to the Southern District civil action, he gave his oath pursuant to that district's rules and was shielded by a protective order secured in that district. In this case the defendants' fraudulent scheme was designed to take money from three accounts in this district. Success of the scheme required a significant effect here.
In United States v. Candella, 487 F.2d 1223 (2d Cir. 1974) falsified documents were accepted in the Brooklyn branch office of the City Department of Relocation. The documents were, in the normal course of business, routed to the main office of the Department in Manhattan. Since the offense "immediately contemplated Manhattan," venue in this district was upheld. Again, this scheme immediately contemplated taking money from accounts that were in this district. The logic of Candella supports the notion that there is venue in this case.
The Government has urged that United States v. Gilboe, 684 F.2d 235 (2d Cir. 1982) allows this Court to find venue simply because the funds passed through New York. There, the Court of Appeals applied 18 U.S.C. § 3237 (a) in affirming venue in an action wire fraud and transportation of funds obtained by fraud where "the proceeds of the fraud were all transferred through New York so that such commerce moved from, through or into New York...." The Government maintains that venue is proper in New York simply because the funds passed through the CCMS system at 111 Wall Street. The Gilboe facts, however included an additional basis for venue in this district and the Court sustained venue, at least in part, on "the numerous telexes and telephone calls between New York and Hong Kong and other parts of the world." 684 F.2d at 239. The transfer through New York financial institutions was an intended and calculated part of the scheme.
As in Gilboe, there are additional allegations such as the location of the three accounts and the loss of funds to Citibank that tie the effects of these alleged crimes to New York City.
Venue is Established for the Conspiracy Count
In its superseding indictment, the Government added the charge of conspiracy to commit bank fraud and wire fraud. Venue lies in this district for this charge.
The Court of Appeals has held that "in a prosecution for conspiracy, venue is proper in any district in which an overt act in furtherance of the conspiracy was committed by any of the co-conspirators." United States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994). It is well settled that phone calls can constitute overt acts in furtherance of a conspiracy. See Naranjo at 147 citing United States v. Uribe, 890 F.2d 554, 558-59 (1st Cir. 1989); United States v. Stewart, 878 F.2d 256, 258 (8th Cir. 1989); United States v. Lewis, 676 F.2d 508, 511 (11th Cir.), cert. denied, 459 U.S. 976, 74 L. Ed. 2d 291, 103 S. Ct. 313 (1982). In United States v. Naranjo, the Court, explaining an earlier decision regarding telephone calls into the district to establish venue for conspiracy, stated "we ruled that 'the phone calls alone' established venue in the Southern District." Id. at 147. This explanation made it clear that the phone call need not be to a co-conspirator in the district; that a call into the district was sufficient to establish an overt act for the purpose of establishing venue for conspiracy.
The Court of Appeals saw "no basis for imposing any more rigorous requirement of the phone calls than that they do further the conspiracy." Id. at 147. The electronic access, through the CCMS system, into the New York accounts, is the equivalent of a phone call into the district. The electronic accessing of the accounts furthered the conspiracy considerably. Having satisfied the overt act test, the Government has established venue for this count.
Venue is established for all counts.
Motion to Take Foreign Depositions
Under Rule 15, courts have authority to order the deposition of a prospective witness by a party seeking to preserve that witness' testimony whenever "exceptional circumstances" exist. Fed. R. Crim. P. 15(b). The Court of Appeals has found "exceptional circumstances" to be present when the Government has demonstrated that a prospective witness is likely to be unavailable to testify at trial. See United States v. Salim, 855 F.2d 944, 949 (2d Cir. 1988); United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir.), cert. denied, 469 U.S. 1075, 83 L. Ed. 2d 511, 105 S. Ct. 571 (1984).
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. Johnpoll 739 F.2d at 709. See United States v. Singleton, 460 F.2d 1148, 1154 (2d Cir. 1972), cert. denied, 410 U.S. 984, 36 L. Ed. 2d 180, 93 S. Ct. 1506 (1973).
Here the government has made a proper showing that the witness testimony is material, that the witnesses will not come to this country to testify and that provisions will be made to honor the defendant's constitutional right of confrontation.
Each of the seven witnesses will testify as to the unauthorized nature of the seven separate wire transfers. The superseding indictment alleges conspiracy to commit these acts and alleges overt act relating to each of the transfers. Specifically, Jacobus Valentyn and Sayaman Nasution are employees of Bank Artha Graha in Jakarta, who supposedly requested and approved the August 5 transfer to the Primorye account. Adrianna Bruno and Olga Altamira are the employees of Banco Del Sud in Argentina who supposedly requested and approved the August 5 transfer to the Shore Company account. Eduardo Mazza and Carlos Arario are the employees of Invest Capital in Argentina who supposedly requested and approved five wire transfers on August 24 to the five bank accounts opened by Ms. Korolkova on August 17 and 18. Finally, Christian Silbergleit is the Invest Capital Employee who notified Citibank that the August 24 transfers to the five San Francisco accounts were unauthorized.
The proposed testimony of these witnesses is material to this case.
The initial papers regarding these depositions represented that Citibank had notified these potential witnesses and that they had refused to appear for trial in New York. The Government has indicated that it has also contacted the seven potential foreign witnesses and despite assurances that the Government would pay for them to travel here to testify, each has indicated an unwillingness to do so.
The Government is unable to compel the attendance of any of these witnesses at trial at New York. As there are not citizens of the United States and do not reside here, they are not amenable to United States subpoenas. See Fed. R. Crim. P. 17(e)(2); 28 U.S.C. § 1783; United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984).
In view of the defendant's incarceration, the Government has agreed to make arrangements to honor her constitutional rights. Specifically they have proposed that the depositions be videotaped and that she be permitted to monitor the proceedings by telephone. There must, of course, be a Russian interpreter available to Ms. Korolkova. Defense counsel conceded that the procedures proposed by the Government are essentially the same as those approved by the Court of Appeals in United States v. Salim, 855 F.2d 944, 949 (2d Cir. 1988). In light of approval by that Court, these arrangements are acceptable.
Any problems that arise at the taking of these depositions can be raised at a later date. For the moment, the Government has demonstrated that the testimony of these witnesses is material and will only be available at trial if taken in Jakarta and Buenos Aires. The Government's motion is granted.
Korolkova's motion to dismiss all counts for lack of venue is denied. The Government's motion to take seven foreign depositions is granted.
It is so ordered.
New York, N. Y.
December 7, 1994
ROBERT W. SWEET