United States v. Vano

UNITED STATES DISTRICT COURT F I L E D
FOR THE DISTRICT OF COLUMBIA
APR l 0 2012
CC|er:<, U.S. Dist_rict & Bankruptcy
UNITED sTATEs oF AMERICA, °"' 5 ’°'"‘° D'Sf"¢f<>f Cv»umb»‘a
v. Criminal Case N0. ll-cr-3 52 (BAH)
Judge Beryl A. Howell
SANFORD, LTD., et al.,
SEALED
Defendants.
MEMORANDUM OPINION
Pending before the Court is the defendants’ Motion to Depose Unavailable Witnesses,
ECF N0. 70, which requests the Court to authorize, pursuant to FED. R. CRIM. P. 15(a)(l), the
pre-trial depositions of five witnesses who are allegedly unavailable to testify at trial. The
defendants requested expedited consideration of this motion since three of the witnesses they
seek to depose are employed aboard the F/V San Nikunau, a fishing vessel that will depart from
New Zealand for deep sea fishing in the third week of April. After this ship departs New
Zealand, the defendants contend that they "do not know when or where [they] may be able to
depose [the witnesses]." Defs.’ Mot. Expedite, ECF N0. 65, at l. Accordingly, the Court granted
the defendants’ motion to expedite the Court’s consideration of their motion to depose witnesses.
Minute Order dated Mar. 28, 2012. For the reasons explained below, the defendants’ motion to
depose unavailable witnesses is DENIED in part and GRANTED in part.
I. BACKGROUND
On January 5, 2012, a grand jury retumed a superseding indictment charging three
Defendants - Sanford Ltd. ("Sanford"), a shipping company that owns and operates the fishing
vessel F/V San Nz'kunau; and two individuals, J ames Pogue and Rolando Ong Vano, who served
at different times as the Chief Engineer of the ship - with violating federal criminal laws when
they allegedly discharged oil-contaminated sludge and bilge waste into the ocean and falsified
records relating to these discharges. The investigation that led to these charges arose from a
United States Coast Guard inspection of the F/V San Nikunau at Pago Pago, American Samoa in
July 2011. The government has now charged the defendants, in seven counts, with conspiracy,
in violation of 18 U.S.C. § 371; failing to maintain an accurate oil record book, in violation of 33
U.S.C. § 1908(a), 18 U.S.C. § 2 and 33 C.F.R. 151.25; falsification ofrecords, in violation of 18
U.S.C. § 1519; obstruction of justice, in violation of 18 U.S.C. §§ 1505 and 2; and unlawful
discharge ofoil waste, in violation of33 U.S.C. §§ l907(a) and l908(a), 18 U.S.C. § 2 and 33
C.F.R. 151.10(b).
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 15(a)(1) provides that a party may move to depose
witnesses "in order to preserve testimony for trial." The purpose of Rule 15, however, is "not to
provide a method of pretrial discovery." United States v. Slraker, 567 F. Supp. 2d 174, 180
(D.D.C. 2008) (quoting United States v. Kelley, 36 F.3d 1118, 1124 (D.C. Cir. 1994)). "There is
a distinct preference for having witnesses in criminal trials present for the jury to view, to assess,
themselves confront. The concept of having depositions is an inferior technique for presenting
these witnesses to a jury." United States v. Ismaz'li, 828 F.2d 153, 156 (3d Cir. 1987) (quoting
unpublished district court opinion and affirming the district court’s decision denying motion for
pre-trial depositions); see also Fed. R. Crim. P. 15 Advisory Committee’s Note to 1975
Amendment (explaining that the Advisory Committee "narrowed" the definition of "unavailable"
because it "does not want to encourage the use of depositions at trial, especially in view of the
importance of having live testimony from a witness on the stand."). For this reason, depositions
are permitted in criminal matters under Rule l5(a)(1) only if the proponent of the deposition
demonstrates "exceptional circurnstances" and that the deposition is "in the interest of justice."l
FED. R. CRIM. P. l5(a)(1); Straker, 567 F. Supp. 2d at 180 (quoting Kelley, 36 F.3d at 1124); see
also United States v. Warren, 713 F. Supp. 2d 1, 3 (D.D.C. 2010) ("Rule 15 permits depositions
in a criminal case to preserve testimony, not to foster discovery, and only in exceptional
situations.").
The Federal Rules of Criminal Procedure provide no definition for either condition of
"exceptional circumstances" or "in the interests of justice" for the grant of pre-trial depositions in
a criminal case. Based upon the evolution of changes to Rule 15, courts have construed these
conditions as requiring a defendant seeking depositions to "(l) establish that the testimony
sought is material, (2) prove that the witnesses are unavailable to testify at trial, and (3) make
some showing, beyond unsubstantiated speculation, that the evidence exculpates him." Straker,
567 F. Supp. 2d at 180 (quoting Kelley, 36 F.3d at 1125) (internal quotation marks omitted); see
also lsrnaili, 828 F.2d at 159 ("[A]lthough witness availability and the immateriality of proposed
testimony to be obtained through depositions are not rigid or automatic grounds for the denial of
a l5(a) motion as they once were, it is nonetheless evident that the post-arnendment case law
defining ‘exceptional circumstances’ and ‘interests of justice’ still focuses on those
considerations."); United States v. Njock Eyong, N0. 06-cr-305, 2007 WL 1576309, at *2
(D.D.C. May 30, 2007).
A witness’s unavailability in the context of FED. R. CRIM. P. 15(a)(l) is "defined by
reference to Federal Rule of Evidence 804(a), which provides, in relevant part, that a witness is
unavailable if he or she is ‘absent from the hearing and the proponent of a statement has been
l FED. R. CRIM. P. 15(a)(1) further provides that "[i]f the court orders the deposition to be taken, it may also require
the deponent to produce at the deposition any designated material that is not privileged, including any book, paper,
document, record, recording, or data."
unable to procure the declarant’s attendance . . . by process or other reasonable means."’
Warren, 713 F. Supp. 2d at 4 (quoting Straker, 567 F. Supp. 2d at 180); see also Um``tea’ States v.
Aguz``lar-Tamayo, 300 F.3d 562, 565 (5th Cir. 2002). "A witness who resides abroad and outside
the reach of a court’s subpoena power is not automatically ‘unavailable’ without a further
showing that he or she will not testify in court." Warren, 713 F. Supp. 2d at 4. "Unavailability
is to be determined according to the practical standard of whether under the circumstances the
[party seeking to take the deposition] has made a good-faith effort to produce the person to
testify at trial." United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984).
Rule 15 further requires that the evidence provided by an unavailable witness, whom a
defendant seeks to depose pre-trial, be material and exculpatory. In assessing these
requirements, courts have applied the standards for material and exculpatory information
developed in the caselaw interpreting Brady v. Marylana’, 373 U.S. 83 (1963). See, e.g., United
States v. Je/j’erson, 594 F. Supp. 2d 655, 667 (E.D. Va. 2009) ("ln the Rule 15 context,
‘materiality has the same meaning the Supreme Court gave the tenn in Brady v. Marylana’, 373
U.S. 83 (1963), and its progeny, namely, that the evidence or testimony must be exculpatory, and
not corroborative or cumulative of other evidence,"’ quoting United States v. Rosen, 240 F.R.D.
204, 209 (E.D. Va. 2007) (internal quotations and citations ornitted)); United States v. Hajbeh,
284 F. Supp. 2d 380, 383-84 (E.D. Va. 2003) (same); see generally United States v. Iom``a Mgmt.
S.A., N0. 03:07-cr-134, 2007 WL 2325199, at * 10 (D. Conn. Aug. 9, 2007). Under Braa'y, the
government’s failure to disclose material exculpatory evidence to a defendant violates that
defendant’s right to due process. Smith v. Caz'n, 132 S. Ct. 627, 630 (2012). "[E]vidence is
‘material’ within the meaning of Braa'y when there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have been different." Ia’. (quoting
Cone v. Bell, 556 U.S. 449, 469-70 (2009); United States v. Moore, 651 F.3d 30, 99 (D.C. Cir.
201 1). "A reasonable probability does not mean that the defendant would more likely than not
have received a different verdict with the evidence, only that the likelihood of a different result is
great enough to undermine confidence in the outcome of the trial." Smith, 132 S.Ct. at 630
(internal quotation marks, alterations, and citations omitted).
III. DISCUSSION
The defendants seek leave to depose five witnesses: three crewmembers of the F/V San
Nikunau who were aboard the vessel at the time of its last voyage; and two chief engineers who
were previously employed by defendant Sanford, Ltd. and served aboard the vessel. All five of
these individuals are foreign nationals and reside abroad. Consequently, they are beyond the
reach of this Court’s subpoena power.
The government argues that the Court should not permit depositions of these witnesses,
despite the fact that the Court cannot subpoena them to testify, because the defendants have
failed to demonstrate that the witnesses are unavailable for trial, or that their potential testimony
is material or exculpatory. As explained below, the Court agrees that the defendants have failed
to demonstrate the "exceptional circumstances" necessary to allow deposition of two of the
proposed witnesses: Messrs. Alej andro Braceras and Raymond lan Scott. The remaining three
witnesses whom the defendants seek to depose - Messrs. Larry Verbe Baguinben, Manual
Gulliman, and Moana Tai Eric Fredricsen - however, are unavailable to testify at trial and may
provide material, exculpatory inforrnation. Accordingly, the Court will permit the pre-trial
depositions of these three individuals but under certain conditions as outlined below.
A. Deposition of Three F/VSan Nikunau Crewmembers
The defendants seek to depose F/V San Nikunau crewmembers Larry Verbe Baguinben,
Manual Gulliman, and Moana Tai Eric Fredricsen, all of whom were aboard the vessel at the
time the defendants allegedly discharged oil-contaminated sludge and bilge waste into the ocean.
Both Messrs. Baguinben and Gulliman are Philippines nationals who, according to the
defendants, served as engine room oilers on the F/V San Nz'kunau. ln declarations provided to
the Court, they assert that they did not commit or observe illegal discharge of waste into the
ocean. They further represent, without explanation or justification, that they will not travel to the
United States to testify at trial, even though defendant Sanford agreed to pay all of their expenses
associated with this testimony. Defs.’ Mot. Depose, ECF N0. 70, Ex. 2, Decl. Larry Verbe
Baguinben ("Baguinben Decl."), 11112-3, Ex. 3, Decl. Manual Gulliman ("Gulliman Decl."), 1111 2-
3; Defs.’ Reply, ECF N0. 79, Ex. 2, Decl. Martin de Beer, 1111 6-7.
The defendants also seek to depose Moana Fredricsen, who is the F/V San Nikunau’s first
mate and navigator. The government has identified Mr, Fredricsen as the "first mate (A.K.A.
‘navigator’)" referenced in Overt Acts 41 and 42 in the Superseding Indictment, which allege
that this individual instructed crewmembers "in the galley on the vessel" and "during a vehicle
ride to a Coast Guard office" to make false statements to the Coast Guard during the course of
the Coast Guard’s investigation. Superseding lndictment, ECF N0. 22, at 12; Gov’t’s Opp’n
Mot. Depose, ECF N0. 76, at 7 ("It was not until later that the government learned that [Mr.
Fredricsen] had instructed crew members to lie, which resulted in Over Acts 41 and 42 in the
Superseding lndictment."). ln his declaration, Mr. Fredricsen states that these allegations are
"not true" and that he "told no one to lie but rather to tell what they knew." Defs.’ Mot. Depose,
ECF N0. 70, Ex. 4, Decl. Moana Fredricsen ("Fredricsen Decl."), 112. Mr. Fredricsen further
states, without explanation or justification, that he "will not travel to the United States to testify
at trial or in any proceedings," even though Sanford Ltd. agreed to pay all of his expenses
associated with this testimony. Defs.’ Reply, ECF N0. 79, Ex. 1, Decl. Roy Joseph Dillon Hall,
1111 6-7; Fredricsen Decl., 11 3.
The defendants argue that it is in the best interests of justice to allow the deposition of
these three individuals because they have refused to testify at trial and will provide material,
exculpatory information. The government, however, disputes that the defendants have met the
requirements of Rule 15. For the reasons stated below, the Court will grant the defendants’
motion as to the three crewmembers and allow their depositions.
]. T he Three Crewmembers of the F/V San Nz'kunau are Unavailable
The three crewmembers whorn the defendants seek to depose are foreign nationals living
outside the United States, and are thus beyond the reach of these Court’s subpoena power. "A
witness who resides abroad and outside the reach of a court’s subpoena power," however, "is not
automatically ‘unavailable’ without a further showing that he or she will not testify in court."
Warren, 713 F. Supp. 2d at 4. ln this case, Messrs. Baguinben, Gulliman, and Fredricsen each
state in their declarations that they will not come to the United States to testify at trial.z These
averments are strong support for the defendants’ showing that the witnesses are unavailable. See
icl. at 4 ("Evidence that a witness specifically refuses to testify at trial is potent proof of
2 The declarations from Messrs. Baguinben, Gulliman, and Fredricsen supplied in support of the defendants’ instant
motion stated that these individuals "did not wish to go to the United States." Baguinben Decl., 11 3; Gulliman Decl.,
11 3; Fredricsen Decl., 11 3. The defendants, however, supplemented these declarations in their Reply with a
declaration from Martin de Beer, a representative of defendant Sanford, who stated that he requested Messrs.
Baguinben, Gulliman, and Fredricsen to testify and offered, on behalf of defendant Sanford, to pay for their
expenses but these witnesses informed him "that even if Sanford Ltd. paid all expenses . . . they were unwilling to
travel to the United States to testify at trial." Defs.’ Reply, ECF N0. 79, Ex. 2, Decl. Martin de Beer, 11 6; see also
id. 1111 10-11. The defendants further supplied a declaration from Roy joseph Dillon Hall, Jr., Mr. Fredricsen’s
attorney, who stated that "Mr. Fredricsen will not travel to the United States to testify at trial . . . even if his travel
expenses are paid . . . ." Defs.’ Reply, ECF N0. 79, Ex. 3, Decl. Roy Joseph Dillon, Jr., 11 6.
unavailability for purposes of Rule 15(a) . . . ."). The government disputes that the witnesses are
unavailable for trial for two reasons. First, the government notes that no trial date has yet been
scheduled so "determining whether a prospective witness is available for a trial date not yet
scheduled cannot be established." Gov’t’s Opp’n Mot. Depose, ECF N0. 76, at 9. This
argument overlooks the fact that the three crewmembers make clear that they will not come to
the United States to testify at trial whenever the trial date is set.
Second, the govemment argues that the Court should not deem the crewmembers
unavailable for trial, despite their declarations, because "there has been no showing that
Defendants have taken all reasonable measures to secure their appearance . . . ." Ia'. ln support
of this argument, the government points out various provisions to which defendant Sanford
agreed in the Agreement on Security with the United States. Gov’t’s Opp’n Mot. Depose, ECF
N0. 76, Ex. F. Specifically, defendant Sanford is required to, inter alz``a, facilitate service of
process to any officer or crewmember; encourage them to "cooperate with the United States in
carrying out its investigation and appearing for their scheduled testimony;" "work with the
United States to arrange for the testimony of . . . Mr. Moanatai Fredricsen, [and] Mr. Larry
Baguinben . . . before a Grand Jury or other judicial or administrative proceeding arising from
the Alleged Violations;" and request that the "ship’s officers and crewmembers . . . surrender
their passports to the Owner or operator for safe keeping." Ia'. 1111 4, 6, 16. The govemment
argues that in light of defendant Sanford’s obligations under this agreement and purported
interest in obtaining the testimonies of these witnesses, "Defendant Sanford Ltd. could direct that
[its employees] go to Washington D.C. as a condition of [their] employment." Gov’t’s Opp’n
Mar. Depose, ECF N0. 76, ar 10.3
3 The govemment contends that "Defendant Sanford Ltd. has not demonstrated that it has acted in accordance with
the Agreement on Security to encourage these current and former employees to come to the United States for trial."
8
Defendant Sanford counters that it has already offered to pay for all expenses associated
with travel to Washington, D.C. Even with this offer of an all-expenses paid trip to Washington,
D.C. for trial, Messrs. Baguinben,l Gulliman, and Fredricsen persist in declining to travel to the
United States to testify at trial. Defs.’ Reply, ECF N0. 79, Ex. 2, Decl. Martin De Beer, 1111 5, 6;
Ex. 3, Decl. Roy Joseph Dillon Hall, 1111 6-7. Cf Warren, 713 F. Supp. 2d at 4 (finding that the
potential witnesses were ‘unavailable’ but stating that "it is unclear what efforts defendant has
made to procure these witnesses’ attendance at trial, beyond asking whether they would be
willing to testify. For example, defendant does not state whether he offered to pay for their
travel to the United States."); United States v. Bronston, 321 F. Supp. 1269, 1272 (S.D.N.Y.
2001) ("The unwillingness of a witness to come to this country unless his expenses are paid does
not necessarily mean that he is ‘unable to attend or prevented from attending’ the trial.").
Additionally, it is unclear whether defendant Sanford could specifically compel its
employees to testify in a judicial proceeding, particularly when the prospective witnesses have
stated both an express desire and intention not to do so. The govemment cites United States v.
Iona Management S.A., 499 F. Supp. 2d 166 (D. Conn. 2007) and United States v. Oudovenko,
N0. 00-cr-1014, 2001 WL 253027 (E.D.N.Y. Mar. 7, 2001), as support for the proposition that
when the proposed witnesses for pretrial depositions are employees of the defendant, this "cuts
against a finding of unavailability." Gov’t’s Opp’n Mot. Depose, ECF N0. 76, at 9. lndeed, in
Gov’t Opp’n Mot. Depose, ECF N0. 76, at 8. The degree to which defendant Sanford has fulfilled its obligations
under, and fully complied with, the terms of the Agreement on Security entered into with the United States on
December 15, 2011, is a separate issue that need not be decided in consideration of the instant motion.
4 Relying upon a December 15, 2011 email from defendant Sanford’s counsel, Marshall Ashley, the govemment
baldly asserts that "Baguinben has agreed to return to the United States for trial . . . ." Gov’t’s Opp’n Mot. Depose,
ECF N0. 76, at 9-lO; id., Ex. B. This assertion is simply not supported by the contents of the email, which
summarizes defendant Sanford’ s agreement, inter alia, to keep Baguinben, Richard Distor and John Paul Maguba
under contract and keep their passports for the duration of the proceedings; bring them to Washington, D.C. if their
appearances are required for trial at defendant Sanford’s expense; and appoint counsel for them. Id. The record
simply does not reflect any previous agreement by Baguinben to testify at trial in Washington, D.C. and, in any
event, does not refute his current intention, as reflected in the declaration provided by the defendants, not to testify
at trial.
both those cited cases, the courts denied the defendant’s motions for Rule 15 pre-trial depositions
of their foreign employees. These cases are distinguishable, however, In Oua’ovenko, unlike
here, the defendant did not offer to pay travel expenses for the prospective witnesses. 2001 U.S.
Dist. LEXlS 2549, at *5 (each prospective foreign employee witness stated he or she would not
travel voluntarily to testify at trial but "counsel’s affirmation fails to establish that . . .
Oudovenko made a good faith effort to secure the presence of these witnesses at trial, such as by
offering to pay their travel expenses."). Moreover, by contrast to the conditions that this Court
will place on the pre-trial depositions here, in Oudovenko the prospective witnesses would not be
subject fully to cross-examination; under the procedures required in Russia, where the witnesses
could be questioned, the government "might not even be pennitted to ask any of the questions."
Id. at *8.
ln Iona Management, the Magistrate Judge’s finding that the defendant had not
established the unavailability of foreign employees to testify at trial was strongly influenced by
her view that the defendant had "‘dragged its heels’ in its trial preparation by not contacting the
witnesses in question earlier." 499 F. Supp. 2d at 168. ln addition, the Magistrate Judge found
the defendant failed to make a good faith effort to secure the witnesses’ testimony, noting, for
example, that the defendant declined to make one of the witnesses available in the same country
where the witness resided at the same time the government had already "voluntarily agreed to
participate" in scheduled depositions. United States v. Iona Mgmt. S.A., N0. 03:07-cr-l34, 2007
WL 2325199, at *9 (D. Conn. Aug. 9, 2007). In fact, the Magistrate Judge concluded that since
the motion was filed "three weeks before trial and within days of the scheduled jury selection," it
was "untimely and may be denied on the grounds of unexcused delay." Id. at *10. The
timeliness of the defendants’ motion is simply not an issue here.
10
Accordingly, the Court concludes that the defendants have established that the
crewmember witnesses are unavailable to appear at trial.
2. The Testz``mony Projj‘"ered by the Three Crewrnembers is Materz``al and
Exculpalory
The defendants assert that the evidence that the three crewmember witnesses will provide
is material and exculpatory because these witnesses will impeach the testimony of other
crewmembers who allegedly state that the defendants regularly and routinely unlawfully pumped
bilge waste into the ocean. The Court agrees.
The Superseding indictment alleges that the defendants used and directed the use of
eductors, hoses and pumps for crewmembers unlawfully to discharge oily bilge waste from the
ship’s machinery spaces overboard and onto the wet deck of the ship, and that these acts were
done "regularly and routinely." Superseding lndictment, ECF N0. 22, at, e,g., Count One, 1111
E.3.B &C. Messrs. Baguinben and Gulliman, however, deny this allegation. Mr. Baguinben
states that he was never directed to pump "the bilges directly to the sea," he never did this or saw
others do it. Baguinben Decl., 11 2. He was taught by Chief Engineer Pogue "how [to] use the
main bilge pump, but only in case there was an emergency and the ship was in danger." Ia'. Mr.
Gulliman similarly declares that defendant Pogue "taught the Oilers to pump the engine room
bilges into the sea in the case of emergency only" and he "never heard []Pogue instruct anyone to
pump the bilges to the sea," nor was he aware of anyone doing this. Gulliman Decl., 11 2. On the
contrary, Mr. Gulliman states that the "Chief Engineer and the Assistant Engineer handled
pumping the engine room bilges, by putting the bilge water through the oil water separator and
the oil into the dirty oil tank." Icl.
The govemment contends that the proffered testimony of these crewmembers is not
material or exculpatory because their declarations are limited to what they did or did not do and
11
their personal observations. Just because they "may not have been involved in the direct
dumping of the bilges into the sea, or [were] never ordered to do so, does not mean that someone
else did not make illegal discharges." Gov’t Opp’n Mot. Depose, ECF N0. 76, at 5-6. This
argument is not persuasive in this context. Messrs. Baguinben and Gulliman were aboard the
vessel during the time that the government alleges that the unlawful acts occurred and, at least,
Mr. Baguinben is indisputably an engine room oiler and Mr. Gulliman states that he too has
"been an oiler on F/VSan Nz``kunau" since he came aboard the in May 2006. Gulliman Decl., 11 1.
Their testimony as to the activity that occurred on the ship regarding the handling of oily bilge
waste and use of the oil water separator are certainly material to the government’s charge that
bilge waste was "regularly and routinely" discharged into the ocean. To the extent that the
government relies on the testimony of other crewmembers of the F/V San Nikunau to establish
criminal liability, the defendants are correct that testimony of Messrs. Baguinben and Gulliman
will potentially impeach these witnesses.
With respect to Mr. Fredricsen, the government alleges that he instructed other
crewmembers to lie to the Coast Guard on two occasions both on July 15, 201 l, that "only water
is pumped overboard from the vessel." Superseding lndictment, ECF N0. 22, at Count One,
Overt Acts 41 and 42. These acts by Mr. Fredricsen form part of the basis for the underlying
charge of conspiracy against the defendants. Ia'. at 7-12. ln his declaration, Mr. Fredricsen
denies this allegation stating: "That is not true. l told no one to lie but rather to tell what they
knew." Fredricsen Decl., 112. Thus, if deposed, he will potentially provide testimony
contradicting the govemment’s factual allegations in these two overt acts. This testimony is
certainly material and exculpatory.
12
The government’s contention that the testimony of these three crewmembers is not
material is underrnined, at least as to Messrs. Baguinben and Fredricsen, by the fact that the
government believed these individuals had information sufficiently relevant to the criminal
activity at issue in the Superseding indictment to identify them by name in the Agreement on
Security with defendant Sanford. lndeed, the govemment required defendant Sanford to "work
with the United States to arrange for the testimony of . . . Mr. Moanatai Fredricsen, [and] Mr.
Larry Baguinben," apparently because the government was of the view that the testimony from
these crewmembers could be relevant to this case. The government’s position now that the
testimony of these two crewmembers is not material to the issues in this case is belied by the
govemment’s own previous efforts to secure their testimony.
Finally, even if the proffered testimony of Messrs. Baguinben, Gulliman, and Fredricsen
is, on its face, plainly material and exculpatory, the government argues at length that the Court
should discount it as "highly suspect." Gov’t Opp’n Mot. Depose, ECF N0. 76, at 6-8. F or
example, the government indicates that, during a July 23, 2011 interview with the Coast Guard,
Mr. Baguinben stated that "Silverio Distor had pumped oily waste water from pipe alley directly
overboard," contrary to his denial in the declaration submitted by the defendants. Id. at 5.
Similarly, the government suggests that Mr. Gulliman’s "recently signed" declaration is
unreliable because it is not clear he "was actually an oiler on the ship," and Mr. Fredricsen’s
"self-serving declaration" is suspect because it was "executed after litigation in this matter had
commenced." Ia'. at 6-7.
Regarding Mr. Gulliman, the government contends that "according to the Advance
Notice of Arrival provided by Defendant Sanford Ltd. to the U.S. Coast Guard for the F/V San
Nikunau’s arrival into Pago Pago, American Samoa, on July 14, 2011, [Manual] Gulliman is not
13
listed as ‘oiler’ and rather is listed as a ‘crew member.’ lt is not clear whether Gulliman was
actually an oiler on the vessel, thus making his proposed testimony questionable." Ia'. at 6. The
defendants do not address this discrepancy in the description of Mr. Gulliman’s position in the
Advance Notice of Arrival document, but merely reiterate in their reply papers the summary
contents of his declaration. Defs.’ Reply, ECF N0. 79, at 7. Notably, the government has
contended that Donato Eulatic is a material witness in this case, even though Mr. Eulatic, like
Mr. Gulliman, is also listed as a "crew member" on the Advance Notice of Arrival, rather than
having the more specific position of "oiler." Consequently, the general description of a
crewmember’s position has little probative value as to whether that individual may have material
information particularly in the context where the crewmember has provided more specific
information in a declaration 1n any event, Mr. Gulliman’s precise duties on the ship and
whether those duties put him in a position to have personal knowledge of information bearing on
the charges in the Superseding indictment would be a ripe area for examination and clearly bear
on his credibility. Ultimately, Mr. Gulliman’s credibility is a matter for the jury, not the Court,
to decide. For the purposes of this motion, the Court will accept the defendants’ representations
and Mr. Gulliman’s statement in his declaration that he worked in the engine room as an oiler on
the F/V San Nz``kunau and, consequently, has personal knowledge pertinent to the pending
charges to offer in testimony.
Regarding Messrs. Baguinben and Fredricsen, the government has similarly raised
questions about the credibility of the proffered testimony, but the ultimate credibility of the
witnesses’ potential testimony is not a matter for the Court to decide. The Court must assess,
however, whether their testimony is admissible and the govemment has not asserted that the
testimony of any of these witnesses is inadmissible under the Federal Rules of Evidence.
14
That being said, the Court is well aware that "foreign depositions are suspect and,
consequently, not favored," due, in significant part, to the fact that the witness is not subject to
the imposition of sanctions of perjury or contempt for testifying falsely or evasively.
Oudovenko, 2001 U.S. Dist. LEXlS 2549, *9 (denying defense motion to depose foreign
employee witnesses where defendant was high-level employee who "may exercise some control
over these witnesses" which presents "a heightened risk that an oath will be unable to instill in
them a duty to tell the truth even if the truth hurts Oudovenko.") (citing United States v. Alvarez,
837 F.2d 1024, 1029 (1 lth Cir. 1988) ("Foreign deposition testimony, because of the absence of
a sanction for perjury, is suspect.")); United States v. Feijoo-Tomala, 751 F. Supp. 40, 43
(E.D.N.Y. 1990) (same).
This concem is particularly serious here where the three crewmembers are silent about
the reason for their unwillingness to travel with all expenses paid to Washington D.C. to testify
at trial. Yet, not only are the reasons for the witnesses’ unwillingness to appear at trial legitimate
areas for inquiry, so too are the reasons for any changes in their testimony from the information
they provided during interviews with the Coast Guard. ln this regard, the Court is mindful of the
statements made by one of the three material witnesses at the hearing on February 1, 2012, that
he feared for his safety in returning to work for the defendant Sanford after telling the
government what he knew. See Hr’g Tr., Feb. 1, 2012, at 46:17-47:1 (testimony of material
witness Rhyme Distor: "So now l’m just - l’m willing to stay, and l’m scared to go back to my
company because we don’t have security there. We do not know what will happen to us. So our
counsel advise us that we will be asked to go back, come back. But because we are -- we don’t
know what will happen, we will be in sea, that’s what l’m scared of. This is my first time having
case like this. 1 don’t have any other record in the past. So 1 am also scared that 1 am against my
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company, and 1 have -- 1 might be able to say something, that 1 am scared to go back to work
with them."). Such information may turn out to be relevant for the jury to assess the credibility
of the crewmember witnesses, aided by instructions regarding the appropriate inferences that
may be drawn from these circumstances. Finally, the Court is confident that the jury "is fully
competent to take such concerns into account when weighing the credibility of their testimony."
See, e.g., United States v. Jejj‘erson, 594 F. Supp. 2d 655, 671-73 (E.D. Va. 2009) (court granted
defense motion to depose foreign witnesses despite "1egitimate concerns that the prospective
deponents might commit perjury with impunity when giving testimony by deposition abroad")
(citing United States v. Mz``lls, 760 F.2d 1116, 1121 (11th Cir. 1985) ("[F]ugitive depositions are
not only available but are sometimes wisely authorized despite their suspect veracity and the lack
of``a perjury sanction.")); United States v. Gonzalez, 488 F.2d 833, 839 (2d Cir. 1973) ("The jury
is well able to weigh 1a fugitive’s] testimony . . . .").
ln view of the witnesses’ declarations, the superseding indictment, as well as the security
agreement between the govemment and defendant Sanford, the Court finds that the defendants
have met their burden of showing that the proffered testimony of Messrs. Baguinben, Gulliman,
and Fredricsen is material and exculpatory. Accordingly, the Court will permit the depositions
of these three crewmembers.
To ensure that the depositions are fair, timely and productive, the Court will require
compliance with the following conditions: First, the parties shall confer and agree on the
location, date and time of the depositions. The Court agrees with the government that since
defendant Sanford controls the ship on which the crewmembers are working, the timing of the
deposition need not take place in April. Nevertheless, despite the fact that no trial date has yet
been set, the Court directs that the depositions be scheduled as promptly as possible. Second, the
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depositions shall take place at a location that allows the opportunity for examination by all
parties in accordance with the scope and manner provided under the Federal Rules of Criminal
Procedure. Third, to address the govemment’s valid concern that the depositions of the
witnesses may be of no value because the witnesses "would likely assert their Fifth Amendment
privilege in the depositions," Gov’t Opp’n Mot. Depose, ECF N0. 76, at 4 n.l, prior to the
scheduling of the depositions, the defendants shall supplement the declarations filed by the three
crewmembers with fully executed and notarized affidavits by Messrs. Baguinben, Gulliman, and
Fredricsen waiving any Fifth Amendment privilege associated with their testimony regarding the
events detailed in the Superseding lndictment. Fourth, to ensure that Messrs. Baguinben,
Gulliman, and Fredricsen appear for their scheduled depositions, defendant Sanford shall file an
affirmation by April 13, 2012, expressing its intention to comply fully with the requirements
detailed in paragraph 16 of its Agreement on Security with the government, which provides,
inter alt``a, that defendant Sanford retain the witnesses’ passports and provide for their
transportation and lodging. Gov’t’s Opp’n Mot. Depose, ECF N0. 76, Ex. F, 11 16. Finally, the
parties shall confer and file, by April 13, 2012, a joint report detailing the safeguards in place for
the attendance of the individual defendants at the scheduled depositions to ensure their continued
presence in this jurisdiction for trial and their compliance with the conditions of their release.
B. Depositions of the F0rmer Chief Engineers of the F/VSan Nikunau
ln addition to the three crewmembers, the defendants additionally seek to depose two
prior Chief Engineers that served on the F/V San Nikunau: Alejandro Braceras and Raymond lan
Scott. Mr. Braceras is an Argentine national and served as relief chief engineer for defendant
Pogue in 2004 and 2005. Mr. Scott is an Australian national and "served as relief chief engineer
for about two months, five years ago." Defs.’ Mot. Depose, ECF N0. 70, at 4-5.
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As an initial matter, the defendants have not supplied the Court with declarations from
these individuals attesting to their unavailability or to the evidence that they may provide. The
Court notes that affidavits or declarations are not necessary in a motion seeking depositions
pursuant to FED. R. CRIM. P. 15(a)(1). See United States v. Vz'lar, 568 F. Supp. 2d 429, 438
(S.D.N.Y. 2008) ("[T]he overwhelming majority of courts in this Circuit_and in other
circuits-have rejected arguments that the movant must produce an affidavit from the proposed
deponent in order to establish his or her unavailability."). Nevertheless, in this case, the lack of
such declarations is indicative of the lack of foundation for the pre-trial depositions of these two
individuals. Notably, the defendants concede that they "have not had the time to obtain
declarations from Mr. Braceras or Mr. Scott and have been unable to contact them." Defs.’ Mot.
Depose, ECF N0. 70, at 5. Given that the defendants have had no contact with Messrs. Braceras
and Scott, the defendants’ representations as to the evidence that Messrs. Braceras and Scott will
provide, and to their alleged unavailability, is pure speculation See Straker, 567 F. Supp. 2d at
180 (The party seeking a deposition must "make some showing, beyond unsubstantiated
speculation, that the evidence exculpates him," quoting Kelley, 36 F.3d at 1124); Warren, 713 F.
Supp. 2d at 4 ("A witness who resides abroad and outside the reach of a court’s subpoena power
is not automatically ‘unavailable’ without a further showing that he or she will not testify in
court."). lndeed, it is unclear what good faith basis, if any, the defendants have regarding the
information that Messrs. Braceras or Scott would provide given that they have yet to locate and
interview them. See Kelley, 36 F.3d at 1124 (stating that the purpose of depositions in criminal
matters is "not to provide a method of pretrial discovery"). The lack of support for the
defendants’ position alone warrants denial of the defendants’ request to depose the former Chief
Engineers.
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Even assuming, arguenalo, that the defendants’ representations as to Messrs. Braceras and
Scott’s potential testimony are accurate and substantiated, the defendants have failed to
demonstrate that their testimony is material and exculpatory. The defendants state that Mr.
Braceras would testify that "while he was aboard, no bilge waste was pumped directly
overboard, that he operated the [oil water separator ("OWS")] system and that the ship’s bilges
were generally dry, so the OWS system was not used often. He will also testify that his Oil
Record Book entries were true and correct." Defs.’ Mot. Depose, ECF N0. 70, at 4. Mr. Scott
would similarly testify that for the two months that he served as a relief Chief Engineer nearly
five years ago, "no bilge waste was pumped directly overboard, and that his Oil Record Book
entries were true and correct." Ia'. at 5.
As the government notes, "[t]he govemment has not charged Defendant Sanford Ltd.
with any crime based upon the actions of Braceras or Scott. Defendants Pogue and Ong Vano
are only charged based upon their conduct, and not the conduct of Braceras or Scott." Gov’t’s
Opp’n Mot. Depose, ECF N0. 76, at 3. Thus, it remains unclear what testimony Messrs. Braceras
and Scott could provide that will be relevant to the proceedings before the Court. it is true that
their alleged testimony would contradict the testimony of another witness, Rhyme Distor, who
will allegedly testify that oily waste was discharged from the vessel on every voyage. That said,
the testimony of Messrs. Braceras or Scott alone is not material and exculpatory in regards to the
defendants’ liability for the specific charges in the Superseding indictment that occurred in 2010
and 2011, or other times when defendants Pogue and Vano served as chief engineer.
IV. C()NCLUSION
For the reasons explained above, the defendants’ Motion to Depose Unavailable
Witnesses, ECF N0. 70, is DENIED 1N PART and GRANTED lN PART. The defendants may
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schedule, at a mutually agreeable time and location, and upon their own cost, and compliance
with the conditions set forth herein, the depositions of Messrs. Larry Verbe Baguinben, Manual
Gulliman and Moana Tai Eric Fredricsen. The defendants’ request to depose Messrs. Alej andro
Braceras and Raymond ian Scott, however, is denied. An appropriate Order shall accompany
this Memorandum Opinion.
so oRDERED.
DATED; APRIL 10, 2012 /s/
BERYL A. HowELL
United States District Judge
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