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United States v. Cooper

United States District Court, District Circuit

June 3, 2013

UNITED STATES OF AMERICA
v.
JON C. COOPER, Defendant.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

Before the Court is [37] defendant Jon Cooper's motion to reconsider the Court's December 28, 2012 order granting the government's motion to depose two Indonesian witnesses under Federal Rule of Criminal Procedure 15. In his motion, Cooper asserts that the Rule 15 depositions would violate his rights under the Confrontation Clause of the Sixth Amendment. Since the motion was filed, however, there have been material developments regarding the procedures to be used at the depositions, which have the potential to resolve many if not all of Cooper's confrontation concerns. On May 16, 2013, the Court held a hearing on Cooper's motion to reconsider. At the hearing, Cooper's counsel acknowledged that if the Rule 15 depositions proceed in the manner outlined in the government's May 10, 2013 status report, then Cooper may be afforded an adequate opportunity to confront the two Indonesian deponents. Nevertheless, Cooper continues to oppose the taking of the depositions on several grounds, and argues that the government's latest status report – filed May 29, 2013 – is further indication that the depositions should not take place. For the reasons that follow, the Court concludes that the scheduled depositions may go forward.

BACKGROUND

On December 28, 2012, the Court granted the government's motion to take the depositions of Hotasi Nababan and Tony Sudjiarto. See 12/28/12 Order [ECF 20]. Nababan and Sudjiarto are executives of Company A, an Indonesian company allegedly defrauded by Cooper as set forth in the superseding indictment. See Superseding Indictment [ECF 36]. In support of its motion to take the foreign depositions, the government represented that, in the course of the alleged fraudulent scheme, Cooper and his co-conspirator communicated with Nababan and Sudjiarto via email and in person and made false representations to them. See Gov't's Mot. for Order to Take Foreign Deps. [ECF 14] 3-4, 8. The government also represented that a prosecutor in the Indonesian Attorney General's Office said that neither Nababan nor Sudjiarto would be permitted to leave Indonesia to give deposition or trial testimony because of ongoing legal proceedings against them. See id.

Based on the allegations in the indictment and the government's representations, the Court concluded that (1) the deposition testimony sought was material and (2) the two witnesses were unavailable to testify at trial, and hence that the depositions could be taken under Rule 15. See 12/28/12 Order 1-2 (citing Fed. R. Crim. P. 15(a)(1); United States v. Kelley, 36 F.3d 1118, 1124-25 (D.C. Cir. 1994)). The Court also concluded that the foreign depositions could be taken without Cooper's presence because the circumstances of this case met the requirements of Rule 15(c)(3). See id. at 2. In concluding that Cooper would be able to "meaningfully participate in the deposition through reasonable means, " Fed. R. Crim. P. 15(c)(3)(E), the Court relied on the proposed procedures for the depositions, which the government anticipated using "[t]o the extent permitted by Indonesian authorities." See 12/28/12 Order 2-4 (requiring United States to request permission from Indonesian authorities to take depositions pursuant to proposed procedures, which included examination and cross-examination by counsel and Cooper's remote participation).

Following the Court's December 28, 2012 order, Indonesian officials approved the taking of the depositions of Nababan and Sudjiarto, and the United States took steps to schedule the depositions and gain permission to conduct the depositions as proposed. The government has submitted a series of status reports indicating the posture of its requests to the Indonesian authorities. See Status Reports, Dkt. Nos. 24, 25, 29, 42, 43.

On April 4, 2013, Cooper moved for reconsideration of the Court's order granting the motion to take depositions. At that time, it appeared "likely" that the Indonesian authorities would require the depositions to proceed by written questions to be asked by a magistrate. See Def.'s Mot. to Reconsider Order to Take Foreign Deps. [ECF 37] ("Mot. to Reconsider"), Ex. D, 3/27/13 Email. In other words, government and defense counsel would have to submit their questions and exhibits to Indonesian officials in advance of the depositions, and an Indonesian magistrate would ask the questions at the depositions. See id. Government counsel had informed defense counsel of its request that the witnesses be deposed in trial-like fashion and of the Indonesian authorities' response that they "would consider whether to grant an exception." See id. As to other requested procedures, the Indonesian authorities had not yet given government counsel a response. See id. In Cooper's motion to reconsider, he argued that the anticipated deposition procedures would not adequately protect his confrontation rights for two main reasons: no oath would be administered, and he would not have a meaningful opportunity for cross-examination. See Mot. to Reconsider 6-15.

On April 26, 2013, government counsel met with Cahyo R. Muzhar, Director of the Indonesian "Central Authority, " to further discuss the depositions. See Gov't's 5/10/13 Status Report [ECF 42] 1. At the meeting, Muzhar agreed to many of the government's requests regarding the deposition procedures, including the requests that an oath or affirmation be administered and that counsel for both sides be permitted to examine the witnesses. Id. at 3-4. Specifically, as stated in the government's May 10, 2013 status report:

5. Oath. Indonesia will permit a United States consular officer to place each witness under oath or affirmation, and draw their attention to the importance of giving truthful testimony.
7. Mode of Questioning and Examination. Indonesia will permit examination by both the United States and Counsel for Mr. Cooper. Indonesia will permit examination in the style of a deposition conducted pursuant to Rule 15 of the Federal Rules of Criminal Procedure in the United States and associated rules. Understanding that a videotape of the depositions may be used at a trial in the United States, the examination will follow the pattern of such trial testimony: it will begin with direct examination by the United States, followed by cross-examination by Counsel for Mr. Cooper, and concluding with re-direct examination by the United States.

Id.

According to the government, Muzhar also acceded to its requests for the following: the use of an official interpreter at the depositions; permission for Cooper to have a second interpreter for his private use; videotaping of the depositions; transcription of the depositions either in real time or after the fact; the parties' ability to lodge objections on the record; a video and audio link allowing Cooper to observe the depositions live; and the opportunity for Cooper to consult privately with his counsel by phone. Id.[1] Muzhar has agreed to put these procedures in writing, but to date has not yet done so. See id. at 1.

On May 16, 2013, the Court held a hearing on Cooper's motion to reconsider. After the hearing, the government filed a further status report, following a May 29 conversation with Muzhar. In relevant part, the status report provides that: the depositions are currently scheduled for the five days beginning June 24, 2013, and ending June 28, 2013; the government has "reiterated its request to reach a written agreement or understanding on deposition procedures" and Muzhar has "reiterated his earlier statement that he believed such a written agreement/understanding could be reached prior to the depositions; and the procedures expected to be used at the depositions are the same as the procedures set forth in the government's previous status report, except for the following changes as to the manner of questioning and examination, as described by the government:

5. Mode of Questioning and Examination. Mr. Muzhar has earlier made representations about the mode of questioning both in a meeting on or about March 27 and in a meeting on or about April 26. In the May 29 phone call, Mr. Muzhar stated that, in the initial stage of questioning, an Indonesian magistrate will question the witnesses based upon written questions submitted by the parties. However, both parties would be permitted to ask follow-up questions, and there would be no restrictions on the follow-up questions, including the ability to re-ask questions posed by the Indonesian magistrate. The undersigned expressed his particular concern that the defense be permitted to cross-examine the witnesses through counsel. More than once, Mr. Muzhar gave his personal assurance that both parties would be able to ask all questions that they desired. Based on the nature of this and previous conversations, it is the undersigned's impression that Mr. Muzhar was navigating a situation where (a) Indonesian practice and institutions ordinarily require examination by magistrate; (b) there is no Mutual Legal ...

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