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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 RENEWED

MOTION FOR AUTHORIZATION

TO DEPOSE FOREIGN

WITNESSES

Noted: November 2, 2011

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, renews its previously denied motion for

an order granting leave to take depositions of essential witnesses in Canada. The government

incorporates by this reference the Background and Law Relevant to the Motion and

Argument sections of the prior motion and adds the following.

INTRODUCTION

The government previously moved the Court for an Order allowing deposition of

essential witnesses, specifically Kip Whelpley, located in Canada. Dkt # 27. The defense

opposed the motion, arguing that the government had not made the requisite showing of the

need for a deposition and saying, “No exceptional circumstances exist to justify the

deposition of Whelpley pursuant to Federal Rule of Criminal Procedure 15. Countervailing

Govt. Renewed Motion for Witness Deposition

United States v. Rosenau

CR06-157MJP - 1

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 55 Filed 10/31/11 Page 1 of 6
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factors exist that render a deposition unjust.” The defendant concluded by saying that the

Court had “a constitutional justification to deny the Government’s motion for authorization

of witness deposition” and attacked the government’s claim that Whelpley had no legal

standing in, or interest in, returning to the United States. Dkt # 28. At that time, there was a

Canadian Court Order prohibiting Whelpley from entering the United States and testifying

about Henry Rosenau and allowing general, specific and punitive damages to be assessed

should Whelpley testify about Rosenau. See Exh 1. Order dated March 7, 2011, Rosenau v.

Whelpley No. 14781, Supreme Court of British Columbia, Quesnel Registry.

The Court, on September 7, 2011, denied the motion without prejudice and suggested

the government supply more information on exceptional circumstances which could

necessitate a deposition and on whether other, less costly methods such as Skype would

might suffice. Dkt # 34.

Pursuant to the Court’s Order, the government recontacted Bruce Erickson,

Whelpley’s counsel. After several discussion, Mr. Erickson related that Mr .Whelpley agreed

to come to the United States to testify at trial. The parties continued their discussions about

prepping the witness and arranging transportation to trial for Whelpley. Neither the

government nor Mr. Erickson was aware that Rosenau had filed the civil defamation lawsuit,

that he had obtained the default Order, or that Mr. Whelpley had received threatening emails

from Paddy Roberts, also known as Padriag Mac Robeaird.

On October 20, 2011, Mr. Erickson left a voice mail message regarding emails he had

received from his client. He forwarded those emails and related documents to the

government on October 21, 2011. See Exh 2. Emails and Documents. Page breaks have

been added to ease email reading; the witness’ email and home addresses have been

redacted.

According to testimony given in a October 28, 2011 Revocation Hearing heard by

Magistrate Judge Tsuchida, defendant Rosenau, Canadian attorney Gary Botting and

“paralegal” Paddy Roberts were aware of, or participated in preparing and filing of, the

Govt. Renewed Motion for Witness Deposition

United States v. Rosenau

CR06-157MJP - 2

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 55 Filed 10/31/11 Page 2 of 6
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lawsuit in January 2011. American attorney Craig Platt learned of it in May, 2011 shortly

after assuming representation of the defendant.

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Although this default Order appears vexatious and to be against public policy, it

apparently stands. In response to defense questioning at the October 28, 2011 revocation

hearing, Canadian attorney Gary Botting testified that it was a valid and enforceable court

order. Neither can the U.S. government ask or encourage Mr. Whelpley to violate a court

order nor can the U.S. government hold him harmless for any “damages” which may be

assessed if he does testify, either here or in Canada. The government cannot ask Mr.

Whelpley to testify until that Order is vacated.

Assuming the Order is vacated, the government would move to depose Mr. Whelpley

promptly in order to preserve his testimony for trial and to avoid further harassment and

vexatious lawsuits from defendant Rosenau, Paddy Roberts or others.

It is anticipated that Mr. Whelpley’s trial testimony will be lengthy as he is a central

and knowledgeable fact witness in the government’s case in chief. Mr. Whelpley will testify

that in 2004 and 2005, he knew of helicopter pilots in Canada who flew cross-border

marijuana traffic into the United States and that he knew Henry Rosenau was one of them. In

the summer of 2004, Rosenau personally delivered loads of marijuana to civilian witness

Kip Whelpley. Rosenau also visited the U.S. with Whelpley to scout loading spots, held

Whelpley’s earnings (in cash) during the 2004 summer, and flew another Canadian helicopter

pilot into the U.S. to facilitate more helicopter smuggling. Mr. Whelpley worked a second

summer, in 2005, with Rosenau off-loading marijuana shipments here in the U.S. until he

PreTrial Services Officer Julie Busic testified that, on May 25, 2011, she had a

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telephone call from Mr. Platt inquiring about the effect of legal counsel serving papers in a civil

proceeding regarding Extradition on third parties, who may be trial witnesses. He inquired

whether it would be a violation of the term of release prohibiting contact with witnesses. Ms.

Busic testified that she noted her reply was that such service would not violated the terms given

that it was related to a civil matter and done by legal counsel. She also testified that, on June 20,

2011, she reviewed the list of possible witnesses with Rosenau. Rosenau said he did not

recognize any of the names and hoped he wouldn’t meet them inadvertently. Kip Whelpley was

on this list.

Govt. Renewed Motion for Witness Deposition

United States v. Rosenau

CR06-157MJP - 3

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 55 Filed 10/31/11 Page 3 of 6
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was stopped by surveilling ICE agents on June 9, 2005 and his load of 485 pounds of

marijuana was seized. ICE did not reveal the ongoing investigation but released Whelpley

who returned to Canada. He continued to participate in the smuggling from the Canadian

side of the border.

Mr. Whelpley will testify that on August 4, 2005, he and defendant Rosenau were

involved in a 500 pound marijuana smuggle into the United States. Whelpley worked it on

the Canadian side of the border, and Rosenau flew it into the Methow Valley area. The three

men receiving the load, David Mendoza, Dan Zylstra and Jonathan Senecal, had a bit of back

luck that morning, having driven a truck into a ravine when attempted to meet the helicopter.

Once the received the load, the men hid the nine hockey bags of marijuana in the woods and

went to Winthrop to hire a tow truck. Surveilling ICE agents located the hidden load and

seized it with no notice to the smugglers. Canadian Jonathan Senecal had worked with

Whelpley on the June 9th load and both Senecal and Whelpley’s involvement in the

conspiracy ended involuntarily after this second seizure.

Of special significance is that Mr. Whelpley is the only co-conspirator prosecuted in

this District who continues to honor his cooperation agreement with the U.S. government.

He can testify as to a more accurate number of smuggling trips made by the conspirators in

2004 and 2005, the location of the on-load sites in Canada, the timing and methods used in

Canada to prepare the helicopters and their loads for smuggling trips, the financial

arrangements per trip, the source of cash and of false documents, the use of and nicknames

use on the Blackberry devices among the co-conspirators, the relationship of the off-loaders

and the co-conspirators members in Canada, and the events surrounding his exit from the

conspiracy in June 2005.

It is likely that several items of evidence will be shown and offered, including

videotaped clips, during Mr. Whelpley’s testimony. As such, his substance of his testimony

simply is not conducive to being conducted in other format other than in person

Therefore, the government renews its motion for a deposition of Mr. Whelpley in

Canada. The facts and circumstances surrounding the order, and the order itself, are

Govt. Renewed Motion for Witness Deposition

United States v. Rosenau

CR06-157MJP - 4

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 55 Filed 10/31/11 Page 4 of 6
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compelling reasons for the Court to grant a deposition of this witness. Further, the

government moves this Court for an order assessing the costs associated with the deposition

to be paid by the defendant. These costs will only be incurred as a result of the defendant’s

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 government believes the date, time and place of the deposition may be determined

once the deposition is authorized.

DATED this 31st day of October, 2011.

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

Govt. Renewed Motion for Witness Deposition

United States v. Rosenau

CR06-157MJP - 5

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 55 Filed 10/31/11 Page 5 of 6
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CERTIFICATE OF SERVICE

I hereby certify that on 10/31/11 I electronically filed the foregoing with the Clerk of the

Court using the CM/ECF system which will send notification of such filing to the attorney(s)

of record for the defendant(s).

s/Tove Rogers

TOVE ROGERS

Legal Assistant

United States Attorney’s Office

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

Phone: (206) 553-4214

FAX: (206) 553-0755

E-mail: Tove.Rogers@usdoj.gov

Govt. Renewed Motion for Witness Deposition

United States v. Rosenau

CR06-157MJP - 6

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 55 Filed 10/31/11 Page 6 of 6