Opinion
No. S1 10 Cr. 08 (JFK).
April 6, 2010
MEMORANDUM OPINION AND ORDER
Before the Court is Mahmoud Reza Banki's ("Banki" or "Defendant") motion to depose seven witnesses located in Iran pursuant to Rule 15 of the Federal Rules of Criminal Procedure. For the reasons that follow, the motion is granted subject to the special condition that the depositions take place prior to May 10, 2010.
I. Background
In an Indictment filed January 6, 2010, Banki was charged with conspiracy to violate and the violation of various Executive Orders and regulations issued under the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701- 1706, including the Iran Trade Embargo, and with operating an unlicensed money transmitting business in violation of 18 U.S.C. § 1960, 2. Specifically, the Government alleges that Banki and unnamed co-conspirators "operated an informal value transfer system known as a `hawala' [in which] funds are transferred by customers to a hawala operator, or `hawaladar,' in one country (here, the United States), and then corresponding funds, less any fees, are disbursed to recipients in another country (here, Iran) by foreign hawaladars associated with the U.S.-based hawaladar." (Indictment ¶ 10).
Banki claims that he was not a hawaladar, but merely was the recipient of gifts from his family to help him purchase an apartment in New York City. Banki moves to depose his father, mother, brother, paternal uncle, maternal uncle, and cousin for the purpose of proving that the transfers which are the subject of the Indictment were family remittances that, according to him, were lawful under the relevant regulations. Banki also wishes to elicit testimony from his family's broker in Iran who purportedly arranged the money transfers. All of these witnesses are Iranian citizens residing in Iran. Since neither the prosecutors nor defense counsel can travel to Iran to depose the witnesses, Banki suggests that the depositions be held in Istanbul, Turkey.
II. Discussion
Under the Federal Rules of Criminal Procedure, the Court may permit a prospective witness to be deposed in order to preserve his or her testimony for trial "because of exceptional circumstances and in the interest of justice." Fed.R.Crim.P. 15(a)(1). "It is well-settled that the `exceptional circumstances' required to justify the deposition of a prospective witness are present if that witness' testimony is material to the case and if the witness is unavailable to appear at trial." United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984). Thus, the Court may exercise its discretion to order Rule 15 depositions where the moving party shows that: "(1) the prospective witness is unavailable for trial, (2) the witness' testimony is material, and (3) the testimony is necessary to prevent a failure of justice." United States v. Cohen, 260 F.3d 68, 78 (2d Cir. 2001).
The Government does not contest Defendant's representations that the proposed witnesses are unavailable to testify at trial — some due to fear that they will be arrested as co-conspirators in the alleged hawala, and others because they are unable to enter the country legally. Instead, the Government argues that Defendant cannot avail himself of the family remittance exception because the transfers were not effected through a United States depository institution, see 31 C.F.R. § 560.516(a)(3),United States v. All Funds on Deposit in United Bank of Switz., No. 01 Civ. 2091, 2003 WL 56999, at *2 (S.D.N.Y. Jan. 7, 2003), and therefore it believes the proposed testimony is of questionable value. Whereas the Government contends that its witnesses sent money to Defendant's New York bank account so that a corresponding amount could be disbursed in Iran, the family members will testify the money transfers came from them and were arranged by the family's broker. The Court finds that the proposed witnesses' testimony provides an alternate explanation for the money transfers that are the subject of the Indictment and therefore is material for the purposes of Rule 15. Whether this evidence will ultimately form the basis of a successful legal defense remains to be seen. It must be emphasized that this Order only concerns the taking of depositions; after the depositions have concluded, if the Government believes some or all of the proposed witnesses' testimony is not admissible at trial, it is free to act accordingly. Defendant may proceed with all seven proposed depositions at a foreign location to be agreed upon by the parties, presumably Istanbul.
However, the depositions must be completed prior to the start of trial on May 10, 2010. Although the Court initially indicated that the depositions might be able to proceed after the Government rests, during a planned hiatus of trial from May 19th through May 25th, new information leads it to conclude that this is not possible. Non-stop flights from New York to Turkey last ten hours, and, factoring in the time change, travel to Istanbul will take up most of May 19th. The Government states that the Regional Security Officer at the United States Consulate in Istanbul will not allow the parties to conduct depositions over the weekend. Additionally, the parties will need time after concluding the depositions to have transcripts prepared, to review the transcripts for accuracy, to submit the transcripts to the Court so it can rule on objections, and to redact the deposition testimony accordingly so the defense can begin its case on May 26th. These constraints leave only two business days for the parties to conduct seven depositions. Even if the parties could complete their questioning in this short' period of time, any number of logistical problems involving the transcription of the depositions or international travel could arise, causing further delay in an ongoing trial that will already have been in recess for a significant period of time. Beyond the fact that additional interruption of the trial could hinder the jury's ability to remember the intricacies of the case, this Court's busy calendar makes it difficult to accommodate an adjournment of an uncertain length. To allow the foreign depositions to take place after the May 10, 2010 trial date would seriously jeopardize the trial schedule, a scenario the Court is not willing to risk.
Defendant argues that taking Rule 15 depositions before the start of trial will give the Government an unfair advantage by forcing the defense to prematurely disclose its trial strategy. In the end, the Court must balance what Defendant characterizes as a one-way discovery windfall for the Government with what is at best a hope that seven foreign depositions would proceed smoothly in less than one week. The Court has carefully reviewed Defendant's ex parte submission describing the anticipated testimony of each proposed witness and finds it to be substantially similar to information Defendant has already made public in these motion papers and in its previous motion for live videoconference testimony. Any additional detail the Rule 15 depositions would reveal prior to the prosecution putting on its case is so minimal as to provide little if any advantage to the Government, certainly not enough to significantly prejudice Defendant. However, the only way to ensure that the defense can begin its case on May 26, 2010 is to complete the depositions prior to trial.
III. Conclusion
Defendant's motion to take Rule 15 depositions of seven proposed witnesses is granted. The depositions must be concluded by May 10, 2010 so trial may proceed as scheduled.