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UNITED STATES v. ROSENSTEIN

May 27, 1969

United States of America
v.
Sidney Rosenstein, Irving Braverman, Foremost Brands, Inc. and Mc Inerny Sales, Inc., Defendants


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

Memorandum

TENNEY, District Judge:

 Defendants herein make the following respective motions before this Court: (1) defendant Irving Braverman seeks, pursuant to Title 18, United States Code, Section 3237(b), to transfer his trial to the Eastern District of New York on the ground that, during all the times wherein it is alleged that defendant Braverman conspired to evade income taxes, he resided in Brooklyn, New York, which location is within that district; (2) defendants move for an order pursuant to Rule 15(a) of the Federal Rules of Criminal Procedure directing the examination by way of deposition of Herbert Batliner and Alfred Buehler, both of Vaduz, Lichtenstein, and of James Ward of Lancashire, England, all as prospective witnesses on defendants' behalf; and (3) defendants move, pursuant to Fed. R. Crim. P. 7(f), for an order directing the United States Attorney to furnish them with a bill of particulars and for discovery and inspection pursuant to Fed. R. Crim. P. 16.

 Motion for a Change of Venue

 Title 18, United States Code, Section 3237(b), sets forth that notwithstanding subsection (a), which provides for the general rule that an offense may be prosecuted " . . . in any district in which such offense was begun, continued or completed . . . .",

 
" . . . where an offense is described in section 7203 of the Internal Revenue Code of 1954, or where an offense involves use of the mails and is an offense described in section 7201 or 7206(1), (2) or (5) of such Code . . . and prosecution is begun in a judicial district other than the judicial district in which the defendant resides, he may upon motion filed in the district in which the prosecution is begun, elect to be tried in the district in which he was residing at the time the alleged offense was committed . . . ."

 It is abundantly clear that Congress, by its enactment of section 3237(b), intended to give a defendant prosecuted in a district other than the one in which he presently resides and charged with a violation of Title 26, United States Code, Section 7201, or a related conspiracy count, the right to be transferred for trial to the judicial district of his residence at the time the alleged offense was committed. United States v. Dalitz, 248 F. Supp. 238, 240 (S.D. Cal. 1965); United States v. Rosenberg, 226 F. Supp. 199, 201 (S.D. Fla. 1964). Inasmuch as defendant Braverman presently resides in Manhattan, the district in which the prosecution was, in fact, commenced, the transfer provision would not be applicable.

 Motion for Depositions

 Defendants move, pursuant to Rule 15(a) of the Federal Rules of Criminal Procedure for an order directing that depositions be taken of the following prospective witnesses for the defense: (1) Herbert Batliner of Vaduz, Lichtenstein; (2) Alfred Buehler, also of Vaduz, Lichtenstein; and (3) James Ward of Lancashire, England.

 Fed. R. Crim. P. 15(a) provides in pertinent part:

 
"If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of a defendant and notice to the parties order that his testimony be taken by deposition . . . ."

 Additionally, it should be noted that it was the intention of the Advisory Committee that, in criminal cases, depositions are to be used "only in exceptional circumstances". United States v. Birrell, 276 F. Supp. 798, 822 (S.D.N.Y. 1967). In view of the limited application of this rule, this Court is constrained to grant defendants' motion only with respect to James Ward.

 To allow the deposition of Mr. Buehler, who is presently a fugitive from justice subject to arrest pursuant to the outstanding order of contempt issued by the Honorable Inzer B. Wyatt of this court on February 9, 1968, would itself be an "injustice", rather than "prevent a failure of justice". United States v. Van Allen, 28 F.R.D. 329, 346 (S.D.N.Y. 1961).

 With regard to Mr. Batliner, the bare recital in an affidavit submitted by defense counsel that " . . . your deponent has reason to believe that [Mr. Batliner] will not attend any trial conducted in the United States. . . .", absent any factual elaboration showing that the witness, in fact, cannot be present, is insufficient to ...


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