OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ ROSENAU- 1

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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 Chief Judge 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

DEFENDANT’S OBJECTION RE: 

ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

The DEFENDANT, by and through his counsel of record, Craig Platt, hereby files this

Objection Re: Prior Trial Testimony of Dustin Haugen. 

BACKGROUND

On June 5, 2012 the government filed its Second Supplemental Trial Brief. Therein the 

government contends that Mr. Haugen is unavailable for purposes of FRE 804. Moreover, the 

government claims that Mr. Rosenau’s confrontational rights are secure. The Defense objects. 

I. MR. HAUGEN IS NOT UNAVAILABLE UNDER FRE 804 OR FOR PURPOSES 

OF THE SIXTH AMENDMENT

FRE 804 provides the following: 

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a 

witness if the declarant...

(2) is absent from the trial or hearing and the statement’s proponent has not been able, 

Case 2:06-cr-00157-MJP Document 172-1 Filed 07/10/12 Page 1 of 10
OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ ROSENAU- 2

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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by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 

804(b)(1)...

(b) The Exceptions. The following are not excluded by the rule against hearsay if the 

declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A)Was given as a witness at a trial....

Fed. R. Evid. 804 (emphasis added). The reasonable means must be “genuine and bona fide.” 

United States v. Yida, 498 F.3d 945, 952 (9th Cir. 2007) (citing Gov't of the Virgin Is. v. Aquino,

378 F.2d 540, 552 (3d Cir.1967); United States v. Lynch, 499 F.2d 1011, 1023-24 

(D.C.Cir.1974); Phillips v. Wyrick, 558 F.2d 489, 494 (8th Cir.1977) (a good faith effort must be 

made as a component of the Sixth Amendment right to confrontation)). Prosecutors must not 

only act in good faith but also operate in a competent manner; a prosecutor cannot claim that a 

witness is unavailable because the prosecutor has acted in an “empty-head pure-heart” way. 

Yida, 498 F.3d at 952. The Ninth Circuit has further recognized that the “Supreme Court has 

never extended the concept of unavailability to the point where the government seeks to extend 

it...to find a witness unavailable when the government itself shares some of the responsibility for 

its inability to produce the witness at trial.” Id. at 956. Moreover, “[t]he constitutional 

requirement that a witness be unavailable before his prior testimony is admissible stands on 

separate footing that is independent of and in addition to the requirement of a prior opportunity 

for cross-examination.” United States v. Matus-Zayas, 655 F.3d 1092, 1101 (9th Cir. 2011)

(quoting Yida, 498 F.3d at 950). The government typically should bear the burden of proving the 

material witness’ “unavailability” as predicate to the admission of the material witness’ prior 

testimony. See Matus-Zayas, 655 F.3d at 1101. 

“...[I]mplicit ... in the duty to use reasonable means to procure the presence of an absent 

witness is the duty to use reasonable means to prevent a present witness from becoming 

absent....” Id. at 955 (emphasis added) (quoting United States v. Mann, 590 F.2d 361, 368 (1st 

Cir. 1978)). “The ultimate question is whether the witness is unavailable despite good-faith 

efforts undertaken prior to trial to locate and present that witness.” Yida, 498 F.3d at 956 

(emphasis theirs) (quoting Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531, 2543 (1980)). 

“Efforts undertaken prior to trial” include the government’s actions during the time between the 

Case 2:06-cr-00157-MJP Document 172-1 Filed 07/10/12 Page 2 of 10
OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ ROSENAU- 3

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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declaration of a mistrial and the commencement of a retrial. Yida, 498 F.3d at 956. This is 

particularly true “where...the proponent of the witness’s statement is in control of both the 

witness...and its own decision to re-try the case.” Id. Ultimately, “[t]he defendant should not 

suffer the injury from the government’s choice.” Id. at 955 (citing Mann, 590 F.2d at 368). 

In United States v. Yida, the defendant and a co-conspirators allegedly participated in an

ecstasy smuggling operation. The co-conspirator pled guilty and served his sentence. 

Thereafter, the co-conspirator remained in custody due to a material witness warrant. Yida, 498 

F.3d at 947. The co-conspirator’s cooperation and testimony at the defendant’s trial was a 

condition of his plea agreement. Id. at 958. 

At the defendant’s trial, the co-conspirator testified that he conspired with the defendant 

to import ecstasy into the United States on multiple occasions. Id. The government claimed that 

the co-conspirator was a critical witness because he corroborated other witness’ testimony, 

presented substantial first-hand information about the defendant’s role in the conspiracy that no 

other witnesses could provide, and testified about the origins of the conspiracy and described in

detail how smuggling operations were conducted. Id. The co-conspirator was “thoroughly 

cross-examined at trial” by defense counsel. Id. Thereafter the jury was unable to reach a 

verdict and the district court declared a mistrial. Id. Subsequently, the government permitted the 

co-conspirator to be deported after it received assurances from the co-conspirator and his 

attorney that the co-conspirator would return to testify. Id. Moreover, the government also 

agreed to pay for the co-conspirator’s airfare, hotel, food, and incidental expenses if called to 

testify at the retrial. Id. Following this the co-conspirator was deported back to his own country 

based on his wishes. However, the government did not notify the district court or defense 

counsel about the co-conspirator’s release and deportation. Id. at 948. Thereafter the coconspirator refused to return to the United States to testify at the defendant’s trial. This refusal 

was despite the AUSA’s efforts which included an offer to pay all expenses related to the trip 

and an additional offer to provide medical care. Id. at 948-949. 

Thereafter the government filed a motion in limine seeking to admit the co-conspirator’s 

testimony from the defendant’s first trial pursuant to FRE 804(b)(1). Id. at 949. The 

government argued that the co-conspirator was unavailable under 804(a)(5) and 804(a)(4). Id. 

Case 2:06-cr-00157-MJP Document 172-1 Filed 07/10/12 Page 3 of 10
OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ ROSENAU- 4

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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Thereafter, the district court, “in a well-reasoned memorandum and order, denied the 

government’s motion in limine.” Id. The district court reasoned that the dispositive issue “is not 

whether the Government’s efforts to convince a since deported witness to return to testify were 

reasonable” but instead “whether the Government’s decision to permit [the co-conspirator] to be 

deported in the first place, while in the custody of the Government, was a ‘reasonable means’ to 

‘procure the declarant’s testimony.’” Id. Ultimately, regardless of the fact that the government 

acted in good faith when it allowed the co-conspirator to be deported, the court concluded that 

the government did not act reasonably. Id. Therefore, the district court held that the coconspirator’s testimony could not be admitted under either FRE 804(a)(4) or 804(a)(5). The 

government appealed. 

On appeal the Ninth Circuit affirmed the district court and held that the government 

failed to show that the co-conspirator was “unavailable” under FRE 804(a). The Ninth Circuit 

reasoned that the “appropriate time frame should not be limited to the government’s efforts to 

procure [the co-conspirator’s testimony] after it let him be deported, but should instead include 

an assessment of the government’s affirmative conduct which allowed [the co-conspirator] to be 

deported...in the first instance....” Id at 955-956 (emphasis theirs). The Ninth Circuit further 

reasoned that the government could have confiscated the co-conspirator’s passport, limited his

travel, and could have required him to remain in the United States until he testified at retrial. Id. 

at 959. Additionally, the court also reasoned that the government failed to exercise another 

option—the taking of a video recorded deposition. Id. The Ninth Circuit explained that a video 

recorded deposition would have likely been deemed reasonable for purposes of FRE 804(a)

because the jury would be able to observe the co-conspirator’s demeanor and avoid the 

possibility of the government using the transcript. Id. The court further found that reliance on 

the co-conspirator’s cooperation before and during the first trial was “misplaced and unavailing.” 

Id. at 958. 

In Yida, the Ninth Circuit expressly adopted the First Circuit’s approach articulated in 

United States v. Mann, for assessing the actions of the government “both before and after” a 

material witness is released and whether such actions complied with the reasonableness

requirement of FRE 804(a)(5). Id. at 957. The Ninth Circuit determined that Mann was 

“strikingly similar” to the facts in Yida. Id. at 955. In Mann, the key witness against the 

Case 2:06-cr-00157-MJP Document 172-1 Filed 07/10/12 Page 4 of 10
OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ ROSENAU- 5

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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defendant was an Australian citizen who was arrested while carrying cocaine with the defendant. 

Id. The defendant was charged with importing and possessing with intent to distribute. Id. 

Charges against the witness were dismissed and the prosecution took the witness’s deposition. 

Id. Thereafter, the prosecution gave the witness her airplane tickets and her passport. Id. The 

witness left the county for Australia and refused to return despite the issuance of a subpoena and 

the State Department’s efforts to secure her return. Id.

The trial court admitted the witness’s deposition after the government assured the court 

that it offered to pay for the witness’s travel expenses. Id. On appeal, the First Circuit held that 

the government “failed to demonstrate that the witness was unavailable” after she refused to 

return to testify and set aside the defendant’s conviction. Id. The First Circuit reasoned that the 

inquiry into the government’s efforts to produce a witness need not be limited to the narrow time 

frame before the trail but after the witness left the United States. Id. The First Circuit further 

reasoned that “[i]mplicit...in the duty to use reasonable means to procure the presence of an 

absent witness is the duty to use reasonable means to prevent a present witness from becoming 

absent.” Id. The court went on to explain that where the government was able to retain the 

witness’s passport and plane tickets to prevent the witness’s departure “[t]he defendant should 

not suffer the injury from the government’s choice.” Id. 

Here, the government claims that a witness is unavailable if the prosecutorial authorities 

have made a good-faith effort to obtain his presence at trial. (Dkt. 167 at 3). This clearly is not 

the proper standard in light of that provided above. The fact that the government has offered to 

pay for travel expenses and/or has made a few phone calls is insufficient. As in Yida and Mann, 

Dustin Haugen was in custody before trial and the terms of his plea agreement required him to 

cooperate and testify against Mr. Rosenau. 1 However, later the government simply permitted 

Dustin Haugen to return to Canada. (Dkt. 167 at 4). 2 The trial was not over. The government 

knew that Mr. Haugen was a citizen and resident of a foreign county beyond the subpoena 

 1 The government previously claimed at trial that Mr. Haugen’s testimony was completely voluntary and that he 

could not make it to the United States for Mr. Rosenau’s trial on particular days due to family issues. 

2 The government cannot claim due process concerns. See Yida, at 958. 

Case 2:06-cr-00157-MJP Document 172-1 Filed 07/10/12 Page 5 of 10
OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ ROSENAU- 6

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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powers of the court. (Dkt. 167 at 5). Moreover, like in the cases above, the government could 

have taken action, but simply chose not to. As in Yida and Mann, the government permitted Mr. 

Haugen’s return to Canada. The government did this despite uncertainties concerning the 

outcome of trial. 

Additionally, the government never sought to obtain a rule 15 deposition since the time a 

mistrial was declared. Furthermore, the government has taken no action to secure live testimony 

via video broadcast. The government did not issue a material witness warrant to defense 

counsel’s knowledge. The government took no steps to limit Mr. Haugen’s travel. The 

government had the ability to secure Mr. Haugen’s presence, but chose not to. The government 

only now, about a week before trial, has brought this issue to the court and defense counsel’s 

attention. 3 This failure was not “genuine and bona-fide.” Moreover, any government’s reliance 

on Mr. Haugen’s cooperation was “misplaced and unavailing.” This is true especially in light of 

the fact that Mr. Haugen has been convicted of crimes indicative of untruthful character (e.g. 

extortion). The government has opted for this course of action as opposed taking realistic actions 

to secure Mr. Haugen’s presence, whether live, or via video broadcast. 4 Admission of Mr. 

Haugen’s testimony via transcript will substantially prejudice Mr. Rosenau and have a 

devastating impact his right to a fair trial. See infra. Admission of declarations from mere 

transcripts is not in the interests of justice and will diminish the search for truth. Mr. Rosenau 

must “not suffer the injury from the government’s choice.” Dustin Haugen is not “unavailable” 

because the government chose to not act reasonably as is required pursuant to FRE 804(a) and 

Ninth Circuit precedent.

 

 3 This further shows that the government’s course of action was a bad-faith tactic. Had defense counsel known that 

Dustin Haugen was not going to appear, this issue could have been addressed previously and alternative 

arrangements could have been explored in order to permit this evidence to be presented before the eyes of the jury. 

This problem was never timely communicated to defense counsel or the court in an effort to have this issue 

addressed in a good-faith manner. 4 The government claims that live broadcast testimony is sufficient for constitutional purposes and has been a 

proponent of using such means to secure witness testimony. However, here, the government has opted to not seek 

such avenues to secure Dustin Haugen’s testimony before the eyes of the jury. Defense counsel believes that Dustin 

Haugen’s posture, demeanor, and evasive answers in the previous trial were critical for the jury’s evaluation of his 

testimony. The government now seeks to avoid such evidence from being presented before the eyes of the jury. 

Case 2:06-cr-00157-MJP Document 172-1 Filed 07/10/12 Page 6 of 10
OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ 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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II. DUSTIN HAUGEN’S PRIOR TESTIMONY IS INADMISSIBLE PURSUANT TO 

THE SIXTH AMENDMENT

The Sixth Amendment of the U.S. Constitution guarantees an accused the right “to be 

confronted with the witnesses against him.” U.S. CONST. amend. VI. It is well-established that 

“[t]he Sixth Amendment of the U.S. Constitution guarantees an accused the right to be 

confronted with the witnesses against him.” United States v. Matus-Zayas, 655 F.3d 1092, 1101 

(9th Cir. 2011) (citing United States v. Norwood, 603 F.3d 1063, 1068 (9th Cir.2010), as 

amended (citation and internal quotation marks omitted), cert. denied, ––– U.S. ––––, 131 S.Ct. 

225, 178 L.Ed.2d 250 (2010)). Indeed, the Confrontation Clause “guarantees the defendant a 

face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 

1012, 1026, 108 S.Ct. 2798, 2801 (1988). 

The Confrontation Clause also includes the right to effective cross examination. Davis v. 

Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110 (1974); United States v. Larson, 495 F.3d 1094, 

1102 (9th Cir. 2007). The Defense maintains that effective cross examination requires the 

witness’s presence before the jury. Indeed, the Supreme Court has “recognized that the exposure 

of a witness’ motivation in testifying is a proper and important function of the constitutionally 

protected right of cross-examination. Davis v. Alaska, 415 U.S. 308, 317, 94 S.Ct. 1105,

1110(1974) (citing Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 

(1959)). The Ninth Circuit has clearly recognized that:

Underlying both the constitutional principles and the rules of evidence is a preference for 

live testimony. Live testimony gives the jury (or other trier of fact) the opportunity to 

observe the demeanor of the witness while testifying. William Blackstone long ago 

recognized this virtue of the right to confrontation, stressing that through live testimony, 

“and this [procedure] only, the persons who are to decide upon the evidence have an 

opportunity of observing the quality, age, education, understanding, behavior, and 

inclinations of the witness.” Transcripts of a witness's prior testimony, even when subject 

to prior cross-examination, do not offer any such advantage, because “all persons must 

appear alike, when their [testimony] is reduced to writing.” 

Yida, 498 F.3d at 950 (internal citations omitted). Indeed, “...it goes without saying that a jury’s 

ability to measure a witness’s credibility, which directly implicates the Confrontation Clause 

rights of the accused, is significantly enhanced if the jury can actually see the witness testifying, 

Case 2:06-cr-00157-MJP Document 172-1 Filed 07/10/12 Page 7 of 10
OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ ROSENAU- 8

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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as opposed to merely listening to testimony read cold by a neutral individual.” Id. at 960. The 

Supreme Court has further declared: 

The Clause’s central purpose, to ensure the reliability of the evidence against a defendant 

by subjecting it to rigorous testing in an adversary proceeding before the trier of fact, is 

served by the combined effects of the elements of confrontation: physical presence, oath, 

cross-examination, and observation of demeanor by the trier of fact.

Maryland v. Craig, 497 U.S. 836, 837, 110 S. Ct. 3157, 3159 (1990) (emphasis added). 

Ultimately, “[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 [a witness’] testimony.” 

United States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007) (quoting Davis, 415 U.S. at 318, 94 

S.Ct. at 1111). The Ninth Circuit and the Supreme Court have “emphasized the policy favoring 

expansive witness cross-examination in criminal trials.” Larson, 495 F.3d at 1102 (quoting 

United States v. Lo, 231 F.3d 471, 482 (9th Cir. 2000)). Effective cross examination 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, 415 U.S. at 317, 

94 S.Ct. at 1110).

For the above reasons the Defense objects to the admissibility and/or reading of mere

transcripts. The Defense maintains that live-testimony, in court, before the jury is 

constitutionally required and in the interests of justice and fairness. Moreover, as mentioned 

above the government has made no efforts to seek a deposition of Mr. Haugen nor has it sought 

to secure testimony via live broadcast. 5 

III. THE RULE OF COMPLETENESS APPLIES IF THE COURT ADMITS MR. 

HAUGEN’S PRIOR TESTIMONY

Although Mr. Haugen’s prior testimony is not admissible under these facts, if the court 

admits such testimony then it is subject the rule of completeness as set forth in FRE 106. 

 5 Generally the Ninth Circuit reviews “claims of a violation of the Confrontation Clause de novo.” United States v. 

Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir. 2011) (citing United States v. Nguyen, 565 F.3d 668, 673 (9th 

Cir.2009)). 

Case 2:06-cr-00157-MJP Document 172-1 Filed 07/10/12 Page 8 of 10
OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ ROSENAU- 9

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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Defense counsel hereby gives notice that it reserves the right to require the proponent of Mr. 

Haugen’s testimony to read any other part or any other writing or recorded statement which in 

fairness must be considered contemporaneously with it. Fed. R. Evid. 106.

FURTHER, the Defense hereby renews its objection to the admission of any and all live 

broadcast testimony of Kip Whelpley and preserves any and all issues concerning such testimony 

or the issues above for appeal. 

 

DATED this 10th day of July, 2012 

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

Case 2:06-cr-00157-MJP Document 172-1 Filed 07/10/12 Page 9 of 10
OBJECTION TO ADMISSIBILITY OF PRIOR TRIAL 

TESTIMONY OF DUSTIN HAUGEN

/ ROSENAU- 10

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 7/10/2012, 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 Government. 

s/Connor Tasoff_______________

Connor Tasoff

Legal Secretary

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 172-1 Filed 07/10/12 Page 10 of 10