QUESTION PRESENTED
Can the new amendments
to Rule 15 be used to prevent Mr. G from traveling to the UK to be physically
present at a deposition?
BRIEF ANSWER
Probably; Mr. G’s
situation meets all the qualifications under the new rules to allow for a
foreign deposition without his physical presence. Mr. G’s pre-release
conditions could not be replicated in the UK, and his status as a citizen of
the United Kingdom creates additional flight risks that necessitate that he not
be allowed to travel out-of-custody. If he wishes to travel as an in-custody
defendant it would only be possible if the British official agree to take
control of him, and even then there is a risk that he may not return because he
could face charges over there.
ANALYSIS
On December 1, 2012 an amendment to Rule 15 of
the FRCRP will go into effect regarding the taking of depositions in foreign
countries. The purpose of the rule is to provide “a procedural framework” in
cases involving foreign witnesses distilling the analysis used in existing
caselaw. (June 2011 Memo of the Advisory Committee on the FRCRP). The entire
amendment is as follows:
(c) Defendant's Presence.
(1) Defendant in Custody. Except as authorized by Rule 15(c)(3),
the officer who has custody of the defendant must produce the defendant at the
deposition and keep the defendant in the witness's presence during the
examination, unless the defendant:
(A) waives
in writing the right to be present; or
(B) persists
in disruptive conduct justifying exclusion after being warned by the court that
disruptive conduct will result in the defendant's exclusion.
(2) Defendant Not in Custody. Except as authorized by Rule 15(c)(3), a
defendant who is not in custody has the right upon request to be present at the
deposition, subject to any conditions imposed by the court. If the government
tenders the defendant's expenses as provided in Rule 15(d) but the defendant
still fails to appear, the defendant--absent good cause--waives both the right
to appear and any objection to the taking and use of the deposition based on
that right.
(3) Taking Depositions Outside the United States Without the
Defendant's Presence. The deposition of a witness who is outside the United States
may be taken without the defendant's presence if the court makes case-specific
findings of all the following:
(A) the
witness's testimony could provide substantial proof of a material fact in a
felony prosecution;
(B) there
is a substantial likelihood that the witness's attendance at trial cannot be
obtained;
(C) the
witness's presence for a deposition in the United States cannot be obtained;
(D) the
defendant cannot be present because:
(i) the
country where the witness is located will not permit the defendant to attend
the deposition;
(ii) for
an in-custody defendant, secure transportation and continuing custody cannot be
assured at the witness's location; or
(iii) for
an out-of-custody defendant, no reasonable conditions will assure an appearance
at the deposition or at trial or sentencing; and
(E) the
defendant can meaningfully participate in the deposition through reasonable
means.
…
(f) Admissibility and Use as Evidence. An order authorizing a deposition to be
taken under this rule does not determine its admissibility. A party may use all
or part of a deposition as provided by the Federal Rules of Evidence.
Fed. R. Crim. P. 15
Even though the rule is not yet in effect it
will be in effect by the time Mr. G’s trial begins. The rule states that it is
to apply to all ongoing cases, therefore for the sake of efficiency the court
should use the new rule early. Otherwise, it risks having to having to amend
its own decision in just a few months to comply with the rules. Furthermore,
because the rule has been written over six years with the advice of many legal
experts and has been given the approval of the Supreme Court, it should be considered
a reputable authority on the issue.
Amended Rule 15(c)(3) says a deposition
outside the united states can be taken without the presence of an
out-of-custody defendant, like Mr. G, when “no reasonable conditions will
assure an appearance at the deposition or at trial or sentencing.” The question
of what constitutes a reasonable condition for release in a foreign country
should be similar to the analysis used when deciding any kind of pretrial
release conditions. US v. Sapse, 2011 WL 1576898 (D. Nevada,
2011). The actions taken to overcome these concerns in order to
secure the physical presence of the defendant at a foreign deposition “must be
undertaken in good faith, [but] they need not be heroic, and the possibility of
using a deposition does not evaporate even if those efforts prove
fruitless.” United States v. McKeeve, 131 F.3d 1, 8 (1st Cir. 1997)
(Involving an in-custody defendant who the U.K. refused to take custody of for
the duration of the deposition).
Flight Concerns
Currently, Mr. G’s pre-trial release
conditions include a curfew and electronic monitoring. He also has had to
surrender his passport. For the past four years, Mr. G has complied diligently
with these rules, but there is no way to replicate them in the UK. The U.S.
Marshal’s service lacks authority to enforce these rules on foreign soil. (McKeeve at
7). They have no authority to compel Mr. G to appear at the deposition. If he
were to choose to just walk away from them, they would have no authority to
stop him.
Furthermore, while the current pre-release
conditions may be satisfactory in the United States, they would be inadequate
overseas. Mr. G is a citizen of the United Kingdom with friends and family in
that nation. As a U.K. citizen the potential for flight are greatly increased
if he were allowed to return to his home country. Even though he has
surrendered his passport, once he was in the U.K. he could file to get a new
passport and receive it the same day under the Identity and Passport Service’s
Premium One-Day Service. He could also possibly borrow a passport from a friend
and use it without being detected because of lax security demonstrated by news
reports of an 11 year old boy flying from the UK to Rome with no passport or
ticket, a BBC reporter who was able to fly out of and into the UK on a private
plane without any passport check, and a couple who flew swapped passports and
went undetected through security- nobody noticing that the name, picture, or
genders didn’t match.
This is a huge issue because with a UK
passport and no visa he could travel to a number of countries that lack
extradition treaties with the United States including Croatia[1], The Marshall Islands[2], and Micronesia. Even
though the United States has extradition treaties with a number of other EU
nations that is no guarantee that the foreign nation will agree to extradition
or that it would be accomplished in a timely manner (see Polanski, Roman). Even
without a passport he could travel to any of the places within the UK common
travel area like Scotland, Ireland, and The Isle of Man making it possible for
him to disappear from justice.
Because of concerns over flight, the only
reasonable condition available to allow Mr. G’s physical presence is to be
placed into custody of U.K. officials, but even that may prove difficult to
arrange. In McKeeve the British authorities refused to take
custody of a defendant. If they similarly refuse to take custody in Mr. G’s
case the courts will not force the issue. In U.S. v. Salim the
French government’s refusal to allow a defendant to be present at a deposition
within the country did not render the deposition unusable in the Second
Circuit. “A sovereign nation is entitled to refuse to acquiesce in the use
within its borders of American methods of gathering, preserving and presenting
evidence; such refusal, however, should not automatically and invariably cause
the prosecution to abandon its efforts to obtain evidence abroad.” United
States v. Salim, 855 F.2d 944, 950 (2d Cir. 1988).
The government must make a good faith effort
to allow the defendant to appear at the deposition, but we are not held
responsible for the decisions of other nations. Our offer should be to allow
the defendant to travel in-custody if the UK authorities agree to take
responsibility for his care and transport to the deposition. It is possible
that they will refuse, as they did in the McKeeve case, but we have at least
demonstrated that we have made the effort which is all that will matter if the
issue is appealed.
Potential Charges in
Foreign Countries
Another potential issue arises when a
defendant’s crimes may subject them to criminal charges in the country where
they wish to travel for the deposition. The problem isn’t one of flight, but
that defendant will be subject to arrest and prosecution while in the foreign
nation, thus delaying his return to the United States to face trial and
sentencing. While this is not as strong an argument as the Flight issue, it is
still a potential problem which we could raise in regard to concerns surround
Mr. G’s travel to the U.K.
In U.S. v. Medjuck the 9th circuit
found that the fact that there was a Canadian warrant for his arrest justified
his preclusion from an in-person appearance at the deposition of a Canadian
witness. Medjuck, 156 F.3d 916, 920 (9th Cir. 1998). A warrant does
not need to be issues for this concern to be valid. In U.S. v. Abu Ali,
one of the cases the Judicial Committee cites as using during their drafting of
the new rule, a 4th Circuit court found that concern that the
defendant’s conduct “might subject him to prosecution overseas” were
reasonable. U Ali, 528 F.3d 210, 239 (4th Cir. 2008). The threat of
prosecution needed to be reasonable. In U.S. v. Snapse a
district court found that the fact that the defendant had been investigated for
criminal activity in Romania would not prevent him from being able to appear at
a deposition in the Ukraine as long as there was not an international warrant
for his arrest. Sapse, 2011 WL 1576898 (D. Nev. Apr. 26, 2011).
Mr. G’s legal situation in the UK is not as
certain as the one in the Medjuck case, where a warrant had
been issued. That being said, it is similar to the situation in Ali where
prosecution was possible. Mr. G has been questioned by the UK authorities, and
while they have given us no reason to believe that they are interested in their
own prosecution, we also have no way to prevent them from doing so. Mr. G, like
the defendant in Ali and distinguishable from the one in Sapse,
is asking to enter the country where the potential violation occurred. In Sapse the
risk of the defendant being held in Ukraine for activities in Romania would
have required jurisdictional hurdles making it less likely. Once Mr. G is in
the boarders of the United Kingdom, and possibly in their custody, there is
nothing preventing them from going forward with their own case other than their
verbal assurance that they won’t.
It’s possible that the court may take the UK’s
assertion that they are not going to proceed with their own charges against Mr.
G to be enough to eliminate these concerns. The existing cases to not deal with
that particular issue or offer court guidance in deciding what types of
overseas legal threats are reasonable. The Ali case clearly leaves this concern
open as one that may be used by courts in denying the appearance of a
defendant, but it is not as strong as the issues surrounding flight.
Use of Deposition at
Trial
It is important to note that the taking of a
deposition under rule 15 does not assure that it can be used at trial. It would
still need to meet Rule of Evidence 804 showing that a witness continues to be
unavailable to testify at trial. Additionally, the drafters of the new Rule 15
said that it might be possible for a deposition taken in accordance with the
new rules to be unable to be used at trial if “the technology [used for video
conferencing] is inadequate or fails” because such a deposition might violate
the defendant’s rights under the confrontation clause if the court finds the
technological glitches hampered the defendant’s ability to meaningfully assist
counsel in the cross-examination of the witness.
CONCLUSION
The amended Rule 15
should be used in advance of its official enactment for the sake of judicial
efficiency. If the court’s ruling does not comply with the new rule now, then
it will be possible to appeal that decision once the rule becomes effective
before the start of trial. Under the new rule, Mr. G could appear at the
deposition in a foreign nation if reasonable conditions are in place to assure
his appearance at the deposition and his return to face trial. Mr. G’s status
as a UK citizen, and the ease with which that status would allow him to
disappear in Europe, means that the only reasonable condition to allow for his
appearance would be to enter into custody. Even that may not be enough, since
the UK may not accept custody and if the UK choses to go forward with a
prosecution there is no way to compel his timely release. The flight argument
is probably the stronger of these issues since UK officials have offered assurances
they do not intend to go forward with their own prosecution. Although case law
suggests that the fact that prosecution is possible, even without a warrant or
indication that prosecution is imminent, may be enough to prevent a defendant’s
travel.
[1] Technically there is an extradition
treaty from 1901, but it is not being followed by the Croatian government who
refused to allow convicted arms dealer Peter Walaschek to be
returned to the United States. http://www.thedailybeast.com/newsweek/blogs/declassified/2010/01/15/u-s-angered-as-allies-fumble-extraditions-of-alleged-iranian-agents.html
[2] He would need a Visa, but these are
available upon entry at the airport with no prior authorization.
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