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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.

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NO. CR06-157MJP

GOVERNMENT’S MOTION FOR

AUTHORIZATION OF WITNESS

DEPOSITION

Noted: August 19, 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, Assistant United States

Attorney for said District, moves this Court for an order granting leave to take depositions of

essential witnesses in Canada.

I. Background

In 2004 through 2006, federal ICE agents conducted a vigorous and targeted

investigation of drug and money smuggling along the Canadian -United States border in the

Western United States. They found significant smuggling by air, primarily by the use of

helicopters. Several federal criminal cases arose from these investigations, including

United States v. Miraback, CR05-5704, United States v. Birgis Brooks, CR05-176,

United States v. Schouten & Fews, CR05-406, United States v. Whelpley, CR05-407,

United States v. Alexander Swanson, CR05-408, United States v. Timothy Smith, CR06-052,

United States v. David Mendoza, CR06-466, United States v. Renner et al, CR07-331,

GOVERNMENT 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 27 Filed 08/11/11 Page 1 of 5
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United States v. Clay Roueche et al, CR07-344, and cases from the Eastern District of

Washington, United States v. Joseph Curry and United States v. Dustin Haugen, as did this

case against Mr. Rosenau.

In 2006, Henry Rosenau was indicted in this district for conduct prior to and up

through September 21, 2005. A Canadian citizen, Mr. Rosenau resided in Canada at all

times during and after the charging period. A Superseding Indictment was returned on

September 17, 2008, charging the defendant with Conspiracy to Import more than 1,000

kilograms of Marijuana - Count 1, Conspiracy to Distribute more than 1,000 kilograms of

Marijuana - Count 2, and Possession with Intent to Distribute more than 100 kilograms of

Marijuana - Count 3.

Following the Superseding Indictment, the United States requested his extradition

through the appropriate diplomatic channels. Mr. Rosenau’s extradition was ordered on

December 15, 2009, but was stayed during the pendency of his appeal. On April 28, 2011,

the Government of Canada finally granted the extradition and surrendered Mr. Rosenau to

the United States.

Mr. Rosenau first appeared in this District on April 28, 2011, has been on pretrial

release to his British Columbia home since May 4, 2011, and trial is set for November 7,

2011.

Not surprisingly, some of the government’s witnesses are in Canada. None have been

detained as material witnesses. This motion is in regards to one of the Canadian witnesses.

II. Law Relevant to the Motion and Argument

The Court may authorize depositions of witnesses in Canada. Federal Rule of

Criminal Procedure 15 set forth the procedure for taking depositions of witnesses under

certain circumstances. Rule 15(a)(1) provides:

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. If the court orders the

deposition to be taken, it may also require the deponent to produce at the

deposition, any designated book, paper, document, record, recording, or data.

GOVERNMENT 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 27 Filed 08/11/11 Page 2 of 5
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And the deposition may be used as evidence at a trial in accordance with Federal

Rules of Evidence. See Rule 15(f).

Rule 15(b) sets out the Notice requirements a deposing party must give; subsection

(c)(2) provides that an out-of-custody defendant has the right to be present unless he

voluntarily absents himself. If the government tenders a defendant’s costs to attend and he

fails, he waives the right to appear and any objection to the use of the deposition. Subsection

(d) directs the government to pay reasonable travel and subsistence costs for the defendant

and his attorney. Subsection (e) addresses the manner of taking the deposition.

Whether the court grants the motion to depose witnesses in a criminal matter is

discretionary. United States v. Omene, 143 F. 3d 1167, 1170 (9th Cir. 1998). The court

noted:

Rule 15(a) does not require any conclusive showing of “unavailability” or

“material testimony” before a deposition can be taken in a criminal case. Rule

15(a) only requires that the trial court find that due to exceptional

circumstances it is in the interest of justice that the testimony of a prospective

witness be taken and preserved for possible use at trial. Omene, at 1170.

In the case at bar, the government moves for the deposition of a witness who was a

criminal cohort of the defendant during 2004 and 2005. This Canadian witness, Kip John

Whelpley, entered a guilty plea, was sentenced and completed his term of imprisonment

while Mr. Rosenau’s extradition appeal was pending. Upon release from federal custody,

Mr. Whelpley returned to Canada. He has no legal standing in, or interest in returning to, the

United States. Mr. Whelpley testified before a Federal Grand Jury before his deportation and

the parties know that his testimony is relevant and material to this case.

The undersigned has been in contact with Mr. Whelpley’s local attorney, Bruce

Erickson, who represents that Mr. Whelpley is willing and available to be deposed so long as

the deposition takes place in Canada.

The government moves for an Order directing the deposition of Mr. Whelpley in

Canada. The defendant is out of custody, living in Canada and should be able to attend

without difficulty. The government will absorb the reasonable travel expenses for the

GOVERNMENT MOTION FOR

WITNESS DEPOSITION/ ROSENAU- 3

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

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defendant, his federal criminal attorney, the witness and his attorney to attend the deposition

as well as the costs of the deposition itself. Additionally, the taking of the deposition should

not affect the trial date of November 7, 2011.

The government believes the date, time and place of the deposition may be worked out

between the parties once the deposition is authorized.

DATED this 11th day of August, 2011.

Respectfully submitted,

JENNY A. DURKAN

United States Attorney

s/ Susan M. Roe

SUSAN M. ROE

Assistant United States Attorney

WSBA #13000

United States Attorney's Office

700 Stewart, Suite 5220

Seattle, Washington 98101-1271

Telephone: (206) 553-1077

Fax: (206) 553-4440

E-mail: Susan.Roe@usdoj.gov

GOVERNMENT 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 27 Filed 08/11/11 Page 4 of 5
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CERTIFICATE OF SERVICE

I hereby certify that on 8/11/11, 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). I hereby certify that I have served the attorney(s)

of record for the defendant(s) that are non CM/ECF participants via telefax.

s/Rachel Lynch

RACHEL LYNCH

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: rachel.lynch@usdoj.gov

GOVERNMENT 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 27 Filed 08/11/11 Page 5 of 5