United States District Court, S.D. New York
September 2, 2004.
UNITED STATES OF AMERICA,
KENNETH STEVENS, Defendant.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
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
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
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.
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