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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 REPLY TO

DEFENDANT’S OPPOSITION TO

RENOTED MOTION FOR

AUTHORIZATION TO DEPOSE

FOREIGN WITNESSES

Noted: March 16, 2012

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, and files this Reply to the Defendant’s

Opposition to the Renoted Motion for Authorization to Depose Foreign Witnesses.

A defendant’s rights under the Confrontation Clause are powerful but not absolute.

“A defendant’s right to confront accusatory witnesses may be satisfied absent a physical,

face-to-face confrontation at trial only where denial of such confrontation is necessary to

further an important public policy and only where the reliability of the testimony is

otherwise assured.” Maryland v. Craig, 497 U.S. 836, 850 (1990). The general rule that

a defendant may attend the deposition is not absolute. See, United States v. Ali, 528 F.3d

210, 238-41 (4th Cir. 2008); United States v. Medjuck, 156 F. 3d 916 (9th Cir. 1998). In

Medjuck, the Court approved of the deposition of a Canadian witness, when the

GOVERNMENT’S REPLY TO OPPOSITION TO

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 85 Filed 03/15/12 Page 1 of 5
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defendant was in custody in the United States and present at the deposition only

electronically. The Medjuck Court held that the “Confrontation Clause preference for

face-to-face confrontation may be avoided by resort to telephonic participation,” after the

government attempted unsuccessfully to secure the defendant’s actual, physical presence

at the deposition, citing Christian v. Rhode, 41 F. 3d 461 (9th Cir. 1994). Addressing the

use of such a deposition at trial, the Medjuck Court, at 920, stated “[w]here the

government is unable to secure a witness’s presence at trial, Rule 15 is not violated by the

admission of videotaped testimony so long as the government makes diligent efforts to

secure the defendant’s physical presence at the deposition and, failing this, employs

procedures that are adequate to allow the defendant to take an active role in the deposition

proceedings”); United States v. McKeeve, 131 F.3d 1, 7-8 (1st Cir. 1997); United States v.

Gifford, 892 F.2d 263-265 (3d Cir. 1989); United States v. Kelly, 892 F.2d 255, 261

(3rd Cir. 1990); United States v. Salim, 855 F.2d 944 (2nd Cir. 1988).

Most recently and post-Crawford, this line of cases was followed in United States

v. Sapse, 2011 WL 1576898 (D. Nevada April 2011).

Appropriateness of Videoconferencing

In-custody defendant Rosenau is not able to attend depositions in Canada. The

Canadian government has declined to extend permission for Mr. Rosenau to attend the

proposed depositions in Canada. See, Exhibit 1, p. 1, ultimate paragraph. The

United States government attempted to secure Mr. Rosenau’s physical presence at the

depositions but, based on his prior actions, his pretrial release has been revoked and he

remains in custody in the United States. Even if Canada allowed Mr. Rosenau to attend

physically, there remains significant questions as to whether the United States Marshal

Service could retain custody of a prisoner in a foreign country.

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The government has requested information on this issue from the USMS which is

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consulting with its National Office in Washington, D.C. The government has not yet

received a response and ask the Court’s permission to file additional information, if

necessary.

GOVERNMENT’S REPLY TO OPPOSITION TO

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 85 Filed 03/15/12 Page 2 of 5
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Unavailability of Foreign Witnesses

It is appropriate for the Court to allow the deposition of Zachary Miraback as an

otherwise unavailable and uncooperative government witness. Mr. Miraback’s expected

testimony was central to the United States’ original Record of the Case for Extradition.

However, in April 2009, Mr. Miraback was detained by Calgary Police in an incident

involving unlawful firearms. See, Exhibit 2, Calgary Police Report. In May 2009,

forensic testing revealed his DNA on gloves, and DNA consistent with his DNA on a

balaclava, seized at the scene. See, Exhibit 3, Synopsis, p. 3-4.

In late 2009, ICE Special Agent Jesse Miller, together with Calgary Police, met

with Mr. Miraback to discuss Mr. Miraback’s ongoing obligation to cooperate.

Mr. Miraback refused to cooperate with either Canadian or U.S. law enforcement and the

United States was forced to file a Supplemental Record of the Case for Extradition of

Henry Rosenau, acknowledging Mr. Miraback’s abandonment of cooperation. See,

Exhibit 4, Affidavit of SA Miller and letter.

Since that time, Mr. Miraback has been identified as a suspect in an ongoing

assault investigation in Calgary, has violated his Court imposed terms, and remains

antagonistic to police. See, Exhibit 5, Email of Detective Ken Carriere and Calgary

Police Report. At this time, there is no basis for believing that Mr. Miraback is a

cooperative witness for the United States government or that he would voluntarily appear

before this Court.

This Court previously has received a copy of the Order in Rosenau v. Whelpley,

Quesnal Registry 14781, which prevents Mr. Whelpley “from leaving Canada for the

purposes of entering the United States.” Such prohibition renders him legally

unavailable.

STATUS OF MR. BOTTING

The government takes no position on whether Mr. Botting physically may attend

the deposition hearings in Canada and, in fact, the government forwarded the information

of Mr. Botting’s continued representation in post-extradition matters to Crown Counsel.

GOVERNMENT’S REPLY TO OPPOSITION TO

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 85 Filed 03/15/12 Page 3 of 5
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The government asks for clarification of his role during any deposition. That is, is he

allowed to act as a criminal defense attorney, e.g. cross-examining witnesses or making

objections, during the criminal proceedings.

CONCLUSION

The government requests the Court order the requested depositions as there exists

a clear legal basis for each and that the Court find that Mr. Rosenau’s attendance at the

depositions shall be by videoconference, in light of his in-custody status and the foreign

government’s refusal to admit him for the depositions.

DATED this 15th 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 REPLY TO OPPOSITION TO

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 85 Filed 03/15/12 Page 4 of 5
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CERTIFICATE OF SERVICE

I hereby certify that on March 15, 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 attorneys 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 REPLY TO OPPOSITION TO

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 85 Filed 03/15/12 Page 5 of 5