U.S. v. Yates

• Decision Date: 24 November 2004
• Docket Number: No. 02-13654.,02-13654.
• Citation: 391 F.3d 1182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anita YATES, Anton F. Pusztai, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

391 F.3d 1182

UNITED STATES of America, Plaintiff-Appellee, v. Anita YATES, Anton F. Pusztai, Defendants-Appellants.

No. 02-13654.

United States Court of Appeals, Eleventh Circuit.

November 24, 2004.

Richard F. Matthews, Jr., Ronald W. Wise, The Law Office of Ronald W. Wise, Timothy C. Halstrom (Court-Appointed), Montgomery, AL, for Defendants-Appellants.

Tommie Brown Hardwick, Montgomery, AL, Linda I. Marks, U.S. Dept. of Justice, Office of Consumer Lit., Washington, DC, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before EDMONDSON, Chief Judge, COX, Circuit Judge, and PAUL^*, District Judge.

COX, Circuit Judge:

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.

I. BACKGROUND & PROCEDURAL HISTORY

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.

II. ISSUES ON APPEAL AND STANDARD OF REVIEW

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).

III. DISCUSSION

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...