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Case 1:08-cr-00204-LY Document 6

Filed 07/19/11 Page 1 of 4


MOTION TO COMPEL DEFENDANTS ATTENDANCE AT DEPOSITION NOW COMES the United States of America, by and through the United States Attorney for the Western District of Texas, and submits this Motion to Compel Defendants Attendance at Deposition. In support of this Motion, the Government would show the Court the following: Background 1. On November 5, 2001, in Criminal Case No. CR 01-01010-001-PHX-SRB, United States District Court for the District of Arizona, Defendant John Jorgen Madsen pled guilty in this case to one count of Mail Fraud in violation of 18 U.S.C. 1341. An Amended Judgment filed on May 3, 2005, sentenced him to five years probation and ordered him to pay non-federal restitution in the amount of $2,554,000.00. 2. On July 29, 2008, there was a Transfer of Jurisdiction to the Western District of Texas. The case was assigned the above-styled case number [Doc. 1]. 3. When Defendants probation expired, he stopped making restitution payments, and the United States Attorneys Office began attempting to enforce the debt. As part of the enforcement process, the government scheduled a deposition of Defendant in Austin for March 10, 2011. Attached as Exhibit A is a copy of the deposition notice and the notification of

Case 1:08-cr-00204-LY Document 6

Filed 07/19/11 Page 2 of 4

delivery by Federal Express on February 2, 2011. 4. Defendant failed to appear, and the court reporter prepared a certificate of nonappearance, a copy of which is attached as Exhibit B. 5. The government sent a 15-day letter to Defendant by regular and certified mail on March 14, 2011, a copy of which is attached as Exhibit C. 6. Defendant failed to claim the certified mail, but he must have received the letter sent regular mail because on March 16, 2011, Terri Rose of the law firm of Wes Short & Associates called the undersigned counsel and arranged a new deposition date on behalf of Defendant. The new date was agreed to be April 11, 2011. Ms. Rose advised that the law firm would not be representing Defendant at the deposition, but was merely making this arrangement for him. 7. On April 6, 2011, Ms. Rose called again and requested a re-set of the deposition date to May 5, 2011, which was agreed to. 8. On May 4, 2011, Defendant faxed a letter to the undersigned counsel, requesting a third extension to allow him to retain Christie Williams as his attorney and, perhaps, to make a substantial payment on his restitution debt. A copy of the faxed letter from Defendant is attached as Exhibit D. 9. Ms. Williams never contacted the undersigned, but another attorney, Joshua Schroeder, did and the deposition was re-set again by agreement until May 20, 2011. Mr. Schroeder advised the undersigned at the time that he was still waiting to be formally retained. 10. On May 19, 2011, Schroeder advised the undersigned counsel that Defendant had never retained him and that he would not be attending the deposition. Defendant did not attend the deposition either. 11. On June 10, 2011, the undersigned notified Defendant by email, regular mail, and

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certified mail that no further extensions would be granted and that his deposition would be taken on July 18, 2011. A copy of the letter is attached as Exhibit E. 12. On July 18, 2011, Defendant emailed the undersigned the letter attached hereto as Exhibit F, in which he said that he would not be attending the deposition. Argument and Authorities The United States Attorney General has been charged by the United States Congress with the responsibility to collect unpaid criminal penalties ordered by United States District Courts as part of a defendants sentence. See 18 U.S.C. 3612(c). The United States Attorneys Offices enforce the payment of criminal debts by means of the Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C. 3001 et seq. The FDCPA provides the exclusive civil procedures for the United States to recover a judgment on a debt. 28 U.S.C. 3001(a)(1). The FDCPA also expressly allows for discovery in regard to a debtors ability to repay a debt owed to the United States. 28 U.S.C. 3015. Specifically, the statute states that ...the United States may have discovery regarding the financial condition of the debtor in the manner in which discovery is authorized by the Federal Rules of Civil Procedure in an action on a claim for a debt. 28 U.S.C. 3015. The Government therefore has the right to depose Defendant regarding his ability to pay his restitution. Fed.R.Civ. P. 37(a) allows the filing of a motion for an order compelling discovery, upon certification that the movant has in good faith conferred or attempted to confer with the party failing to cooperate with discovery. The undersigned certifies that the facts set out in the above Background section are true and correct and that she has made every effort to accommodate Defendant in regard to taking his deposition; however, he has clearly employed tactics of delay and diversion and now suggests that the deposition, if taken, should occur in Nevada, where he is

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temporarily residing. This is objectionable because Defendant resided in the Austin, Texas area when the deposition process began and he previously agreed to the Austin deposition site in his numerous requests for continuance of the deposition. Conclusion WHEREFORE, the United States prays for an order compelling Defendant to appear at the Office of the United States Attorney in Austin, Texas, on a date certain for the purpose of having his deposition taken. Respectfully submitted, JOHN E. MURPHY United States Attorney By: /s/ Susan B. Biggs Assistant United States Attorney 601 N.W. Loop 410, Suite 600 San Antonio, Texas 78216 (Tel.) (210) 384-7255 (Fax) (210) 384-7247 SBN (Texas ) 02312500

CERTIFICATE OF SERVICE I hereby certify that on the 19th day of July, 2011, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will notify the following: Austin Duty AUSA and I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participant: John Jorgen Madsen 2220 Dogwood Ranch Avenue Henderson, NV 89052 /s/ Susan B. Biggs Assistant U.S. Attorney