"UNITED STATES MOTION TO QUASH NOTICES OF DEPOSITION"
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA v. CASE NO.: 8:03-CR-77-T-30-TBM SAMI AMIN AL-ARIAN, SAMEEH TAHA HAMMOUDEH, GHASSAN ZAYED BALLUT, HATEM NAJI FARIZ UNITED STATES MOTION TO QUASH NOTICES OF DEPOSITION The United States of America by Paul I. Perez, United States Attorney, Middle District of Florida, hereby respectfully submits the following Motion to Quash Notice of Taking Deposition (Doc. 971), and requests oral argument on the issue. Disregarding procedures for conducting foreign depositions, on April 20, 2005, defendant Fariz served a notice to depose Naim Nasser Bulbol on May 2, 2005. Although the notice states that the deposition will occur at the videoconferencing facilities at the United States Courthouse in Tampa, Florida, the witness will be located in Gaza during the deposition. As set forth below, however, the defendant has failed to demonstrate that this deposition can be conducted in accordance with the law of the United States or the host jurisdiction. In other words, by his notice, the defendant assumes the mantle of a hypothetical foreign policy czar qualified to unilaterally interject the criminal process of the United States courts into the affairs of a foreign entity. Indeed, the defendant has approached this foreign deposition in a deliberately informal and careless fashion, despite several attempts by the government to suggest more proper means of obtaining the evidence that the defendant claims is so important to his case. As set forth below in greater detail, defendant Fariz's notice is insufficient to satisfy his burden of assuring the Court and the United States that the noticed deposition will be conducted in accordance with United States law and the law of the host jurisdiction. Specifically, defendant Fariz fails to establish: (1) who will administer the oath to the proposed deponent and under what authority he or she will do so; (2) how the oath will be administered to the proposed deponent; (3) what oath will be administered; (4) what law will apply to the deponent should he perjure himself; and (5) whether a right against self-incrimination or other rights apply to the deponent and, if one does, who will instruct the deponent on such rights. The United States notes that each of these is a fundamental requirement for taking a proper foreign deposition. Therefore, because defendant Fariz has failed to demonstrate that the noticed deposition may be taken in accordance with law, the United States requests that the Court quash the Notice of Deposition. LEGAL STANDARD Rule 15 permits a party to a criminal proceeding to take a deposition, pursuant to a Court order, to preserve testimony for trial. Fed. R. Crim. P. 15(a)(1). For the proposed deposition to be even potentially admissible at trial, defendant Fariz must establish that the testimony was given “in a deposition taken in compliance with law." Fed. R. Evid. 804(b)(1). In order for a deposition to be considered to be taken in accordance with law, the deposition must be, among other things: (1) given under oath or by affirmation "administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to [testify truthfully]”; (2) in compliance with the law, including Rule 28(b) of the Federal Rules of Civil Procedure, and other rules of 2 evidence as applicable; and (3) not "so incompatible with our fundamental principles of fairness or so prone to inaccuracy or bias as to render the testimony inherently unreliable." United States v. Salim, 855 F.2d 944, 953 (2d Cir. 1988); see also Fed. R. Crim. P. 15(e) (requiring that proposed depositions be taken in accordance with the rules applicable to civil actions); Fed. R. Evid. 603. If the defendant cannot establish that the proposed deposition will comply with the applicable law and rules, the Court should not permit the deposition to occur. United States v. Ruiz-Castro, 92 F.3d 1519, 1532-33 (10th Cir. 1996) (affirming district court’s refusal to permit telephonic foreign depositions because the defendant’s proposal failed to establish compliance with Rule 28(b)); Advani Enter., Inc. v. Underwriters at Lloyds, No. 95 Civ. 4864(CSH), 2000 WL 1568255, at *1 (S.D.N.Y. Oct. 19, 2000) (requiring the proponent to submit a detailed proposal for compliance with the federal rules governing foreign depositions). ARGUMENT I. The Proposed Deposition Exhibits a Flagrant Disregard for the Entity Hosting the Deposition The Notice of Deposition states that the witness, Naim Nasser Bulbol, will be deposed by videoconference while he is located in Gaza. In his original Motion to Preserve Testimony by Way of Foreign Deposition, defendant Fariz identified Bulbol as a “resident of Rafah, the Gaza Strip,” where he “works as a teacher in a school run by the Palestinian Authority.” (Doc. 874). Naim Nasser Bulbol is, more importantly, an unindicted PIJ co-conspirator mentioned in six separate overt acts in the Superseding Indictment (103, 206, 293, 198, 299, and 304). Bulbol was the imam of the Al-Qassam mosque in Chicago in the early 1990's, an entity we believe to be a component of the 3 PIJ Enterprise. The defendant acknowledges in his motion that he has maintained a “long-term relationship” with Bulbol, who is a “friend and religious advisor. . .even after returning to the Gaza Strip.” (Doc. 874 at 2). In response to an inquiry by undersigned government counsel on the evening of April 20, 2005, regarding the procedures attendant to a foreign deposition, counsel for Defendant Fariz stated that he has not notified nor made any arrangements with the Palestinian Authority to conduct this deposition. In essence, defendant Fariz seeks to conduct a United States judicial proceeding in territory occupied by Israel without even consulting with whatever entity has authority over such judicial actions. Depositions to preserve testimony are judicial proceedings conducted under the auspice of a court of the United States judiciary. Fed. R. Crim. P. 15(a). Ordering depositions of nonparty foreign witnesses, over whom the United States lacks personal jurisdiction, directly implicates the foreign entities within whose borders the discovery will occur. See Societe Nationale, 482 U.S. at 557 (noting that the taking of evidence in a civil-law country may constitute the performance of a public judicial act by an unauthorized foreign person); Custom Form Manu., Inc. v. Omron Corp., 196 F.R.D. 333, 336-37 (N.D. Ind. 2000) (noting that sovereignty issues arise when a court orders depositions to occur on foreign soil).1 By setting up these depositions outside the formal procedures applicable to international judicial proceedings, defendant Fariz exhibits a 1 For example, according to the United States Department of State, United States officials must obtain special clearance from the host country in order to participate in a deposition conducted before a United States consular official in that country. See United States Department of State Bureau of Consular Affairs, Obtaining Evidence Abroad, § E (2005) (attached hereto as Exhibit A). 4 flagrant disregard for the interests of the entity having authority to regulate judicial actions in Gaza. Case law discussing the proper procedures to be followed when conducting foreign depositions under Rule 15 was readily available to the defendant when he embarked on the path of applying to this Court to conduct such depositions. See, e.g., United States v. Siddiqui, 235 F.3d 1318, 1324 (11th Cir. 2000) (depositions in Japan and Switzerland presided over by a judicial officer from the respective host country); United States v. McKeeve, 131 F.3d 1, 7 (1st Cir. 1997) (deposition in the United Kingdom before British magistrate); United States v. Ruiz-Castro, 92 F.3d 1519, 1533 (1996) (proposed depositions in Mexico pursuant to treaty); United States v. Walker, 1 F.3d 423, 429 (6th Cir.1993) (District Court order authorizing the taking of depositions required that the oaths be given by a consular officer of the United States) United States v. Sturman, 951 F.2d 1466, 1480-81 (6th Cir. 1992) (deposition in Switzerland administered by Swiss magistrate); United States v. Kelly, 892 F.2d 255, 260 (3d Cir. 1989) (deposition in Belgium at U.S. embassy with notice to Belgian government); Salim, 855 F.2d at 952 (deposition conducted in accordance with French law by a French judicial officer); United States v. Oudovenko, No. 00-CR-1014, 2001 WL 253027, at *3 (E.D.N.Y. Mar. 7, 2001) (proposed deposition of Russian citizens pursuant to Mutual Legal Assistance Agreement). The Court should also be aware that to avoid this very situation, the United States approached defendant Fariz’s counsel to discuss conducting the depositions in a consular office where the appropriate procedures might be observed, such as East Jerusalem, Amman, Jordan or Cairo, Egypt. Defendant Fariz’s counsel, however, 5 expressed no interest in assisting in the government’s efforts or investigating these options. Defendant Fariz has never petitioned the Court to issue a letter of request or letter rogatory to assure compliance with foreign law. The Court should therefore quash the Notice of Deposition until defendant Fariz demonstrates his compliance with the official procedures for conducting a deposition in Gaza. See Ruiz-Castro, 92 F.3d at 1532-33; Advani Enter. Inc. v. Underwriters at Lloyds, No. 95 Civ. 4864 (CSH), 2000 WL 1568255 at *1 (S.D.N.Y. Oct. 19, 2000). II. Defendant Fariz Has Not Established That the Deposition Will Be Conducted Pursuant to United States or Valid Foreign Law. A. The Notice Does Not Establish Compliance with Federal Rule of Civil Procedure 28. Depositions conducted pursuant to Rule 15 must be conducted before an officer appointed or designated under Federal Rule of Civil Procedure 28. Fed. R. Crim. P. 15(e); Fed. R. Civ. P. 30(b)(4). Rule 28 provides for four methods of taking depositions in a foreign country: (1) pursuant to an applicable treaty or convention; (2) pursuant to a letter of request; (3) on notice before a person authorized, either by the law thereof or by the law of the United States, to administer oaths in the place where the examination is held, in this case, Gaza;2 or (4) before a person commissioned by the Court. Fed. R. Civ. P. 28(b). The strictures of Rule 28(b) are essential to conducting a legally valid deposition because they “serve to mitigate the dangers inherent in foreign depositions, both in terms of accuracy and identity of deponents and documents.” Advani Enter., 2000 WL 1568255, at *2 (S.D.N.Y. Oct. 19, 2000). 2 For the purpose of Rule 28, a deposition taken by remote electronic means, such as videoconferencing, is taken at the place where the deponent answers questions. Fed. R. Civ. P. 30(b)(7). 6 The noticed deposition of Bulbol, to be conducted from Gaza, fails to comply with Rule 28. Defendant Fariz has failed to satisfy the requirements for three of the four provisions of Rule 28. Defendant Fariz's only remaining option is to take the noticed deposition in compliance with Rule 28(b) before a person authorized to administer oaths under United States law or law governing the Territory where the deponent is located. See, e.g., Fed. R. Civ. P. 28(b); Loucas G. Matsas Salvage & Towage Maritime Co. v. M/T Cold Spring I, Nos. CIV. A. 96-0621, CIV. A. 96-0931, 1997 WL 102491, at *1 (E.D. La. 1997). The notice, however, fails to establish that the person whom defendant Fariz has secured to conduct the deposition is authorized to administer oaths under United States law or the law governing Gaza. In fact, the notice fails even to identify the official, if any, whom the defendant has secured to administer the oath to Bulbol, or the official’s location or qualifications for doing so. Defense counsel told undersigned counsel on the evening of April 20, 2005, that a “Palestinian lawyer” would administer the oath. Upon further inquiry, defense counsel stated that this lawyer was authorized to administer an oath “in the jurisdiction in which he practices,” but he did not specify which jurisdiction was relevant to the noticed deposition of Bulbol. Defense counsel has therefore implicitly acknowledged that he has asked an officer of the court of some other jurisdiction to administer an oath without first consulting with the government of that jurisdiction. In this way, defendant Fariz attempts to utilize the official infrastructure of another government only to the extent convenient for him. 7 B. The Notice Fails to Establish What, If Any, Law Governs The Oath. Defendant Fariz has also failed to satisfactorily identify any binding law that would govern the oath or affirmation of the deponent. Counsel for defendant Fariz has previously informed the government of his belief that either Islamic law, pre-1967 Jordanian law, or pre-1967 Egyptian law would govern the administration of the oath. Defense counsel, however, was not able to provide a specific provision of any applicable code of law that governs perjury, obstruction, or oaths generally. Defense counsel’s “proffer” is therefore completely inadequate to establish the law governing the oath. The United States has not located any case where a private religious doctrine has been recognized as binding applicable law for purposes of a deposition authorized by a court of the United States. Furthermore, neither Jordan nor Egypt currently has any authority to enforce its laws in Gaza or against residents thereof. The lack of any law governing the oath of the deponent is a critical and fatal inadequacy. Courts are highly suspicious of using foreign depositions in criminal cases precisely because of the risk of unavailability of the sanction of perjury. United States v. Alvarez, 837 F.2d 1024, 1029 (11th Cir. 1988), cert. denied, 486 U.S. 1026 (1988); see also Sturman, 951 F.2d at 1481 (affirming admission of deposition taken by Swiss magistrate where witnesses were not given an oath, but were instead informed of the penalties for perjury). Furthermore, in a situation such as this case, where the defendant is attempting to conduct the deposition privately without notifying or involving the government or judicial authority of the jurisdiction where the deponent lives and neither parties’ counsel is present in the room with the deponent, there is absolutely no assurance that the witness’ conscience is “awaken[ed]” or mind “impress[ed]” with the 8 duty to testify truthfully. See United States v. Ferrera, 746 F.2d 908, 913 (1st Cir. 1984) (raising “serious doubts” about a foreign deposition that “thoroughly insulates the witness not only from the court and the jury, but even from his interlocutors”). Moreover, the United States is not aware that any court has ever permitted a party in a criminal case to take a deposition without at least one party’s attorney being able to be on site with the deponent. See United States v. Tolliver, 61 F.3d 1189, 1206 (5th Cir. 1995), vacated and remanded on other grounds sub nom, Sterling v. United States, 516 U.S. 1105 (1996); United States v. Ferrera, 746 F.2d 908, 913 (1st Cir. 1984).3 In part, this reticence is due to the need to verify the identity of the witness. See, e.g., Tolliver, 61 F.3d at 1206. More importantly, however, courts have noted that the presence of the attorneys in the matter is critical to impressing upon the witness the meaningfulness of the oath to testify truthfully. The method proposed by the defendant, by remote videoconferencing, without the presence of any litigant’s counsel, and without any assurances regarding the validity or enforceability of the oath, implicates a 3 In Nippon Paper, the testimony of a foreign witness was taken by videoconference before the court under the same circumstances as a live trial because of the time difference between the United States and Japan. Nippon Paper, 17 F. Supp. 2d at 43. 9 higher level of concern.4 The danger is heightened even more in circumstances such as this case where the deponent is an unindicted co-conspirator and the defendant has failed to identify any applicable law providing for a perjury sanction or an enforceable oath. Under circumstances such as these, the lack of any consequences for untruthfulness presents an especially great risk of rendering the deponent’s testimony “inherently unreliable” and thus inadmissible. See Siddiqui, 235 F.3d at 1324; Salim, 855 F.2d at 952-53. Moreover, the effectiveness of the oath is particularly important here, where the defendant seeks to depose an unindicted co-conspirator, an individual who is alleged to have formed an agreement with the defendant to carry out the unlawful activities of the PIJ, and who is specifically named in six different instances in the Superseding Indictment. See Salim, 855 F.2d at 952-53 (noting that in the deposition of a co- conspirator that the “French judge took pains to impress upon [the witness] the need to answer truthfully”); United States v. Nippon Paper Indus., 17 F. Supp. 2d 38-42 (D.N.J. 4 The government notes that United States v. Yates, 391 F.3d 1182, 1190 (11th Cir. 2004) (Edmonson, Chief J. concurring in result), vacated and reh’g en banc granted, –F3d.–, 2005 WL 723897 (11th Cir. Mar. 30, 2005), involved a Sixth Amendment Confrontation Clause challenge to the admission of live “real-time” trial testimony, via two-way closed circuit teleconferencing, of two foreign witnesses who resided in Australia. Yates did not involve a Rule 15 deposition of the kind at issue here–in fact, the three-judge panel specifically distinguished the cases interpreting Rule 15, see id. at 1186–and therefore, the now-vacated panel decision is not relevant to the issues in this case. And, in any event, any possible Confrontation Clause objections to the procedures at issue in this case are not presently ripe for discussion, and will not become ripe unless and until defendant Fariz attempts to introduce the Rule 15 deposition testimony as substantive evidence at trial. See e.g., Drogoul, 1 F.3d at 1554-55 (“We fail to see * * *how the mere taking of depositions threatens that right [to confrontation]. Only when deposition testimony is sought to be introduced in evidence are the defendant’s confrontation rights truly implicated. Before then, the process is simply one of preserving testimony for possible subsequent use.”). 10 1998) (rejecting request for videotaped deposition of a cooperating co-conspirator because it would not take place before a judicial officer in Japan and due to “serious questions concerning the witness’ reliability”). This deponent clearly has more of an incentive to lie and be evasive than, for instance, a disinterested eye-witness or document custodian. C. The Notice Fails to Confirm that Taking Deposition By Videoconference Does Not Violate the Law Governing Gaza. According to the State Department, videotaped depositions are not permitted in many foreign countries. United States Department of State, Obtaining Evidence Abroad, § G(1). (Attached as Exhibit A). Thus, defendant Fariz may be attempting to involve this Court and the United States Department of Justice in a procedure that may cause significant problems in the foreign jurisdiction. This Court should require defendant Fariz to verify that the applicable local law permits the taking of videotaped depositions. III. The Notice of Deposition Should Be Quashed Because Defendant Fariz Has Delayed In Bad Faith In Scheduling The Deposition. Defendant Fariz filed his original motion to take Bulbol’s deposition on February 3, 2005. (Doc. 874.)5 This Court acted with exceptional alacrity by hearing argument and granting the defendant’s motion six days later on February 9, 2005.6 (See Doc. 5 In his motion, defendant Fariz also sought to depose several other individuals. The Court granted almost all of his requests. Simultaneously, defendant Hammoudeh also sought, and was allowed, permission to take foreign depositions of a number of individuals residing overseas. 6 The Court later denied the United States’ Motion for Reconsideration of its Order on February 14, 2005. (Doc. 899.) 11 886.) Now – more than two and one half months later – Defendant Fariz finally notices Bulbol’s deposition and sets it to occur two weeks before trial. Defendant Fariz has acted in bad faith by waiting more than two months to schedule this deposition and then scheduling it on the eve of trial. This bad faith is crystallized when one considers that defendant Fariz was first put on notice that Bulbol was an unindicted co-conspirator and thus could be a potential witness in this matter on or about February 19, 2004.7 Defense counsel traveled to Israel in the fall of 2004, presumably to interview witnesses such as Bulbol. It is bad enough that the defendant delayed filing a motion to seek Bulbol’s deposition for approximately one year after learning that Bulbol could be a potential witness. This inexcusable delay is further aggravated by the defendant’s failure to notice the deposition for TEN weeks after the Court indicated it would allow the motions to take foreign depositions. Immediately after the Court allowed the defendants’ motions on February 9, 2005, undersigned counsel began discussing the logistics for the depositions with defense counsel. As explained in detail above, government counsel suggested alternatives and tried to help the defendant find a method of taking the depositions which would be acceptable to both parties. In early April, the government again attempted to discuss logistical issues with defense counsel and suggested that certain problems might arise if the defendant attempted to notice depositions without resolving the questions related to territorial sovereignty and applicable law. Nevertheless, defense counsel did not seek the 7 In fact, it is reasonable to assume that the defendant realized that Bulbol was a potential witness about six months earlier, when the government provided copies of the FISA intercepts to the defense in mid-2003. 12 assistance of the United States in facilitating the taking of a foreign deposition overseas in accordance with the law; rather, defense counsel declined to follow-up with the government regarding any of its suggestions, and elected not to apply to the Court for any assistance in facilitating the myriad technical and procedural issues attendant to the taking of such depositions. Furthermore, when undersigned counsel asked how much time the parties would have to question Bulbol on May 2, defense counsel said that the deposition could not continue past 1:00 p.m. Defense counsel also informed undersigned counsel that, because he had delayed in scheduling a block of time with the Court’s videoconferencing facilities, those facilities were not available on Tuesday, May 3. The United States is confident that direct and cross examination cannot be completed in a mere four and one-half hours, particularly given that every question and answer will need to be translated through an Arabic-English interpreter.8 Moreover, despite a timely request to defense counsel for production of documents to be used in the deposition, 9 as of time this motion was filed, defense counsel had failed to serve those documents. Given that these documents would likely be in Arabic, and the government would be entitled to an opportunity to translate them (or at least review the accuracy of defense translations), the defendant is again demonstrating bad faith in the procedures he has followed in noticing these depositions. 8 Defense counsel also informed undersigned counsel on April 20, 2005 that he had not yet retained the services of an interpreter. 9 On February 22, 2005, undersigned counsel sent a document request to defense counsel regarding documents pertaining to the proposed foreign depositions. This request is attached hereto as Exhibit B. 13 The logistical challenges of handling documents in testimony taken by videoconferencing are exacerbated by the timing of the defendant’s filing, coming as it did so close to trial. Additionally, as courts have noted, using documents in depositions conducted by remote means presents a heightened risk of confusion and prejudice. See Mercado v. Transoceanic Cable Ship Co., CIV. A. No. 88-5335, 1989 WL 83596, at *1 (E.D. Pa. Jul. 25, 1989). Given the constellation of facts here, by serving such an inadequate notice of foreign deposition less than one month prior to trial, defense counsel has committed delay that exhibits a “serious lack of diligence.” This is sufficient to quash the notice. See United States v. Drogoul, 1 F.3d 1546, 1556-57 (11th Cir. 1993).10 IV. Defendant Fariz Fails to Specify How the Rights of the Witness Will Be Protected. As noted above, the proposed deponent, Naim Nasser Bulbol, is an unindicted co-conspirator in this case. Under United States law, such witnesses would have the right to be informed about, and to invoke, certain fundamental rights including the right of protection against self-incrimination.11 United States v. Farrell, 126 F.3d 484, 488-89 (3d Cir. 1997), (“A participant in a conspiracy clearly has a right under the Fifth 10 When undersigned counsel spoke with defense counsel in early April, defense counsel suggested that he might notice the deposition for mid-April. Government counsel requested that defense counsel schedule the depositions for the week of April 25, 2005 instead of the week of April 18. During the telephone conversation on April 20, however, defense counsel said that he had not tried to schedule any time to use the court videoconferencing facilities until after the court allowed his motion to use those facilities on April 15. 11 Query whether Bulbol will even be remotely concerned about exercising his right not to incriminate himself because at this point, he can hypothetically testify to anything he chooses with utter impunity. 14 Amendment not to provide law enforcement officials with information about the conspiracy that will incriminate him”), citing United States v. Plescia, 48 F.3d 1452, 1464 (7th Cir. 1995); In re Grand Jury (Markowitz), 603 F.2d 469, 473-74 (3d Cir. 1979); United States v. Johnson, 488 F.2d 1206, 1209 (1st Cir. 1973). Because the deposition as proposed would be conducted abroad, it is not clear what law applies to safeguard the rights of the witness or what the scope and content of any such rights would be. Defendant Fariz has apparently failed to contemplate the mechanism for protecting the rights of his own proposed witness. CONCLUSION For the foregoing reasons and because the defendant has exhibited a “serious lack of diligence,” the United States respectfully requests that the Court quash the Notice of Deposition. Respectfully submitted, PAUL I. PEREZ United States Attorney By: /s Cherie L. Krigsman Cherie L. Krigsman Trial Attorney, U.S. Department of Justice United States Attorney No. 089 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6156 Facsimile: (813) 274-6108 E-mail: Cherie.Krigsman@usdoj.gov 15 U.S. v. Sami Amin Al-Arian, et al. Case No. 8:03-CR-77-T-30-TBM CERTIFICATE OF SERVICE I hereby certify that on April 26, 2005, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: Kevin T. Beck Stephen N. Bernstein M. Allison Guagliardo Bruce G. Howie William B. Moffitt Linda G. Moreno Wadie E. Said /s Cherie L. Krigsman Cherie L. Krigsman Trial Attorney, U.S. Department of Justice United States Attorney No. 089 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6000 Facsimile: (813) 274-6108 E-mail: Cherie.Krigsman@usdoj.gov 16 N:\_Criminal Cases\A\Al Arian_1995R96168 (unclass)\p_motion to quash notices of deposition.frm