Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : : v. : Crim. No. 15-1 : : DMITRIJ HARDER : : O R D E R Trial in this Foreign Corrupt Practices Act prosecution is scheduled to begin on May 3, 2016. On March 1, 2016, Defendant moved to take ten Rule 15 depositions in at least four foreign countries. (Doc. Nos. 81.) Two weeks later, Defendant filed a Supplemental Rule 15 Motion, seeking to conduct two additional foreign depositions. (Doc. No. 94.) Defendant has also filed a related Motion for Issuance of Letters Rogatory, seeking international judicial assistance in obtaining testimony from the proposed deponents in the United Kingdom, Spain, Russia, and the Czech Republic. (Doc. No. 82.) To date, Defendant has filed ten substantive pretrial motions (not including his myriad filings before Judge Prater) including two suppression motions, filed some five months apart. I have to this date denied all but one of his Motions as meritless (at best). Before I can rule on the remaining Motion the Second Motion to Suppress I must conduct a second evidentiary hearing. In many instances, Defendant offers supporting authority that belies his arguments. Most recently, Defendant who has been represented by the same counsel since 2010 has moved for yet another continuance of trial arguing, in part, that delay is warranted so that he can depose the dozen foreign witnesses discussed here. (Doc. No. 103; Doc. No. 79 at 18-19.) It thus appears that Defendant s Rule 15 Motion is of a piece with his other efforts to prevent trial in this matter from ever beginning.
Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 2 of 10 I. Background On January 6, 2015, the grand jury charged Defendant Dmitrij Harder with conspiracy to violate the Foreign Corrupt Practices and Travel Acts, substantive violations of the FCPA and Travel Act, conspiracy to commit international money laundering, substantive violations of the international money laundering statute, and aiding and abetting. (Doc. No. 1.) The grand jury returned a Superseding Indictment on December 15, 2015 with identical counts and several wording changes. (Doc. No. 62.) As alleged, the charges are based on a bribery scheme at the European Bank of Reconstruction and Development involving Defendant, Andrej Ryjenko (a senior banker at the EBRD), and Tatjana Sanderson (Ryjenko s sister). Defendant, acting through his company Chestnut Consulting Group, paid approximately $3.5 million in bribes to Sanderson. In return, Defendant would receive favorable EBRD treatment and success fees on EBRD energy projects Ryjenko supervised two multimillion-dollar EBRD loan transactions involving Defendant s clients: Irkutsk Oil Company and Vostok Energy. (Doc. No. 99 at 5; Doc. No. 62.) The Government further alleges that Defendant and Sanderson engaged in concerted efforts to conceal the $3.5 million bribe (made in various installments) and to pass it off as payment for Sanderson s consulting services. After several continuances, trial is scheduled to begin on May 3, 2016. II. Discussion A. Rule 15 Standard The Federal Rules of Criminal Procedure authorize the taking and preserving of trial testimony by deposition. See United States v. Ismaili, 828 F.2d 153, 161 (3d Cir. 1987) (noting the strong preference for live testimony in criminal proceedings). A Rule 15 deposition is not a discovery device and is warranted only where there are exceptional circumstances and in the interest of justice. Fed. R. Crim. P. 15(a); United States v. Steele, 685 F.2d 793, 809 ( Rule 2
Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 3 of 10 15... does not authorize their use as means of discovery. ). The proposed deponent must be unavailable for live trial testimony, and the proposed testimony must be material. See, e.g., Ismaili, 828 F.3d at 158-59 ( [I]it is difficult to conceive of a district court abusing its discretion by denying a Rule 15(a) motion where the movant has not established both the materiality of the testimony and the unavailability of the witness. ); United States v. Karoly, 2009 WL 1872083, at *2 (E.D. Pa.) (Rule 15 emphasizes the use of discretion. ). The burden of proof rests with the movant to demonstrate the necessity for preserving prospective witness testimony by a deposition. Ismaili, 828 F.3d at 159. Testimony is material if it is highly relevant to a central issue in the case. United States v. Drogoul, 1 F.3d 1546, 1556 (11th Cir. 1993); see Ismaili, 828 F.2d at 161 (testimony that negate[s] the crux of the government s case is material); United States v. Al Fawwaz, 2014 WL 627083, at *2 (S.D.N.Y. 2014) ( It need not be definitive proof of guilt or innocence, but should be more than merely relevant. ). A witness is unavailable whenever a substantial likelihood exists that the proposed deponent will not testify at trial. Drogoul, 1 F.3d at 1553; see also Karoly, 2009 WL 1872083, at *3 ( [T]he introducing party will need to make a new and different showing of unavailability during trial. ). Moreover, a witness is unavailable where: (1) she is beyond U.S. subpoena power; and (2) her counsel states that the witness is unwilling to testify at trial. See, e.g., United States v. Fleet Mgmt. Ltd, 2007 WL 2463364, at * 1 (E.D. Pa. 2007); United States v. Vilar, 568 F. Supp. 2d 429, 439 (S.D.N.Y. 2008). [V]ague assertions that the witness may not be willing or able to travel at the time of the trial are insufficient to find unavailability. Al Fawwaz, 2014 WL 627083, at *2. B. Defendant s Rule 15 Motions Defendant seeks to conduct twelve foreign depositions before trial, but provides no details about where or when these depositions will take place, their logistics, or who will pay the 3
Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 4 of 10 deposition costs. The Government opposes all the depositions in part because it believes Defendant is making this request at this late stage in order to delay the proceedings... possible conviction, and consequent removal from the country. (Doc. No. 99 at 9-10.) The Government states that it produced most of the three hundred thousand pages of discovery in February and May 2015 including the statements of most of the witnesses Defendant belatedly seeks to depose and that all the deponents were known to Defendant by September 2015 at the latest (if not earlier). Defendant does not attempt to justify the considerable delay in seeking these depositions. Once again, I agree that Defendant s needless, cumbersome, and belated discovery requests strongly suggest a bad faith effort to delay trial. Because Defendant has failed to establish the unavailability of any deponent, I will deny his Rule 15 Motion in its entirety. Although I will not address the question of materiality, it appears that Defendant has not (even in his ex parte submission) met Rule 15 s materiality requirement for at least ten of these witnesses. i. Anticipated Government Trial Witnesses Defendant seeks to depose Kevin Bortz, a U.S. citizen residing in Spain, and Kseniya Mayushis, a Russian citizen residing in the United Kingdom. Bortz was Director of EBRD s Natural Resources Group and Ryjenko s direct Supervisor; Manyushis was an EBRD employee involved in the Irkutsk transaction who reported directly to Ryjenko. Defendant concedes, however, that they might not be deemed unavailable because they are anticipated Government trial witnesses. (Doc. No. 94 at 4-5.) He nevertheless seeks to depose them in the event the government changes its mind at some future date and decided not to call them. (Id.) Because the proposed Rule 15 deponents are willing to testify at trial and there is a strong preference for live testimony in criminal matters, Defendant has failed to show that Bortz and Mayushis are unavailable. See Ismaili, 828 F.2d at 161. Accordingly, I will deny Defendant s request to depose these witnesses. 4
Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 5 of 10 ii. EBRD Witnesses Who Have Not Demonstrated an Unwillingness to Testify Defendant seeks to depose Bruce Leighton, Christopher James Hyslop, Jeroen Onderdelinden, Riccardo Puliti, and Andrea Leon, each worked at EBRD and had some involvement in the transactions underlying the alleged bribery scheme. Even assuming, arguendo, that their testimony would be material (which is dubious), Defendant has not shown that these witnesses are unwilling to testify at trial. As to each, Mr. Harder s counsel has asked EBRD s U.S. counsel to confirm whether [he or she] would be willing to travel to the U.S. to testify at Mr. Harder s trial, but EBRD s counsel has not yet responded to that request. (Doc. No. 94 at 5-7.) Defendant has thus not made a sufficient showing of unavailability. See, e.g., Al Fawwaz, 2014 WL 627083, at *2 ( [V]ague assertions that the witness may not be willing or able to travel at the time of the trial are insufficient to find unavailability. ); Fleet Mgmt. Ltd, 2007 WL 2463364, at *1 (unavailability satisfied where proposed deponent is overseas and counsel for the deponent expressly represents that the client is unwilling to testify); Vilar, 568 F. Supp. 2d at 439-40 (same). Further, the Government notes that Mr. Leighton resides in the Washington D.C. area. (Doc. No. 99 at 5.) He is thus not unavailable because he is not beyond the subpoena power of the United States. See, e.g., Fleet Mgmt. Ltd, 2007 WL 2463364, at *1. The Government also submits that Mr. Hyslop, who lives in Romania, was excused from testifying in the U.K. trial after the court declared him medically unable to testify. (Id. at 6.) In these circumstances, and without a contrary showing by Defendant, ordering his Rule 15 deposition would be pointless. Finally, as I have discussed, in February and May 2015 the Government provided Defendant with some three hundred thousand pages of EBRD-related discovery that included statements from many of these witnesses. (Doc. No. 99 at 9-10.) Given that Defendant alleges that each deponent was involved in one of the underlying loan transactions, Defendant obviously 5
Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 6 of 10 knew of them and the purported need for their testimony well before March 2016, when he filed his Rule 15 Motion. This delay and the cumulative nature of the proposed testimony suggest not only that Defendant is moving to depose these witness to delay trial, but also that authorizing these depositions would not further the interest of justice. Fed. R. Crim. P. 15(a) ( The court may grant the motion because of exceptional circumstances and in the interest of justice. ). Accordingly, I will not allow Defendant to depose these witnesses. iii. Vostok and Irkutsk Witnesses Defendant next seeks to depose Aric Cunningham, Irina Smetleva, and Daria Katkova. Mr. Cunningham previously represented Vostok in seeking project financing from EBRD; Ms. Smetleva represented Vostok in its transaction with EBRD in her capacity as Vostok s Vice President for Performance Management and Russian Affairs; and Ms. Katkova was a producing agent for the Irkutsk transaction. Defendant has contacted the proposed deponents, inquired as to whether they are willing to testify at trial, and offered to pay their travel expenses. None has responded. Again, this is insufficient to satisfy the unavailability requirement. Al Fawwaz, 2014 WL 627083, at *2; Fleet Mgmt. Ltd, 2007 WL 2463364, at *1; Vilar, 568 F. Supp. 2d at 439-40. Furthermore, although Mr. Cunningham resides in Czech Republic, the Government notes that he is a U.S. citizen who routinely travels to the United States and thus could be subject to a federal subpoena. See 28 U.S.C. 1783. I will thus deny the Rule 15 Motion as to these witnesses. iv. Ryjenko and Sanderson Defendant seeks to depose Andrey Ryjenko and Tatjana Sanderson, U.K. residents who are currently awaiting trial in London on criminal charges related to the same bribery scheme. Sanderson is Defendant s alleged coconspirator who received the corrupt payments from 6
Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 7 of 10 Defendant and allegedly transmitted the bribes to her brother Ryjenko. (Doc. No. 99 at 3-4.) I will assume that their testimony could be material. Ordering their Rule 15 depositions would be pointless, however. Ryjenko s attorney has stated that Ryjenko is unwilling to travel to the United States to testify at trial, and his bail conditions do not permit him to travel to the United States. (Doc. No. 94 at 2.) Sanderson s attorney has not indicated whether she is willing to testify at trial. (Doc. No. 94 at 3); see Vilar, 568 F. Supp. 2d at 439-40; Fleet Mgmt. Ltd, 2007 WL 2463364, at *1. Defendant does not acknowledge (let alone adequately address) the legal and practical problems that make it impossible to compel the sworn testimony of Ryjenko and Sanderson in the instant proceeding. Both deponents are being prosecuted in the United Kingdom for the same actions alleged here: i.e., the corrupt payments Defendant made to Sanderson for Ryjenko s benefit. Although they have a right to silence under British law, their compelled deposition testimony here could likely be used against them in Britain. See Mark Berger, Of Policy, Politics, and Parliament: The Legislative Rewriting of the British Right to Silence, 22 Am. J. Crim. L. 391, 391 (1995); Criminal Justice and Public Order Act 1994 (Gr. Brit.); cf. Araneta v. United States, 478 U.S. 1301, 1304 (1986) (C.J. Burger as Circuit Justice) (noting with approval several English cases holding that the privilege protects a witness from disclosures which could be used against him in a foreign prosecution ); (Doc. No. 99 at 3-4.) Moreover, the Government has refused to grant them immunity if they testify. Accordingly, Sanderson and Rykenko would certainly refuse to testify at any deposition on Fifth Amendment grounds. If they waive their Fifth Amendment rights, Sanderson and Ryjenko would be subject to extradition to the United States where they could be prosecuted for perjury or for their alleged underlying criminal conduct. See 18 U.S.C. 1001, 1621; Extradition Treaty Between the Government of the United Kingdom and the 7
Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 8 of 10 Government of the United States of America, Apr. 26, 2007, Art. 2, Par. 1, available at: http://www.state.gov/documents/organization/187784.pdf. In these circumstances, Defendant essentially seeks my assistance in compelling Ryjenko and Sanderson to provide testimony that what would likely be self-incriminating or perjurious, hinder their defense in their pending U.K. prosecution, and expose them to a potential criminal prosecution in both Britain and the United States. Like many of Defendant s requests, it is difficult to believe this one was made in good faith. In any event, I will deny Defendant s request to depose these witnesses. C. Defendant s Motion for Issuance of Letters Rogatory Defendant has moved for issuance of letters rogatory in connection with his Rule 15 Motion and request to compel EBRD to produce a mass of its documents. (Doc. No. 82.) A letter rogatory is a request for international judicial assistance in matters relating to the administration of justice in the United States. Federal courts have statutory and inherent authority to issue letters rogatory in criminal cases, and broad discretion when determining whether to issue (or honor) one. 28 U.S.C. 1781; see, e.g., United States v. Strong, 608 F. Supp. 188, 193 (E.D. Pa. 1985); cf. In re Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557, 563 (9th Cir. 2011). For each proposed Rule 15 deponent, Defendant has submitted a proposed letter rogatory that seeks foreign judicial assistance in compelling their testimony at an overseas deposition including requests to courts in the United Kingdom, Spain, the Czech Republic, and Russia. Because I am denying all of Defendant s Rule 15 requests, I will deny his Motion for Issuance of Letters Rogatory respecting each proposed deponent. Defendant also asks me to issue a letter rogatory to a court in the United Kingdom requesting that court to compel EBRD to produce the following documents: 8
Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 9 of 10 All documents relating to the transactions between EBRD and Vostok Energy in the period between February 2007 and November 2009; All documents relating to the transactions between EBRD and Irkutsk Oil Company in the period between February 2007 and November 2009; and All emails to or from Andrey Ryjenko at the EBRD that relate to Mr. Harder, Ms. Sanderson, Vostok Energy, or Irkutsk Oil in the period between February 2007 and November 2009, including any emails that Mr. Ryjenko was copied during that period that relate to Mr. Harder, Ms. Sanderson, Vostok Energy, or Irkutsk Oil Company. (Doc. No. 82, Ex. A.) The Government opposes the EBRD document request, which calls for the production of over one million pages of material. The Government submits that it has sought to assist Defendant by asking the EBRD to produce the documents, but the EBRD does not understand how they are relevant to this proceeding. (Doc. No. 100 at 2 n.1.) The Government further contends that this voluminous discovery request like Defendant s last-minute request to conduct twelve overseas depositions is another attempt by Defendant to delay trial. Defendant argues only that files related to the loan transactions will bear significantly on the allegation in the Superseding Indictment and are therefore material to his defense. (Doc. No. 94 at 4 n.5.) In these circumstances, I will deny as both overbroad and unnecessary Defendant s request for the EBRD documents related to the underlying loan transactions. The Government maintains (and Defendant does not dispute) that it has already provided Defendant with many thousands of pages of documents respecting the transactions. Defendant has not explained why this is insufficient. Insofar as Ryjenko and Defendant exchanged emails, they were produced to Defendant with the Government s discovery disclosures. (Indeed, the search of Defendant s emails is the subject of Defendant s second suppression motion.) Accordingly, I will deny the request for a letter rogatory. 9
Case 2:15-cr-00001-PD Document 106 Filed 03/21/16 Page 10 of 10 AND NOW, this 21st day of March, 2016, upon consideration of Defendant s Rule 15 Motion and the Government s opposition (Doc. No. 81, 94, 99), and Defendant s Motion for Issuance of Letters Rogatory and the Government s opposition (Doc. No. 82, 100), it is hereby ORDERED that Defendant s Rule 15 Motion is DENIED. It is further ORDERED that Defendant s Motion for Issuance of Letters Rogatory is DENIED. AND IT IS SO ORDERED /s/ Paul S. Diamond Paul S. Diamond, J. 10