Confronting Zoom Testimony: “Pot Biz” Trial Defendants Petition Supreme Court for Review of Video Testimony Decision

During the height of the COVID-19 pandemic, a complex Confrontation Clause issue arose in United States v. Akhavan: In a criminal trial, should the court allow a nonparty witness to testify remotely instead of traveling cross-country, before vaccines were readily available, in order to testify in person? Following the Second Circuit standard for two-way video testimony set forth in United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), the Southern District of New York allowed a third-party witness to testify via two-way video. The Second Circuit affirmed that decision in an unpublished opinion in United States v. Patterson, No. 21-1678-CR, 2022 WL 17825627 (2d Cir. Dec. 21, 2022). The Second Circuit’s Gigante standard may now be heading to the Supreme Court, as the defendants recently filed a petition for writ of certiorari.

Background

As we previously posted, Arnold & Porter represented Visa and a company employee who was subpoenaed to testify as a third-party witness in Akhavan, also known as the “Pot Biz" case. The witness lived in San Francisco and had certain preexisting medical conditions that put him at an increased risk of severe illness from COVID-19. In an effort to meet the needs of the case while still protecting the health of the witness, Arnold & Porter filed a motion asking to let the witness testify remotely in San Francisco via live two-way video. After briefing and telephonic oral argument, the court granted that motion, holding that the witness’s circumstances met the Second Circuit’s Gigante standard. United States v. Akhavan, No. 20-CR-188 (JSR), 2021 WL 797806, *10 (S.D.N.Y. Mar. 1, 2021). The court also allowed the defendants to have other representatives in the same room as the witness while the defense attorneys, based in the courtroom, cross-examined the witness remotely. United States v. Akhavan, No. 20-CR-188 (JSR), 2021 WL 2776648, at *6 n.3 (S.D.N.Y. July 2, 2021). A week before trial began, the first named defendant, James Patterson, pled guilty to conspiracy to commit bank fraud. After a four-week trial, the two remaining defendants, Hamid “Ray” Akhavan and Ruben Weigand, were convicted of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349.

Second Circuit Appeal

On appeal, Akhavan and Weigand raised several issues regarding fraudulent intent and materiality, as well as an argument that the decision to let the witness testify remotely violated their rights under the Sixth Amendment’s Confrontation Clause. (Despite being the lead name in the appellate case caption, Patterson did not join in the appeal.) The Second Circuit affirmed the trial judgment and rejected the defendants’ argument that Gigante—which held that in “exceptional circumstances” testimony of an otherwise unavailable witness via two-way video satisfied the Confrontation Clause—was no longer good law after Crawford v. Washington, 541 U.S. 36 (2004). The appeals court reasoned that Crawford answered “whether the Confrontation Clause is implicated in the first instance by testimonial, out-of-court statements notwithstanding other indicia of reliability,” which was an entirely different question than the one presented here: whether “something less than in-court testimony may comply with the Confrontation Clause.” Patterson, 2022 WL 17825627, at *4.

The Second Circuit also rejected the argument that the district court improperly applied the Gigante standard, which asks whether there are “exceptional circumstances” preventing the witness’s in-person testimony. The Second Circuit found no error in the trial court’s conclusion that “the [witness’s] need to prevent serious illness and death and to protect his family” constituted unavailability and exceptional circumstances. Id. The appeals court further explained that allowing for two-way video testimony in the middle of “an unprecedented global pandemic, where the witness was unvaccinated and risked substantial illness or death from COVID-19,” also furthered the interest of justice. Id. at *5.

Petition to the U.S. Supreme Court

On March 3, 2023, Akhavan and Weigand filed a petition for a writ of certiorari. In the petition, they again argue that allowing a witness to testify via Zoom in the March 2021 trial violated the Confrontation Clause. They request Supreme Court review to resolve an asserted conflict between the Second Circuit’s “more permissive” Gigante standard and the Eighth, Ninth, and Eleventh Circuits’ approaches to allowing two-way video testimony instead of in-person testimony during a criminal trial. Pet. at 19. The petition asserts that these other circuits have rejected the Gigante standard, and instead follow the standard set for one-way video testimony in Maryland v. Craig, 497 U.S. 836, 850 (1990). These circuits only allow two-way video testimony when “necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Pet. at 22-24.

The petition also argues the Gigante standard is wrong on the merits, with Akhavan and Weigand maintaining that the Gigante court should have followed Craig’s two-part test instead of creating a more permissive “exceptional circumstances” and “interest of justice” standard. Id. at 25-26. Petitioners argue that, in Craig, the cross-examining defense attorney was in the same room as the witness for cross-examination, while a two-way video does not let either the defendant or counsel conduct in-person cross-examination. Id. at 26. Therefore, the Second Circuit arguably applied a more permissive rule in a situation when the “defendant’s confrontation rights are more restricted.” Pet. at 26. Petitioners also contend that the Gigante court was wrong to borrow its “exceptional circumstances” and “interest of justice” standards from the text of Federal Rule of Criminal Procedure 15, because that rule governs criminal depositions where, unlike two-way video testimony, the cross-examining counsel (and potentially, the defendant) is in the same room as the witness. Id. at 26-27. The Petitioners also point to the Supreme Court’s 2002 rejection of a proposed amendment to the Federal Rules of Criminal Procedure, which would have allowed for two-way video presentations under a standard similar to Gigante, and argue that this is further evidence that Gigante was wrongly decided and should be overturned. Id. at 27-28.

It has been almost 30 years since the Supreme Court last weighed in on video testimony and the Confrontation Clause. In that time, technologies have rapidly improved and two-way video conferencing has become a way of life. Requests for remote testimony, even in criminal trials, are unlikely to go away even as we emerge from a global pandemic. We will be watching this petition closely, and if you have any questions, please feel free to contact the authors or other members of Arnold & Porter's White Collar Defense and Investigations practice group.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.