United States District Court, District of Columbia
OPINION ADMITTING RULE 15(A) DEPOSITION AT CRIMINAL
ROSEMARY M. COLLYER United States District Judge.
the objections of Defendants Pheerayuth Burden and Wing-On
LLC, this Court ruled that the videotaped deposition of
former co-defendant Kitibordee Yindeear-Rom could be admitted
at their criminal trial. This Opinion explains that decision,
announced from the bench during the pretrial conference on
August 29, 2016. This opinion pre-dates the conclusion of
Defendants' trial so the trial outcome remains unknown
and each Defendant is presumed innocent.
Yindeear-Rom is a native of Thailand and lives in that
country. He came to the United States on a B1/B2 visitor visa
in October 2013, not knowing that he was a target of a
long-term investigation into an international conspiracy to
export defense articles illegally from the United States to
Thailand without an export license, in violation of the Arms
Export Control Act (AECA), 22 U.S.C. § 2778(b)(2), and
the International Trade in Arms Regulations (ITAR), 22 C.F.R.
Part 120, et seq. Questioned when he arrived, Mr.
Yindeear-Rom was arrested in California on his third day in
this country, on October 29, 2013.
Yindeear-Rom was transferred to this jurisdiction, where the
complaint against him had been lodged and the arrest warrant
issued, and he appeared before a judicial officer on November
14, 2013. After three defense motions to continue a
Preliminary/Detention Hearing and suspensions of the Speedy
Trial Act, see 11/14/13 Oral Motion to Continue by
Kitibordee Yindeear-Rom; 12/2/2013 Oral Motion to Continue;
2/6/14 Oral Motion to Continue by Kitibordee Yindeear-Rom,
Mr. Yindeear-Rom and Pheerayuth Burden were both indicted in
Case 14-cr-00069 on March 25, 2014. See Indictment
[Dkt. 8]. The single count indictment charged both men with
conspiracy to violate the AECA by exporting and attempting to
export defense articles.
Burden is a Thai national who resides in California. His
company, Wing-On LLC, is in the freight-forwarding business.
Purchasers can have U.S. goods sent to Wing-On in California,
and then repackaged into shipping crates to go by sea or
boxes to go by air to other international destinations. Mr.
Burden and Wing-On lawfully forwarded a multitude of U.S.
products in this fashion. According to the Indictment,
however, Mr. Burden and Mr. Yindeear-Rom conspired to have
U.S.-origin defense articles delivered to Wing-On in
California and then re-packaged and shipped to Thailand.
Exporting defense articles without a license is illegal under
the AECA and ITAR.
Burden was arrested in California on May 4, 2014 and first
appeared before a judicial officer of this Court on May 7,
2014. Mr. Yindeear-Rom continued to be detained, but Mr.
Burden was released on personal recognizance bond.
the parties' needs to receive, analyze, and understand
the wealth of documents involved in this case, many of which
needed to be interpreted from Thai into English, caused
Yindeear-Rom entered a plea of guilty to a Superseding
Information on November 14, 2014. He pled guilty to one count
of conspiracy to export defense articles in violation of AECA
and ITAR and to forfeiture. There was no agreement that Mr.
Yindeear-Rom would cooperate with the government in the
prosecution of Mr. Burden. At the same time, Mr. Yindeear-Rom
agreed with prosecutors to a Stipulated Request for Judicial
Removal. The entry of such an order would “render him
permanently inadmissible to the United States.”
Stipulated Request [Dkt. 32] ¶ 13. “Accordingly,
defendant Kitibordee Yindeear-Rom, and the United States
jointly request[ed] that the Court, after imposing sentence,
order that the defendant be removed from the United States so
that promptly upon his release from confinement (if any),
United States Enforcement and Removal Operations may execute
the order of removal according to the applicable laws and
regulations.” Id. at 3.
Yindeear-Rom was sentenced by this Court on March 17, 2015 to
thirty-six (36) months incarceration with credit for time
served since October 2013.
preparation for the charges against Mr. Burden dragged on.
Finally, on April 14, 2015, the Court ordered that trial
would begin on November 16, 2015, preceded by scheduled
motions due dates and hearings.
Superseding Indictment was returned on July 16, 2015, naming
Mr. Burden and Wing-On LLC as Defendants. See Dkt.
48. The Superseding Indictment charges both Defendants with
conspiracy to export defense articles willfully without a
license in violation of the AECA and ITAR; with specific
instances of willfully exporting or attempting to export
certain defense articles; and with conspiracy to engage in
money laundering. The Superseding Indictment also contains a
the addition of a new Defendant and new allegations, it
became necessary to continue the trial set for November 2015.
Counsel for Wing-On entered an appearance on September 10,
2015. At a scheduling conference on September 25, 2015, the
trial and all accompanying deadlines were re-set, with trial
to begin on April 4, 2016.
parties then jointly moved, on December 23, 2015, to continue
the April 4, 2016 trial date to “any date in September
2016.” Joint Mot. to Continue [Dkt. 61] at 1. The
reason for the request was that an Assistant United States
Attorney (AUSA) had learned of “a family/medical matter
which [was] scheduled to occur in very close proximity to the
scheduled trial date. The matter [could] not be
rescheduled, and the parties  discussed the matter and
determined that a continuance of the trial [was] in all of
the parties' best interest[s].” Id.
Court expressed its exasperation at the trial delay and
suggested that another AUSA be added to the prosecution team
so that trial could go forward in April 2016. The government
complied and introduced the new AUSA at a status conference
held on January 7, 2016. However, counsel for Wing-On made a
strong plea for a continuance because not all Thai documents
had been presented in final translation, which would make it
difficult for him to learn the case thoroughly enough to
prepare sufficient pre-trial motions on
schedule. The Court acceded and entered an amended
scheduling and pretrial order on January 8, 2016, setting
trial for September 12, 2016.
Rule 15 Deposition
light of the delay in the trial to September, on February 10,
2016, the United States filed a Motion for a Deposition
Pursuant to Rule 15 of the Federal Rules of Criminal
Procedure, asking the Court to authorize the deposition of an
important witness “who is expected to be deported from
the United States prior to the September 12, 2016 trial
date.” Mot. to Seal Mot. for Rule 15 Deposition [Dkt.
64] at 1; see also Mot. for Rule 15 Deposition [Dkt.
64-2] at 1 (“Specifically, the purpose of this
deposition is to preserve the first-hand testimony of prior
co-defendant Kitibordee Yindeear-Rom about the significant
involvement of defendants Pheerayuth Burden (BURDEN) and
Wing-On LLC (WING-ON) in the charged offenses. Mr.
Yindeear-Rom is currently in custody in the United States but
will be beyond the subpoena power of the United States at the
time of the trial scheduled for September 12, 2016, as he
will be deported following his release date in June
2016.”). The motion added, “[n]otably, the terms
of the plea agreement required Mr. Yindeear-Rom, a Thai
national, to stipulate to a judicial order of removal
following the completion of his sentence, pursuant to 8
U.S.C. Section 1228(c)(5), which was entered by the Court on
November 24, 2014.” Mot. for Rule 15 Deposition at 3
(citing Plea Agreement [Dkt. 28] and Stipulated Request [Dkt.
opposed the motion, arguing that Mr. Yindeear-Rom was not
“unavailable” as required by Rule 15 because he
was in U.S. custody and would be until at least 30 days after
the end of his term in prison because it would take about
that long for the deportation process to conclude. Defendants
did not then-and do not now-argue that Mr. Yindeear-Rom would
not be deported and therefore unavailable for trial. Instead,
Defendants argued that a proper Rule 15 deposition could only
occur very close to the time of Mr. Yindeear-Rom's
deportation; they also opposed the prosecutor's
preference to conduct the deposition in March 2016 so that
Mr. Yindeear-Rom might earn a Rule 35 motion to reduce his
between taking at Rule 15 deposition and
admitting it at trial, the government replied that
“[i]f and when the government seeks to admit the
deposition at trial, and if the defendants can identify a
material question or subject area that could have been
explored but was not, because the deposition was conducted at
this time, curative measures can be taken to safeguard such
concerns to include redactions or stipulations or limitations
on the use of the deposition.” Reply [Dkt. 72] at 3. In
addition, the government described Mr. Yindeear-Rom as a
“material, ” but not a “key” witness,
attributing the latter to the investigators and documents.
Court granted the Rule 15 motion, finding that “Mr.
Yindeear-Rom could provide testimony that is material; he
will be unavailable to testify in September 2016 if deported
before then; and there is no procedural barricade to taking
his videotaped deposition under Rule 15 as proposed.”
Mem. Op. [Dkt. 74] at 4. In addition, the Court found that
the use of a videotaped deposition taken in court, before the
trial judge and including the presence of Mr. Burden and
cross examination by both defense lawyers, while a substitute
for Mr. Yindeear-Rom's trial presence, was nonetheless a
very good substitute that would allow the jury to observe his
demeanor and preserve the Defendants' rights to confront
witnesses against them. “In addition, if Mr.
Yindeear-Rom is not [deported] by September 2016,
the government fully intends to have him testify in
person.” Id. at 4-5 (emphasis in original).
Therefore, the Court found that there were exceptional
circumstances and it would be in the interest of justice to
allow the deposition to be taken. See id. at 5;
see also Fed. R. Crim. P. 15(a)(1).
deposition was scheduled to take place in the courtroom,
before the Court and all parties and counsel, on March 23,
2016. See 3/9/16 Minute Order. Beginning on the 23rd
of March with direct examination, the deposition continued on
March 24, March 30, and April 4, 2016, when it was concluded.
Counsel for Defendants Burden and Wing-On were given full
flight to question Mr. Yindeear-Rom for hours and days
without curb or limit. Mr. Burden was in attendance
the United States filed a Rule 35 motion to reduce Mr.
Yindeear-Rom's sentence, which was granted. See
Am. Judgment [Dkt. 88]. On an unknown date in April 2016, Mr.
Yindeear-Rom was deported from the United States and
transported to Thailand.
Attempts to Procure Mr. Yindeear-Rom's
Mr. Yindeear-Rom was deported, the government attempted to
contact him through his counsel. The government contacted
counsel via telephone and letter on July 11 and 12, 2016.
See Mot. to Admit, Ex. 1 [Dkt. 99-1]. The letter
included a subpoena for Mr. Yindeear-Rom's testimony at
trial. See id. The government assured Mr.
Yindeear-Rom's counsel that “the United States has
a strong interest in having Mr. Yindeear-Rom testify in
person, and will pay for Mr. Yindeear-Rom's expenses for
travel to, and stay in, the United States, including but not
limited to round-trip airfare, transportation, room, board,
and per diem witness fee.” Id. In order to
faciliatate his entry into the United States, the government
agreed to assist Mr. Yindeear-Rom in obtaining a visa to
return to the United States. See id. Counsel for Mr.
Yindeear-Rom forwarded the letter and subpoena to Mr.
Yindeear-Rom in Thailand, but was unable to confirm receipt
or make any representations about Mr. Yindeear-Rom's
willingness to testify.
government also sent the letter and subpoena directly to Mr.
Yindeear-Rom's last known email and physical address in
Thailand, which advised Mr. Yindeear-Rom of the same payment
and assistance in entry that the government was willing to
undertake to obtain his live testimony at trial. See
id., Ex. 2 [Dkt. 99-2]. By the date of the pretrial
conference, the government had received no response to either
the email or physical letter sent to Mr. Yindeear-Rom.
However, the government was able to confirm that the physical