do more reluctant have The Moroccan Witness 1. App. with this.” at 211. question of the not reach the We need no offered that either There was testimony by the Moroc- materiality of the Rachid or Ezzarai had tried and was in Ezzarai), (Rachid and be- fact can witnesses procure passport or would unable to the district on the record before cause to attend trial in the refuse or was unable court, court’s discre- well within that it was United States.3 Ismaili failed tion to determine con- At the time that the district court showing that the Mo- carry his burden motions, the record was sidered Ismaili’s Even were unavailable. roccan witnesses ability to finance also silent as to Ismaili’s assume, deciding, if without trip or to meet Ezzarai’s de- Ezzarai’s the Moroccan witnesses testimony of both Moreover, the record does not defense, mands.4 to Ismaili’s material was who establish that of the witnesses Rachid Ismaili does not reveal that record sought deposed by Ismaili in- to be Ezzarai, are related to both of whom Ezzarai, in- cluding Rachid and had been Ismaili, could not have been available they formed that were entitled to discloses that testify at trial. The record expenses, witness Ismaili bear their travel respect unavailability with proof fees, and a subsistence allowance. is: these witnesses “certainly willing come” Rachid: was pro appears, For all that all of Ismaili’s States, pass- but “held a to the United spective may well have believed witnesses lapsed, and learned that it port which had they required pay their would be citizens often difficult for Moroccan expenses they if travelled to the Unit own App. at 204-205. get passports.” ed States to trial. We are satisfied that the record yet passport have a and the court could have understood did not Ezzarai: manifesting misapprehension on as such a was a reluctant witness. Vice Counsel so, If that mis Embassy part that Ezzarai of the witnesses. of U.S. indicated get- necessarily undermined the might difficulty apprehension have considerable App. alleged good 211. faith efforts of the defendant ting passport. appear trial for experienced to have these witnesses Thompson said Ezzarai diffi- Furthermore, testimony. the unwill past position took the live culties pass- ingness to travel to this coun you get “I if me a of witness will come taxes; paid try expenses if unless his are does port; you pay my back necessarily mean that he is unavailable. my and children to you pay for wife Bronston, C.f., Thompson live.” claimed that United States (S.D.N.Y.1971).5 F.Supp. 1269 “very and became ever reluctant expense depositions if right depositions. bear the Con- fendant the to take text, tra, were authorized. As noted e.g., People McCartney, 38 N.Y.2d 855, 856-57, condition was evidence of Ismaili’s financial N.E.2d N.Y.S.2d produced until (1976) (no ever before requirement under constitutional pleaded appeared for sen- after Ismaili had compel the attendance of sixth amendment tencing. power subpoena outside the witnesses court). district court when it denied Ismaili’s stating so that the defendant’s motions did 3. The record shows that Rachid had travelled to depose the United "to witnesses outside motion recently passport as the United States on a valid require to bear States and to hereby expenses depositions be it is Thus, ex- the court while not denied.” district sentencing appeared at 4. that Ismaili It later discussing ex- pressly the factor of one villa in owned four condominiums and por- express pense, reference to that included Florida, in estate in Morocco and other real ruling. in its tion of Ismaili’s motion Europe, accounts in several countries. and bank expense the Obviously, of consideration August transcript sentencing hearing, of See foreign factor when is a relevant 1986. See, e.g. sought by a defendant. are Bronston, supra; United States recognize Ismai- United States We that the second round of 5. here, particularly Johnpoll, supra. is so only sought depositions This of for- li's motions not witnesses, proofs he was provided no that sought eign to have the where Ismaili but also equivocality Manzalgy the of Given the of evidence Witness also became aware of strong from preference App. and the Incoser Bassam. unavailability at 106-110. testimony for live that the by Thompson The affidavit submitted emphasized that is central to the con- and any thus does not substantiate with defini- expressed in the Federal Rules of cerns Syrian that tiveness the witnesses could and Criminal Procedure the Federal Rules testify at first preparation hand the of Evidence, it is evident that the district of separations; preparation the color or to the holding abuse its in court did not discretion literature, promotional which atwas the carry Ismaili failed to his burden that pitch heart of Ismaili’s sales to the Ameri- demonstrating unavailability of Rachid can van manufacturers. Nor was there Ezzarai. and any indication Syrian witnesses anything

could substantiate with other hearsay than Ismaili’s claim that a sales Syrian Witnesses throughout network existed the Middle respect proposed Syrian With four East. witnesses, investigator Ismaili’s testified if Syrian Even the witnesses were able to they “absolutely be- were unavailable” testify that directly Ismaili come they unwilling cause were to come to them and tried group to form sales to sell States, preju- United due to anti-American testimony they pro- which could not vans— vide—Ismaili’s Syria. App. at need dice We representations various question availability not address the still provided have a basis for an here, upon since we find that based against action him based on fraud. Pro- case, record there was an insuffi- posals by employ Syrian Ismaili to wit- materiality. showing cient in the nesses could not stand as future Taking representations Thompson, proof marketing that Ismaili had a and investigator, light in the fa- most already distribution network place, and case, Syrian vorable to his witnesses actively engaged promotion part who claimed were his sales sale of vehicles—facts which Ismaili had could, best, force noted earli- represented to the van manufacturers. er, testify only to second third-hand indictment, all, charged after that Is- hearsay. specifying Without the time falsely represent pros- maili “did to various involved, Thomp- frame their statements to pects in various states ... was a only ap- son indicate had been importer exporter well-financed ... proached vans not to sell and other vehicles agents in with offices and the Middle East Ismaili, Ahmed, by A1 party, but third falsely represented] ... that he [and Ahmed, longer living. according iswho a marketing he had net- distribution themselves, Syrian witnesses place actively work in in the engaged inability through upon claimed an to follow promotion and motor sales various ve- plans of his a sales establish force added). App. (emphasis hicles.” instability in political region. because of materiality if a Even lowered threshold Syrian appropriate where One witness was Bassam. His of a knowledge involved, foreign consisted national is statements see U.S. v. (3d Steele, Cir.1982), A1 App. he received from Ahmed. 88-95. Witness Laham’s statements nonetheless of witnesses in acquired negate drawn from information from a criminal case could the crux of App. Bassam. at 96-100. Witness indictment that Ismaili Holibi information, apparently acquired which made false statements which induced affidavit, reported give him Thompson’s prospects money, the dis- Bassam held and Ahmed. at 101-105. trict court cannot be to have abused himself, e.g., Although disposition expenses rest

unable bear see we could our entire so, appeal ground, 15(c). of this on that we do do Fed.R.Crim.P. parties. light of framed in the issues place, authority permit Saudi Arabian sales force was denying discretion its actively under Rule such witnesses that these witnesses were not en- depositions of 15(a). gaged promotion of Incos- sales Moreover, hearsay motor vehicles. er’s Arabian Witnesses The Saudi

3. of the af- nature Saudi Arabian witnesses materiality testimony just fects the support of his presentation hearsay quality Syrian as the of the wit- depose the Saudi Arabian initial motion testimony quality of nesses’ affected the improved to or not added was witnesses testimony they provide. could moved for recon- the time Ismaili upon at court’s June sideration furthermore, pro- in question, The telex Thus, depose the motion 1985 order. vided clear evidence that the witnesses depends upon the witnesses Arabian Saudi impression were under the would exhibit, app. at which the single telex obliged spend money their own insufficient to explicitly found district court expenses. We have discussed the factor of “exceptional circumstances” under provide unwillingness pay way at a witness’ his 15(a). App. Rule at part opinion. an earlier of this As we by the telex sent three there, The thrust of foreign witness is un- stated who witnesses, Wasfi, Ahmed Said and willing expenses Saudi to travel unless his are Fawzi, to the effect that A1 Ahmed necessarily paid is not unavailable within engaged Wasfi sometime between 15(a) the terms of Rule and Fed.R.Ev. 804. agent to sell for a and 1980 as a sales vans circumstances, Under these we are satis- called Incoser. Wasfi to or- company fied court did its not abuse force, ganize buy- and was to find a sales discretion when it did not authorize Ismaili Arabia, him ers in until Ahmed told Saudi depositions to take Rule 15 of the Saudi he, Ahmed, had Ismaili not to advised witnesses.6 program until the proceed with the sales Then, Wasfi, Fawzi situation stabilized. D. Said, witnesses, alleg- and Ahmed the three edly, suspended their efforts. Thus, we affirm the will district court’s denial of Ismaili’s motions to take Rule very

Thus the telex on which 15(a) 15(a)depositions of the in Moroc- grounded application dep- for Rule witnesses co, Syria, by ositions its own terms discloses that no and Saudi Arabia.7 purport Judge part which Becker dissents from this of the Wilson statement does not 15(a) majority majority opinion complaining depositions that the the standard for Rule establish 15(a) obviously incomplete has not adhered to the "standard" announced as Rule standard Wilson, (3rd Cir.1979), showing exceptional U.S. v. 601 F.2d 95 without a circumstances taking foreign depositions justice at the instance the witness’ una- in the interest Dissenting Op. of a defendant. at 169. vailability matter not at issue in Wilson. —a The short answer to the dissent’s criticism is 15(e) Rule of the Federal Rules of 7. Under that: Wilson which was concerned with the Procedure, depositional Criminal in order for fugitive testify, competency of a does not trial, testimony to be admitted the witness recognized address the standard even Unavailability must be unavailable. is defined 15(a) depositions Fed.R.Crim.P. are to be mea- 804(a) Federal reference to Rule of the Rules above, sured. As we have observed in text Thus, exists to of Evidence. whatever latitude 15(a) appropriate standard under Fed.R.Crim.P. permit taking depositions preserve tes- is that a court in its discretion authorize trial, disappears timony when the for use at taking exceptional of such when sought trial. to be introduced at justice circumstances and the interests are Mann, See, e.g., United States v. established the movant. This in- standard Cir.1978). (1st materiality cludes both of the case, reading record unavailability applies equally a fair of the witness and In this government. the second round of motions to both defendants and the discloses that 15(a) brought foreign deposi- brought by no more than a Ismaili was Rule does not authorize days prior trial date. merely upon showing to the scheduled tions that the witness' few and, believed, "testimony were not identified as either Those motions was relevant motions, 15(a) 15(e) to us exculpatory but it is evident to some Dissent have been extent." Wilson, hearings transpired p. and from quoting from what 601 F.2d at 98. The

163 grand III. from the jury. Appellant’s Brief at reject 41. We argument this on two argues the district Ismaili also grounds. refusing in the indictment. erred to dismiss government He the claims that failed to First, the record reveals that al grand jury inform the evidence which though Ismaili has hearsay raised the ob multiple hearsay. consisted of introduced jection appeal, on his motion before the government He also claims that the should district court was concerned gen with the grand jury have introduced before evi- subject eral of grand abuse of jury process “exculpa- by dence characterized Ismaili as without identifying particular the hear tory.” say of character the reports question.8 Our by pre review is circumscribed gravamen of Ismaili’s motion to dis sumption validity grand afforded to the miss the indictment focused on the alleged jury process. by “An indictment returned by abuse failing to intro legally grand constituted and unbiased evidence, exculpatory duce subject jury, like by an information drawn portion address in a later opini face, prosecutor, if on enough valid its on.9 charge call for a on trial the merits. requires nothing reading The Fifth Our of the Amendment record discloses that States, more.” before Costello v. United only reference (1956). S.Ct. L.Ed. 397 We issue mischaracterized and multi- review the district court’s ple hearsay denial a mo occurred at February alleging pros tion dismiss an indictment hearing, motions where Ismaili’s coun- ecutorial an misconduct for abuse of discre urged sel the district court to release doc- by Wander, tion the court. See U.S. v. uments and to dismiss the by indictment (3d Cir.1979); United reason of the pro- failure to (3d Bruzgo, States v. 373 F.2d 383 Cir. exculpatory duce grand evidence before the 1967). jury. conjectured Counsel grand that the jury may have upon relied “the least reli-

A. fact-finding able method the world” by relying reports on by interviews third grand jury’s submits that in- parties. App. asking at 151. In dictment should have that the been dismissed be- presented cause the indictment be dismissed grand evidence jury produce multiple hearsay. consisted of failed to exculpatory He suggests grand against jury hearings, that the crux at the of the case Ismai- presented him speculated grand that was li’s counsel Jury the Grand that the jury F.B.I., was a report confidential which indicted Ismaili may have been told which related an knowing Ismaili,10 interview with that Ezzarai denied (in conducted police. rebutting defense) local Moroccan effect with- He appeal asserts on letting the fact of out jury know about other evi- report’s hearsay character was concealed acknowledged dence which existing an rela- the imminent trial date that the district court the district court and which we reach is a properly application fortiori, viewed the of Ismaili correct. parties context of trial use. The have not ad- realize, course, 8. We transcript that since the appeal, obviously dressed this issue on but seal, grand jury proceeding was under aware the then imminent trial date because speculation part respect on the of counsel with they generally focused their attention on the potential hearsay possible. was all that was availability. issue of considering After all of the circumstances confronted, sought 9. Ismaili also to discover which the district documents court was grand jury which had been introduced to the prop- we have concluded that the district court erly under seal. That issue is not us denying exercised its before discretion in the mo- tions, appeal. brought even if all Ismaili’s motions were 15(a). under If the motions were considered standard, 15(e) Affidavit,

under a Thompson app. the conclusion reached 10. See at 75. 150-151; at tel- We have no need to re-

tionship App. Ismaili. discuss these with quirements, present for this does á at 72. case ex argument situation. Wander Therefore, although district court did the is, grand jury simply, misled with- the was the motion to dismiss indictment deny the out factual foundation. We have read the abuse, jury it grand did ground the Supplemental Appendix submitted the decide, nor it to did occasion seal, government and it is under clear decide, being urged question here on the grand jury informed of the hear- the was record, appears appeal. From all evidence, say the and it character of hearsay constituting “multiple issue of the was not as to its contents. misled appeal is here on jury abuse” raised grand review, As court we the first time. a for on which the district not review issues

do B. Having neither the yet has to rule.11 opinion on this a lower court benefit of argues that the indictment review, to subject, specific nor motion govern should be dismissed the the to have been not consider issue do present grand jury ment failed to the to preserved appeal. for properly exculpatory. he is evidence which claims particular, In he claims that a cable sent rejecting The second basis for Ismai 72, investigators, app. at that, argument even the issue of li’s is produced should have the been before multiple hearsay mischaracterized and evi government. grand jury the us, before there would have dence were no the abuse of discretion been cable, in have noted earlier as we denying the motion dismiss. court in opinion, was sent the Moroccan Commerce, Department of summarized and prohibition is no on the use of There B. an interview with Ezzarai. Robert hearsay by grand jury, see Costello Kurzweil, Attorney the Assistant U.S. who States, 350 U.S. S.Ct. United Ismaili, prosecution against the led stated (1956), (1) non-hearsay 100 L.Ed. 397 unless his December 1985 affidavit that available; (2) readily is unless and requested Department had Com- jury believing grand also misled into Ezzarai, and that al- merce to interview hearing direct rather than knowledge though of who had he had no hearsay; (3) high and unless there is also interview, he conducted attached jury had probability that heard The text of the cable cable to his affidavit. eye-witness it would not have indicted the identifying Wander, margin set forth with defendant. United su- States symbols legends at 1260. and deleted.12 pra, recognize lithography plea agreement pre- do work We October valued 40,000 $7,600 (approximately right appeal US served for Ismaili the adverse at DH of, motions, $10,000 pretrial exchange. among determination other current rate of But over time). exchange prevailing his "motion dismiss the indictment failure rate Since present grand exculpatory deposit evidence to the work Incoser could not leave jury, ancillary discovery Majd, and those motions re- ordered from the Studio El Ismaili left lating registered thereto.” Our search the record re- two make cars to him American “multiple Garage veals no hear- gave motion addressed and wife at a and Casablanca text, say," app. at keys Majd as we have noted in registrations Studio El correspondingly, there is no order of the district as collateral. In accordance Moroccan court which denies such a motion. regulations, cars were seized after customs imports. illegal El three months as Studio portion cable substantive states: Majd has since sent bill for services to Incoser very privately reply. Majd but Studio con- Studio El is a small has received has Zarai, embassy, nor owned tacted neither local Chamber business. Owner Abderrahim general photographer lithographer, per- authorities for assistance. a more who sense, Embassy El Ac- cannot recommend studio formed services US firmer Incoser. small, Majd cording young inexperienced, and as it is too too man who introduced him- Zarai, managed approached by poorly self too to deal with U.S. firms. as Studio was Incos- (Moroccan by: Abenghalem representative Prepared er Lakbir Ismaili Miami) (capitalization provided). Citizen resident at 8560 SW 56 St. at 72 cable, According However, Ezzarai had been the record before the district Miami, by Ismaili in approached Florida court at time the district court denied perform lithography the fall Ismaili’s motion to dismiss the indictment Incoser, performed work for some presented a dramatically different view of approximate- for Incoser valued at services the cable. The district court had before it $7,600 (40,000 dirham). ly The cable indi- Kurzweil’s affidavit of December that Ismaili had left two ears cated specifically which Kurzweil detailed rea- services, collateral for the but that the cars why sons as to did not had been seized Customs authorities. consider that the telex grand contained When the cars were taken Moroccan jury material, Brady if obligation even an violations, government import the cable produce to Brady material before the states that Ezzarai tried to on collect grand jury required circuit, in this an Incoser, he rendered from bill but received issue we do not decide.13 reply. cable Not was the The concludes that Ezza- small, inexperienced rai’s studio is too too its insufficiently cable on face exculpatory, poorly managed and too to deal with U.S. but when grand considered with the jury firms. Id. testimony of Ismaili which already had adduced, been argues Ismaili that this cable was excul- contradicted rather than nature, patory in in that it confirmed supported “that which Ismaili him- (1) existed; (2) lithog- that he a Ezzarai self had testified to in respects.14 material Morocco; (3) rapher he had As confirmed, Kurzweil’s affidavit performed Appellant’s work Incoser.” cable account differed from Ismaili’s ac- Accordingly, suggests Brief at 42. Ismaili count in terms of money the amount of producing result not the cable agreed that Ismaili allegedly to pay Ezzarai grand grand jury before the misled the for film. It respect differed with believing jury “into that Ezzarai had rebut- Ezzarai, (if manner which Ismaili met grand jury testimony, ted Ismaili’s when in did) place indeed he ever and the fact he of such a Appellant’s had corroborated it.” Reply Brief meeting. differed, at 13. among It things, other 13. This case present argues prosecutor does not a situation in Ismaili that in this circuit a alleged prosecutorial which the abuse of the duty present exculpatory has the to to evidence grand jury by guilty could be a said be cured grand jury at a or least evidence which could plea Mechanik, petit jury. a verdict of v. See U.S. reasonably grand jury lead the not indict. 66, 938, 475 U.S. 106 S.Ct. 89 L.Ed.2d hand, prosecution, rejects any The the other (1986). plea agreement 50 Here conditioned duty, relying impose such on those cases which upon appeal pre-trial pre has motion See, obligation government. no such on the application analysis. cluded the of such See Wilson, 517; e.g., supra, United v. States Unit Zudick, (3d United States v. 523 F.2d 848 Cir. Hawkins, supra; v. ed States United States 1975). Adamo, (6th Cir.1984), denied, 742 F.2d 927 cert. majority expressed by The view the courts is 1193, 971, 469 U.S. 105 S.Ct. 83 L.Ed.2d 975 prosecutor duty present any has no 841, (1985); Hyder, United States 732 F.2d See, exculpatory grand jury. e.g., evidence ato (11th Cir.1984); 843-45 United States v. Ciam Wilson, 509, (1st Cir.1986) U.S. v. 798 F.2d 517 brone, 616, Cir.1979). (2d (prosecutor normally duty under a to dis date, To this this court has not decided wheth- evidence); Hawkins, exculpatory close U.S. v. exculpatory produced er be material must be- 1482, 1488 (11th Cir.1985), denied, 765 F.2d cert. grand jury. Having fore a held in text above 886, 474 U.S. 88 L.Ed.2d 921 that the district when it denied Ismaili’s (1986) ("government present obligated indictment, properly motion to dismiss exer- exculpatory grand jury”). evidence ato There however, rejecting argu- discretion in authority, cised its is a line of which holds that prosecutor duty present "exculpatory exculpatory, ments that the telex was has we need require he which is aware" to the Grand not decide whether should Jury. Overbeck, F.Supp. See Kudisch v. government produce exculpatory material be- (D.C.N.J.1985), ("a grounds prose rev’d on other grand jury. fore a exculpatory cutor who withholds stroys evidence de independent cable, the existence of an and in notes that which Polizzi, jury”); formed (9th Cir.1974), U.S. v. undoubtedly entirely hearsay, consists dented, cert. 419 U.S. ruled inadmissable trial. (1975). S.Ct. 42 L.Ed.2d 820 grand by rea- ty jury Ismai- occurred for which before describing the functions And, it also produce failure engaged Ezzarai. son allegedly

li work, any, Indeed, describing 1981.15 cable of December differed Incoser. perform for held hardly Ezzarai was to could Attorney, U.S. otherwise, clearly affidavit Assistant See because the cable did not at 30. Appellee’s brief see, 68. See also guilt, negate Ismaili’s v. Ciam- (2d Cir.1979), brone, 601 F.2d 616 and be- instance, specified cable, produc- had been cause sufficient evidence ap- Ismaili himself Ezzarai stated that grand support its jury ed before the lithographic perform proached finding.16 probable cause work; had under sworn whereas had never Jury oath the Grand App. at directly with Ezzarai.

met or dealt IV. that Ismaili The cable indicated 181-184. light of his to demonstrate failure Miami, Florida, approached Ezzarai delay by prejudice actual and intentional date of prior to the onset in October advantage, to gain tactical suggests government The the indictment. pre-indictment delay claim Ismaili’s final as time information that Ezzarai’s require does not extended discussion. meeting place the and —information Marion, 307, 404 92 v. United States U.S. jury grand in his contradicted which Ismaili 455, (1971); v. 30 L.Ed.2d 468 U.S. S.Ct. any lithography —indicates (3d Cir.1985). Sebetich, 412, 430 engaged was project in Ezzarai was which Signif- indictment. unrelated to the instant A. icantly, reference to the cable contained separation by Ezza- production of grand jury, began the color which its The first rai, 1981, to Ismaili’s scheme feature central investigation January unable integral and defense. Id complete not investigation, and did an The second hand down indictment. Thus, govern- the sworn affidavit the allegations grand jury convened to consider 68-69) (app. ment indicates that the 1984, against Ismaili the summer of government properly perceive did not 12, September its indictment on delivered exculpatory cable to constitute material. investigation of Ismaili was a The perception largely This on rested joint investigation by the F.B.I. and ground disprove did not cable 1982, jury. January grand federal On charges falsely government Attorney the first written the U.S. received perform for his claimed would services investigation from the F.B.I. report of an Indeed, payment. in return customers agent. report That was not deemed case government and the district court both the adequate, informa- and therefore additional incriminating, read as apparently the cable required. App. at tion and interviews were exculpatory, rather in nature. than 62-64. noted, As we have the district court de- Delays obtaining this information pretrial

nied all to dis- motions because some interviews miss It within were encountered the indictment. included its ap- holding It was implicit improprie- denial that no had to be conducted overseas. its indict, government 15. Even if we were persuaded must deliber- we do not —and (see evidence, supra) ately address that issue note an mini- include such or at a fail to —that obligation upon government provide rests notify grand jury of mum fail to its must grand jury, exculpatory argues to a as Ismaili evidence Kudisch, F.Supp. at 198-201. existence. See Jersey State New ex rel. Kudisch Overbeck, (D.N.J.1985), rev’d, F.Supp. ultimately pro- 16. that the fact (3d Cir.1986), qualifications specific response to a duced the document by established in Kudisch are satisfied Ismaili, Brady request app. made does Kudisch, record in this case. which involved a exculpatory doc- nature of this not establish recantation in a habeas witness arose ument, production need its before the or the context, requires that the must be grand jury. exculpatory aware of the existence of reasonably grand jury lead the which could 5, 1983, April until that the parently not matter was under investigation prior to the actual return of an Attorney received information which indictment[.] guilt. During him of Ismaili’s this App. satisfied at 124-25. Kurzweil,

time, however, Attorney the U.S. Thereafter, when the motion was re- grand charge jury, of Ismaili’s was also counsel, newed Ismaili’s new court felony ruling reaffirmed its engaged February in three trials and other 1986.17 at 175. prevented administrative activities which returning prosecu- him from to the Ismaili C. tion until the summer and fall of 1983. Id.

We are satisfied that the district court properly initial, denied the as well as the B. renewed, motion to dismiss Ismaili’s indict- ment. Ismaili’s motion to dismiss the indictment recites, As Ismaili’s brief United States ground pre-indictment delay on the Marion, supra, and United States v. initially denied the district court. The Lovasco, 431 U.S. stated: (1977), L.Ed.2d 752 are leading Su- Now, regard with to the motion to dis- preme Court dealing pre-indict- cases pretrial delay miss the indictment ... delay. ment pro- statute of limitations delay period included of time [the the] guarantee vides the defendants’ “primary during which the Assistant United States against bringing overly stale crimi- Attorneys pass[ed] this case from one Marion, supra, 404 U.S. at charges.” nal other, press- 322, 464; took care their other 92 S.Ct. at Sebetich at 430. No one contends ing business, that Ismaili was ultimately and not indicted had this applicable within the period. limitations presented Jury, matter to the Grand and Oppressive pre-indictment delay within the agree I would the timetable laid out is applicable period protected by limitations is not an attractive one. the Fifth Amendment Due Process Clause. hand, given On the other the cases Marion, 404 U.S. at 92 S.Ct. at 465. respect pre-indict- to the burden of Accordingly, order to obtain dismis- delay showing ment and what of kind charges sal grounds on the pre-indict- must be made order to actually show delay pursuant ment to the Due Process prejudice provide which would a ba- Clause, a defendant must bear the burden indictment, sis dismissal of this I (1) proving two essential facts: that the would not find that there was a suffi- government intentionally delayed bringing motion, showing grant cient to I gain indictment order to some advan- deny the would motion to dismiss him, (2) tage over and that this intentional brought reason of the somewhat de- delay preju- caused the defendant actual Marion, layed period supra, during of time which this dice.18 at 92 S.Ct. at text, 17. The district court also held that the defend- Attorney discloses that while Assistant U.S. requirements ant had violated the time Kurzweil have been involved in unrelated deadlines which court had established for during grand jury matters the intervals between filing this motion as well as Ismaili’s other mo- hearings, investigation was nevertheless on- recognize tions. We that the district court dis- going, and the indictment returned the sec- delay pre-indictment missed Ismaili’s renewed grand jury investiga- upon ond was founded ground App. motion on the of untimeliness. at grand jury hearings. tions and earlier Thus disposition. It did so as an alternative delay may experienced whatever have been can- While we could affirm the district court’s denial improper. be not characterized as basis, prefer resting on that our decision As to Ismaili’s claim that he was denied an ground on the of untimeliness. evidentiary hearing, the record reveals that the district Ismaili’s appeal considered motions 18. Ismaili at this also contends that the twice, initially denying delay mer- his motion on the investiga- was unrelated criminal its, tion, denying and then his renewed motion as opportunity and that he was denied an being prejudice through say evidentiary demonstrate filed out of time. We cannot that the an hearing. history prosecution, respect The of the Ismaili district court abused its discretion with reported ruling, particularly as revealed in the as record and in the to either since we note that 789-90, Mehedi, alleged an 466; Lovasco, contributor funds supra, venture; (3) alleged loss at 2048-49. Ismaili’s S.Ct. Agadir Color studio. of the records Ismaili, burden of who bears the intention demonstrating have Ismaili claims that Ahmed could Noth delay, al has not carried his burden. of his sales team in testified the success contradict, dis appears of record to ing pictures. marketing producing vehicles and government’s affida agree, or refute the have He claims that Mehedi could verified history, vits, set forth all of which promotional efforts. And he Ismaili’s extended, grand jury prosecut albeit Agadir Color claims the records it, delay, reasons for and the ion.19 pro- the firm have demonstrated that studied were separations. the film the color cessed laid acknowledged that “the timetable out 47, 55; Appellant’s see also Brief App. at 124. an one.” attractive at 32-34. Nevertheless, recog- as the district court by denying government responds nized, requirement imposed by no there is argues prejudiced. that Ismaili was It requires that a Fifth Amendment which upon which Ahmed died could date the moment prosecutor seek an indictment 1984; any time 1981 and have been between probable believe that an he has cause and that no reliable information exists as guilty. accused Lovasco died. until when Mehedi Since it was not instructs, Supreme at 2049. As the Court April 1983 that the concluded equally prosecu- “it should be obvious against proceed, case that its Ismaili should charges file duty are under tors might de- both witnesses well been probable before soon as cause exists but any delay This ceased before occurred. they will able to estab- they are satisfied be possibility eliminates the prospect guilt beyond a suspect’s lish the doubt____ reasonable pre-indictment delay which caused prosecutors Penalizing who de- prejudice Appellee’s defense. fer should actions satisfied [until Brief at 21-22. The also con- prosecute guilt able to establish will de- tends that if one were believe the would subor- beyond reasonable doubt] events, there fendant’s version expedition’ goal ‘orderly dinate the of other members of “sales number U.S., speed.’ v. 360 that of ‘mere Smith testify upon be- who could force” 10, 991, 1, 997, 3 L.Ed.2d 1041 U.S. 79 S.Ct. half; and that Ahmed and Mehedi would (1959). This the Due Process Clause does names therefore be “additional on require.” Id. people” would ask to testi- list of defendant prove In addition Ismaili’s failure fy. Id. delay, has dem- intentional also failed to prejudice. possibility The mere of onstrate Lovasco, supra, argument In delay, any prejudice inherent extended testimony that the of two witnesses made might possibility or the mere that a witness during due to their death been lost lost, inaccessible and become evidence delay. of As the period pre-indictment Marion, 315, U.S. at not sufficient. however, held, pro- due Court Lovasco 460, 92 S.Ct. prosecution cess does not bar whenever prejudice as a defendant suffers result prejudice that Ismaili Lovasco, delay. pre-indictment U.S. (1) asserted consisted of the death of a 2048; also Ahmed, see United potential A1 the al- witness named Co., Lebanon; (2) Gypsum 550 F.2d organizer leged sales force States Cir.1977)(mere potential (3d fact that a death of a potential witness named investigation February evidence of as court request 19. The record includes as late the district con- evidentiary hearing agencies, by government vened an at the and also includes hearing in- Ismaili’s counsel. At Ismaili's Appendix under seal information vestigator, Thompson, Josiah was not restricted justifies delay. itself testimony. in his during delay died is not sufficient ground witness ment on the pre-indictment de- prove prejudice). lay. persuaded any alleged Nor are we Agadir of records of the loss Color Studio V. degree prejudice could demonstrate the judgment of sentence filed on Au- sufficient to warrant dismissal of Ismaili’s gust 12, 1986 will be affirmed.

indictment, if even Ismaili had established government— delay by intentional Nothing

which he has appears not. BECKER, Judge, concurring Circuit respect record to the whereabouts of dissenting: documents, Agadir’s any if fact existed. The majority affirms the district court’s matter, For that has not accounted denial of depose Ismaili’s motion to wit if for the fact that there were records nesses grounds abroad that Ismaili Agadir that were relevant and were miss- did not sufficiently an inability show ing, might those records well be found with produce some witnesses and did not show others. of others to be sufficiently observed, As we have earlier I respectfully material. part dissent from court found that Ismaili had not shown the II of majority’s opinion for two funda type prejudice provide which could First, mental reasons. I believe that the dismissing basis for his indictment. While majority applies a proof standard of to a express finding the district court made no request defendant’s that is relating delay, regard intentional significantly higher than the standard finding implicit such a and as subsumed courts have used for requests by within the district court’s conclusion that government. That standard conflicts I "... would not find that there was a in part with this court’s instruction in Unit showing grant sufficient pre- [Ismaili’s Wilson, ed (3d States v. 601 F.2d 95 Cir. motion, delay] indictment I deny 1979). my view, difference be the motion to dismiss.” proof tween the standard of govern We findings review those for clear error. ment and requests deposi defendant United States v. United Gypsum States tions in appropriate, criminal cases is con Co., (3d Cir.1977); 550 F.2d Unit require stitutional values a more lenient Otto, (3d ed States F.2d 104 Cir. approach requests by the defendant. 1984); also, Auerbach, see U.S. v. Second, I exception take majority’s (8th Cir.1982). say We cannot rendition of the facts relevant several the district court’s determinations witnesses. clearly erroneous, or that the district holding court erred in that Ismaili did not Applying deposition request to Ismaili’s carry required his burden. applied the test in various to govern- cases (and deposition requests ment that which at Thus, persuaded, we are as was the dis- required by 15(a) all events Rule of the Ismaili, trict that who had satisfy Procedure), Federal Rules of Criminal I prongs of two-prong both the standard an- conclude that the Lovasco, in district court abused nounced Marion and its did not so, in satisfy being denying request. either. This discretion will af- the How- ever, join firm the I parts decision de- do in court’s which IIIA and IV of the nied Ismaili’s motion to dismiss his majority indict- I opinion,1 and concur in the result majority's view, 1. The preindictment dismissing my discussion of de- warrant the case. In the lay IV) (part Ahmed, two-pronged. join fully I organizer in the of death alleged A1 the of Ismaili’s majority’s team, holding delay first probably prejudicial. was not inten- sales join not, however, majori- tional. I in the stringent second facet of the Ismaili has met the stan- ty's (prejudice) understanding proof necessary discussion on the justify dard of dismissal of majority delay, the pre-indictment holds that delay the while his case for under the Su- prejudicial, sufficiently prejudicial preme was not precedents. Court 170 determining reasons set In whether the part in IIIB for the

reached justified deposition a of a witness had margin.2 in the forth abroad, the Second Circuit has stated “[unavailability is to be determined accord I. General Standards for ing practical to the standard whether Foreign Depositions under the circumstances the the majority I the 1975 agree with good-faith produce made the has a effort to 15(a) changed testify Rule person has at trial." amendment United States 702, (2d Cir.1984), evaluating ap- Johnpoll, 739 F.2d 709 criteria for the v. general 571, denied, 1075, 469 105 U.S. S.Ct. a cert. party a plication for a (citations omitted). (1984) L.Ed.2d 511 83 The district court should criminal case. lengths prosecution to which the “[T]he unavailability of a witness still focus on the go question is a of reasonable must ... materiality testimony. his See and the Green, Id., quoting ness.” However, view, California my in at 160. Maj.Op. 189 n. 1951 S.Ct. in these standards apply courts should J., (1970) (Harlan, n. 26 L.Ed.2d grudging Deposi- or technical manner. Accordingly, upheld concurring). the court primarily are not favored tions depositions for a district court order preference our the attendance wit- despite the two Swiss witnesses fact trial, provides jury at nesses willingness they stated their to come opportunity with an to observe witness’s certain conditions were met. One witness Wilson, 601 F.2d 97. demeanor. See payments demanded certain for sub had hand, deposi- the denial of a On the other away for time sistence and reimbursement altogether of denial tion lead business; sought merely other witness, of a material a limi- away The money for time from business. truthfinding tation on the trial’s function court held that the refusal significant far more than the mere denial meet these demands was not unreasonable. jury opportunity to of the view F.2d Moreover, person. develop- witness Sindona, United States videotape providing a technology, ment of denied, (2d Cir.1980), cert. 451 U.S. deponent and his testimo- picture clear (1981), 68 L.Ed.2d 302 S.Ct. cost, much ny low has made it more pragmatic ap a similarly court took possible judge jury to make critical ap proach approving the district court’s credibility assessments without witnesses government’s request proval of the before, being present than thus under- ever govern of four witnesses. arguments cutting against one of the main presented ment no evidence whatever deposition testimony. unavailability simply of two witnesses but in the Second Circuit and cases “two its motion to the court that stated importance dep- recognize this court prospective specifical witnesses apply prag- needed and ositions where ly refused to come to the United States unavailability approach to the matic 803. All that with ...” Id. at was shown materiality Because the Second respect criteria. two witnesses other yet necessary I unavailability, deal “had not obtained the Circuit cases on that date.” Yet the up first. travel documents take them likely per- grand jury join part majority’s tation I do not discussion majority suggest body to the seems Even we were IIIB because suaded that not to indict. if govern- claims the that the cable which Ismaili join the courts that have insisted on to those grand jury the was not ment should have shown jury exculpatory grand presentation to the of view, my exculpatory at all. In it was some- properly Brady reasonably expected “might be to evidence exculpatory what it was also indict," v. jury not United States lead the to the I nonetheless concur in result. material. 616, Cir.1979), Ciambrone, (2d the 623 argument persuasive prosecutor made a good present cable to the failure to this faith exculpatory, why did the cable not consider quashing jury the in- grand would not warrant addition, indicating good In that official’s faith. dictment. presen- exculpatory so that its the cable was not

171 affirmed, noting requests that “there was government. am- the my view, In ple reason to fear that all four witnesses very at the least this pragmatic same ap appear would fail to trial.” Id. proach apply should to requests by the government defendant. When the re judging materiality is standard quests deposition, a constitutional consider similarly practical. parties Because make inveigh against ations request trial, the deposition requests because before the court request impinges the on the cannot know for sure what either side will defendant’s prove right able to at trial and under the what evidence Confrontation Clause of the position importance. of occupy will In- Sixth Amendment to “face-to-face confron deed, a court never can be certain what tation at trial.” Roberts, Ohio v. 448 U.S. will jury or will not find 56, credi- 2531, 2537, 100 S.Ct. 65 L.Ed.2d 597 applied by test in ble. The this Court Wil- (1980); see also cases cited id. n. exacting. was not held son We that the contrast, 100 S.Ct. at 2537 n. 5. In when a court should depo- district have ordered the requests defendant a deposition, no Con sition of an unavailable witness on the de- problem exists, frontation Clause and val request fendant’s because his affidavit es- protected by ues the same amendment’s “testimony tablished the was relevant Compulsory Process Clause favor the re and, believed, if exculpa- would have been quest. Supreme As the Court has ob tory to some extent.” 601 F.2d at 98. served, right the of compulsory process is a Steele, right process

In fundamental of United. States v. 685 F.2d 793 due because Cir.1982), (3d right pragmatic testimony considerations in- to offer the of wit “[t]he securing testimony nesses, foreign attendance, volved in compel to their if persuaded necessary, witnesses us to relax the plain stan- right terms the to corpo- dard even further. In that case of present a Washington defense ...” v. bribery, upheld rate fraud and an order Texas, 14, 19, 1920, 1923, 388 U.S. 87 S.Ct. witnesses Bermuda (1967). right 18 L.Ed.2d 1019 Even if the despite the admitted failure compulsory process to technically materiality pro- of the demonstrate potential issue because a witness lies out posed testimony. at 808-09. We Id. re- court,3 jurisdiction side the deposi materiality requirement laxed the similarly tions insure defendant’s abili difficulty the testimo- appraising procure ty testimony potential of all ny foreign deposi- witnesses before their thereby witnesses his defense pro tions were taken and because the desire tect the embodied in the values clause and denying important “to avoid evidence to all justice Moreover, system. in our criminal parties.” Id. at 809. process there are at least some due limits Steele, Johnpoll, authority deny Like on the court’s Sindona most 15(a) Rule decisions deal them.4 power government 3. A number of state courts have held that within the rize, to autho compulsory process apply process clause does not the due clause restrict subpoenas jurisdiction authority deny witnesses outside of a district court to them. Twoteeth, of the court. v. See State P.2d Kowalchuk, (3d In United States v. 773 F.2d 488 (Mont. Trice, 1985); People 789 581, 101 A.D.2d Cir.1985), denied, cert. 475 U.S. 106 S.Ct. (1984). 476 N.Y.S.2d 402 Whether that (1986), sitting L.Ed.2d this may impose obligations clause some on the banc, appeared accept principle that com situation, government court and even in that values, process pulsory working through clause however, majority neither the nor I address. clause, process the due created some kind of guarantee testimony foreign witnesses Valenzuela-Bernal, United States was material even when the (1982), power procure L.Ed.2d was without case, Supreme consciously testimony. sought Court borrowed from due In that process analyzing compulsory process deport cases in the defendant to the Soviet Union challenge upon compulsory process grounds participated and relied that he had in Nazi reasoning rejecting process challenge. misrep due atrocities conceal which he had made guarantees Essentially application both insure the defend resentations on for admission claimed, right present deposi country. appeal, ant a a defense. When On the defendant alia, purpose process tions serve that and when are inter that he had been denied due context,5 Thus, weight. should be in a no defendant different

Although it arises practical the same stan- opinion in entitled to least recent Supreme Court’s unavailability ac- materiality of and dard S.Ct. Kentucky, Crane I government in the case law. (1986), corded the is nonetheless 2142, 90 L.Ed.2d 636 now to evaluate the district court’s Court, proce- proceed invoking the The instructive. rulings against this standard. Due Process and of the safeguards dural Clauses, unanimously Process Compulsory II. The Moroccan Witnesses guarantees that “the Constitution restated meaningful opportu- ‘a defendants criminal majority justify The does not the denial ” complete present a defense.’ Id. nity to depositions for the Moroccan witnesses of “ omitted). (citations ‘The Consti- at 2146 materiality, grounds of and because on elements the basic defines clear, tution ... I materiality evidence was provi- through the several largely Instead, fair trial margin.6 it forth in the set Amendment’ ... We of the Sixth sions subject on asserting that the evidence ground observing that an no new break Is- “equivocal,” majority claims that is component procedural fairness essential proof of maili not introduce sufficient did (cita- heard.” Id. opportunity to be is an unavailability. these witnesses’ omitted). pro- hardly can be called tions It correctly The summarizes the majority cedurally fair for the district court disal- was testimony. Ismaili’s brother Rachid request defendant’s low a willing to come to the United States but testimony, a standard stricter by employing light In passport. an of the had invalid requests by applied to than that practice denying pass- routine Moroccan government. ports, he was not sure that he could obtain also, practical Ezzarai, As a matter defendants had lithographer, also one. ability procure always apparently less passport, almost and un- be govern- foreign than the he paid witnesses at trial unless his back able obtain one government reasonably he disfavor with ment. taxes. Because authorities, probably request passport from a for- he would expected to Moroccan difficulty getting passport eign government, example, but de- have Although extremely any he request likely to have little or event. fendant’s grand jury. lawyer his li's version of events to the because the Soviet Union had denied Valenzuela-Bernal, sep- Citing particular, involving the color access witnesses. because, below, reject general theory did defendant’s as discuss arations is crucial I rejected lay instead claim be charges but defendant’s the indictment that Ismaili's fraud showing "any he testi cause had made no separations his for color solicitation funds mony has been excluded that ‘would have been intending without to have them made. Testimo- favorable his defense.’” 773 material and ny by exactly he told Ismaili Rachid about what might highly is also material because it indicate misleading whether statements admissibility of the cir- Crane involved team, state of the sales see sellers about the surrounding interrogation for cumstances an Maj.Op. were inno- were fraudulent or determining credibility purposes ensu- cent mistakes. ing confession. receiving testimony film Ezzarai's about separations obviously payment also for color Ismaili’s in- 6. The highly It the case. bears whether material to vestigator, Thompson, indicated that separations money for color Ismaili solicited testify knowledge Rachid would brother money purpose. intending for that to use the plans. participation sales brother’s Indeed, materiality disputing Ezzarai’s far from dispatched testify that he had Rachid would government as- before the district Egypt begin forming a sales someone to witness,” "key court that Ezzarai was a sured the team; prepare Ezzarai to had hired concerning possessed “pivotal information who separations separations; color guilt At that the defendant’s or innocence.” prepared restrictions in Morocco because of bring planned point, removing preventing his funds Ismaili from own, only in Morocco; the United States on its Iran/Iraq and that the war had conjunction guilty plea did with Ismaili’s project’s its abandonment because of caused the produce it would not concede that on consumer confidence. These state- effects supported portions Ezzarai. substantial of Ismai- ments come, suggested, to he always reluctant his ed. We can suggest statements a statement, encouraging most that he would might defendant have made to a witness to get willing “you to if me pass- be come a appear, induce him to but in the absence of taxes, port, my if you pay you back and if evidence that a might such statement have pay my for and children wife to live.” dispositive, majority’s been demand for particular one statement is technical and finds this evidence majority The insuffi- unfair. cient. But the evidence of Rachid’s and unavailability corresponds

Ezzarai’s direct- ly unavailability the evidence of to that Syrian The III. Witnesses government justified depositions wit- witnesses, Syrian For the majority in Johnpoll and Sindona. nesses If the finds not proof fault with Ismaili’s of una- yet mere fact that Swiss citizens had not vailability, clear,7 which was but with the justified obtained documents travel the tak- proof so, of materiality. In doing in addi- ing (de- aof abroad in Sindona tion to other flaws in its analysis, the ma- spite the influence of our jority specifics fails focus on the of the them), require assist we cannot Ismaili to The indictment. indictment asserts that passport obtain a for his from brother a guilty Ismaili was merely fraud not be- pass- Moroccan that disburses exaggerated cause of statements about ports govern- if reluctantly. Similarly, operations state of his sales but because all may depose ment a witness abroad rather efforts Ismaili made to find oc- business paying than subsistence and reimburse- curred as an artifice for obtaining money business, for away ment time from separations. for color The core of the arti- obligation pay should no have back taxes fice was “a bait and switch” sales tech- support for and to family Ezarrai his while nique in which prospects Ismaili told that testify. Furthermore, comes he would products advertise their at no if even Ismaili did offer payments, such they if provide cost would separa- color unlikely appear. Ezzarai seemed Apply- tions. Ismaili would then convince the standard, ing practical Ismaili demon- prospects pay him money prepa- unavailability. strated separations ration color with no inten- majority significance also finds making tion of them. alleged by As prove Ismaili’s failure to he offered to government, all misstatements occurred expenses they cover witnesses’ if trav- purpose advancing this scheme. fact, elled to the United States. That how- indictment, light In evidence ever, simply irrelevant here. The evi- demonstrating Ismaili’s business expenses dence indicates that were not complete scheme not a fabrication Rachid, but willing concern of who was to come legitimate, exaggerated was a even if busi- passport obtained, could be and were plan, helps negate govern- ness Ezzarai, sufficient inducement for who (and needed) theory prof- ment's of the offense. demanded back taxes ob- passport. addition, tain In Syrian in fered witnesses suggests obviously the record important particu- that Rachid or Ezzarai would do so in expenses believed their would cover- lars. majority actually Because does not con- problem kept could not come heart Syrian unavailability, cede the witnesses’ I sum- travelling Thompson him from far. also stated briefly transcripts marize the evidence from thought might he these stated reasons Thompson’s interviews with them. All stated “heavy prejudice veiled a more fundamental absolutely unavailable to come against having anything do with United gave various reasons: Bassam Al Khtib addition, (215-16). Thompson States.” testi- stated he was unable to come because he fied that he had told the witnesses that Ismaili draft; subject still Hassan Al Holibi pay expenses monetary and that "personal stated he was unable to come for nothing considerations had to do with their rea- draft; reasons" and because of the Assad A1 (The attending transcript sons trial. Laham stated he was unable to come because he did not think he would have the Manzalgy interview reveals this statement about free time expenses.) company; Manzalgy Mohmoud A1 stated organization. Their lack of contended that a direct con-

Specifically, Ismaili supports tact with Ismaili his agents in Saudi Arabia had claim. his group of organize sales team. One of a started Finally, majority’s Syr- the claim that the Ahmed, them, gone to Lebanon and A1 had testimony only prospective shows a ian Al- Syria. and people recruited Lebanon sales force contradicts the evidence. The died, Syrian the wit- A1Ahmed had though existed, testimony that shows a sales force theory. credibility to that The nesses lent completed yet that had sales albeit one not them, Khtib, Al important of Bassam most the business was still its infan- because (Ismai- he of Incoser that had heard stated cy- met A1 when he had company) li’s troubling majority’s More than the dis- trip and a business had in Beirut on Ahmed details, however, gener- of the is its cussion He stat- plans to sells vans. the discussed approach. The seems majority al to be mod- photographs several ed that he saw testimony proffered that is insuf- the view territory, and re- received a sales els and ficiently prove material it would the unless whom people, sales each of cruited nine government the statements the truth all $8,000. money He turned this contributed made, i.e., alleges Ismaili unless it would them, Between the A1 Ahmed. over to government’s defeat the entire case. But many developed prospects for people sales First, approach this contains two fallacies. all people The other sales vans. case; proven has yet not its sup- generally by Bassam recruited only alleged it has Ismaili made cer- that story. ported his yet statements and we do not know the tain testimony this majority disparages government’s proof. If Is- sinews of the preparation did not relate to the because it maili can establish that he did not make all promotional lit- separations or of the color he the statements claims also that majority made, erature. The claims it may only prove need truth team the existence a sales by substantiates that of statements are corroborated only through hearsay proposals and that foreign depositions. in the employ the witnesses future could Second, majority ignores the manner Ismaili

not demonstrate that sales together pieces in which defendant his “already in place.” team argues: case. As testimony to relate to The failure rarely lucky A so as to defendant however, obviously separations, the color possess single piece of evidence which majority does make immaterial. The not proves inno- conclusively itself his importance points itself Instead more cence. successful defenses allegedly government’s case of Ismaili’s piecing together many often result from which, regarding false the existence of statements as a small bits of evidence viewed relating Any testimony whole, a sales force. in the create a reasonable doubt obviously jury. the existence of a sales force is minds of the generally, More therefore material. Reply Appellant’s Brief at alleges government’s indictment many government’s of the claims Because legitimate plans. Ismaili had business provable those may be and because Syrian clearly witnesses contradict explained away only are be claim, testimony make would witnesses, of different testi combination story of the more credible even Ismaili’s mony completely exculpatory not be need separations. color deposition, justify a but need Wilson, Furthermore, testimony Syrian “exculpatory to some extent.” hearsay at 98. See also United States witnesses would not be Bronston, partic- (S.D.N.Y. their own testify F.Supp would about engag- 1971) (defendant ipation. Obviously, if Ismaili was not “show the testi need claimed, acquit ing mony surely him” to in the business he sales will show material). long necessarily as testimo have contact So force would believed, negate significant ny, if with him but rather with other members of claims, Wasfi, it is portion up of the Wasfi” and made A1 Fawzi Nour and Ahmed material. Said. The telex also spoke of the efforts made A1Ahmed to Syrian wit- Because the Moroccan organize people sales in Lebanon Iraq probably and their unavailable nesses are and confirmed project had died defense, testimony crucial happenings because of “some in the area.” an order majority sanctions For the apply same reasons as to the testi- deprives effectively Ismaili of court that mony Syrian witnesses, the Saudis’ against to defend himself any chance hearsay would not be and was Recognizing government’s charges. the portions material to rebut substantial of foreign testimony in cases involv- need the case. ing allegedly busi- fraudulent international upon majority’s transactions and the limitations ness discussion of unavailabili- persuasive. subpoena power ty only a is more the of this Court evidence of sympathetic depo- unavailability the Saudis’ and others have been comes from telex, in by government. they their requests they sition the stated that See Steele, 809; Bronston, willing spend “are not time and or mon- 685 F.2d 793 at (“fact ey to come the F.Supp. necessary that a U.S.A.” Unlike the other witnesses, at foreign least these witness is a national domiciled witnesses listed the need beyond subpoena power for reimbursement abroad and the of factor in unwillingness impelling appear court the ... is an consideration” trial. grant deposition). By in decision to uphold- however, The majority, does not hold order, ing majority the district court’s defendant necessarily is available upholds directly contrary a double standard if, willing he is country travel to this but Reflecting our constitutional values. if, only expenses (The paid. are majori- injustice convicting, of fundamental ty only states that the demand for reim- providing every defendant without opportu- bursement “does not necessarily mean that defense, nity for a those values favor a 160.) Maj.Op. I, is- unavailable.” to requests by liberal treatment a defend- too, reach this issue. Given the ant, unrealistic, ap- instead of the technical depositions need obtain other in the Mid- proach majority favored here. East, depositions dle appropriate in the Saudis are ap- case unable to IV. The Saudi Witnesses pear. postponed The court could have con- my disagreements The thrust of actually with the sideration whether to admit the majority’s analyses unavailability depositions as trial until a more materiality Syrian the Moroccan and wit- definitive indication the Saudi witnesses’ applies majority’s analy- availability unavailability nesses also to the came to the majority’s sugges- sis of the Saudis. The court’s attention. See United States v. Sines, (9th Cir.1985) tions that the Saudi witnesses did not offer exculpatory particularly unsup- evidence is is (deposition appropriate in case witness portable. The Saudi telex post- stated that a will unavailable but court be should pone question trial).8 Saudi sales force had existed admissibility “headed majority suggests anyone request 8. The also that it "could rest else considered the conditional. disposition appeal” entire this [its] on the any way The district court did not indicate in grounds only right that Ismaili asked not for the place funding that its desire not to burden foreign depositions govern- to take but also for government was factor its on the even one in motion, funding ment same and Ismaili Indeed, argument, deliberation. at oral provided proofs no that he was unable to bear government explicitly sug- refused to endorse expenses Maj.Op. himself. at 160 n. 5. In gestions funding issue bench that view, my suggestion Although is untoward. provide a ma- could basis for affirmance. The placed requests Ismaili tion, both same mo- jority justifying thus seems to be the district absolutely there no indication that the misunderstanding by positing a court’s order request for was conditional on the parties and the district court that between the request government payment expenses, never occurred. be, no indication that court understood it to suggestion that it or discretion, permit still Review broader hold that

V. Standard of Fifth and require “the Sixth Amendments majority’s feature of the important An give that the trial court due consideration opinion is its deference to the decision of rights to the constitutional involved.” court. can We overrule Greschner, United States v. court’s decision if it is an abuse district — (10th denied, Cir.1986), cert. Wilson, F.2d at 97- of discretion. See -, (1987). 94 L.Ed.2d 523 98; Johnpoll, 739 F.2d at 708. Under standard, majori- Although the preference of that I for live testimo- view believe incorrect, ny slightly ty higher and that the counsels favor of denying necessity granting did its discretion standard before abuse depositions. deposition, appellate vigi- I courts must motion for leave take explained right to assure the defendant’s both the substantive and lant present compro- Is- a full not been fact-specific my reasons for view that defense has my view, excep- mised. In a district court “due to has no maili has established that strong discretion absent some reason tional circumstances the interest [was] deny deposition a 15(a), when defendant has grant Fed.R.Crim.P. justice,” credible, presented unrefuted evidence that depositions. for I add request is provide a witness unavailable and would I view the denial of the material, exculpatory testimony. Wil- calling question requests as into serious Cf. son, 601 F.2d 98-99. ability present of Ismaili to a defense. Broad deference to the district court’s my scope In view of the district inappropriate is particularly decision in this discretion case was court’s not motion, original On case. Ismaili’s the dis- “Knowing in simply that one is broad. trict court stated that it did not find the discretion tell vested with does not much. sufficiently persuasive either of inquiry, ex necessarily, The crucial is the unavailability materiality. or of discretionary power tent of the conferred.” however, provided explanation of its Aldisert, (1976). R. The Judicial Process 742 reasoning. motion, On renewed comparable situation, many In a circuits presentation after of the affidavits ob- authority have held that a district court’s Thompson's Thompson tained live deny request subpoe defendant’s for testimony, the reaffirmed its court denial na, government expense, highly even at is explanation any of the motion without indigent subpoe limited: an entitled to whatever. which, true, na if he facts “avers be relevant to case issue ... have, in past, uphold We refused unless the averments are on incredible subpoena district court’s denial of a in the face, unless or shows Government of a articulation of absence clear reasons. ... that the or States, 801, averments are untrue 281 F. See Paoni v. United 804 the request Cir.1922). (3d otherwise frivolous.” Unit generally, More absence Sims, (9th 625, ed F.2d 627 explanation discretionary States 637 an for a deci- Cir.1980). impact also important See United States v. Bark sion that has an aon er, (6th Cir.1977); rights F.2d party’s appellate 553 1020 often caused has Hegwood, skeptically United States v. 562 F.2d courts to review decision (5th Cir.1977), denied, simply 953 434 statement cert. remand for a of rea- (1978); 55 Spelce L.Ed.2d 787 sons. See v. Neal Batson Associ- States, 108, ates, (5th (re- Cir.1985) Greenwell v. United 317 F.2d (D.C.Cir.1963). circuits, fusing Other court’s dismissal review district Furthermore, even if had fol- the district court of material otherwise unavailable witnesses majority’s implicit reasoning, request lowed train of because the court considers that condi- grossly I believe it would have abused its discre- request government funding tional on a un- tion. The district court should have viewed less the court least seeks clarification of the prayers separate these two relief absent request requesting deposi- party view, my contrary. indication to the simply may a court tions. deny request complaint produce absent articulation rea or could not places sons), remand, (W.D.Tex.1986), 112 F.R.D. ruling court’s earlier in a different (5th F.2d 546 d, Cir. light. Even if the district ruling court’s aff' Franzen, 1986); Freeman v. not an abuse of time, discretion at the Cir.1982) (7th (refusing uphold dis concessions at least man- discretionary judgment court’s trict on at date a remand for the court’s renewed con- reasons), torney’s fees without articulation sideration. denied, 1214, 103 rt. 463 U.S. S.Ct. ce 3553, reasons, For all the foregoing I would (1983). 77 L.Ed.2d 1400 In the ab vacate Ismaili’s plea conditional of nolo any explanation why sence contendere and remand the case for fur- presented by court considered the evidence proceedings. ther Thompson inadequate, we should not bend to uphold over backwards a chain of rea

soning might that the even have

applied. Impact Changed

VI. The Circumstances Even if we were show undue defer- Clayton G. DORN and David F. Dorn case, changed in this ence circumstances executors the Estate of Ruth H. At still mandate a remand. the time the Dorn, Appellees, motions, district court denied Ismaili’s represented the court presence would obtain Ezzarai’s at trial. America, UNITED STATES government’s represenation Because the Appellant. claim undermined Ismaili’s that Ezzarai No. 86-3676. unavailable, may the district court have assumed that Ismaili had no need to Appeals, United States Court Furthermore, assuming depose Ezzarai. Third Circuit. that Ezzarai would be available and that he Argued May 1987. probably important foreign the most witness, may the district court have rea- Sept. Decided depositions for the soned other wit- Rehearing Rehearing In Banc Denied necessary. nesses were less In the condi- Sept. guilty however, plea, pur- tional and for poses appeal, government stipulated produce

that it would not trial. Thus, unavailability may while Ezzarai’s proceeding

have convinced Ismaili that impossible, trial was the district court might have ordered at the time

it first considered Ismaili’s it motion had

known that Ezzarai would be absent. determinations, judge’s though

“A trial made, may at the correct time when develop reversed because ... events that may light later cast a different on an earli- ruling. Though er circumstances such prompt an appellate a reversal they obviously to the trial known Wilson, ruling.” judge when he made his case, 601 F.2d at 98-99. concession that would

Case Details

Case Name: United States v. Ismaili, Lakbir Moulay. Appeal of Lakbir Moulay Ismaili

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 25, 1987

Citation: 828 F.2d 153

Docket Number: 86-5552

Court Abbreviation: 3rd Cir.