United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
The Court is presented with two motions from the government: (1) Motion in Limine Regarding Testimony by Video; and (2) Motion for Rule 15 Deposition of Mary Orie. (Dkt. nos. 315, 327.) Defendant Alan Rodrigues opposes both motions. (Dkt. nos. 325, 328.) For the reasons discussed below, the first motion is denied and the second motion is granted.
The testimony at issue is that of Mary Orie, who resides in Virginia. According to the government, Ms. Orie will testify that she and employees of Tax Ready, an organization acquired by NADN, discussed the Tax Break 2000 after it was presented to them by defendant Prokop and his co-conspirator but decided that they would not prepare returns with the Tax Break 2000 without more documentation to show its legitimacy. Ms. Orie is also expected to testify that by the latter part of 2003, she repeatedly warned defendants about issues with the Tax Break 2000.
The government learned in January 2014 that Ms. Orie had not flown for a long time because of health issues, including a knee replacement surgery. At that time, she also indicated that she had some memory issues. On March 9, 2014, in a conversation about potential travel to Las Vegas, Ms. Orie "indicated that travel would be virtually impossible given her knee surgery, which was progressing slowly and causing her significant pain." (Dkt. no. 315 at 3.) Ms. Orie apparently "could not sit for more than an hour at a time" and "would have to take pain medication to relieve the pain, which often impacted her mental capacities." ( Id. ) Ms. Orie works part-time three days a week and has been told by her boss that she would be fired if she missed any days. The government also represents that it has learned that Ms. Orie has multiple-sclerosis and takes medication for the disease.
The government represents that it has proposed taking Ms. Orie's deposition and in the event defendants oppose her deposition, the government moves to offer her testimony by two-way live video conferencing. Counsel for Coolidge agreed to the deposition, counsel for Rodrigues objects and counsel for Prokop has not responded as of the filing of the government's motion for deposition. (Dkt. no. 327 at 4.) As noted, defendant Rodrigues opposes both motions. (Dkt. nos. 325, 328.)
The government requests a Rule 15 deposition, or to permit it to offer Ms. Orie's testimony via a live two-way video conference feed. In the motion requesting testimony by video, the government contends that it presents the video testimony as an option because of the temporal proximity to trial, the travel required for deposition in Virginia and the related travel expenses. The government asks the Court to apply the standards set forth in Federal Rule of Criminal Procedure 15 and Federal Rule of Evidence 804(a) in determining the proprietary of video testimony. The Court declines to apply the same standard.
The Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990), upheld the use of one-way closed circuit television testimony by a child witness. The Supreme Court observed that a defendant's right to confrontation has traditionally involved four elements: (1) the testimony has been given under oath and (2) subject to cross-examination; (3) the factfinder has the ability to observe the demeanor of the witness; and (4) face-to-face confrontation. Id. at 845-46. The Court held, however, that a face-to-face confrontation is a preference of the Confrontation Clause and must give way to considerations of public policy and necessity. Id. at 849. The Court then established a two-part test governing when a court may deviate from the face-to-face preference of the Confrontation Clause: (1) the denial of physical confrontation must be "necessary to further an important public policy"; and (2) the testimony must be sufficiently reliable. Id. at 850.
There is a split among the circuits that have addressed the issue of two-way video conferencing. The Second Circuit, in United States v. Gigante, 166 F.3d 75, 80-81 (2d Cir. 1999), found that the Craig two-part test does not apply to a two-way videoconferencing system that preserves face-to-face confrontation. Instead, the Second Circuit adopted a rule whereby, so long as the "exceptional circumstances" requirements for a deposition under Federal Rule of Criminal Procedure 15 are met, a court may allow a witness to testify via a two-way videoconference "when this furthers the interests of justice." Id. at 81. The Sixth Circuit appears to follow the Second Circuit. See United States v. Benson, 79 F.Appx. 813, 820-21 (6th Cir. 2003). The Eleventh Circuit, rejecting the Gigante approach, held that the Craig two-part standard had to be met even in two-way videoconference situations. United States v. Yates, 438 F.3d 1307, 1312-13 (11th Cir. 2006). The Eleventh Circuit found that two-way videoconferencing is less protective of Confrontation Clause rights than a Rule 15 deposition, because a Rule 15 deposition allows the defendant to be present and because there is no Federal Rule of Criminal Procedure that allows for two-way videoconferencing. Id. at 1314-15. "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." Id. at 1315. The Eighth Circuit and the Fifth Circuit also follow the Craig two-part test. See United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005); Horn v. Quarterman, 508 F.3d 306, 319-20 (5th Cir. 2007). The Ninth Circuit has not addressed two-way video conferencing in this context.
The government asks the Court to follow the rule espoused by the Second Circuit in Gigante. However, the Court respectfully disagrees with the reasoning in Gigante and finds that the Craig two-part test applies to two-way videoconferencing that preserves face-to-face confrontation.
The government has not satisfied the Craig two-part test. The government offers video testimony as an alternative for convenience because of the closeness in time to trial and cost (i.e. to save travel costs). Indeed, the government essentially concedes that it cannot meet the Craig test by arguing for application of the "exceptional circumstances" requirement of Rule 15.
Federal Rule of Criminal Procedure 15 permits a deposition "because of exceptional circumstances and in the interest of justice." Fed. R. Crim. P. 15(a). "The granting of a Rule 15 motion is discretionary with the district court." United States v. Nichols, 534 F.2d 202, 204 (9th Cir. 1976). In exercising this discretion, it is the responsibility of the district court to consider "the particular circumstances of each case to determine whether the exceptional circumstances' requirement has been satisfied." United ...