Opinion
No. S1 03 Cr. 669 (JFK).
September 2, 2004
MEMORANDUM OPINION and ORDER
The Court carefully considered the Government's submissions of September 1 and September 2, 2004 and the defense submission of September 1, 2004 concerning the prosecution witness, Nagy Bekhit. Sadly, the witness' father passed away and the funeral is in Egypt on September 11, 2004. The witness is scheduled to leave for Egypt on Tuesday, September 7, 2004 and, at present, is not scheduled to return until September 25, 2004.
The defense refused to stipulate as to his testimony which, as conveyed in the submission, is essentially ministerial. The defense also refuses to consent to a Federal Rule of Criminal Procedure 15 deposition because the witness is technically available.
The Court cannot find that the witness is "unavailable" under the rubric of FRCP 15 because he is presently in New York and, as the Government candidly admits, he could be subpoenaed.
Accordingly, if the Government still decides to call Mr. Bekhit, the Court directs that the Government subpoena the witness to testify on September 23, 2004 at 9:30 a.m. That way, he can return from Egypt on September 22, 2004, having spent two weeks in Egypt.
In the event that both sides have concluded all other evidence before September 23, 2004, the Court will reconvene on September 23, 2004 to hear Mr. Bekhit's testimony. See Federal Rule of Evidence 611(a).
Assuming all proof is concluded by the testimony of Mr. Bekhit, summations will immediately follow on September 23, 2004 and the Court will charge on September 27, 2004.