United States v. Rosenau

• Decision Date: 24 April 2012
• Docket Number: Case No. CR06–157MJP.
• Citation: 870 F.Supp.2d 1109
• Parties: UNITED STATES of America, Plaintiff, v. Henry C. ROSENAU, Defendant.
• Court: U.S. District Court — Western District of Washington

870 F.Supp.2d 1109

UNITED STATES of America, Plaintiff,

v.Henry C. ROSENAU, Defendant.

Case No. CR06–157MJP.

United States District Court,

W.D. Washington,

at Seattle.

April 24, 2012.

Susan M. Roe, U.S. Attorney's Office, Seattle, WA, for Plaintiff.

ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION REGARDING VIDEO TESTIMONY

MARSHA J. PECHMAN, District Judge.

This matter comes before the Court on Defendant Henry Rosenau's motion for reconsideration of the Court's decision to admit the live video testimony of witness Kip Whelpley from a Canadian courtroom during Defendant's trial. (Dkt. No. 97.) Having reviewed Defendant's motion and the Government's response (Dkt. No. 115), and having held oral argument April 20, 2012, the Court DENIES the motion for reconsideration. The Court finds that the admission of live video testimony is constitutional in this case because it necessary to further an important public policy and because the reliability of Whelpley's testimony is otherwise assured.

Background

Defendant Henry Rosenau, a Canadian citizen, is on trial in the U.S. District Court for the Western District of Washingtonon charges stemming from his alleged participation in 2004 and 2005 in a conspiracy to smuggle marijuana by helicopter across the Canadian border into the United States. (Dkt. No. 4.) The Government alleges that Rosenau is one of the pilots who flew helicopters with marijuana loads. ( Id.) Rosenau contested his extradition and was not brought to the United States until April 2011. (Dkt. No. 17 at 2.)

Kip Whelpley, a Canadian citizen, is alleged to be another member of the conspiracy. (Dkt. No. 79 at 4.) Whelpley is alleged to have accompanied Rosenau on helicopter trips between the United States and Canada, received multiple loads of marijuana from Rosenau, and given money to Rosenau. ( Id.) Whelpley was arrested in 2008, pleaded guilty to one count of conspiracy to import marijuana, and was sentenced to 20 months in prison. United States v. Whelpley, Case No. CR05–407–RSM, Dkt. No. 38 (W.D.Wash.). Whelpley has since returned to Canada. (Dkt. No. 27 at 3.) His plea agreement included a promise to return to the United States testify in the case against Rosenau. (Dkt. No. 55 at 4.) Whelpley's anticipated testimony encompasses nearly all criminal conduct charged against Rosenau. (Dkt. No. 79 at 4.)

Through various legal maneuvers in Canada, Defendant Rosenau has effectively made it impossible for Whelpley to testify against him in person at the present trial. Rosenau's Canadian legal activities first came to the Court's attention in October 2011, when the Government presented evidence that Rosenau, through his agents, filed a lawsuit against Whelpley in his hometown in British Columbia, and that he obtained a default judgment preventing Whelpley from coming to the United States. (Dkt. No. 54 at 5–11.) Rosenau also filed similar suits against the Royal Canadian Mounted Police. ( Id.) The Government has stated that it cannot have the Canadian default judgment against Whelpley set aside without Whelpley's participation. ( Id.)

The Government has three times sought to obtain the Court's permission to depose Whelpley in Canada, pursuant to Fed.R.Crim.P. 15. (Dkt. Nos. 27, 55, 79.) The Court initially denied the Government's motion for lack of specific information explaining why Whelpley was unavailable to physically testify at trial. (Dkt. No. 34.) On reviewing the Government's later motions, the Court found that “exceptional circumstances” existed to permit the deposition of Whelpley, but not another witness, Zachary Miraback, who simply preferred not to come to the United States. (Dkt. No. 89.) Rather than authorizing Whelpley's deposition, however, the Court reasoned that live video testimony would better preserve the Defendant's right to confrontation. ( Id.)

On March 23, 2012, after hearing oral argument on the Government's motion to authorize the deposition of Whelpley, the Court ordered the Government to facilitate Whelpley's live video testimony from a Canadian courtroom. (Dkt. No. 89 at 2.) The Court ordered that the Government arrange the video conference so that the Defendant can see Whelpley, Whelpley can see the Defendant, and the jury can see Whelpley. ( Id.) The Court further ordered that Government counsel and Rosenau's court-appointed lawyer travel to Canada to examine and cross-examine Whelpley in person, and that Defendant be provided a direct communication link with his attorney as well as breaks during the proceeding to speak with his attorney. ( Id.) The Court also appointed a second attorney to be present with Defendant in the U.S. Courtroom, in order to facilitate his participation. ( Id.)

Defendant challenges the live video testimony arrangement on three grounds. First, Defendant argues that the present case fails the test established by the Supreme Court in Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), because stopping marijuana trafficking is not a sufficiently important public policy to justify impairment of his Confrontation Clause rights. (Dkt. No. 97 at 10–11.) Second, Defendant argues that the Court incorrectly applied the Rule 15 test for depositions to the question of live video testimony. (Dkt. No. 97 at 4.) Finally, Defendant argues that Crawford v. Washington, 541 U.S. 36, 69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), overruled Craig “sub silento,” and that the Supreme Court's new Confrontation Clause analysis always requires physical face-to-face confrontation in criminal trials. (Dkt. No. 97 at 9.)

Findings:

After holding a hearing on the issue of live video testimony on April 20, 2012, the Court makes the following case-specific findings:

1. Defendant Henry Rosenau has sued witness Kip Whelpley in courts of British Columbia and obtained a default judgment prohibiting Whelpley from entering the United States.

2. Rosenau's legal actions in Canada have created a legal reality whereby Whelpley is unable to cross the border to testify.

3. The Canadian Government will not allow Rosenau to travel to Canada for the purposes of attending the hearing where Whelpley will testify against him.

4. The U.S. Marshals Service is unable to maintain control of a Defendant outside the physical boundaries of the United States.

5. The Canadian Government has agreed to facilitate Whelpley's testimony via live videoconference from a Canadian courtroom. The proceedings would be governed by U.S. law and Whelpley would be administered an oath under U.S. law.

6. There is an important public policy interest in allowing the Government to effectively try cases regarding the breach of international boundaries by smuggling of narcotics by air into the United States. The Government also has a public interest in ensuring that the national forests are not used as staging grounds to facilitate the introduction of contraband into the United States.

7. Because Whelpley's truthful testimony against Rosenau in the present case was a condition of his 2008 plea agreement, perjury in the present trial of Rosenau may lead to Whelpley's extradition. The threat of extradition and possible imprisonment for perjury makes the reliability of Kip Whelpley's testimony reasonably assured.

Discussion

A. Video Testimony

The present arrangement to permit live video testimony meets or exceeds the requirements established by the Supreme Court in Maryland v. Craig, 497 U.S. at 850, 110 S.Ct. 3157. In Craig, the Supreme Court approved a Maryland statute that permitted victims in child sex abuse cases to testify in a separate room where they could not see the defendant, but the defendant could see them on a one-way video monitor. Id. at 851, 110 S.Ct. 3157. The Court stated that “the Confrontation Clause reflects a preference for face-to-face confrontation,” but that this preference “must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849, 110 S.Ct. 3157. The Court held that a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial where denial of such confrontation is necessary to further an important public policy and where the reliability of the testimony is otherwise assured. Id. at 850, 110 S.Ct. 3157.

The procedures in the present case surpass those approved in Craig. First, the video connection in the instant case would be two-way, so the witness can see the Defendant, in addition to the Defendant seeing the witness. Second, dramatic improvements in technology since Craig was decided twenty-two years ago, including clearer video and audio, improve the jury's ability to observe the demeanor and body language of the witness. Third, appointing a second counsel ensures that one defense lawyer will cross-examine the witness face-to-face in Canada, while the other remains with the Defendant, facilitating his participation. While the witness in Craig was in a different room, not a different country, the arrangements proposed in this Court—including personal video monitors for each juror—make the experience close to that of watching a live witness testify in person.

Next, the public policy interest in allowing the Government to effectively try cases regarding the breach of international boundaries by smuggling of narcotics by air into the United States is sufficiently important to justify permitting live video testimony. Video testimony may overcome the requirement of physical confrontation only when it is “necessary to further an important public policy.” 497 U.S. at 850, 110 S.Ct. 3157. A wide variety of public policy objectives may satisfy this test, but the Government must make some showing of necessity. In Craig, the Supreme Court held that the state's interest in “protecting the physical and emotional well being of youth” was sufficient. Id. at 852, 110 S.Ct. 3157. Interpreting Craig, the Fourth Circuit held that combating international terrorism was a...