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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CR-20340-WILLIAMS

UNITED STATES OF AMERICA,

vs.

MASPHAL KRY,

Defendant.

_________________________________/

DEFENDANT MASPHAL KRY’S REPLY IN SUPPORT OF MOTION TO CONDUCT 

DEPOSITIONS PURSUANT TO FED. R. CRIM. P. 15

The Court should grant Mr. Kry’s request to conduct Rule 15 depositions because: (i) each 

witness remains beyond the subpoena power of the Court, (ii) Mr. Kry has established materiality 

with respect to each witness, (iii) courts do not evaluate whether a Rule 15 deposition should be 

taken based on the admissibility of such material evidence, and (iv) the government’s perceived 

security and logistical concerns do not outweigh Mr. Kry’s interest in obtaining these witnesses’

live testimony. 

I. The Witnesses are Unavailabile

The government argues—without basis in law or in fact—that the witnesses’ unavailability 

is “self-imposed” because they were previously willing to travel to the United States with the 

protections afforded by a safe passage letter. As a matter of law, the witnesses are beyond the 

Court’s subpoena power and are therefore unavailable under Rule 15, irrespective of whether they

were willing to travel to the United States with the protections afforded by a safe passage letter. 

See United States v. Ramos, 45 F.3d 1519, 1523 (11th Cir. 1995) (citing United States v. Drogoul, 

1 F.3d 1546, 1553, 1557 (11th Cir. 1993)). The decision of whether to afford a witness a safe 

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passage letter is a decision left entirely to the executive branch, a fact repeatedly affirmed by the 

government to this Court. The government declined to issue safe passage letters for these 

witnesses, even though the government has now confirmed that it is unaware of any investigations, 

pending charges, or INTERPOL notices for these witnesses. See ECF No. 160 at 7 n.3. After 

considering the government’s decision, each witness subsequently consulted with independent

counsel and determined that they would be unwilling to travel to the United States without such 

protections. The witnesses’ present unwillingness to testify at trial is a natural consequence of the 

government’s refusal to provide them with safe passage letters.

II. The Witnesses Possess Material Testimony

The government concedes the materiality of certain aspects of the proffered testimony of 

each witness. Thus the materiality inquiry should be resolved in favor of the defense. 

Nevertheless, in an effort to distract from that concession, the government extracts a handful of 

propositions from Mr. Kry’s motion in an attempt to argue that the depositions should not be taken 

on grounds other than materiality.

The government’s paramount objection to the materiality of the witnesses’ testimony is that 

it is not admissible. A court may deny a request for a Rule 15 deposition on the basis of 

admissibility only if it is “abundantly clear that the deposition[] could not possibly be admitted at 

trial.” Drogoul, 1 F.3d at 1555 (emphasis added).

The government does not object to Ms. Sovannary serving as a custodian of records, and 

does not claim that testimony regarding these records is irrelevant. Thus the government concedes 

that her testimony regarding the records satisfies the materiality standard. Contrary to the 

government’s claim about the remainder of Ms. Sovannary’s expected testimony, testimony 

regarding practices within the MAFF when inspecting breeding farms is clearly relevant to the 

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Indictment’s charges. The Indictment alleges that members of the conspiracy “utilized the services 

of MAFF and its employees to further the purpose and objects of the conspiracy.” Ind. at 8. Ms. 

Sovannary’s testimony regarding the MAFF’s, DWB’s, and Cambodian CITES authority’s 

processes and procedures when evaluating a breeding farm’s request to obtain an export quota is

relevant to the Indictment’s claims. This testimony is also relevant to Mr. Kry’s proffered defense 

that the Cambodian government authorized Mr. Kry, or Mr. Kry believed he was so authorized, to 

do those acts that the government seeks to tie to a criminal conspiracy. So, while Ms. Sovannary 

could not provide admissible testimony as to what Mr. Kry believed at the time, she can provide 

material testimony regarding the processes that are relevant to this defense. 

The government states that Mr. Sopheaktra’s testimony “may . . . be material.” ECF No. 

160 at 4. Mr. Sopheaktra currently holds the position that Mr. Kry held at the time of his arrest. 

His testimony regarding the duties he holds in this position, his visibility into the CITES permit 

process, and his role in approving CITES export permits, among other topics, is material under 

Rule 15 because this testimony may negate the government’s assertion that Mr. Kry, through his 

position in the DWB, had insight into or knew VBRC exported these long-tailed macaques to the 

United States. See United States v. Erdmann, No. 2:16-cr-62-FtM-UAMRM, 2016 U.S. Dist. 

LEXIS 148944, at *6-7 (M.D. Fla. Oct. 27, 2016) (holding that evidence is material if it tends to 

negate an element of the crime or to establish a defense). 

The government concedes that Mr. Soveacha’s testimony is material. See ECF No. 160 at

5. The governent’s lone objection with respect to Mr. Soveacha’s testimony is that he will testify 

as an expert witness. This is not so. As defense counsel has now twice represented to the 

government, Mr. Soveacha will testify as a lay witness and representative of the Cambodian 

government. The fact that Mr. Soveacha’s testimony may touch on matters pertaining to the 

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Cambodian government, including the roles and responsibilities of certain Cambodian agencies, 

does not change this analysis. In any event, should Mr. Soveacha provide improper expert 

testimony, the government can oppose the admission of Mr. Soveacha’s testimony at trial. 

III. Counterveiling Factors Do Not Render the Proposed Depositions Unjust

Mr. Kry’s right to present witnesses in his defense cannot be curtailed by the inconvenieces 

of conducting foreign depositions. This is particularly true where, as here, the government 

engaged in foreign surveillance for over four years and nearly all the conduct alleged in the 

Indictment relates to conduct that occurred in Cambodia. It can be of no surprise that Mr. Kry 

intends to call witnesses located in Cambodia. 

The “[c]ollateral issues” referenced by the government do not render the Rule 15 

depositions unjust, and the government’s assertions about the convenience of conducting these 

depositions are unsubstantiated. See ECF No. 160 at 6-8. 

United States v. Khan, 794 F.3d 1288 (11th Cir. 2015), is instructive and clearly 

distinguishable from this case. There, the defendant was indicted on terrorism-related charges and 

sought Rule 15 depositions of his fugitive codefendants. See id. at 1307. Complications emerged 

in taking the depositions because the Department of Justice informed the U.S. Attorney’s Office 

in the Southern District of Florida that the depositions would require prior approval of the 

government of Pakistan, the government attorneys would be required to secure diplomatic 

passports and Pakistani visas, and the depositions could not take place in the U.S. embassy or 

consulate because the witnesses, suspected terrorists, would be a security threat. Unlike in Khan, 

the government attorney in this case has not conferred with Main Justice regarding procedures for 

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the Rule 15 deposition, inquired into the time needed to secure visas for the Rule 15 depositions1,

or determined whether the Rule 15 depositions could be held at the U.S. embassy. Rather, each of 

the government’s proffered reasons for opposing the Rule 15 depositions are pure conjecture. 

The government’s “security concerns” likewise do not render the Rule 15 depositions 

unjust. See ECF No. 160 at 5-8. Again, these concerns are speculative, and unlike the defendant 

and witnesses in Khan, Mr. Kry and the Cambodian witnesses are not suspected to be violent 

international terrorists. The government attorney has not reached out to the Department of State, 

Main Justice, or the Cambodian government to request assistance in securing diplomatic visas, 

which would shield the government attorney from whatever danger he suspects lurks in 

Cambodia.2 The Cambodian government maintains strong diplomatic ties with the United States. 

See Dept. of State Fact Sheet: The United States-Cambodia Relationship (Aug. 2, 2022),

https://www.state.gov/the-united-states-cambodia-relationship/. The government’s allegation that 

the Cambodian government would detain or otherwise harm prosecutors acting on behalf of the 

United States is entirely unfounded. See, e.g., Dept. of State: Cambodia Travel Advisory (July 24, 

2023), https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/cambodia-travel1 The government previously represented to the Court, in opposing Mr. Kry’s request to 

continue the trial date, that the Cambodian government will process visas within seven days. See

ECF No. 120 at 4.

2 In the interest of completeness, the entirety of defense counsel’s letter to the Office of 

International Affairs (“OIA”) within the Department of Justice is enclosed as Exhibit A. The letter 

describes serious concerns regarding the procedures followed by U.S. Fish and Wildlife Agents, 

acting at the direction of AUSA Watts-Fitzgerald, in investigating this case. Defense counsel’s 

investigation has revealed that (i) USFWS agents and AUSA Watts-Fitzgerald failed to secure 

OIA’s approval to conduct a clandestine intelligence gathering operation in Cambodia, with the 

aim of indicting Cambodian government offiicals, (ii) the government’s cooperating witness 

violated Cambodian law, and (iii) agents were aware of such unlawful conduct. Notably, the 

government’s response is not that it secured such approvals, but that the government can engage 

in an illegal investigation overseas so long as the defendant is arrested in the United States. See

ECF No. 160 at 5 n.2.

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advisory.html (describing Cambodia as safe to visit by U.S. citizens). In light of the government’s 

vague and unsubstantiated proffer of “countervailing factors,” the Court should reject the 

government’s request that the witnesses testify via videoconference. See ECF No. 160 at 7-8. As 

the Eleventh Circuit has acknowledged, and the government has conceded in other cases—

including Yates—taking Rule 15 depositions by two-way videoconference is not authorized by the 

Federal Rules of Criminal Procedure. See United States v. Yates, 438 F.3d 1307, 1314 (11th Cir. 

2006). 

Mr. Kry has the right to present witnesses in his defense. When those witnesses are not 

available in the United States, Rule 15 provides the extraordinary remedy of allowing a defendant 

to obtain testimony through foreign depositions. Mr. Kry has demonstrated that each of these 

witnesses is unavailable, in part due to the government’s refusal to provide the witnesses with safe 

passage letters, and that each witness possesses material testimony. The government’s remaining 

objections to the depositions are based on speculation and conjecture, and do not justify depriving 

Mr. Kry the ability to secure these witnesses’ live testimony in Cambodia. 

CONCLUSION

For the reasons stated above, Mr. Kry respectfully moves the Court to grant his motion for 

Rule 15 depositions.

Dated: August 14, 2023 Respectfully submitted, 

By: Mark J. MacDougall

Mark J. MacDougall (Pro Hac Vice)

Stacey H. Mitchell (Pro Hac Vice)

Allison T. Coffin (Pro Hac Vice)

Dakota L. Kann (Pro Hac Vice)

Jane M. Mahan (Pro Hac Vice)

Nicole L. Franklin (Pro Hac Vice)

Counsel for Masphal Kry

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Akin Gump Strauss Hauer & Feld LLP

2001 K Street NW

Washington, DC 20006

Telephone: (202) 887-4000

Fax: (202) 887-4288

E-mail: mmacdougall@akingump.com

 shmitchell@akingump.com

 acoffin@akingump.com

 dkann@akingump.com

 jmahan@akingump.com

 nfranklin@akingump.com

John R. Byrne

John R. Byrne (Fla. Bar Number: 0126294)

john@maderalbyrne.com

Counsel for Masphal Kry

Maderal Byrne & Furst PLLC

2800 Ponce de Leon Boulevard, Suite 1100

Coral Gables, FL 33134

Telephone: (305) 520-5690

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