United States v. Meros, 84-76 Cr-T-8.

• Decision Date: 28 December 1984
• Docket Number: No. 84-76 Cr-T-8.,84-76 Cr-T-8.
• Citation: 613 F. Supp. 18
• Parties: UNITED STATES of America, Plaintiff, v. George N. MEROS, Robert J. Papolos, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

613 F. Supp. 18

UNITED STATES of America, Plaintiff, v. George N. MEROS, Robert J. Papolos, et al., Defendants.

No. 84-76 Cr-T-8.

United States District Court, M.D. Florida, Tampa Division.

October 12, 1984.

Supplemental Opinion December 28, 1984.

ORDER AND INJUNCTION

KRENTZMAN, District Judge.

Defendants Meros and Robert J. Papolos along with 21 others are charged in a multicount indictment with having engaged in a pattern of racketeering activities involving importation and possession with intent to distribute narcotics in violation of Title 18, § 1962(c) U.S.C. and related substantive offenses.

On August 16, 1984 the government filed a motion for leave to take the deposition of one Renate Bohrisch, a Swiss national. Similarly, on August 24, 1984 and again on September 6, 1984, the government filed additional motions for leave to take the depositions of the custodians of records of the Union Bank of Switzerland, in Geneva and Zurich respectively. On August 31, 1984, after hearing, Judge Paul Game issued an order granting the government's motions to take Ms. Bohrisch's and the Geneva depositions, and on September 21, 1984, he granted the motion for the Zurich deposition. In these orders Judge Game provided that all those defendants willing and able to attend the depositions be afforded the opportunity to do so by the government, and that those defendants unable to attend be afforded telephone hookups to enable them to participate as much as possible in the deposition process.

Both defendant Meros and defendant Robert J. Papolos, as well as other defendants, filed notices of their intention to attend the Swiss depositions, with defendant Papolos filing such a notice as recently as September 26.

The sole objection to Judge Game's orders filed in this Court has been defendant Meros' motion for reconsideration of the Magistrate's ruling, filed September 10, in which Mr. Meros sought, among other things, to have the depositions postponed to a date when his physical condition would enable him to be present. This matter was heard at hearing on September 11, 1984 and the motion was denied by Court's order of September 16, 1984.

On October 10, 1984 the government filed a motion representing that on or about September 19, 1984 through Swiss counsel defendants Meros and Robert J. Papolos filed objections to the Swiss depositions with Swiss officials. The government represents that said Swiss counsel represented to the Swiss Court that the United States government intends to use the deposition of Swiss witnesses and Swiss bank records solely to pursue fiscal offenses and not to support non-fiscal offenses. The government represents that as a result of the filing of said objections it has been advised that the depositions scheduled for October 15, 1984 will be stayed and that ultimately a delay as long as one year may occur. An emergency hearing was conducted on October 9. At that time representative parties were directed to file and serve memoranda, and a continued hearing was scheduled for October 12. At hearing local counsel for defendants Meros and Robert J. Papolos confirmed that Swiss counsel for their respective clients had filed such objections and contended that under appropriate treaties and Swiss laws they had the right so to do and that this Court lacked jurisdiction or authority to take action in the matter.

This matter of course is controlled by the Treaty with the Swiss Confederation On Mutual Assistance In Criminal Matters, 27 U.S.T. 2019 et seq. It is clear under the provisions of Ch. 1, Art. 2 1(c)(5) that the assistance of the Treaty is not available to obtain documents to prove tax fraud or other offenses prohibited by Title 31, U.S.C. Annotated. In its application to this Court on authority to take the depositions, by statements on the record and open court, and in its motion now pending before the Court the government affirms without qualification that it intends to abide by the terms of the Mutual Assistance Treaty and will not use or attempt to use any documents or evidence to prove or attempt to prove Title 31 violations without first having subsequently obtained specific permission from Swiss authorities. The undersigned, as Judge of this Court, for himself and any other judge who may try this case specifically affirms and binds the Court to comply with all terms of said Mutual Assistance Treaty in determining admissibility of any evidence obtained thereunder.

This Court recognizes and respects the Treaty for Mutual Assistance and the Swiss law on international judicial assistance in criminal matters. It neither has nor seeks any jurisdiction over any Swiss court or Swiss national, either as an attorney or otherwise. This Court does have jurisdiction over this case, over the parties thereto and over their attorneys who have signed appearances herein. It is charged with the serious responsibility of providing a fair and speedy trial to each of the several defendants named and to the government. Implicit to a fair trial is the right of a party to have and to obtain evidence necessary to establish the truth of the matter. Before a trial can be scheduled the parties must be given fair opportunity to obtain such evidence. Proceedings involving mutual assistance of two or more courts, each having and being entitled to the respect and assistance of the other can be and on occasions are frustrated by vague and conclusionary objections or other procedural actions.

This Court is satisfied and will insure that any evidence or information obtained through the Mutual Assistance Treaty will be used for only those purposes authorized by the Treaty and no other. Representations and actions indicating the contrary can only serve to delay, frustrate and obstruct the interest of justice in this case.

As a result of the action taken by Swiss counsel for defendants Meros and Robert J. Papolos it is obvious that the depositions scheduled for October 15 will have to be continued. The request of the government for authorization to take such depositions and to obtain evidence is again GRANTED. Counsel for the government is directed to obtain a continued date for said depositions, to promptly notify all defendants and counsel as to the date and time thereof.

The defendant George N. Meros, his attorneys Frank Ragano, Esquire, Edward T. Garland, Esquire, John R. Hesmer, Esquire and all persons acting in concert therewith or substitute therefor as counsel and the defendant Robert J. Papolos and Frank Lauderback, Esquire, his attorney, and all persons acting in concert therewith or as substitute therefor as counsel are and each is specifically DIRECTED, ORDERED AND ENJOINED from either directly or indirectly attempting to frustrate this Court's order granting leave to take depositions or the government's request for international judicial assistance from the Swiss Confederation by seeking to litigate in that jurisdiction the propriety of this Court's order including any issue properly within the scope of Rule 15, Fed.R.Cr.P. Said defendants Meros Robert J. Papolos are specifically DIRECTED to immediately direct their Swiss legal representatives to withdraw objections to said depositions with said withdrawal to be effected by October 15, 1984 at 11 a.m. Swiss time. Said defendant Meros and said defendant Robert J. Papolos each is ORDERED AND DIRECTED to file a written certificate with this Court by 10 a.m. October 15, 1984 attesting to the fact that such instructions have been given and such objections have been withdrawn.

Any attempt in a foreign country by any defendant in this case to prevent the execution of the government's request for assistance made to any foreign judicial authority in furtherance of this order may be considered as a post hoc ex parte attempt to frustrate this order and...