Foreign Evidence: Obtaining Injunction in Foreign Court Leads to Obstruction Enhancement

The Ninth Circuit affirmed the imposition of an enhancement for obstruction, based on the defendant's successful efforts to obtain an injunction in a foreign court to prevent testimony in the US during trial.

U.S. v. Kilbride--- F.3d ----, 2009 , 9th Circuit. .October 28, 2009.

"On June 8, 2007, several days prior to Law’s testimony, Defendant Kilbride filed an action in the courts of Mauritius against Law and other entities, alleging the illegal disclosure of Ganymede documents. He obtained a temporary injunction prohibiting Law and the other respondents from testifying concerning the affairs of Ganymede and related entities and beneficiaries. Kilbride filed his action shortly prior to the time for Law’s scheduled testimony, despite the fact that the Ganymede documents at issue in the action were obtained by the Government in 2005, and had been disclosed in discovery, and the fact that the the description of the events underlying the application of the obstruction of justice enhancement are drawn from the district court’s findings at sentencing, which are uncontested by Defendants.

Government had made arrangements in May 2007 for Law to travel and testify. In addition, in filing the action, Kilbride asserted an interest in Ganymede in contradiction to his attempts at trial to distance himself from Ganymede. Law subsequently declined to testify out of fear that he would be held in contempt in Mauritius. On June 11, 2007, in light of the injunction, the Government filed an emergency motion requesting that the district court enter a protective order determining the scope of Law’s testimony. When confronted by the district court at a hearing on the matter, Kilbride’s trial counsel agreed to take action that eventually led to the lifting of the injunction as to Law, allowing Law to testify. Rejecting Kilbride’s explanations for obtaining the order, the district court found that Kilbride filed the action as an intentional tactical maneuver to prevent Law from testifying and, therefore, merited application of the obstruction of justice enhancement. "