U.S. v. Jefferson

• Decision Date: 23 January 2009
• Docket Number: No. I:07cr209.
• Citation: 594 F.Supp.2d 655
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. William J. JEFFERSON, Defendant.

594 F.Supp.2d 655

UNITED STATES of America v. William J. JEFFERSON, Defendant.

Criminal No. I:07cr209.

United States District Court, E.D. Virginia, Alexandria Division.

January 23, 2009.

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Mark Lytle, Rebeca H. Bellows, United States Attorney's Office, Alexandria, VA, Charles E. Duross, U.S. Department of Justice, Washington, DC, for United States of America.

Amy Berman Jackson, Robert Powel Trout, Gloria B. Solomon, Trout Cacheris PLLC, Washington, DC, for Defendant.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

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,¹ 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.

I.

Defendant was the sitting member of the United States House of Representatives representing Louisiana's 2nd Congressional District, an office he held from his election in 1991 until his defeat in a bid for reelection in 2008. The Indictment alleges that beginning in or about January 2001, defendant used his office to advance the business interests of various individuals and corporations in return for money and other things of value paid to defendant either directly or via `nominee companies,' i.e., companies ostensibly controlled by one of the defendant's family members, but in fact controlled by defendant. The specific schemes alleged in the Indictment are described in greater detail in an earlier Memorandum Opinion. See United States v. Jefferson, 534 F.Supp.2d 645 (E.D.Va. 2008).

Of the Indictment's sixteen counts, counts 1 and 11 are particularly pertinent to the instant motion. Count 1 of the Indictment alleges, in material part, that from about April 2005 to about August 2005 defendant conspired to violate the FCPA by paying bribes to Nigerian foreign officials, including Atiku Abubakar, the then Vice President of Nigeria.² More specifically, the Indictment alleges that defendant agreed with Suleiman Yahyah,³ a Nigerian businessman, and others that bribes would be paid to various Nigerian government officials to ensure the success of a Nigerian joint venture in which defendant had a substantial interest. The Indictment further specifies that defendant was responsible for offering and paying bribes to Atiku Abubakar, while Suleiman Yahyah was responsible for paying bribes to lower ranking Nigerian government officials. The Indictment also alleges that defendant communicated to Jennifer Douglas Abubakar,⁴ Atiku Abubakar's wife, his willingness to pay her husband in return for the Vice President's assistance to the Nigerian joint venture. The government has identified Jennifer Douglas Abubakar, Atiku Abubakar, and Suleiman Yahyah as unindicted coconspirators with regard to the conspiracy to violate the FCPA. Additionally, count 11 of the Indictment charges defendant with violating the FCPA based on his alleged bribery of Atiku Abubakar.

Atiku Abubakar has repeatedly denied any involvement in wrongdoing with defendant and has released several public statements to that effect.⁵ Suleiman Yahyah has made similar denials.⁶ Referring to these general denials of wrongdoing, the government sent defense counsel a letter on February 7, 2008, stating that "[t]he government is aware, as is the defense, that Messrs. Abubakar and Yahyah have made statements either through their lawyers, to the media, or to Nigerian authorities denying any role in paying or accepting bribes in relation to the charges pending in the above-captioned case." The letter also related that Jennifer Douglas Abubakar had testified before the grand jury and had "denied that [defendant] talked to her about his interest in paying her husband money."⁷

Based on the government's characterization of these three individuals' previous statements, defendant now moves, pursuant to Rule 15(a), Fed.R.Crim.P., to depose Jennifer Douglas Abubakar, Atiku Abubakar, and Suleiman Yahyah on the ground that these witnesses are unavailable for trial and would provide material, exculpatory testimony. Additionally, because neither Atiku Abubakar nor Suleiman Yahyah will consent to being deposed, defendant moves for either (i) an order requiring the government to seek these depositions pursuant to the MLA Treaty or (ii) the issuance of a letter rogatory requesting the assistance of Nigerian judicial authorities in obtaining their testimony.

II.

Analysis of a request for Rule 15 depositions properly begins with consideration of the Rule's requirements. Clearly depositions in criminal cases are disfavored. See United States v. Drogoul, 1 F.3d 1546, 1551 (11th Cir.1993). As a result, depositions are permitted only "because of exceptional circumstances and in the interest of justice" in order to "preserve testimony for trial." Rule 15(a)(1), Fed.R.Crim.P. Prior to its amendment in 1975, Rule 15 stated that a court could authorize a deposition in a criminal case "`[i]f it appears [i] that a prospective witness may be unable to attend or prevented from attending a trial or hearing, [ii] that his testimony is material and [iii] that it is necessary to take his deposition in order to prevent a failure of justice.'" Charles Alan Wright, 2 FEDERAL PRACTICE AND PROCEDURE § 241, at 13 n. 17 (3d ed. 2000) (quoting Fed.R.Crim.P. 15 (1944)). Although the 1975 amendment substituted the "exceptional circumstances" standard for these three conditions, case law reflects that these requirements continue to inform the meaning of "exceptional circumstances."⁸ While there is no controlling circuit authority elucidating Rule 15's "exceptional circumstances" standard,⁹ other circuits have consistently read "exceptional circumstances" to require a party seeking a deposition to establish both that the witness will likely be unavailable to testify at trial and that the witness's testimony is material.¹⁰ The Second and Tenth Circuits also consider whether the moving party has shown that denying the requested deposition will result in a failure of justice. See United States v. Cohen, 260 F.3d 68, 78 (2d Cir.2001); United States v. Fuentes-Galindo, 929 F.2d 1507, 1509 (10th Cir.1991). The Eleventh Circuit weighs whether "countervailing factors render taking the deposition unjust to the nonmoving party," including the likelihood that the procured testimony will be admissible at trial and whether the request was timely. United States v. Ramos, 45 F.3d 1519, 1523 (11th Cir.1995); see Drogoul, 1 F.3d at 1555 ("The court need not, at the cost of time and money, engage in an act of futility by authorizing depositions that clearly will be inadmissible at trial.").

Although the original Rule's three requirements remain central to the Rule 15 analysis, it does not follow that these requirements exhaust the meaning of "exceptional circumstances."¹¹ Rather, the "change was effectuated to ensure that the trial court exercised its discretion in determining whether a deposition should be taken under the particular circumstances presented." Fuentes-Galindo, 929 F.2d at 1509; see also United States v. Ismaili, 828 F.2d 153, 159 (3d Cir.1987) ("The 1975 amendment emphasizes the use of discretion by the district court...."). Hence, while consideration of (i) whether the witness will be unavailable to testify at trial, (ii) whether the witness's testimony will be material, and (iii) whether the witness's testimony is necessary to prevent a failure of justice all remain essential to the Rule 15 calculus, this does not necessarily end the analysis. A district court must further carefully consider all the circumstances and exercise its discretion to ensure that Rule 15(a) depositions are permitted only in the rare instances or exceptional circumstances contemplated by the Rule.

A.

The first critical consideration is the witness's unavailability to testify as a witness at trial. As the Eleventh Circuit has observed, a "potential witness is unavailable for purposes of Rule 15(a) ... whenever a substantial likelihood exists that the proposed deponent will not testify at trial." Drogoul, 1 F.3d at 1553.¹² In particular, courts have recognized that the witness's unavailability may be based on a showing that "the proposed deponent is beyond the subpoena powers of the United States and has declared his unwillingness to testify...