UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) UNITED STATES OF AMERICA, ) ) ) ) v. ) Criminal Action No. 14-cr-0069 (RMC) ) PHEERAYUTH BURDEN, ) ) WING-ON LLC, ) ) Defendants. ) _________________________________ )
OPINION ADMITTING RULE 15(a) DEPOSITION AT CRIMINAL TRIAL
Over the objections of Defendants Pheerayuth Burden and Wing-On LLC, this
Court ruled that the videotaped deposition of former co-defendant Kitibordee Yindeear-Rom
could be admitted at their criminal trial. This Opinion explains that decision, announced from
the bench during the pretrial conference on August 29, 2016. This opinion pre-dates the
conclusion of Defendants’ trial so the trial outcome remains unknown and each Defendant is
presumed innocent.
I. BACKGROUND
Kitibordee Yindeear-Rom is a native of Thailand and lives in that country. He
came to the United States on a B1/B2 visitor visa in October 2013, not knowing that he was a
target of a long-term investigation into an international conspiracy to export defense articles
illegally from the United States to Thailand without an export license, in violation of the Arms
Export Control Act (AECA), 22 U.S.C. § 2778(b)(2), and the International Trade in Arms
Regulations (ITAR), 22 C.F.R. Part 120, et seq. Questioned when he arrived, Mr. Yindeear-Rom
was arrested in California on his third day in this country, on October 29, 2013.
1 Mr. Yindeear-Rom was transferred to this jurisdiction, where the complaint
against him had been lodged and the arrest warrant issued, and he appeared before a judicial
officer on November 14, 2013. After three defense motions to continue a Preliminary/Detention
Hearing and suspensions of the Speedy Trial Act, see 11/14/13 Oral Motion to Continue by
Kitibordee Yindeear-Rom; 12/2/2013 Oral Motion to Continue; 2/6/14 Oral Motion to Continue
by Kitibordee Yindeear-Rom, Mr. Yindeear-Rom and Pheerayuth Burden were both indicted in
Case 14-cr-00069 on March 25, 2014. See Indictment [Dkt. 8]. The single count indictment
charged both men with conspiracy to violate the AECA by exporting and attempting to export
defense articles.
Pheerayuth Burden is a Thai national who resides in California. His company,
Wing-On LLC, is in the freight-forwarding business. Purchasers can have U.S. goods sent to
Wing-On in California, and then repackaged into shipping crates to go by sea or boxes to go by
air to other international destinations. Mr. Burden and Wing-On lawfully forwarded a multitude
of U.S. products in this fashion. According to the Indictment, however, Mr. Burden and Mr.
Yindeear-Rom conspired to have U.S.-origin defense articles delivered to Wing-On in California
and then re-packaged and shipped to Thailand. Exporting defense articles without a license is
illegal under the AECA and ITAR.
Mr. Burden was arrested in California on May 4, 2014 and first appeared before a
judicial officer of this Court on May 7, 2014. Mr. Yindeear-Rom continued to be detained, but
Mr. Burden was released on personal recognizance bond.
2 Thereafter, the parties’ needs to receive, analyze, and understand the wealth of
documents involved in this case, many of which needed to be interpreted from Thai into English,
caused multiple continuances. 1
Mr. Yindeear-Rom entered a plea of guilty to a Superseding Information on
November 14, 2014. He pled guilty to one count of conspiracy to export defense articles in
violation of AECA and ITAR and to forfeiture. There was no agreement that Mr. Yindeear-Rom
would cooperate with the government in the prosecution of Mr. Burden. At the same time, Mr.
Yindeear-Rom agreed with prosecutors to a Stipulated Request for Judicial Removal. The entry
of such an order would “render[] him permanently inadmissible to the United States.” Stipulated
Request [Dkt. 32] ¶ 13. “Accordingly, defendant Kitibordee Yindeear-Rom, and the United
States jointly request[ed] that the Court, after imposing sentence, order that the defendant be
removed from the United States so that promptly upon his release from confinement (if any),
United States Enforcement and Removal Operations may execute the order of removal according
to the applicable laws and regulations.” Id. at 3.
Mr. Yindeear-Rom was sentenced by this Court on March 17, 2015 to thirty-six
(36) months incarceration with credit for time served since October 2013.
Trial preparation for the charges against Mr. Burden dragged on. Finally, on
April 14, 2015, the Court ordered that trial would begin on November 16, 2015, preceded by
scheduled motions due dates and hearings.
A Superseding Indictment was returned on July 16, 2015, naming Mr. Burden and
Wing-On LLC as Defendants. See Dkt. 48. The Superseding Indictment charges both
1 In part, counsel also wanted to reduce travel expenses for Mr. Burden from California to Washington, D.C.
3 Defendants with conspiracy to export defense articles willfully without a license in violation of
the AECA and ITAR; with specific instances of willfully exporting or attempting to export
certain defense articles; and with conspiracy to engage in money laundering. The Superseding
Indictment also contains a forfeiture allegation.
With the addition of a new Defendant and new allegations, it became necessary to
continue the trial set for November 2015. Counsel for Wing-On entered an appearance on
September 10, 2015. At a scheduling conference on September 25, 2015, the trial and all
accompanying deadlines were re-set, with trial to begin on April 4, 2016.
All parties then jointly moved, on December 23, 2015, to continue the April 4,
2016 trial date to “any date in September 2016.” Joint Mot. to Continue [Dkt. 61] at 1. The
reason for the request was that an Assistant United States Attorney (AUSA) had learned of “a
family/medical matter which [was] scheduled to occur in very close proximity to the scheduled
trial date. The matter [could] []not be rescheduled, and the parties [] discussed the matter and
determined that a continuance of the trial [was] in all of the parties’ best interest[s].” Id.
The Court expressed its exasperation at the trial delay and suggested that another
AUSA be added to the prosecution team so that trial could go forward in April 2016. The
government complied and introduced the new AUSA at a status conference held on January 7,
2016. However, counsel for Wing-On made a strong plea for a continuance because not all Thai
documents had been presented in final translation, which would make it difficult for him to learn
the case thoroughly enough to prepare sufficient pre-trial motions on schedule. 2 The Court
2 “On January 6, 2016, the government [had] produced about 150 translated emails.” Opp’n to Rule 15 Deposition [Dkt. 68] at 4.
4 acceded and entered an amended scheduling and pretrial order on January 8, 2016, setting trial
for September 12, 2016.
A. Rule 15 Deposition
In light of the delay in the trial to September, on February 10, 2016, the United
States filed a Motion for a Deposition Pursuant to Rule 15 of the Federal Rules of Criminal
Procedure, asking the Court to authorize the deposition of an important witness “who is expected
to be deported from the United States prior to the September 12, 2016 trial date.” Mot. to Seal
Mot. for Rule 15 Deposition [Dkt. 64] at 1; see also Mot. for Rule 15 Deposition [Dkt. 64-2] at 1
(“Specifically, the purpose of this deposition is to preserve the first-hand testimony of prior co-
defendant Kitibordee Yindeear-Rom about the significant involvement of defendants Pheerayuth
Burden (BURDEN) and Wing-On LLC (WING-ON) in the charged offenses. Mr. Yindeear-
Rom is currently in custody in the United States but will be beyond the subpoena power of the
United States at the time of the trial scheduled for September 12, 2016, as he will be deported
following his release date in June 2016.”). The motion added, “[n]otably, the terms of the plea
agreement required Mr. Yindeear-Rom, a Thai national, to stipulate to a judicial order of
removal following the completion of his sentence, pursuant to 8 U.S.C. Section 1228(c)(5),
which was entered by the Court on November 24, 2014.” Mot. for Rule 15 Deposition at 3
(citing Plea Agreement [Dkt. 28] and Stipulated Request [Dkt. 32]).
Defendants opposed the motion, arguing that Mr. Yindeear-Rom was not
“unavailable” as required by Rule 15 because he was in U.S. custody and would be until at least
30 days after the end of his term in prison because it would take about that long for the
deportation process to conclude. Defendants did not then—and do not now—argue that Mr.
Yindeear-Rom would not be deported and therefore unavailable for trial. Instead, Defendants
5 argued that a proper Rule 15 deposition could only occur very close to the time of Mr. Yindeear-
Rom’s deportation; they also opposed the prosecutor’s preference to conduct the deposition in
March 2016 so that Mr. Yindeear-Rom might earn a Rule 35 motion to reduce his sentence.
Distinguishing between taking at Rule 15 deposition and admitting it at trial, the
government replied that “[i]f and when the government seeks to admit the deposition at trial, and
if the defendants can identify a material question or subject area that could have been explored
but was not, because the deposition was conducted at this time, curative measures can be taken to
safeguard such concerns to include redactions or stipulations or limitations on the use of the
deposition.” Reply [Dkt. 72] at 3. In addition, the government described Mr. Yindeear-Rom as
a “material,” but not a “key” witness, attributing the latter to the investigators and documents.
The Court granted the Rule 15 motion, finding that “Mr. Yindeear-Rom could
provide testimony that is material; he will be unavailable to testify in September 2016 if deported
before then; and there is no procedural barricade to taking his videotaped deposition under Rule
15 as proposed.” Mem. Op. [Dkt. 74] at 4. In addition, the Court found that the use of a
videotaped deposition taken in court, before the trial judge and including the presence of Mr.
Burden and cross examination by both defense lawyers, while a substitute for Mr. Yindeear-
Rom’s trial presence, was nonetheless a very good substitute that would allow the jury to observe
his demeanor and preserve the Defendants’ rights to confront witnesses against them. “In
addition, if Mr. Yindeear-Rom is not [deported] by September 2016, the government fully
intends to have him testify in person.” Id. at 4-5 (emphasis in original). Therefore, the Court
found that there were exceptional circumstances and it would be in the interest of justice to allow
the deposition to be taken. See id. at 5; see also Fed. R. Crim. P. 15(a)(1).
6 The deposition was scheduled to take place in the courtroom, before the Court and
all parties and counsel, on March 23, 2016. See 3/9/16 Minute Order. Beginning on the 23rd of
March with direct examination, the deposition continued on March 24, March 30, and April 4,
2016, when it was concluded. Counsel for Defendants Burden and Wing-On were given full
flight to question Mr. Yindeear-Rom for hours and days without curb or limit. Mr. Burden was
in attendance throughout.
Thereafter, the United States filed a Rule 35 motion to reduce Mr. Yindeear-
Rom’s sentence, which was granted. See Am. Judgment [Dkt. 88]. On an unknown date in April
2016, Mr. Yindeear-Rom was deported from the United States and transported to Thailand.
B. Attempts to Procure Mr. Yindeear-Rom’s Attendance
After Mr. Yindeear-Rom was deported, the government attempted to contact him
through his counsel. The government contacted counsel via telephone and letter on July 11 and
12, 2016. See Mot. to Admit, Ex. 1 [Dkt. 99-1]. The letter included a subpoena for Mr.
Yindeear-Rom’s testimony at trial. See id. The government assured Mr. Yindeear-Rom’s
counsel that “the United States has a strong interest in having Mr. Yindeear-Rom testify in
person, and will pay for Mr. Yindeear-Rom’s expenses for travel to, and stay in, the United
States, including but not limited to round-trip airfare, transportation, room, board, and per diem
witness fee.” Id. In order to faciliatate his entry into the United States, the government agreed to
assist Mr. Yindeear-Rom in obtaining a visa to return to the United States. See id. Counsel for
Mr. Yindeear-Rom forwarded the letter and subpoena to Mr. Yindeear-Rom in Thailand, but was
unable to confirm receipt or make any representations about Mr. Yindeear-Rom’s willingness to
testify.
7 The government also sent the letter and subpoena directly to Mr. Yindeear-Rom’s
last known email and physical address in Thailand, which advised Mr. Yindeear-Rom of the
same payment and assistance in entry that the government was willing to undertake to obtain his
live testimony at trial. See id., Ex. 2 [Dkt. 99-2]. By the date of the pretrial conference, the
government had received no response to either the email or physical letter sent to Mr. Yindeear-
Rom. However, the government was able to confirm that the physical letter was delivered on
July 29, 2016 and signed for by “K. Yen,” which the government believes to be Mr. Yindeear-
Rom. Id., Ex. 3 [Dkt. 99-3].
The government also pursued efforts to contact Mr. Yindeear-Rom in person
through law enforcement personnel working in Bangkok, Thailand and through social media
websites that he might use. Department of Homeland Security (DHS) personnel in Thailand
made contact with Mr. Yindeear-Rom via telephone and explained the government’s request for
his live testimony at trial. See Reply, Ex. 4 [Dkt. 109-1]. Mr. Yindeear-Rom told the DHS
representative that he knew the government was trying to contact him and he had received the
email and letter, but he “had no desire to travel to the United States to cooperate in any way.” Id.
On August 5, 2016, the United States moved to admit the Rule 15 deposition of
Mr. Yindeear-Rom. See Mot. to Admit [Dkt. 99]. Defendants’ opposed. See Opp’n [Dkt. 107].
The Court heard oral argument on the motion during the two-day pretrial conference held on
August 22 and 29, 2016 and ruled from the bench to admit Mr. Yindeear-Rom’s deposition at
trial. See Order [Dkt. 115].
III. APPLICABLE LAW
Two separate but connected legal sources must be analyzed before a deposition
can be allowed into evidence at a criminal trial. First is the Sixth Amendment to the U.S.
Constitution, which gives every criminal defendant the right “to be confronted with the witnesses
8 against him . . . .” U.S. Const., amend. VI. Second are the Federal Rules of Evidence, which
define both inadmissible hearsay and provide the right to obtain admissible evidence from a
person whose information is “material” to the case but who will be “unavailable” at the time of
trial. Fed. R. Evid. 804(a), (b).
A. Confrontation Clause
“The primary object of the [Confrontation Clause] . . . was to prevent depositions
or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and
cross-examination of the witness, in which the accused has an opportunity, not only of testing the
recollection and sifting the conscience of the witness, but of compelling him to stand face to face
with the jury in order that they may look at him, and judge by his demeanor upon the stand and
the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United
States, 156 U.S. 237, 242-43 (1895). “[T]here has traditionally been an exception to the
confrontation requirement where a witness is unavailable and has given testimony at previous
judicial proceedings against the same defendant which was subject to cross-examination by that
defendant.” Barber v. Page, 390 U.S. 719, 722 (1968) (citing Mattox, in which testimony from
first trial admitted at retrial because witness had died). “This exception has been explained as
arising from necessity and has been justified on the ground that the right of cross-examination
initially afforded provides substantial compliance with the purposes behind the confrontation
requirement.” Id.
While in Mattox the witness was unavailable due to death, the missing witness in
Barber, named Woods, was being held in a federal prison in Texas, outside Oklahoma where the
trial was to take place. The testimony in question came from Mr. Woods during a preliminary
hearing when both men were jointly charged with armed robbery and both were represented by
9 the same counsel, Mr. Parks. “During course of the hearing, Woods agreed to waive his
privilege against self-incrimination. Parks then withdrew as Woods’ attorney but continued to
represent [Mr. Barber].” Id. 720. Mr. Woods was not cross-examined by Mr. Parks. By the
time of the trial, Mr. Woods was incarcerated in a federal penitentiary in Texarkana, Texas. See
id. Oklahoma made no effort to produce Mr. Woods for trial and argued that he was legally
unavailable because he was outside the state’s jurisdiction. See id. Mr. Barber objected, but the
court admitted the prior testimony and Mr. Barber was ultimately convicted. Id. at 720-21. The
Supreme Court reversed the conviction because “a witness is not ‘unavailable’ for purposes of
the foregoing exception to the confrontation requirement unless the prosecutorial authorities
have made a good-faith effort to obtain his presence at trial.” Id. at 724-25.
The Supreme Court considered the use of prior testimony again in California v.
Green, 399 U.S. 149 (1970), in which the Court ruled that testimony by Melvin Porter at the
preliminary hearing was admissible at the trial of John Green. See id. at 151. Mr. Porter, a
teenage drug dealer, testified at a preliminary hearing that Mr. Green was his marijuana supplier.
At trial, Mr. Porter appeared and was sworn in as a witness, questioned by the State, and cross-
examined by Mr. Green’s counsel. See id. at 167. The State also relied on Mr. Porter’s prior
testimony to prove its case against Mr. Green. See id. at 168. The Court held that:
Porter’s preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether [Mr. Green] had an effective opportunity for confrontation at the subsequent trial [at which Mr. Porter was a witness]. For Porter’s statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; [Mr. Green] was represented by counsel . . .; [Mr. Green] had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter’s statement would, we think, have been admissible at trial even in Porter’s absence if Porter
10 had been actually unavailable, despite good-faith efforts of the State to produce him.
Id. at 165. “Whether Porter then testified in a manner consistent or inconsistent with his
preliminary hearing testimony, claimed a loss of memory, claimed his privilege against
compulsory self-incrimination, or simply refused to answer, nothing in the Confrontation Clause
prohibited the State from also relying on his prior testimony.” Id. at 167-68.
Federal Rule of Evidence 804 details the requirements and exceptions for
admitting testimony of unavailable declarants. First, Rule 804 identifies the requirements for
finding a witness “unavailable.” As relevant here, the Rule states:
A declarant is considered to be unavailable as a witness if the declarant:
...
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6).
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
Fed. R. Evid. 804(a). Rule 804 goes on to explain the exception to the rule against hearsay,
which may be used to admit prior testimony or statements of an unavailable witness. The Rule
states:
The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
11 (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Fed. R. Evid. 804(b).
C. Availability of the Witness
Combined with the constitutional pressures of the Confrontation Clause, Rule 804
has caused some courts to examine sternly whether the government as prosecutor acted in good
faith to procure a witness’s presence by reasonable means, or wrongfully caused a declarant’s
absence from a criminal trial.
The D.C. Circuit has only addressed these issues twice. In United States v. Lynch,
499 F.2d 1011 (D.C. Cir. 1974), the Circuit found that the government failed to establish the
witness was unavailable and that the District Court erred in admitting testimony from the
preliminary hearing. See id. at 1024. The witness had been in court on Friday of the previous
week, but failed to return on Monday. See id. at 1023. The prosecution did not represent that the
witness was unwilling to testify and had made insufficient attempts to locate the witness. See id.
at 1024. Although police officers visited the witness’s grandmother’s house and a friend’s
apartment (where she was hiding and refused to answer the Marshals’ knocks on the door), they
never checked with area hospitals or her employer, and admitted to limited efforts to locate her
because of multiple demonstrations in Washington, D.C. that were otherwise keeping the police
busy. See id. at 1023-24. The Circuit determined that “it [was] difficult to believe that if the
preliminary hearing testimony of this critical witness were not available, the prosecution would
have abandoned its efforts at [the same] point to locate [the witness]” and the earlier testimony
should not have been admitted. Id. at 1024.
12 In United States v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994), the Circuit held that the
defendant was not entitled to take foreign depositions of those persons who were alleged to have
paid bribes to him, as no “exceptional circumstances” were demonstrated because the witnesses
were expected to testify at trial. Id. at 1125. It noted that “[t]he purpose of Rule 15(a) is to
preserve testimony for trial, not to ‘provide a method for pretrial discovery.’” Id. at 1124
(quoting United States v. Troutman, 814 F.2d 1428, 1453 (10th Cir. 1987)).
In United States v. Allie, 978 F.2d 1401 (5th Cir. 1992), the Fifth Circuit agreed
that pre-trial depositions could be taken of alien witnesses who were going to be deported before
trial. See id. at 1045. In that case, a standing order in the district court mandated the release of
detained witnesses within 60 days and, with the added factors of the aliens’ illegal presence in
the United States, lack of ties to the area, and the necessity of the testimony, the Circuit agreed
that exceptional circumstances had been established. See id. Efforts thereafter by the
government to obtain the witnesses’ attendance were reasonable and in good faith, justifying the
admission of prior testimony. See id. at 1407. The government’s efforts included the following:
giving the witnesses the option of remaining in the United States with work permits, telling the witnesses about the payment of witness fees and travel cost reimbursement, giving the witnesses a subpoena and a letter to facilitate their reentry into the United States, calling the witnesses in Mexico, getting the witnesses’ repeated assurances that they would return, apprising the border inspectors of the witnesses’ expected arrival and issuing checks to be given to the witnesses upon their reentry in to the United States.
Id. In contrast, the Fifth Circuit found insufficient efforts to obtain the return of an alien when
prosecutors first tried to reach him in Mexico only eight days before the trial. United States v.
Tirado-Tirado, 563 F.3d 117, 124 (5th Cir. 2009). The Circuit therefore found admission of the
videotaped deposition violated the Confrontation Clause because the witness was not
“unavailable.” Id. at 125.
13 According to the First Circuit, when “[t]he government did not make as vigorous
an attempt to secure the presence of the witness as it would have made if it did not have the prior
recorded testimony,” Rule 804(a)(5) was not satisfied. United States v. Mann, 590 F.2d 361, 367
(1st Cir. 1978). The witness in Mann, a 17-year-old girl from Australia, acted as a drug mule
transporting cocaine for the defendant. See id. at 363-64. Without any indication of personal
hardship or necessity requiring her presence elsewhere, she was deposed and allowed to depart.
See id. The trial court admitted her testimony at trial, but the First Circuit reversed, finding the
District Court erred in allowing the Rule 15 deposition and in admitting the deposition at trial.
See id. at 365-68. It held that “[i]mplicit . . . in the duty to use reasonable means to procure the
presence of an absent witness is the duty to use reasonable means to prevent a present witness
from becoming absent.” Id. at 368.
The District of Maine has recently issued an opinion refusing to admit the
videotaped deposition of an illegal alien who was deported when the Department of Homeland
Security “denied [the Assistant United States Attorney’s] request for deferral because of [the
witness’s] recent and serious criminal conviction.” United States v. French, Case No. 12-cr-160,
2014 WL 34802, *1 (D. Me. Jan. 6, 2014) (internal quotation and citation omitted). Because the
government held the witness on a material witness warrant only long enough to take his
deposition—and did not attempt to hold him longer—the court found a failure to use
“‘reasonable means to prevent a present witness from becoming absent.’” Id. at *8-10 (quoting
Mann, 590 F.2d at 368).
A judge on this Bench, however, came to a different conclusion when permitting
the videotaped deposition of a deportable alien in United States v. Vo, 53 F. Supp. 3d 77 (D.D.C.
2014). The case involved a criminal conspiracy to commit visa fraud. See id. at 80. Truc Thanh
14 Huynh was originally a co-defendant of Binh Vo but she had entered a plea of guilty and was to
be released from the Bureau of Prisons in early July 2014. See id. Binh Vo’s trial would not
commence until mid-September 2014. See id. When the government sought to depose Ms.
Huynh, both she and Mr. Vo objected. See id. After considering their objections, the court
ordered the deposition, finding that “Huynh will be unavailable to testify at trial and that her
testimony would be material.” See id. at 85. Although the court reserved the question of the
admissibility of the deposition at trial, it went on to evaluate “Next Steps,” as Ms. Huynh was set
to be released prior to trial. Id. The court found it would “accomplish little” to order Deferred
Action on Ms. Huynh’s deportation. Id. “A Deferred Action is ‘an act of administrative
convenience to the government which gives some cases lower priority,’” allowing Immigration
and Customs Enforcement (ICE) as a matter of discretion to postpone a removal. Id. (quoting 8
C.F.R. § 274a.12(c)(14)). Despite the government’s ability to request a Deferred Action, the
court found it unnecessary, explaining that:
it is far from clear that pursuing a Deferred Action is in the interests of justice. If ICE were to grant Huynh a Deferred Action, her removal proceedings would not even begin until after her deposition, meaning that in all likelihood she would still be in the country during Vo’s trial in September. The better course is for ICE to begin removal proceedings, subject only to a bench warrant from this Court acting as a detainer (to expire once her deposition is complete), in the hope that Huynh can return to Vietnam shortly after her deposition is taken.
Id. The court, therefore, facilitated the witness’s return to Vietnam after the deposition, but
before she could testify at trial. 3
3 A number of other circuit and district courts have considered the availability of witnesses and admissibility of prior statements. See, e.g., United States v. Tirado-Tirado, 563 F.3d 117, 123-25 (5th Cir. 2009) (finding government efforts to procure witness were not reasonable when government failed to make any concrete arrangements prior to his deportation and delayed attempting to contact the witness until shortly before trial); United States v. Yida, 498 F.3d 945,
15 IV. ANALYSIS
This Court ruled that the deposition of Mr. Yindeear-Rom was admissible at the
trial of Mr. Burden and Wing-On because he was unavailable at trial and Defendants had a
thorough opportunity to cross examine Mr. Yindeear-Rom during the four-day Rule 15
deposition.
The Court takes its cue from California v. Green. In that case, the Supreme Court
found that witness testimony could have been admitted at trial, were he absent, because of the
circumstances under which it was taken: the witness was under oath; the criminal defendants
were present and separately represented by counsel; the criminal defendants could and did cross
examine the witness; and his testimony was given before a judicial tribunal that provided a
judicial record. 399 U.S. at 165. Each of these points was adopted for the testimony of Mr.
Yindeear-Rom, making it “admissible as far as the Constitution is concerned.” Id. During the
Rule 15 deposition, Mr. Yindeear-Rom was under oath, Mr. Burden was present (for himself and
as the owner and representative of Wing-On); both Defendants were represented by counsel and
both cross-examined the witness; and the deposition took place in the courtroom and on the
record. In addition, the testimony was videotaped so the jury will be able to observe Mr.
950-58 (9th Cir. 2007) (finding government efforts to procure witness were not reasonable when government allowed a material witness to be released and deported between the first trial, which ended in a mistrial, and the second trial, stressing the benefits of live testimony and the government’s failure to attempt even a videotaped deposition of the witness); United States v. Huang, 827 F. Supp. 945, 949-50 (S.D.N.Y. 1993) (finding witness unavailable when witness was detained as material witness for a Rule 15 deposition and then deported; before deportation the witness was provided with subpoena and instructions for reentry and reimbursement, but would not return for trial); United States v. Eufracio-Torres, 890 F.2d 266, 270-71 (10th Cir. 1989) (same); United States v. Sindona, 636 F.2d 792, 804 (2d Cir. 1980) (finding witnesses unavailable where they were Italian citizens, never located in the United States and therefore outside the subpoena power of the court).
16 Yindeear-Rom as he testified. After hours and hours of cross examination, Defendants’ rights to
confront Mr. Yindeear-Rom were fully satisfied. Defendants do not argue otherwise.
The government also made good-faith efforts to procure Mr. Yindeear-Rom’s
presence at trial in September 2016. The government attempted to contact Mr. Yindeear-Rom
and issue a subpoena both through his counsel and through direct email or mail communications.
When those efforts proved ineffective, the government enlisted DHS employees located in
Thailand to attempt to contact Mr. Yindeear-Rom in person. The DHS representative was able
to speak with Mr. Yindeear-Rom via telephone and learned he was aware of the trial and the
government’s attempts to procure his testimony, but that he had no desire to return to the United
States to testify. Defendants do not dispute the government’s account of their efforts to obtain
the in-person testimony of Mr. Yindeear-Rom.
The error Defendants identify is the government’s failure to keep Mr. Yindeear-
Rom in the United States after his release from three years’ incarceration. See Opp’n at 6-11.
They posit that the government could have detained Mr. Yindeear-Rom as a material witness or
released him to the community with a temporary work permit. See id. at 10-11.
Defendants overlook a few salient facts: (1) Mr. Yindeear-Rom was in this
country for three days when he was arrested and jailed for three years; (2) by the terms of his
2014 plea agreement, the government and Mr. Yindeear-Rom had stipulated to a judicial order of
removal upon his release; (3) Mr. Yindeear-Rom served almost his entire sentence because an
alien subject to deportation is not eligible for early release to a half-way house; (4) had counsel
for Wing-On not been so persuasive about his need for more time to prepare for trial, Mr.
Yindeear-Rom would have testified in person at the original trial date in April 2016; and (5) had
Mr. Yindeear-Rom not been offered a cooperation agreement in return for an early release from
17 prison, he could have waited until June 9, 2016 to be released, and still have been deported
before the September 2016 trial.
Additionally, the vehemence with which Mr. Yindeear-Rom refused to speak with
the prosecutors as they attempted to contact him and secure his return for trial is demonstrative
of his unwillingness to appear for trial and likely unwillingness to stay in the United States for
trial after his release from prison. “Evidence that a witness specifically refuses to testify at trial
is ‘potent proof of unavailability required for purposes of Rule 15(a).’” United States v Warren,
713 F. Supp. 2d 1 (D.D.C. 2010) (quoting United States v. Drogoul, 1 F.3d 1546, 1553 (11th Cir.
1993)). The Court also finds, consisted with Vo, that it would not have been in the interests of
justice to jail Mr. Yindeear-Rom as a material witness when he had just completed his sentence
at the Bureau of Prisons. See Vo, 53 F. Supp. 3d at 85.
Defendants further argue that they would not have sought a continuance of the
trial from April to September 2016 if they had known that the government was going to present
Mr. Yindeear-Rom as a videotaped witness. Defense counsel insisted that, despite the original
protests for more time to prepare, counsel for Wing-On could have been prepared for trial in
April, if need be, in order to have a live witness. Hindsight makes everything seem easier. The
motion to postpone the trial until September 2016 was heard and granted on January 7, 2016.
The government did not meet with Mr. Yindeear-Rom to discuss the possibility of his testimony
until much later in that month. As of January 7, 2016, the government had no obligation to
forecast that it would be seeking Mr. Yindeear-Rom’s cooperation or predict whether he would
agree.
The Court finds that the government’s efforts to procure Mr. Yindeear-Rom’s live
testimony at trial were reasonable and conducted in good faith. The Court does not find that
18 failing to request a material witness warrant or to offer to allow Mr. Yindeear-Rom to remain in
the United States pending trial affect the reasonableness of the government’s efforts. “The law
does not require the doing of a futile act,” Ohio v. Roberts, 448 U.S. 56, 63 (1980), and, based on
Mr. Yindeear-Rom’s eagerness to return to Thailand, any attempts to persuade him to remain in
the United States would almost certainly have been futile. 4
The Court concludes that the Sixth Amendment Confrontation Clause does not
preclude admitting the deposition transcript into evidence at Defendants’ criminal trial.
The Court also considers the strictures of Rule 804(a), which allows admission of
prior testimony when the declarant is absent and he cannot be procured “by process or other
reasonable means.” Fed. R. Evid. 804(a)(5). Critically, the Rule adds that “subdivision (a) does
not apply if the statement’s proponent procured or wrongfully caused the declarant’s
unavailability of a witness in order to prevent the declarant from attending or testifying.” Id.
(emphasis added). According to these terms, a proponent has to “wrongfully cause[] the
declarant’s unavailability” with the purpose or intention of preventing in-person testimony. No
such intent on the government’s part is shown in this record or argued by Defendants.
To the contrary, this Court finds that Mr. Yindeear-Rom is unavailable and that
the government attempted to procure his live testimony via process and other reasonable means.
4 The Court notes that other circuit and district courts have addressed similar issues and specifically differentiates this case from Yida and Tirado-Tirado. In Yida, the court focused on the inadequacy of a transcript of testimony at the first trial, stressing the need for a jury to see the witness. See 498 F.3d at 950-51. The witness here was deposed on video and, therefore, the jury will be able to view his physical reactions to questions and determine his credibility. This case can also be differentiated from Tirado-Tirado as the government in this case did not wait until shortly before trial to attempt to contact the witness and attempted live contact with the witness in his country of residence. See 563 F.3d at 123-25.
19 The Court’s analysis of the question of availability in the Confrontation Clause context applies
equally to Rule 804 and will not be repeated here.
The government’s efforts to procure Mr. Yindeear-Rom’s live testimony satisfy
the plain requirements, purpose, and spirit of Rule 804(a). Mr. Yindeear-Rom is beyond the
subpoena power of the Court and his videotaped testimony is available. The government has
made good faith efforts to persuade Mr. Yindeear-Rom to return and he has clearly refused. The
government, therefore satisfies the requirement to show Mr. Yindeear-Rom is unavailable under
Rule 804(a). The deposition also meets the requirements for admissibility under Rule 804(b)
because the testimony was given at a “lawful deposition” conducted in the presence of this Court
and Mr. Burden and Wing On were present and represented by counsel and had “an opportunity
and similar motive to develop [the testimony] by . . . cross- [] examination.” Fed. R. Evid.
804(b)(1).
IV. CONCLUSION
Upon considering the briefs, oral arguments, and the entire record, the Court
concluded at the pretrial conference that admission of the videotaped testimony was appropriate
and necessary.
Date: September 20, 2016 /s/ ROSEMARY M. COLLYER United States District Judge