1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Chief Judge Marsha J. Pechman

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

HENRY ROSENAU,

Defendant.

)

)

)

)

)

)

)

)

)

)

NO. CR06-157MJP

EMERGENCY REQUEST FOR

RULING REGARDING

PROCEDURE AT DEPOSITIONS

NOTED: March 9, 2012

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

United States Attorney for the Western District of Washington, and Susan M. Roe and

Marc A. Perez, Assistant United States Attorneys for said District, and files this Request

for a Ruling on Procedures to be followed at Depositions, if such are allowed, in the

above-entitled case. The government asks for an emergency consideration because

Canadian Crown Counsel requires the identity of deposition participants.

I. CORRECTION OF ORDER OF PROCESS

The government first wishes to correct a misstatement made in its Reply, Dkt #77.

At page 3, lines 6-8, the government wrote, “ Once a Sending Order is issued, . . . , the

government will move promptly to . . . take the necessary steps for the depositions.”

Canadian Crown Counsel has contacted the undersigned to arrange the depositions in

Canada and Crown Counsel explained that the depositions are taken prior to the Sending

Hearing, under the authoring of the Gathering Order. The depositions are part of the

REQUEST FOR RULING REGARDING

PROCESS FOR DEPOSITIONS/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 80 Filed 03/06/12 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

evidence gathered so must be conducted before the Sending Hearing may be held. Then,

the depositions will considered for inclusion in the Sending Order.

II. CURRENT ARRANGEMENTS

Secondly, the government wishes to notify the Court on the progress of scheduling

the depositions. Defense counsel Platt previously filed Notices of Unavailability from

February 27 through March 9, April 27, and June 18 through June 29. Dkts # 72, 76. In

an email of March 3rd, regarding scheduling the depositions, defense counsel wrote that

he also is unavailable during the last week of March and April 2-4, but available April 5

through April 10.

The Canadian Courts have a four day holiday from April 6 through April 9, 2012.

Therefore, Crown Counsel is setting the first deposition for Thursday, April 5, 2012, and

the second for Tuesday, April 10, 2012.

III. REQUEST FOR GUIDANCE ON APPROPRIATE PARTIES

Crown Counsel requires the name of each person expected to participate in the

deposition. In response to the Canadian request for attendees, the government asks the

Court’s guidance. Federal Rule of Criminal Procedure 15, allowing depositions in

criminal cases, addresses the Manner of Taking in section (e). Subsection (e)(3)

discusses the defendant and “the defendant’s attorney,” and (e)(2) holds that the scope

and manner must “be the same as would be allowed during trial.” Thus, it appears that

the attorneys participating in the depositions are those who appear in the criminal case,

United States v. Rosenau.

The government asks for 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. (See Attachment 1).

The question before the Court is whether Mr. Botting may represent the defendant

at and during the depositions, which are testimonial proceedings in the American criminal

REQUEST FOR RULING REGARDING

PROCESS FOR DEPOSITIONS/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 80 Filed 03/06/12 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

matter. It 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.

IV. RULES

General Rule 2, of the Local Rules for the Western District of Washington, sets

out the eligibility for admission to the Federal Bar of this District. The rule allows “Any

attorney who is a member in good standing of the Washington State Bar and any attorney

who is a member in good standing of the bar of any state and who is employed by the

United States . . . is eligible for admission to the bar of this court. GR 2(b).

The procedure for admission requires each applicant to petition the court,

including her/his legal education, the list of other courts in which s/he is admitted to

practice, his/her familiarity with Federal Rules and Local Rules and the petition must be

endorsed by two “reputable persons who are either members of the bar of this court or

known to the court . . .” GR 2(c)(1). The applicants must take an oath to “support and

defend the Constitution and the law of the United States of America . . .” GR (c)(3). The

Rule addresses the Standards of Professional Conduct expected from each member of the

bar and, at some length, sets out the jurisdiction, procedures and actions the Court has for

disciplining members of its Bar. GR 2(e)(f).

Members of Foreign Bar Associations, such as members of any of the Canadian

Provincial Associations, who are not concurrently members of a State bar, are not subject

to this Court’s jurisdiction, have no duty to this Court or its orders, and are not eligible for

admission to practice before this Court. The Court appears to have no valid authority

over members of foreign bar associations.

V. ARGUMENT

Since a foreign lawyer in another country, even if a member in good standing of

his/her home bar, is not eligible for admission to a federal bar and is the functional

equivalent of a foreign citizen over which this Court has no apparent authority, the

government believes Mr. Botting may not represent the defendant at or during the

depositions. He should not participate, ask questions, lodge objections, or in any other

REQUEST FOR RULING REGARDING

PROCESS FOR DEPOSITIONS/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 80 Filed 03/06/12 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

regard act as counsel in the matter. It may be that a locally-admitted lawyer will become

co-counsel and could act on the defendant’s behalf. Of course, Mr. Botting remains free

to apply to the Canadian Courts to represent the defendant regarding the Sending Order or

similar Canadian issues.

1

Therefore, the government asks the Court for an Order on the procedures to be

followed during the depositions, including the identity of counsel allowed to participate.

Crown Counsel requests the names of all attendees be known to them promptly.

DATED this 6th day of March, 2012.

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

There is nothing pending before the Courts regarding Rosenau’s extradition. It

1

was completed and closed when he was extradited.

REQUEST FOR RULING REGARDING

PROCESS FOR DEPOSITIONS/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 80 Filed 03/06/12 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I hereby certify that on March 6, 2012, I electronically filed the foregoing with the

Clerk of Court using the CM/ECF system which will send notification of such filing to

the attorney of record for the defendant.

s/ Kathleen M. McElroy 

KATHLEEN M. McELROY

Paralegal Specialist

United States Attorney’s Office

700 Stewart, Suite 5220

Seattle, Washington 98101-1271

Phone: 206-553-7970

Fax: 206-553-0755

E-mail: Katie.McElroy@usdoj.gov

 

REQUEST FOR RULING REGARDING

PROCESS FOR DEPOSITIONS/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 80 Filed 03/06/12 Page 5 of 5