IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

UNITED STATES OF AMERICA, ) Cr. No. 05-60008-HO

 )

Plaintiff, ) ORDER

 )

 v. ) 

 ) 

PIROUZ SEDAGHATY, et al., ) 

 )

 Defendants. )

______________________________ )

 On May 3, 1998, the United States and the Arab Republic of

Egypt signed a Mutual Legal Assistance Treaty (MLAT) which entered

into force on November 29, 2001. Defendant seeks a court order

requiring the government to use the MLAT process and its resources

to assist him in securing necessary witnesses and documents

overseas. Alternatively, defendant seeks issuance of a letter

rogatory to the Arab Republic of Egypt to obtain the presence of
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witnesses at trial or to take depositions of the witnesses in their

home country or elsewhere.

Defendant sets out the following background:

Mr. Sedaghaty is named in the first two counts of a three

count Indictment. The essence of the charges against him

is that he conspired with Soliman Al Buthe to hide the

fact Mr. Al Buthe took money from the United States to

Saudi Arabia in order to give it to Chechen mujahadeen

and falsified his tax return to cover up that

transaction. During the pretrial process, the government

has advised that two government counsel traveled to the

Russian Federation with government law enforcement agents

as part of their investigation in this case and obtained

documents from Russian Federation officials. The

government has also advised that it intends to offer at

trial documents obtained from the Russian Federation and

present a witness from the Russian Federal Security

Bureau. The discovery provided by the government appears

to reveal that it used the MLAT (002850 GOV) and Letter

Rogatory (002288 GOV) process in order to obtain

documents and witnesses from the Russian Federation.

In addition, the discovery contains an FBI 302 report of

an interview conducted with Mr. Mahmoud Talaat Hassan El

Fiki (the donor of the money in question) in Egypt.... It

is not clear, however, what process was used by the

government to obtain the cooperation of the Egyptian

government. The interview report makes clear, however,

that the Egyptian government was cooperating. Indeed, its

agents conducted the interview. The discovery and

tentative witness and exhibit lists also contain

reference to an Al Haramain Islamic Foundation, Inc.

custodian of records and documents produced in Saudi

Arabia. With respect to these documents, the discovery

does not reveal what process the government has, or

intends to use, to obtain these documents and witnesses.

From the discovery produced by the government and through

his own investigation, Mr. Sedaghaty has developed

exculpatory information in Egypt. This exculpatory

information is in the form of both witnesses and

documents. The essence of the information Mr. Sedaghaty

has reviewed and seeks to obtain as competent evidence

for trial purposes involves testimony that the donation

from Mr. El Fiki was intended for humanitarian purposes,
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he engaged in due diligence before making the donation,

the choice to wire the donation to the United States was

benign and entirely Mr. El Fiki’s, and that he sought and

was provided confirmation about receipt and use of his

donation. Other witnesses in Egypt have information that

Mr. Sedaghaty objected to the activities of certain

people who worked at the Al Haramain offices and that the

disagreement led to the departure of several of those

individuals from Al Haramain. Review of the government’s

case reveals that much of its evidence with respect to

the alleged agreement and alleged willfulness of Mr.

Sedaghaty’s actions rests on hearsay, inference,

assumption, and innuendo. While such evidence should be

weak, and we believe is entire lacking in substance, the

reality of this case is that the nature of the charges

and our client’s ethnicity and religion place him at an

extreme disadvantage. In these circumstances, it is

critical that all of the resources of the Court and the

government be made available to Mr. Sedaghaty to produce

direct eyewitness testimony and exhibits that directly

refute the government’s allegations.

The specific individuals and documents of which Mr.

Sedaghaty is currently aware and for which he invokes the

authority of the Court and seeks its assistance in Egypt

are:

1. Mr. Mahmoud Talaat Hassan El Fiki.

2. Mr. Sharif El Fiki, Mr. El Fiki’s son.

3. Mr. Mohammed Salat, Mr. El Fiki’s employee.

The government adds additional facts regarding the interview

of El-Fiki:

In January 2005, Mahmoud El-Fiki was interviewed in Egypt

by an officer of the Egyptian security service.

Investigative agents in this case from the FBI and IRS

had previously met with the Egyptian officer to discuss

their investigation and to suggest questions for El-Fiki.

The U.S. agents were allowed to observe the interview via

closed circuit television, but they were not allowed to

meet with El-Fiki or to question him directly. During

this interview, El-Fiki claimed that he thought his

$150,000 donation was for widows, orphans, and refugees

in Chechnya, although he never spoke to anyone at

Al-Haramain about the donation. An FBI “302” report of

interview ... was prepared describing the Egyptian

interview of El-Fiki. This report was provided to the
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defense when the first batch of discovery was delivered

to counsel in December 2007. 

In this case, the government alleges that: 

On March 9, 2000, Al-Buthe flew to Ashland to retrieve the

funds. Defendants Sedaghaty and Al-Buthe went to the Bank of

America and obtained 130 American Express Travelers checks in

$1,000 denominations and a $21,000 cashier’s check made out to

Al-Buthe. On March 12, 2000, Al-Buthe departed the United States,

carrying the travelers checks. When he left, Al-Buthe did not file

a Currency and Monetary Instrument Report, acknowledging he was

leaving the country with more than $10,000 in currency as required

by law. The travelers checks and the cashier’s check were later

cashed at a bank in Saudi Arabia. In October 2001, defendant

Sedaghaty filed Al-Haramain USA’s tax return for the year 2000

which covered up this transaction by falsely reporting that these

funds were used to purchase a prayer house in Missouri, or returned

to their original donor. However, evidence obtained in the

investigation may show that Al-Haramain USA, Sedaghaty and Al-Buthe

intended on using the money to support the mujahideen fighting the

Russian government in Chechnya.

Defendant argues that the government should be compelled to

utilize the MLAT with the Arab Republic of Egypt to facilitate

witness appearances, or that the court should issues letters

rogatory to secure court testimony.
1The theory is that the government cannot utilize its exclusive

process (such as granting immunity or utilizing an MLAT) in such a

manner so as to distort the fact-finding process. Defendant also

maintains that the government has utilized the MLAT process in the

past to assist defendants in other cases. However, there appears

to be no cases in which the government has actually followed

through in utilizing an MLAT in such a manner.

2The court is not convinced that such evidence contradicts the

assertion that defendant and Al Buthe routed the donation to the

mujahideen or that falsified tax documents were filed. Such

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A. MLAT

Defendant argues that because the government has utilized the

MLAT process, due process requires that a similar process be made

available to defendant. Defendant further argues that if the

process is not made available, then the evidence obtained by the

government through such means must be excluded. Defendant cites

the Sixth Amendment to the United States Constitution for such a

novel proposition. Defendant also cites Ninth Circuit cases in

which government refusals to grant immunity to defense witnesses

who would directly contradict government witnesses who were granted

immunity, could constitute prosecutorial misconduct. See, e.g.,

United States v. Westerdahl, 945 F.2d 1083, 1086-87 (9th Cir. 1991);

United States v. Straub, 538 F.3d 1147, 1156-65 (9th Cir. 2008).1

Defendant maintains that the witnesses it seeks through the

MLAT process will provide directly contradictory testimony to

government witnesses, i.e., that El-Fiki, El-Fiki's son and an ElFiki employee will establish that there is nothing sinister about

the donation, the manner in which it was made, and the routing of

it to the United States.2
evidence certainly does not contradict the failure to report the

money leaving the country. 

Page 6

Defendant also argues that if the court orders the government

to utilize the MLAT, then it should also order an attorney and

investigator within the United States government to act on Mr.

Sedaghaty’s behalf in a manner in which they are “walled off” from

the attorneys and investigators directly involved in this

prosecution.

In the United States, the implementation and operation of

MLATs is the responsibility of the Executive Branch. The Attorney

General has delegated the Central Authority function to Criminal

Division officials in the Office of International Affairs (OIA).

As a result, OIA serves as the Central Authority for the United

States and administers the MLATs. As the Central Authority for the

United States, OIA has complete discretion to make MLAT requests.

OIA can and does decline to make requests that fail to meet the

treaty standards or that have the potential to negatively impact

other cases or other foreign policy considerations. OIA shares

this responsibility with neither the judiciary nor the legislature.

Private persons are not parties to or intended beneficiaries

of MLATs. Indeed, most MLATs (including the U.S./Egypt MLAT at

issue here) explicitly exclude private persons from using them.

See, e.g., U.S./Egypt MLAT, which specifies that:

This Treaty is intended solely for mutual legal

assistance between the Contracting Parties [defined as

the Governments of the United States and the Arab
3There is an unpublished decision in United States v. Sindona

in New York in which the court ordered the Department of Justice to

make a US-Switzerland MLAT request to obtain records from Swiss

banks. Even assuming this was a power the court had, that

particular MLAT did not contain the language explicitly stating

that it provides no rights for private citizens to compel

testimony.

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Republic of Egypt]. The provisions of this Treaty shall

not give rise to a right on the part of any private

person to obtain, suppress or exclude any evidence or to

impede the execution of a request.

Defendant contends there are no cases on point, at least in

which the principles of Westerdahl are discussed. Courts

considering the issue have declined to compel the government to use

an MLAT to obtain evidence for the defense.3 See, e.g., United

States v. Jefferson, 594 F. Supp. 2d 655, 674 (E.D. Va. 2009)

(emphasis added):

By its plain terms, the U.S.-Nigeria MLA Treaty limits

assistance to the “Contracting Parties,” which it defines

as the “Government of the United States of America and

the Government of the Federal Republic of Nigeria.” The

treaty additionally expressly provides that only the two

governments, and not private parties, can make use of its

provisions: “This Treaty is intended solely for mutual

legal assistance between the Parties. The provisions of

this Treaty shall not give rise to a right on the part of

any private party to obtain, suppress, or exclude any

evidence, or to impede the execution of a request.” As a

result, courts have consistently held that MLA Treaties

with such clauses “create[] no rights in individual

defendants to force the government to request evidence

under the MLA treaty procedures.” It is thus clear that

defendant, as a private party, is not entitled to use the

MLA Treaty process himself or force the government to use

the treaty on his behalf.

Moreover, the Jefferson court also noted that foreclosing the

use of an MLAT for a defendant’s benefit did not violate the Sixth
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Amendment right to compulsory process, noting that “[t]he

compulsory process right is circumscribed . . . by the ability of

the district court to obtain the presence of a witness through

service of process” and that the process power of the district

court does not extend to foreign nationals abroad. Id. at 674.

The court found that the right to compulsory process extends only

to forms of process a court can issue of its own power and “not to

forms of process that require the cooperation of the Executive

Branch or foreign courts.” Id. at 674-675.

Another court has noted, “[i]t is thus not unfair to allow the

Government to use the MLAT procedure any more than it is unfair to

allow the Federal Bureau of Investigation agents to interview

witnesses in this country.” United States v. Blech, 208 F.R.D. 65,

69 (S.D.N.Y. 2002). A defendant’s inability to use an MLAT does

not violate a defendant’s constitutional rights. Id.; see also

Jefferson 594 F. Supp. 2d at 674-675.

In Westerdahl, the Ninth Circuit found that

A criminal defendant is not entitled to compel the

government to grant immunity to a witness. United States

v. Shirley, 884 F.2d 1130, 1133 (9th Cir.1989). We have

recognized an exception to this rule in cases where the

fact-finding process is intentionally distorted by

prosecutorial misconduct, and the defendant is thereby

denied a fair trial. United States v. Lord, 711 F.2d 887,

892 (9th Cir. 1983).

In order to make out a claim for prosecutorial

misconduct, a defendant must show that the evidence

sought from the nonimmunized witness was relevant and

that the government distorted the judicial fact-finding

process by denying immunity to the potential witness. ...
4The Westerdahl court further noted:

Decisions on prosecutorial misconduct have focused on

whether the government or its agents took affirmative

actions to prevent defense witnesses from testifying.

Jeffers, 832 F.2d at 479 (prosecutor did not make threat

to defense witness which caused him to invoke fifth

amendment or immunize government witnesses to distort

factual picture); United States v. Paris, 827 F.2d 395,

401 (9th Cir. 1987) (evidence did not “support the

proposition that the government intentionally caused

DePalm to invoke his Fifth Amendment privilege”); United

States v. Patterson, 819 F.2d 1495, 1506 (9th Cir. 1987)

(defense failed to show that “prosecution created defense

witness unavailability”); United States v. Touw, 769 F.2d

571, 573 (9th Cir. 1985) (prosecutor did not threaten or

mislead defense witness by stating to judge that “there

will be a complaint waiting for him at the door of the

courtroom” if witness testified as planned); Lord, 711

F.2d at 891 (prosecutor told witness that whether he

would be prosecuted “depended on his testimony”); United

States v. Garner, 663 F.2d 834, 839-40 (9th Cir. 1981),

cert. denied, 456 U.S. 905, 102 S.Ct. 1750, 72 L.Ed.2d

161 (1982) (no due process violation where defendant does

not prove that exculpatory evidence was suppressed by

government). However, misconduct is not confined solely

to situations in which the government affirmatively

induces a witness not to testify in favor of a defendant.

Westerdahl, 945 F.2d at 1086-87. 

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If a defendant makes an “unrebutted prima facie showing

of prosecutorial misconduct that could have prevented a

defense witness from giving relevant testimony,” we will

remand the case to the district court to determine at an

evidentiary hearing whether the government intentionally

distorted the fact-finding process.

Westerdahl, 945 F.2d at 1086 (emphasis added).4

There is no comparable exception articulated in an MLAT

context. It is the OIA who has complete discretion to make (or to

not make) MLAT requests and so many more considerations go into

making such requests beyond any given criminal case including

diplomatic relations. The court declines to extend the exception

developed in the immunity context to an MLAT context, particularly

where the government may have national security and sensitive
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intergovernmental relation issues to contend with. Taking a

Westerdahl approach in this area would constitute one branch of

government intruding too far into the exclusive province of

another. This is especially true since the treaty itself

specifically states that its provisions shall not give rise to a

right on the part of any private person to suppress or exclude any

evidence. Further, there is an additional means to obtain evidence

that defendant can utilize, and that is a letter rogatory.

B. Letters Rogatory

Alternative to his MLAT motion, defendant seeks to use letters

rogatory to secure the depositions of El-Fiki, his son and his

employee. Defendant maintains that exceptional circumstances exist

requiring that El-Fiki be deposed as he believes it would be highly

exculpatory to central issues and there are no alternative

witnesses.

The court has the inherent power to issue letters rogatory.

United States v. Staples, 256 F.2d 290, 292 (9th Cir. 1958).

Letters rogatory are the means by which a court in one country

requests the court of another country to assist in the

administration of justice by taking depositions. United States v.

Rosen, 240 F.R.D. 204, 215 (E.D.Va. 2007). The decision to issue

letters rogatory lies within a court's sound discretion. See United

States v. Mason, 919 F.2d 139 (4th Cir. 1990). Letters rogatory
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should be issued only where necessary and convenient. Rosen, 240

F.R.D. at 215. 

Letters rogatory are a complicated, dilatory and expensive

system. Societe Nationale Industrielle Aerospatiale v. U.S. Dist.

Court for Southern Dist. of Iowa, 482 U.S. 522, 531 (1987). 

[D]elay attends the letters rogatory process and counsels

against issuance. ... [But] such delay would be

justified if necessary to ensure a fundamentally fair

trial for defendants....

Depositions in criminal proceedings, unlike their civil

counterparts, are disfavored. See United States v. Drogoul, 1 F.3d

1546, 1551 (11th Cir. 1993). Specifically, depositions are

permitted only “because of exceptional circumstances and in the

interests of justice” for the purpose of “preserv[ing] testimony

for trial.” Fed.R.Crim.P. 15. Courts should grant depositions

only “if it appears that (a) the prospective witness will be unable

to attend or be prevented from attending the trial, (b) the

prospective witness' testimony is material, and (c) the prospective

witness' testimony is necessary to prevent a failure of justice.”

Fed.R.Crim.P. 15 Advisory Committee Note. In addition, the Ninth

Circuit has considered whether the deponent would be available at

the proposed location for deposition and would be willing to

testify. United States v. Olafson, 213 F.3d 435, 442. The court

should also consider whether the safety of United States officials

would be compromised by going to the foreign location. Id. But if
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these criteria are satisfied, the depositions should be ordered,

assuming appropriate compulsory process is available. 

As noted above, it does not appear the hoped for El-Fiki

testimony that he intended the donation for legitimate charitable

purposes and not to fund the Chechnyan mujahideen necessarily

contradicts that defendant and Al Buthe routed it to the mujahideen

or that tax documents were falsified. The testimony certainly does

not refute the failure to report the money leaving the country.

El-Fiki has previously stated in interviews with Egyptian officials

that he never heard of Al-Buthe and he did not even mention

Sedaghaty. El Fiki also stated he had no idea how his money was

actually spent or if it went to the Chechnyan mujahideen. 

The circumstances do not justify ordering the deposition. In

addition, given the late stage of the proceedings, the likely delay

in going to trial is not justified. Defendant knew of the El-Fiki

statements two years ago and has only now moved for issuance of

letters rogatory.

CONCLUSION

For the reasons stated above, defendant's motion to compel the

government to utilize the mutual legal assistance treaty and/or to

issue letters rogatory (#238) is denied.

DATED this 26th day of January, 2010.

 s/ Michael R. Hogan 

United States District Judge