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-00294-C

§

ALL FUNDS ON DEPOSIT AT §

OLD MUTUAL OF BERMUDA, LTD. §

CONTRACT NUMBER CX4011696 §

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 CX4011696 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

Case 2:13-cv-00294 Document 33 Filed in TXSD on 04/24/14 Page 1 of 7

official in Mexico and that the contents of the account are proceeds traceable to a violation of 18

U.S.C. Section 1344.

3. 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-13-1075 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

5th

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,

Case 2:13-cv-00294 Document 33 Filed in TXSD on 04/24/14 Page 2 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 178074 (D. Arizona, Jan. 14, 2013); Gaia v. Brian Smith, et al, 2010 U.S. Dist. LEXIS

28545 (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, 76-77 (E.D.,

Pa. 2005); see Murphy v. Tivoli Enters, 953 F.2d 354, 359 (8th

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.

Case 2:13-cv-00294 Document 33 Filed in TXSD on 04/24/14 Page 3 of 7

14. 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 video-

teleconference 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.

Case 2:13-cv-00294 Document 33 Filed in TXSD on 04/24/14 Page 4 of 7

17. 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. Xunmei @ 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

Case 2:13-cv-00294 Document 33 Filed in TXSD on 04/24/14 Page 5 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. 03737000

Federal I.D. No. 1164

CANALES & SIMONSON, P.C.

Attorneys at Law

2601 Morgan Ave.-P.O. Box 5624

Corpus Christi, Texas 784465-5624

Telephone: (361) 883-0601

Facsimile: (361) 884-7023

Email: tonycanales@canalessimonson.com

ATTORNEY FOR CLAIMANTS

Case 2:13-cv-00294 Document 33 Filed in TXSD on 04/24/14 Page 6 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 24th

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

Case 2:13-cv-00294 Document 33 Filed in TXSD on 04/24/14 Page 7 of 7

Case 2:13-cv-00294 Document 33-1 Filed in TXSD on 04/24/14 Page 1 of 6

Case 2:13-cv-00294 Document 33-1 Filed in TXSD on 04/24/14 Page 2 of 6

Case 2:13-cv-00294 Document 33-1 Filed in TXSD on 04/24/14 Page 3 of 6

Case 2:13-cv-00294 Document 33-1 Filed in TXSD on 04/24/14 Page 4 of 6

Case 2:13-cv-00294 Document 33-1 Filed in TXSD on 04/24/14 Page 5 of 6

Case 2:13-cv-00294 Document 33-1 Filed in TXSD on 04/24/14 Page 6 of 6

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-00294-C

§

ALL FUNDS ON DEPOSIT AT §

OLD MUTUAL OF BERMUDA, LTD. §

CONTRACT NUMBER CX4011696 §

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 ___________________________, 2014.

_____________________________________

UNITED STATES DISTRICT JUDGE

Case 2:13-cv-00294 Document 33-2 Filed in TXSD on 04/24/14 Page 1 of 1