PR: ElcomSoft - New DMCA trial date set for December 2
Hinges on approval of Sklyarov, Katalov visa applications
18 October 2002
San Jose, Ca - A Pre-Trial Conference was held yesterday, Thursday the 17th at 2 pm in Judge Ronald Whyte's court in the case of US vs. ElcomSoft. The trial has been rescheduled to begin December 2, 2002.
Judge Whyte was informed that neither Sklyarov nor Katalov were granted visas to enter the US for the upcoming trial. Duane Morris Partner, Joseph Burton, lead attorney, for ElcomSoft stated, in addressing the court: "This issue forces me to file a motion to dismiss the case based upon the 6th Amendment."
The U.S. Attorney then suggested that the videotapes of the Deposition of witness Dmitry Sklyarov, taken last December, could be used in court as a substitute for having Sklyarov present at trial. However, Burton replied, "the concept of 'unavailability' simply does not apply to this case, since Sklyarov is indeed available and willing to be in court as a witness but is refused his opportunity by the US State Department."
Marina Serebryanaya, immigration attorney for Dmitry Sklyarov and Alexander Katalov noted: "It is, of course, ironic that while the U.S. Attorney's Office needs the witnesses here for the case to go forward, the U.S. Consulate would deny their visa applications. Litigating a case in a foreign country would be hard enough for any company and for ElcomSoft having to fight this fight long distance is unduly burdensome." Ms. Serebryanaya continues: "at the hearing yesterday, Judge Whyte recognized this situation as 'not a simple one.'"
Upon hearing about the US State Department's visa denial for client Dmitry Sklyarov, John Keker, lead attorney for Dmitry, commented "Dmitry went home to Russia with the clear understanding he would have an opportunity to testify at the ElcomSoft trial, where he would explain why he and his employer are completely innocent of the charges. Now that the government won't let him into the country to give that testimony, the prosecutors should dismiss the charges. To go ahead without him would be shameful."
The court will hear oral arguments on November 21, 2002 surrounding briefs on jury instructions filed by Joseph Burton and the US Attorney. Key issues are the defendant's Opposition to the US Government's "Proposed Instruction On Willfulness And Opposition To Governments Motion In LIMINE."