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United States v. O'Keefe

November 13, 2007

UNITED STATES OF AMERICA,
v.
MICHAEL JOHN O'KEEFE, SR., SUNIL AGRAWAL, DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

I. Background

On August 18, 2006, the Grand Jury returned an indictment against defendants Michael O'Keefe, Sr. and Sunil Agrawal ("defendants"). The indictment charged that O'Keefe, a United States citizen, and Agrawal, an Indian national with lawful permanent resident status in the United States, committed three felonies: 1) conspiracy to commit bribery, 2) bribery, and 3) aiding and abetting bribery. Indictment, ¶¶ 3, 7, 8. According to the government, O'Keefe used his official position at the U.S. Consulate in Toronto to expedite interview appointments for the employees of Agrawal's company, STS Jewels, Inc. Id., ¶ 8. The government contends that in return, O'Keefe received "things of value" from Agrawal and that this occurred over a period of 2.5 years. Id.

This case is before me for resolution of defendants' joint Request for International Judicial Assistance (Letters Rogatory) ("Request"). For the reasons stated below, the request will be granted.

II. Discussion

A. Deposition Testimony

1. Court's Memorandum Opinion and Order of September 12, 2007

Defendants first sought the issuance of letters rogatory on July 27, 2007. In support of their request, defendants argued that in order to mount their defense, they needed to take the depositions of four Canadian citizens employed by the U.S. Consulate in Toronto. Request at 2. According to defendants, the testimony of these individuals was critical because they were each employed at the US Consulate in Toronto during the period in question and they each had knowledge of that office's practices regarding the scheduling of appointments. Id.

Following a hearing on this matter held on September 12, 2007, I issued a Memorandum Opinion in which I explained why it was appropriate for defendants to take the depositions of these four employees. The rationale behind my decision was two-fold. First, I concluded that defendants had made an adequate showing under Rule 15 of the Federal Rules of Criminal Procedure that exceptional circumstances necessitated the taking of these depositions. United States v. O'Keefe, No. 06-CR-249, 2007 WL 2683635, at *3 (D.D.C. Sept. 13, 2007). Underlying the clear distinction between the availability of a deposition and its ultimate admissibility at trial was my appreciation of the fact that the government may not attempt to determine or limit defendants' possible defenses. Id. at *2. Second, because defendants might argue that the act of expediting interviews was not an "official act" under the statute*fn1 or that an expedited appointment was extremely easy to obtain, thereby undercutting the government's argument that Agrawal and his employees received special consideration, I concluded that the testimony of these witnesses was material and that their depositions should be taken. Id. at *2-3.

2. Schedule A

Attached to defendants' request for letters rogatory was an appendix labeled "Schedule A. " Schedule A, entitled "Lines of Inquiry for Testimony and Documentary Production," was intended by defendants to guide the examination of the witnesses.

The government contends however that four of the thirty-one lines of inquiry are simply too broad in their scope. Government's Response to Defendants' Proposed Request for International Judicial Assistance ("Response") at 4. According to the government, the four lines of objectionable inquiry are: 1) the witnesses' discussions with O'Keefe regarding expedited visa appointments; 2) the witnesses' knowledge regarding expedited visa interview appointments granted to employees of STS Jewels, Inc.; 3) the witnesses' knowledge regarding changes made to the consulate's expedited visa appointment policies after the indictment of O'Keefe; and 4) the witnesses' knowledge regarding written expedited interview appointment requests and approvals granted by any Canadians employed by the consulate. Id. The government condemns these lines of inquiry as "incredibly broad" or "clearly a fishing expedition into the witnesses' knowledge about the actions of the defendants." Id.

First, inquiring as to the knowledge the witnesses may have about defendants' actions is inquiring as to the issues that are at the very heart of the trial-whether defendants' acts were criminal. What the witnesses know about the expedited visa interview appointments granted STS Jewels, Inc. could not be more relevant. Second, statements by O'Keefe about expedited visa appointments, whether inculpatory or falsely exculpatory, would certainly be admissible. Third, the witnesses' knowledge of the granting of expedited appointment requests by other employees and how the policy might have been changed once O'Keefe was indicted bears on whether the expedited requests O'Keefe was granted were or were not in the ordinary course. As I pointed out in my Memorandum Opinion of September 13, 2007, "the more ordinary and common the behavior, the less likely it was uniquely designed to aid particular person." United States v. O'Keefe, 2007 WL 2683635, at *3. That is still true and therefore what the typical procedure was at the time and how it might have been changed since O'Keefe's indictment are legitimate avenues for inquiry.

Finally, in my Memorandum Opinion of September 13, 2007, I emphasized the fact that the admissibility of the deponents' testimony would be determined by Judge Friedman, either at trial or in limine. Id. at *2. It should also be recalled that, under the Federal Rules of Civil Procedure, a deponent may not be directed to refuse to answer a question during a deposition except to protect a privilege or enforce a court order. Fed. R. Civ. P. 30(d). The rule is animated by the obvious desire to eliminate any need to seek court relief during a deposition on the relevancy of every question to which an objection is raised or, if the court is not summoned during the deposition, to have to take the deposition again if the witness refuses to answer the question and the court thereafter rules that the witness should have answered the question. I expect the same procedure to be followed here, even though the Federal Rules of Civil Procedure may not apply ...


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