Case 2:13-cv Document 33 Filed in TXSD on 04/24/14 Page 1 of 7

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1 Case 2:13-cv Document 33 Filed in TXSD on 04/24/14 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION UNITED STATES OF AMERICA Plaintiff, VS. CIVIL ACTION NO. 13-CV C ALL FUNDS ON DEPOSIT AT OLD MUTUAL OF BERMUDA, LTD. CONTRACT NUMBER CX IN BERMUDA Defendant. CLAIMANT S JORGE JUAN TORRES LOPEZ MOTION FOR LEAVE TO TAKE DEPOSITION BY REMOTE ELECTRONIC MEANS AND MEMORANDUM IN SUPPORT OF SAID MOTION Claimants, Jorge Juan Torres Lopez and Maria Carlota Llaguno de Torres asks the Court for leave to take the deposition of Jorge Juan Torres Lopez by remote video/electronic means, such as telephone/skype, as authorized by Federal Rule of Civil Procedure 30(b)(4). A. INTRODUCTION 1. Plaintiff is the United States of America. Defendant is All Funds on Deposit at Old Mutual of Bermuda, LTD. Contract Number CX in Bermuda. Claimants are Jorge Juan Torres Lopez and Maria Carlota Llaguno de Torres. 2. The government seized the Claimants Bermuda account in a civil action in rem, alleging that the funds deposited there were the proceeds of a transaction in violation of 18 U. S.C. Sections 1956, 1957 or 1960 or were traceable to property derived from such transaction. The government alleges that the property is derived from bribery of a public official in Mexico, or the misappropriation, theft, or embezzlement of public funds by or for the benefit of a public

2 Case 2:13-cv Document 33 Filed in TXSD on 04/24/14 Page 2 of 7 official in Mexico and that the contents of the account are proceeds traceable to a violation of 18 U.S.C. Section The government noticed its intention to take the deposition of Jorge Juan Torres Lopez, one of the Claimants of the seized accounts. (Notice attached hereto as Exhibit 1). 4. Mr. Torres is a citizen of and a resident of Saltillo, Mexico. 5. Mr. Torres is presently under Indictment in the Southern District of Texas, Corpus Christi Division, in Cause No C for facts arising out of the same basis as this forfeiture complaint. The Government will not agree to a bond for Mr. Villarreal if he makes an appearance in the United States. 6. Mr. Torres is attempting to obtain documents in order to show that the funds did not come from an illicit source and will present them during a deposition. However, to first file a forfeiture case and subsequently return an indictment, solely for the purpose of making it impossible to defend itself is unfair. 7. Mr. Torres is being prevented from presenting a defense to the forfeiture because he cannot appear. He can and is willing to give a deposition under oath without assertion of his 5 th Amendment Right. 8. Further, the Indictment charges a co-defendant Hector Javier Villarreal Hernandez who is presently in custody in the San Antonio Division of the Western District of Texas and is subject to a similar forfeiture action. 9. Upon receipt of the notice of deposition, Tony Canales, counsel for Mr. Torres, contacted the AUSA, Julie Hampton, and offered to conduct the deposition via Skype with the necessary court reporters, translators, and premarked documents for the government. In addition,

3 Case 2:13-cv Document 33 Filed in TXSD on 04/24/14 Page 3 of 7 he also offered to allow the government to send an agent, Ms. Hampton, or someone of her choice to attend the deposition in person. 10. In light of the denial of a reasonable request, Claimants file this motion requesting that the Court allow the deposition of Mr. Torres, and, if notice is sent for any other resident of Mexico, that these depositions be allowed to be taken by remote electronic means pursuant to Federal Rules of Civil Procedure, Rule 30(b)(4). The electronic means will allow both audio and video reception of the deponent for questioning by the government. 11. Claimant requests leave of court to take the deposition by remote electronic means, i.e., telephone/skype as authorized by Federal Rule of Civil Procedure 30(b)(4). 12. The government will not stipulate to a deposition by electronic means, either telephone or Skype despite the fact that this deposition could serve a valuable opportunity for the government to obtain the information that it lacks in this matter or to correct inaccurate information or perceptions formed by the government. B. ARGUMENT 13. A court may permit a deposition by electronic means. Fed. R. Civ. P. 30(b)(4); Brown v. Carr, 253 F.R.D. 410, 412 (S.D. Tex. 2008); U.S. v. Xunmei Li, 2013 U.S. Dist. LEXIS (D. Arizona, Jan. 14, 2013); Gaia v. Brian Smith, et al, 2010 U.S. Dist. LEXIS (S.D. Tex. April 2, 2010); Ryan v. Bucksport Regional Health Center, 2013 U.S. Dist LEXIS 81 (January 2, 2013); Laughin v. Occidental Chem. Corp., 234 F.R.D. 75, (E.D., Pa. 2005); see Murphy v. Tivoli Enters, 953 F.2d 354, 359 (8 th Cir. 1992). The parties may stipulate that a deposition be taken by telephone or other remote means, or the court may order it upon motion of a party. The party seeking to have the deposition taken by video-teleconference must show a legitimate reason for its motion. Brown v. Carr, 253 F.R.D. 412.

4 Case 2:13-cv Document 33 Filed in TXSD on 04/24/14 Page 4 of It is not unreasonable that Mr. Torres does not travel to the United States without first being afforded the opportunity to provide documentary and testamentary information to specific questions that the U.S. government may have for him. They have seized his property with no specific allegation regarding these accusations against him. As stated to the court, the government s case is conjecture as to the source of the funds. There are no factual allegations on the part of the government stating the source of the funds that supports their allegation that the funds are proceeds of illegal transactions. 15. Moreover, all documents supporting the source of the funds in the seized account are in Mexico. If the government, in the course of its questioning determines that it requires a document that is not on the list attached to the Notice of Deposition, that document would not be available except in Mexico. If the deposition is taken where the documents are located, then it could be very beneficial in getting the necessary information to them at the time of the deposition. It would expedite the process. It is the position of the Claimants that the government seized their property without probable cause and without the requisite nexus between the property seized and the allegation that the property is the proceeds of a specified illegal activity. This deposition is instrumental in protecting the constitutional rights of the defendant afforded under the Fourth, Fifth, Sixth and Eighth Amendments to the United States Consitution. 16. The government has not agreed to the conditions of safe conduct and has given no reason for its denial. The government has failed to show how it would be prejudiced by videoteleconference deposition in this case, when, in fact, the video conference deposition is conducive to resolving this matter and avoiding the necessity for additional expensive and protracted discovery.

5 Case 2:13-cv Document 33 Filed in TXSD on 04/24/14 Page 5 of In addition, Claimants request that the deposition be taken by remote electronic means because it is less expensive than travel to the United States, translators can be arranged with little or no difficulty in Mexico, video will make the Claimant available for questioning without limitations on time and travel. Claimant has raised no objection to the presence of a government agent in the room at the time of the deposition. The government had no trouble locating an available agent to go talk to Mr. Torrez in Mexico, when it wanted information from him. Moreover, there is no threat that Mr. Torres would be subjected to the possible no-fly lists put out by the United States government or other travel impediments or the dangers of traveling in Mexico. 18. Counsel for Claimants has agreed to premark all documents that have been requested and, through Skype, all documents would be visible to all parties. 19. Based on the cases listed above in paragraph 6, the federal district courts, including the Southern District of Texas, Corpus Christi Division, have noted the merit in allowing deposition to be taken remotely. (See, Gaia v. Brian Smith, et al, S.D. Texas, Corpus Christi Div. March 24, 2010). In a recent case, the Xunmei case, a witness was deported by the government before he could complete his deposition. The Court found that the witness s removal to a foreign country made video-teleconferencing the most reasonable, cost-efficient manner in which to finish his deposition. U.S. v. 3. The Court, having found video teleconferencing to be the most reasonable, cost-efficient manner in which to take the deposition, placed the burden on the party opposing such means, to show how it would be prejudiced by such deposition. Id. 20. Counsel for the Claimants will assist the government as needed to assure that the deposition will be conducted before an officer authorized to administer oaths by the laws of the

6 Case 2:13-cv Document 33 Filed in TXSD on 04/24/14 Page 6 of 7 State of Texas pursuant to Fed.R.Civ.P. 28. In addition, the government would be permitted to have a Spanish-speaking agent at the location in Mexico to assure the accuracy of the translation and the responses. Ms. Hampton will require a translator to take the deposition whether that occurs here or in Mexico. She also has the option to travel to Mexico to take the deposition. It is no safer for Mr. Torres to travel here than it is for her to travel there. The government selected the venue in which to bring this suit, not the Claimant, and it is the obligation of the government to accommodate the litigants. 21. The government will not be prejudiced if the deposition is taken by a remote electronic means, either by telephone or Skype. If there is no prejudice to the government, who relies on electronic and teleconferencing to conduct all manner of activities, including war, then it is unlikely that it will be prejudiced or harmed in any way by conducting this deposition via electronic means. The claimant should be spared the expense and threat of the travel to a destination he did not choose and should be afforded the opportunity to speak in his defense and provide such documentation as are requested. 22. Because Claimants have justified need for the deposition by remote electronic means, the Court should grant leave to take the deposition of Claimants as requested. Respectfully submitted, /s/ J. A. Canales J. A. Canales State Bar No Federal I.D. No CANALES & SIMONSON, P.C. Attorneys at Law 2601 Morgan Ave.-P.O. Box 5624 Corpus Christi, Texas Telephone: (361) Facsimile: (361) tonycanales@canalessimonson.com ATTORNEY FOR CLAIMANTS

7 Case 2:13-cv Document 33 Filed in TXSD on 04/24/14 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that the foregoing has been filed pursuant to the electronic filing requirements of the United States District Court for the Southern District of Texas on this the 24 th day of April 2014, which provides for service on counsel of record in accordance with the electronic filing protocols in place. /s/ J. A. Canales J. A. Canales

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14 Case 2:13-cv Document 33-2 Filed in TXSD on 04/24/14 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION UNITED STATES OF AMERICA Plaintiff, VS. CIVIL ACTION NO. 13-CV C ALL FUNDS ON DEPOSIT AT OLD MUTUAL OF BERMUDA, LTD. CONTRACT NUMBER CX IN BERMUDA Defendant. ORDER GRANTING CLAIMANT S MOTION FOR LEAVE TO TAKE DEPOSITION BY REMOTE ELECTRONIC MEANS On this day, the Court considered Claimant, Jorge Juan Torres Motion for Leave to Take Deposition by Remote Electronic Means. After consideration of the pleadings, motion and applicable law, the Court finds that Claimant has shown good cause for his deposition to be taken by video teleconference and is not prejudicial to the government; THEREFORE Claimant s Motion for Leave to Take Deposition by Remote Electronic Means should be, and is GRANTED. IT IS, THEREFORE, ORDERED that Claimant s Deposition be taken by Remote Electronic Means. SIGNED this day of, UNITED STATES DISTRICT JUDGE