KAPLAN, District Judge.
This matter is before the Court on a motion by the government to take the depositions of four foreign witnesses pursuant to Federal Rule of Criminal Procedure 15.
Defendants are charged with, inter alia, designing and implementing fraudulent tax shelters. Two of the shelters at issue here are the Foreign Leveraged Investment Program ("FLIP") and the Offshore Portfolio Investment Strategy ("OPIS"), which allegedly were designed to generate multimillion dollar capital losses. For purposes of the present motion, their pertinent feature is the purported use of Cayman Islands entities to make the transactions look like legitimate investments. The Indictment alleges that, in these transactions, "[t]he client purportedly entered into an `investment' transaction with the Cayman Islands entity by purchasing a purported warrant or entering into a purported swap. The Cayman Islands entity purportedly made a pre-arranged series of purported investments. . . ."
One way the government intends to prove this at trial is by showing that the Caymans entities, instead of being owned by persons independent of the other participants in the FLIP and OPIS transactions, in fact were puppets of the defendants. The government intends to call four witnesses — Kirsti Sewell, Morten Aasen, Thomas Hansen, and Jan Miler — who were nominal owners of these Caymans entities but who the government expects will testify that they had little or no involvement in or understanding of the transactions. Among other things, they were not required to invest any money and never were informed that their participation made them nominal owners of these Caymans entities. In addition, the government expects Hansen and Miler to testify that they were offered the opportunity to participate in the transactions as compensation for their employment at an accounting firm in Oslo.
All four are citizens and residents of Norway. Aasen has agreed to come to New York to testify at trial.
The government seeks leave to depose all four witnesses in Norway. It submits declarations of Petter Nordeng, a senior public prosecutor at ØKOKRIM, stating that voluntary depositions at ØKOKRIM's offices would be conducted in English and under oath with the defendants and their attorneys present if they wished to attend, that questioning would be conducted by the attorneys for the government and the defendants, that contemporaneous objections pursuant to the Federal Rules of Evidence could be made by the attorneys, and that the depositions would be video-and audio-taped.
A. The Standard
Pursuant to Federal Rule of Criminal Procedure 15, a court may order prospective witnesses to be deposed to preserve their testimony for trial where there are "exceptional circumstances and in the interest of justice."
B. The Circumstances of This Case
The highly unusual circumstances of this case have been well-documented elsewhere and need not be repeated here. For purposes of this motion, it suffices to note briefly the tremendous burden and expense of defending this case — defendants, for example, at last count have more than 22 million pages of discovery to sift through
For a defendant and his or her counsel to attend depositions in Norway would add significantly to this burden. Of course, neither a defendant nor counsel need attend, but failure to do so would waive that defendant's rights under the Confrontation Clause. Although Rule 15 provides that the government may be ordered to pay the travel and subsistence expenses of the defendant and his attorney, as well as the deposition transcript costs,
"Unavailability is to be determined according to the practical standard of whether under the circumstances the government has made a good-faith effort to produce the person to testify at trial."
1. Aasen and Hansen
Both Aasen and Hansen currently are willing to come to the United States to testify at trial. Although Hansen has indicated that his work schedule might interfere, the government's case alone is estimated to take months. It would seem quite likely that Hansen's work schedule will permit his attendance at some point.
The government contends that the mere fact that the witnesses are beyond the subpoena power of the Court renders them unavailable for the purposes of Rule 15. But speculation that a willing witness might change his or her mind before trial does not alone justify the expense and burden of deposing the witness where it appears likely that the deposition ultimately will be unnecessary. Notably, courts generally have authorized depositions in such circumstances only where the burden was minimal because the parties already were traveling to the witness's location for other reasons.
In United States v. Drogoul,
Sewell and Miler have informed the government that they would testify in Norway but will not travel to the United States. The government has not provided the Court with any indication of its attempts, if any, to persuade them to come to the United States. The Court thus is unable to determine whether it has made the requisite "good-faith effort to produce the person to testify at trial."
The defendants dispute the materiality of any of the proposed testimony, both in general and with respect to certain of the individual defendants.
As the Court has found that Aasen and Hansen are not unavailable for purposes of Rule 15, it need not determine whether their testimony is material.
In light of Aasen and Hansen's current availability to testify at the trial, the materiality of the testimony of Sewell and Miler appears, on this record, to be minimal. The government has identified only one distinction between the testimony to be provided by the four witnesses: Hansen and Miler would testify that they were offered the opportunity to participate in the transactions as compensation for their employment at an accounting firm; the other two witnesses would not. Thus, the testimony of Sewell and Miler simply would be cumulative of that of Aasen and Hansen, and "a court may properly deny the motion [to take depositions] if the proposed testimony would be cumulative."
For the foregoing reasons, the government's motion to take depositions and to supplement its witness list [docket item 867] is granted to the extent that it may add Hansen and Miler to its witness list. It is denied in all other respects without prejudice to renewal if the availability of Aasen and Hanson changes.