United States District Court, S.D. New York
G. SCHOFIELD, DISTRICT JUDGE
by Order dated on October 9, 2019 (the “Order”),
Defendants' Motion to Take Pre-Trial Depositions pursuant
to Rule 15 of the Federal Rules of Criminal Procedure was
denied. The Order held that, although Defendants had met
their Rule 15 burden with respect to the unavailability of
the proposed witnesses, they had failed to establish the
materiality of the proposed witnesses' testimony and why
the testimony was “necessary to prevent a failure of
on October 23, 2019, Defendants filed a Motion for
Reconsideration of the Order. The Government filed its
opposition on November 18, 2019. After their request was
granted, Defendants filed a reply on December 10, 2019, and
the Government filed a sur-reply on December 13, 2019.
pursuant to Rule 15, “[a] party may move 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.” Fed. R. Crim. P. 15(a)(1). A Rule 15 motion
should be granted if “(1) the prospective witness is
unavailable for trial, (2) the witness' testimony is
material, and (3) the testimony is necessary to prevent a
failure of justice.” United States v. Cohen,
260 F.3d 68, 78 (2d Cir. 2001); accord United States v.
Connolly, No. 16 Cr. 370, 2018 WL 2411217, at *1
(S.D.N.Y. May 15, 2018). The movant seeking the deposition
bears the burden of proving that it is warranted. United
States v. Whiting, 308 F.2d 537, 541 (2d Cir. 1962);
accord Connolly, 2018 WL 2411217, at *2.
“[a] motion for reconsideration should be granted only
when the defendant identifies an intervening change of
controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest
injustice.” Kolel Beth Yechiel Mechil of Tartikov,
Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir.
2013) (internal quotation mark omitted); accord In re
Platinum-Beechwood Litig., 400 F.Supp.3d 2, 4 (S.D.N.Y.
2019). The standard “is strict, and
reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the
court overlooked.” Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012);
accord In re Platinum-Beechwood Litig., 400
F.Supp.3d at 4. A motion for reconsideration “is not a
vehicle for relitigating old issues, presenting the case
under new theories, securing a rehearing on the merits, or
otherwise taking a second bite at the apple.”
Analytical Surveys, Inc., 684 F.3d at 52 (internal
quotation marks omitted); accord United States ex rel.
Grubea v. Rosicki, Rosicki & Assocs., P.C., 319
F.Supp.3d 747, 751 (S.D.N.Y. 2018). The decision to grant or
deny a motion for reconsideration rests within “the
sound discretion of the district court.” See Aczel
v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009); accord
Strougo v. Barclays PLC, 334 F.Supp.3d 591, 595
(S.D.N.Y. 2018). It is hereby
that Defendants' motion for reconsideration of the Order
is DENIED. Defendants' various arguments
for reconsideration fail to identify an intervening change of
controlling law, the availability of new evidence or the need
to correct a clear error or prevent manifest injustice.
See Kolel Beth Yechiel Mechil of Tartikov, Inc., 729
F.3d at 104.
Defendants contend that the Order misconstrued central
factual disputes in the case, including principally
“whether the defendants misrepresented that the Centra
Card worked at stores accepting Visa and Mastercard.”
Defendants' assertion is incorrect. The Order expressly
discussed the “central issue of whether Defendants lied
. . . about whether the technology actually worked at stores
that accepted Visa and Mastercard during Centra Tech's
ICO.” Dkt. No. 198 at 3. This is not inconsistent with
the Order's language that Defendants seize on, that
“[t]he parties do not dispute that Centra Tech
developed various components of the supporting
technology behind the cryptocurrency  card that Centra Tech
claimed to offer.” Dkt. No. 198 at 3 (emphasis added).
relatedly argue that the Government recently revealed in its
motions in limine that it now disputes the
functionality of Centra Tech technology during the relevant
time period. This argument is without merit, as the
Government's Rule 15 opposition made clear that it
“expect[ed] the testimonial and documentary evidence at
trial [to] establish that the defendants misstated how far
along Centra Tech's technology actually was during the
ICO.” Dkt. No. 185 at 18.
use these foundationless arguments to reargue the materiality
of the proposed deposition testimony, a matter that is not
appropriate for a motion for reconsideration. See
Analytical Surveys, Inc., 684 F.3d at 52; C.D.S.,
Inc. v. Zetler, 268 F.Supp.3d 563, 568-69 (S.D.N.Y.
2017) (denying plaintiff's motion for reconsideration
because it concerned the same issue previously address by the
court). Even considering the merits of Defendants'
arguments relating to materiality, the logic of the Order was
not that Kacanski and Pejkov's proposed testimony was
unrelated to the question of how far along Centra
Tech's technology was during the relevant time period.
Rather, the Order concluded that this proposed testimony
would establish, at best, that various components of
the Centra Tech card supporting technology had been developed
and/or tested during the relevant time period. To the extent
that Defendants claim that Kacanski and Pejkov are the only
witnesses available with “first-hand knowledge”
of Centa Tech technology as it was being developed,
Defendants have subpoenaed for trial testimony, and the
Government intends to call, Steven Sykes, who was hired as
Centra Tech's Chief Technology Officer shortly after the
July 30, 2017, commencement of the ICO and “was
personally involved in Centra Tech's attempts to develop
its supporting technology, and was aware of the efforts that
had been made - before the ICO, during the ICO, and after the
ICO - to develop components of the supporting
technology.” Dkt. No. 247 at 2. Because Kacanski's
declaration states that he worked on the specific portion of
the data mining system in August 2017 and Pejkov's
declaration states that he began work in June 2017, there
would be no “manifest injustice” from Defendants
eliciting testimony from Mr. Sykes regarding the functioning
of components of Centra Tech technology during the relevant
time period, as well as introducing any related documentary
also argue that the Order erred by failing to address the
relevance of Matumoto and Shehata's proposed testimony in
rebutting the charge of wire fraud. Specifically, Defendants
argue that “where the purported victim receive[s] the
full economic benefit of its bargain, ” United
States v. Binday, 804 F.3d 558, 570 (2d Cir. 2015),
“[a]pplication of the wire fraud statute has been
‘repeatedly rejected.'” Dkt. No. 221 at 9
(quoting Binday, 804 F.3d at 570). Defendants
contend that because Matumoto and Shehata's proposed
testimony would show that they acquired Central Bank cards
“for use on the platform” and that the cards
“worked at all points of sale, ” see
Dkt. No. 172, it is sufficiently relevant to whether the
alleged victims of the scheme received the benefit of their
bargain. This argument was not raised before and is improper
to raise now for the first time on this motion for
reconsideration. See Analytical Surveys, Inc., 684
F.3d at 52. Even if the argument were proper, it is
unpersuasive. While Matumoto and Shehata's testimony
about their purchase and use of Centra Tech cards may in some
way be relevant to whether purported victims received the
full economic benefit of their bargain, it is not
sufficiently material under Rule 15, especially given the
approximately 1, 500 other investors in Centra Tech.
See Dkt. No. 241 at 20 n.3. Moreover, under the wire
fraud statute, a misrepresentation need not inflict actual
financial loss; it is enough if the victim was deprived
“of potentially valuable economic information”
necessary to make an informed economic decision. See
Binday, 804 F.3d at 570; see also United States v.
Tagliaferri, 648 Fed.Appx. 99, 103 (2d Cir. 2016)
Defendants argue that the Order overlooked their offer to
conduct some or all of the depositions by video, by
concluding that Defendants had not “addressed the
practical concerns associated with conducting Rule 15
depositions in four different foreign countries, each of
which may not permit depositions or foreign subpoenas, or may
permit them only in limited circumstances.” Dkt. No.
198 at 4. Defendants are incorrect. Neither Defendants'
Rule 15 motion nor the motion for reconsideration attempts to
explain whether, and under what circumstances, depositions of
the proposed witnesses would be permitted under Serbian,
Macedonian, Chinese and Dutch law, respectively, whether
conducted in person or by video. See United States v.
Buck, 271 F.Supp.3d 619, 622-24 (S.D.N.Y. 2017) (noting
that Rule 15 depositions via videoconference are permitted
when the movant satisfies Rule 15 requirements, as well as
“[u]pon a finding of exceptional circumstances”
and considering, among other things, “significant
questions regarding the feasibility and reliability of . . .
videoconferencing testimony, ” including whether the
foreign government in question “would assist in
facilitating said testimony”).
Clerk of Court is respectfully directed to close the motion
at Docket No. 221.