Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. LOPEZ, IV Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 019182 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1098-PHX-EHC Plaintiff, v. Jeanette B. Wilcher, Defendant. The United States, through undersigned counsel, hereby submits the Government's Motion to Depose Witness to Preserve Trial Testimony Pursuant to Fed. R. Crim. P. 15, which seeks an order permitting the government to take the testimony of Larry Carr for trial in this case by deposition. Trial is set for April 4, 2006. As shown below, exceptional circumstances exist to justify Mr. Carr's deposition, as he is undergoing cancer treatment and cannot travel to Phoenix for the purpose of giving testimony. The Government has been unable to contact Assistant Federal Public Defender Deborah Euler-Ajayi, counsel for defendant, to determine her position concerning this motion. Background The indictment charges that the defendant, through Life Foundation Trust ("LFT"), used an intermediary known as Sansea, Ltd, to defraud Ms. Gillaspie, a widow, by selling her one of LFT's so-called high-yield investments through false pretenses. Ms. Gillaspie agreed to give $3.3 million in cash to Sansea for an investment in a trading program. On January 25, 1999, Ms. Gillaspie wired $3.3 million to Sansea, and Sansea transferred the money to an LFT account. Ms. Gillaspie received back only $794,000 of her original investment. Larry Carr worked on G O V E R N M E N T 'S M O T I O N T O DEPOSE WITNESS TO PRESERVE TRIAL TESTIMONY PURSUANT TO FED R. CRIM. P. 15

Case 2:03-cr-01098-EHC

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behalf of Ms. Gillaspie to recover her original investment and will testify concerning his communications with the defendant. Mr. Carr, who lives in Tampa, Florida, is 71 years old and is presently undergoing various treatments for prostate cancer, including radiation treatment. Mr. Carr indicates that he is unable to travel to Phoenix during early April for any purpose, including giving testimony. According to his physician, Dr. Michael J. Dattoli, Mr. Carr will be undergoing additional cancer treatments between April 4, 2006, and April 13, 2006. (Ex. 1) Mr. Carr has informed the government that he desires to and is physically capable of giving testimony in Tampa, Florida. Additionally, Mr. Carr states that he can make himself available on any date which is convenient to himself and the parties. The Government can arrange for the testimony to be taken at Mr. Carr's business office or another government facility in the area. The Government proposes that Mr. Carr's testimony be taken by certified court reporter and that it also be recorded by videotape. Argument Rule 15 of the Federal Rules of Criminal Procedure provides that the trial court may grant a motion to depose a witness in order to preserve her testimony for trial "because of exceptional circumstances [where] it is in the interest of justice that the testimony of the prospective witness . . . be taken and preserved for use at trial . . ." United States v. Olafson, 203 F.3d 435, 442 (9 th Cir. 2000) (citation omitted). Among the factors to be considered by the court are whether the witness would be available at a proposed location and whether she would be willing to testify. Id. The instant case presents just such an exceptional circumstance. The witness has important testimony to give: the circumstances surrounding his communications with defendant concerning his effort to recover Ms. Gillaspie's $3.3 million investment. However, given Mr. Carr's cancer treatment, the requirement that he travel to Phoenix presents an unnecessary hardship. If the Court grants this motion, the witnesses' health can be accommodated, and the

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defendant's constitutional right to confront the witness is preserved. See Rule 15(c)(2), Fed. R. Crim. P. (providing that the defendant has the right to be present at the deposition). The Government notes that as the party calling for the deposition, it is responsible for bearing the expenses of travel and subsistence for the defendant and her attorney and for the transcript of the testimony. See Rule 15(c)(2), Fed. R. Crim. P. For the reasons set forth above, the Government requests that the Court enter an order granting the Government's Motion to Depose Witness to Preserve Trial Testimony Pursuant to Fed. R. Crim. P. 15. Respectfully submitted this 23rd day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S/ John R. Lopez IV JOHN R. LOPEZ, IV Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on February 23, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM /ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Deborah Euler-Ajayi Asst. Federal Public Defender 850 W . Adams Street, Suite 201 Phoenix, Arizona 85007 Attorney for Defendant / S/ JOHN R. LOPEZ IV

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