U.S. v. McKeeve
| Decision Date | 06 November 1997 |
| Docket Number | No. 96-2273,96-2273 |
| Citation | 131 F.3d 1 |
| Parties | 48 Fed. R. Evid. Serv. 348 UNITED STATES of America, Appellee, v. David S. McKEEVE, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Daniel L. Sharp, with whom Elaine Whitfield Sharp and Whitfield, Sharp & Sharp were on brief, for Defendant, Appellant.
Despena Fillios Billings, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for Appellee.
Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.
Defendant-appellant David S. McKeeve assembles a litany of alleged errors in protest of his conviction and sentence. His flagship claim requires us to investigate the circumstances under which the Confrontation Clause allows a prosecution witness to testify by foreign deposition over the defendant's objection. After carefully considering this issue (a matter of first impression in this circuit) and assaying the appellant's other points, we affirm.
Mindful of the appellant's challenge to the sufficiency of the evidence, we limn the facts in the light most flattering to the jury's verdict. See United States v. Staula, 80 F.3d 596, 599 (1st Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996).
The appellant and his business partner, Shelagh McNeil, both citizens of the United Kingdom, operated McNeil International, Ltd. (MIL), a company organized under the laws of Scotland. Through it, the pair brokered various export transactions. In 1994, Peter Sullivan, the owner of Afromed (a Maltese firm), approached the appellant about acquiring a large quantity of computer equipment for the Libyan government. McKeeve agreed to handle the transaction and began to investigate its logistical aspects.
McKeeve contacted the United Kingdom's Department of Trade and Industry (DTI) to ascertain whether British authorities would require him to obtain an export license to ship computer equipment from the United Kingdom to Libya. DTI advised him that he probably needed such a license, and at some point, a DTI official also informed him that most computer equipment shipped to Libya wound up in munitions factories. Hot on the heels of this contact, Eric Lane, an investigator for British Customs, paid the appellant a visit. Lane stated that U.S. restrictions on trade with Libya were more stringent than those of the United Kingdom, and advised McKeeve that he should confer with U.S. Customs if he contemplated exporting computer equipment from the United States.
During the fall of 1995 the appellant designated a Massachusetts firm, New England Computer Exchange (NEXL), as the vendor of choice to supply the $300,000 worth of computer equipment needed to fill Afromed's order. When NEXL's representatives (Cliff Rucker and Deepak Jain) learned that the appellant wanted to transship the equipment through Cyprus--a notorious clearinghouse for goods destined for embargoed countries--they expressed concern about the ultimate resting place of the computer equipment. The appellant prevaricated and told them that the goods were bound for Ethiopia.
McKeeve and McNeil proceeded to instruct their stateside shipping agent, Peabody and Lane (P & L), to arrange shipment only as far as Cyprus. Simultaneously, they directed a British shipping agent, Alex Redpath, to arrange freight forwarding to Libya and, when Redpath warned that the U.S. trading embargo posed potential difficulties, the appellant merely reiterated the instruction.
On October 12, 1995, the appellant oversaw the packing of the computer equipment at NEXL's warehouse in Reading, Massachusetts. A trucker delivered the goods, in a shipping container, to port in Charlestown, Massachusetts. Acting on a tip, the U.S. Customs Service ordered the container held at port. Because this delay threatened to undercut the letter of credit that Afromed had produced to pay for the goods, the appellant flew to Malta and met with Sullivan.
At about the same time, the appellant instructed P & L to discharge the computer equipment in Antwerp, Belgium (a port through which it already was scheduled to pass en route to Cyprus). When a P & L agent informed McNeil about this change, McNeil advised her to maintain Cyprus as the port of final destination. The appellant subsequently confirmed McNeil's instruction.
Despite these machinations, the computer equipment stayed put. Although it originally was due to depart Charlestown on October 18, it remained on customs hold a full week later. On October 25, McNeil contacted NEXL's chief executive and stated that if he (Rucker) did not sign the Shipper's Export Declaration (SED), a U.S. Customs export document that lists, among other things, the ultimate destination of the goods, no payment would be forthcoming. McNeil transmitted an unsigned SED to Rucker that listed "Cyprus, Greece" as the port of unloading and Greece as the country of ultimate destination. Rucker called McNeil to report the apparent discrepancy and McNeil instructed him to delete Greece and insert Ethiopia as the country of ultimate destination. Rucker made the requested changes, signed the SED, and transmitted a facsimile to McNeil. Notwithstanding the newly executed SED, the customs hold endured.
On October 31, the U.S. Customs Service became convinced that the appellant sought surreptitiously to export goods to Libya. A customs agent, posing as a seaport supervisor, convinced the appellant to return to Boston and address a paperwork snafu that ostensibly prevented vacation of the customs hold. During a meeting with undercover customs agents, captured on videotape, the appellant vouchsafed that the computer equipment was destined for Ethiopia and signed a false SED. Shortly thereafter, the authorities arrested him and seized the computer equipment.
A federal grand jury indicted the appellant on charges that he knowingly violated the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706 (1994), and its associated Executive Orders and regulations, Exec. Order No. 12,924, 3 C.F.R. 917 (1994) & Exec. Order No. 12,543, 3 C.F.R. 181 (1986), both reprinted in 50 U.S.C. § 1701 note; 31 C.F.R. § 550.202 (1997); 15 C.F.R. §§ 774.1, 785.7(a), 787.3(a), 787.6 (1997); conspired to violate IEEPA, 18 U.S.C. § 371 (1994); and made false statements to the U.S. Customs Service, 18 U.S.C. § 1001 (1994). The grand jury also indicted McKeeve's and McNeil's corporation, MIL, on several related counts, but did not charge it with participating in the conspiracy. The bill named McNeil as an unindicted coconspirator, but neither she nor Sullivan was named as a defendant (presumably because they were beyond the court's jurisdiction).
At trial, the appellant admitted that Libya always had been the intended destination for the computer equipment. Nevertheless, he professed that he only belatedly became aware that his actions might violate U.S. law and that, when he learned of the problem, he tried to "slow down" the transaction by discharging the equipment in Antwerp for eventual sale in the United Kingdom. He attempted to explain away his false claim that Ethiopia was the country of ultimate destination as a standard broker's business practice designed to mask his customer's identity.
The jury weighed the evidence, concluded that the appellant knew all along that U.S. law prohibited the transaction, and convicted him on all counts. The jury also found MIL guilty as charged. The district court sentenced both defendants, but only McKeeve perfected an appeal.
The appellant objects in this court, as he did below, to admission at trial of the deposition testimony of the British shipping agent, Alex Redpath. His cardinal contention is that the admission of this evidence abrogated his rights under the Confrontation Clause. We exercise plenary review over this claim of constitutional error. See United States v. Stokes, 124 F.3d 39, 42 (1st Cir.1997).
The parties--who agree on little else--share the view that Redpath was a key witness. Initially, the prosecution gained Redpath's assurances that he would travel to the United States and testify at the trial. As the day of reckoning approached, Redpath experienced a change of heart. Because the district court lacked subpoena power over Redpath (who lived and worked in Great Britain), the government moved for leave to depose him abroad. The motion invoked a procedural rule that provides in pertinent part:
Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition....
The government proposed to mitigate any Confrontation Clause issues by transporting the appellant and his counsel to the site of the deposition and videotaping the proceedings. This proposal proved problematic for two reasons. First, the U.S. Marshals Service lacks jurisdiction to retain custody of federal detainees on foreign soil and the Central Authority of the United Kingdom would not agree to assume temporary custody of McKeeve so that he could attend the deposition. 1 Second, British magistrates typically prohibit the videotaping and audiotaping of depositions, and made no exception in this instance. The district court nonetheless found that Redpath was an unavailable witness and that the interest of justice warranted the deposition. Working within the spare confines of the British scheme, the court directed the government to transport the appellant's attorney to the deposition and to install two telephone lines--one that would allow the appellant to monitor the deposition from his prison cell and another that would allow him to...
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