Case of the Day: United States v. One Gulfstream G-V Jet

The case of the day is United States v. One Gulfstream G-V Jet Aircraft Displaying Tail Number VPCES, Its Tools and Appurtenances (D.D.C. 2014). As the name of the case suggests, the United States brought a civil action in rem seeking forfeiture of a jet aircraft. The government alleged that the aircraft had been purchased by Teodoro Nguema Obiang Mangue, Second Vice President of the Republic of Equatorial Guinea and son of the country’s president, using the proceeds of extortion, public corruption, embezzlement, and theft. Nguema submitted a verified claim to the aircraft. The government served a notice of deposition requiring Nguema to appear for a deposition in Washington. Nguema moved for a protective order, seeking to require the deposition to take place either on written questions, remotely by telephone or videoconference, or in person in Equatorial Guinea. The judge granted the motion.

Some cases have held that where a person makes a claim to property in a forfeiture case, he can be required to attend a deposition in the forum district. This presumption is supported by the fact that Nguema filed a claim in Washington and retained Washington counsel to represent him. On the other hand, the general presumption is that a deposition should take place where the deponent resides or has his place of business. (The rule may be different for plaintiffs, but Nguema is more like a defendant than a plaintiff since the government is trying to seize what it alleges is his property, even though technically Nguema is neither a plaintiff nor a defendant). The judge recognized that both parties face significant inconvenience and expense no matter where the deposition will be held and decided against applying any presumption to decide the question.

The judge looked to principles of foreign sovereignty. The government took the position that compelling a deposition to take place in Equatorial Guinea might infringe that country’s judicial sovereignty. But that argument was weak in this case, since Nguema is a high government official, and he himself proposed taking the deposition in his country.

The judge also looked to the need for court supervision and could find no reason to conclude that it could supervise a deposition in Equatorial Guinea less effectively than a deposition in Washington, particularly because it was not even clear that there would be any disputes requiring the court’s intervention.

The fact that the deposition’s scope would be limited to gathering evidence concerning Nguema’s interest or lack of interest in the aircraft weighed against ordering Nguema to travel to Washington. “Ordering Nguema, a vice president of a foreign nation, to travel to Washington, DC for a limited scope of questioning would be expensive, inconvenient and inefficient.”

Last, the court considered whether it was practical to take the deposition in Equatorial Guinea. The judge found that although the government of Equatorial Guinea had said it would not comply with an order to forfeit the aircraft, there was no evidence it would not allow the deposition to proceed, and Nguema’s statements suggested that the deposition would be allowed to proceed. Nguema had already agreed that the deposition could be conducted pursuant to the Federal Rules of Civil Procedure. He held that either a videoconferenced deposition or an in-person deposition would be acceptable and provided an adequate alternative to a deposition in Washington.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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