July 2007, Page 38

Federal Law Issues in Obtaining Evidence Abroad -- Part Two
By Linda Friedman Ramirez



Witness Entry to the United States

Defense Witnesses Willing to Travel to the United States
A foreign national witness may be willing to travel voluntarily to the United States to testify at trial.1 Arranging travel and entry for a witness from outside the United States requires advance planning. Presenting a court subpoena alone will not be sufficient for entry into the United States. To the extent that the witness will travel from a country participating in the visa waiver program, this task may be less arduous. However, it is more than likely that the potential witness may be from a country from which nationals are not routinely admitted to the United States, and may require a special interest parole from the Department of Homeland Security.

Some consulates have a reputation of providing first-rate assistance for facilitating the entrance of witnesses into the United States for trial. In order to prevent denial for any avoidable reason, however, it may be prudent to consult an immigration attorney or expert at an early stage in preparing and submitting the application.

It is important for counsel to begin the process as soon as possible so that he or she can seek judicial intervention in the event of any unreasonable delay or denial. Moreover, this allows counsel to make an appropriate record for purposes of appeal if the government has unreasonably refused to grant a visa. In addition, if there is any possibility that the witness does not, in fact, want to testify and fails to cooperate with the visa application process, the defendant will be in a better position to argue that the witness is “unavailable” for purposes of Rule 15(a) of the Federal Rules of Criminal Procedure.

Witnesses Incarcerated Abroad
In the case of a defense witness incarcerated abroad, it is possible that a Mutual Legal Assistance Treaty (“MLAT”) with the respective country will encompass witness transfer. Furthermore, pursuant to 18 U.S.C. § 3508(a), the attorney general has authority to request the transfer of that person to the United States.2 If the prisoner is detained abroad in the custody of the United States, the defendant should be able to request that the court issue a writ.3

Section 3508(a) contemplates the transfer pursuant to treaty, as well as in the absence of a treaty, if the witness and foreign government consent to the transfer.4 There appears to be no reported cases in which a defendant sought a court order to require the government to secure an incarcerated witness from abroad pursuant to this statute or pursuant to an MLAT. Nor are there cases in which defense counsel has objected to the testimony of a foreign citizen witness brought to the United States, pursuant to the statute, on the basis that the government had obtained the appearance of the witness in violation of or in the absence of a treaty without the requisite consent of the witness.

The absence of reported cases may be due to a defendant’s arguable lack of standing. The case of Wang v. Reno5 is worth noting, however. Wang Zong Xiao was a Chinese national paroled into the United States from the People’s Republic of China (“PRC”) to testify as a prosecution witness at the trial of several criminal defendants. At that trial, Wang testified that Chinese authorities had tortured and coerced him into confessing and testifying falsely. The court declared a mistrial and Wang successfully obtained an injunction against his removal. As part of his legal arguments against return to the PRC, Wang alleged the transfer to the United States to be a violation of 18 U.S.C. § 3508(c) because he had not consented to the transfer. The district court found that U.S. officials and prosecutors had engaged in an extraordinary pattern of misconduct that violated Wang’s Fifth Amendment due process rights.

Rule 15 Depositions
Preserving Foreign Witness Testimony
Although a court cannot compel a foreign national to travel to the United States to testify, pursuant to Rule 15(a) a court can authorize the taking of depositions to preserve the testimony for admission at trial.6 Such deposition testimony can then be admitted pursuant to Federal Rule of Evidence 804(b)(1); however, it should be noted that a prerequisite to admitting former testimony is that the party against whom the testimony is offered had the opportunity to examine or cross-examine the declarant at the time the out-of-court statement was made.7

Rule 15(a) provides:

A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.

It is important to keep in mind that Rule 15 depositions are not discovery depositions, but are only to be used for the purpose of preserving evidence.8
A defendant must first obtain the court’s approval to take a Rule 15 deposition. The actual procedure for taking the deposition is governed by Federal Rule of Civil Procedure 28(b)(2). In addition, a deposition must comply with the domestic law of the country where it will be taken.

The Department of State’s Web page, “International Judicial Assistance, Notarial Services and Authentication of Documents,”9 and the Department of State Foreign Affairs Manual10 are useful sources of information pertaining to the technical requirements of Rule 15 depositions. Some countries prohibit taking depositions, or may permit depositions only if witnesses are neither compelled to attend nor required to answer all questions.

In addition to the court’s order authorizing the Rule 15 depositions, it may be necessary for the defense to petition the court to issue a letter rogatory to the foreign court pursuant to Rule 28(b)(2) in order to secure the attendance of the witness at the foreign deposition. Also, a defendant has the right to be present at the deposition pursuant to Rule 15(c)(1), but courts may permit a foreign deposition to take place without the defendant’s presence.11

Defendant Must Demonstrate Exceptional Circumstances
In spite of the fact that this may be the defendant’s only means of presenting such evidence, there is no absolute right to a Rule 15 deposition. Depositions are generally disfavored in criminal cases.12 “In particular, because of the absence of procedural protections afforded parties in the United States, foreign depositions are suspect and, consequently, not favored.”13 Some courts will consider countervailing factors.

The burden is on the defendant to establish exceptional circumstances justifying the taking of Rule 15 depositions.14 “The decision to grant or deny a motion to take a deposition rests within the sound discretion of the trial court, and will not be disturbed absent clear abuse of that discretion.”15

Rule 15(a) does not provide a definition of “exceptional circumstances.” Notes to the 1975 amendments to the rule state, “A deposition may be taken only in ‘exceptional circumstances’ when it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved.…”

In determining whether the circumstances of a given case are sufficiently exceptional, courts have considered whether: (1) the witness is unavailable for trial, (2) the testimony of the witness is material, and (3) the testimony is necessary to prevent a failure of justice.16 In practice, the “exceptional circumstances” requirement of Rule 15 is met “if [the] witness’s testimony is material to the case and if the witness is unavailable to appear at trial.”17

It is essential for defense counsel to focus on making a sufficient proffer to demonstrate the unavailability and materiality of the witness and the testimony. If necessary, counsel should consider making such proffer in camera and if necessary, ex parte.

Witness Must Be Unavailable
The primary reason that a foreign national witness outside the United States is unavailable is the fact that the witness is not subject to compulsory process in a U.S. court. Most courts do not accept this sole fact as adequate to establish that the witness is unavailable.18

Although a court may accept the representations of counsel with respect to the unavailability of a witness,19 “conclusory statements of unavailability by counsel are insufficient,” the court stated in United States v. Chusid.20 “Although the rule does not necessarily require a conclusive showing of unavailability, it does require specific reason why the witness might not be available. Unfounded speculation is not enough.”21

Courts have ruled that a witness who is a fugitive or has been threatened with arrest is unavailable.22 Of course, a witness who has been removed or for whom the Department of Homeland Security refuses to grant a visa is considered unavailable. 23

On the other hand, it may be difficult to argue that the expense of bringing a witness to the United States is more than the expense of the foreign deposition, or that the witness cannot enter the country, if the government is willing to provide a visa. For example, in United States v. Oudovenko,24 the court denied the defendant’s motion for Rule 15 depositions of five former employees in Russia. The court considered the defendant’s high-level status with the company and agreed with the government that “his position in that company and his obvious influence within it suggests that he could prevail upon the witnesses to travel to the United States to testify in his defense.” The court also considered that the government had offered to obtain visas for the witnesses, whereas defense counsel had failed to show a good-faith effort to secure the presence of these witnesses at trial, for example by offering to pay their travel expenses. “The unwillingness of a witness to come to this country unless his expenses are paid does not necessarily mean that he is ‘unable to attend or prevented from attending’ the trial.”25

Courts appear to recognize that it would be unjust to treat a defense witness as available if the witness is capable but refuses to travel to the United States. Defense counsel may be required, however, to make a sufficient showing of the good-faith efforts to request that the witness appear voluntarily. Courts will consider whether the defendant has played any role in securing the unavailability of the witness. However, a familial relationship between the defendant and the witness, without more, does not warrant the inference that defendant is responsible for the unavailability of the witness or that the defendant could compel the witness to appear.26

Testimony Must Be Material
Courts have routinely ruled against defendants who sought Rule 15 depositions on the basis that the witness testimony was not material. Neither the rule nor the Advisory Committee’s note defines materiality, and courts have assessed this prong of the “exceptional circumstances” test in a variety of ways. Courts have asked, for example, whether the testimony is essential or critical to the defense, exculpatory, or capable of negating an element of the government’s case, or instead is cumulative or merely corroborative. “The testimony is material if it is ‘highly relevant to a central issue in the case’….”27

The principal consideration guiding whether the absence of a particular witness’s testimony would produce injustice is the materiality of that testimony to the case.28 Moreover, there is typically some showing, beyond “unsubstantiated speculation,” that the evidence exculpates the defendant. “But the rule imposes no requirement that the defendant show the expected testimony will surely acquit him.29 [Materiality] requires a reasoned basis for expecting that the testimony may exonerate him.”

Defense counsel may be unable to establish the materiality of a witness early on, and must weigh the need to make a timely request with the requirement of establishing materiality. Counsel may be able to argue that in order to avoid denying important evidence to the defendant, the defendant should not be required to make the same showing of materiality of a witness because of the defendant’s inability to gain access to the proposed witness.30

Some courts may consider that the proffered testimony of the witness is cumulative and merely corroborative of testimony that defendant himself is able to offer, and hence not material.31 In United States v. Hajbeh,32 the defense argued that preventing a Rule 15 deposition would violate the defendant’s Fifth Amendment right.33 The court ruled: “While the denial of defendant’s Rule 15(a) motion may certainly serve to encourage defendant to testify, he remains free to choose not to do so. Therefore, he is not, in any relevant sense, ‘compelled’ to testify because his free will [is not] overborne.”

Countervailing Factors
Courts will sometimes weigh any countervailing factors against authorizing the deposition.34 Countervailing factors include: (1) the fact finder’s inability to observe the demeanor of the deposition witnesses,35 (2) whether the laws where the deposition will be held restrict cross-examination of the witness, and (3) if the witnesses are placed under oath, whether the significance of that oath is diminished because there is no realistic perjury sanction.36

In the Oudovenko case, the court concluded that the inability to sanction a witness for perjury (in a case in which the defendant “may exercise some control over these witnesses”) resulted in “a heightened risk that an oath will be unable to instill in them a duty to tell the truth even if the truth hurts Oudovenko.”37

In addition, witness depositions deprive the jury of the opportunity to observe the witnesses as they testify. Thus, the jury is hampered in its ability to make credibility assessments and to weigh the evidence fairly. Although this deficiency may be ameliorated in part by the use of videotape, “it remains true that the jury’s ability to assess a witness’s demeanor is significantly curtailed.”38

Counsel should mimic the same arguments used by the prosecution when seeking Rule 15 depositions for prosecution witnesses, that is, that the court should deny an order to take a deposition only when “significant countervailing factors … would render the taking unjust.”39 An injustice to the government is likely to be nearly non-existent and certainly outweighed by the court’s need to avoid a violation of the defendant’s due process rights. In general, denial of a defendant’s motion, absent alternative means to present such evidence at trial, is a denial of the Fifth and Sixth Amendments.

In the event that the court denies the motion, however, counsel should be certain that a proffer of the anticipated testimony has been made part of the record so that the issue can be reviewed on appeal. In addition, the defendant may want to seek admission of relevant and favorable statements of the witness under Rule 807, the residual hearsay rule.40

Video-Conferenced or Satellite Testimony

Defense Use of Video-Conferenced Witness Testimony
Due to advances in courtroom technology, defendants may want to seek court authorization to allow videoconferencing of foreign witnesses. This would allow the witnesses to testify “live” during a trial, so that they can be examined by defense counsel in front of the jury. The prosecution has no right to confrontation, and as argued by the government in United States v Yates, two-way video conference testimony is more protective of a defendant’s rights than the method of admitting testimony of an unavailable witness provided by Rule 15.41

Counsel’s strategic decision to seek videoconferencing as opposed to a Rule 15 deposition might depend on how the witness will appear on screen as well as the pros and cons of live testimony while the trial is underway. In addition, a defendant may need to make this request well in advance of trial so that there is still sufficient time for a Rule 15 deposition in the event the court denies the request. Also, counsel will need to investigate the domestic laws of the country from which the witness would testify in order to determine whether video-conferenced testimony might be prohibited or whether there are any restrictions that could render it objectionable.

Many of the same arguments in support of Rule 15 depositions will apply to a defendant’s motion for video-conferenced testimony.

The government’s primary objections may be the lack of sanction for perjured testimony, particularly if there is no extradition treaty between the two countries. The defense can argue, however, that to the extent a witness testifies subject only to the laws of the foreign country where he or she is located, there is no difference between video-conferenced versus deposition testimony. While a lying witness could ultimately evade prosecution for perjury, at least the jury would have a better opportunity to assess the credibility of the witness by virtue of the visual image and contemporaneous testimony.

In addition, the defendant may want to argue that the video-conferenced testimony is nearly equivalent to in-court testimony. The defense is still prejudiced by the fact that the witness is not present in the courtroom, and the jury may also disfavor such testimony. If there are no foreign law and technical obstacles, the defendant can offer safeguards such as allowing only the court official, the court reporter, and necessary technical staff to be in the room where the witness is testifying. Video-conferenced testimony is also more likely to prevent witness tampering or undue influence.

Defense counsel should also consult the courtroom technology staff to confirm the video conferencing system in use, the availability of two-way audio, and the capability to transmit a good quality image.

Use of Rule 15 Depositions or Video-Conferenced Testimony by the Prosecution
The defense will want to consider challenges to the prosecution’s request for Rule 15 deposition or video-conferenced testimony on confrontation grounds. The Sixth Amendment’s confrontation clause guarantees criminal defendants the right to confront and cross-examine adverse witnesses. The Supreme Court has held that the confrontation clause requires that the defendant have the opportunity to cross-examine an adverse witness face-to-face, thereby permitting the trier of fact to evaluate the credibility of the witness.42 However, the Court has also ruled that a criminal defendant’s fundamental right to confront his or her accuser is subject to some limitations.43

In Maryland v Craig,44 the Supreme Court ruled that face-to-face testimony is not required in all trials. The preference for face-to-face confrontation must occasionally give way to considerations of public policy and the necessities of the case. Courts will consider whether the video-conferenced testimony is reliable.
The prosecution’s use of Rule 15 depositions may violate the defendant’s right to confrontation if the defendant is unable to confront the witness.45 For example, even in a videotaped deposition:

The witness is not confronted in the courtroom. The immediacy of a living person is lost. In the most important affairs of life, people approach each other in person, and television is no substitute for direct personal contact. Videotape is still a picture, not a life, and it does not come within the rule of the confrontation clause, which insists on real life where possible, not simply a close approximation.”46

Acknowledging that video-conferencing may be better than videotaped depositions, Judge Gertner in United States v. Nippon47 expressed concern:

The testimony of the witness would still be mediated via video screen, and studies have suggested that television and video screens necessarily present antiseptic, watered down versions of reality.48 Much of the interaction of the courtroom is missed.49

In United States v. Yates,50 decided after Crawford, the Eleventh Circuit held that Craig applies to video-conferenced testimony, and that under Craig such testimony may be offered “only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”

The court in Yates also stated: “The simple truth is that confrontation through a video monitor is not the same as physical face-to-face confrontation. The Sixth Amendment’s guarantee of the right to confront one’s accuser is most certainly compromised when the confrontation occurs through an electronic medium. Indeed, no court that has considered the question has found otherwise.”

The court found that there was no evidentiary support for the district court’s finding that the government’s interest in expeditiously resolving the case created a “necessity” for the video testimony. “If we were to approve introduction of testimony in this manner, on this record, every prosecutor wishing to present testimony from a witness overseas would argue that providing crucial prosecution evidence and resolving the case expeditiously are important public policies that support the admission of testimony by two-way video-conference.”

Arguments against the use of video-conferenced testimony include the absence of the “intangible elements of the ordeal of testifying in a courtroom that are reduced or even eliminated by remote testimony.”51

Defendants can also argue that video-conferencing with an interpreter present further impairs a defendant’s right to confrontation. “To a degree, the presence of a translator already compromised the defendant’s confrontation rights,” the court said in Nippon.52

Generally, the government’s “need” to use video-conferenced testimony or depositions in order to prosecute international cases is not enough to make the procedure constitutional. “In this, as in other criminal cases, the demands of efficiency and even necessity do not create automatic exceptions to constitutional requirements.”53

Of course, it is a tactical decision whether to oppose video-conferenced testimony of a prosecution witness. If it appears that a witness will not be able to testify by video-conference, the prosecution miraculously just might make the witness available at the time of trial.

Conclusion
No aspect of criminal defense practice may be as exciting as learning the legal system of a foreign country and expanding one’s experience into the field of international criminal law. The jurisprudence in this area is likely to undergo a great deal of change in the 21st century, and criminal defense attorneys have an opportunity to be part of the transformation.

Notes
1. See United States v. Fillipi, 918 F.2d 244 (1st Cir. 1990).
2. 18 U.S.C. § 3508 (a): When the testimony of a person who is serving a sentence, is
in pretrial detention, or is otherwise being held in custody, in a foreign country, is needed in a State or Federal criminal proceeding, the Attorney General shall, when he deems it appropriate in the exercise of his discretion, have the authority to request the temporary transfer of that person to the United States for the purposes of giving such testimony, to transport such person to the United States in custody, to maintain the custody of such person while he is in the United States, and to return such person to the foreign country.
3. See United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004).
4. 8 U.S.C. § 3508 (c) provides:
Where there is a treaty or convention between the United States and the foreign country in which the witness is being held in custody which provides for the transfer, custody and return of such witnesses, the terms and conditions of that treaty shall apply. Where there is no such treaty or convention, the Attorney General may exercise the authority described in paragraph (a) if both the foreign country and the witness give their consent.
5. 81 F. 3d 808 (9th Cir. 1995).
6. Some countries, such as the People’s Republic of China, do not permit the taking of depositions.
7. United States v. Salim, 855 F.2d 944, 953 (2d Cir. 1988) (At trial, the lower court admitted the written deposition of a witness that had been taken in France, pursuant to French law, in spite of the fact that the French magistrate would not allow defendant’s attorney in the room where the witness testified. The court held that the deposition’s admission was proper under Rule 15, Fed. Rule Evid. 804 (b)(1), and the Sixth Amendment. The deposition was properly admitted because defendant’s counsel had a full fair opportunity to cross-examine the witness, and the deposition bore sufficient indicia of reliability that the fact finder could evaluate its truth.
8. See United States v. Steele, 685 F.2d 793, 809 (3d Cir. 1982).
9. http://travel.state.gov/law/info/ judicial/judicial_702.html.
10. http://foia.state.gov/masterdocs/ 07fam/07fam0920.pdf.
11. See Salim.
12. United States v. Milian-Rodriguez, 828 F.2d 679 (11th Cir. 1987).
13. United States v. Alvarez, 837 F.2d 1024, 1029 (11th Cir.), cert. denied, 486 U.S. 1026 (1988).
14. United States v. Fuentes-Galindo, 929 F.2d 1507, 1510 (10th Cir. 1991).
15. United States v. Johnpoll, 739 F.2d 702, 708 (2d Cir. 1984) .
16. United States v. Drogul, 1 F.3d 1546, 1552 (11th Cir. 1993); United States v. Ismaili, 828 F.2d 153, 161 (3d Cir. 1987).
17. Johnpoll, 739 F.2d 708; United States v. Sun Myung Moon, 93 F.R.D. 558, 559-60 (S.D.N.Y. 1982).
18. Johnpoll, 739 F.2d at 709.
19. United States v. Sindona, 636 F.2d 792, 804 (2d Cir. 1980), cert. denied, 451 U.S. 912 (1981).
20. United States v. Chusid, 2000 U.S. Dist. LEXIS 14007, (S.D.N.Y. Sept.27, 2000).
21. Id.
22. United States v. Farfan-Carreon, 935 F.2d 678 (5th Cir. 1991).
23. In United States v. Smith, 2006 U.S. App LEXIS 27144 (11th Cir. 2006), a witness was in the process of removal from the United States, and was detained pursuant to 18 U.S.C. § 3144. The witness requested a deposition, which was conducted with the defendant present. The videotaped deposition was offered at trial on the basis that the witness was not available. Defendant unsuccessfully objected on confrontation grounds.
24. 2001 U.S. Dist. Lexis 2549 (E.D. N.Y. 2001).
25. United States v. Bronston, 321 F. Supp. 1269 (S.D.N.Y. 2001).
26. United States v. Hajbeh, 284 F. Supp. 2d 380 (2003).
27. United States v. Drogoul, 1 F.3d 1546 (11th Cir. 1993).
28. United States v. Ismaili, 828 F.2d 153 (3d Cir. 1987).
29. United States v. Hagedorn, 253 F. Supp. 969, 971 (S.D.N.Y. 1966).
30. United States v. Greco, 685 F.2d 793 (3d Cir. 1982).
31. United States v. Hajbeh, 284 F. Supp. 2d 380 (E.D. Va. 2003).
32. Id.
33. U.S. Const., amend. V (“No person shall be . . . compelled in any criminal case to be a witness against himself”).
34. United States v. Ramos, 45 F.3d 1519 (11th Cir. 1995).
35. See Drogoul, at 1552.
36. United States v. Alvarez, 837 F.2d 1024, 1029 (11th Cir.) (foreign deposition testimony suspect because of the absence of a sanction for perjury); United States v. Oudovenko (because defendant may exercise some control over the witnesses, and heightened risk that an oath will be unable to instill in them a duty to tell the truth even if the truth hurts).
37. Oudovenko, supra.
38. Id.
39. See Drogoul, (court agreed that when a prospective prosecution witness is unlikely to appear at trial and his or her testimony is critical to the case, simple fairness requires permitting the moving party to preserve that testimony — by deposing the witness — absent significant countervailing factors which would render the taking of the deposition unjust).
40. See Sanchez-Lima. The videotaped statements in this case met all of these requirements. The statements possessed guarantees of trustworthiness because the declarants: (1) were under oath and subject to the penalty of perjury; (2) made the statements voluntarily; (3) based the statements on facts within their own personal knowledge; (4) did not contradict any of their previous statements to government agents and defense investigators; and (5) had their testimony preserved on videotape which would allow the jurors an opportunity to view their demeanor.
41. 438 F.3d 1307 (11th Cir. 2006); (prosecution defending use of video-conferenced witness as violation of Sixth Amendment right to confrontation).
42. See Maryland v. Craig, 497 U.S. 836 (1990).
43. Id.
44. Id.
45. But see Salim.
46. Stoner v. Sowder, 997 F.2d. 209, 212 (6th Cir. 1993).
47. United States v. Nippon Paper Industries, 17 F. Supp. 2d 38, 41 (Mass. 1998).
48. Nippon at 42 (referring to Gerbner et al., 1994; Lichter, Lichter, and Rothman, 1994, cited in Schrum and Wyer Jr., The Effects of Television Consumption on Social Perceptions: The Use of Priming Procedures to Investigate Psychological Processes, 24 J. of Consumer Res. 447 (1998)).
49. Nippon at 42 (“[I]n a telling scene in the movie “Twelve Angry Men,” the jurors were discussing the testimony of an old man who claimed to have heard a fight in the apartment above him, and then a loud noise, like a body hitting the floor. He reported that he ran to his apartment door just in time to see the defendant running down the stairs. One of the jurors, himself an elderly man, reminded the others about the way the elderly witness had walked to the stand before testifying; dragging one of his feet, he walked in a labored fashion, his gait slowed by some disability. It was an observation that would have been missed if the only aspect of the witness that the jurors saw was his face.”)
50. 438 F.3d 1307 (11th Cir. 2006).
51. United States v. Gigante, 166 F.3d 75 (2d Cir. 1999).
52. Nippon at 41 (While the jury heard the witness speaking in Japanese, immediately followed by the English translation, it was likely to miss the witness’s intonations, his tone of voice, or the emphasis he placed on words in a sentence.); id. at n.5 (“This point was emphasized during the Government’s heated examination of Mr. Hinoki in which the prosecution’s sharp language and tone were tempered by the time it took to translate questions, the cadence of the interpreter and the complexities associated with translating rhetorical questions into a language that is structured differently than English.”).
53. Nippon at 42.


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