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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

PLEADING FOR STATUS

CONFERENCE OF

NOVEMBER 9, 2011

COMES NOW the United States of America, by and through Jenny A. Durkan,

United States Attorney for the Western District of Washington, and Marc A. Perez and Susan

M. Roe, Assistant United States Attorneys for said District, and files this short pleading to

assist the Court at the Status Conference on November 9, 2011. This is intended to give the

Court information regarding the unavailability of essential government witnesses, first

brought to the Court’s attention in the government’s Emergency Motion for Trial

Continuance. Dkt # 54.

RCMP: Defendant Rosenau’s new civil claim, Rosenau v. Regina, was dismissed at its

initial hearing on November 2, 2011. RCMP Members were again able to attend trial, testify,

and provide evidence at that time per their counsel. RCMP did release reports and additional

photographs to the United States in anticipation of the trial. On November 4, 2011,

Defendant Rosenau filed a Notice appealing the November 2, 2011 decision. In response,

RCMP Counsel has reissued his advice that the Members may only give testimony or provide

PLEADING FOR STATUS CONFERENCE

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 64 Filed 11/08/11 Page 1 of 4
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evidence pursuant to a formal Mutual Legal Assistance Treaty. See Exhibit 1. Notice of

Appeal; Declaration of Les Rose. The government has drafted such a request although it has

not yet been approved.

KIP WHELPLEY: The government was able to acquire copies of the court documents

in Rosenau v. Whelpley through the Canadian Ministry of Justice The Order previously was

provided to the Court and the two newly acquired documents are exhibits to the

Government’s Response to Defendant’s Motion for Revocation of Detention Order, also filed

today. Those exhibits are incorporated by this reference. Canadian Government counsel

have advised this office that the Order appears to be a valid.

It may be that, as a default order, it is readily set aside however that must be done

through the British Columbia Court. Today Mr. Whelpley and his local public defender,

Bruce Erickson, have been forwarded two possible legal aid groups which may be of help. In

addition, the Government is exploring the possibility of the United States, Department of

Justice, undertaking or underwriting the representation of Whelpley, pursuant to 28 U.S.C

§ 517 and 28 CFR 50.15 and 50.16. This request is underway. Further the government’s

MLAT request includes a request to take the testimony of Mr. Whelpley.

GLEN STEWART: Mr. Stewart supposedly provided an affidavit in support of

Defendant Rosenau in Rosenau v. Regina. The government has not yet acquired a copy of

his affidavit or of Defendant Rosenau’s. Under Canadian law, exhibits are the property of

the Court and not given to the public absent the Court’s permission. Permission is being

applied for, however, has not yet been granted.

RCMP Members were counseled to stop work on this case and therefore have not

contacted Mr. Stewart since late October. Therefore, the government does not know the

status of Mr. Stewart regarding his availability.

CONCLUSION

The government renews its motion for a continuance of the trial in order to pursue an

MLAT and obtain the necessary and essential testimony of these witnesses. The time

necessary for obtaining foreign evidence pursuant to a formal request or an MLAT is

PLEADING FOR STATUS CONFERENCE

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 64 Filed 11/08/11 Page 2 of 4
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excludable time pursuant to Title 18 U.S.C.§ 3161. The unavailability of an essential witness

is a separate basis to continue a trial; that time also is excludable.

Defendant Rosenau’s legal maneuvers, and his actions alone, have caused this delay.

By abandoning his lawsuits Rosenau could stand trial within the current speedy trial time

limits. By continuing with his vexatious Canadian civil suits, he has caused a significant

delay in the trial.

DATED this 8th day of November, 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

PLEADING FOR STATUS CONFERENCE

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 64 Filed 11/08/11 Page 3 of 4
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CERTIFICATE OF SERVICE

I hereby certify that on 11/8/11 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/Karen Wolgamuth

KAREN WOLGAMUTH

Paralegal

United States Attorney’s Office

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

Phone: (206) 553-5050

FAX: (206) 553-4440

E-mail: karen.wolgamuth@usdoj.gov

PLEADING FOR STATUS CONFERENCE

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 64 Filed 11/08/11 Page 4 of 4