United States v. Kehm

Charles Kehm and Steven Greenberg (defendants) were convicted of conspiring to import and distribute marijuana and cocaine from South America via the Bahamas. Nigel Bowe, an attorney and citizen of the Bahamas, was involved in the smuggling operation. Believing that the United States did not have an extradition treaty with the Bahamas, the prosecution did not charge Bowe. Bowe refused to come to the United States. Greenberg thought that Bowe could provide favorable testimony for him, so Greenberg requested to take Bowe’s deposition. The district court required evidence that Bowe was unavailable to testify before permitting the deposition, so Bowe submitted an affidavit stating that he would not come to the United States to testify. The United States did have an extradition treaty with the Bahamas, but the treaty only required the extradition for trial or punishment, not testimony at trial. Greenberg thus took the deposition with the court’s leave. Bowe’s testimony during the deposition ended up being helpful to the prosecution instead of Greenberg, so the prosecution attempted to use it. Greenberg then argued that the deposition testimony was inadmissible because Bowe was available to testify. Bowe submitted a second affidavit, this time stating that he was never unavailable as a witness. The district court found that Bowe’s second affidavit was not truthful and admitted Bowe’s deposition testimony. Following his conviction, Greenberg appealed, arguing that Bowe’s deposition testimony was inadmissible hearsay.