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United States v. Buck

United States District Court for the Southern District of New York

September 5, 2017, Decided; September 5, 2017, Filed

13 Cr. 0282 (VM)

Opinion

 [*620]  DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Defendant Stefan Buck ("Buck") moves to obtain testimony from foreign witnesses for use at trial in this case. ("Motion," Dkt. Nos. 69, 70.) Having reviewed the parties' submissions and for the reasons set forth below, the Motion is DENIED.

I. BACKGROUND1

Buck is a citizen and resident of Switzerland who, on or about June 2007, began working as a client-facing relationship manager at Swiss Bank No. 1, also known as Bank Frey. Buck later became the head of Bank Frey's private banking and eventually was named to the institution's three-person executive board.

On April 16, 2013, the Government filed the Indictment charging Buck and one co-defendant, [**2]  Edgar Paltzer ("Paltzer," together with Buck, "Defendants"), with defrauding the United States in connection with actions taken during the course of their employment at Swiss Bank No. 1. The Indictment alleges that, from about 2007 to 2012, Buck willfully and knowingly  [*621]  participated in a scheme with Paltzer and United States taxpayers to attempt to evade or defeat United States income tax obligations, in violation of 26 U.S.C. Section 7201, and to prepare tax returns, statements, and other documents made under penalties of perjury that Buck and his co-conspirators "did not believe to be true and correct as to every material matter," in violation of 26 U.S.C. Section 7206(1).

Buck then moved to dismiss the Indictment (see Dkt. Nos. 59, 60), which this Court denied on August 28, 2017. (See Dkt. No. 75.) In light of Buck's upcoming trial on October 10, 2017 (see Dkt. No. 65), Buck now brings this Motion requesting that: (1) this Court order the Government to grant safe passage to certain defense witnesses currently located in Switzerland; or, in the alternative, (2) this Court order that these defense witnesses be allowed to testify at trial via live two-way videoconferencing. (See Motion.) Additionally, Buck requests oral argument [**3]  on this Motion. Buck argues that the order he requests would be appropriate because: (1) the Government has an obligation in assisting the defense in securing potential witnesses; (2) failure to provide safe passage to these defense witnesses would deprive Buck of his due process rights; (3) depositions pursuant to Rule 15 of the Federal Rules of Criminal Procedure ("Rule 15") are not an adequate alternative, as any such depositions would likely be prohibited under Swiss law; and (4) if safe passage is not granted, extraordinary circumstances in this case justify the allowance of testimony via live two-way videoconferencing. Counsel for Buck, Marc Agnifilo, submitted a declaration in support of the Motion. ("Agnifilo Declaration," see Dkt. No. 69-1.) The Agnifilo Declaration describes in general terms the defense witnesses who are the subject of the Motion and the testimony Buck anticipates they will provide. (See id.) Specifically, the witnesses are all former employees of Bank Frey who, Buck asserts, will testify to Bank Frey's policies regarding providing tax advice to United States clients and state that Buck was advised by them and others that his conduct was lawful under both Swiss and United States law. (See Agnifilo Declaration, [**4]  ¶¶ 5, 6, 8.)

The Government opposes Buck's Motion, arguing that: (1) there is no precedent supporting Buck's extraordinary request that this Court order the Government to grant safe passage to these unidentified defense witnesses; (2) even if the Government were to provide safe passage, any of these defense witnesses would likely invoke the Fifth Amendment, preventing them from providing any meaningful testimony; (3) Buck has not shown that the proposed witnesses are truly unavailable and would provide material testimony such that testimony using live two-way videoconferencing would be warranted; (4) the Swiss government is unlikely to assist in securing any two-way videoconferencing testimony, making this solution unfeasible; and (5) to the extent that any of Buck's witnesses are Swiss citizens, they will not be subject to extradition or perjury charges and any two-way videoconference testimony would likely be unreliable. ("Opposition," see Dkt. No. 72.)

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271 F. Supp. 3d 619 *; 2017 U.S. Dist. LEXIS 145478 **

UNITED STATES OF AMERICA, - against - STEFAN BUCK, Defendant.

Prior History: United States v. Buck, 2015 U.S. Dist. LEXIS 5434 (S.D.N.Y., Jan. 9, 2015)

CORE TERMS

witnesses, safe passage, defense witness, depositions, unavailable, videoconferencing, two-way, Indictment, witness testimony, perjury charge, extradition, movant