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A good defense lawyer taking apart the government’s star witness during cross-examination puts the “confront” in the Constitution’s confrontation clause. Hard to imagine achieving the same wallop if the witness is ensconced in a foreign country thousands of miles away and beamed into the courtroom via two-way television videoconferencing. At least that’s what a panel of the 11th U.S. Circuit Court of Appeals thought in reversing the fraud convictions in an Alabama case. Chief Judge J.L. Edmondson wrote separately to add his doubts that a court clerk in Montgomery, Ala., could place a witness in Australia under oath in any meaningful way. Now a majority of the 11th Circuit has agreed to the government’s request for en banc review to resolve whether the confrontation clause really means face-to-face confrontation between witness and defendant. U.S. v. Yates, No. 02-13654. If the government prevails it may prove to be a boon for international prosecutions. “I’m astonished,” said Tim Halstrom, attorney for Anita Yates’ co-defendant, Anton Pusztai. “There are so many problems with video questioning. You can’t see adequately on the video. You can’t approach the witness or submit documents and the jury can’t see the exchange,” he said. Growing internationalization The growing internationalization of prosecutions-particularly international fraud-raises problems for the government, which can’t force foreign witnesses to come to the United States. Prosecutors are left with limited choices. They can conduct depositions overseas with the defendant present, then submit edited transcripts to juries or use videotaped depositions. Also, potentially, they can use live, two-way closed-circuit television questioning of witnesses. Use of closed-circuit TV questioning “makes it easier to get witnesses from a foreign country to cooperate,” said Stephen Freccero, a former federal prosecutor in San Francisco, now with Morrison & Foerster’s white-collar defense practice. He predicted that this will be a growing area of the law, with international white-collar prosecutions being a Justice Department focus. In the Alabama case, Yates and Pusztai operated an Internet pharmacy, Norfolk Men’s Clinic, selling prescription drugs from Clanton, Ala., over the Internet beginning in 1998. They took in roughly $6.8 million. Among the various drugs shipped, Pusztai, who was in Australia, sent personal prescriptions for Viagra to Yates to be filled at the Clanton Wal-Mart. The pills were then repackaged and mailed to the Internet customers, according to the government. The pair was accused of using two Australian doctors’ names to write prescriptions for phony patients. They also used the doctors’ names for online consultations, then charged clients a fee for the advice, even though the doctors had not participated, according to government briefs. In 2002, a jury convicted the two of mail fraud, money laundering, dispensing misbranded drugs and operating an unregistered drug facility. The two Australian doctors whose names were used refused to come to the United States to testify, but agreed to appear as witnesses via closed-circuit television. The court held the session in a U.S. attorney’s office, the only facility with the closed-circuit TV hook-up available, according to the appellate opinion. Although the defense abandoned its objection to the setting, the panel expressed its concern in a footnote. Face-to-face confrontation precedents have generally grown out of child molestation or child abuse cases. The U.S. Supreme Court has carved out an exception to face-to-face confrontation by holding that there is a greater public policy interest in protecting children from the potential intimidation. Opening the door That opened the door to playing one-way closed circuit television of a child’s testimony from outside the courtroom. Maryland v. Craig, 497 U.S. 836 (1990). The high court said no violation of the confrontation clause occurs where it is necessary to further an important public policy and the reliability of the testimony is otherwise assured. The only other instance came in an organized-crime case in which a witness-who was dying of cancer and in the witness-protection program-was allowed to testify by two-way closed circuit television. U.S. v. Gigante, 166 F.3d 75 (2d Cir. 1999). The 11th Circuit panel was unmoved by the Alabama prosecution’s claim that the Australian witnesses were significant to the case. “The prosecutor’s need for the testimony in order to make a case and expeditiously resolve it are not public policies that are important enough to outweigh a defendant’s right to confront an accuser face-to-face,” wrote Judge Emmett R. Cox, in the unanimous decision. The need for the testimony failed to pass the public policy prong of the Craig test, according to Cox. In addition, Edmondson wrote of the ability to gain foreign testimony under oath: “It is hard to feel the significance of an oath, when a person in one sovereign country is just looking at a television screen at an image of a court clerk representing a foreign government a very long airplane ride away and in an altogether different sovereign country. I mistrust the notion that many people think that talking to a television (especially given the circumstances here) counts for much.” Defense attorney Halstrom said, “The key issue for me is that the doctor clearly perjured himself from my perspective, but there is no way to establish that to a jury without him in the courtroom. “It makes all the difference in the world to cross [examine] a witness if you are in a different country,” he said. In person you can see how an attorney works a witness, approaches and backs off-it is all in the confrontational mode that is the adversarial system, he said. Michael Rotker, a Justice Department attorney handling the appeal, declined to discuss the case. But the government’s brief argues that the district judge recognized that “in today’s world of the Internet and increasing globalization, videoconference testimony helps to meet the emerging need to provide a mechanism to allow testimony where witnesses are beyond the subpoena power of the court.” Freccero said that from a prosecution standpoint, prosecuting international fraud or white-collar offenses can be cumbersome and difficult because what can be done legally is a creature of treaties and mutual international agreement. If the 11th Circuit en banc panel does not see this technique as a violation, “then the government may be inspired to try in other circumstances,” he said. “But they are going to know that there will be a challenge repeated in every jurisdiction. Approval [by the 11th Circuit en banc] will lead to doing it more often.” Practical v. constitutional Freccero said he “absolutely agrees” with the defense contention that two-way television grilling of witnesses takes away from the ability to really confront them. “But I don’t know how that rises to a constitutional privilege,” Freccero said. “As a practical matter, absolutely, it is inferior and reduces the solemnity of the occasion.” Lack of face-to-face confrontation of international witnesses is likely to show up in other cases in the near future, lawyers say. Daniel Horowitz, a San Francisco solo practitioner who helped defend former Ukrainian Prime Minister Pavel Lazarenko in a multimillion-dollar money laundering and fraud case, worried that expansion of witness questioning via TV could have dire consequences. Lazarenko’s trial included the use of numerous witnesses from Ukraine, Russia and Poland, who were questioned in videotaped depositions in those countries. But Lazarenko feared personal reprisal if he went in person, so he listened by telephone from the Netherlands in some instances. Witnesses, even defense witnesses, were frequently questioned in prosecutor’s offices overseas with law enforcement present, Horowitz said. Horowitz said he believes the Ukrainian government listened on the line and even cut off some calls between the defense and Lazarenko as the depositions were under way. That made it impossible for Lazarenko to participate fully, Horowitz said. After years of pretrial battling over use of the foreign witnesses, jurors ultimately saw and heard the tapes. Lazarenko was convicted late last year. Horowitz said that if the trial judge rejects the motion to overturn the jury verdict, the confrontation clause challenge will be a key part of Lazarenko’s appeal to the 9th Circuit.

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