concurring and dissenting:
The majority affirms the district court’s denial of Ismaili’s motion to depose witnesses abroad on the grounds that Ismaili did not sufficiently show an inability to produce some witnesses and did not show the testimony of others to be sufficiently material. I respectfully dissent from part II of the majority’s opinion for two fundamental reasons. First, I believe that the majority applies a standard of proof to a defendant’s request for depositions that is significantly higher than the standard courts have used for deposition requests by the government. That standard conflicts in part with this court’s instruction in United States v. Wilson, 601 F.2d 95 (3d Cir.1979). In my view, if any difference between the standard of proof for government and defendant requests for depositions in criminal cases is appropriate, constitutional values require a more lenient approach to requests by the defendant. Second, I take exception to the majority’s rendition of the facts relevant to several witnesses.
Applying to Ismaili’s deposition request the test applied in various cases to government deposition requests (and that which at all events is required by Rule 15(a) of the Federal Rules of Criminal Procedure), I conclude that the district court abused its discretion in denying the request. However, I do join in parts IIIA and IV of the majority opinion,1 and I concur in the result *170reached in part IIIB for the reasons set forth in the margin.2
I. General Standards for Foreign Depositions
I agree with the majority that the 1975 amendment to Rule 15(a) has not changed the general criteria for evaluating the application for a deposition by a party to a criminal case. The district court should still focus on the unavailability of a witness and the materiality of his testimony. See Maj.Op. at 160. However, in my view, courts should not apply these standards in a grudging or technical manner. Depositions are not favored primarily because of our preference for the attendance of witnesses at trial, which provides the jury with an opportunity to observe a witness’s demeanor. See Wilson, 601 F.2d at 97. On the other hand, the denial of a deposition may lead to the denial altogether of the testimony of a material witness, a limitation on the trial’s truthfinding function far more significant than the mere denial to the jury of the opportunity to view the witness in person. Moreover, the development of videotape technology, providing a clear picture of a deponent and his testimony at low cost, has made it much more possible for a judge or jury to make critical credibility assessments without witnesses being present than ever before, thus undercutting one of the main arguments against deposition testimony.
The cases in the Second Circuit and in this court recognize the importance of depositions where needed and apply a pragmatic approach to the unavailability and materiality criteria. Because the Second Circuit cases deal with unavailability, I take them up first.
In determining whether the government had justified a deposition of a witness abroad, the Second Circuit has stated “[unavailability is to be determined according to the practical standard of whether under the circumstances the government has made a good-faith effort to produce the person to testify at trial." United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir.1984), cert. denied, 469 U.S. 1075, 105 S.Ct. 571, 83 L.Ed.2d 511 (1984) (citations omitted). “[T]he lengths to which the prosecution must go ... is a question of reasonableness.” Id., quoting California v. Green, 399 U.S. 149, 189 n. 22, 90 S.Ct. 1930, 1951 n. 22, 26 L.Ed.2d 489 (1970) (Harlan, J., concurring). Accordingly, the court upheld a district court order for the depositions of two Swiss witnesses despite the fact that they stated their willingness to come if certain conditions were met. One witness had demanded certain payments for subsistence and reimbursement for time away from his business; the other merely sought money for time away from business. The court held that the government’s refusal to meet these demands was not unreasonable. 739 F.2d at 709.
In United States v. Sindona, 636 F.2d 792 (2d Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 302 (1981), the court took a similarly pragmatic approach in approving the district court’s approval of the government’s request for the depositions of four witnesses. The government presented no evidence whatever of unavailability of two witnesses but simply stated in its motion to the court that “two of the prospective witnesses had specifically refused to come to the United States ...” Id. at 803. All that was shown with respect to the other two witnesses was that they “had not yet obtained the necessary travel documents on that date.” Yet the *171court affirmed, noting that “there was ample reason to fear that all four witnesses would fail to appear at trial.” Id.
The standard for judging materiality is similarly practical. Because parties make deposition requests before trial, the court cannot know for sure what either side will be able to prove at trial and what evidence will occupy a position of importance. Indeed, a court can never be certain what evidence a jury will or will not find credible. The test applied by this Court in Wilson was not exacting. We held that the district court should have ordered the deposition of an unavailable witness on the defendant’s request because his affidavit established that the “testimony was relevant and, if believed, would have been exculpatory to some extent.” 601 F.2d at 98.
In United. States v. Steele, 685 F.2d 793 (3d Cir.1982), pragmatic considerations involved in securing the testimony of foreign witnesses persuaded us to relax the standard even further. In that case of corporate fraud and bribery, we upheld an order for depositions of witnesses in Bermuda despite the government’s admitted failure to demonstrate the materiality of the proposed testimony. Id. at 808-09. We relaxed the materiality requirement because of the difficulty of appraising the testimony of foreign witnesses before their depositions were taken and because of the desire “to avoid denying important evidence to all the parties.” Id. at 809.
Like Johnpoll, Sindona and Steele, most Rule 15(a) decisions deal with deposition requests by the government. In my view, at the very least this same pragmatic approach should apply to requests by the defendant. When the government requests a deposition, constitutional considerations inveigh against the request because the request impinges on the defendant’s right under the Confrontation Clause of the Sixth Amendment to “face-to-face confrontation at trial.” Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980); see also cases cited id. at 63 n. 5, 100 S.Ct. at 2537 n. 5. In contrast, when a defendant requests a deposition, no Confrontation Clause problem exists, and values protected by the same amendment’s Compulsory Process Clause favor the request. As the Supreme Court has observed, the right of compulsory process is a fundamental right of due process because “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense ...” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). Even if the right to compulsory process is not technically at issue because a potential witness lies outside the jurisdiction of the court,3 depositions similarly insure the defendant’s ability to procure the testimony of all potential witnesses in his defense and thereby protect the values embodied in the clause and in our criminal justice system. Moreover, there are at least some due process limits on the district court’s authority to deny them.4
*172Although it arises in a different context,5 the Supreme Court’s recent opinion in Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), is nonetheless instructive. The Court, invoking the procedural safeguards of the Due Process and Compulsory Process Clauses, unanimously restated that “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Id. at 2146 (citations omitted). “ ‘The Constitution ... defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment’ ... We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard.” Id. (citations omitted). It can hardly be called procedurally fair for the district court to disallow a defendant’s request for deposition testimony, by employing a standard stricter than that applied to requests by the government.
As a practical matter also, defendants almost always have less ability to procure foreign witnesses at trial than the government. The government may reasonably be expected to request a passport from a foreign government, for example, but a defendant’s request is likely to have little or no weight. Thus, a defendant should be entitled to at least the same practical standard of unavailability and materiality accorded the government in the case law. I proceed now to evaluate the district court’s rulings against this standard.
II. The Moroccan Witnesses
The majority does not justify the denial of depositions for the Moroccan witnesses on grounds of materiality, and because the evidence of their materiality was clear, I set it forth only in the margin.6 Instead, asserting that the evidence on the subject is “equivocal,” the majority claims that Ismaili did not introduce sufficient proof of these witnesses’ unavailability.
The majority correctly summarizes the testimony. Ismaili’s brother Rachid was willing to come to the United States but had an invalid passport. In light of the routine Moroccan practice of denying passports, he was not sure that he could obtain one. The lithographer, Ezzarai, also had no passport, and apparently would be unable to obtain one unless he paid his back taxes. Because he was in disfavor with Moroccan authorities, he would probably have had difficulty getting a passport in any event. Although he was extremely *173reluctant to come, he suggested, in his most encouraging statement, that he would be willing to come if “you get me a passport, if you pay my back taxes, and if you pay for my wife and children to live.”
The majority finds this evidence insufficient. But the evidence of Rachid’s and Ezzarai’s unavailability corresponds directly to the evidence of unavailability that justified depositions of government witnesses in Johnpoll and Sindona. If the mere fact that Swiss citizens had not yet obtained travel documents justified the taking of a deposition abroad in Sindona (despite the influence of our government to assist them), we cannot require Ismaili to obtain a passport for his brother from a Moroccan government that disburses passports reluctantly. Similarly, if the government may depose a witness abroad rather than paying subsistence and reimbursement for time away from business, Ismaili should have no obligation to pay back taxes for Ezarrai and to support his family while Ezzarai comes to testify. Furthermore, even if Ismaili did offer such payments, Ezzarai seemed unlikely to appear. Applying a practical standard, Ismaili demonstrated unavailability.
The majority also finds significance in Ismaili’s failure to prove that he offered to cover the witnesses’ expenses if they travelled to the United States. That fact, however, is simply irrelevant here. The evidence indicates that expenses were not a concern of Rachid, who was willing to come if a passport could be obtained, and were not sufficient inducement for Ezzarai, who demanded (and needed) back taxes to obtain a passport. In addition, no evidence in the record suggests that Rachid or Ezzarai believed their expenses would not be covered. We can always suggest statements a defendant might have made to a witness to induce him to appear, but in the absence of evidence that such a statement might have been dispositive, the majority’s demand for one particular statement is technical and unfair.
III. The Syrian Witnesses
For the Syrian witnesses, the majority finds fault not with Ismaili’s proof of unavailability, which was clear,7 but with the proof of materiality. In doing so, in addition to other flaws in its analysis, the majority fails to focus on the specifics of the indictment. The indictment asserts that Ismaili was guilty of fraud not merely because of exaggerated statements about the state of his sales operations but because all efforts Ismaili made to find business occurred as an artifice for obtaining money for color separations. The core of the artifice was “a bait and switch” sales technique in which Ismaili told prospects that he would advertise their products at no cost if they would provide color separations. Ismaili would then convince the prospects to pay him money for the preparation of color separations with no intention of making them. As alleged by the government, all misstatements occurred for the purpose of advancing this scheme.
In light of this indictment, any evidence demonstrating that Ismaili’s business scheme was not a complete fabrication but was a legitimate, even if exaggerated business plan, helps to negate the government's theory of the offense. The proffered testimony of the Syrian witnesses obviously would do so in important particulars.
*174Specifically, Ismaili contended that a group of his agents in Saudi Arabia had started to organize a sales team. One of them, A1 Ahmed, had gone to Lebanon and recruited people in Lebanon and Syria. Although A1 Ahmed had died, the Syrian witnesses lent credibility to that theory. The most important of them, Bassam Al Khtib, stated that he had heard of Incoser (Ismaili’s company) in 1979 when he had met A1 Ahmed in Beirut on a business trip and had discussed the plans to sells vans. He stated that he saw photographs of several models and received a sales territory, and recruited nine sales people, each of whom contributed $8,000. He turned this money over to A1 Ahmed. Between them, the sales people developed many prospects for the vans. The other sales people were all recruited by Bassam and generally supported his story.
The majority disparages this testimony because it did not relate to the preparation of the color separations or promotional literature. The majority also claims that it substantiates the existence of a sales team only through hearsay and that proposals to employ the witnesses in the future could not demonstrate that Ismaili had a sales team “already in place.”
The failure of this testimony to relate to the color separations, however, obviously does not make it immaterial. The majority itself points to the importance in the government’s case of Ismaili’s allegedly false statements regarding the existence of a sales force. Any testimony relating to the existence of a sales force is obviously therefore material. More generally, the government’s indictment alleges that Ismaili had no legitimate business plans. The Syrian witnesses clearly contradict that claim, and their testimony would make more credible even Ismaili’s story of the color separations.
Furthermore, the testimony of the Syrian witnesses would not be hearsay because they would testify about their own participation. Obviously, if Ismaili was engaging in the business he claimed, his sales force would not necessarily have contact with him but rather with other members of the organization. Their lack of direct contact with Ismaili supports his claim.
Finally, the majority’s claim that the Syrian testimony shows only a prospective sales force contradicts the evidence. The testimony shows that a sales force existed, albeit one that had not yet completed sales because the business was still in its infancy-
More troubling than the majority’s discussion of the details, however, is its general approach. The majority seems to be of the view that proffered testimony is insufficiently material unless it would prove the truth of all the statements the government alleges Ismaili made, i.e., unless it would defeat the government’s entire case. But this approach contains two fallacies. First, the government has not yet proven its case; it has only alleged that Ismaili made certain statements and we do not yet know the sinews of the government’s proof. If Ismaili can establish that he did not make all the statements the government claims he made, he may need only to prove the truth of statements that are corroborated by the foreign depositions.
Second, the majority ignores the manner in which a defendant pieces together his case. As Ismaili argues:
A defendant is rarely so lucky as to possess a single piece of evidence which by itself conclusively proves his innocence. Instead successful defenses more often result from piecing together many small bits of evidence which, viewed as a whole, create a reasonable doubt in the minds of the jury.
Appellant’s Reply Brief at 2.
Because many of the government’s claims may not be provable and because those that are may be explained away only with a combination of different witnesses, testimony need not be completely exculpatory to justify a deposition, but need only be “exculpatory to some extent.” Wilson, 601 F.2d at 98. See also United States v. Bronston, 821 F.Supp 1269, 1272 (S.D.N.Y.1971) (defendant need not “show the testimony will surely acquit him” to show that testimony is material). So long as testimony, if believed, would negate a significant *175portion of the government’s claims, it is material.
Because the Moroccan and Syrian witnesses are probably unavailable and their testimony crucial to Ismaili’s defense, the majority sanctions an order by the district court that effectively deprives Ismaili of any chance to defend himself against the government’s charges. Recognizing the need for foreign testimony in cases involving allegedly fraudulent international business transactions and the limitations upon the subpoena power of a court, this Court and others have been sympathetic to deposition requests by the government. See Steele, 685 F.2d 793 at 809; Bronston, 321 F.Supp. at 1272 (“fact that a necessary witness is a foreign national domiciled abroad and beyond the subpoena power of the court ... is an impelling consideration” in decision to grant deposition). By upholding the district court’s order, the majority upholds a double standard directly contrary to our constitutional values. Reflecting the fundamental injustice of convicting, a defendant without providing every opportunity for a defense, those values favor a liberal treatment to requests by a defendant, instead of the unrealistic, technical approach favored by the majority here.
IV. The Saudi Witnesses
The thrust of my disagreements with the majority’s analyses of unavailability and materiality of the Moroccan and Syrian witnesses applies also to the majority’s analysis of the Saudis. The majority’s suggestions that the Saudi witnesses did not offer exculpatory evidence is particularly unsupportable. The Saudi telex stated that a Saudi sales force had existed “headed by Wasfi” and made up of Wasfi, Fawzi A1 Nour and Ahmed Said. The telex also spoke of the efforts made by A1 Ahmed to organize sales people in Lebanon and Iraq and confirmed that the project had died because of “some happenings in the area.” For the same reasons as apply to the testimony of the Syrian witnesses, the Saudis’ testimony would not be hearsay and was material to rebut substantial portions of the government’s case.
The majority’s discussion of unavailability is more persuasive. The only evidence of the Saudis’ unavailability comes from their telex, in which they stated that they “are not willing to spend time and or money to come to the U.S.A.” Unlike the other witnesses, at least these witnesses listed the need for reimbursement as a factor in their unwillingness to appear at trial.
The majority, however, does not hold that a defendant is necessarily available if he is willing to travel to this country if, but only if, his expenses are paid. (The majority states only that the demand for reimbursement “does not necessarily mean that he is- unavailable.” Maj.Op. at 160.) I, too, would not reach this issue. Given the need to obtain other depositions in the Middle East, depositions were appropriate of the Saudis in case they are unable to appear. The court could have postponed consideration whether actually to admit the depositions as trial evidence until a more definitive indication of the Saudi witnesses’ availability or unavailability came to the court’s attention. See United States v. Sines, 761 F.2d 1434, 1439 (9th Cir.1985) (deposition is appropriate in case witness will be unavailable but court should postpone question of admissibility for trial).8
*176V. Standard of Review
An important feature of the majority’s opinion is its deference to the decision of the district court. We can only overrule the district court’s decision if it is an abuse of discretion. See Wilson, 601 F.2d at 97-98; Johnpoll, 739 F.2d at 708. Under any view of that standard, I believe the majority is incorrect, and that the district court did abuse its discretion in denying Ismaili’s motion for leave to take depositions. I have explained both the substantive and fact-specific reasons for my view that Ismaili has established that “due to exceptional circumstances it [was] in the interest of justice,” Fed.R.Crim.P. 15(a), to grant the request for depositions. I add only that I view the denial of the deposition requests as calling into serious question the ability of Ismaili to present a defense.
In my view the scope of the district court’s discretion in this case was not broad. “Knowing simply that one is invested with discretion does not tell much. The crucial inquiry, necessarily, is the extent of the discretionary power conferred.” R. Aldisert, The Judicial Process 742 (1976). In a comparable situation, many circuits have held that a district court’s authority to deny a defendant’s request for a subpoena, even at government expense, is highly limited: an indigent is entitled to a subpoena if he “avers facts which, if true, would be relevant to any issue in the case ... unless the averments are incredible on their face, or unless the Government shows ... that the averments are untrue or that the request is otherwise frivolous.” United States v. Sims, 637 F.2d 625, 627 (9th Cir.1980). See also United States v. Barker, 553 F.2d 1013, 1020 (6th Cir.1977); United States v. Hegwood, 562 F.2d 946, 953 (5th Cir.1977), cert. denied, 434 U.S. 1079, 98 S.Ct. 1274, 55 L.Ed.2d 787 (1978); Greenwell v. United States, 317 F.2d 108, 110 (D.C.Cir.1963). Other circuits, which permit broader discretion, still hold that “the Fifth and Sixth Amendments require that the trial court give due consideration to the constitutional rights involved.” United States v. Greschner, 802 F.2d 373, 378 (10th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987).
Although the preference for live testimony counsels in favor of a slightly higher standard of necessity before granting a deposition, appellate courts must be vigilant to assure that the defendant’s right to present a full defense has not been compromised. In my view, a district court has no discretion absent some strong reason to deny a deposition when the defendant has presented credible, unrefuted evidence that a witness is unavailable and would provide material, exculpatory testimony. Cf. Wilson, 601 F.2d at 98-99.
Broad deference to the district court’s decision is particularly inappropriate in this case. On Ismaili’s original motion, the district court stated that it did not find the evidence sufficiently persuasive either of unavailability or of materiality. The court, however, provided no explanation of its reasoning. On Ismaili’s renewed motion, after presentation of the affidavits obtained by Thompson and Thompson's live testimony, the court reaffirmed its denial of the motion without any explanation whatever.
We have, in the past, refused to uphold a district court’s denial of a subpoena in the absence of a clear articulation of reasons. See Paoni v. United States, 281 F. 801, 804 (3d Cir.1922). More generally, the absence of an explanation for a discretionary decision that has an important impact on a party’s rights has often caused appellate courts to review that decision skeptically or simply to remand for a statement of reasons. See Batson v. Neal Spelce Associates, 765 F.2d 511, 516 (5th Cir.1985) (refusing to review district court’s dismissal *177of complaint absent articulation of reasons), on remand, 112 F.R.D. 632 (W.D.Tex.1986), aff'd, 805 F.2d 546 (5th Cir.1986); Freeman v. Franzen, 695 F.2d 485, 494 (7th Cir.1982) (refusing to uphold district court’s discretionary judgment on attorney’s fees without articulation of reasons), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983). In the absence of any explanation why the district court considered the evidence presented by Thompson inadequate, we should not bend over backwards to uphold a chain of reasoning that the court might not even have applied.
VI. The Impact of Changed Circumstances
Even if we were to show undue deference in this case, changed circumstances still mandate a remand. At the time the district court denied Ismaili’s motions, the government represented to the court that it would obtain Ezzarai’s presence at trial. Because the government’s represenation undermined Ismaili’s claim that Ezzarai was unavailable, the district court may have assumed that Ismaili had no need to depose Ezzarai. Furthermore, assuming that Ezzarai would be available and that he was probably the most important foreign witness, the district court may have reasoned that depositions for the other witnesses were less necessary. In the conditional guilty plea, however, and for purposes of appeal, the government stipulated that it would not produce Ezzarai at trial. Thus, while Ezzarai’s unavailability may have convinced Ismaili that proceeding to trial was impossible, the district court might have ordered depositions at the time it first considered Ismaili’s motion had it known that Ezzarai would be absent.
“A trial judge’s determinations, though correct at the time when made, may be reversed because ... events that develop later may cast a different light on an earlier ruling. Though such circumstances may prompt a reversal by an appellate court, they obviously were not known to the trial judge when he made his ruling.” Wilson, 601 F.2d at 98-99. In this case, the government’s concession that it would not or could not produce Ezzarai places the district court’s earlier ruling in a different light. Even if the district court’s ruling was not an abuse of discretion at the time, the government’s concessions at least mandate a remand for the court’s renewed consideration.
For all the foregoing reasons, I would vacate Ismaili’s conditional plea of nolo contendere and remand the case for further proceedings.
. The majority's discussion of preindictment delay (part IV) is two-pronged. I join fully in the majority’s first holding that delay was not intentional. I join in the second facet of the majority's discussion (prejudice) on the understanding that the majority holds that the delay, while prejudicial, was not sufficiently prejudicial to warrant dismissing the case. In my view, the death of A1 Ahmed, the organizer of Ismaili’s alleged sales team, was probably prejudicial. Ismaili has not, however, met the stringent standard of proof necessary to justify dismissal of his case for pre-indictment delay under the Supreme Court precedents.
. I do not join the majority’s discussion in part IIIB only because the majority seems to suggest that the cable which Ismaili claims the government should have shown the grand jury was not exculpatory at all. In my view, it was somewhat exculpatory and it was also properly Brady material. I nonetheless concur in the result. The prosecutor made a persuasive argument why he did not consider the cable exculpatory, indicating that official’s good faith. In addition, the cable was not so exculpatory that its presentation to the grand jury would likely have persuaded that body not to indict. Even if we were to join those courts that have insisted on the presentation to the grand jury of exculpatory evidence that “might reasonably be expected to lead the jury not to indict," United States v. Ciambrone, 601 F.2d 616, 623 (2d Cir.1979), the good faith failure to present this cable to the grand jury would not warrant quashing the indictment.
. A number of state courts have held that the compulsory process clause does not apply to subpoenas for witnesses outside the jurisdiction of the court. See State v. Twoteeth, 711 P.2d 789 (Mont.1985); People v. Trice, 101 A.D.2d 581, 476 N.Y.S.2d 402 (1984). Whether that clause may impose some obligations on the court and government even in that situation, however, neither the majority nor I address.
. In United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), the Supreme Court consciously borrowed from due process cases in analyzing a compulsory process challenge and relied upon compulsory process reasoning in rejecting a due process challenge. Essentially both guarantees insure the defendant a right to present a defense. When depositions serve that purpose and when they are within the power of the government to authorize, the due process clause may restrict the authority of a district court to deny them.
In United States v. Kowalchuk, 773 F.2d 488 (3d Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 303 (1986), this court, sitting in banc, appeared to accept the principle that compulsory process clause values, working through the due process clause, created some kind of a guarantee to the testimony of foreign witnesses if their testimony was material even when the government was without power to procure that testimony. In that case, the government sought to deport the defendant to the Soviet Union on the grounds that he had participated in Nazi atrocities to conceal which he had made misrepresentations on his application for admission to this country. On appeal, the defendant claimed, inter alia, that he had been denied due process *172because the Soviet Union had denied his lawyer access to witnesses. Citing Valenzuela-Bernal, we did not reject the defendant’s general theory but instead rejected the defendant’s claim because he had made no showing that "any testimony has been excluded that ‘would have been material and favorable to his defense.’” 773 F.2d at 497.
. Crane involved the admissibility of the circumstances surrounding an interrogation for purposes of determining credibility of the ensuing confession.
. The depositions and testimony of Ismaili’s investigator, Thompson, indicated that Ismaili’s brother Rachid would testify to knowledge of and participation in his brother’s sales plans. Rachid would testify that he had dispatched someone to Egypt to begin forming a sales team; that he had hired Ezzarai to prepare color separations; that the separations were prepared in Morocco because of restrictions preventing Ismaili from removing his funds from Morocco; and that the Iran/Iraq war had caused the project’s abandonment because of its effects on consumer confidence. These statements supported substantial portions of Ismaili's version of events to the grand jury. In particular, the evidence involving the color separations is crucial because, as I discuss below, the indictment charges that Ismaili's fraud lay in his solicitation of funds for color separations without intending to have them made. Testimony by Rachid about exactly what he told Ismaili is also highly material because it might indicate whether any misleading statements by Ismaili to sellers about the state of the sales team, see Maj.Op. at 169, were fraudulent or were innocent mistakes.
Ezzarai's testimony about receiving film and payment for color separations is obviously also highly material to the case. It bears on whether Ismaili solicited money for color separations intending to use the money for that purpose. Indeed, far from disputing Ezzarai’s materiality before the district court, the government assured the court that Ezzarai was a "key witness,” who possessed “pivotal information concerning the defendant’s guilt or innocence.” At that point, the government planned to bring Ezzarai to the United States on its own, and only in conjunction with Ismaili’s guilty plea did the government concede that it would not produce Ezzarai.
. Because the majority does not actually concede the Syrian witnesses’ unavailability, I summarize briefly the evidence from transcripts of Thompson’s interviews with them. All stated that they were absolutely unavailable to come and gave various reasons: Bassam Al Khtib stated that he was unable to come because he was still subject to the draft; Hassan Al Holibi stated he was unable to come for "personal reasons" and because of the draft; Assad A1 Laham stated he was unable to come because he did not think he would have the time free from his company; Mohmoud A1 Manzalgy stated he could not come because a heart problem kept him from travelling far. Thompson also stated that he thought these stated reasons might have veiled a more fundamental “heavy prejudice against having anything to do with the United States.” (215-16). In addition, Thompson testified that he had told the witnesses that Ismaili would pay their expenses and that monetary considerations had nothing to do with their reasons for attending trial. (The transcript of the Manzalgy interview reveals this statement about expenses.)
. The majority also suggests that it "could rest [its] entire disposition of this appeal” on the grounds that Ismaili asked not only for the right to take foreign depositions but also for government funding in the same motion, and Ismaili provided no proofs that he was unable to bear the expenses himself. Maj.Op. at 160 n. 5. In my view, this suggestion is untoward. Although Ismaili placed both requests in the same motion, there is absolutely no indication that the request for depositions was conditional on the request for government payment of expenses, no indication that the court understood it to be, and no suggestion by the government that it or anyone else considered the request conditional. The district court did not indicate in any way that its desire not to place the funding burden on the government was even one factor in its deliberation. Indeed, at oral argument, the government explicitly refused to endorse suggestions from the bench that the funding issue could provide a basis for affirmance. The majority thus seems to be justifying the district court’s order by positing a misunderstanding between the parties and the district court that never occurred.
*176Furthermore, even if the district court had followed the majority’s implicit train of reasoning, I believe it would have grossly abused its discretion. The district court should have viewed these two prayers for relief as separate absent indication to the contrary. In my view, a court simply may not deny a request for depositions of material and otherwise unavailable witnesses because the court considers that request conditional on a request for government funding unless the court at least seeks clarification of the request from the party requesting the depositions.