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Chief Judge Marsha J. Pechman

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA, )

)

Plaintiff, ) NO. CR06-157MJP

)

v. ) [PROPOSED ALTERNATIVE]

) ORDER GRANTING GOVERNMENT’S

HENRY ROSENAU, ) RENOTED MOTION FOR ORDER TO

) TAKE FOREIGN DEPOSITIONS

Defendant. )

_________________________________) NOTED: March 16, 2012

This matter having come before the Court on the Government’s Renoted Motion for

Order to Take Foreign Depositions pursuant to the provisions of Rule 15, Federal Rules of

Criminal Procedure, the Court finds

1. Defendant Rosenau has a right to take an active role in the depositions and to

confront the witnesses against him;

2. The government has made diligent efforts to secure the defendant’s physical

presence at depositions but security issues for Canada and with the United States Marshal

Service prevent the defendant from being present in Canada for the depositions;

3. The defendant may actively participate in the depositions via

videoconferencing;

4. The Canadian witnesses, Kip J. Whelpley and Zachary Miraback, are beyond

the Court’s subpoena power and are legally unavailable for trial in the United States.

ORDER AUTHORIZING

WITNESS DEPOSITIONS - 1

ROSENAU/CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 87 Filed 03/19/12 Page 1 of 3
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Therefore it is hereby ORDERED that the motion is GRANTED. It is further

ORDERED

1. that on or by April 10, 2012, or another date set by the Court, the depositions

of Zachary Miraback, of Alberta, Canada, and of Kip J. Whelpley, of British Columbia,

Canada, shall be taken and preserved for potential use in the trial of this case pursuant to

Rule 15 of the Federal Rules of Criminal Procedure; it is further ORDERED

2. that the United States government shall continue to take such reasonable

steps as are available to it under the Mutual Legal Assistance Treaty (“MLAT”) to request

that Canadian authorities permit the taking of such depositions; it is further ORDERED

3. that the deposition be governed by the Federal Rules of Evidence and

Criminal Procedure to the extent that the Canadian authorities permit; it is further

ORDERED

4. that, to the extent permitted by Canadian authorities, each witness shall be

examined by government counsel, then cross-examined by counsel for the defendant, then

questioned by government counsel on re-direct examination, and the parties may conduct

any further examination if appropriate; it is further ORDERED

5. that a verbatim record of the proceedings will be made and that the testifying

witnesses will be videotaped (including audio), and that the government shall take all

reasonable steps to secure permission from Canadian authorities to obtain copies of said

videotapes, audio recordings, and verbatim transcripts as are produced. The United States

shall make available any such copies to defense counsel. The United States shall make

available any such copies to the Court upon request. The United States will bear the costs

of any stenographic recording and transcripts of the proceeding; it is further ORDERED

6. that all evidentiary objections under United States law made during the

proceedings will be noted and preserved for the Court as provided in Rule 15(f) of the

Federal Rules of Criminal Procedure and Rule 30(c) of the Federal Rules of Civil

Procedure; and it is further ORDERED

ORDER AUTHORIZING

WITNESS DEPOSITIONS - 2

ROSENAU/CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 87 Filed 03/19/12 Page 2 of 3
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7. that the government counsel shall take such reasonable steps to permit the

defendant to observe the proceedings and assist defense counsel by providing facilities by

which defendant (a) can observe the deposition audiovisually and (b) can communicate

during the course of such deposition with defense counsel; it is further ORDERED

8. pursuant to Rule 15(d) of the Federal Rules of Criminal Procedure that the

reasonable expenses of travel and subsistence for the defense attorney for attendance at the

proceedings shall be borne by the United States, although certain costs may be assessed

later against the defendant; it is further ORDERED

9. that any objection to the execution of this order, made to the authorities in

Canada by or at the instance of the defendant, will be filed in this Court and served on the

United States on or before the date it is presented to the Canadian authorities; it is further

ORDERED

10. that any attempt by the defendant to prevent the execution of a request to the

Canadian authorities, or to otherwise interrupt the orderly taking of the deposition, in

furtherance of the Court’s order will be considered as a post hoc ex parte attempt to

frustrate the Court’s order, and will constitute a waiver by the defendant of his right to

speedy trial effective from the date of the attempt until the completion of the depositions.

SO ORDERED this _____ day of March, 2012.

MARSHA J. PECHMAN

Chief Judge, United States District Court

ORDER AUTHORIZING

WITNESS DEPOSITIONS - 3

ROSENAU/CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 87 Filed 03/19/12 Page 3 of 3