DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED MOTION

FOR WITNESS DEPOSITION/ 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

BRIEF IN OPPOSITION TO

GOVERNMENT’S RENOTED MOTION

FOR AUTHORIZATION TO DEPOSE

FOREIGN WITNESSES AND

RESPONSE TO EMERGENCY

REQUEST FOR RULING REGARDING

PROCEDURE AT DEPOSITIONS

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

Brief in Opposition to the Government’s Renoted Motion for Authorization to Depose Foreign

Witnesses and Response to Emergency Request For Ruling Regarding Procedure at Depositions.

BACKGROUND

On March 2, 2012, the Government renoted its motion for the deposition of Kip

Whelpley and made a new request to depose Zachary Miraback. The Government, once again,

cites Federal Rule of Criminal Procedure 15 and United States v. Omene in support of the

position that the District Court should authorize the deposition of Kip Whelpley (hereinafter

“Whelpley”) and now Zachary Miraback (hereinafter “Miraback”). The Government further

Case 2:06-cr-00157-MJP Document 81 Filed 03/08/12 Page 1 of 12
DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED MOTION

FOR WITNESS DEPOSITION/ 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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requests that this Court issue an order assessing the costs associated with Whelpley’s deposition

to the defendant.

On March 6, 2012, the Government filed an Emergency Request for Ruling Regarding

Procedure at Depositions. The Government requests guidance on the appropriate parties. The

Government also claims “...defense counsel has not answered the question of whether he will

attend in person or be with his client at the FDC during the deposition. Rather than answering,

he advised the government that Gary Botting continues to represent the defendant in Canadian

matters.” (Dkt. No. 80 at 2). The Government further states, “[i]t is important that the parties

clearly understand the role of Mr. Botting and of defense counsel, to insure no later claim of

misrepresentation or ineffectiveness.” Id. at 3. Finally, the Government asks that Dr. Botting be

prohibited from representing Mr. Rosenau at or during the depositions. Id.

INTRODUCTION

The Government claims that “the standard for allowing depositions is whether doing so

would further “the interests of justice.” (Dkt. No 79 at 3). This is not the standard. Rule 15(a)

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.

United States v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998)(emphasis added). The Government

has failed to demonstrate that exceptional circumstances justify the deposition of Zachary

Miraback.

Furthermore, countervailing factors and profound constitutional concerns exist that weigh

against the deposition of Whelpley. The Defense respectfully requests that this Court follow the

Supreme Court and Ninth Circuit policy favoring expansive witness cross-examination in

criminal trials. Additionally, this Court specifically continued this matter for a substantial period

of time to permit the Government to obtain evidence located in Canada—the Government is

confident that the MLAT will permit the production of Canadian evidence. The Defense

respectfully requests that the Government be prohibited from using the MLAT selectively to

circumvent the Sixth Amendment and the policy favoring in court testimony before the eyes of

the jury.

Moreover, the Defense respectfully requests that the Defendant be permitted to be

confronted, face-to-face, with the witnesses against him if this Court authorizes witness

Case 2:06-cr-00157-MJP Document 81 Filed 03/08/12 Page 2 of 12
DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED MOTION

FOR WITNESS DEPOSITION/ 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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depositions. Crawford’s return to the full historical context of the Sixth Amendment requires

such confrontation.

Finally, the Defense objects to the Government’s request for an order assessing the costs

associated with Whelpley’s deposition to the defendant. The Government would not have

incurred additional costs associated with this matter but for the Government’s undue delay

concerning the MLAT and in seeking depositions.

LAW AND ARGUMENT

I. THE GOVERNMENT’S MOTION TO DEPOSE ZACHARY MIRABACK AND

KIP WHELPLEY SHOULD BE DENIED

a. No Exceptional Circumstances Exist to Justify the Deposition of Zachary

Miraback

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

152, 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

interests 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. Omene, at 1170(citing

Furlow v. United States, 644 F.2d 764, 767 (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. FarfanCarreon, 935 F.2d 678, 679 (5th Cir. 1991)).

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

potential witness lives in another jurisdiction and is “rather uncooperative.” 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

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DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED MOTION

FOR WITNESS DEPOSITION/ 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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that county 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

the 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).

Moreover, 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 use of depositions in criminal cases is not favored because the factfinder does not

have an opportunity to observe the witness’ demeanor. United States v. Milian-Rodriquez, 828

F.2d 670, 686 (11th Cir. 1987).

Here the Government merely asserts that Miraback has been located in Canada and

remains “rather uncooperative.” (Dkt No. 79 at 5). The Government further states its desire that

Miraback fulfill the requirements of his plea agreement. Id. However, the Government does not

state that it has exhausted all means to secure Miraback’s presence at trial. In fact, the

Government does not claim it has made any efforts to seek Miraback’s presence at trial, but

simply claims that “Mr. Miraback became unresponsive to requests to contact or return to the

United States to testify.” Id. These circumstances are virtually identical to those concerning the

Government’s initial Motion for Authorization of Witness Deposition filed on 8/11/2011. There

the Government claimed that Whelpley had “no legal standing in, or interest in returning to, the

United States.” (Dkt No. 27 at 3). This Court denied the above motion on 9/7/2011. (Dkt. No.

34). This Court reasoned that the party seeking a deposition bears the burden of demonstrating

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

(Dkt. No. 34 at 1). Further, this Court specifically asked the following questions upon denying

the Government’s motion:

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DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED MOTION

FOR WITNESS DEPOSITION/ 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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Is the prospective deponent’s refusal to travel to the United States to be deposed merely a

personal preference? Are there any factors which prevent this witness from crossing the

U.S. – Canadian border?

(Dkt No. 34 at 2). The Government’s most recent motion requesting the deposition of Miraback

has left such questions unanswered. The Government has failed to show exceptional

circumstances that justify the deposition of Miraback.

The Government further speculates that Miraback will testify to certain events. If the

Government’s claims are true—the government should have incentive to procure Miraback’s

presence at trial. It is critical that the defense be permitted to cross-examine Miraback before the

eyes of the jury. 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 thereby leading to Raleigh’s death sentence). The factfinder

must be properly afforded the opportunity to observe the Miraback’s demeanor while testifying.

This is the favored approach. See Milian-Rodriquez, at 686. The truth will only become truly

apparent through live testimony, in court, in the presence of the jury. A mere video-recording of

Miraback is inappropriate under these circumstances.

b. Countervailing Factors Disfavor the Deposition of Kip Whelpley

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 (9th Cir. 1981)). The Eleventh Circuit adopted a test 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).

i. Availability of Whelpley

The Government claims that the Canadian Government has accepted the Mutual Legal

Assistance Treaty request from the United States. (Dkt. No. 79 at 1). It has further stated that

Kip Whelpley is willing to return to the United States to testify. Id. at 2. The Government

speculates that “[e]ven if the current impediment is removed, neither the Canadian government

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DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED MOTION

FOR WITNESS DEPOSITION/ 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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or the United States government can assure this Court that there will be no new legal maneuvers

instigated by the defendant....” Id. This claim is made despite the Government’s stated

confidence concerning the MLAT. This court has continued this matter for a substantial period

of time to specifically enable the Government to make such assurances. The Defense

respectfully requests that the MLAT not be used selectively by the Government only to

disadvantage the Defense. 1

ii. Countervailing Factors

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

witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause includes the right of

effective cross examination. Larson, 495 F.3d at 1102. 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 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 cross examination and otherwise is

indisputably in the interests of justice. Lo, 231 F.3d at 482 (citing United States v. Brooke, 4

F.3d 1480 (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 [a

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 because the factfinder does not

have an opportunity to observe the witness’ demeanor. Milian-Rodriquez, 828 F.2d 670, 686. In

an early case, the Supreme Court of the United States explained:

The primary object of the constitutional provision in question was to prevent depositions

or ex parte affidavits, such as were sometimes admitted in civil cases, being used against

the prisoner in lieu of a personal examination and cross-examination of the witness, in

which the accused has an opportunity, not only of testing the recollection and sifting the

conscience of the witness, but of compelling him to stand face to face with the jury in

order that they may look at him, and judge by his demeanor upon the stand and the

manner in which he gives his testimony whether he is worthy of belief.

1 A lawful and valid order has been issued by the Supreme Court of British Columbia in Quesnel in the matter of

Henry Rosenau v. Kip Whelpley, Action #14581 which enjoins Whelpley’s entrance into the United States for the

purpose of testifying against the Defendant. If a deposition was to take place in a Canadian courtroom—such would

be an ad hoc extension of the U.S. District Court for the Western District of Washington. Thus, a deposition of

Whelpley will result in the AUSA being a party to Whelpley’s violation of a valid Canadian Order thereby showing

complete lack of respect for the Canadian legal system and possibly resulting in an abuse of process.

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DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED 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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Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 340 (1895).

The Defense maintains that countervailing factors and profound Constitutional concerns

exist which justify the denial of the Government’s motion for authorization of deposition. The

Government’s case depends heavily on the testimony of Whelpley. Additionally, Whelpley’s

presence in Canada renders him beyond sanctions for perjury. Therefore, it is in the interests of

justice that Whelpley’s testimony be given at trial. The finder of fact should be afforded the

opportunity to observe Whelpley’s demeanor and judge his credibility.

II. THE DEFENDANT HAS A RIGHT TO BE PHYSICALLY PRESENT AT

DEPOSITIONS

Rule 15(c) of the Federal Rules of Criminal Procedure states the following:

(1) Defendant in Custody. The officer who has custody of the defendant must produce

the defendant at the deposition and keep the defendant in the witness’s presence

during the examination....

Fed. R. Crim. P. 15(c)(1)(emphasis added). However, beyond the plain language of Rule 15,

Crawford’s return to the full historical context of the Sixth Amendment requires the defendant to

be confronted, face-to-face, with the witnesses against him.

In Maryland v. Craig, the United States Supreme Court, in a 5-4 decision, upheld a

statutory procedure that permitted courts to receive, by one-way closed circuit television, the

testimony of a child witness. Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666

(1990) However, since this decision, the United States Supreme Court has altered its

Confrontation Clause analysis.

In Crawford, the Court held that the Confrontation Clause required cross-examination

and unavailability before testimonial hearsay could be admitted into evidence. Crawford at 69,

124 S.Ct. at 1374; see also Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2274-77, 165

L.Ed.2d 224 (2006). The Crawford decision radically altered the Court’s jurisprudence involving

the Sixth Amendment. At its core, Crawford is about the scope of the Confrontation Clause, not

just the application of the Clause to the out-of-court statements at issue in that case. The Court

held in Crawford that the Sixth Amendment was subject only to those exceptions established at

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DEFENDANT’S BRIEF IN OPPOSITION

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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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the time of its ratification in 1791. Crawford, at 54, 124 S.Ct. at 1366 (citing Mattox, 156 U.S.

237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895)); see Mattox, supra.

In 1791, the Framers could not have imagined confrontation and cross-examination in a

Canadian Court where the defendant will attend via video conferencing as the Government

suggests. (Dkt. No. 79 at 2). The judicially created exceptions to the Sixth Amendment

announced in Craig for the first time 200 years after the ratification of the Sixth Amendment are

untenable in light of Crawford.

Crawford considered whether and how testimonial hearsay statements made by witnesses

who did not testify at trial were admissible in light of the Confrontation Clause. See Crawford

at 68-69, 124 S.Ct. at 1374. Although Crawford did not specifically address the issue of face-toface confrontation at trial, deposition, or otherwise, Crawford fully considered the historical

context within which the Confrontation Clause was drafted and the evils at which it was aimed.

Id. at 43-51, 124 S.Ct. at 1359-1364. Moreover, Crawford did hold that testimonial hearsay

statements were inadmissible absent the right to confrontation. Id. at 68-69, 124 S.Ct. at 1374.

The Crawford opinion also contains statements that are impossible to reconcile with

certain other statements in the Craig opinion. Compare, e.g., Craig at 849, 110 S.Ct. at 3165(“a

literal reading of the Confrontation Clause would ‘abrogate virtually every hearsay exception, a

result long rejected as unintended and too extreme’”(citing Ohio v. Roberts, 448 U.S. 56, 63 100

S.Ct. 2531, 253 (1980)), and Craig at 845, 110 S.Ct. at 3163(“any exception to the right ‘would

surely be allowed only when necessary to further an important public policy’”(citing Coy v.

Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 2803 (1988)), with Crawford, at 51, 124 S.Ct. at

1364(“[l]eaving the regulation of out-of-court statements to the law of evidence would render the

Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices”), id. at

54, 124 S.Ct. at 1365(“[t]he text of the Sixth Amendment does not suggest any open-ended

exceptions from the confrontation requirement to be developed by the courts”), and id. at 61, 124

S.Ct. 1370(“[a]dmitting statements deemed reliable by a judge is fundamentally at odds with the

right to confrontation”). Moreover, Crawford explicitly rejected the rationale of Ohio v. Roberts,

448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Crawford at 63-66, 124 S.Ct. at 1371-

1372. Roberts held that admitting the preliminary hearing testimony of an unavailable witness

did not violate the Confrontation Clause of the Sixth Amendment by reasoning that reliability

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DEFENDANT’S BRIEF IN OPPOSITION

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FOR WITNESS DEPOSITION/ 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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could be “inferred without more in a case where the evidence falls within a firmly rooted hearsay

exception.” Roberts, at 66, 100 S.Ct. at 2539. The Roberts court reached this conclusion by

reasoning that “hearsay rules and the Confrontation Clause are generally designed to protect

similar values.” Id. at 66, 100 S.Ct. at 2539(citing California v. Green, 399 U.S. 149, 155, 90

S.Ct 1930, 1933(1970)). In Craig, the Court relied heavily on the Roberts decision. Thus,

Crawford overruled Craig sub silentio and by implication because it undermined the foundations

upon which Craig rested.

Crawford’s return to the full historical context of the Sixth Amendment requires this

Court to permit Mr. Rosenau to be confronted, face-to-face, with the witnesses against him.

More importantly, this is the appropriate approach based on the plain language of the Sixth

Amendment. The Defense respectfully requests, pursuant to the Sixth Amendment and

Crawford, that this Court permit Mr. Rosenau to be confronted, face-to-face, with the witnesses

against him if this Court issues an order granting the Government leave to take the depositions of

witnesses.

III. RESPONSE TO REQUEST FOR ORDER ASSESSING COSTS ASSOCIATED

WITH WHELPLEY DEPOSITION TO THE DEFENDANT

Rule 15(d) of the Federal Rules of Criminal Procedure states the following:

(d) Expenses. If the deposition was requested by the government, the court may—or if

the defendant is unable to bear the deposition expenses, the court must—order the

government to pay:

(1) any reasonable travel and subsistence expenses of the defendant and the

defendant’s attorney to attend the deposition; and

(2) the costs of the deposition transcript.

Fed. R. Crim. P. 15(d). The Government has requested the depositions of Whelpley and

Rosenau. The Defendant is unable to bear the deposition expenses.

Moreover, as discussed above, the Government filed a Motion for Authorization of

Witness Deposition on 8/11/2011. (Dkt. No. 27). AUSA Susan Roe emailed Defense Counsel

stating, “[j]ust filed a motion to take dep [sic] in Canada. Surely you won’t object, will you? It’s

a free trip for everyone.” (See exhibit 1). This Court denied this motion on 9/7/2011 and invited

the Government to refile, stating “[t]he denial is without prejudice and the government is free to

resubmit the request, accompanied by sufficient corroborating facts to satisfy the “exceptional

Case 2:06-cr-00157-MJP Document 81 Filed 03/08/12 Page 9 of 12
DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED MOTION

FOR WITNESS DEPOSITION/ 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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circumstances” requirement.” (Dkt. No. 34 at 2). The Government chose to not to renew their

motion for authorization to depose foreign witness until 10/31/2011. (Dkt. No. 55). Thereafter,

this Court found good cause for trial continuance due to the unavailability of essential witnesses

and stated “[i]t appears that the unavailability of the witnesses may be cured within a reasonable

period of time through the use of the Mutual Legal Assistance Treaty between Canada and the

United States.” (Dkt. No 69 at 2). The Government, citing no law, claims that the costs of its

requested depositions “...will only be incurred as a result of his harassment of a witness. These

are not usual and appropriate costs associated with the government preparing or presenting its

case and the taxpayers should not absorb the cost.” (Dkt. No. 79 at 6). However, on May 17,

2011, AUSA Susan Roe emailed defense counsel explaining that she was seeking evidence

“from Canada which may require an MLAT.” (See exhibit 2) Despite the Government’s

recognition that an MLAT would likely be needed, the Government failed to take affirmative

steps to secure evidence through an MLAT until relatively recently.

Therefore, for the above reasons, the Defense respectfully request that this Court apply

Rule 15(d) and order the government to pay reasonable and subsistence expenses of the

defendant and the defense counsel to attend the deposition and the costs of the deposition

transcript. The Government would not have incurred additional costs associated with this matter

but for its undue delay.

IV. RESPONSE TO EMERGENCY REQUEST FOR RULING REGARDING

PROCEDURE AT DEPOSITIONS

The Government, in its Emergency Request for Ruling Regarding Procedure at

Depositions, stated to this Court, “[t]he government asks clarification because defense counsel

has not answered the question of whether he will attend in person or be with his client at the

FDC during the deposition. Rather than answering, he advised the government that Gary Botting

continues to represent the defendant in Canadian matters.” (Dkt. No. 80 at 2). The Government

attached one email from Defense in support of this claim. (Dkt. No. 80-1). Unfortunately, the

Government chose to make a deliberate misrepresentation. The Government intentionally failed

to include other emails from March 3rd and 5th (see exhibit 3). These emails reveal that Defense

counsel remained available, cooperative, and provided the Government with good faith timely

responses to the Government’s premature requests to arrange depositions which have yet to be

Case 2:06-cr-00157-MJP Document 81 Filed 03/08/12 Page 10 of 12
DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED MOTION

FOR WITNESS DEPOSITION/ ROSENAU- 11

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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authorized by this Court. Defense counsel made the good faith efforts described above despite

Defense counsel’s Notice of Unavailability from 2/27/12 to 3/9/12 (Dkt. No. 72). 2

CONCLUSION

Rule 15(a) 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. Fed. R. Crim. P. 15(a)(1); Omene, at 1170. The Government has failed to

show exceptional circumstances that justify the deposition of Zachary Miraback.

Furthermore, countervailing factors exist that weigh against a deposition of Whelpley.

The Defense respectfully requests that this Court follow the policy favoring expansive witness

cross-examination in criminal trials. Moreover, the Defense respectfully requests that the

Government be prohibited from using the MLAT selectively to circumvent the Sixth

Amendment and the policy favoring in court testimony before the eyes of the jury.

Moreover, the Defense respectfully requests that the Defendant be permitted to be

confronted, face-to-face, with the witnesses against him if this Court grants the depositions

requested by the Government. Crawford’s return to the full historical context of the Sixth

Amendment requires such confrontation.

Finally, the Defense objects to the Government’s request for an order assessing the costs

associated with Whelpley’s deposition to the defendant. The Defense respectfully requests that

this court apply the Rule 15(d) under the circumstances described above.

DATED this 8

th day of March, 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

2 What is also of concern is the Government’s constant maneuvering during Defense Counsel’s unavailability (e.g.

Government’s Renoted Motion for Authorization to Depose Foreign Witnesses filed on 3/2/2012).

Case 2:06-cr-00157-MJP Document 81 Filed 03/08/12 Page 11 of 12
DEFENDANT’S BRIEF IN OPPOSITION

TO GOVERNMENT’S RENOTED MOTION

FOR WITNESS DEPOSITION/ ROSENAU- 12

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 3/8/2012, 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/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 81 Filed 03/08/12 Page 12 of 12