# Petition — Mothon v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0574%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 908 ## Text - Supreme PILED AUG 6 1992 82 -231 Supreme Court of the United States . Ocroser Term, 1982 ALEXANDER Lt. STEVAS, TTERK CHARLES MOTHON, Petitioner, UNITED STATES OF AMERICA, Respondent. Perrrion ror a Warr or CenTiorari TO THE Unrrep STATES Court or APPEALS ror THE THmp Circurr PETITION FOR A WRIT OF CERTIORARI MATTHEW P. BOYLAN, Counsel of Record for Petitioner, THEODORE V. WELLS, JR. LOWENSTEIN, SANDLER, BROCHIN, KOHL, FISHER & BOYLAN, A Professional Corporation, Attorneys for Petitioner, Charles Mothon, 65 Livingston Avenue, Roseland, New Jersey 07068 (201) 992-8700 N.J. Appellate Printing Co., inc., South Plainfield, New Jersey (201) 753-0200 i QUESTION PRESENTED Is it permissible for a federal court to allow the government to engage in pre-trial discovery depositions in a criminal matter pursuant to Fed. R. Crim. P. 15(a) despite the express statement in the advisory note to Rule 15(a) that its provisions not be used for the purpose of pre-trial discovery? PARTIES TO THE PETITION The only party to this petition is petitioner Charles Mothon. In the Court below, Mothon’s co-defendants- appellants were as follows: General Electric Company; Schenectady Turbine Services, Ltd.; Twombly, Inc.; Robert Naples and Hoyt P. Steele. Except for defendant Twombly, Inc., it is petitioner Mothon’s belief that no other parties to this action in the Court below desire to join in this petition. The respondent is the United States of America. sat a TABLE OF CONTENTS BES Dynes i PN III oy vce so ctu dacccadccasene i SIN SU cuiwica desde cndecs be csscedbe l TEE ¢ 5 uvccech snedic cocked saceecdaes 2 Federal Rule Involved ...................20000: 2 DO OD ain dAREbs ceccnbeSces 2 REASONS FOR GRANTING THE Writ: The decision of the Third Circuit to permit deposi- tions in a criminal matter pursuant to Fed. R. Crim. P. 15 where the effect was to permit the government to engage in impermissible pre-trial discovery is in direct conflict with the advisory note to Rule 15 and presents an important ques- tion of federal law that should be resolved by SMD sg bcs wi (HUE eo cd saes Co 0s COVE CCA 8 A. The Applicable Law: Elements of the Movant's Burden of Proof Under Rule 15(a) 8 B. Deficiencies in the Government's Showing . 11 NN 06k o's 0s iv cesceewGaee edn dcdine 15 APPENDIX A June 16, 1982 Opinion of the Third Circuit Court of bn 0. ceedke Sek 6 PER EE Cease > in dune eek re la APPENDIX B iii TABLE OF CONTENTS APPENDIX C October 1, 1980 Opinion of the United States District Court for the District of New Jersey............ 36a APPENDIX D Affidavit of Prosecutor Joseph Covington ......... 43a TABLE OF AUTHORITIES Cases Crrep: United States v. Adcock, 558 F.2d 397 (8th Cir.), cert. denied, Soe Way ee GOOOTD. oda eu ks ceccecesigccvacs i) United States v. Ausmeier, 5 F.R.D. 395 (E.D.N.Y. 1946) .............. ll United States v. Bello, 532 F.2d 422 (Sth Cir. 1976) ............... ll United States v. Mann, 590 F.2d 361 (Ist Cir. 1978) .............. 9, 10 United States v. Mitchell, 385 F. Supp. 1190 (D.D.C. 1973), aff'd sub nom. United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), cert. denied 431 U.S. 933, SURED. Sa vc S0s Cake eee steae beh sconeue 10, 11 United States v. Rich, 580 F.2d 929 (9th Cir.), cert. denied ee Oe eee 9, 10 United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972), cert. denied 410 ee CI ei nek ck 5 CREA oaks opbb os cbne 10 United States v. Steffes, 35 F.R.D. 24 (D. Mont. 1964) .............. i) iv TABLE OF CONTENTS Cases Crrep: United States v. Wilson, 601 F.2d 95 (3d Cir. 1979) ........ Cones Crrep: Se Berea ye. eee eT Se ee oe eee Ruxes Crrep: Fed. R. Civ. P. 28(b) ...........0..05. Fed. R. Crim. P. 15(a) ................ Fed. R. Crim. P. 16 ...........0.0000. Orner Autuority CIrep: 8 Moore’s Federal Practice §15.01[3] (1980) IN THE SUPREME COURT OF THE UNITED STATES Ocroser Term, 1982 No. CHARLES MOTHON Petitioner, UNITED STATES OF AMERICA, Respondent. PETITION FoR A Writ oF CERTIORARI TO THE UNITED Srates Court or APPEALS FOR THE THIRD Circuit Petitioner, Charles Mothon, respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Third Circuit entered in this proceeding on June 16, 1982. OPINIONS BELOW The June 16, 1982 opinion of the Third Circuit Court of Appeals has not yet been reported officially. A copy of the Third Circuit's slip opinion is annexed to this Petition as Appendix A. That aspect of the October 1, 1980 unreported oral upinion of the United States District Court for the Dis- trict of New Jersey pertaining to the Rule 15 issue is annexed to this Petition as Appendix C. 1 2 JURISDICTION The judgment of the Third Circuit Court of Appeals reversing petitioner's convictions and ordering a new trial was entered on June 16, 1982, and a copy thereof is annexed to this Petition as Appendix B. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). FEDERAL RULE INVOLVED Federal Rule of Criminal Procedure 15(a) provides: (a) When Taken. Whenever due to exceptional cir- cumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness. STATEMENT OF THE CASE On September 4, 1980, a federal grand jury sitting in Newark, New Jersey returned a seven-count indict- ment against petitioner Mothon, and his co-defendants: 3 General Electric Company (“GE”); Schenectady Tur- bine Services, Ltd.; Twombly, Inc.; Robert Naples and Hoyt P. Steele. The indictment charged, in essence, that the three individuals and three corporate defendants and carried out a scheme lasting from May, 1973 to June 30, 1976 to pay a bribe to one Carlos Velasquez Toro, an official of a publicly-owned utility of the Puerto Rico Water Resources Authority (“PRWRA”), in return for Toro’s use of his influence to obtain for GE a contract to construct a power generating plant for the PRWAA in Puerto Rico. On February 11, 1981, a jury sitting in the United States District Court for the District of New Jersey found all of the defendants guilty on all but Count six of the seven-count indictment. On June 16, 1982, the Third Circuit Court of Ap- peals issued a judgment (Appendix B) and opinion (Ap- pendix A): (1) reversing the conviction of Robert Naples on all counts; (2) reversing the convictions under Counts 2, 3 and 5 for all of the other defendants on the grounds that the District Court should have entered directed ver- dicts of acquittals on these counts; and (3) setting aside the convictions of the defendants on Counts 1, 4 and 7 and remanding for a new trial on these counts.' This petition for certiorari is limited solely to the that it was proper for the government to take depositions «4 these depositions was to engage in pre-trial discovery. Although the Third Circuit reversed the convictions of the petitioner, the Rule 15 issue raised by this petition is not moot because of the remand on Counts 1, 4 and 7 for a new trial. The following facts relate to the Rule 15 issue.* Following the return of the September 4, 1980 in- dictment, the government filed a motion on September 22, 1980 to take the depositions of certain foreign nation- als residing in Bermuda, Canada and England pursuant to Fed. R. Crim. P. 15(a) and a request for International Judicial Assitance pursuant to Fed. R. Crim. P. 57(b) and Fed. R. Civ. P. 28(b). The sole factual basis for the government's Rule 15(a) request was an affidavit by prosecutor Joseph Covington. A copy of Covington’s affi- davit is annexed hereto as Appendix D. In this affidavit the government was forced to indicate that it had never spoken directly to any of the persons it wished to depose and, as a consequence, the government was not able to set forth any facts the deponents would testify about, nor how or why their testimony was so material to the case as to justify the taking of a Rule 15 deposition. Based on that single affidavit, the government sought to take dep- ositions: (1) in Canada of Michael Candy; Bruce Forcey and Warren Kuk; (2) in Bermuda of William Cox; Mi- chael B. Collins; the custodian of records for the Ber- muda National Bank; an officer of the Bermuda Mone- tary Authority, and the Registrar of Companies; and (3) in England of Douglas Field. All the defendants vigorously objected to the taking of the depositions on the ground, inter alia, that the government had failed to meet the rigid factual and legal prerequisites for the Court's exercise of discretion to per- mit depositions under Fed. R. Crim. P. 15(a). The thrust 2. The facts of the entire case are set forth in detail in the opinion of the Third Circuit annexed hereto as Appendix A. of these objections was that the government had no knowledge of the content of the testimony of any of the deponents and that the depositions were actually for the purpose of pre-trial discovery, an impermissible use of a Rule 15(a) deposition. Defendants argued that the government's candid concession that it was unaware of what the deponents might say was dispositive of the fact that the government was actually asking for pre-trial discovery. The District Court granted the motion nonetheless. In so ruling from the bench, the District Court essentially reasoned that because the deponents were foreign nationals who refused to talk to the government, circumstances justified a relaxing of Rule 15’s prerequisites: b. The second required showing under Rule 15(a) is that the witness’ testimony be material to the issues in the case. This is a most difficult judg- ment for a court to make prospectively, without the opportunity to review a sworn statement of the pro- posed witness. In the typical Rule 15 application, a witness who may be unavailable for trial will logi- cally be available at some time before trial. Thus, the party requesting leave to conduct a Rule 15 deposition will have taken a statement of the wit- ness’ testimony. Rule 15 proceedings would be ap- plied for simply as 2 way of preserving that witness testimony, because that witness would be unavail- able at trial because of death, severe illness or other such circumstances. Here, on the other hand, we have prospective witnesses who have been either totally unavailable before trial or available only at a previous letters rogatory preceeding. The fact that they are foreign nationals adds an element to the facts before this Court that is simply not addressed by the cases the ow Court has reviewed. The relevancy of the proposed testimony is described in Mr. Covington’s affidavit. I am satisfied that this is not a fishing expedition. It appears to me that I should apply the of the Court in United States v. Bronston, 321 F. Supp. 1269, 1271 (S.D.N.Y. 1971), where it was stated that “the mere fact that a necessary wit- ness is a foreign national domiciled abroad and be- yond the subpoena power of the Court does not mandate an order pursuant to Rule 15, (but) it is an impelling consideration.” We are persuaded that the almost complete unavailability of these pro- posed witnesses absent letters rogatory issued pursu- ant to a Rule 15 order is an “impelling consider- ation” in assessing the government's showing of materiality. Appendix C at 40a-4la. Thus, the District Court in effect ignored Rule 15 and its express prohibition against permitting pre-trial discovery in criminal cases. In affirming the District Court’s decision on this ruling, the Third Circuit the District Court’s approach and held that in light of the unusual circumstances, the government did not have to satisfy Rule 15’s normal standards: We recognize that Fed. R. Crim. P. 15, which provides for the taking of depositions in criminal cases, does not authorize their use as means of dis- covery; but we cannot agree with appellants that the depositions at issue were used as discovery tools. Appellants emphasize that the government could not demonstrate to the district court the materiality of the proposed testimony. In view of the govern- ment'’s inability to gain access to the proposed depo- nents, however, we agree with the district court that under the extremely unusual circumstances of and the jury. ~ Appendix A at 30a (footnote omitted). As demonstrated below, despite the unusual circum- stances of this case, both the District Court and the Third Circuit improperly ignored the provisions of Rule 15(a) that this rule not be used to permit pre-trial discov- ery. REASONS FOR GRANTING THE WRIT The decision of the Third Circuit to permit depositions in a criminal matter pursuant to Fed. R. Crim. P. 15 where the effect was to permit the government to engage in impermissible pre-trial discovery is in direct conflict with the advisory note to Rule 15 and presents an important question of federal law that should be resolved by this court. This case presents an important question of federal law relating to the question of whether it is permissible for a federal court to allow the government to engage in thrid 5g in a criminal matter pursuant to Fed. Crim. P. 15(a) despite the express statement in the advisory note to Rule 15 that it not be used for the purpose of pre-trial discovery. As set forth below, the decisions of the District Court and the Third Circuit to ignore this prohibition against pre-trial discovery on the reasoning that this case presented “extremely unusual circumstances” was unwarranted and amounted to an ad hoc judicial amendment of the standards governing the issuance of Rule 15 depositions. A. The Applicable Law: Elements of The Movant's Bur- den of Proof Under Rule 1 5(a). Fed. R. Crim. P. 15(a) provides in relevant part: Whenever due to excepticnal circumstances of the case it is in the interest of justice that the testimony Two important features of this language warrant initial discussion. First, Rule 15(a) does not authorize discovery depositions, but only authorizes depositions of the moving party’s own witnesses to preserve their testi- mony for use at trial. Numerous courts have held that depositions in a criminal case properly have no discovery function. See, e.g., United States v. Mann, 590 F.2d 361, 265 (ist Cir. 1978); United States v. Rich, 580 F.2d 929, 933-934 (9th Cir.), cert. denied, 439 U.S. 935 (1978); United States v. Adcock, 558 F.2d 397, 406 (8th Cir.), cert. denied, 434 U.S. 921 (1977); United States v. Steffes, 35 F.R.D. 24 (D. Mont. 1964). As the Notes of the Advisory Committee on the 1975 Amendment to Rule 15 explain, the Rule’s “principal objective is the preservation of evidence for use at trial. It is not to provide a method of pretrial discovery nor primarily for the purpose of obtaining a basis for later cross-examina- tion of an adverse witness.” (emphasis added). Second, the rule authorizes the Court to order that the deposition of the moving party’s own witness be taken so that the witness’s testimony may be preserved for use at trial only when “due to exceptional circum- stances” the “interest of justice” so requires. This exact- ing standard, which indicates that depositions should be sparingly allowed, must be rigorously applied because “allowing depositions too freely would create the risks that parties .. . would try to use depositions in lieu of live testimony at trial in contravention of the spirit of the Sixth Amendinent.” United States v. Mann, supra, 590 F.2d at 365. Mindful of the rule’s limited purpose and function, the courts have established a series of prerequisites for a party seeking to take a deposition pursuant to Rule 10 15(a).* In the first place, the movant must show that the witness will not be available to appear at trial, despite all reasonable efforts to secure his appearance. United States v. Mann, supra, at 366; United States v. Rich, supra, at 933-34. In addition, the movant must show that the proposed deponent’s expected testimony is material and necessary to prevent a failure of justice. These require- ments serve the dual function of helping to establish “exceptional circurnstances” and ensuring that the depo- sition is being sought to preserve the testimony of the movant’s own witness, not for discovery. There are numerous examples of these prerequisites. In United States v. Wilson, 601 F.2d 95 (3d Cir. 1979), the Court ruled that the defendants should have been allowed to take the deposition of a fugitive from justice not subject to extradition because the defendants submit- ted an affidavit from the proposed deponent, which “es- tablished that his testimony was relevant and, if be- lieved, would have been exculpatory to some extent.” 601 F.2d at 98. In contrast, the defendants in United States v. Mitchell, 385 F. Supp. 1190 (D.D.C. 1973), 3. Three of these prerequisites, that the prospective witness will be unable to attend the trial, that the witness’ testimony is material, and that it is necessary to take the witness’ deposition in order to a failure of eo, were y contained in Rule 15(a) it was in 1975. Al Congress substituted the phrase “exceptional circumstances” in 1975, that language, as Con- gress knew and intended, had been judicially defined in terms of the three requirements spelled out in the pre-1975 version of Rule 15(a). United States v. Singleton, 460 F.2d 1148, 1153-1154 (2d Cir. 1972), cert. denied, 410 U.S. 984 (1973). See 8 Moore's Federal Practice, §15.03[1] (1980). Cases subsequent to the 1975 amendment have confirmed that the pre-1975 Rule 15(a) requirements are implicit in the “ circumstances” standard. E.g.. United States v. Rich, F.2d 929, 933 (9th Cir.), cert. denied, 439 U.S. 935 (1978). In the District Court the government concurred in this inter- pretation. Memorandum of the United States in Support of its Mo- tion for Leave to Take Depositions, 1-2. ll aff'd sub nom. United States vo. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977), were refused authorization to take President Nixon's dep- osition because Nixon’s expected testimony was “cumula- tive,” not “indispensable,” and because “[{t}here has been no showing by way of statement, affidavit, or otherwise from Mr. Nixon that he would, in fact, testify along the lines the defendants have predicted.” 385 F. Supp. at 1193. Accord, United States v. Bello, 532 F.2d 422, 423 (5th Cir. 1976). Similarly, in United States v. Ausmeier, 5 F.R.D. 395, 396 (E.D.N.Y. 1946), the Court denied defendants’ motion under Rule 15 for an order authoriz- ing the taking of certain depositions in Germany because the movants had not discussed with the witnesses or their representatives what testimony they would give in the event their depositions were taken. In summary, if the prosecution moves for an order authorizing a deposition under Rule 15(a), it must sub- mit an 2ffidavit or other evidence from the proposed depozient sufficient to permit the Court to make a judg- ment as to the “exceptional circumstances” and “interest of justice” requirements of Rule 15. The judgment as to the extent of the government’s need for the deposition evidence obviously cannot be made in a vacuum. The government must indicate what the prospective depo- nent would say and why that evidence is crucial to the case. The fact that the government submits an affidavit to the effect that a deponent might have relevant infor- mation is not enough. B. Deficiencies in the Government's Showing The affidavit of prosecutor Covington (Appendix D) was the government's sole factual basis for its Rule 15 request. As the following analysis shows, Covington’s affidavit failed to satisfy the requirements of Rule 15(a) 12 as to each of the following witnesses.‘ In essence, Cov- ington’s affidavit only suggests that because the depo- nents occupied positions that brought them into contact with the defendants’ business transactions there is a pos- sibility that the deponents might be able to supply some information that would be relevant to the case. How- ever, this type of showing, it is submitted, only reaffirms the petitioner’s basic position: that the government was engaged in pre-trial discovery in the hope it would un- cover inculpatory evidence. 1. Michael Candy Covingtor’s affidavit states that he was advised by counsel for the Bank of Nova Scotia that Michael Candy “is an employee of the Bank of Nova Scotia, residiag in Toronto, who during 1974 and 1975 had been working as a bank manager at the Bermuda National Bink.” Appendix D at 43a-44a. The bank counsel further «d- vised Covington that Candy “was prepared to testify that he recalled knowing Charles Mothon and Carlos Velaz- quez Toro while working at the Bermuda National Bank.” (Id.) This was the full extent of the shuwing of materiality. The government clearly did not justify its request to depose Michael Candy under the standards of Rule 15(a). There was no statement by Michael Candy, his representative, or even by Covington, of what Candy would testify to if his deposition were taken, other than that he knew Mothon and Toro. This falls far short of a showing that Candy’s expected testimony was material and necessary to prevent a failure of justice. That Candy 4. The testimony of each of the following witnesses was critical to the government's case and will be similarly critical at the retrial of Counts 1, 4 and 7. 13 knew Toro and Mothon while he worked at the Bermuda National Bank certainly does not incriminate any of the defendants. The government failed to specify in any way what relevant information is alleged that Mr. Candy had, and how such information was essential to the pros- ecution’s case. The government was in fact seeking to take a discovery deposition, a procedure unauthorized by Rule 15(a) and improper in a criminal case. 2. Bruce Forcey The government’s request to depose Bruce Forcey was similarly infirm. Covington’s affidavit stated that he had been advised that Bruce Forcey succeeded Michael Candy as manager at the Bermuda National Bank in August 1975 and that “[bjank records reveal that on August 19, 1975, Mr. Forcey caused a certificate of de- posit belonging to Turbo Electric Equipment Ltd. in the amount of $165,800.23 to be cashed before its maturity date.” Appendix D at 44a. Once again, the government was seeking an imper- missible discovery deposition. Although Covington’s affi- davit stated that Forcey was manager of the Bermuda National Bank and that bank records indicated that he caused the specified certificate of deposit to be cashed, it did not state what Forcey’s testimony would be regard- ing the alleged cashing of the certificate of deposit or any other matters. Indeed, when Forcey ultimately was de- posed in Canada, he testified that he had no recollection of the August 19, 1975 transaction referred to in Covin- gton’s affidavit. Consequently, the District Court was in no position to determine whether Forcey’s testimony would be essential to the prosecution’s case and necessary to prevent a failure of justice, or, on the other hand, irrelevant, cumulative, or helpful to the defense. Accord- ingly, the government failed to discharge its burden un- der Rule 15(a) of showing that “exceptional circum- 14 stances” made it “in the interest of justice” for Forcey’s testimony to be taken and preserved for use at trial. 3. William Cox As to William Cox, a British citizen and a member of the Hamilton, Bermuda law firm of Cox and Wilken- son, Covington’s affidavit stated that Cox “appears as a director of both Turbo Electric Equipment, Ltd. and Power Equipment Ltd.,” that Cox “previously testified in the matter of United States v. Twombly, Inc., CR 80- 73, that he knew Charles Mothon as the individual who directed the affairs of Turbo Electirc Equipment, Ltd. ,” and that Cox had recently advised the government “that he still had some minute books and other records of Power Equipment, Ltd.” Appendix D at 46a. The government’s showing in support of its request to depose Cox was deficient on familiar grounds. There was no representation of what Cox would testify to and why that testimony was so material to the prosecution's case that its preservation was necessary to prevent a failure of justice. All that was shown was that Cox knew defendant Mothon, that Cox may have held directorships in Turbo Electric Equipment, Ltd. and Power Equip- ment, Ltd., and that he may have been in possession of some records of Power Equipment, Ltd. 4. The Bermuda Bank Records Covington’s affidavit failed to show what transac- tions the bank’s records depicted, when they occurred, and how they bore on the government’s case. In short, the government’s motion for leave to take the deposition of the custodian of records of the Bermuda National Bank failed to show how the bank’s records were mate- rial and essential to the prosecution’s case. Accordingly, the motion should have been denied. 15 CONCLUSION The government’s motion for leave to take depos- tions in three foreign countries was without foundation in law. The government is charged with the determina- tion of facts before it secures an indictment. After an indictment has been returned, the government may con- duct limited discovery pursuant to Fed. R. Crim. P. 16. Rule 15, however, expressly forbids the government to take pre-trial discovery. Nevertheless, the District Court and the Third Circuit erroneously relieved the govern- ment of its burden under Rule 15 and impermissibly sanctioned pre-trial discovery. This ruling was incorrect as a matter of law and presents a significant issue of federal law that merits the granting of this petition to review the judgment of the Third Circuit. Respectfully submitted, MATTHEW P. BOYLAN, Counsel of Record for Petitioner, THEODORE V. WELLS, JR. LOWENSTEIN, SANDLER, BROCHIN, KOHL, FISHER & BOYLAN A Professional Corporation Attorneys for Petitioner, Charles Mothon Dated: August 5, 1982 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0574%3A1. Public record. Not legal advice.