DEFENDANT’S BRIEF IN OPPOSITION 

 TO GOVERNMENT MOTION FOR 

 PLATT & BUESCHER 

 Attorneys at Law 

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 The Honorable Marsha J. Pechman 

 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE

UNITED STATES OF AMERICA, 

 Plaintiff, 

 v. 

HENRY C. ROSENAU 

 Defendant. 

NO. CR06-157MJP 

BRIEF IN OPPOSITION TO 

GOVERNMENT’S MOTION 

FOR AUTHORIZATION OF 

WITNESS DEPOSITION 

Noted: August 19, 2011 

ORAL ARGUMENT REQUESTED 

 

The DEFENDANT, by and though his counsel of record, CRAIG PLATT, hereby files 

this brief in opposition to the Government’s motion for authorization of witness deposition. 

I. BACKGROUND 

The Government filed a motion for authorization of witness deposition on August 11, 

2011. The Government cites Federal Rule of Criminal Procedure 15 and United States v. Omene

in support of the position that the District Court should grant leave to take the deposition of one 

witness, Kip John Whelpley (hereinafter “Whelpley”), in Canada. Pl. Mot. Dep. 2-3. The 

Defense objects to the Government’s motion. 

WITNESS DEPOSITION/ ROSENAU- 1 

CR06-157MJP

 P.O. Box 727 

 Coupeville, WA 98239-0727 

 Phone: (360) 678-6777 

 Fax: (360) 678-0323

Case 2:06-cr-00157-MJP Document 28 Filed 08/18/11 Page 1 of 7
DEFENDANT’S BRIEF IN OPPOSITION 

 TO GOVERNMENT MOTION FOR 

 PLATT & BUESCHER 

 Attorneys at Law 

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II. INTRODUCTION 

Federal Rule of Criminal Procedure 15 requires a showing of “exceptional 

circumstances” before the court may grant a motion for authorization of witness deposition. The 

moving party bears the burden of showing the existence of exceptional circumstances. The 

Government has failed to show the existence of exceptional circumstances that justify a 

deposition of Whelpley. Moreover, countervailing factors and compelling Constitutional 

concerns exist which make the deposition unjust to the nonmoving party. The District Court 

must deny the Government’s motion for authorization of witness deposition. 

III. LAW AND ARGUMENT 

a. No Exceptional Circumstances 

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In criminal cases depositions are proper only in the very limited circumstances prescribed 

by Federal Rule of Criminal Procedure 15. United States v. Rich, 580 F.2d 929, 934 (9th Cir. 

1978)(emphasis added). The party seeking a deposition bears the burden of demonstrating that 

“exceptional circumstances” necessitate the preservation of testimony through a deposition. 

United States v. Kelley, 36 F.2d 1118 (D.C. Cir. 1994)(citing United States v. Ismaili, 828 F.2d 

153, 159 (3d Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1110 (1988)); accord United States 

v. Drogoul, 1 F.3d 1546 (11th Cir. 1993). 

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. Fed. R. Crim. P. 15(a)(1)(emphasis added). Whether to grant or deny a 

motion to depose a proposed witness in a criminal matter is discretionary. United States v. 

Omene, 143 F.3d 1167, 1170 (9th Cir. 1998)(citing Furlow v. United States, 644 F.2d 764, 767 

WITNESS DEPOSITION/ ROSENAU- 2 

CR06-157MJP

 P.O. Box 727 

 Coupeville, WA 98239-0727 

 Phone: (360) 678-6777 

 Fax: (360) 678-0323

Case 2:06-cr-00157-MJP Document 28 Filed 08/18/11 Page 2 of 7
DEFENDANT’S BRIEF IN OPPOSITION 

 TO GOVERNMENT MOTION FOR 

 PLATT & BUESCHER 

 Attorneys at Law 

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(9th Cir.1981). The District Court should consider the particular circumstances of each case to 

determine whether the exceptional circumstances requirement has been satisfied. Omene, 143 

F.3d at 1170 (citing United States v. Farfan-Carreon, 935 F.2d 678, 679 (5th Cir.1991)). 

The exceptional circumstances requirement necessitates more than a mere claim that a 

potential witness lives in another jurisdiction and claims no interest in returning. See United 

States v. Sines, 761 F.2d 1434 (9th Cir. 1985)(exceptional circumstances where deponent would 

likely be incarcerated in Thailand for a significant number of years and would not be permitted 

to leave that country to testify against the defendant); see also Furlow v. United States, 644 F.2d 

764 (9th Cir. 1981)(District Court for the Eastern District of Washington finding exceptional 

circumstances where deponent was in Missouri, under VA disability, and ill); see, e.g., United 

States v. Shmyr, No. 91-10138, 1992 WL 98539, at *1 (9th Cir. May 8, 1992)(District Court 

granted Government’s motion to depose witness suffering from cancer and dying); compare

United States v. Puchi, 441 F.2d 697 (9th Cir. 1971)(denial of motion to take deposition of 

witness was not abuse of discretion where judge granted witness safe passage from Mexico to 

United States and back for purpose of testifying and witness’s refusal to attend trial was due to 

his fear of prosecution if he returned to United States). 

The Government claims Whelpley is living in Canada and has no legal standing in, or 

interest in returning to the United States. Pl. Mot. Dep. 3. The Government states no particular 

circumstance of Whelpley that supports a need to preserve his testimony. The Government has 

failed to meet its burden and has shown no exceptional circumstances justifying a deposition 

pursuant to Federal Rule of Criminal Procedure 15. The Government’s motion for authorization 

of witness deposition must be denied. 

WITNESS DEPOSITION/ ROSENAU- 3 

CR06-157MJP

 P.O. Box 727 

 Coupeville, WA 98239-0727 

 Phone: (360) 678-6777 

 Fax: (360) 678-0323

Case 2:06-cr-00157-MJP Document 28 Filed 08/18/11 Page 3 of 7
DEFENDANT’S BRIEF IN OPPOSITION 

 TO GOVERNMENT MOTION FOR 

 PLATT & BUESCHER 

 Attorneys at Law 

1 b. Countervailing Factors 

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The Eleventh Circuit adopted a test used to determine whether a court should grant a 

Rule 15 motion. The test considers three factors: (1) the witness is likely to be unavailable at 

trial; (2) injustice will otherwise result without the material testimony that the deposition could 

provide; and (3) countervailing factors would make the deposition unjust to the nonmoving 

party. United States v. Ramos, 45 F.3d 1519, 1522-23 (11th Cir. 1995). 

“In all criminal prosecutions, the accused shall enjoy the right to...be confronted with the 

witnesses against him.” U.S. Const. amend. VI. The Supreme Court and Ninth Circuit have 

“emphasized the policy favoring expansive witness cross-examination in criminal trials.” 

United States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007)(quoting United States v. Lo, 231 

F.3d 471, 482 (9th Cir. 2000))(emphasis added). The Confrontation Clause includes the right of 

effective cross-examination. Larson, 495 F.3d at 1102(emphasis added). Effective crossexamination is critical to a fair trial because “[c]ross-examination is the principal means by 

which the believability of a witness and the truth of his testimony are tested.” Id. at 1102 

(quoting Davis v. Alaska, 415 U.S. 308, 317, 94 S.Ct. 1105, 1110 (1974)). Full disclosure of all 

relevant information concerning adverse witnesses’ past record and activities through crossexamination and otherwise is indisputably in the interests of justice. Lo, 231 F.3d at 482 (citing 

United States v. Brooke, 4 F.3d 1480, 1489 (9th Cir.1993)). “[J]urors [are] entitled to have the 

benefit of the defense theory before them so that they [can] make an informed judgment as to the 

weight to place on [the Government witness’] testimony.” Larson, 495 F.3d at 1102 (quoting 

Davis, 415 U.S. at 318, 94 S.Ct. at 1111). The use of depositions in criminal cases is not favored

WITNESS DEPOSITION/ ROSENAU- 4 

CR06-157MJP

 P.O. Box 727 

 Coupeville, WA 98239-0727 

 Phone: (360) 678-6777 

 Fax: (360) 678-0323

Case 2:06-cr-00157-MJP Document 28 Filed 08/18/11 Page 4 of 7
DEFENDANT’S BRIEF IN OPPOSITION 

 TO GOVERNMENT MOTION FOR 

 PLATT & BUESCHER 

 Attorneys at Law 

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because the factfinder does not have an opportunity to observe the witness’ demeanor. United 

States v. Milian-Rodriguez, 828 F.2d 679, 686 (11th Cir. 1987)(emphasis added). 

 Here, countervailing factors and profound Constitutional concerns exist that justify the 

denial of the Government’s motion for authorization of deposition. The Government’s case 

depends heavily on the testimony of Whelpley. When the Government first applied for 

Extradition of Mr. Rosenau, they informed the Canadian courts that the testimony of two 

brothers (the Mirabacks) would prove that Mr. Rosenau was part of a conspiracy to import and 

distribute marijuana. Thereafter, the Government withdrew from this position. The Government 

is now heavily relying on Whelpley as the key witness against Mr. Rosenau. 

Whelpley’s presence in Canada renders him beyond sanctions for perjury. Authorization 

of the deposition will diminish the Government’s incentive to procure Whelpley’s attendance at 

trial. Whelpley’s attendance at trial is critical and indisputably in the interests of justice—the 

jury must have an opportunity to weigh Whelpley’s credibility, observe his demeanor, and make 

an informed judgment. The Government must not be afforded a position to present its case 

based primarily on a witness the jury cannot observe. See Crawford v. Washington, 541 U.S. 36, 

44-45, 124 S.Ct. 1354, 1360 (2004)(noting the abusive trial of Sir Walter Raleigh where out of 

court allegations of an alleged accomplice were read to the jury and led to Raleigh’s death 

sentence). 

The Government’s motion represents an effort to remove Whelpley from the eyes of the 

jury. The Constitution and policy favoring expansive witness cross-examination at trial must be 

favored. Profound countervailing factors exist which make the deposition of Whelpley unjust. 

WITNESS DEPOSITION/ ROSENAU- 5 

CR06-157MJP

 P.O. Box 727 

 Coupeville, WA 98239-0727 

 Phone: (360) 678-6777 

 Fax: (360) 678-0323

Case 2:06-cr-00157-MJP Document 28 Filed 08/18/11 Page 5 of 7
DEFENDANT’S BRIEF IN OPPOSITION 

 TO GOVERNMENT MOTION FOR 

 PLATT & BUESCHER 

 Attorneys at Law 

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The District Court has a constitutional justification to deny the Government’s motion for 

authorization of witness deposition. 

IV. CONCLUSION 

The Government bears the burden of showing that exceptional circumstances necessitate 

preservation of testimony through deposition. The Government has failed to meet this burden. 

No exceptional circumstances exist to justify the deposition of Whelpley pursuant to Federal 

Rule of Criminal Procedure 15. Countervailing factors exist that render a deposition unjust. The 

policy favoring expansive cross-examination at trial and the Constitution support a denial of the 

Government’s motion. 

DATED this 18th day of August, 2011. 

Respectfully submitted, 

 PLATT & BUESCHER 

 s/Craig Platt_______________ 

 Craig Platt 

 Attorney for Defendant 

 WSBA #12396 

 P.O. Box 727 

 Coupeville, Washington 98239-0727 

 Telephone: (360) 678-6777 

 Fax: (360) 678-0323 

 Email: craig@plattbuescher.com 

WITNESS DEPOSITION/ ROSENAU- 6 

CR06-157MJP

 P.O. Box 727 

 Coupeville, WA 98239-0727 

 Phone: (360) 678-6777 

 Fax: (360) 678-0323

Case 2:06-cr-00157-MJP Document 28 Filed 08/18/11 Page 6 of 7
DEFENDANT’S BRIEF IN OPPOSITION 

 TO GOVERNMENT MOTION FOR 

WITNESS DEPOSITION/ ROSENAU- 7 

CR06-157MJP

 PLATT & BUESCHER 

 Attorneys at Law 

 P.O. Box 727 

 Coupeville, WA 98239-0727 

 Phone: (360) 678-6777 

 Fax: (360) 678-0323

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CERTIFICATE OF SERVICE 

 I hereby certify that on 8/18/2011, 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). I hereby certify that I have served the attorney(s) of record for the 

defendant(s) that are non CM/ECF participants via telephax. 

 s/Craig Platt_______________ 

 Craig Platt 

 Attorney for Defendant 

 WSBA #12396 

 P.O. Box 727 

 Coupeville, Washington 98239-0727 

 Telephone: (360) 678-6777 

 Fax: (360) 678-0323 

 Email: craig@plattbuescher.com 

Case 2:06-cr-00157-MJP Document 28 Filed 08/18/11 Page 7 of 7