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United States v. Rosenau

United States District Court for the Western District of Washington

April 24, 2012, Decided; April 24, 2012, Filed




This matter comes before the Court on Defendant Henry Rosenau's motion for reconsideration of the Court's decision to admit the live video testimony of witness Kip Whelpley from a Canadian courtroom during Defendant's trial. (Dkt. No. 97.) Having reviewed Defendant's motion and the Government's response (Dkt. No. 115), and having held oral argument April 20, 2012, the Court DENIES the motion for reconsideration. The Court finds that the admission of live video testimony is constitutional in this case because it necessary to further an important public policy and because the reliability of Whelpley's testimony is otherwise assured.


Defendant Henry Rosenau, a Canadian citizen, is on trial in the U.S. District Court for the Western District of Washington [*1111]  on charges stemming  [**2] from his alleged participation in 2004 and 2005 in a conspiracy to smuggle marijuana by helicopter across the Canadian border into the United States. (Dkt. No. 4.) The Government alleges that Rosenau is one of the pilots who flew helicopters with marijuana loads. (Id.) Rosenau contested his extradition and was not brought to the United States until April 2011. (Dkt. No. 17 at 2.)

Kip Whelpley, a Canadian citizen, is alleged to be another member of the conspiracy. (Dkt. No. 79 at 4.) Whelpley is alleged to have accompanied Rosenau on helicopter trips between the United States and Canada, received multiple loads of marijuana from Rosenau, and given money to Rosenau. (Id.) Whelpley was arrested in 2008, pleaded guilty to one count of conspiracy to import marijuana, and was sentenced to 20 months in prison. United States v. Whelpley, Case No. CR05-407-RSM, Dkt. No. 38 (W.D. Wash.). Whelpley has since returned to Canada. (Dkt. No. 27 at 3.) His plea agreement included a promise to return to the United States testify in the case against Rosenau. (Dkt. No. 55 at 4.) Whelpley's anticipated testimony encompasses nearly all criminal conduct charged against Rosenau. (Dkt. No. 79 at 4.)

Through  [**3] various legal maneuvers in Canada, Defendant Rosenau has effectively made it impossible for Whelpley to testify against him in person at the present trial. Rosenau's Canadian legal activities first came to the Court's attention in October 2011, when the Government presented evidence that Rosenau, through his agents, filed a lawsuit against Whelpley in his hometown in British Columbia, and that he obtained a default judgment preventing Whelpley from coming to the United States. (Dkt. No. 54 at 5-11.) Rosenau also filed similar suits against the Royal Canadian Mounted Police. (Id.) The Government has stated that it cannot have the Canadian default judgment against Whelpley set aside without Whelpley's participation. (Id.)

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870 F. Supp. 2d 1109 *; 2012 U.S. Dist. LEXIS 58080 **


Subsequent History: Motion denied by United States v. Rosenau, 2012 U.S. Dist. LEXIS 62313 (W.D. Wash., May 3, 2012)

Prior History: United States v. Rosenau, 2011 U.S. Dist. LEXIS 120371 (W.D. Wash., Oct. 18, 2011)


video, deposition, public policy, present case, confrontation, cross-examine, reliability, public policy interest, criminal trial, courtroom, marijuana, argues