United States District Court, S.D. New York
Sean S. Buckley, Rachel P. Kovner, Stephen J. Ritchin, Assistant United States Attorneys, Preet Bharara, UNITED STATES ATTORNEY.
Andrew G. Patel, Lauren Kessler, LAW OFFICES OF ANDREW G. PATEL.
Linda Moreno, LAW OFFICE OF LINDA MORENO.
Ahmed Ghappour, LAW OFFICES OF AHMED GHAPPOUR, Attorneys for Defendant Adel Abdel Bary
Bobbi C. Sternheim, LAW OFFICES OF BOBBI C. STERNHEIM.
David V. Kirby, Babrbara E. O'Connor, O'CONNOR & KIRBY, PC, Attorneys for Defendant Kahlid Al Fawwaz
LLEWIS A. KAPLAN, District Judge.
Before this Court are four motions - one by Bary and three by al Fawwaz - to depose witnesses located abroad, who allegedly are unable or unwilling to travel to the United States to testify in person, under Rule 15 and for letters rogatory.
Bary and al Fawwaz were indicted in this Court in 2000 for, among other things, conspiring with Usama bin Laden and others to kill Americans abroad by, among other means, bombing the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. Two hundred twenty four people reportedly were killed and many more injured in those bombings.
The indictment alleges that bin Laden established al Qaeda's London office, called the Advice and Reformation Committee ("ARC"), in 1994 and installed al Fawwaz at the helm. Al Fawwaz, with Bary as a witness to the lease, rented office space for the ARC at 1A Beethoven Street on or about September 4, 1997. The indictment further accuses al Fawwaz of providing bin Laden and other al Qaeda members with a satellite telephone to facilitate communication and of storing and disseminating bin Laden's 1996 Declaration of Jihad on and through the computer at his residence. It alleges broadly that all members of al Qaeda pledged an oath of allegiance, or " bayat, " to bin Laden.
I. Legal Standard
A. Rule 15
A party to a criminal proceeding may move under Rule 15 "that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice." This standard is met where the "testimony is material to the case and  the witness is unavailable to appear at trial."
To satisfy the materiality requirement, the moving party must show that the proposed testimony would exculpate or, in the event that the government is the moving party, inculpate, the defendant. It need not be definitive proof of guilt or innocence,  but should be more than merely relevant. Furthermore, the proposed testimony must be non-cumulative of other evidence and admissible. Where admissibility "is close a court may allow a deposition in order to preserve a witness' testimony, leaving until trial the question of whether the deposition will be admitted as evidence." However, "[t]he court need not, at the cost of time and money, engage in an act of futility by authorizing depositions that clearly will be inadmissible at trial."
To satisfy the unavailability requirement, the moving party must show that the witness is unable or unwilling to attend trial and that it has made a good faith effort to secure that witness's attendance. Foreign witnesses who are not subject to the government's subpoena power and, despite the moving party's appropriate efforts, refuse to travel to this country to testify routinely are found unavailable. However, vague assertions that the witness may not be willing or able to travel at the time of the trial are insufficient to find unavailability.
B. Letters Rogatory
Letters rogatory are "the medium, in effect, whereby one country, speaking through one of its courts, requests another country, acting through its own courts and by methods of court procedure peculiar thereto and entirely within the latter's control, to assist the administration of justice in the former country." District "courts have inherent authority to issue letters rogatory." "[I]t is well settled that the decision of whether to issue letters rogatory lies within a district court's sound discretion." A court generally should exercise its discretion in granting an application for letters rogatory to take a Rule 15 ...