## Facts

- Bebe Soraia Rouhani was stopped at Orly Airport in Paris while traveling to New York; French customs found about nine pounds of heroin concealed in her luggage.
- Rouhani told French officials the suitcases were given to her in Karachi and that she was to deliver them at JFK to a man known as “Qazi,” providing a description.
- U.S. authorities identified Mohamed Salim (also known as Abdul Qazi and Mohamed Ali) at JFK as matching the description and arrested him after he fled.
- During transport to the Metropolitan Correctional Center, Salim offered a U.S. Customs agent $20,000 to help him escape.
- Rouhani remained in French custody awaiting prosecution and could not be compelled to appear in the United States to testify.
- The district court authorized the government to take Rouhani’s deposition in France under Fed. R. Crim. P. 15 and letters rogatory, before a French examining magistrate.
- French procedure controlled the examination: Salim could not be physically present; questioning was conducted through written interrogatories submitted by counsel and posed by the magistrate; translation occurred through multiple interpreters.
- A break was provided for defense counsel to review the transcript with Salim; during a later session, the testimony was translated for Salim by telephone, and he could consult privately with counsel to propose follow-up questions.
- At trial, the court found Rouhani unavailable and allowed portions of the deposition to be read to the jury as former testimony under Fed. R. Evid. 804(b)(1), with a caution about limits on assessing credibility without live demeanor.

## Issues

1. Whether the Rule 15 deposition taken in France under foreign procedures (no defendant presence, written questions, magistrate-controlled examination) was properly authorized and conducted.
2. Whether the deposition was admissible as “former testimony” under Fed. R. Evid. 804(b)(1), including whether Rouhani was unavailable and whether Salim had an adequate opportunity and similar motive to develop her testimony.
3. Whether admission of the deposition violated the Sixth Amendment Confrontation Clause due to the absence of face-to-face confrontation and the indirect method of cross-examination.

## Decision

- The Second Circuit affirmed Salim’s convictions for heroin-distribution conspiracy and bribery.
- The court held the French deposition was properly taken under Rule 15 despite procedural differences required by foreign law.
- The court held the deposition was admissible under Rule 804(b)(1) because Rouhani was unavailable and Salim, through counsel, had an adequate opportunity and similar motive to cross-examine via written questions and follow-up.
- The court held admission of the deposition did not violate the Confrontation Clause because, in context, the process provided sufficient reliability and a meaningful chance to test the witness’s account.

## Legal Principles

- Rule 15 permits depositions to preserve testimony in exceptional circumstances and does not require that foreign depositions replicate domestic deposition procedures when foreign law dictates different methods.
- Former testimony is admissible under Fed. R. Evid. 804(b)(1) when the declarant is unavailable and the opposing party had an opportunity and similar motive to develop the testimony, even if cross-examination occurs through written interrogatories.
- Confrontation Clause analysis for foreign depositions focuses on whether the defendant had a meaningful opportunity to challenge the testimony and whether the procedure supplies adequate reliability safeguards; foreign methods are not excluded solely because they differ from U.S. practice.
- A foreign deposition may be excluded if the host-nation examination method is so incompatible with fundamental fairness or so prone to inaccuracy or bias that the testimony is inherently unreliable.

## Conclusion

The Second Circuit upheld the admission of a French deposition taken under host-country procedures, ruling that Rule 15 and Rule 804(b)(1) were satisfied by the witness’s unavailability and the defense’s meaningful chance to develop testimony through written questioning, and that the resulting use of the deposition at trial did not violate the Sixth Amendment.


United States v. Salim, 855 F.2d 944 (2d Cir. 1988)