The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
In this decision, the Court considers five motions filed by the defendants that relate directly or indirectly to court-ordered depositions that defendants took in Afghanistan:
- Defendants' motion for ruling on admissibility of depositions and deposition exhibits (docket no. 709);
- Defendants' motion to admit delivery tickets prepared by AZ Corporation (docket no. 710);
- Defendants' motion for adverse jury instruction based on failure to preserve evidence (docket no. 711);
- Defendants' motion to admit AZ Corp.'s accounting records (docket no. 713); and
- Defendants' motion to admit Top's Construction's business license and by-laws (docket no. 715).
In addition, the Court addresses defendants' motion to compel discovery (docket no. 749).
The defendants are charged with a variety of offenses arising from contracts the defendant entities had with the U.S. military to supply "bunkers and barriers" at Bagram Air Field (BAF) in Afghanistan. The government contends the defendants bribed U.S. military personnel to obtain the contracts and to get paid in full even though they delivered less than the full quantities for which the military had contracted. The indictment includes charges of bribery, fraud, and conspiracy.
The defendants include U.S. military personnel, contractor entites, and individuals affiliated with those entities. The U.S. military personnel defendants have pled guilty and are likely to be government witnesses at the trial or trials of the other defendants. The remaining defendants are Afghan nationals, though some of them have dual Afghan / U.S. nationality. Most if not all of the conduct underlying the indictment took place in Afghanistan.
The government conducted a ruse to lure several of the defendants, as well as several material witnesses, to travel to the United States. Once here, they were detained. The government eventually requested permission to take the depositions of the material witnesses to preserve their testimony for trial so they could return to Afghanistan. The judges who previously presided over the case adopted detailed procedures, at the government's behest, for the taking of the depositions. These included requirements for when a party had to produce documents that it proposed to use at the depositions.
Later, the defendants sought and were granted leave pursuant to Fed. R. Crim. P. 15(a)(1) to take depositions of various residents of Afghanistan. The court imposed the same document production procedures for these depositions that it had adopted for the material witness depositions. It is undisputed that none of the persons whose depositions were taken in Afghanistan will be available to testify at trial. Each of the witnesses is beyond the Court's subpoena power and has testified that he will not attend voluntarily.
1. Defendants' motion to admit delivery tickets (docket no.710)
Defendants seek a pretrial ruling that certain "delivery tickets" documenting the delivery of bunkers and barriers to the U.S. Army are admissible under Federal Rule of Evidence 803(6). Rule 803(6) permits its foundational requirements to be established by "certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Fed. R. Evid. 803(6).
A provision of Title 18, specifically, 18 U.S.C. § 3505, is a "statute permitting certification" under Rule 803(6). Section 3505 provides in pertinent part as follows:
(a)(1) In a criminal proceeding in a court of the United States, a foreign record of regularly conducted activity, or a copy of such record, shall not be excluded as evidence by the hearsay rule if a foreign certification attests that
(A) such record was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters;
(B) such record was kept in the course of a regularly conducted business activity;
(C) the business activity made such a record as a regular practice; and
(D) if such record is not the original, such record is a duplicate of the original; unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
(2) A foreign certification under this section shall authenticate such record or duplicate. . . . 18 U.S.C. § 3505(a).
Defendants have provided a sworn affidavit by AZ's controller, an Afghan national named Kharullah, pursuant to section 3505. The government does not concede the sufficiency of Kharullah's affidavit. However, it "agrees to stipulate to [the delivery tickets'] admissibility, conditioned on the admission of the statements by Kharullah . . . describing the delivery tickets' creation and purpose." Govt.'s Resp. to Defs.' Mot. to Admit Delivery Tickets at 1 (docket no. 747).
In their reply, defendants do not oppose the admission of Kharullah's statements. They request, however, that the Court rule "that the delivery tickets are admissible as evidence of receipt of the bunkers and barriers by the government." Defs.' Reply to Govt.'s Resp. to Mot. to Admit Delivery Tickets at 2 (docket no. 755). The government opposes this request. It contends that the delivery tickets and accompanying ...