IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez 

Criminal Case No. 11-cr-00376-WJM

UNITED STATES OF AMERICA,

Plaintiff,

vs.

1. EXECUTIVE RECYCLING, INC.,

2. BRANDON RICHTER, and

3. TOR OLSON,

Defendants.

 

ORDER GRANTING IN PART AND DENYING IN PART 

GOVERNMENT’S MOTION TO RECONSIDER

 

 

This matter is before the Court on the Government’s Motion to Reconsider (ECF

No. 106) the Court’s Order as to Deposition of Gary Tam (ECF No. 104) and Amended

Order as to Deposition of Edmund Fung (ECF No. 105). Defendant Tor Olson has filed

a Response to the Motion to Reconsider (ECF No. 109), as have Defendants Executive

Recycling, Inc. and Brandon Richter (ECF No. 111). The Government has filed a Reply. 

(ECF No. 114.)

Before addressing the merits vel non of the Motion to Reconsider, the Court finds

it necessary to point out two practices of counsel in this action that have come to trouble

the Court. The first is the lack of meaningful meet-and-confer efforts between counsel

for the Government and counsel for Tor Olson as to the taking of the depositions in

Hong Kong. (See ECF No. 35; ECF No. 36; ECF No. 37, ¶ 9; ECF No. 55, ¶¶ 1-3; ECF

No. 80, at 1-2; ECF No. 106, at 3; ECF No. 109, at 4-5.) While the parties have agreed

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that the depositions in Hong Kong will take place, they have agreed to little else. The

Court disapproves of the failure of counsel for the Government and counsel for Tor

Olson to meaningfully meet and confer on these unresolved issues. The Court orders

all counsel in this action to fully comply with WJM Revised Practice Standard VIII.D in

this action and in any other action in which counsel appear before this Court.

The Court also notes that the Government’s Motion to Reconsider is three pages

long (exclusive of signature blocks and certificate of service) but the Government’s

Reply brief is eight pages long. The Court finds that much if not all of the content of the

Reply should have been included in the Motion to Reconsider. The Court has already

admonished counsel for Tor Olson for briefing a separate motion in a similar way. (See

ECF No. 63, 92-1, 93.) In that Order, the Court also stated, “All counsel of record in this

action are hereby put on notice, for purposes of this action and any other actions in

which counsel appear before this Court, that the Court strongly prefers that pretrial

motions fully explain the bases for the motions, so that briefing will be complete upon

the filing of the response.” (ECF No. 93.) Counsel for the Government has now

violated that Order. The Court will no longer tolerate this briefing practice, and any

briefs that do not comply with this admonishment will be stricken without leave to re-file.

The Court now turns to the merits of the Government’s Motion to Reconsider. In

the Motion to Reconsider, the Government asks that the Court remove the conditions in

paragraphs 5 and 6 of the Court’s Orders authorizing the depositions. Those

paragraphs read:

(5) The Government shall file a copy of the Request with this Court within

7 days of the Request being sent to the Hong Kong Authority. Further, the

Government shall provide notice of any status changes of the Request to

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the Court and Defendants, including any requests by the Hong Kong

Central Authority to modify the terms of the Request.

(6) The Request shall include all of the specific procedures identified in

this Order.

(ECF No. 104, at 3 ¶¶ 5-6; ECF No. 105, at 3 ¶¶ 5-6.) The Government argues that it

should not have to file or otherwise disclose the MLAT request it submitted to the U.S.

Department of Justice’s Office of International Affairs (“OIA”) (who forwarded it to Hone

Kong’s Department of Justice). It further argues that, at the very least, the MLAT

request was submitted in December 2011, and therefore cannot be filed with the Court

within seven days from the date on which it was submitted to Hong Kong’s Department

of Justice. Finally, the Government attaches an affidavit from Dan E. Stigall, a trial

attorney with the OIA, which represents, inter alia, that 

Counterparts in Hong Kong’s Department of Justice have received the

[MLAT] request and have indicated their willingness to provide the

assistance requested. Moreover, counterparts in Hong Kong’s

Department of Justice have seen the court order relevant to the

depositions and have indicated that the terms of that order do not pose

any obstacle to the successful execution of the U.S. request.

(ECF No. 106-1, ¶ 6.)

In response, Defendant Olson argues that the Government should be forced to

disclose not only the MLAT request, but also any relevant communications between the

U.S. Government and counterparts in the Hong Kong Department of Justice. (ECF No.

109.) In essence, he argues that he needs these documents in advance of the

depositions to ensure that his constitutional rights will be protected during the

depositions. Defendants Executive Recycling, Inc. and Brandon Richter join in

Defendant Olson’s Response. (ECF No. 111.)

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The Court grants in part and denies in part the Government’s Motion to

Reconsider. The Court will not require the Government to file or otherwise disclose the

MLAT request, nor will the Court require the Government to produce any conversations

counsel for the Government had, or have in the future, with counterparts in Hong Kong’s

Department of Justice. The Government represents that the MLAT request and the

relevant communications contain information about the Government’s theory of this

case. (ECF No. 114, at 8.) These concerns outweigh Defendants’ purported need for

assurances that their constitutional rights will be protected during the course of the

depositions. The basis for this conclusion is that the Court’s orders have only held that

the depositions will take place, not that the depositions will be admissible at trial. If the

depositions are conducted in such a way that Defendants’ constitutional rights are not

protected (for example, no meaningful opportunity for cross-examination), the Court will

not allow their introduction at trial. Therefore, all of the parties to this action, including

the Government, have an interest in ensuring that the depositions are conducted in

such a way that Defendants’ constitutional rights are protected. The Court has no basis

or reason to presume other than that the Government will do whatever it can in its

communications with Hong Kong’s Department of Justice to ensure that Defendants’

constitutional rights are protected.

The Court will retain in its Orders the provision of paragraph 5 requiring the

Government to “provide notice of any status changes of the Request to the Court and

Defendants, including any requests by the Hong Kong Central Authority to modify the

terms of the Request.” The Court will add provisions to this requirement that require

such notice to be filed with the Court and provided to Defendants in a prompt manner,

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and require that they be filed with the Court in a declaration under penalty of perjury. 

Because the Court will not require the Government to resubmit its MLAT request

to Hong Kong’s Department of Justice, the Court will grant the Motion to Reconsider as

to paragraph 6 of the Court’s Orders authorizing the depositions, omitting the content of

that paragraph from the Orders. Mr. Stigall has declared under penalty of perjury that

“counterparts in Hong Kong’s Department of Justice have seen the court order relevant

to the depositions and have indicated that the terms of that order do not pose any

obstacle to the successful execution of the U.S. request.” The Court expects the

Government to continue to update the Court and Defendants, via a declaration (or

declarations) made under penalty of perjury, with any new information the Government

learns from Hong Kong’s Department of Justice about the depositions and how they will

be conducted.

Thus, the Court’s orders, as amended, will contain the following amended

paragraphs 5 and 6: 

(5) The Government shall provide notice of any status changes of the

Request to the Court and Defendants, including any requests by the Hong

Kong Central Authority to modify the terms of the Request. The

Government shall provide such notice to the Court and Defendants in a

prompt manner, via a declaration or declarations made under penalty of

perjury.

(6) [omitted]

Contemporaneously with the filing of this Order Granting in Part and Denying in Part

Government’s Motion to Reconsider, the Court shall enter amended orders authorizing

the depositions of Gary Tam and Edmund Fung. Those amended orders will supercede

the previous orders issued. (See ECF No. 104, 105.)

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In accordance with the foregoing, the Government’s Motion to Reconsider (ECF

No. 106) is GRANTED IN PART and DENIED IN PART.

Dated this 20th day of March, 2012.

BY THE COURT:

__________________________ 

William J. Martínez 

United States District Judge

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