United States v. Yates
391 F.3d 1182
11th Cir.
2004
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Docket

*2 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 two-way video teleconference from Australia violat- ed the Defendants’ Sixth Amendment to confrontation. did, Concluding that it we reverse and remand for a trial. new I. & BACKGROUND PROCEDURAL

HISTORY (“Defen-

Anton Pusztai and Anita Yates dants”) charged were fraud, with mail con- spiracy to States, defraud the United con- spiracy to commit money laundering, and various prescription-drug related offenses in connection with their in the involvement * Paul, Honorable Maurice Florida, M. sitting by States designation. Judge District for the Northern District of not outfitted courtroom was Because Clinic, pharma- internet Men’s

Norfolk tempo- trial was equipment, video with Clanton, Alabama. cy based Attor- to the United rarily moved moved to trial, the Government *3 Before teleconference. video the office for ney’s testify in Australia two witnesses allow on objected Defendant for each Counsel telecon- two-way video of by means at trial the introduc- grounds Amendment Sixth Paul that stated The Government ference. Paul Fletcher testimony. of the tion (who pro- allegedly Christian Fletcher Konkoly were Dr. Tibor and Christian the for payments internet customer cessed dis- the federal of the Clerk sworn (whose Konkoly Defendants) Dr. Tibor and they that acknowledged court and trict on used allegedly Defendants the name testimony was under that their understood “es- were both drug prescriptions) internet perjury. for penalty subject and oath case- government’s to the sential witnesses Konkoly questioned then Government The 1). (R.2-248 Government in-chief,” at The two-way video by means of Christian and are will- “[a]lthough both witnesses noted: Defendants, the Both teleconference. teleconfer- trial via video testify ing to at testifying the judge could see and the jury, the to travel to ence, unwilling they are monitors, could and the witness on beyond they are Because States. in the U.S. courtroom temporary see subpoena powers, government’s Each of the room. Attorney’s conference these permission seeks government both attorneys cross-examined Defendants’ through use testify Konkoly and Christian. 2.) (Id. at The facilities.” teleconference guilty jury found Defendants The moving this proposed also Government ap- offenses, the Defendants various At- the United trial to of the part peal. District for the Middle torney’s office teleconferencing Alabama, had which AND ON APPEAL II. ISSUES been tested to had that equipment OF REVIEW STANDARD a similar with satisfaction Government’s the issues Pusz- only two of discuss We Brisbane, Australia. facility in First, appeal.2 on present Yates tai and testimony by whether witness we consider allowing that arguing responded, Yates live, teleconfer- two-way video her Sixth means testimony would violate their violated Sixth from Australia dis- ence right.1 The confrontation Amendment Be- to confrontation. mo- Amendment the Government’s granted court trict by two- testimony the admission cause tion. that dis- also contend 2. Pusztai Yates re- for Pusztai's the record 1. A search of (1) denying by: their motion fruitless; court erred docket sheet for trict sponse is entry Jencks/Brady viola- contain on a does not a appeal on for mistrial based record response tion; to the Government's (2) allowing Pusztai's cross-examine not Yates apparently submitted But relationship Pusztai with motion. another about Pusztai woman; motion, be- Government's response to the per- (3) denying motion for Pusztai’s response in its cites his the Government cause his computer related to disks access to sonal with concerned not reply need brief. We defense; (4) that imposing the sentences ob- preserved response Pusztai’s whether do arguments meritless and are it did. These intro- objected to the jection because Pusztai Cir. See 11th discussion. warrant further Gov- trial and the duction 36-1. Rule the Sixth not contend does ernment pre- is not issue confrontation Amendment served. way video presents teleconference a mixed nesses appearing before the trier of fact.” question fact, of law and Iowa, review de Coy v. 1012, 1016, 487 U.S. 108 S.Ct. novo the Defendants’ claim that their Sixth (1988). 101 L.Ed.2d 857 But rights Amendment were violated. See Lil guarantee is not without exception. ly v. Virginia, 116, 137, 527 U.S. In Maryland v. Craig, the Su 1887, 1900, 144 (1999). L.Ed.2d 117 preme Court upheld, over a defendant’s also Yates contends that the district Sixth challenge, Amendment a Maryland in denying erred his motion for judg rule of procedure criminal that allows child ment acquittal. In reviewing this rul *4 victims of to testify by abuse one-way ing, we afford no deference to the district closed circuit television from outside the court’s decision. Ward, courtroom. 858, 497 U.S. at 110 S.Ct. at 1076, 1079 Cir.1999). 3170. In such a scenario, the defendant see could the testifying child witness on a III. DISCUSSION monitor, video but child witness could Pusztai and Yates contend that their not see the defendant. 841-842, Id. at Sixth Amendment confrontation rights S.Ct. at 3161. The defendant contended were by violated the admission of testimo- that this procedure violated his Sixth ny by two-way live video teleconference Amendment right to confrontation because with the in witnesses Australia because it he was denied a physical en face-to-face was not necessary an important further counter with the witness. Id. 842, at public policy and because it was an unreli- S.Ct. at 3161-62. Supreme The dis Court able form of testimony, thus violated agreed, approving Maryland’s rule and the rule in Maryland announced v. Craig, stating: “though we reaffirm the impor 497 U.S. 111 L.Ed.2d tance of face-to-face confrontation with (1990). appearing trial, witnesses at say cannot that such confrontation is

The an indispensable argues Government that in this case element of the Sixth by guaran Amendment’s two-way video teleconference tee right to confront comports one’s with accusers.” Craig rule. In the al- 849-850, Id. at ternative, 110 S.Ct. at 3165-66. But Government urges us to find the Court held “that a Craig right defendant’s inapplicable rule and to affirm accusatory confront may based on a line sat of cases be interpreting Fed- physical, isfied absent a eral face-to-face con (deal- Rule of Criminal Procedure 15 frontation at only trial ing depositions) with where denial of and approving the such confrontation is necessary to admissibility further foreign depositions at trial. an important public policy and only where The Sixth provides: Amendment reliability of the testimony is otherwise “In all criminal prosecutions, the accused assured.”3 Id. at 110 S.Ct. at 3166. shall enjoy the right ... to be confronted The Court reasoned: with against the witnesses him.” U.S.

Const, clause, amend. VI. This known as right guaranteed by the Confronta- Clause, the Confrontation “guarantees the tion Clause only includes not personal defendant meeting face-to-face (1) with wit- ... examination but also insures that 3. Craig, many Since passed legis- states have facing from trauma associated with their al- permitting testimony by lation remote leged See, child e.g., assailants face-to-face. Ala. victims, either by closed-circuit or television 15-25-2; § § Code Fla. Stat. Ann. 92.53. by videotaped deposition, protect them location undisclosed from an un- a witness his statements give will

the witness 79. The Id. at courtroom. him with the outside impressing oath' —thus der Federal in the guarding participating the matter witness seriousness aof suf- possibility and was Program the lie Protection against Witness (2) the wit- forces perjury; inoperable penalty stages of the final fering from cross-examination, the ness to submit Gigante The at 79. Id. cancer. invented engine ever legal greatest remote, the “use although that ruled (3) truth; permits discovery [and] carefully must television closed-circuit the defendant’s to decide that is jury circumscribed,” the defendant’s id. the demeanor of observe fate to to face-to-face Amendment Sixth statement, thus making his Id. at 81- was not violated. confrontation his assessing credibili- jury aiding the trial court “a The court stated 82. ty. two-way via testify a witness may allow these effect of elements The combined furthers when this television closed-circuit oath, presence, physical 81, and de- confrontation — id. at justice,” the interest *5 cross-examination, observation standard, rea- Craig apply the clined fact —serves trier of by the demeanor Court Supreme the that because soning the Confrontation purposes the to constrain two-part “standard crafted its admit- ensuring that evidence Clause televi- one-way closed-circuit the use is reliable.... an accused against ted possi- not sion, could whereby the witness (citations 845-46, at 3163 ..., Id. at nec- it is not bly the defendant view omitted). The vid- quotations and internal standard Craig the essary to enforce clearly this case teleconferencing in eo this dis- accept not do this Id. We case.” in the element —a first lacked the satisfied rule must Craig The tinction. of the physical presence in the courtroom deny a defen- seeks prosecution if the were the Defendants Because defendant. awith confrontation a face-to-face dant confrontation face-to-face a physical denied 850, 110 at Craig, 497 U.S. See witness. require- trial, the ask must whether at at 3166. S.Ct. rule were satisfied Craig the ments of on a line of reliance The Government’s the exception to case, calling an at trial of admission approving the Con- cases of the requirement physical presence avail; no testimony also the apply deposition therefore Clause. We frontation distinguishable because are cases Craig these rule. 15(c) at clearly provides defendant Rule in the alterna- argues, The Government en- for a face-to-face an opportunity least Craig the rule tive, apply that we need Here, the De- deposition. at the counter first, Craig the because reasons: for two opportunity no such given were fendants one-way testimony by only to applies rule Austra- with the confrontation physical second, television; be- closed-circuit therefore, deposi- witnesses, and lian to a was akin cause videoconference inapposite. are tion cases coun- foreign in a deposition taken Rule 15 approved. we have try, which order, applied district court In its Aus- permit Craig rule two-part Gigante, 166 v. In by two-way vid- testify tralian Cir.1999), (2d the Second Circuit F.3d in the before eo teleconference cir two-way, closed the use of approved in Mont- Attorney’s Office testimony of United present cuit television gomery, Alabama.4 fronting their attacker —with policies offered in this providing the fact- case— As to the first Craig requirement, finder with prosecution crucial evidence the district court ruled that and expeditious resolution of the case— necessary to further important leaves us unconvinced that policy justi- public policy. court accepted The the Gov fication in this case Craig’s meets standard ernment’s contention that the testimony for an important public policy. would serve “important public policy of providing the fact-finder with crucial evi The district court made no findings of (R.3-314 dence,” 19), at and found that fact that support would a conclusion that “the Government also has an interest in this case is different any from other crimi- expeditiously justly resolving the prosecution nal in which the Government (Id. 22.) case.”5 would find it present convenient to testi- accept

We the district court’s rationale mony by two-way video teleconference. that the necessary witnesses were to the All criminal prosecutions include at least prosecution’s case on at least some of the some crucial to evidence the Government’s charges, as the record supports the Gov- case, and is no there that many doubt ernment’s assertion the testimony was criminal cases could be expeditiously more crucial to a prosecution successful resolved it not necessary were for wit- Defendants and expeditious aided resolu- appear nesses to at trial. Craig, See tion of the case. Defendant Pusztai con- (“The U.S. at 110 S.Ct. at 3175 State’s Konkoly cedes Dr. “[t]hat was a significant interest here *6 in fact is no more and no less the Government....” Appel- than what the State’s always interest Br. lant’s at 28. when it get to seeks a class of evidence

But prosecutor’s need for admitted in the testi- criminal proceedings: more mony in order to a guilty make case and convictions of expedi- defendants. That is tiously resolve it are not not an public policies unworthy interest, but it should not important that are enough outweigh one.”) to dressed up as a humanitarian (Scalia, defendant’s J., confront an accuser dissenting). If were ap- we face-to-face. Comparing the policy prove public of testimony introduction in this Maryland’s behind protection manner, of cer- record, on this every prosecutor rule — tain children from trauma by caused con- argue could providing that prosecu- crucial 4. The objected 29, 2002, conducting Defendants also April On Supreme Court the video teleconference the United States Congress transmitted proposed amend- Attorney's office. While the have Defendants ments to the Federal Rules of Criminal Pro- objection abandoned appeal, this on we re- cedure. The Court declined transmit main with concerned the shift aof trial to a 26(b) proposed new Rule would that have al- Attorney's office. lowed two-way for a teleconferencing video under certain circumstances. Justice Scalia 5. The district also noted today's "in filed a explaining that objec- statement his own world of increasing rule, globali- internet and proposed tions to remarking that the zation, more and more proposed situations will arise in "contrary amendments were to the which knowledge witnesses with material are Craig" rule they enunciated in in that would beyond power the subpoena the Court.” not limit testimony the use of remote to "in- (R.3-314 22.) finding regard- Because this stances there 'case-specific where has been a ing the future of finding’ telecommunications was not that 'necessary it is to further an " case-specific, do not important we it. public consider See policy.' Order Su- 855-56, Craig, Court, 497 U.S. at preme 89, 110 S.Ct. at (2002) (cita- 3169 F.R.D. 207 (requiring case-specific findings). omitted). tion expeditious Since we conclude that the admission of

tion evidence and resolution of testimony public policy prong important public policies fails the ~hecase are that Craig rule, support testimony by we need not discuss the admission of two- Craig's requirement-that way See, e.g., second the wit- video teleconference. Re Testimony-A Perspec ness's be reliable. mote Prosecutor's tive, (2002). 35 U. Mich. J.L. Reform 719 Finally, we turn to Yates's conten deny

The Sixth Amendment demands more. tion that the district court erred in ing judgment acquittal. "The text of the Sixth Amendment does her motion for judgment acquittal suggest any open-ended exceptions Yates's motion for grounded requirement on the assertion that from the confrontation to be evidence admitted at trial was insufficient developed by the courts." Crawford v. support Similarly, Washington, convictions. Yates 541 U.S. (2004). argues appeal 158 L.Ed.2d 177 We there on this that the evidence "introduced at trial" was insufficient to providing fore hold that the fact-finder support (Appellant prosecution her convictions. Br. at with crucial evidence and ex 30). Having evidence, peditious case, reviewed the resolution of the on the support us, important public find it sufficient to Yates's convic record before are not policies justi~ tions. Our conclusion is buttressed the denial of actual trial, confrontation between witness and defend fact that Yates testified at and the jury obviously rejected testimony.7 ant.6 her Butterworth, ciency 6. Our decisionin Harrell v. of the evidence. We need not decide (11th Cir.2001) case, therefore, argument F.3d 926 trary. Harrell, is not to the con in this whether an onlyproperly In we revieweda habeas cor that we should consider admit evidence, made, pus involving ted if would be meritorious. case a Florida state trial court's testimonyby two-way Khoury, admissionof means of SeeUnitedStatesv. Argentina. 1990) ("Although reversing video teleconferencewith In the Cir. we are proceedings, appellate state applied the Florida courts Kluver's convictionbecause of harmful con *7 two-part Craig approved error, the rule and stitutional nonetheless we must still testimonyby sufficiencyargument the introductionof witness means. rule on Kiuver's because Id, at 929. At issue in the federal properly presented by if the admittedevidence testimonyby two-way case was whether the government carry was insufficientto petitioner's teleconferenceviolated the Sixth proof, burden of then Kluver's retrial would right Amendment to confrontation. Id. Be prohibited by jeopardy bar.") the double case, cause it was a habeas our reviewof the (emphasis added). Nelson, But see Lockhartv. petition by was constraihed 28 U.S.C. 33, 285, 291, 4 88 U.S. 109 S.Ct. 102 2254(d)(1) asking § testimony whether the remote (1988) ("[A] reviewing L.Ed.2d 265 contrary to, was or an unreason by must considerall of the evidenceadmitted applicationof, clearly able establishedfederal deciding the trial court in permissible whether retrial is law, by Supreme as determined Court. Jeopardy under the Double Supreme id. at 930. As the Court had not Clause.") Diaz, 66, UnitedStatesv. 300 F.3d constitutionality allowing ruled on the of trial (1st Cir.2002)(In considering 77 a motionfor testimonyby two-wayclosedcircuit television judgment acquittal, of "we must examine `all teleconferencing, or satellite video we found jury, regardless the evidencesubmittedto the clearly no violationof establishedlaw. Id. at properly ") of whether it was UnitedStates v. admitted.' case, 931-932. But in this our conclusion Bruno, 65, (2nd 383 F.3d 90 procedure that a similar violated the Defen Cir.2004)(Although plea the defendant's allo- dants' to confrontationresults from de improperly admitted, cution was "we must novoreview. having properly consider it as been admitted purpose assessing legal ig- for the suffi 7. Yates does not contend that we should ciency support nore evidence admitted in violation of the of the evidenceto a criminal conviction.") Mackins, determining 32 confrontationclause in the suffi-

1189 Brown, 312, See United v. EDMONDSON, States 53 F.3d Judge, Chief (11th Cir.1995)(“[A] concurring in the result: by 314 statement a defendant, if by disbelieved jury, may I separately write mainly my to stress be considered as substantive doubts evidence of the witnesses in Australia were testifying under oath at Thus, all. guilt.”) the defendant’s retrial of is not Yates barred because we reverse for The Constitution calls for sworn testimo- ny error than in criminal trial rather on trials. insufficiency Apart from the Con- stitution, says: Fed.R.Evid. 603 “Before grounds. the evidence See United States testifying, every witness required shall be Scott, 82, 90-91, 2187, v. 437 U.S. to declare that the witness will testify 2193-94, (1978) (“The 57 L.Ed.2d 65 suc truthfully, by oath or affirmation adminis- appeal cessful a judgment conviction, tered in a form calculated to awaken the any ground on other than insufficiency witness’ conscience and impress the wit- support verdict, evidence to ness’ mind with the duty to do so.” I no bar to poses prosecution further on the question whether the “oath” in this case (citation omitted). charge.”) same was valid for the witnesses in Australia. case,

In our Australian witnesses in Aus- tralia were in per sworn television IV. CONCLUSION district court clerk in Alabama. The Unit- Because live, the admission of this two- says ed States that this novel oath-taking way video teleconference violat- was meaningful perjury because is an ex- traditable ed Defendants’ Sixth treaty Amendment offense con- between the United States and Australia. But to rights, frontation we reverse and remand say perjury illegal and an extraditable for new trial. offense issue, does not end the for perjury REVERSED AND REMANDED FOR can only be person committed when a has A NEW TRIAL. been properly placed under oath.1 The (4th Cir.1994) F.3d (''[S]ufficiency Cir.1995) (“We 66 F.3d first requires the evidence review the district court must evaluate whether there was sufficient to consider of the all evidence admitted at evidence to convict Vizcarra-Martinez. In trial.'') (emphasis original). so, doing we must assume that the evidence at Miller, (5th Cir.1998) v. 146 F.3d admitted.”) trial properly ("In conducting sufficiency review under Wood, (10th Cir.1992) v. circumstances, such all consider (The “reviewing court should consider erro *8 evidence that jury including was before the — neously determining admitted evidence in admitted.”) evidence that was erroneously jeopardy whether double retrial due bars to Quinn, 522, 901 530 F.2d trial.”) insufficient evidence at first United Cir.1990) ("The here, question presented Alexander, 116, States v. 128 then, may is erroneously whether consider (D.C.Cir.2003) ("[W]e must consider all ad testimony, admitted properly as well as the mitted evidence—whether admitted errone evidence, admitted in reviewing the sufficien ously reviewing or sufficiency not—in the of cy of the evidence. This issue has been re evidence.”) the cently by decided in the affirmative the Su ...”) preme Grammer, Court Palmer v. § 1. See 18 U.S.C. 1621: (8th Cir.1988) ("[T]he F.2d Double Jeopardy clause does not a Whoever— foreclose retrial in (1)

this reviewing situation because having the taken an compe- oath a before evidence, tribunal, officer, must just look to all the not tent person, any the or in evidence, legally admitted to determine case in a law which of the United States permitted.”) whether a (emphasis administered, retrial is in an oath to authorizes be original) Vizcarra-Martinez, declare, States v. United testify, that depose, he will or oath, I meaningful a for own demand tion’s the court first, whether is inquiry, correct of the line along requirements officer to that competent believe ais in clerk Alabama apply— probably the by when statutes oath out valid, meaningful those set a give a reciting the law—in foreign national of constitutional is a a matter as oath-taker a country.2 To awaken foreign in trial too. oath a criminal upon impress and to conscience witness’s patent, a applying in example, For and valid must be duty, the oath him his a valid oath make must applicant upon impressed is Very little meaningful. original the himself to be he believes country look- foreign in sitting a witness seeking to he is thing the of first inventor screen on a video American trial ing at an to is authorized saying In who patent. in a room and witness are the screen when in oath, provides, § 115 35 U.S.C. the give trial away from the miles thousands process: this part, relevant from away far continent: a different on any per- before may be made Such oath clerk, and defendants, jury, judge, the authorized the United States son within counsel. when, oaths, or, by law administer says that generally the law While any country, foreign before made in judge of justice aby or may given be oath officer of or consular diplomatic States, by clerk or United to administer authorized States United §§ 28 U.S.C. deputies, his court or having an oaths, any officer before or sufficient plainly not statement is this to administer and authorized official seal by this anomaly presented to cover country which the foreign oaths in or seem did address Congress case: authority be, is may whose applicant testify at a foreign witnesses plan for or diplomatic aof by certifícate proved same time trial at the States, or of the United officer consular country. foreign in a remained by a designated of an official apostille Congress where look statutes When we which, treaty or con- by country foreign taking an someone envision plainly did vention, apostilles effect to accords like country, we see foreign ain oath while in the United officials designated the oath to make requirements additional if valid it States, oath shall be and such light Constitu- In meaningful. ineffective- on the did not focus 2. Defendants any testimo- certify truly, written or that is not oath-giver; so this issue declaration, ness deposition, certificate or ny, is an issue subscribed, true, necessarily dispositive here. But it willfully and him me, today’s grave that causes concern contrary states or subscribes oath such open anoth- issue opinion leaves the Court does not any which material matter he argued hard. point is true; case in which the er or believe Yates, in certificate, citing authority, declaration, defendant Without (2) verifi- any brief, say Austra- appellant does two per- her cation, penalty of under or statement properly sworn be- "were not lian witnesses permitted under section jury as court, they Code, any as or willfully an officer sub- fore title Court to be power of this *9 of the were outside any which material matter as true scribes contempt in true; punished held properly or believe to be he not does the oath shall, testimony.” Pusztai said perjurious except as perjury and guilty of is perjury law, even is meaningful if not because be expressly provided otherwise offense, little likeli- there is an extraditable imprisoned title or under this fined actually in- government would hood that This section years, or both. than five more who tes- own witness extradite their dict and or sub- applicable statement is whether helped government as desired and tified or scription made within without is successfully obtain conviction. States. United complies with the laws the state or person in one sovereign country just is country where made.... purposes For at looking a television screen at an image section, of this a consular officer shall of a court clerk representing a foreign include any United States citizen serving government a very long airplane away ride overseas, perform authorized to notarial and an altogether in different sovereign pursuant functions to section 1750 country. of the I mistrust the notion that many Statutes, (22 Revised as amended U.S.C. people think that talking to a television 4221).3 (especially given the other circumstances here) So, counts for much. I worry that I doubt that a district court clerk in the Constitution’s requirement that a wit- Alabama has the legal power to place ness in a criminal trial make his state- someone in Australia a meaningful under ments under a meaningful oath was not oath: government United States has met in this case. not argued in this case that the Alabama federal court clerk was authorized ad- to Pusztai does not challenge the sufficien- minister oaths in Australia. As the stat- cy of evidence. Yates does. Apart from show, utes it is widely accepted that the the testimony of the Australia, (if oath it to purpose) is serve its must be I believe that sufficient particu- evidence— given by a properly empowered person in larly given Yates’s own testimony in—is (or the same place at least in the same the record to support her conviction. For country) as the witness wishing to take background, see Brovm, oath. This idea—the idea of taking (11th Cir.1995). So, a before, is, oath actually in the pres- new trial can be held. of,

ence a competent goes to back officer— impress desire to the significance of that oath upon the witness.

Courts must take the idea of witnesses testifying under oath seriously. It is hard significance feel the oath, of an when a §

3. 22 U.S.C. depositions statute for office, der his hand and seal of be shall as and valid, notarial acts taken allowing abroad and and of like force and effect within the punishment perjury, says things States, these United to all purposes, intents and about oaths: as ... if before any person other within the duly United States compe- authorized and Every secretary embassy legation or and any person thereto. tent If authorized, willfully shall consular officer is he whenever corruptly and perjury, by any required commit or necessary or deems it proper or procure do, person means any perju- post, port, so to place, commit or within ry any such ... embassy, of his oath within the legation, limits intent or con- sulate, meaning any Congress Act administer any or take now or from made, person any an oath.... hereafter post, port, may At such offender or place officer, charged, tried, proceeded against, there where is no consular convict- ed, Secretary may State and dealt any any authorize with in other district States, employee manner, officer or the United United in the States same in all who is a respects, Government as if offense citizen such had been com- overseas, serving States, including any mitted in the any contract offi- before employee Government, of the United duly cer authorized therein to or administer acts, perform any such such take such oath ... subject contrac- and shall be tor so authorized shall not be punishment considered to disability the same therefor *10 be a Every consular officer. such ... prescribed oath as are or shall by any such any officer, before such when certified un- Act for such offense....