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Chief Judge Marsha J. Pechman

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

HENRY ROSENAU,

Defendant.

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NO. CR06-157MJP

GOVERNMENT’S RENOTED

MOTION FOR AUTHORIZATION

TO DEPOSE FOREIGN

WITNESSES

NOTED: March 16, 2012

No oral argument requested

The United States of America, by and through Jenny A. Durkan, United States

Attorney for the Western District of Washington, and Susan M. Roe and Marc A. Perez,

Assistant United States Attorneys for said District, renotes its previously renewed motion

for an order granting leave to take depositions of essential witnesses in Canada. On

November 9, 2011, the Government's motion for authorization to depose foreign witness

was stricken but subject to renoting. Dkt # 54. The government renews its request for

authorization to conduct witness depositions in Canada preparatory to this trial.

The government incorporates by this reference the two prior Motions filed in

support of the depositions and adds the following.

Status of MLAT Request for Canadian Evidence

The Canadian Government has accepted the Mutual Legal Assistance Treaty

request from the United States and is gathering Canadian evidence for use in

GOVERNMENT’S RENOTED MOTION FOR

WITNESS DEPOSITION/ ROSENAU- 1

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 79 Filed 03/02/12 Page 1 of 7
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United States v. Rosenau, CR06-157. The Canadian government generally determines

how the requested evidence comes to the United States and, pursuant to its direction, the

MLAT contained a request to take depositions in Canada of two civilian witnesses who

have significant information about the criminal conduct. The witnesses are both coconspirators who previously entered guilty pleas, served their U.S. prison terms, and

returned to Canada. One, Kip Whelpley, has been willing to return to the United States to

testify but has been subject to legal impediments arranged by the defendant. Even if the

current impediment is removed, neither the Canadian government nor the United States

government can assure this Court that there will be no new legal maneuvers instigated by

the defendant, his agents and lawyers. At this time, Justice Canada cannot guarantee that

Mr. Whelpley will return to the United States to give his evidence. The other witness,

Zachary Miraback, has firmly indicated he will not voluntarily return to the United States

to testify. He is, of course, beyond this Court’s subpoena power.

This office has been contacted by Crown Counsel to arrange depositions, in

Canada, of the two witnesses. Canada refuses to allow the defendant to personally attend

the depositions in Canada, but will facilitate his participation by video-link. That is, the

depositions would take place in a Canadian courtroom. The witness, counsel for the

government, counsel for the defendant, and the case agent will be physically present. The

defendant will attend via video-conferencing and there will be private communication

between the defendant and his lawyer as required. The government will provide a court

reporter/videographer who will preserve the testimony for future use. The defendant may

be clothed in civilian clothes. This office has contacted Bureau of Prisons and the FDC

regarding local arrangements. Such arrangements have been previously approved by the

courts and the depositions conducted successfully, such as in United States v. Gianis,

WDWA, CR04-334.

Law Relevant to the Motion and Argument

Federal Rule of Criminal Procedure 15 sets forth the procedure for taking

depositions of witnesses under certain circumstances. Rule 15(a)(1) provides:

GOVERNMENT’S RENOTED MOTION FOR

WITNESS DEPOSITION/ ROSENAU- 2

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 79 Filed 03/02/12 Page 2 of 7
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A party may move that a prospective witness be deposed in order to

preserve testimony for trial. The court may grant the motion because of

exceptional circumstances and in the interest of justice. If the court orders

the deposition to be taken, it may also require the deponent to produce at the

deposition, any designated book, paper, document, record, recording, or

data.

The deposition may be used as evidence at a trial in accordance with Federal Rules

of Evidence. See Rule 15(f). Rule 15(e) addresses the manner of taking the deposition.

Whether the court grants the motion to depose witnesses in a criminal matter is

discretionary, however the standard for allowing the deposition is whether doing so

would further “the interests of justice.” There is no necessity that a witness be

unavailable or that his testimony be essential. In United States v. Omene, 143 F. 3d 1167,

1170 (9th Cir. 1998), the court noted:

Rule 15(a) does not require any conclusive showing of “unavailability” or

“material testimony” before a deposition can be taken in a criminal case.

Rule 15(a) only requires that the trial court find that due to exceptional

circumstances it is in the interest of justice that the testimony of a

prospective witness be taken and preserved for possible use at trial. Omene,

at 1170.

Courts have approved Rule 15 depositions even when the defendant is not

physically present. In United States v. Medjuck, 156 F.3d 916 (9th Cir. 1998), as here, the

defendant was engaged in international drug smuggling. Civilian witnesses, as here, were

in Canada, beyond the subpoena power of the United States and unavailable for trial. The

Medjuck court affirmed the validity of the videotaped depositions and the use, at trial, of

the videotaped testimony, over the defendant’s objections. See, United States v. Gifford,

892 F. 2d 263, 265 (3rd Cir. 1989); United States v. Salim, 855 F. 2d 944, 950 (2nd Cir.

1988).

Facts Relevant to the Motion

Re: Kip Whelpley

Mr. Whelpley has indicated his willingness to testify but currently is legally

prevented from entering the United States to testify by a court order entered by default in

Rosenau v. Whelpley, 14781 Quesnal Registry, Supreme Court of British Columbia. The

GOVERNMENT’S RENOTED MOTION FOR

WITNESS DEPOSITION/ ROSENAU- 3

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 79 Filed 03/02/12 Page 3 of 7
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undersigned has consulted with personnel at the Office of International Affairs and the

Office of Foreign Litigation, Civil Division, at Main Justice, Washington, D.C., regarding

the effectiveness of the order and possible remedies. The Order does not, on its face,

prevent the witness from testifying but does prevent him from doing so in the

United States. Therefore, the government asks that his testimony be taken by way of a

deposition in Canada which would allow the testimony without violation of that order.

Mr. Whelpley is willing to be deposed in Canada.

Moreover, assuming the Canadian Court issues a Sending Order which includes

directing the deposition of Mr. Whelpley, he then will be complying with a Court Order

when he appears and testifies. This Court’s authorization of the deposition will show

respect for Canadian court orders, protect Mr. Whelpley, and obtain his necessary and

probative testimony.

Mr. Whelpley’s anticipated testimony encompasses nearly all of Mr. Rosenau’s

charged criminal conduct in that he will testify regarding his work with Rosenau and

others involved in smuggling contraband across the British Columbia-Washington State

border during 2004 and 2005; that he accompanied Mr. Rosenau on trips; that he received

multiple loads of marijuana from Mr. Rosenau; that Mr. Rosenau held his money; and

that he continued to assist Mr. Rosenau in the smuggling operation in Canada even after

his June 9, 2005, arrest in the United States. Additionally, he will testify about the role of

other co-conspirators, including Jonathan Senecal. Lastly he will testify specifically as to

some of the helicopters and locations involved in the smuggling. Mr. Whelpley’s

testimony is relevant as he knew, worked with, and flew with Rosenau during the

helicopter smuggling. His testimony directly inculpates Rosenau.

Re: Zachary Miraback

Zachary Miraback signed and affirmed a Plea Agreement on November 28, 2005,

admitting his smuggling activities, and provided sworn testimony to a federal grand jury

on his drug smuggling and Rosenau’s role as the pilot. On May 9, 2006, Mr. Miraback

agreed, in a signed court document and pursuant to his plea agreement, to cooperate fully

GOVERNMENT’S RENOTED MOTION FOR

WITNESS DEPOSITION/ ROSENAU- 4

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 79 Filed 03/02/12 Page 4 of 7
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with law enforcement authorities investigation of narcotics trafficking and other crimes,

to answer any and all questions concerning his knowledge of such criminal activity, and

to testify fully and truthfully at any trials in this matter. All of his sworn statements were

made with advice of legal counsel.

Mr. Miraback was a willing witness when in the United States and his anticipated

testimony was submitted as part of the government’s Record of the Case in the Rosenau

Extradition request. After his return to Canada, Mr. Miraback became unresponsive to

requests to contact or return to the United States to testify. In 2009, the United States

supplemented the Record of the Case in the Rosenau Extradition request, acknowledging

that Mr. Miraback was not then cooperating with the United States.

Mr. Miraback has been located in Canada, remains rather uncooperative with the

United States, and is beyond the subpoena power of the Court. The United States moves

to depose him in Canada so that his trial testimony may be obtained via a deposition,

thereby allowing him to fulfill the requirements of his plea agreement and his criminal

justice sentence. Mr. Miraback is expected to testify, as he did before a federal grand

jury, regarding his activities on September 21, 2005, when he received 1,100 pounds of

marijuana from Rosenau who made two flights that day into Washington State flying a

Robinson helicopter, tail identifier C-FRKM. Mr. Miraback further is expected to testify

regarding the transportation, with the help of his brother, of the 1,100 pounds of

marijuana across Washington State until their arrest in Puyallup, Washington, where the

marijuana was seized. He is expected to testify regarding the two cars he and his brother

drove in tandem that day, a white van and a red Toyota Tundra, Colorado license 900

JLF, as they transported the marijuana. Further, Mr. Miraback is expected to testify

regarding the prior loads of smuggled marijuana he had received.

CONCLUSION

The government renotes its motion for a deposition of Mr. Whelpley and includes

the motion for the deposition of Mr. Miraback. They are substantive and important fact

witnesses in this trial. The facts and circumstances surrounding these particular

GOVERNMENT’S RENOTED MOTION FOR

WITNESS DEPOSITION/ ROSENAU- 5

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 79 Filed 03/02/12 Page 5 of 7
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witnesses, as noted above, are compelling reasons for the Court to authorize depositions

of these two witnesses.

The government would absorb the costs associated with the deposition of Zachary

Miraback and will arrange for and pay the costs associated with the deposition of Kip

Whelpley. However, the government moves this Court for an order assessing the costs

associated with Mr. Whelpley’s deposition to the defendant. These costs will only be

incurred as a result of his harassment of a witness. These are not usual and appropriate

costs associated with the government preparing or presenting its case and the taxpayers

should not absorb the cost.

The Canadian government has suggested dates in late March for the depositions in

Canada. The details would be finalized once the Sending Order issues and the

depositions are authorized, including modifying the dates if necessary.

DATED this 2nd day of March, 2012.

Respectfully submitted,

JENNY A. DURKAN

United States Attorney

s/Susan M. Roe

SUSAN M. ROE

Assistant United States Attorney

United States Attorney’s Office

700 Stewart Street, Suite 5220

Seattle, WA 98101-1271

Telephone: (206) 553-1077

Fax: (206) 553-0755

E-mail: susan.roe@usdoj.gov

s/Marc A. Perez

Marc A. Perez

United States Attorney's Office

1201 Pacific Avenue, Suite 700

Tacoma, Washington 98402

Telephone: (253) 428-3822

Fax: (253) 428-3826

Email: Marc.Perez@usdoj.gov

GOVERNMENT’S RENOTED MOTION FOR

WITNESS DEPOSITION/ ROSENAU- 6

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 79 Filed 03/02/12 Page 6 of 7
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CERTIFICATE OF SERVICE

I hereby certify that on March 2, 2012, I electronically filed the foregoing with the

Clerk of Court using the CM/ECF system which will send notification of such filing to

the attorney of record for the defendant.

s/ Kathleen M. McElroy 

KATHLEEN M. McELROY

Paralegal Specialist

United States Attorney’s Office

700 Stewart, Suite 5220

Seattle, Washington 98101-1271

Phone: 206-553-7970

Fax: 206-553-0755

E-mail: Katie.McElroy@usdoj.gov

 

GOVERNMENT’S RENOTED MOTION FOR

WITNESS DEPOSITION/ ROSENAU- 7

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 79 Filed 03/02/12 Page 7 of 7