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UNITED STATES v. KOROGODSKY

April 1, 1998

UNITED STATES OF AMERICA, against ALEX KOROGODSKY, Defendant.


The opinion of the court was delivered by: SCHEINDLIN

OPINION AND ORDER

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 On March 16, 1998, Defendant Alex Korogodsky ("Korogodsky") requested the issuance of a letter rogatory to Russian authorities. *fn1" Korogodsky also moves to dismiss the Indictment, arguing that his inability to subpoena foreign witnesses will (1) deprive him of his Sixth Amendment right to compulsory process, and (2) violate the confrontation clause of the Sixth Amendment. *fn2"

 I. Factual and Procedural Background

 Korogodsky is charged, inter alia, with conspiracy to commit wire fraud and wire fraud, in violation of 18 U.S.C. §§ 371 and 1343. The charges arise out of an alleged scheme by Korogodsky and others ("the conspirators") to defraud 30 Russian firms (the "victim firms") of over $ 10 million and to transport the funds to the United States.

 The Indictment alleges that in approximately January 1992, the conspirators traveled to Moscow where, using assumed names they posed as representatives of a phony U.S. firm called "Newtel Co.". Using their false identities, they offered to sell to Russian firms at a consumer trade exhibition an array of western-manufactured goods and products. Indictment at PP 6(a), 6(b). The Indictment further alleges that by making false promises to deliver the goods and products, the conspirators induced the victim firms to enter into purported contracts, pursuant to which the firms made advance payments to Newtel totaling approximately $ 4.7 million. Id. at PP 6(d) and (e). Thereafter, the conspirators allegedly kept the proceeds and did not deliver any of the goods to the victim firms. Id. at P 6(f).

 The Government has represented that it expects to call witnesses from only five of the 30 victim firms. The Government will apparently prove that the conspirators attempted to defraud the remaining 25 victim firms by offering (1) accomplice testimony, (2) the purported contracts between the conspirators and the victim firms, and (3) bank documents allegedly reflecting money transfers from the victim firms to Newtel. These contracts and bank records will be offered pursuant to 18 U.S.C. § 3505. *fn3"

 II. Korogodsky's Letter Rogatory Request

 Korogodsky's letter rogatory seeks sworn statements from 32 persons who fall into three categories: (1) representatives of victim firms; (2) representatives of banks and other businesses that provided the victim firms with financing to make payments to Newtel; and (3) representatives of companies that agreed to insure the victim firms' performance under the contracts. The Government does not intend to call any of these individuals at trial.

 Korogodsky's letter rogatory would require these persons to provide written information about the following: their educational background and employment history; background information about the formation, ownership, capitalization and bank accounts of their firm; their dealings, if any, with Newtel, Korogodsky or (regarding the banks and insurers) Newtel's contract partners; any criminal record of the witness, his company, or their status as a target or subject of a criminal or civil investigation; any physical or mental disability or emotional disturbance or drug or alcohol addiction of the witness; and any payments, leniency promises or immunity grants from law enforcement officials.

 Korogodsky contends that he should be permitted to pursue the letter rogatory because it: (1) might generate evidence of the victim firms' own misconduct; and (2) would allow him to test the reliability of the § 3505 foreign certifications. The Government opposes the letter rogatory request, in part, because it believes that obtaining responses to the request may take months or even years.

 III. Discussion

 A. Korogodsky's Letter Rogatory Request

 1. Letters Rogatory in Criminal Cases

 The use of depositions in criminal cases is governed by Fed. R. Crim. P. 15, which permits a party in "exceptional circumstances" to depose its own witness in order to preserve the witness' testimony. Rule 15(d) directs that depositions are to be taken in the manner provided in civil actions, and Fed. R. Civ. P. 28(b)(3) authorizes the taking of depositions in foreign countries "pursuant to a letter rogatory." Thus, a court has discretion to issue letters rogatory on behalf of a party in a criminal action pursuant ...


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