United States v. Anita Yates

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF
________________________ APPEALS
ELEVENTH CIRCUIT
No. 02-13654 FEBRUARY 13, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00109 CR-N-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANITA YATES,
ANTON F. PUSZTAI,

Defendants-Appellants.

________________________

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

(February 13, 2006)

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH, DUBINA,
BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR and COX *,
Circuit Judges.

COX, Circuit Judge:

*
Senior Circuit Judge Cox elected to participate in this decision pursuant to 28 U.S.C. §
46(c).
 The court took this case en banc to consider whether witness testimony

presented on a television monitor at a criminal trial in Montgomery, Alabama, by live,

two-way video conference with witnesses in Australia, violated the Defendants’ Sixth

Amendment right to confront the witnesses against them. Holding that it did, we

vacate the convictions and remand for a new trial.

I. BACKGROUND & PROCEDURAL HISTORY

Anton Pusztai and Anita Yates (“Defendants”) were tried in the Middle District

of Alabama for mail fraud, conspiracy to defraud the United States, conspiracy to

commit money laundering, and various prescription-drug-related offenses arising out

of their involvement in the Norfolk Men’s Clinic, an Internet pharmacy based in

Clanton, Alabama.

At the pre-trial motion stage, the Government moved for an order allowing the

introduction of testimony from two witnesses in Australia by means of live, two-way

video conference. (R.2-248.) In support of its motion, the Government stated that

Mr. 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.” (Id. at 1.) The Government further submitted: “[a]lthough both

witnesses are willing to testify at trial via video teleconference, they are unwilling to

2
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.)

Defendants opposed the motion, arguing that admission of such testimony

would violate their Sixth Amendment rights to confrontation because it would deny

them face-to-face encounters with the witnesses against them. (R.2-261; R.3-314 at

3.) 1

The district court granted the Government’s motion, finding that Defendants’

confrontation rights would not be violated because the two-way video conference

would allow Defendants to see the witnesses and the witnesses to see Defendants

during the testimony. (R.3-314.) The court found that the Australian witnesses were

unwilling to travel to the United States for trial, (id. at 2.); the Defendants did not

contest this finding. The court also found that the Government asserted an “important

public policy of providing the fact-finder with crucial evidence,” (Id. at 19.), and that

“the Government also has an interest in expeditiously and justly resolving the case.”

(Id. at 22.)

1
Yates’s written opposition to the Government’s motion is in the record on appeal, but a
search for Pusztai’s opposition is fruitless. The docket sheet does not contain an entry for the
document. But Pusztai apparently submitted a response to the Government’s motion, because the
Government cites his response in its reply brief. Pusztai objected to the introduction of the
testimony at trial, however, and the Government does not contend that the issue is not preserved.

3
 Because the courtroom was not outfitted with video equipment, the trial was

temporarily moved to the United States Attorney’s office for the video conference.

At trial, Defendants objected on Sixth Amendment grounds to the introduction of the

testimony. (R.8 at 347-48; R.11 at 103.) Christian and Konkoly were sworn in by

a deputy 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 the witnesses by means of two-way video conference. Both

Defendants, the jury, and the judge could see the testifying witnesses on a television

monitor; and the witnesses could see the temporary courtroom in the U.S. Attorney’s

conference room.2 Each Defendant’s attorney cross-examined both Konkoly and

2
The record reflects, however, some technical difficulties that impacted the abilities of the
witnesses, Defendants and counsel to see each other and to communicate during the video
conference. For example, during Christian’s testimony, the following exchange occurred:

Q. [by Assistant U.S. Attorney] I’m going to ask the gentleman
controlling this to take a look around
the courtroom here so you can see
everybody that’s in this room and ask
you if you see Mr. Pusztai.
[Camera scanning the courtroom]
. . . Sir, have you seen Mr. Pusztai?

A. [by Christian] I think so. It’s a little bit hard to focus
on the camera. There, are we? Yes.

(R.11 at 106.)

Konkoly’s inability to see clearly was also a problem:

Q. [by Assistant U.S. Attorney] Do you know whether or not you
would recognize the partner that you

4
Christian. The jury found the Defendants guilty on all counts. Defendants appeal

those convictions.

In a published opinion, a three-judge panel of this court, applying the rule

articulated in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157 (1990), held that

Defendants’ Sixth Amendment confrontation rights were violated by the admission

of the testimony of these witnesses by means of two-way video conference. United

States v. Yates, 391 F.3d 1182 (11th Cir. 2004). The panel vacated the convictions

and remanded for a new trial. Id. The Government petitioned for rehearing en banc.

This court vacated the panel opinion and granted the petition for rehearing en banc to

have referred to that was at the dinner
with Mr. Pusztai?

A. [by Konkoly] I think so.
[Camera scanning the courtroom]
. . . May I have a close look at the lady
on the left-hand side in the back,
please?

The Court: Yes, you may.

Technician: This is the closest I can zoom in.

[by Konkoly] If you could go to the side a bit,
please. I cannot see from the corner
of the screen. [Scanning] . . .
No I can’t not [sic] say that
categorically. I cannot recognize the
face at the present time.

(R.11 at 161-62.)

5
consider this important constitutional question. United States v. Yates, 404 F.3d 1291

(11th Cir. 2005).

II. ISSUES ON APPEAL AND STANDARD OF REVIEW

We discuss only two of the issues Pusztai and Yates present on appeal.3 First,

Defendants contend that their Sixth Amendment rights to confrontation were violated

by admission of this testimony taken from witnesses who were physically present in

Australia while Defendants were in Montgomery, Alabama. In support of this

contention, they maintain that their rights to confront the witnesses face-to-face were

violated and that the witnesses were not given a proper oath. The admission of

testimony by two-way video conference presents a mixed question of law and fact;

therefore, we review de novo Defendants’ claim that their Sixth Amendment rights

were violated. See Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 1900 (1999).

3
Defendants also contend that the district court erred by: (1) denying their motions for
mistrial based on a Jencks/Brady violation; (2) barring Yates from cross-examining Pusztai about
a relationship with another woman; and (3) denying Pusztai’s motion for personal access to
computer disks related to his defense. We find no merit in these contentions. See 11th Cir. Rule 36-
1.
Defendants further argue that the district court erred in the imposition of their sentences. We
need not address this argument because we set aside Defendants’ convictions and order a new trial.
Finally, in her en banc brief, Yates contends that admission of the video conference
testimony violated Federal Rule of Criminal Procedure 26 because the testimony was not “taken in
open court.” Fed. R. Crim. P. 26. Because this argument was not made in her initial appellate brief,
it is waived. United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005). We express no
opinion as to whether Rule 26 was violated.

6
 The second issue we discuss is Defendants’ contention that the district court

erred in denying their motions for judgment of acquittal on the ground that the

evidence was insufficient to support their convictions. We review this ruling de novo.

United States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999).

III. DISCUSSION

A. The Confrontation Clause

Defendants argue that admission of the video-conferenced testimony was not

necessary to further an important public policy and thus violated the rule announced

in Craig, 497 U.S. 836, 110 S. Ct. 3157.

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 (1988). This right to a

physical face-to-face meeting, however, is not absolute and may be compromised

under limited circumstances where “considerations of public policy and necessities

of the case” so dictate. Craig, 497 U.S. at 848, 110 S. Ct. at 3165. At issue in this

appeal is whether the district court’s findings demonstrate that denial of physical face-

to-face confrontation was necessary to further an important public policy.

7
 In Craig, the Supreme Court upheld, over a defendant’s Sixth Amendment

challenge, a Maryland rule of criminal procedure that allowed 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. 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

approved Maryland’s rule, 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. The Court held that

“[t]he Confrontation Clause reflects a preference for face-to-face confrontation at trial,

a preference that must occasionally give way to considerations of public policy and

the necessities of the case.” Id. at 849, 110 S. Ct. at 3165. The Court explained, “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.” Id. at 850, 110 S. Ct. at 3166.

8
 The Government offers two arguments for why we should not apply the Craig

rule in this case. First, it maintains that Craig should not apply because the testimony

in this case was presented by two-way video conference rather than one-way video

conference as in Craig. Second, it asserts that two-way video conference testimony

is superior to testimony taken by deposition under Federal Rule of Criminal Procedure

15 in protecting the confrontation rights of defendants; therefore, it should be

admissible whenever Rule 15 deposition testimony would be. We disagree with both

arguments.

The Government relies on United States v. Gigante, 166 F.3d 75 (2d Cir. 1999),

a case in which 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. The Gigante court 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. at

81.

We reject this reasoning. The Gigante trial court should have applied Craig.

In fact, it did hold the required evidentiary hearing, took evidence from medical

experts, and found that both live witness testimony at trial and a Rule 15 deposition

9
were inappropriate in the trial of an accused mobster charged with, among other

things, conspiracy to murder because the witness: (1) was a former mobster

participating in the Federal Witness Protection Program, (2) was at an undisclosed

location, and (3) was in the final stages of inoperable, fatal cancer. In addition, the

district court found that the defendant was unable to travel due to his own medical

problems. Id. at 80, 81. Thus, if the district court had applied the Craig test, its

necessity standard likely would have been satisfied; to keep the witness safe and to

preserve the health of both the witness and the defendant, it was necessary to devise

a method of testimony other than live, in-court testimony and other than a Rule 15

deposition.

On review, the Second Circuit acknowledged that, “[t]here may well be

intangible elements of the ordeal of testifying in a courtroom that are reduced or even

eliminated by remote testimony.” Id. at 81. Therefore, “the use of remote, closed-

circuit television testimony must be carefully circumscribed.” Id. at 80. Indeed, the

Second Circuit held that Gigante’s confrontation rights had been adequately protected

by the district court through its procedure of holding an evidentiary hearing and

making specific factual findings regarding the exceptional circumstances that made

it inappropriate for the witness to appear in the same place as the defendant. Id. at 79-

80, 81.

10
 Our circuit precedent acknowledges that Craig supplies the proper test for

admissibility of two-way video conference testimony. See Harrell v. Butterworth, 251

F.3d 926, 930 (11th Cir. 2001) (on habeas review, holding Florida Supreme Court’s

decision that Craig test was satisfied so as to allow two-way video testimony was not

contrary to, nor an objectively unreasonable application of, federal law as determined

by the Supreme Court). We are not alone. Four other circuits agree. The Eighth

Circuit has explicitly rejected the argument that the Craig test does not apply to

testimony presented my means of two-way video conferencing. United States v.

Bordeaux, 400 F.3d 548, 554-55 (8th Cir. 2005) (declining to follow United States v.

Gigante, 166 F.3d 75 (2d Cir. 1999) and finding that “‘confrontation’ via a two-way

closed circuit television is not constitutionally equivalent to a face-to-face

confrontation.”). In addition, the Sixth, Ninth, and Tenth Circuits have applied the

Craig rule to test the admissibility of two-way video testimony at trial. Indeed, for

more than a decade, circuit courts have recognized that to allow prosecutorial

presentation of child witness testimony via two-way closed-circuit television under

the Child Victims’ and Child Witnesses’ Rights Statute, 18 U.S.C. § 3509, the

findings of the trial court must satisfy the Craig test in order to satisfy the

Confrontation Clause. See, e.g., United States v. Turning Bear, 357 F.3d 730, 737

(8th Cir. 2004); United States v. Moses, 137 F.3d 894, 897-98 (6th Cir. 1998); United

11
States v. Weekley, 130 F.3d 747 (6th Cir. 1997); United States v. Rouse, 111 F.3d 561,

568 (8th Cir. 1997); United States v. Quintero, 21 F.3d 885, 892 (9th Cir. 1994);

United States v. Carrier, 9 F.3d 867 (10th Cir. 1993); United States v. Garcia, 7 F.3d

885, 887-88 (9th Cir. 1993); United States v. Farley, 992 F.2d 1122, 1125 (10th Cir.

1993). The Second Circuit stands alone in its refusal to apply Craig. See Gigante,

166 F.3d 75.4

Because Defendants were denied a physical face-to-face confrontation with the

witnesses against them at trial, we must ask whether the requirements of the Craig

rule were satisfied, justifying an exception to the physical face-to-face confrontation

requirement of the Sixth Amendment. As indicated earlier, under Craig, such

testimony may be offered “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.” 497 U.S. at 850, 110 S. Ct. at 3166.

4
Notably, both dissenting opinions argue (but the Government does not) that the proper
standard to be applied is that stated in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004),
the most recent Supreme Court case governing the admissibility of out-of-court testimonial
statements. No doubt the Government passes on this argument because it recognizes that Crawford
applies only to testimonial statements made prior to trial, and the live two-way video testimony at
issue in this case was presented at trial.
The dissenters contend that the fact that a witness is legally unavailable necessarily means
that any testimony given by that witness, by any means, is hearsay testimony subject only to the
requirements of Crawford– unavailability and an opportunity to cross-examine. In addition to its
departure from longstanding precedent, this reasoning assumes away the constitutional issue in this
case– whether the confrontation that occurred is constitutionally sufficient. Crawford does not
answer this question.

12
 We reject the Government’s argument that Craig does not apply because two-

way video conference testimony is necessarily more protective of defendants’

confrontation rights than the method of admitting testimony of an unavailable witness

prescribed by Rule 15.5 First, the Government’s argument ignores the fact that Rule

15 gives the defendant the opportunity to be present at the deposition and thus an

opportunity for physical face-to-face confrontation. Second, the Government

concedes that the procedure used in this case is not authorized by the Federal Rules

of Criminal Procedure. Rather, the Government argues, admission of video testimony

is within the inherent powers of trial courts. But history demonstrates otherwise. In

2002, the Advisory Committee on the Criminal Rules suggested a revision to Federal

Rule of Criminal Procedure 26 that would have allowed testimony by means of two-

way video conferencing. Thereafter, the Supreme Court transmitted to Congress

proposed amendments to the Federal Rules of Criminal Procedure. The Court

declined to transmit the proposed revision to Rule 26 that would have allowed

5
The district court found that the Government had demonstrated the existence of exceptional
circumstances sufficient to justify the taking of a Rule 15 deposition. (R.3-314 at 26.) The
Government contends, therefore, that it would have been proper to have read into the trial record
deposition testimony taken pursuant to Rule 15. And, it argues– without citation other than
Gigante– that two-way video conference testimony is constitutionally superior to admission of Rule
15 deposition testimony at trial because it allows defendants and witnesses to see each other (albeit
through a television monitor), provides for cross-examination at the time of trial, and gives the jury
the opportunity to see witnesses instead of just hearing their words read from a deposition transcript.
Thus, the Government concludes, admission of two-way video conference testimony is sufficiently
protective of defendants’ Sixth Amendment rights to confrontation whenever deposition testimony
taken pursuant to Rule 15 would be admitted.

13
testimony by two-way video conference. Justice Scalia filed a statement explaining

that he shared “the majority’s view that the Judicial Conference’s proposed Fed. Rule

Crim. Proc. 26(b) is of dubious validity under the Confrontation Clause of the Sixth

Amendment to the United States Constitution . . . .” Order of the Supreme Court, 207

F.R.D. 89, 93 (2002). He remarked that the proposed amendments were “contrary to

the rule enunciated in Craig” in that they would not limit the use of remote testimony

to “instances where there has been a ‘case-specific finding’ that it is ‘necessary to

further an important public policy.’” Id. (citation omitted). Rule 26 was not revised

to allow such testimony.

Thus, to accept the Government’s reasoning on this point, we would need to

accept its implicit claim that it knows best how to protect defendants’ confrontation

rights. We do not accept this claim. To do so would require that we disregard the

history of the proposed amendments to Rule 26. Further, to accept the Government’s

claim, we would have to ignore the carefully-crafted provisions of Rule 15 that were

designed to protect defendants’ rights to physical face-to-face confrontation and

instead approve a procedure not contemplated by the Federal Rules of Criminal

Procedure.

The simple truth is that confrontation through a video monitor is not the same

as physical face-to-face confrontation. As our sister circuits have recognized, the two

14
are not constitutionally equivalent. See, e.g., United States v. Bordeaux, 400 F.3d 548,

554-55 (8th Cir. 2005). The Sixth Amendment’s guarantee of the right to confront

one’s accuser is most certainly compromised when the confrontation occurs through

an electronic medium. Indeed, no court that has considered the question has found

otherwise; even the Gigante court acknowledged that, “the use of remote, closed-

circuit television testimony must be carefully circumscribed.” United States v.

Gigante, 166 F.3d 75, 80 (2d Cir. 1999).

As stated above, where a defendant’s right to confront a witness against him

will be affected, the determination of whether a particular case requires a departure

from usual procedures must be made, by the trial court, on a case-by-case basis.

Craig, 497 U.S. at 854, 110 S. Ct. at 3169. The court generally must: (1) hold an

evidentiary hearing and (2) find: (a) that the denial of physical, face-to-face

confrontation at trial is necessary to further an important public policy and (b) that the

reliability of the testimony is otherwise assured. Id. at 850, 855, 110 S. Ct. at 3166,

3169. The first part of this test requires that the trial court find that it is essential to

deny the defendant his right to face-to-face physical confrontation in order to serve

the interest the government asserts. See, id. at 855, 110 S. Ct. at 3169 (stating that, in

order to separate the witness and defendant, the problem must be the physical

15
presence of the defendant during the witness’s testimony, not some other problem that

could be remedied by a less intrusive solution).

In this case, the district court applied the Craig test to permit the Australian

witnesses to testify by two-way video conference broadcast on a television monitor

at the trial convened in the United States Attorney’s Office in Montgomery, Alabama.6

(R.3-314.) However, it held no hearing to consider evidence of the necessity for the

video conference testimony. Rather, the trial court allowed the two-way video

testimony based only on the Government’s assertions in its motion that the Australian

witnesses were unwilling to travel to the United States for trial, (Id. at 2.), and the

Government’s posited “important public polic[ies] of providing the fact-finder with

crucial evidence,” (Id. at 19.), “expeditiously and justly resolving the case,” (Id. at

22.), and “ensuring that foreign witnesses can so testify.” (Id. at 20.)

The district court considered sufficient the Government’s stated “important public

policy of providing the fact-finder with crucial evidence,” (Id. at 19), and “interest in

expeditiously and justly resolving the case.” 7 (Id. at 22.) We accept the district

6
The Defendants also objected at trial to conducting the video conference in the United States
Attorney’s office. While the Defendants have abandoned this objection on appeal, we remain
concerned with the shift of a trial to a United States Attorney’s office.
7
There is no evidentiary support for the district court’s finding that the Government’s
interest in expeditiously and justly resolving the case created a necessity for the video testimony.
However, the district court was critical of the Government’s delay in identifying the need for the
foreign witnesses’ testimony. See n. 9 infra. There is some indication that the court was concerned
that the trial would be delayed if a Rule 15 deposition needed to be taken. (R.3-314 at 26.) In that

16
court’s statement 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. The Government’s interest in presenting the fact-

finder with crucial evidence is, of course, an important public policy. We hold,

however, that, under the circumstances of this case (which include the availability of

a Rule 15 deposition), the prosecutor’s need for the video conference testimony to

make a case and to expeditiously resolve it are not the type of public policies that are

important enough to outweigh the Defendants’ rights to confront their accusers face-

to-face.

The district court made no case-specific 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

conference. 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

circumstance, allowing the video testimony aided the expedient resolution of the case only because
the Government had already been less than diligent in seeking a Rule 15 deposition.
The district court also noted that “in today’s world of the internet and increasing
globalization, more and more situations will arise in which witnesses with material knowledge are
beyond the subpoena power of the Court.” (R.3-314 at 22.) Because this finding regarding the
future of communications was not case-specific, we do not consider it. See Craig, 497 U.S. at 855-
56, 110 S. Ct. at 3169 (requiring case-specific findings).

17
expeditiously resolved were it unnecessary for witnesses to appear at trial. If we were

to approve introduction of testimony in this manner, on this record, every prosecutor

wishing to present testimony from a witness overseas would argue that providing

crucial prosecution evidence and resolving the case expeditiously are important public

policies that support the admission of testimony by two-way video conference. See,

e.g., Remote Testimony– A Prosecutor’s Perspective, 35 U. Mich. J. L. Reform 719

(2002).

Craig requires that furtherance of the important public policy make it necessary

to deny the defendant his right to a physical face-to-face confrontation. 497 U.S. at

852, 110 S. Ct. at 3167. In this case, there simply is no necessity of the type Craig

contemplates. When one considers that Rule 15 (which provides for depositions in

criminal cases) supplied an alternative, this lack of necessity is strikingly apparent.8

The version of Rule 15 in effect at the time of Defendants’ trial states:

Whenever, due to exceptional circumstances of the case it
is in the interest of justice that the testimony of a
prospective witness of a party be taken and preserved for
use at trial, the court may upon motion of such party and
notice to the parties order testimony of such witness be
taken by deposition . . . .

8
The dissenters argue that the majority accords Rule 15 quasi-constitutional status. That is
incorrect. We do not suggest that Rule 15 is the only way to comply with the Confrontation Clause.
We find only that the availability of a Rule 15 deposition demonstrates that, in this case, it was not
necessary to deprive the Defendants of face-to-face meetings with their accusers.

18
Fed. R. Crim. P. 15(a) (2002). The rule continues, guaranteeing the defendant’s right

to physical face-to-face confrontation by specifically providing for his presence at the

deposition. Fed. R. Crim. P. 15(b) (2002); see also, Don v. Nix, 886 F.2d 203, 206

(8th Cir. 1989) (holding that the Sixth Amendment guarantees a criminal defendant

the opportunity to be present at the deposition of an accuser); United States v.

Benfield, 593 F.2d 815, 821 (8th Cir. 1979) (same); In re Letters of Request from

Supreme Court of Hong Kong, 821 F. Supp. 204, 209 (S.D.N.Y. 1993) (stating that

Rule 15 guarantees defendants a right to be present at deposition so as to prevent use

of deposition testimony at trial from violating Sixth Amendment right to

confrontation). Even a defendant in custody “shall” be produced for the deposition,

unless the defendant waives the right to be present in writing or is disruptive. Fed. R.

Crim. P. 15(b) (2002). Indeed, the defendant’s presence at the deposition is so

important that, if he cannot afford to attend, the government may be ordered to pay

the costs of travel and subsistence expenses for him and his attorney. Fed. R. Crim.

P. 15(c) (2002).9

9
The current version of Rule 15 continues to guarantee the defendant, whether in custody or
not, an opportunity to be present at the deposition. Fed. R. Crim. P. 15(c). The current rule is more
protective of indigent defendants, however. In a case like this, where the deposition would be taken
at the request of the government, the current rule requires the government to pay the expenses of
such a defendant’s attendance. Fed. R. Crim. P. 15(d).

19
 The Government argues that depositions later read into the record at trial, in

fact, do occur without the defendant having been present. While that may be so, it is

only the rare, exceptional case. Rule 15, properly utilized, protects a defendant’s

confrontation rights by affording the defendant an opportunity to be present at the

deposition. United States v. Dragoul, 1 F.3d 1546, 1556 (11th Cir. 1993). It is the

extraordinary circumstance where deposition testimony is taken despite a defendant’s

want of opportunity to be present. See, e.g., United States v. Salim, 855 F.2d 944, 949

(2d Cir. 1988) (finding that deposition may be taken, despite foreign country’s refusal

to allow defendant to be present but deferring question of whether admission of such

a deposition would violate the Confrontation Clause). Even in those exceptional

cases, courts have said that the government must have made diligent and reasonable

efforts to produce the defendant at the taking of the deposition. Id. at 950-51; see also

United States v. McKeeve, 131 F.3d 1, 8 (1st Cir. 1997). Other circuits have

recognized that failure to make such efforts, followed by use of the deposition at trial,

violates the defendant’s confrontation rights. See, e.g., Christian v. Rhode, 41 F.3d

461, 465-467 (9th Cir. 1994).

On this record, there is no evidentiary support for a case-specific finding that

the witnesses and Defendants could not be placed in the same room for the taking of

pre-trial deposition testimony pursuant to Rule 15. Other than stating that the

20
witnesses would not come to the United States, the trial court gave no reason why the

witnesses and Defendants could not all be in the same room for a pre-trial

deposition.10 The district court did not find that there was anything to prevent the

Defendants from traveling to Australia to be present for a Rule 15 deposition. In fact,

it found that the only reason a Rule 15 deposition may not have been an appropriate

alternative to the video conference was that the Government had waited too long to

request such a deposition.11 (R.3-314 at 27.)

Moreover, in this case, the Government never requested a Rule 15 deposition.

The Government has never maintained that any special circumstance created an

inability to take such a deposition or that it would have been impossible to allow

Defendants to attend such a deposition. Instead, it has argued only that testimony

presented by two-way video conference is superior to testimony taken by Rule 15

10
Other courts have identified legitimate reasons why physical face-to-face confrontation
cannot be accommodated. This is not a case like Craig where, in order to preserve the delicate
psyche of the child who was the alleged victim of abuse, it was necessary to devise a procedure by
which the child testified outside the presence of the alleged abuser. Neither is it like Gigante, where,
in order to protect the health and safety of the former mobster witness, it was necessary to use such
a procedure to separate him from the alleged mob boss defendant. In this case, the Government’s
interest in “providing the fact-finder with crucial evidence” simply did not make it necessary to
separate the Australian witness from the Defendant accused of illegal sales of prescription drugs.
11
Despite finding that the Government knew of the Australian witnesses and their relevance
for over two years before it made its pre-trial motion, that the Government had seriously delayed
in making its request to admit video conference testimony by the Australian witnesses, and that this
serious delay “would likely typify the kind of delay warranting the denial of a Rule 15 deposition,”
(R.3-314 at 27.), the district court found that the delay created “no real prejudice” to Defendants.
(Id. at 9-10.) We disagree.

21
deposition with witness and defendant in the same room. While that might be the

opinion of some, it was not the opinion of Defendants. Should they have wished to

waive their rights to confrontation, they were able to do so. In the absence of such a

waiver or case-specific findings of exceptional circumstances creating the type of

necessity Craig contemplates, however, witnesses and criminal defendants should

meet face-to-face. The Sixth Amendment so requires.

“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.” Craig, 497 U.S. at 845-846, 110 S. Ct. at 3163 (citations omitted).

Defendants contend that the oath sworn by the Australian witnesses was not

meaningful, either because it was invalid (as it was not administered in Australia, by

someone authorized by federal law to give an oath outside of the United States) or

because it did not subject the witnesses to a plausible threat of prosecution for perjury.

We need not address these contentions. Because we find that denial of Defendants’

22
Sixth Amendment rights to face-to-face confrontation was not necessary to further an

important public policy in this case, we proceed no further with the Craig analysis.

We therefore do not consider the meaningfulness of the oath as administered.12

B. Motions for Judgment of Acquittal

Finally, we turn to Defendants’ contentions that the district court erred in

denying their motions for judgments of acquittal based on their assertions that the

evidence admitted at trial was insufficient to support their convictions. Pusztai made

no argument in his initial appellate brief regarding the insufficiency of the evidence

upon which he was convicted; thus, we do not consider the sufficiency of the evidence

against him. Having reviewed the evidence admitted at trial, 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.13 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.”).

12
There is also a question whether the Defendants timely challenged the oath or waived their
argument that it was invalid. We need not address that question either.
13
Yates argues in her briefs to the en banc panel that we should ignore evidence admitted
in violation of the Confrontation Clause in determining the sufficiency of the evidence upon which
she was convicted. She did not make this argument in her initial appellate brief. Therefore, she has
waived it. United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005). We apply the usual
rule and consider all the evidence admitted at trial, including the video conference testimony.

23
 Thus, retrial of Defendants 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 (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.”).

IV. CONCLUSION

Because the presentation of live, two-way video conference testimony on a

television monitor violated Defendants’ Sixth Amendment confrontation rights, we

vacate their convictions and remand for a new trial.

CONVICTIONS VACATED; REMANDED FOR A NEW TRIAL.

24
TJOFLAT, Circuit Judge, dissenting, in which BIRCH and MARCUS, Circuit Judges,
join:

The court holds that a district court’s decision to permit the live, at-trial

testimony, via two-way video transmission, of a witness in a foreign country and

beyond the court’s subpoena power violates a defendant’s Confrontation Clause1

rights. According to the court, this is primarily because the availability of a deposition

pursuant to Fed. R. Crim. P. 15 2 renders it “unnecessary” to deprive the defendant of

his right to be in the physical presence of a testifying witness. Because I disagree with

the majority’s Confrontation Clause analysis and find fault in the court’s application

1
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him . . . .” U.S. Const. amend. VI.
2
Rule 15 provides, in relevant part:
Depositions
(a) When Taken.
(1) In General. A party may move that a prospective witness be deposed in
order to preserve testimony for trial. The court may grant the motion because of
exceptional circumstances and in the interest of justice. . . .
...
(c) Defendant’s Presence.
(1) Defendant in Custody. The officer who has custody of the defendant
must produce the defendant at the deposition and keep the defendant in the witness’s
presence during the examination, unless the defendant:
(A) waives in writing the right to be present; or
(B) persists in disruptive conduct justifying exclusion after being
warned by the court that disruptive conduct will result in the
defendant's exclusion.
(2) Defendant Not in Custody. A defendant who is not in custody has the
right upon request to be present at the deposition, subject to any conditions
imposed by the court. . . .
Fed. R. Crim. P. 15.

25
of the governing Supreme Court precedents, I respectfully dissent. Part I analyzes the

procedure under the framework utilized by the majority and finds no constitutional

deficiency. Part II applies a different, and in my view correct, framework and arrives

at the same conclusion. Part III briefly concludes.

I.

The Confrontation Clause protects a defendant’s right “to be confronted with

the witness against him.” U.S. Const. amend. VI. This right cannot be reduced to a

singular right to be physically present as a witness testifies. As the Supreme Court has

stated, the right protected by the Clause has several components:

[T]he 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 from 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.”

Maryland v. Craig, 497 U.S. 836, 845 - 46, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666

(1990) (citation omitted) (alteration in original) (quoting California v. Green, 399 U.S.

149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489 (1970)). As such, “face-to-face

confrontation . . . is not the sine qua non of the confrontation right,” id. at 847, 110

S. Ct. at 3164, and “must occasionally give way to considerations of public policy and

26
the necessities of the case,” id. at 849, 110 S. Ct. at 3165 (quoting Mattox v. United

States, 156 U.S. 237, 243, 15 S. Ct. 337, 340, 39 L.Ed. 409 (1895)) (internal quotation

marks omitted).

Specifically, the Supreme Court has 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.”

Craig, 497 U.S. at 850, 110 S. Ct. 3166. The majority applies this two-part test and

finds the procedure used here lacking for several reasons. First, the public policies the

district court found in “providing the fact-finder with crucial evidence,” and

“expeditiously and justly resolving the case,” while “important public policies,” “are

not the type of public policies that are important enough to outweigh the Defendants’

rights to confront their accusers face-to-face.” Ante at 16 - 17. Second, the majority

faults the district court for making “no case-specific 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 conference.” Ante at 17. Finally, the court suggests that, because of the

availability of a deposition pursuant to Rule 15, it was not “necessary to deny the

defendant his right to a physical face-to-face confrontation.” Ante at 18.

27
 Even assuming the majority has applied the correct constitutional test, I part

ways with the majority’s analysis from the beginning. It is beyond reproach that there

is an important public policy in providing the fact-finder with crucial, reliable

testimony and instituting procedures that ensure the integrity of the judicial process.

See Ohio v. Roberts, 448 U.S. 56, 64, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597 (1980),

overruled on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004) (“[E]very jurisdiction has a strong interest in effective law

enforcement, and in the development and precise formulation of the rules of evidence

applicable in criminal proceedings.”); Martinez v. Court of Appeal, 528 U.S. 152, 163,

120 S. Ct. 684, 692, 145 L. Ed. 2d 597 (2000) (“[T]he overriding state interest in the

fair and efficient administration of justice” is significant enough to “outweigh an

invasion of the appellant’s interest in self-representation.”); United States v. Scheffer,

523 U.S. 303, 308 - 09, 118 S. Ct. 1261, 1264, 140 L. Ed. 2d 413 (1998) (“A

defendant’s right to present relevant evidence is not unlimited, but rather is subject to

reasonable restrictions. A defendant’s interest in presenting such evidence may thus

‘bow to accommodate other legitimate interests in the criminal trial process.’ . . . [The

interests here] include ensuring that only reliable evidence is introduced at trial [and]

preserving the court members’ role in determining credibility . . . .” (footnote and

citations omitted) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S. Ct. 2704, 2711,

28
97 L. Ed. 2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.

Ct. 1038, 1046, 35 L. Ed. 2d 297 (1973)) (internal quotation marks omitted))); id. at

312 - 13 (1998) (“It is equally clear that [Military Rule of Evidence 707, which makes

polygraph evidence inadmissible in court-martial proceedings] serves a second

legitimate governmental interest: Preserving the court members’ core function of

making credibility determinations in criminal trials. A fundamental premise of our

criminal trial system is that ‘the jury is the lie detector.’” (opinion of Thomas, J.)

(quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973)) (emphasis

omitted)); United States v. Koblitz, 803 F.2d 1523, 1528 (11th Cir. 1986) (holding

that “the Government’s interest in the efficient administration of justice” outweighed

appellants’ Sixth Amendment right to be represented at trial by their counsel of

choice); United States v. Gigante, 971 F. Supp. 755, 756 - 57 (E.D.N.Y. 1997)

(“American criminal procedure . . . is pragmatic. It recognizes that this ideal

condition [a witness testifying in person, in court] can not be made available in every

instance if there is to be an effective search for the truth in an atmosphere protecting

the defendant’s needs for fairness and due process and the public’s right to protection

against crime.”); Carlsen v. Morris, 556 F. Supp. 320, 322 (D.C.Utah 1982) (“The

intent of the statute is to prevent interference with the fair administration of justice,

an unquestionably compelling governmental interest.”); Harrell v. State, 709 So. 2d

29
1364, 1370 (Fla. 1998) (“[T]he [foreign] witnesses were absolutely essential to this

case. . . . [T]here is an important state interest in resolving criminal matters in a

manner which is both expeditious and just. In order to do that in this case, the

testimony of these two witnesses was a necessity.”).3 Indeed, ensuring the reliability

of admitted testimony and safeguarding the integrity of the judicial process are core

functions of the Confrontation Clause itself: “The central concern of the [Clause] is

to ensure the reliability of the evidence against a criminal defendant by subjecting it

to rigorous testing in the context of an adversary proceeding before the trier of fact.”

Craig, 497 U.S. at 845, 110 S. Ct. at 3163 (emphasis added); see also White v. Illinois,

502 U.S. 346, 356 - 57, 112 S. Ct. 736, 743, 116 L. Ed. 2d 848 (1992) (“[T]he

Confrontation Clause has as a basic purpose the promotion of the ‘integrity of the fact-

finding process.’” (quoting Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 2802,

101 L. Ed. 2d 857 (1988) (quoting Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct.

2658, 2662, 96 L. Ed. 2d 631 (1987)) (internal quotation marks omitted))).

3
Despite the majority’s conclusion that public policy at stake here is not significant enough
“to outweigh the Defendants’ rights to confront their accusers face-to-face,” ante at 17, it is clear
that the majority’s opinion is focused primarily on the availability of a deposition as an alternative
to obtain a witness’s testimony. The majority does not here reject the use of the two-way procedure
where a deposition is not feasible, or in the “rare, exceptional case,” ante at 19, where presence at
a deposition cannot be guaranteed. Accordingly, the court’s opinion should not be read to hold that
the public policies involved here are not significant enough to satisfy the first prong of the Craig
analysis.

30
 Moreover, providing the fact-finder with reliable testimony and justly resolving

the case are the same public policies that were found important enough to warrant the

one-way procedure approved in Craig. Despite the Craig Court’s suggestion that the

public policy at issue was the “State’s interest in the physical and psychological well-

being of child abuse victims,” Craig, 497 U.S. at 853, 110 S. Ct. at 3167, it is clear

that depriving a defendant of his right to physical presence is not “necessary” to

further that obviously compelling interest. The State could just as easily further this

interest by not forcing the child to testify. Indeed, Justice Scalia remarked as much

in dissent: “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.” Id. at 867, 110 S. Ct. at 3175

(Scalia, J., dissenting). In other words, the State’s interests were to provide the fact-

finder with reliable testimony, ensure the integrity of the judicial process, and foster

respect for the rule of law. That these interests can come into conflict with a

defendant’s right to physical presence as a result of physical confrontation itself as in

Craig, as opposed to the limitations on a court’s subpoena power as here, does nothing

to detract from the importance of these interests.

In fact, it is precisely because of the importance of obtaining reliable testimony

that this court has repeatedly expressed its concern with the use of depositions in lieu

31
of trial testimony. See United States v. Drogul, 1 F.3d 1546, 1551 (11th Cir. 1993)

(“Depositions generally are disfavored in criminal cases. . . . In particular, because

of the absence of procedural protections afforded parties in the United States, foreign

depositions are suspect and, consequently, not favored.”); id. at 1552 (“The primary

reasons for the law’s normal antipathy toward depositions in criminal cases are the

factfinder’s usual inability to observe the demeanor of deposition witnesses, and the

threat that poses to the defendant’s Sixth Amendment confrontation rights.” (footnote

omitted)); United States v. Milian-Rodriguez, 828 F.2d 679, 686 (11th Cir. 1987)

(“The decision whether to allow . . . depositions is committed to the discretion of the

district court, but the use of depositions in criminal cases is not favored because the

factfinder does not have an opportunity to observe the witness’[s] demeanor.” (citation

omitted)). That a federal rule of criminal procedure provides for presence at a

deposition, see Fed. R. Crim. P. 15(c), is irrelevant to whether the two-way video

transmission is necessary to further the important public policy of providing

important, credible evidence at trial.4 The State’s interest is not merely in providing

evidence, it is in providing reliable evidence. In this regard, the two procedures are

4
While it is true that the Rule does provide a defendant with an opportunity for presence,
as discussed infra, there is no reason to believe that the Constitution guarantees a defendant’s
presence at a deposition. I find it highly problematic that the constitutionality of a procedure can
rest on the whim of the Rules drafters. Either the procedure used here is adequate to protect a
defendant’s Confrontation Clause right or it is not. That determination ought not change every time
the Rules do.

32
not equivalent, and it is certainly within the discretion of a trial court to determine that

a deposition is not an adequate replacement for testimony at trial, before the finder-of-

fact.

In some cases a trial court may determine that a deposition is a satisfactory

substitute for live testimony and the added Confrontation Clause benefit of presence

at the deposition renders the deposition the preferred method for obtaining the

testimony. In other cases, the court may determine that the opportunity for a

credibility assessment provided by live, two-way transmission is of particular

importance to ensure the reliability of the testimony. Such a determination, however,

is unequivocally case-specific. It may depend on the technology available for the

deposition. Whether the deposition will be taped and played before the jury or simply

read into evidence is an important factor to consider in determining whether a

deposition is sufficiently reliable to substitute for in-court testimony. Similarly, the

type (e.g., one-way v. two-way transmission) and quality of the technology to be used

during transmission should be taken into account. A district court might also consider

the necessity and nature of the witness’s testimony. Specifically, whether the

testimony is accusatory or descriptive in nature might impact the court’s

determination of the reliability enhancement that could result from physical presence.

Additionally, the court should consider the effect of delay caused by a deposition in

33
a foreign country during the course of trial. Not only could the delay affect the

“efficient” administration of justice, but a court might also determine that a lengthy

delay would affect the jury’s recollection or the availability of other witnesses. The

court might also consider the importance of the testimony being given in the context

of trial rather than months or years prior. The court should also consider the extent

a given alternative deprives a defendant of his Confrontation Clause rights to

“physical presence, oath, cross-examination, and observation of demeanor by the trier

of fact . . . .” Craig, 497 U.S. at 846, 110 S. Ct. at 3163.5 Needless to say, these

considerations are not exhaustive, and it is well within the sound discretion of the

district court to determine how such factors impact the reliability and feasibility of a

deposition. An abstract determination that the availability of a deposition makes

depriving a defendant of his right to physical presence at trial unnecessary to further

the public policy of providing the fact-finder with reliable testimony ignores the

realities of trial and presumes that all forms of testimony are created equal.

This case-specific determination of the reliability of a deposition as opposed to

live, two-way video testimony is precisely what the Supreme Court required in Craig

5
I hasten to note that I do not believe a court should engage in a conceptual balancing of
whether a particular confrontation element is invariably more important than another. I do believe,
however, that a district court must take into account the extent to which a defendant’s right to
confrontation has been abridged; extensive deprivations are at least prima facie evidence of
unreliability.

34
and the majority here finds lacking. The majority rebukes the district court for not

making “case-specific findings of fact that would support a conclusion that this case

is different from any other criminal prosecution,” ante at 17,6 or that “the witnesses

and Defendants could not be placed in the same room for the taking of pre-trial

deposition testimony pursuant to Rule 15,” ante at 20. In doing so, the majority here

makes too much of the unique context of Craig. In Craig, it was confrontation itself

that had to be avoided in order to obtain the testimony. Accordingly, the Court

required a case-specific finding that depriving the defendant of his right to physical

presence “is necessary to protect the welfare of the particular child witness who seeks

to testify,” and that “the child witness would be traumatized, not by the courtroom

6
The majority proceeds to exaggerate the “floodgate” potential of permitting the two-way
procedure in this case. The court claims that
[a]ll 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 unnecessary for witnesses to appear at trial. If we
were to approve introduction of testimony in this manner, on this record, every
prosecutor wishing to present testimony from a witness overseas would argue that
providing crucial evidence and resolving the case expeditiously are important public
policies that support the admission fo testimony by two-way video conference.
Ante at 17. Yet what the majority ignores is that it was not just more convenient to use two-way
video transmission to obtain live testimony in this case, it was necessary to do so. This is because
the witnesses were beyond the district court’s subpoena power, and hence, unavailable. Despite the
majority’s suggestion, this is not true of every overseas witness. Pursuant to 28 U.S.C. § 1783, “[a]
court of the United States may order the issuance of a subpoena requiring the appearance as a
witness before it . . . of a national or resident of the United States who is in a foreign country . . . .”
Thus, it is only foreign nationals outside the United States who are beyond the federal courts’
subpoena power. So despite any given prosecutor’s sincerest wishes, unless a witness is truly
unavailable, making two-way transmission necessary to obtain the witness’s testimony at trial, the
prosecution has no choice but to have the witness testify in the physical presence of both the
defendant and the court.

35
generally, but by the presence of the defendant.” Craig, 497 U.S. at 855 - 56, 110 S.

Ct. at 3169. Here, there is no argument that the effect of physical confrontation itself

necessitates depriving the defendant of his full Confrontation right. Rather, the

limitation of the court’s subpoena power so requires. As such, a finding that the

defendant cannot be physically in the same room as the witness would fail to address

the reason for the potential deprivation. Accordingly, once it is determined that a

particular witness cannot be haled into court, and will not appear voluntarily, it should

be left to the court’s case-by-case discretion to determine if there are other alternatives

to two-way transmission that both provide comparably reliable testimony and fully

protect the defendant’s Confrontation Clause rights. If no such alternative is

available, the court has made a case-specific determination that depriving the

defendant of his right to presence is necessary to further the important public policy

of providing the fact-finder with dependable testimony and preserving the integrity

and reliability of the judicial process.7 It is this individualized determination that

makes a particular case “different from any other criminal prosecution.”8

7
There is no suggestion that the trial court abused its discretion in making its determination
in this case.
8
The majority also suggests that the failure to amend Rule 26 of the Federal Rules of
Criminal Procedure to allow for two-way video transmission in certain cases is somehow relevant
to the resolution of this case. Ante at 13 - 14. It is unclear whether the majority’s discussion goes
to the constitutionality of the procedure or the scope of courts’ inherent power to authorize it. To
the extent the majority suggests that either the rejection of the proposed amendment or Justice
Scalia’s statement can be construed as a Supreme Court statement on the constitutionality of the

36
 The circumstances of cases such as this foreclose the possibility of the ideal

Confrontational Clause situation – namely cross-examination of a sworn-in witnesses

in the physical presence of both the defendant and the finder-of-fact. Thus, to the

extent testimony will be admitted in these circumstances, the defendant’s

Confrontation rights must be abridged in some way. None of the alternatives are

identical to each other or to live testimony at trial. Nor can the alternatives always be

considered perfect substitutes for one another. Here, the district court, in the exercise

procedure, it is flatly wrong. To begin, Justice Scalia only suggests that the proposed amendment
is of “dubious validity,” Amendments to Rule 26(b) of the Federal Rules of Criminal Procedure, 207
F.R.D. 89, 93 (2002) (statement of Scalia, J.), a statement which just as easily can be made of every
constitutional challenge the Supreme Court elects to hear. More fundamentally, however, the
opinion represents nothing more than the legal musings of a Supreme Court Justice on an issue that
has yet to be briefed and argued in a case or controversy before the Court. “[S]uch advance
expressions of legal judgment upon issues which remain unfocused because they are not pressed
before the Court with that clear concreteness provided when a question emerges precisely framed
and necessary for decision from a clash of adversary argument exploring every aspect of a
multifaceted situation embracing conflicting and demanding interests, we have consistently refused
to give.” United States v. Fruehauf, 365 U.S. 146, 157, 81 S. Ct. 547, 554, 5 L. Ed. 2d 476 (1961).
Justice Scalia has recognized as much: “In my view even the adopting Justices’ thoughts,
unpromulgated as Rules, have no authoritative (as opposed to persuasive) effect, any more than their
thoughts regarding an opinion (reflected in exchanges of memoranda before the opinion issues)
authoritatively demonstrates the meaning of that opinion.” Tome v. United States, 513 U.S. 150,
168, 115 S. Ct. 696, 706, 130 L. Ed. 2d 574 (1995) (Scalia, J., concurring). Accordingly, the
Government’s argument is no more an “implicit claim that it knows best how to protect defendants’
[constitutional] rights,” ante at 14, than is any argument proffered by the Government in a case
where the defendant happens to disagree.
To the extent the majority ascribes a limitation on the court’s inherent power to the rejection
of the rule, it makes much ado about nothing. Not only could the attempt to amend Rule 26 be
viewed as a constriction or delineation of courts’ inherent power to authorize the procedure as
opposed to a grant of power the courts previously lacked, but it is fairly uncontroversial that it was
and remains well within courts’ inherent power to authorize the procedure for defendant’s witnesses
or for prosecution witnesses so long as the defendant consents. For persuasive authority see 207
F.R.D. at 98 (2002) (statement of Breyer, J.). Whether a court may similarly authorize such a
procedure for prosecution witnesses without a defendant’s consent is a constitutional issue, not one
of inherent authority.

37
of its sound discretion, made a considered determination that live, two-way video

transmission of unavailable witnesses’ testimony was necessary to further the

important public policy of providing the factfinder with crucial, reliable testimony.

This is all Craig demands.9

II.

While I find serious fault with the majority’s application of the Craig test, I am

perhaps most concerned about the illogical result that follows from the court’s failure

to evaluate the procedure in its proper constitutional context. The majority’s analysis

implicitly places two-way video testimony in constitutional purgatory. The witnesses

are not “present” enough to be considered in the defendant’s “presence,” but are

somehow “present” in court where the defendant is also “present.” In other words,

despite the majority’s determination that the witnesses were not in the defendant’s

presence, it analyzed the testimony as if it were given “in court,” as opposed to what

it really is – hearsay. Viewing the testimony in this light removes any doubt as to the

procedure’s constitutionality.

9
The second prong of the Craig analysis, requires the district court to determine that “the
reliability of the testimony is otherwise assured.” Craig, 497 U.S. at 850, 110 S. Ct. 3166. Thus,
the court must find not only that the two-way video procedure is more reliable than a deposition, but
intrinsically reliable as well. I see nothing in the record to suggest that the district court abused its
discretion in this regard.

38
 Evaluating the procedure here as “out-of-court testimony,” may, at least

initially, seem precluded by Craig itself. After all, if the Supreme Court analyzed the

one-way procedure in Craig as in-court, how could the two-way procedure at issue

here be considered anything but in-court? The difference between Craig and the

procedure here results, I believe, from the type of testimony for which the video

transmission substitutes. In Craig, the witness was available to testify; the one-way

procedure was intended to reduce the psychological trauma of doing so. Thus, the

transmission served to replace the testimony of a witness who was otherwise available

to testify in open court. Justice Scalia, in dissent, relied on the witness’s availability

to distinguish the testimony from hearsay:

Some of the Court’s analysis seems to suggest that the children’s
testimony here was itself hearsay of the sort permissible under our
Confrontation Clause cases. That cannot be. Our Confrontation Clause
conditions for the admission of hearsay have long included a “general
requirement of unavailability” of the declarant. “In the usual case . . .,
the prosecution must either produce, or demonstrate the unavailability of,
the declarant whose statement it wishes to use against the defendant.”

Craig, 497 U.S. at 865, 110 S. Ct. at 3174 (Scalia, J., dissenting) (alteration in

original) (citations omitted) (quoting Idaho v. Wright, 497 U.S. 805, 815, 110 S. Ct.

3139, 3146, 111 L. Ed. 2d 638; Roberts, 448 U.S. at 65, 100 S. Ct. at 2538). As a

result, it made sense to treat the testimony in Craig as in-court.10

10
Of course, doing so invariably treats the witness as outside of the defendant’s presence
despite them both being “present” in court. However, the value of treating “presence” in a

39
 In this case, however, the witnesses were unavailable and could not be

compelled to testify at trial. As the majority’s opinion makes abundantly clear, the

two-way procedure served as a stand-in for a deposition – hearsay in its purest form.

That the actual testimony was given during trial, in front of a jury, as opposed to, say,

the day before the trial began, does not change the analysis. There was no way to

bring the witnesses physically into court. The witnesses’ testimony could only be

obtained by deposition or two-way transmission. That Rule 15 provides for the

defendant’s presence at a deposition is similarly irrelevant. The issue before this court

is whether presence is constitutionally required for either the deposition or its

functional replacement, the two-way video transmission.

The constitutionality of admitting out-of-court, testimonial statements is

governed by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d

177. “Testimonial statements of witnesses absent from trial [are admissible] only

where the declarant is unavailable, and only where the defendant has had a prior

opportunity to cross-examine.” Id. at 59, 124 S. Ct. at 1369. Physical presence is not

mentioned, nor is it required. 11 In this case, the witnesses’ statements were

consistent manner must be balanced against the value of treating functional equivalents in a
consistent constitutional manner. In Craig, the transmission was a direct replacement for the in-
court testimony of an available witness and it was appropriate to analyze the procedure accordingly.
11
The Crawford Court specifically mentions that the analysis applies to “testimonial”
statements, such as prior testimony before a grand jury (at which presence is not permitted) or at a
former trial (which, if civil, provides no presence guarantee). 541 U.S. at 68, 124 S. Ct. at 1374.

40
unquestionably testimonial, and therefore the Crawford requirements would need to

be satisfied. The defendant here was given a full opportunity to cross examine the

unavailable witnesses. Constitutional issue settled. Accordingly, there can be no

question that the procedure utilized here, a mechanism for obtaining the out-of-court

testimony of an unavailable witness, passes constitutional muster.

III.

For the foregoing reasons, I believe the live, two-way video transmission used

in this case does not violate the defendant’s Sixth Amendment right to confrontation.

Accordingly, I would affirm the judgment of the district court.

It is also instructive that, despite Rule 15, depositions for which the defendant was not permitted to
be present have not been found to violate either the Rule or the Confrontation Clause. See, e.g.,
United States v. Mueller, 74 F.3d 1152, 1156 - 57 (11th Cir. 1996); United States v. McKeeve, 131
F.3d 1, 7 - 10 (1st Cir. 1997); United States v. Kelly, 892 F.2d 255, 260 - 63 (3d Cir. 1989); United
States v. Salim, 855 F.2d 944, 948 - 55 (2d Cir. 1988).

41
MARCUS, Circuit Judge, dissenting, in which TJOFLAT and BIRCH, Circuit
Judges, join:

I join in Judge Tjoflat’s opinion and write separately to add a few thoughts

of my own. As I see it, the use of the video testimony procedure employed in this

case fully comported with the text, historical purpose, and modern understanding

of the Confrontation Clause. The majority has essentially revised the Sixth

Amendment on its own by erroneously employing a test that does not apply.

Accordingly, I respectfully dissent.

The majority rests its opinion on Maryland v. Craig, 497 U.S. 836, 110 S.

Ct. 3157, 111 L. Ed. 2d 666 (1990), a case that for at least three basic reasons is

wholly inapplicable to the facts of this one. The first and most important

distinction is that Craig involved witnesses who could have been ordered to testify

in court in the usual fashion, but for compelling public policy reasons were

permitted to testify out of the defendant’s presence. In this case, by contrast, the

witnesses (then in Australia) genuinely were unavailable to appear in court to give

their testimony and could not be either persuaded or compelled to appear. Second,

Craig was tailored to a very particular predicament: that of an abused child who, if

forced to take the witness stand to confront her abuser, would suffer emotional

trauma that would compound the harm she had already suffered and also impair

her ability to give reliable testimony. Finally, the contemporaneous, real-time, two-

42
way video procedure used in this case was wholly different in nature from the one-

way video procedure employed in Craig. A two-way videoconference used

contemporaneously during trial, unlike a one-way videoconference, allows the

witness to see the jury and the defendant, thus achieving the Confrontation

Clause’s important goal of bringing the accuser face to face with the accused and

the factfinder, albeit through the medium of a television screen.

Moreover, even if Craig could be adapted to govern the facts of this case, a

proper analysis under Craig would still not follow the path the majority has

followed. In finding that the possibility of a Rule 15 deposition somehow made

remote testimony improper under Craig, the majority has misapprehended both

Rule 15 and the Confrontation Clause. Indeed, it has inexplicably accorded Rule

15 quasi-constitutional status as the exclusive means of obtaining overseas

testimony. The Craig test, properly applied, would find that the two-way video

procedure used here satisfied the Confrontation Clause in light of the necessity of

obtaining the overseas witnesses’ testimony and the extensive measures the district

court took to preserve the essential elements of effective confrontation. All in all,

the procedure the district court followed in this case fully complied with the

demands of the Confrontation Clause. Yates and Pusztai had every opportunity to

43
cross-examine the witnesses against them, and those witnesses testified under oath 1

and under the gaze of the defendants, the judge and the jury.

I agree with the majority that the only question properly before us today is

whether the use of a contemporaneous, two-way video procedure violated the

defendants’ rights under the Sixth Amendment Confrontation Clause. I also agree

that we have no occasion to visit other questions such as whether the procedure

complied with Rule 26 of the Federal Rules of Criminal Procedure.

I.

The majority holds that the two-way video testimony procedure in this case

violated the Confrontation Clause because it failed the test postulated in Maryland

v. Craig, where the Supreme Court held that a trial court may dispense with face-

to-face in-court confrontation when it finds that doing so is necessary to advance

an important government interest and the reliability of the testimony is assured

through other means. Id. at 850, 110 S. Ct. at 3166. This case falls outside the

narrow scope of Craig.

First, any discussion of Maryland v. Craig must begin with the unique facts

of the case. The defendant, the owner and operator of a kindergarten and

1
The defendants have also argued that because the defendants were in Australia, they were
not subject to a penalty for perjury under U.S. law. Because the majority does not address the issue,
I assume for the purposes of my analysis that the witnesses’ oaths carried the possibility of a penalty
for perjury.

44
prekindergarten center, was charged with sexually abusing a six-year-old girl who

had been in her care. The prosecution asked the trial court to invoke a state

criminal procedure statute that authorized one-way video testimony by alleged

victims of child abuse when “testimony by the child victim in the courtroom will

result in the child suffering serious emotional distress such that the child cannot

reasonably communicate.” Craig, 497 U.S. at 841, 110 S. Ct. at 3161 (quoting Md.

Cts. & Jud. Proc. Code. Ann. § 9-102(a)(1)(ii) (1989)). The court determined that

testifying live would distress Craig’s alleged victims in exactly that way, and it

allowed the named victim and three more victims to testify against Craig through

the one-way video procedure. Craig was convicted, and she sought a new trial,

arguing that the federal Confrontation Clause guaranteed her a face-to-face

courtroom encounter with her accusers.

The Supreme Court rejected Craig’s argument, ruling that “[a]lthough face-

to-face confrontation forms ‘the core of the values furthered by the Confrontation

Clause’ . . . it is not the sine qua non of the confrontation right.” Id. at 847, 110 S.

Ct. at 3164 (quoting California v. Green, 399 U.S. 149, 157, 90 S. Ct. 1930,

1934–35, 26 L. Ed. 2d 489 (1970)). The Court held that “if the State makes an

adequate showing of necessity, the state interest in protecting child witnesses from

the trauma of testifying in a child abuse case is sufficiently important to justify the

45
use of a special procedure that permits a child witness in such cases to testify at

trial against a defendant in the absence of face-to-face confrontation with the

defendant.” Id. at 855, 110 S. Ct. at 3169.

Craig is inapplicable to this case. The most important distinction is that the

child witnesses in Craig were not unavailable; the court could have compelled

them to testify in open court in the usual manner. Craig does not apply in a

situation where the witnesses simply cannot be produced for an in-person

appearance in court, as was the case with the two Australian witnesses in this case.

Indeed, the Craig decision itself directly relied on a number of earlier precedents

that permitted admission of statements by unavailable witnesses without requiring

either face-to-face confrontation or any application of the test established in Craig.

Id. at 847–50, 110 S. Ct. at 3164–66. For example, in Mattox v. United States, 156

U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895), the Court permitted the introduction

of testimony two deceased witnesses had given at a prior trial. See id. at 244, 15 S.

Ct. at 340. In Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597

(1980), overruled in part on other grounds by Crawford v. Washington, 541 U.S.

36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Court approved the admission

of testimony an unavailable witness had given at a preliminary hearing. See id. at

73–74, 100 S. Ct. at 2542-43. In Bourjaily v. United States, 483 U.S. 171, 107 S.

46
Ct. 2775, 97 L. Ed. 2d 144 (1987), the Court permitted introduction of out-of-court

statements of a co-conspirator who refused to testify at the defendant’s trial,

concluding that admissibility of such testimony was “firmly enough rooted in our

jurisprudence” to permit admission despite the defendant’s confrontation right. Id.

at 183–84, 107 S. Ct. at 2782-83.

The Court took these and other cases to mean that “the word ‘confronted,’ as

used in the Confrontation Clause, cannot simply mean face-to-face confrontation,

for the Clause would then, contrary to our cases, prohibit the admission of any

accusatory hearsay statement made by an absent declarant.” Craig, 497 U.S. at 849,

110 S. Ct. at 3165. The Confrontation Clause must be interpreted in a manner

“sensitive to its purposes and sensitive to the necessities of trial and the adversary

process.” Id.

The Supreme Court most recently expounded on the meaning of the

Confrontation Clause in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004). The defendant, Michael Crawford, was accused of

assault and attempted murder. Crawford claimed he had acted in self-defense, but a

statement his wife Sylvia had made to police appeared to contradict Crawford’s

story. The state marital privilege prevented the prosecution from compelling Sylvia

Crawford to testify in court without her husband’s consent, but the court permitted

47
the prosecution to introduce a recording of Sylvia Crawford’s police interrogation.

Crawford was convicted, but the Supreme Court reversed, finding that the

introduction of Sylvia Crawford’s statement violated the Sixth Amendment

Confrontation Clause. After a lengthy discussion of the historical roots of the

confrontation requirement as a device for preventing trial by ex parte examination,

the Court held that prior testimonial statements against a criminal defendant can be

admitted only if the witness is unavailable to appear in court and the defendant had

a prior opportunity to cross-examine the witness. Id. at 68, 124 S. Ct. at 1374.

Crawford reinforced the longstanding principle that the Confrontation

Clause in effect imposes two parallel sets of ground rules, one governing testimony

by witnesses who are available to appear in court and one governing testimony by

witnesses who are unavailable. 2 When a witness can be produced in court, she

must testify in person in court, in the presence of the defendant and the factfinder,

unless a sufficiently compelling public policy interest justifies dispensing with the

face-to-face confrontation requirement under the Craig test. When a witness cannot

2
The majority suggests that I have incorrectly applied Crawford to the facts of this case.
Majority Op. at 12 n.4. I cite Crawford, however, precisely because it is one of many Supreme Court
cases addressing the problem we face today: what to do about the testimony of a witness who is
genuinely unavailable, whether because the witness stands on foreign soil and cannot be compelled
to appear, or because the witness could not be compelled to testify because of a spousal privilege.
Indeed, Crawford is the most recent of many Supreme Court cases standing for the general
proposition that in-person confrontation is not required when a witness is unavailable, so long as the
witness is subject to adequate cross-examination.

48
be brought to court, however, the Confrontation Clause is satisfied as long as the

defendant has an adequate opportunity to cross-examine the witness. Cross-

examination independently satisfies the confrontation requirement; the testimony

of unavailable witnesses can be introduced against a defendant without any

application of the Craig test. See Crawford, 541 U.S. at 53-54, 68, 124 S. Ct. at

1365–66, 1374 (noting that unavailability and cross-examination are the key

factors, without any mention of Craig).3

In Crawford the Supreme Court emphasized that the proper interpretation

and application of the Confrontation Clause is impossible without consideration of

the purposes it was intended to serve and how the confrontation requirement has

historically worked in practice. See Crawford, 541 U.S. at 42-43, 124 S. Ct. at

1359 (“The Constitution’s text does not alone resolve this case. . . . We must . . .

turn to the historical background of the Clause to understand its meaning.”). The

testimony of unavailable witnesses falls within a traditional exception to the usual

3
Indeed, one way to state the holding of Crawford is that there is no analogue to Craig in the
context of prior sworn testimony. Craig declares that when the witness is available and thus should
be brought to testify in the defendant’s presence, the requirement of in-person confrontation can be
dispensed with only on a showing of necessity and reliability. Crawford holds that in the case of
prior testimonial statements, such a showing of necessity and reliability cannot substitute for the
mode of confrontation the Constitution demands, which is cross-examination. See Crawford, 541
U.S. at 60-69, 124 S. Ct. at 1369–74 (overruling Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65
L. Ed. 2d 597 (1980), insofar as that case permitted admission of prior testimonial statements based
on “indicia of reliability” other than cross-examination, because cross-examination is the only
indicium of reliability the Confrontation Clause deems acceptable).

49
requirement of in-person confrontation. See id. at 54, 124 S. Ct. at 1365–66

(stating that the confrontation requirement is subject only to “those exceptions

established at the time of the founding,” but that chief among those exceptions is

the exception for persons “unavailable to testify”); see also Mattox, 156 U.S. at

243, 15 S. Ct. at 340 (“Many of [the Constitution’s] provisions in the nature of a

bill of rights are subject to exceptions, recognized long before the adoption of the

constitution, and not interfering at all with its spirit. Such exceptions were

obviously intended to be respected.”).

Why the Confrontation Clause applies a special rule to unavailable witnesses

may be puzzling on the surface, but the rationale becomes clear once we follow the

Supreme Court’s exhortation to examine the historical roots of the Clause.

Common law adversarial procedure demands that courts perform the ritual of face-

to-face confrontation not just for the sake of spectacle, but because it provides a

convenient precautionary measure for ensuring that the defendant has a full

opportunity to challenge a witness’s statements. See Crawford, 541 U.S. at 61, 124

S. Ct. at 1370 (“The Clause’s ultimate goal is to ensure reliability of evidence. . . .

[I]t is a procedural rather than a substantive guarantee. It commands . . . that

reliability be assessed in a particular manner: by testing in the crucible of cross-

examination.”). When it is possible to produce a witness for trial, the requirement

50
of physical presence works adequately, if imperfectly, as a means of insulating the

adversarial process from contamination by inquisitorial practices. If it were applied

in situations where the witness cannot be produced at trial, however, this rigid

procedural device would perform far more poorly. Because the in-person

confrontation rule assumes that the witness is available, rigid application of the

rule would result in exclusion of all statements of unavailable witnesses, which

would lead courts to discard too much reliable evidence. Long ago, the Court held

in Mattox, for example, that prior sworn testimony by deceased witnesses should

be held admissible even though the witnesses would not appear at trial. The Court

wrote:

[G]eneral rules of law of this kind, however beneficent in their operation and
valuable to the accused, must occasionally give way to considerations of
public policy and the necessities of the case. . . . The law in its wisdom
declares that the rights of the public shall not be wholly sacrificed in order
that an incidental benefit may be preserved to the accused.

Mattox, 156 U.S. at 243, 15 S. Ct. at 340.

The sole purpose of the Craig test is to determine when a court can relax the

rigid requirement of face-to-face confrontation. But when a witness is truly

unavailable, the requirement of face-to-face confrontation does not apply in the

first place, so the Craig test ought not to apply either.

51
 In the second place, as Judge Tjoflat suggests, Craig was tailored as a

narrow solution to an exceptional problem. I suspect that the Supreme Court never

intended lower courts to apply Craig outside the peculiar and poignant facts of that

case: the case of a terrorized child for whom a forced encounter with her abuser in

open court would compound the trauma she had suffered from the very events she

was to relate. The Craig opinion is replete with references to the unique context of

the case. The Court’s final summary of its holding spoke in the narrowest of terms:

In sum, we conclude that where necessary to protect a child witness from
trauma that would be caused by testifying in the physical presence of the
defendant, at least where such trauma would impair the child’s ability to
communicate, the Confrontation Clause does not prohibit use of a procedure
that, despite the absence of face-to-face confrontation, ensures the reliability
of the evidence by subjecting it to rigorous adversarial testing and thereby
preserves the essence of effective confrontation.

Craig, 497 U.S. at 857, 100 S. Ct. at 3170.

It is clear that Craig’s relevance ebbs as the circumstances of a case -- the

technique at issue, the identity of the witness, and the nature of the testimony --

move farther away from the situation at Craig’s heart -- one-way video testimony

by an abused child against her alleged abuser. The witnesses in this case were not

children or other especially vulnerable persons; nor was the prosecution seeking to

avoid producing the witnesses in the courtroom because of the possibility that the

52
witnesses might be impaired by emotional distress, the danger of intimidation, or

any other factor that even remotely mirrors the Craig situation.

The third powerful difference from Craig is that the use of a live,

contemporaneous, two-way video transmission in this case is fundamentally

different from the one-way video transmission in Craig. In Craig, the judge, jury,

and defendant remained in the courtroom and watched each child witness on a

video screen as he or she testified from a remote location. The child, on the other

hand, had no view of the persons in the courtroom -- indeed, the very purpose of

the video setup was to prevent the child from seeing the defendant while he or she

testified.

The video link in this case decidedly had the opposite purpose: to allow a

confrontation between the defendants and their accusers, not to prevent one. The

witnesses had a full view of the defendants and the jury as they testified.4 That

visual connection was enough to achieve “the strong symbolic purpose served by

requiring adverse witnesses at trial to testify in the accused’s presence.” Craig, 497

U.S. at 847, 110 S. Ct. at 3164. Quite simply, the factual elements of this case --

two-way video testimony by an overseas witness testifying to his business dealings

4
The trial transcript does not describe the exact details of the videoconferencing setup, but
the district court’s order conditioned its approval of the video testimony procedure “upon the video
teleconference equipment being positioned so that the witness is able to see the attorneys, defendant,
and jury and that those parties are also able to see the testifying witness.”

53
with the defendants, or the defendants’ use of his signature on drug prescriptions --

are so far removed from the original scope of Craig as to render Craig inapplicable.

II.

The majority’s errors did not end with its decision to use the Craig test; the

majority also applied the test incorrectly. In my view, a proper application of the

Craig test would, in any event, have determined that the use of the two-way video

procedure in this case satisfied the Confrontation Clause.

Even if the Craig test could be adapted to apply to the testimony of

witnesses who are beyond the court’s subpoena power, it is clear that the

unavailability of a witness would have to be a factor in the court’s evaluation of

whether a procedure satisfied Craig’s requirement that the procedure be necessary

to serve an important government interest. The Craig test’s baseline scenario takes

for granted that the child witness will give her testimony in some fashion; that is,

the Craig necessity test leaves to one side an option that would simultaneously

protect the child from the trauma of testifying and honor the defendant’s

confrontation rights: simply not asking the child to testify. In the case of an

unavailable witness, securing the testimony is impossible without denying the

defendant a courtroom confrontation with the witness. Thus, properly translating

the Craig test to a situation involving an unavailable witness would require

54
counting the value of obtaining the witness’s testimony as an important public

interest weighing in favor of permitting testimony through alternative means.

Important testimony from a genuinely unavailable witness would almost always

satisfy the Craig necessity test, so the analysis would turn on whether the method

for securing the witness’s testimony would satisfy the second part of the Craig test,

whether the alternative procedures do enough to ensure the reliability of the

testimony.

The majority’s principal argument in its Craig analysis is that the two-way

video procedure was not “necessary” within the meaning of Craig precisely

because the district court could have ordered a Rule 15 deposition in which the

defendant and the prosecution witnesses would have met face to face. I believe

this line of thinking rests on a thorough misunderstanding of both the

Confrontation Clause and the Rule 15 procedure.

To hear the majority tell it, the Confrontation Clause imposes a single one-

size-fits-all requirement: a defendant must be afforded a face-to-face confrontation

with the witnesses against him, and any face-to-face meeting between the

defendant and the prosecution witnesses is sufficient, whether the meeting takes

place in open court or in another forum such as a Rule 15 deposition.

55
 The majority’s conception of the rule is both more permissive and more

restrictive than the rules the Supreme Court has actually held to apply. As I have

suggested, the required confrontation procedure differs depending on whether the

witness is available to appear at trial: When a witness is available to appear in

court, a mere face-to-face meeting between the defendant and the witness is not

enough; instead, the witness must come to court and testify in the presence of the

defendant and the factfinder. When a witness is unavailable to appear in court, a

face-to-face meeting is not required at all.

When a witness is available for an in-person court appearance, the ideal is a

face-to-face confrontation in open court: the Confrontation Clause not only

demands that the defendant be present as the witness testifies; it also demands that

the trier of fact be present. See, e.g., Coy v. Iowa, 487 U.S. 1012, 1021, 108 S. Ct.

2798, 2803, 101 L. Ed. 2d 857 (1988) (describing “the irreducible literal meaning

of the Clause” as “‘a right to meet face to face all those who appear and give

evidence at trial’” (quoting California v. Green, 399 U.S. 149, 175, 90 S. Ct. 1930,

1943-44, 26 L. Ed. 2d 489 (1970) (Harlan, J., concurring))); Green, 399 U.S. at

158, 90 S. Ct. at 1935 (describing the three values at the heart of the in-court

confrontation requirement, the third being that it “permits the jury . . . to observe

the demeanor of the witness in making his statement, thus aiding the jury in

56
assessing his credibility”); Barber v. Page, 390 U.S. 719, 725, 88 S. Ct. 1318,

1322, 20 L. Ed. 2d 255 (1968) (“The right to confrontation . . . includes both the

opportunity to cross-examine and the occasion for the jury to weigh the demeanor

of the witness.”); Mattox, 156 U.S. at 242–43, 15 S. Ct. at 339 (confrontation is

designed to give the defendant the opportunity of “compelling [the witness] to

stand face to face with the jury in order that they may look at him, and judge by his

demeanor upon the stand and the manner in which he gives his testimony whether

he is worthy of belief”). However, if a face-to-face meeting is simply impossible

because the witness is truly unavailable, the Confrontation Clause imposes a less

stringent confrontation requirement: no face-to-face meeting is required, but the

witness’s statements will be admissible only if the defendant had a robust

opportunity to cross-examine the witness. Cf. Crawford, 541 U.S. at 68, 124 S. Ct.

at 1374 (prior testimonial statements can be admitted against a defendant only if

the witness is unavailable and the defendant had a prior opportunity to cross-

examine the witness).

When a court employs a Rule 15 deposition, the deposition does not

function as a means of achieving the preferred ideal of full face-to-face

confrontation. A Rule 15 deposition falls far short of that ideal, because the trier of

fact is not present at the deposition. Instead, the Rule 15 deposition functions as a

57
fallback procedure for obtaining testimony when a witness is unavailable. See

United States v. Drogoul, 1 F.3d 1546, 1557 (11th Cir. 1993) (“[T]he only proper

use of a deposition in a criminal case is as substitute testimony when a material

witness is unavailable for trial.” (emphasis added)). So a Rule 15 deposition falls

squarely within the second category of procedures that need not involve face-to-

face confrontation but are permissible only when the witness is unavailable.

The majority is correct that a defendant is entitled to be present at a Rule 15

deposition, but that requirement does not apply because Rule 15 has a special

connection to the Confrontation Clause. Rather, the requirement simply comes

from the terms of Rule 15 itself. Fed. R. Crim. P. 15(c).5 Indeed, in United States v.

5
The relevant portion of the rule reads:

(c) Defendant's Presence.
(1) Defendant in Custody. The officer who has custody of the defendant must
produce the defendant at the deposition and keep the defendant in the
witness's presence during the examination, unless the defendant:

(A) waives in writing the right to be present; or

(B) persists in disruptive conduct justifying exclusion after being warned
by the court that disruptive conduct will result in the defendant's
exclusion.

(2) Defendant Not in Custody. A defendant who is not in custody has the right
upon request to be present at the deposition, subject to any conditions
imposed by the court. If the government tenders the defendant's expenses as
provided in Rule 15(d) but the defendant still fails to appear, the
defendant--absent good cause--waives both the right to appear and any
objection to the taking and use of the deposition based on that right.

Fed. R. Crim. P. 15(c).

58
Siddiqui, 235 F.3d 1318 (11th Cir. 2000), a defendant argued before a panel of this

Court that the Confrontation Clause barred a trial court from admitting testimony

from two Rule 15 depositions that the defendant had monitored only by telephone.

Id. at 1323–24. The panel squarely rejected the challenge, finding that even though

the defendant had not been physically present at the depositions, he had been fully

able to cross-examine the witnesses remotely. Id. This Court reached the same

result in a similar case, United States v. Mueller, 74 F.3d 1152, 1156–57 (11th Cir.

1996).

The majority does not deny that cases like Siddiqui and Mueller contradict

its characterization of the relationship between Rule 15 and the Confrontation

Clause. The majority simply dismisses such cases as “rare” and “exceptional.” It

does not, however, even hint at identifying any distinguishing features that set

those cases apart from this one. Nor does it explain why the unusual combination

of circumstances in this case -- the witnesses’ location in Australia, their refusal to

appear in the United States, and their willingness to testify live and under oath by

videoconference -- cannot similarly be called “rare” and “exceptional.”

It is clear, then, that for the purposes of Confrontation Clause analysis,

depositions under Rule 15 are in no way superior to two-way videoconference

59
testimony, or indeed, any other means of obtaining and preserving testimony that

affords the defendant an adequate opportunity to cross-examine the witness. The

majority’s assertion that a Rule 15 deposition has some special constitutional status

is simply wrong.

If anything, a two-way videoconference during trial allows more effective

cross-examination than a Rule 15 deposition does. The videoconference procedure

lets the factfinder observe subtleties of tone, timing, body language, and overall

demeanor as the lawyer asks questions, as the witness reacts on hearing the

questions, and as the witness formulates and delivers answers to the questions.

Indeed, the jury’s view may well be better than what it could have had in the

courtroom. Moreover, when a witness testifies in a live videoconference, the judge

can rule on objections immediately and otherwise manage the course of

questioning and the conduct of counsel. Because the videoconference takes place

at the time of trial, the defendant and defense counsel know how the prosecution’s

case has developed so far and can tailor their cross-examination accordingly. In

any event, the jury will certainly be able to glean more from a television screen

contemporaneously recording the examination than it can from deposition

testimony dryly read from a transcript.

60
 The majority suggests that regardless of the advantages of

videoconferencing, the defendants appear to have preferred that these two

witnesses testify by Rule 15 deposition. But the defendants did not request Rule 15

depositions; they only mentioned Rule 15 by way of opposing the government’s

motion to permit video testimony. Indeed, the defendants might well have opposed

motions by the government to allow Rule 15 depositions or admit the depositions

into evidence. The Confrontation Clause is not concerned with the full range of

tactical advantages that the use of one procedure or another might confer on the

defense; it is concerned only with the defendant’s ability to challenge the

prosecution witness’s testimony. Moreover, even if the defendants did in fact

prefer a Rule 15 deposition specifically because it would provide advantages in

cross-examination, the Confrontation Clause still would not demand that the court

accede to the defendants’ preference. The Confrontation Clause guarantees

defendants a fair cross-examination, not an ideal cross-examination. See Kentucky

v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664, 96 L. Ed. 2d 631 (1987)

(“[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.’” (quoting Delaware v. Fensterer, 474

U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985) (per curiam))). Because

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the video testimony procedure provided the cross-examination that the

Confrontation Clause requires, the fact that the defendants might have preferred a

Rule 15 deposition is simply irrelevant.

The second requirement Craig established for dispensing with in-court

confrontation is that the procedures used must carry adequate assurances of

reliability. The two-way video procedure used in this case clearly met this

important requirement. Though it did not bring the witnesses into the same room as

the defendant and the jury, the procedure provided all the other elements that are

the hallmarks of traditional in-court confrontation: the witnesses were under oath;

the witnesses and the defendants could see the jury; the defendants and the jury

could see the witnesses; and the defendants had a full opportunity to dispute the

witnesses’ testimony through “cross-examination, the ‘greatest legal engine ever

invented for the discovery of truth.’” California v. Green, 399 U.S. 149, 158, 90 S.

Ct. 1930, 1935, 26 L. Ed. 2d 489 (1970) (quoting 5 J. Wigmore, Evidence §

1367).

The Court in Craig found that one-way video transmission included enough

of the “elements of confrontation—oath, cross-examination, and observation of the

witness’ demeanor—” to make the testimony “reliable and subject to rigorous

adversarial testing in a manner functionally equivalent to that accorded live, in-

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person testimony.” Craig, 497 U.S. at 851, 110 S. Ct. at 3166. Surely, the two-way

video transmission in this case must have been enough to satisfy the Craig test,

since it provided everything the one-way video procedure provided and

additionally allowed the witnesses a view of the remote courtroom. Again, in this

case the witnesses testified under oath; the defendant, the judge, and the jury could

see the witnesses as they gave their testimony; and the witnesses could see the

attorneys, the defendant, and the jury. Moreover, there is no evidence to suggest

that defects in the video transmission impaired effective cross-examination of the

witnesses. The record suggests that whatever defects there were in the transmission

were promptly addressed. The defendants could have brought the remaining

defects, if there were any, to the court’s attention so that the court could remedy

the situation at that time. Every core element of confrontation was present to the

maximum extent possible under the circumstances.

In short, the only device the Confrontation Clause requires a court to avail

itself of is the physical production of the witness in the courtroom. But, if it is

simply not possible to physically bring the witness to the courtroom, the court then

may resort to substitute methods. The Confrontation Clause expresses no

preference between substitute methods that place the defendant in the physical

presence of the witness, such as Rule 15 depositions, and methods where the

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defendant is not physically present, such as two-way video testimony. The basic

limitation the Confrontation Clause imposes on all of these methods, however, is

that the defendant must have a meaningful opportunity to cross-examine the

witness under oath before the testimony can be admitted.

Finally, in determining whether a witness is unavailable for purposes of the

Confrontation Clause, “[t]he ultimate question is whether the witness is

unavailable despite good-faith efforts undertaken prior to trial to locate and present

that witness.” Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531, 2543, 65 L. Ed.

2d 597 (1980), overruled in part on other grounds by Crawford v. Washington, 541

U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); see also United States v.

Siddiqui, 235 F.3d 1318, 1324 (11th Cir. 2000). The district court properly

determined that the witnesses were beyond the subpoena power of the United

States and were genuinely unwilling to appear at trial despite the government’s

efforts. Cf. Siddiqui, 235 F.3d at 1324 (upholding a district court’s findings that

two witnesses outside the United States were unavailable for Confrontation Clause

purposes). The witnesses were genuinely unavailable, so their testimony fell

outside the ambit of Maryland v. Craig.

Most respectfully, I believe that my colleagues have lost sight of what the

Sixth Amendment Confrontation Clause was designed to do: prevent the

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government from obtaining summary convictions based on ex parte examinations

that the defendant had no opportunity to oppose through the critical engine of

cross-examination. The majority’s holding has reduced the Clause’s protections to

an abstract and sterile rule that states that unless the defendant and the witness can

be brought together in the same room, the witness’s testimony must be excluded,

no matter what steps the court takes to ensure fair and effective cross-examination.

The majority’s holding today disserves the Constitution and slights the

paramount public interest of admitting competent and reliable testimony into

evidence in criminal trials. I dissent.

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