United States v. Cooper , 947 F. Supp. 2d 108 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 12-211 (JDB)
JON C. COOPER,
Defendant.
MEMORANDUM OPINION
Before the Court is [37] defendant Jon Cooper's motion to reconsider the Court's
December 28, 2012 order granting the government's motion to depose two Indonesian
witnesses under Federal Rule of Criminal Procedure 15. In his motion, Cooper asserts that
the Rule 15 depositions would violate his rights under the Confrontation Clause of the Sixth
Amendment. Since the motion was filed, however, there have been material developments
regarding the procedures to be used at the depositions, which have the potential to resolve
many if not all of Cooper's confrontation concerns. On May 16, 2013, the Court held a
hearing on Cooper's motion to reconsider. At the hearing, Cooper's counsel acknowledged
that if the Rule 15 depositions proceed in the manner outlined in the government's May 10,
2013 status report, then Cooper may be afforded an adequate opportunity to confront the two
Indonesian deponents. Nevertheless, Cooper continues to oppose the taking of the
depositions on several grounds, and argues that the government's latest status report – filed
May 29, 2013 – is further indication that the depositions should not take place. For the
reasons that follow, the Court concludes that the scheduled depositions may go forward.
BACKGROUND
On December 28, 2012, the Court granted the government's motion to take the
depositions of Hotasi Nababan and Tony Sudjiarto. See 12/28/12 Order [ECF 20]. Nababan
and Sudjiarto are executives of Company A, an Indonesian company allegedly defrauded by
Cooper as set forth in the superseding indictment. See Superseding Indictment [ECF 36]. In
support of its motion to take the foreign depositions, the government represented that, in the
course of the alleged fraudulent scheme, Cooper and his co-conspirator communicated with
Nababan and Sudjiarto via email and in person and made false representations to them. See
Gov't's Mot. for Order to Take Foreign Deps. [ECF 14] 3-4, 8. The government also
represented that a prosecutor in the Indonesian Attorney General's Office said that neither
Nababan nor Sudjiarto would be permitted to leave Indonesia to give deposition or trial
testimony because of ongoing legal proceedings against them. See id.
Based on the allegations in the indictment and the government's representations, the
Court concluded that (1) the deposition testimony sought was material and (2) the two
witnesses were unavailable to testify at trial, and hence that the depositions could be taken
under Rule 15. See 12/28/12 Order 1-2 (citing Fed. R. Crim. P. 15(a)(1); United States v.
Kelley, 36 F.3d 1118, 1124-25 (D.C. Cir. 1994)). The Court also concluded that the foreign
depositions could be taken without Cooper's presence because the circumstances of this case
met the requirements of Rule 15(c)(3). See id. at 2. In concluding that Cooper would be able
to "meaningfully participate in the deposition through reasonable means," Fed. R. Crim. P.
15(c)(3)(E), the Court relied on the proposed procedures for the depositions, which the
government anticipated using "[t]o the extent permitted by Indonesian authorities." See
12/28/12 Order 2-4 (requiring United States to request permission from Indonesian
authorities to take depositions pursuant to proposed procedures, which included examination
and cross-examination by counsel and Cooper's remote participation).
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Following the Court's December 28, 2012 order, Indonesian officials approved the
taking of the depositions of Nababan and Sudjiarto, and the United States took steps to
schedule the depositions and gain permission to conduct the depositions as proposed. The
government has submitted a series of status reports indicating the posture of its requests to
the Indonesian authorities. See Status Reports, Dkt. Nos. 24, 25, 29, 42, 43.
On April 4, 2013, Cooper moved for reconsideration of the Court's order granting the
motion to take depositions. At that time, it appeared "likely" that the Indonesian authorities
would require the depositions to proceed by written questions to be asked by a magistrate.
See Def.'s Mot. to Reconsider Order to Take Foreign Deps. [ECF 37] ("Mot. to Reconsider"),
Ex. D, 3/27/13 Email. In other words, government and defense counsel would have to
submit their questions and exhibits to Indonesian officials in advance of the depositions, and
an Indonesian magistrate would ask the questions at the depositions. See id. Government
counsel had informed defense counsel of its request that the witnesses be deposed in trial-like
fashion and of the Indonesian authorities' response that they "would consider whether to grant
an exception." See id. As to other requested procedures, the Indonesian authorities had not
yet given government counsel a response. See id. In Cooper's motion to reconsider, he
argued that the anticipated deposition procedures would not adequately protect his
confrontation rights for two main reasons: no oath would be administered, and he would not
have a meaningful opportunity for cross-examination. See Mot. to Reconsider 6-15.
On April 26, 2013, government counsel met with Cahyo R. Muzhar, Director of the
Indonesian "Central Authority," to further discuss the depositions. See Gov't's 5/10/13 Status
Report [ECF 42] 1. At the meeting, Muzhar agreed to many of the government's requests
regarding the deposition procedures, including the requests that an oath or affirmation be
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administered and that counsel for both sides be permitted to examine the witnesses. Id. at 3-
4. Specifically, as stated in the government's May 10, 2013 status report:
5. Oath. Indonesia will permit a United States consular officer to place
each witness under oath or affirmation, and draw their attention to the
importance of giving truthful testimony.
...
7. Mode of Questioning and Examination. Indonesia will permit
examination by both the United States and Counsel for Mr. Cooper.
Indonesia will permit examination in the style of a deposition
conducted pursuant to Rule 15 of the Federal Rules of Criminal
Procedure in the United States and associated rules. Understanding
that a videotape of the depositions may be used at a trial in the United
States, the examination will follow the pattern of such trial testimony:
it will begin with direct examination by the United States, followed by
cross-examination by Counsel for Mr. Cooper, and concluding with
re-direct examination by the United States.
Id.
According to the government, Muzhar also acceded to its requests for the following:
the use of an official interpreter at the depositions; permission for Cooper to have a second
interpreter for his private use; videotaping of the depositions; transcription of the depositions
either in real time or after the fact; the parties' ability to lodge objections on the record; a
video and audio link allowing Cooper to observe the depositions live; and the opportunity for
Cooper to consult privately with his counsel by phone. Id.1 Muzhar has agreed to put these
procedures in writing, but to date has not yet done so. See id. at 1.
On May 16, 2013, the Court held a hearing on Cooper's motion to reconsider. After
the hearing, the government filed a further status report, following a May 29 conversation
1
Cooper has confirmed that he will not attend the depositions because Indonesia will
not guarantee him "safe passage." See Def.'s Resp. to 5/29/13 Status Report [ECF 44]
("Status Resp.") 3; see also Gov't's 5/29/13 Status Report [ECF 43] 3.
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with Muzhar. In relevant part, the status report provides that: the depositions are currently
scheduled for the five days beginning June 24, 2013, and ending June 28, 2013; the
government has "reiterated its request to reach a written agreement or understanding on
deposition procedures" and Muzhar has "reiterated his earlier statement that he believed such
a written agreement/understanding could be reached prior to the depositions; and the
procedures expected to be used at the depositions are the same as the procedures set forth in
the government's previous status report, except for the following changes as to the manner of
questioning and examination, as described by the government:
5. Mode of Questioning and Examination. Mr. Muzhar has earlier made
representations about the mode of questioning both in a meeting on or
about March 27 and in a meeting on or about April 26. In the May 29
phone call, Mr. Muzhar stated that, in the initial stage of questioning,
an Indonesian magistrate will question the witnesses based upon
written questions submitted by the parties. However, both parties
would be permitted to ask follow-up questions, and there would be no
restrictions on the follow-up questions, including the ability to re-ask
questions posed by the Indonesian magistrate. The undersigned
expressed his particular concern that the defense be permitted to
cross-examine the witnesses through counsel. More than once, Mr.
Muzhar gave his personal assurance that both parties would be able to
ask all questions that they desired. Based on the nature of this and
previous conversations, it is the undersigned's impression that Mr.
Muzhar was navigating a situation where (a) Indonesian practice and
institutions ordinarily require examination by magistrate; (b) there is
no Mutual Legal Assistance Treaty between the United States and
Indonesia, and thus no formal policy covering these depositions; and
(c) Mr. Muzhar's personal willingness (not shared by other Indonesian
agencies, or within his agency) to permit such a mode of questioning
during the depositions. . . .
6. Submission of Questions. After reiterating the United States' request
that direct questioning be permitted, particularly on defense
cross-examination, the parties discussed what Indonesia required to
implement the magistrate-questioning procedure described. Mr.
Muzhar requested that each party (United States and defendant)
provide a list of questions and topics to be covered, which list could be
as short as one page. Mr. Muzhar requested that such questions be
submitted prior to the deposition by either email to him or to his office
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by FedEx express mail. Mr. Muzhar did not impose any earlier
deadline, but did indicate that express mail usually takes 5 days for
delivery. The undersigned reiterated the previously-expressed defense
concern that neither the United States nor the witnesses be permitted to
see proposed defense cross-examination prior to the depositions.
5/29/13 Status Report 1-3 (footnotes omitted). Cooper has filed a response to the
government's May 29, 2013 status report.
DISCUSSION
At the May 16, 2013 motions hearing, defense counsel expressed three main
objections to the Rule 15 depositions as envisioned on that date: first, that Nababan and
Sudjiarto are no longer unavailable; second, that there remains too much uncertainty
surrounding the deposition procedures because the Indonesian authorities have not yet
committed to them in writing; and finally, that Cooper is entitled to full discovery – i.e., all
discovery that he would have before trial – before the depositions can be taken. The Court
will address these issues in turn.
I. Unavailability
In criminal cases, depositions may be taken only "to preserve testimony for trial" and
"because of exceptional circumstances and in the interest of justice." Fed. R. Crim. P.
15(a)(1). To demonstrate that "exceptional circumstances" necessitate a Rule 15 deposition,
the party seeking the deposition must show: "(1) the materiality of the testimony; and (2) the
unavailability of the witness to testify at trial." Kelley, 36 F.3d at 1124. In its December 28,
2012 order, the Court found both materiality and unavailability with respect to the two
Indonesian witnesses scheduled to be deposed. Cooper argues, however, that because of
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changed factual circumstances, the witnesses are no longer unavailable.2
At the time the Court ordered the depositions of Nababan and Sudjiarto, both were
subject to a travel ban because they were being criminally prosecuted in Indonesia. They
were subsequently acquitted, and as a result, the travel ban that was in place has been lifted.
However, as government counsel advised the Court at the April 11, 2013 status conference,
he was told that the Indonesian government had appealed the witnesses' acquittal and during
the appeal they would not be allowed to leave the country. See 4/11/13 Tr. of Status Hr'g
[ECF 33] 3. As government counsel clarified in an email to defense counsel, it is his
understanding that "a travel ban would be imposed if the witnesses attempted to arrange
[travel to the United States], even if as a technical matter no such ban was in place." See
Reply, Ex. B, 4/25/13 Email. The government confirmed this understanding at the May 16,
2013 status conference and explained as follows: the Indonesian Central Authority is separate
from the Indonesian Attorney General's Office; Muzhar, Director of the Central Authority
and the person with whom the United States has been in contact about the depositions,
believes that the Attorney General's Office, which is handling the prosecution of Nababan
and Sudjiarto, would not let them travel to the United States if they were to try to do so; and
to date, the United States has not been permitted to contact Nababan or Sudjiarto and hence
does not know whether they would be willing to come here to testify if they could.
To show unavailability at this stage, the party seeking the deposition need not prove
2
Cooper argues briefly that the testimony of Nababan and Sudjiarto is not material
because the United States has said that it would try this case even if it could not obtain their
testimony. See Def.'s Reply in Supp. of Mot. to Reconsider [ECF 40] 10-11. This argument
is without merit. Nababan and Sudjiarto, as the victims of the alleged fraud and participants
in relevant communications with Cooper, are likely to provide testimony that is highly
material to the charges in the indictment.
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conclusively that the prospective deponent will be unavailable to testify at trial. See United
States v. Drogoul, 1 F.3d 1546, 1553 (11th Cir. 1993) (quoting United States v. Sines, 761
F.2d 1434, 1439 (9th Cir. 1985) ("It would be unreasonable and undesirable to require the
government to assert with certainty that a witness will be unavailable for trial months ahead
of time, simply to obtain authorization to take his deposition.")). As the Eleventh Circuit has
stated, a prospective deponent will be unavailable for purposes of Rule 15(a) if "a substantial
likelihood exists that [he or she] will not testify at trial." Id.Here, the Court concludes, the government has made a sufficient showing of
unavailability for the depositions to be taken. It is true that the government's showing would
be stronger if, for example, a firm travel ban were still in place, or the witnesses had signed
affidavits stating that they refused to come testify in the United States. But the most up-to-
date information before the Court – as represented by the United States – indicates that
Nababan and Sudjiarto would not be permitted to leave Indonesia if they asked to do so at
this time, and there is no indication whether or when that may change before trial. Moreover,
Indonesian officials have thus far prevented the United States from even contacting Nababan
and Sudjiarto. Hence, the government has had no way to ask the witnesses if they would be
willing to testify at Cooper's trial, much less obtain affidavits from them. And given the
United States's lack of success in reaching Nababan and Sudjiarto, it would not be at all
surprising if the United States could not secure their presence at trial, which is now set for
January 2014, just over seven months away. Finally, even if Nababan and Sudjiarto could
leave Indonesia and said that they were willing to come here to testify, their presence at trial
could not be guaranteed. They are beyond the Court's subpoena power, and should they
decide not to testify before the trial begins, their testimony could not then be compelled. See
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Drogoul, 1 F.3d at 1557 (citing 28 U.S.C. § 1783) ("[A]lthough the six prospective deponents
stated in May 1993 that they were willing to come to the United States, they too are beyond
the subpoena power of the United States courts. The possibility remains that they could
change their minds, in which case it would be impossible for the government to present their
testimony."). For all these reasons, there is a "substantial likelihood" that Nababan and
Sudjiarto will not testify at trial, and so they are unavailable for purposes of Rule 15(a). See
Drogoul, 1 F.3d at 1553.
The Court's determination that the Rule 15 depositions may proceed "does not
determine [their] admissibility" at trial. Fed. R. Crim. P. 15(f). To introduce all or parts of
the depositions at trial, the government will have to establish the witnesses' unavailability at
the time of trial. See Fed. R. Evid. 804(b)(1). If Nababan and Sudjiarto turn out to be willing
and able to testify at trial, then their deposition testimony will not be admissible under
Federal Rule of Evidence 804(b)(1). But at present, the Court is satisfied that exceptional
circumstances require taking their depositions to preserve testimony for trial.
II. Confrontation
Cooper's initial Confrontation Clause challenges were premised on the likely
deposition procedures as of the time he filed his motion to reconsider. See Mot. to
Reconsider 8-15 (arguing that lack of oath and opportunity for cross-examination would
violate confrontation rights). As noted, however, the procedures to be used have evolved
and, according to the government, are now expected to include both the administration of an
oath or affirmation and an opportunity for full cross-examination (albeit after initial
questioning by a magistrate). As such, most of Cooper's initial challenges are no longer
viable.
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Cooper raises several additional objections to the proposed deposition procedures in
his reply, contending that even as revised the procedures would deprive him of his
confrontation rights. See Reply 4-9. Most of these objections, however, assume procedural
defects that may in fact pose no barrier to Cooper's effective exercise of his confrontation
rights. Cooper complains, for example, that Indonesia does not have a procedure to compel
witnesses to answer all questions, that the Court would not be ruling contemporaneously on
objections, and that the depositions may not be transcribed in real time. See id. at 6-7. But
this Court is aware of no authority saying that effective cross-examination requires a means
of compelling witnesses to answer questions, contemporaneous ruling on objections,3 or real-
time transcription. If Cooper has any problems cross-examining the witnesses because of
these aspects of the depositions, he may raise those problems later, as arguments against
admissibility of the deposition testimony. See Drogoul, 1 F.3d at 1555 ("If irreconcilable
differences arise after the depositions have been taken and the translations made, then the
depositions might properly be excluded from evidence at that time."). Cooper additionally
objects to the oath to be given, claiming that the oath cannot be enforced. Reply 7-8. But it
appears that Nababan and Sudjiarto could be prosecuted for committing perjury under
Indonesian law, and considering that some courts have ruled deposition testimony admissible
even though it was not given under oath, the Court will not prevent the depositions from
being taken based on Cooper's speculation that the oath will be inadequate. See Gov't's
Opp'n to Mot. to Reconsider [ECF 39] ("Opp'n") 11-13 (discussing Indonesian legal
3
Indeed, Rule 15(e) states that a deposition must be taken in the same manner as a
deposition in a civil action, and the Federal Rules of Civil Procedure contemplate the taking
of deposition testimony subject to any objections to be ruled on later. See Fed. R. Crim. P.
15(e); Fed. R. Civ. P. 30(c)(2).
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provisions); see also United States v. Sturman, 951 F.2d 1466, 1481 (6th Cir. 1991); United
States v. Casamento, 887 F.2d 1141, 1174-75 (2d Cir. 1989); United States v. Salim, 855
F.2d 944, 952 (2d Cir. 1988); see also Fed. R. Civ. P. 28(b)(4) (providing that evidence
obtained in foreign deposition "need not be excluded merely . . . because the testimony was
not taken under oath, or because of any similar departure from the requirements for
depositions taken within the United States")).
In response to the government's most recent status report, Cooper also claims that
"contrary to the procedures earlier promised, [he] will not be allowed full-ranging cross-
examination." Status Resp. 2. But that is not what the status report says. It says that the
depositions will begin with questioning by an Indonesian magistrate, and following that, both
parties may then ask follow-up questions, with "no restrictions on the follow-up questions,
including the ability to re-ask questions posed by the Indonesian magistrate." 5/29/13 Status
Report 2. The status report says, moreover, that "Muzhar gave his personal assurance that
both parties would be able to ask all the questions that they desired." Id. There is no
indication that the follow-up questions will be limited to topics touched on by the
magistrate's questions. And although the questioning by the magistrate will make the
depositions different from a typical Rule 15 deposition, it is not clear to the Court that
Cooper's right to full and effective cross-examination will be abridged in any way. See
Drogoul, 1 F.3d at 1555 (district court might have had discretion to deny deposition request
"were it abundantly clear that the depositions could not possibly be admitted at trial").
Hence, the government's May 29, 2013 status report does not present a reason not to take the
Rule 15 depositions. See id. at 1554-55 (distinguishing between propriety of taking
depositions and propriety of using them at trial).
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The defense's final and now most strongly pressed objection to the deposition
procedures is that the Indonesian authorities have not yet committed to the procedures in
writing. At this point in the proceedings, the government has gone back and forth with
Indonesian officials over the procedures to be used at the depositions, and the government
has represented to the Court that the Indonesians have agreed to most of the government's
requests, including the request that counsel for both sides be allowed to "ask all the questions
that they desire[]," even though witness questioning is ordinarily done by magistrate in
Indonesia. See 5/28/13 Status Report 2-3; 5/10/13 Status Report 3-4; see also Drogoul, 1
F.3d at 1555. Although a written agreement on the deposition procedures would be
preferable to oral assurances – and the Court certainly encourages the government to continue
to seek such an agreement – the government has acted in good faith here, and it may be that
oral assurances are the best that it can get. Based on those assurances, as relayed by the
United States, the Court is sufficiently confident that the deposition procedures outlined in
the government's status reports will be followed and, if they are, that Cooper will be afforded
a constitutionally adequate opportunity for cross-examination. Hence, the Court will allow
the depositions. If the actual procedures vary from the procedures outlined, then Cooper will
have ample opportunity to challenge the admissibility of the testimony on confrontation
grounds. See Salim, 855 F.2d at 952 ("As was demonstrated in this case, the parties and the
court may not always know beforehand just what type of examination a foreign nation may
permit the attorneys to conduct. The district court therefore may prefer to consider these
problems after the deposition has been taken, when it can examine the transcript and the
actual circumstances under which the deposition was conducted.").
III. Discovery
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Cooper claims that he will be prejudiced by the taking of the Rule 15 depositions in
advance of trial because discovery in this case is not yet complete. He contends that he
cannot meaningfully cross-examine the witnesses unless he has first received all materials
required to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United
States, 405 U.S. 150 (1972), and the Jencks Act, 18 U.S.C. § 3500. See Mot. to Reconsider
12-13.4 The government responds that it is only required to provide Jencks material for the
witnesses to be deposed and that it has met its obligation to provide all such material. See
Opp'n 19-21.
Rule 15(e)(3) requires the government to "provide to the defendant or the defendant's
attorney, for use at the deposition, any statement of the deponent in the government's
possession to which the defendant would be entitled at trial." Fed. R. Crim. P. 15(e)(3)
(emphasis added). Under the Jencks Act, the government must disclose "any statement" of a
government witness called at trial "which relates to the subject matter as to which the witness
has testified." 18 U.S.C. § 3500(b). Neither Rule 15 nor the Jencks Act suggests a disclosure
obligation as sweeping as that urged by Cooper. And this is not surprising, as there is no
sound reason for requiring pre-deposition disclosure of statements of witnesses other than the
Rule 15 deponent, or exculpatory and impeachment information under Brady and Giglio, if
such statements and information have no relation to the Rule 15 deposition testimony.
Yet Cooper insists that he is entitled to every piece of discovery in this case –
4
Cooper also argues that he cannot meaningfully cross-examine the witnesses until he
has heard the government's opening statement in this case. The Court rejects this argument
as frivolous. As Rule 15 depositions are used "to preserve testimony for trial," they occur in
advance of trial. See Fed. R. Crim. P. 15(a)(1). It would make no sense to make something
that only occurs at trial – an opening statement – a prerequisite for taking a Rule 15
deposition.
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including all Jencks, Brady, and Giglio materials that the government would have to disclose
before trial – in advance of the depositions of Nababan and Sudjiarto. Cooper cites In re
Grand Jury Proceedings, 697 F. Supp. 2d 262, 275 (D.R.I. 2010), in which the court
conditioned the taking of pre-indictment depositions on the government's "full disclosure" of
"all materials which would be disclosed in the usual course under Fed. R. Crim. P. 16
including any and all Brady and Jencks statements." But in that case, in which the "Targets"
(or would-be defendants) had not even been formally charged, the court deliberately crafted
an order tailored to its circumstances. See id. at 274-75. The broad disclosure obligations
imposed on the government can be seen as part of the court's attempt to level "the playing
field." See id. at 272, 275. In the ordinary case, it makes sense to require disclosure of
materials that the government possesses and must eventually turn over before trial, if the
defense can make use of those materials in cross-examining a Rule 15 deponent. But the
Court sees no basis for making complete discovery a condition precedent to any Rule 15
deposition.
Here, the government has represented that it has already disclosed all "statements"
(including emails) of Nababan and Sudjiarto in its possession and that it does not have any
Brady or Giglio that it has not already disclosed. And Cooper has not identified any materials
that the government has but has not disclosed that would be relevant to the Rule 15
depositions. Hence, the Court will not impose a disclosure obligation on the government
beyond that set forth in Rule 15(e)(3).
Cooper also argues that under Rule 15(e)(3), the government is obligated to obtain
and produce statements made by Nababan and Sudjiarto in the course of the Indonesian
prosecution. The government has responded that such statements (if any exist) are not in its
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possession, custody, or control. As it explained both at the motions hearing and in its most
recent status report, the government has repeatedly asked the Indonesian authorities for
statements of Nababan and Sudjiarto and records relating to the prosecution. See 5/29/13
Status Report 3. Government counsel was told, however, that Indonesian trial proceedings
are not recorded or transcribed, and that Indonesia would not provide court records or
Attorney General's Office records of the case against the two witnesses. See id.; see also
5/10/13 Notice of Discovery Filing [ECF 34].
The Court finds that the government has met (and likely exceeded) any obligation it
has under Rule 15(e)(3) with respect to the statements at issue. The government is not
required to produce statements it does not possess, and it does not possess any statements
from the Indonesian prosecution. The government also is not required to use its best efforts
to obtain the statements from Indonesian officials, see United States v. Mejia, 448 F.3d 436,
444-45 (D.C. Cir. 2006), and even if it were, it has made good faith, though fruitless, efforts
to obtain the statements from Indonesian officials, see United States v. Paternina-Vergara,
749 F.2d 993, 998 (2d Cir. 1984) ("[E]ven in the course of a joint investigation undertaken by
United States and foreign law enforcement officials the most the Jencks Act requires of
United States officials [is] a good-faith effort to obtain the statements of prosecution
witnesses in the possession of the foreign government."). Finally, the government has
represented that the court decision in the proceedings involving Nababan and Sudjiarto is a
publicly available record. See 5/29/13 Status Report 4. Hence, Cooper may obtain that
decision (and any other publicly available court records) through the Indonesian legal
consultant he has retained. See Status Resp. 4.
IV. Additional Matters
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Having concluded that the Rule 15 depositions may go forward as scheduled, the
Court will briefly address several related matters. First, the Court will grant Cooper's request
to require the United States to pay the reasonable travel and subsistence expenses for both of
Cooper's attorneys to attend the deposition. See Fed. R. Crim. P. 15(d)(1). The United States
will have at least two representatives present at the depositions, and defense counsel's role
will include not only cross-examining the witnesses but also communicating with Cooper by
phone. Second, the Court will grant the government's request that a deadline be set by which
any additional motions relating to the depositions and any objections to the depositions must
be filed. All such motions and objections must be filed by not later than June 11, 2013.
Third, in responding to the government's May 29, 2013 status report, Cooper has objected to
the proposed process for submitting deposition questions and topics to an Indonesian
magistrate and to the location at which Cooper will view the depositions remotely. See
Status Resp. 1-4. The government's proposal to transmit, without reviewing, defense
counsel's list of questions and topics to the Indonesian authorities is acceptable to the Court.
However, the government should continue to seek assurances that the questions and topics
submitted will not be shared with the witnesses before the depositions. See 5/29/13 Status
Report 3 & n.4. Regarding the video-teleconferencing location, the Court is inclined to let
Cooper view the depositions at the location of his choice – the Washington, D.C. offices of
Jones Day – to the extent feasible. There may, however, be good reasons (technological or
otherwise) why the video-teleconferencing must be done at a secure FBI location, as
proposed by the government. Hence, the government should inform the Court of its position
as to the location of the video-teleconferencing as soon as possible.
Finally, the parties have agreed on a January 2014 trial date, and defense counsel in
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particular has represented that tolling the speedy trial clock is necessary for effective trial
preparation. In this complex case, there are voluminous discovery materials, and the foreign
depositions authorized today will not be completed until the end of June. Accordingly, the
Court finds that the ends of justice served by granting a further continuance in this case
outweigh the best interests of the public and defendant in a speedy trial. See 18 U.S.C.
§ 3161(h)(7)(A), (h)(7)(B)(iv). The speedy trial clock will be tolled until January 6, 2014.
CONCLUSION
For the foregoing reasons, Cooper's motion to reconsider will be denied. A separate
order accompanies this memorandum opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: June 3, 2013
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