Editor's Note: It appears that the defense might not have prevailed in their Rule 15 request....there is no reference to any deposition testimony of Abubakar?
There significant due process issues in the defense of a Foreign Corrupt Practices Act case, unless the Court is willing to make sure that the defense has the opportunity to present its defense.
While it is agreed that an American court does not have authority to subpoena a witness from outside the United States, at what point does a defendant have the basis to seek dismissal of a charge if no reasonable alternative is available? And what role will Mutual Legal Assistance treaties provide to defendants to secure witness testimony?
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Previously posted. Wall Street Journal. June 17, 2009
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Previously posted: A trial court judge in the E.D. Virginia, has not yet ruled whether Rule 15 depositions should be ordered in the case against William Jefferson, in spite of opposition by the government. The Order of January 23, 2009 is useful to practitioners, in that it reviews defendants efforts to obtain foreign evidence by seeking Rule 15 depositions, and by use of a mutual legal assistance treaty (MLAT) with Nigeria and letters rogatory."A sixteen-count indictment (the “Indictment”) charges William J. Jefferson, a former member of the United States House of Representatives, with a variety of crimes including bribery, conspiracy, wire fraud, foreign corrupt practices, money laundering, obstruction of justice, and racketeering. Among defendant's many pretrial motions is a request, pursuant to Rule 15(a), Fed.R.Crim.P., for an order permitting the depositions of Jennifer Douglas Abubakar, Atiku Abubakar, and Suleiman Yahyah-three individuals currently located in the Federal Republic of Nigeria (“Nigeria”) whose testimony he believes will be exculpatory on two charged crimes: (i) the charge, contained in count 1 of the Indictment, that he conspired to violate the Foreign Corrupt Practice Act (“FCPA”) in violation of 18 U.S.C. § 371; and (ii) the charge, contained in count 11 of the Indictment, that he violated the FCPA, specifically 15 U.S.C. § 78dd-2(a). In addition, since Atiku Abubakar and Suleiman Yahyah will not consent to being deposed, either in the United States or in Nigeria, defendant seeks either (i) an order requiring the government to invoke the Mutual Legal Assistance (“MLA”) Treaty between the United States and Nigeria to secure the depositions in Nigeria or (ii) the issuance of a letter rogatory to achieve the same result. For the reasons that follow, defendant's motion may not be granted at this time but must, for a limited period of time, await receipt of responses to a preliminary letter rogatory that will issue to the appropriate judicial authority in Nigeria requesting that Atiku Abubakar and Suleiman Yahyah be examined by written interrogatories regarding, among other things, their willingness to waive their Fifth Amendment rights and be fully deposed."
"At this point, defendant has not adequately established that exceptional circumstances exist to warrant deposing Mr. Abubakar and Mr. Yahyah, and so letters rogatory should not issue requesting Nigerian judicial officials' assistance in obtaining their depositions. Although defendant has adequately established that these witnesses would be unavailable to testify at trial and are likely to provide material testimony in a deposition in the event they waive the Fifth Amendment, defendant was unable to provide any assurance that the witnesses would not invoke the Fifth Amendment and therefore has not shown that they will provide material testimony.
Yet, rather than denying defendant's motion for authorization to take the depositions of Mr. Abubakar and Mr. Yahyah and his request for letters rogatory to secure the depositions, the motion is construed as including a request for judicial assistance in determining whether these witnesses would invoke the Fifth Amendment, and that lesser included motion is granted. Accordingly, a letter rogatory will issue requesting the appropriate Nigerian judicial authority to examine Mr. Abubakar and Mr. Yahyah by written interrogatories regarding their willingness to waive their Fifth Amendment rights and answer questions fully in a later deposition.
Given that the prospective witnesses need to be examined regarding this critical issue, it is also appropriate to have the witnesses answer whether, at defendant's expense, they would be willing to come to the United States and testify at defendant's trial. The letter rogatory will be sent directly to the Supreme Court of Nigeria and the Federal High Court of Nigeria and will also be sent to the United States Department of State for transmittal to the appropriate Nigerian judicial authority. Sixty days will be allotted to complete this process, after which defendant's request for depositions will be examined in light of the responses received, if any. If no responses are received, the available information does not warrant authorizing Rule 15 depositions.
