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United States v. Burden

United States District Court, District of Columbia

September 20, 2016

UNITED STATES OF AMERICA,
v.
PHEERAYUTH BURDEN, WING-ON LLC, Defendants.

          OPINION ADMITTING RULE 15(A) DEPOSITION AT CRIMINAL TRIAL

          ROSEMARY M. COLLYER United States District Judge.

         Over 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.

         I. BACKGROUND

         Kitibordee 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.

         Mr. 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.

         Pheerayuth 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.

         Mr. 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.

         Thereafter, 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 multiple continuances.[1]

         Mr. 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.

         Mr. 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.

         Trial 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.

         A 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 forfeiture allegation.

         With 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.

         All 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.

         The 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.[2] The Court acceded and entered an amended scheduling and pretrial order on January 8, 2016, setting trial for September 12, 2016.

         A. Rule 15 Deposition

         In 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. 32]).

         Defendants 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 sentence.

         Distinguishing 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.

         The 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).

         The 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 throughout.

         Thereafter, 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.

         B. Attempts to Procure Mr. Yindeear-Rom's Attendance

         After 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.

         The 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 letter ...


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