United States of America, Plaintiff-appellee, v. Anita Yates, Anton F. Pusztai, Defendants-appellants, 391 F.3d 1182 (11th Cir. 2004)

In this appeal, we consider whether the testimony at trial of witnesses by two-way video teleconference from Australia violated the Defendants' Sixth Amendment right to confrontation. Concluding that it did, we reverse and remand for a new trial.

Anton Pusztai and Anita Yates ("Defendants") were charged with mail fraud, conspiracy to defraud the United States, conspiracy to commit money laundering, and various prescription-drug related offenses in connection with their involvement in the Norfolk Men's Clinic, an internet pharmacy based in Clanton, Alabama.

Before trial, the Government moved to allow two witnesses in Australia to testify at trial by means of two-way video teleconference. The Government stated that Paul Fletcher Christian (who allegedly processed customer internet payments for the Defendants) and Dr. Tibor Konkoly (whose name the Defendants allegedly used on internet drug prescriptions) were both "essential witnesses to the government's case-in-chief," (R.2-248 at 1). The Government noted: " [a]lthough both witnesses are willing to testify at trial via video teleconference, they are unwilling to travel to the United States. Because they are beyond the government's subpoena powers, the government seeks permission for these witnesses to testify through the use of teleconference facilities." (Id. at 2.) The Government also proposed moving this part of the trial to the United States Attorney's office for the Middle District of Alabama, which had teleconferencing equipment that had been tested to the Government's satisfaction with a similar facility in Brisbane, Australia.

Yates responded, arguing that allowing the testimony would violate her Sixth Amendment confrontation right.¹  The district court granted the Government's motion.

Because the courtroom was not outfitted with video equipment, the trial was temporarily moved to the United States Attorney's office for the video teleconference. Counsel for each Defendant objected on Sixth Amendment grounds to the introduction of the testimony. Paul Fletcher Christian and Dr. Tibor Konkoly were sworn in by the Clerk of the federal district court and acknowledged that they understood that their testimony was under oath and subject to penalty for perjury. The Government then questioned Konkoly and Christian by means of two-way video teleconference. Both Defendants, the jury, and the judge could see the testifying witness on monitors, and the witness could see the temporary courtroom in the U.S. Attorney's conference room. Each of the Defendants' attorneys cross-examined both Konkoly and Christian.

The jury found the Defendants guilty of various offenses, and the Defendants appeal.

We discuss only two of the issues Pusztai and Yates present on appeal.²  First, we consider whether witness testimony by means of live, two-way video teleconference from Australia violated their Sixth Amendment right to confrontation. Because the admission of testimony by two-way way video teleconference presents a mixed question of law and fact, we review de novo the Defendants' claim that their Sixth Amendment rights were violated. See Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 1900, 144 L. Ed. 2d 117 (1999).

Yates also contends that the district court erred in denying his motion for judgment of acquittal. In reviewing this ruling, we afford no deference to the district court's decision. United States v. Ward, 197 F.3d 1076, 1079 (11th Cir. 1999).

Pusztai and Yates contend that their Sixth Amendment confrontation rights were violated by the admission of testimony by two-way live video teleconference with the witnesses in Australia because it was not necessary to further an important public policy and because it was an unreliable form of testimony, and thus violated the rule announced in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).

The Government argues that in this case testimony by two-way video teleconference comports with the Craig rule. In the alternative, the Government urges us to find the Craig rule inapplicable and to affirm based on a line of cases interpreting Federal Rule of Criminal Procedure 15 (dealing with depositions) and approving the admissibility of foreign depositions at trial.

The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. This clause, known as the Confrontation Clause, "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016, 108 S. Ct. 2798, 2801, 101 L. Ed. 2d 857 (1988). But this guarantee is not without exception.

In Maryland v. Craig, the Supreme Court upheld, over a defendant's Sixth Amendment challenge, a Maryland rule of criminal procedure that allows child victims of abuse to testify by one-way closed circuit television from outside the courtroom. 497 U.S. at 858, 110 S. Ct. at 3170. In such a scenario, the defendant could see the testifying child witness on a video monitor, but the child witness could not see the defendant. Id. at 841-842, 110 S. Ct. at 3161. The defendant contended that this procedure violated his Sixth Amendment right to confrontation because he was denied a physical face-to-face encounter with the witness. Id. at 842, 110 S. Ct. at 3161-62. The Supreme Court disagreed, approving Maryland's rule and stating: "though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." Id. at 849-850, 110 S. Ct. at 3165-66. But the Court held "that a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured."³  Id. at 850, 110 S. Ct. at 3166.

The Court reasoned:

the right guaranteed by the Confrontation Clause includes not only a personal examination ... but also (1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.

The combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable....

Id. at 845-46, 110 S. Ct. at 3163 (citations and internal quotations omitted). The video teleconferencing in this case clearly lacked the first element — a witness in the courtroom in the physical presence of the defendant. Because the Defendants were denied a physical face-to-face confrontation at trial, we must ask whether the requirements of the Craig rule were satisfied in this case, calling for an exception to the physical presence requirement of the Confrontation Clause. We therefore apply the Craig rule.

The Government argues, in the alternative, that we need not apply the Craig rule for two reasons: first, because the Craig rule applies only to testimony by one-way closed-circuit television; and second, because the videoconference was akin to a Rule 15 deposition taken in a foreign country, which we have approved.

In United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), the Second Circuit approved the use of two-way, closed circuit television to present the testimony of a witness from an undisclosed location outside the courtroom. Id. at 79. The witness was participating in the Federal Witness Protection Program and was suffering from the final stages of inoperable cancer. Id. at 79. The Gigante court ruled that although the "use of remote, closed-circuit television must be carefully circumscribed," id. at 80, the defendant's Sixth Amendment right to face-to-face confrontation was not violated. Id. at 81-82. The court stated that "a trial court may allow a witness to testify via two-way closed-circuit television when this furthers the interest of justice," id. at 81, and declined to apply the Craig standard, reasoning that because the Supreme Court crafted its two-part "standard to constrain the use of one-way closed-circuit television, whereby the witness could not possibly view the defendant ..., it is not necessary to enforce the Craig standard in this case." Id. We do not accept this distinction. The Craig rule must be satisfied if the prosecution seeks to deny a defendant a face-to-face confrontation with a witness. See Craig, 497 U.S. at 850, 110 S. Ct. at 3166.

The Government's reliance on a line of cases approving the admission at trial of deposition testimony is also to no avail; these cases are distinguishable because Rule 15(c) clearly provides a defendant at least an opportunity for a face-to-face encounter at the deposition. Here, the Defendants were given no such opportunity for physical confrontation with the Australian witnesses, and therefore, the deposition cases are inapposite.

In its order, the district court applied the two-part Craig rule to permit the Australian witnesses to testify by two-way video teleconference before the court in the United States Attorney's Office in Montgomery, Alabama.⁴ 

As to the first Craig requirement, the district court ruled that the testimony was necessary to further an important public policy. The court accepted the Government's contention that the testimony would serve the "important public policy of providing the fact-finder with crucial evidence," (R.3-314 at 19), and found that "the Government also has an interest in expeditiously and justly resolving the case."⁵  (Id. at 22.)

We accept the district court's rationale that the witnesses were necessary to the prosecution's case on at least some of the charges, as the record supports the Government's assertion that the testimony was crucial to a successful prosecution of the Defendants and aided expeditious resolution of the case. Defendant Pusztai concedes " [t]hat Dr. Konkoly was a significant witness for the Government...." Appellant's Br. at 28.

But the prosecutor's need for the testimony in order to make a case and expeditiously resolve it are not public policies that are important enough to outweigh a defendant's right to confront an accuser face-to-face. Comparing the public policy behind Maryland's rule — protection of certain children from trauma caused by confronting their attacker — with the policies offered in this case — providing the fact-finder with crucial prosecution evidence and expeditious resolution of the case — leaves us unconvinced that the policy justification in this case meets Craig's standard for an important public policy.

The district court made no findings of fact that would support a conclusion that this case is different from any other criminal prosecution in which the Government would find it convenient to present testimony by two-way video teleconference. All criminal prosecutions include at least some evidence crucial to the Government's case, and there is no doubt that many criminal cases could be more expeditiously resolved were it not necessary for witnesses to appear at trial. See Craig, 497 U.S. at 867, 110 S. Ct. at 3175 ("The State's interest here is in fact no more and no less than what the State's interest always is when it seeks to get a class of evidence admitted in criminal proceedings: more convictions of guilty defendants. That is not an unworthy interest, but it should not be dressed up as a humanitarian one.") (Scalia, J., dissenting). If we were to approve introduction of testimony in this manner, on this record, every prosecutor could argue that providing crucial prosecution evidence and expeditious resolution of the case are important public policies that support the admission of testimony by two-way video teleconference. See, e.g., Remote Testimony — A Prosecutor's Perspective, 35 U. Mich. J.L. Reform 719 (2002).

The Sixth Amendment demands more. "The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts." Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004). We therefore hold that providing the fact-finder with crucial prosecution evidence and expeditious resolution of the case, on the record before us, are not important public policies that justify the denial of actual confrontation between witness and defendant.⁶ 

Since we conclude that the admission of this testimony fails the public policy prong of the Craig rule, we need not discuss Craig's second requirement — that the witness's testimony be reliable.

Finally, we turn to Yates's contention that the district court erred in denying her motion for judgment of acquittal. Yates's motion for judgment of acquittal was grounded on the assertion that the evidence admitted at trial was insufficient to support convictions. Similarly, Yates argues on this appeal that the evidence "introduced at trial" was insufficient to support her convictions. (Appellant Br. at 30). Having reviewed the evidence, we find it sufficient to support Yates's convictions. Our conclusion is buttressed by the fact that Yates testified at trial, and the jury obviously rejected her testimony.⁷  See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (" [A] statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of the defendant's guilt.") Thus, retrial of Yates is not barred because we reverse for trial error rather than on insufficiency of the evidence grounds. See United States v. Scott, 437 U.S. 82, 90-91, 98 S. Ct. 2187, 2193-94, 57 L. Ed. 2d 65 (1978) ("The successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge.") (citation omitted).

Because the admission of this live, two-way video teleconference testimony violated the Defendants' Sixth Amendment confrontation rights, we reverse and remand for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

EDMONDSON, Chief Judge, concurring in the result:

I write separately mainly to stress my doubts that the witnesses in Australia were testifying under oath at all.

The Constitution calls for sworn testimony in criminal trials. Apart from the Constitution, Fed.R.Evid. 603 says: "Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." I question whether the "oath" in this case was valid for the witnesses in Australia.

In our case, Australian witnesses in Australia were sworn in per television by the district court clerk in Alabama. The United States says that this novel oath-taking was meaningful because perjury is an extraditable offense in the treaty between the United States and Australia. But to say perjury is illegal and an extraditable offense does not end the issue, for perjury can only be committed when a person has been properly placed under oath.¹  The correct inquiry, first, is whether the court clerk in Alabama is a competent officer to give a valid, meaningful oath when the oath-taker is a foreign national reciting the oath in a foreign country.²  To awaken a witness's conscience and to impress upon him his duty, the oath must be valid and meaningful. Very little is impressed upon a witness sitting in a foreign country looking at an American trial on a video screen when the screen and witness are in a room thousands of miles away from the trial and on a different continent: far away from the defendants, judge, jury, clerk, and counsel.

While the law generally says that the oath may be given by a justice or judge of the United States, or by the clerk of the court or his deputies, 28 U.S.C. §§ 459, 953, this statement is not plainly sufficient to cover the anomaly presented by this case: Congress did not address or seem to plan for foreign witnesses to testify at a United States trial at the same time the witness remained in a foreign country. When we look at statutes where Congress plainly did envision someone taking an oath while in a foreign country, we see additional requirements to make the oath meaningful. In the light of the Constitution's own demand for a meaningful oath, I believe that requirements along the line of those set out by statutes probably apply — as a matter of constitutional law — in a criminal trial too.

For example, in applying for a patent, an applicant must make a valid oath that he believes himself to be the original and first inventor of the thing he is seeking to patent. In saying who is authorized to give the oath, 35 U.S.C. § 115 provides, in relevant part, this process:

Such oath may be made before any person within the United States authorized by law to administer oaths, or, when, made in a foreign country, before any diplomatic or consular officer of the United States authorized to administer oaths, or before any officer having an official seal and authorized to administer oaths in the foreign country in which the applicant may be, whose authority is proved by certificate of a diplomatic or consular officer of the United States, or apostille of an official designated by a foreign country which, by treaty or convention, accords like effect to apostilles of designated officials in the United States, and such oath shall be valid if it complies with the laws of the state or country where made.... For purposes of this section, a consular officer shall include any United States citizen serving overseas, authorized to perform notarial functions pursuant to section 1750 of the Revised Statutes, as amended (22 U.S.C. 4221).³ 

I doubt that a district court clerk in Alabama has the legal power to place someone in Australia under a meaningful oath: the United States government has not argued in this case that the Alabama federal court clerk was authorized to administer oaths in Australia. As the statutes show, it is widely accepted that the oath (if it is to serve its purpose) must be given by a properly empowered person in the same place (or at least in the same country) as the witness wishing to take the oath. This idea — the idea of taking an oath before, that is, actually in the presence of, a competent officer — goes back to the desire to impress the significance of that oath upon the witness.

Courts must take the idea of witnesses testifying under oath seriously. It is hard to feel the significance of an oath, when a person in one sovereign country is just looking at a television screen at an image of a court clerk representing a foreign government a very long airplane ride away and in an altogether different sovereign country. I mistrust the notion that many people think that talking to a television (especially given the other circumstances here) counts for much. So, I worry that the Constitution's requirement that a witness in a criminal trial make his statements under a meaningful oath was not met in this case.

Pusztai does not challenge the sufficiency of evidence. Yates does. Apart from the testimony of the witnesses in Australia, I believe that sufficient evidence — particularly given Yates's own testimony — is in the record to support her conviction. For background, see United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). So, a new trial can be held.