IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

________________________

No. 02-13654________________________

UNITED STATES OF AMERICA

vs.

ANITA YATES et al., Defendants-Appellants.________________________

On Appeal from the United States District Courtfor the Middle District of Alabama

________________________

EN BANC BRIEF OF APPELLANT ANITA YATES________________________

Ronald W. WiseRichard F. Matthews, Jr.2000 Interstate Park DriveSuite 105Montgomery AL 36109(334) 260-0003

Sam HeldmanGardner, Middlebrooks, Gibbons, Kittrell,

Olsen, Walker & Hill, P.C.2805 31st St. NWWashington DC 20008(202) 965-8884

No. 02-13654, US v YatesC1 of 1

Certificate of Interested Persons

The following persons may have an interest in the outcome of this appeal.

Hon. Anthony Alaimo, U.S. District Judge

Leura Garrett Canary, U.S. Attorney

Hon. Ira DeMent, U.S. District Judge

Timothy Halstrom, counsel for appellant Pusztai

Tommie Brown Hardwick, AUSA

Sam Heldman, appellate counsel for appellant Yates

Linda Marks, U.S. Department of Justice

Richard F. Matthews, Jr., counsel for appellant Yates

Redding Pitt, former U.S. Attorney

Anton Pusztai, appellant

Michael A. Rotker, U.S. Department of Justice

Hon. Susan Russ Walker, U.S. Magistrate Judge

Ronald W. Wise, counsel for appellant Yates

Anita Yates, appellant

________________________

i

Table of Contents

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Nature of the Case, Course of Proceedings, and Disposition Below . . . . . . . 2

B. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Standard and Scope of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I. The trial court erred in admitting the videoconference testimonyof the witnesses who were located overseas; this violated Ms.Yates’s rights under the Confrontation Clause and also violatedFed. R. Crim. P. 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Fed. R. Crim. P. 26 prohibits testimony by teleconference. Rules26 and 15 also demonstrate that there is no reason to bendConfrontation Clause principles as the Government requests. . . . . . . . . 13

B. The Confrontation Clause requires confrontation in person, at leastabsent compelling reason to the contrary. Ms. Yates was deniedthat right, with no justification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

i. “Confrontation” entails physical presence. . . . . . . . . . . . . . . . . . . . . . 18

ii. Out-of-court testimony is not allowed if the defendant had no prior opportunity to cross-examine the witness; that rule was violated here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ii

iii. Even if some exceptions to Crawford’s command may exist, there was no justification for an abridgement of Ms. Yates’s rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

II. The statements of those witnesses were also inadmissible becausethe witnesses were not adequately under oath. . . . . . . . . . . . . . . . . . . . . . 37

A. The inadmissibility of the statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

B. Ms. Yates adequately preserved this issue for review. . . . . . . . . . . . . . . . 41

III. Ms. Yates should receive a judgment of acquittal because therewas not sufficient admissible evidence to support the conviction. . . . . . . 44

A. At least under the circumstances of this case, the Court should notconsider the erroneously admitted evidence when reviewing thedenial of the motion for judgment of acquittal. . . . . . . . . . . . . . . . . . . . . . 44

B. Ms. Yates has adequately preserved and presented this issue. . . . . . . . . . 50

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

iii

Table of Authorities

Access Now, Inc. v. Southwest Airlines, 385 F.3d 1324 (11th Cir. 2004) . . . . . . 43

Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620 (2000) . . . . . . . . . . . . . . . . . . 47

Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798 (1987) . . . . . . . . . . . . . . . . . . . 18-19

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004) . . . 11, 18-20, 25-37

Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004) . . . . . . . . . . . . . 50

Harrell v. Butterworth, 251 F.3d 926 (11th Cir. 2001) . . . . . . . . . . . . . . . . . 28, 34

Harrell v. State, 709 So.2d 1364 (Fla. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 24, 28

Konikov v. Orange County, ___ F.3d ___,2005 U.S. App. LEXIS 10176 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 17

Lebron v. Nat’l R. Passenger Corp., 513 U.S. 374, 115 S.Ct. 961 (1995) . . . . 43

Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285 (1988) . . . . . . . . . . . . . . . . . . 48

Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157 (1990) . . . . . . . . . . . . 18, 31-38

Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 87 S.Ct. 1072 (1967) . . 46-47

Ohio v. Roberts, 448 U. S. 56, 100 S.Ct. 2531 (1980) . . . . . . . . . . . . . . . . . . 27

U.S. v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005) . . . . . . . . . . . . . . . . . . . . 16

U.S. v. Bordeaux, 400 F.3d 548 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 23-24, 35

U.S. v. Gigante, 166 F.3d 75 (2nd Cir. 1999) . . . . . . . . . . . . . . . . . . . 24-25, 35-36

U.S. v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . 45

U.S. v. Henderson, ___ F.3d ___,2005 U.S. App. LEXIS 9362 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 10

iv

U.S. v. Lanier, 520 U.S. 259, 117 S.Ct. 1219 (1997) . . . . . . . . . . . . . . . . . . . . 38

U.S. v. McCarrick, 294 F.3d 1286 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . 45

U.S. v. Rodriguez, 406 F.3d 1251 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . 16

U.S. v. Weekley, 130 F.3d 747 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. v. Yates, 391 F.3d 1182 (11th Cir. 2004), vacated,404 F.3d 1291 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 20, 37, 38, 41

Weisgram v. Marley, 528 U.S. 440, 120 S.Ct. 1011 (2000) . . . . . . . 12, 44-48, 52

Yee v. Escondido, 503 U.S. 519, 112 S.Ct. 1522 (1992) . . . . . . . . . . . . . . . . . . 43

U.S. Constitution, Amendment VI, “Confrontation Clause” . . . . . . . . . . . . passim

“Double Jeopardy Clause” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48-49

18 U.S.C. § 1621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

22 U.S.C. § 4221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

28 U.S.C. § 2106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Fed. R. Civ. P. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Fed. R. Civ. P. 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fed. R. Civ. P. 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 50

Fed. R. Crim. P. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 11, 17-18, 26, 41

Fed. R. Crim. P. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11, 13-17, 49

Fed. R. Crim. P. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 50-51

v

Fed. R. Evid. 603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 38, 40

Letter of Transmittal of proposed Rule changes, 535 U.S. 1158 (2002) . . . . . . 15

Statement of Justice Scalia regarding proposed Rule changes,535 U.S. 1159 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21, 29

Richard J. Friedman, Remote Testimony,35 U. Mich. J. L. Reform 695 (2002) . . . . . . . . . . . . . . . . 20-21, 26, 32, 35

“’Teleporting’ Over the Internet,” BBC News World Edition,June 17, 2005, <http://news.bbc.co.uk/2/hi/technology/4102018.stm>... 29

<http://www.boingboing.net/2005/06/17/claymation_as_telepr.html>................. 29

vi

Statement Regarding Jurisdiction

This is an appeal from a final judgment in a criminal case; this Court has

jurisdiction under 28 U.S.C. § 1291.

1

Statement of the Issues

As requested by the Court, this brief focuses on the following issues.

1. Was it a violation of Defendants' rights under the Confrontation Clause of

the Sixth Amendment for the district court to admit the testimony of witnesses

(who were physically located in a foreign nation) by means of live, two-way video

teleconference?

2. (A) May a Clerk of the United States Court administer a valid

meaningful oath to a foreign national who recites the oath in a foreign nation by

means of a live two-way video conference? (B) Was this issue preserved for

review?

3. (A) Should this court consider evidence admitted in violation of the

Confrontation Clause when determining whether the district court erred in denying

the motion for judgment of acquittal? (B) Was this issue preserved for review?

This brief also addresses another issue, which could make it unnecessary to

reach the first two issues: Was it a violation of Fed. R. Crim. P. 26 to admit the

testimony of witnesses by videoconference?

2

Statement of the Case

A. Nature of the Case, Course of Proceedings, and Disposition Below.

Anita Yates and codefendants were charged with mail fraud and other

offenses arising out of the operation of an online pharmacy. (Indictment, RI-1).

Almost a year and a half later, just a month before trial, the Government

moved for an order allowing two prosecution witnesses to testify by two-way

videoconference from Australia, where the witnesses lived. (R2-248). The

Government emphasized that the testimony of these witnesses would be very

important. (E.g., id. at 1 (these witnesses “are both essential witnesses to the

government’s case in chief.”)). The Government had known of these witnesses

since before the Indictment (see attachments to R2-261), but had not sought a

deposition as allowed by Fed. R. Crim. P. 15. The Government also asked that the

trial be moved, for the testimony by videoconference, to the U.S. Attorney’s

Office. The witnesses would be in a police facility in Australia. (R2-248).

Yates opposed that motion, noting that the Sixth Amendment’s

Confrontation prohibited the Government’s presentation of these putatively

essential witnesses by videoconference. (R2-261-3 to –6). She pointed out inter

alia that no depositions had been taken of those witnesses, even though depositions

would have afforded the opportunity for face-to-face confrontation as protected by

the Confrontation Clause. (Id. at 3, 5). She pointed out that there was no

3

justification for an exception to that aspect of the Clause’s protections here. (Id. at

3-5). She pointed out that even in depositions, under this Court’s caselaw “foreign

testimony is suspect due to the lack of adequate protections for perjury,” and that

the use of two-way television was “likewise suspect due to the lack of protections

from the foreign witness committing perjury.” (Id. at 5-6).

The Government replied in support of its motion. (R2-267, also R3-332).

The District Court granted the motion, with a lengthy opinion. (R3-314).

The Confrontation Clause issue was renewed at trial by another defendant,

and the District Court reaffirmed its decision to allow the video testimony. [R8

(2/11/02) pp.339-50]. As the District Court noted at another point, it had ruled that

an objection by one defendant would preserve the objection for all. [R11

(2/12/02), p.184]. Objection was also raised as to the move to the U.S. Attorney’s

Office; and the District Court acknowledged that it had already heard that aspect of

the objection. [Id., p. 103]. The witnesses were given an “oath” by a federal

deputy clerk. [R11 (2/12/02), pp. 104, 135].

Yates moved for a judgment of acquittal orally at the end of the

Government’s case, orally at the close of all the evidence, and by written post-

verdict motion. [R11 (2/12/02) pp. 217-18; R13 (2/14/02) p.275; R4-405, -406, -

409 (motion, brief, and supplement)]. For the sake of completeness we note that

the oral motions did not again discuss the Confrontation Clause (though, as shown

4

in the Argument, this fact is unimportant). The brief in support of the post-trial

motion discussed the Confrontation Clause, in connection with the new-trial aspect

of the motion. [R4-406-3 to –6]. The District Court denied all such motions, and

again addressed the Confrontation Clause issue in denying the post-trial motion.

[R11 p.223, R13 p.287, R4-455]. Yates was convicted and is incarcerated.

B. Statement of the Facts

1. The Government has not demonstrated, nor even alleged, that there was

any reason why a face-to-face confrontation of the witnesses with Ms. Yates would

have been impossible, or even troubling in any way. The Government simply

chose not to utilize the deposition mechanism provided by Fed. R. Crim. P. 15.

2. The experience of using the videoconferencing setup in this case showed

some of the ways in which such technology is not the same as, and not as good as,

live confrontation between accuser and accused.

Q. [by AUSA] ... I’m going to ask the gentleman controlling this totake a look around the courtroom here so you can see everybody inthis room and ask if you can see [co-defendant] Mr. Pusztai.

(Scanning)

Q. Sir, have you seen Mr. Pusztai?

A. I think so. It’s a little bit hard to focus on the camera. There, arewe? Yes.

R11 (2/12/02) p. 106.

5

MR. VAN HEEST [counsel for co-defendant]: Your Honor, just sothe record can reflect, we cannot read – we can see generally whathe’s holding up. But we can’t read the document as he’s holding itup.

Id., p.109.

MR. LUKER [counsel for co-defendant]: I can’t hear. I apologize forthe interruption. He keeps going up and down.

THE WITNESS: It was suggested that I register the name so that itwould be Therapeutic Corporations.

THE COURT: You cannot hear that?

MR. LUKER: No, sir. I can’t understand what he’s saying. I heard ita few minutes ago, but they’ve lowered it since we started.

I told him I couldn’t hear, and he raised it. And now it’s back down,and I can’t hear it.

THE COURT: Do you want to raise the volume?

THE TECHNICIAN: Yes, sir. I was – when she was speaking, I wastrying to lower the volume where you wouldn’t hear her echo in thebackground.

THE COURT: I do not hear any echo back there. So raise thatvolume.

Id., pp.110-11.

MS. MARKS [AUSA]: ... I realize this is – there is a time delay. IfMr. Van Heest could allow the witness to finish answering thequestion, he has cut him off several times now....MR. VAN HEEST: I’m trying to play that delay in there. It’sdifficult.

Id., p.127.

6

Q. [by AUSA]. Dr. Konkoly, I will speak very slowly and wait for asecond before you respond so that we won’t interrupt each other.

Id., p.136.

THE WITNESS: May I have a close look at the lady on the left-handside in the back, please?

THE COURT: Yes, you may.

TECHNICIAN: That is the closest I can zoom in.

THE WITNESS: If you could go to the side a bit, please. I cannot seefrom the corner of the screen.

(Scanning)

THE WITNESS: No, I can’t not say that categorically. I cannotrecognize the face at the present time.

Id., p.162.

3. The critical factual inquiry, in assessing the sufficiency of the evidence

against Ms. Yates, is the issue of whether the Government proved beyond a

reasonable doubt that she knew that the internet-based pharmacy was a fraudulent

enterprise based on “phony” prescriptions as opposed to an attempt (at least on her

part) to run a legitimate business. The evidence was insufficient in that regard,

especially if one discounts the evidence that was admitted in violation of the

Confrontation Clause.

As to count 1, for conspiracy, such intent and knowledge was at the core of

the charge. The Government does not contend, and the indictment does not

7

charge, that it is unlawful to dispense Viagra or other medicines with a

prescription, or that it becomes per se unlawful if the prescription comes from an

overseas physician. Instead, the indictment charged throughout Count One that the

conspiracy was to dispense medicines based on “phony” prescriptions or without

valid prescriptions. See Indictment, RI-1, ¶¶ 22(a), 23, 25, 27, 29, 30, 33, 34.

As to the mail fraud counts (2 through 11), the indictment was based on the

assertion that Yates “knowingly and willfully” devised a scheme to defraud, and

that the knowingly and willfully-adopted scheme was based on the use of “phony

prescriptions” or “phony foreign prescriptions” – when, so the indictment claimed,

no physician actually made such a prescription. See Indictment, RI-1, ¶¶ 41

(incorporating such allegations in ¶¶ 27, 29, 30, and 34), 42, 44, 46. Thus, again,

the allegation of knowing use of “phony” prescriptions was the heart of these

charges.

The counts of “dispensing drugs without a valid prescription” (RI-1-20 and

–21), counts 17 through 21, were similarly based on the allegation that Yates had

the “intent to defraud and mislead” (id.), and that the “misbranding” which was the

gravamen of the charges consisted of the allegation that the medicines were being

dispensed “without the prescription of a practitioner authorized by law to

administer” the medicines. (Id.). Thus, again, the Government’s theory that Yates

knew that the prescriptions were “phony” was central to these charges. The

8

centrality and indispensability of this element was likewise reflected in the jury

instructions, R14-171 and -175 (2/15/02).

On Count 30, the money laundering charge, the allegation that Yates knew

and intended that the prescriptions were “phony” was central, because that charge

depended on the substantive charges described above.

On count 22, the charge of operating an unregistered drug facility, Yates was

convicted only of a lesser included misdemeanor, reflecting the jury’s conclusion

that she was not demonstrated to have had the intent to defraud in regard to the

repackaging of medicines. See R14-177 to –178 (2/15/02) (jury instructions

discussing this distinction). This repackaging was the other thread of the

Government’s complaints about the operation, aside from its contention that there

were no actual prescriptions. This confirms that on the other charges of which

Yates was convicted, the crucial intent to defraud that was the supposed support

for the jury’s decision was based on the assertion that Yates had the intent and

knowledge that the prescriptions were (in the words of the indictment, repeatedly)

“phony.” That, then, is the crucial question.

It is hard, in a Statement of the Facts of reasonable length, to catalog all of

the evidence exhaustively in order to demonstrate a negative – i.e., that there was

no proof beyond a reasonable doubt that Ms. Yates had the intent and knowledge

that medicines were being dispensed without a valid prescription. Suffice it to say,

9

at this point, that the “evidence” on which the Government relies in that regard

consists almost entirely of two things: the testimony of the overseas witnesses, and

the appeal to the jury’s supposed ability to infer guilt from its disbelief of Yates’s

own testimony. Aside from those things, any evidence to which the Government

might appeal is very slim and conjectural at best, along the lines that she “must”

have known everything that was going on, because she was involved in some

aspects of the business other than dealing with the overseas physicians.

As we will discuss in the Argument below, any disbelief of Ms. Yates’s

testimony cannot, under this Court’s precedents, be sufficient in itself to convict.

Ms. Yates testified at length about her understanding that this was a legitimate

business, and about her attempts to do everything above-board. See generally

R13-61 to –116 (2/14/02). If that in itself could be put through the looking glass to

constitute proof beyond a reasonable doubt of guilt, then the requirement of proof

beyond a reasonable doubt would be meaningless.

The crucial building blocks of the Government’s attempt to prove that Ms.

Yates knew the enterprise was based on “phony” prescriptions, then, depend

utterly on the testimony of the overseas witnesses. This, no doubt, is why the

Government was so adamant to the District Court that the testimony of those

witnesses was “essential” to its case. R2-248-1. The government relied on the

testimony of Paul Christian to show that the Norfolk Mens Clinic did not have an

10

actual storefront on Norfolk Island [R11-108 to –110 (2/11/02)], which was (if

relevant at all) part of the Government’s attempt to prove that there was no

physician involvement. And the testimony of Dr. Tibor Konkoly was especially

crucial to the government, as he was the only physician whose name appeared on

prescriptions who testified that he did not in fact write such prescriptions. [E.g.,

R11-143 to –156. -161 (2/11/02)]. Without their testimony, the Government’s

effort to prove that the business was built on “phony” prescriptions or unprescribed

medicines – as the indictment charged, and as the jury instructions required –

would have collapsed entirely. Certainly there would have been no basis for any

inference beyond a reasonable doubt that Ms. Yates had the requisite knowledge

and intent.

C. Standard and Scope of Review

The issues discussed herein are issues of law, as to which review is de novo.

Though these issues are related to the admission of evidence, that does not mean

that review is deferential; a District Court errs in regard to a decision on the

admission of evidence if the District Court fails to follow correct principles of

governing law. U.S. v. Henderson, ___ F.3d ___, 2005 U.S. App. LEXIS 9362, *5

(11th Cir. 2005) (“[B]asing an evidentiary ruling on an erroneous view of the law

constitutes an abuse of discretion per se.”).

11

Summary of the Argument

The Argument addresses the questions posed by the Court in its en banc

briefing order.

On the first question, we show that the admission of the overseas witnesses’

testimony violated the Confrontation Clause under Crawford v. Washington, 541

U.S. 36, 124 S.Ct. 1354 (2004) and other authorities. Physical presence – accuser

and accused standing before each other – is one of the aspects of the Clause’s

protection. Under Crawford, testimony cannot be admitted without the witness’s

presence at trial, unless the defendant had a prior opportunity for cross-

examination. The Government could have afforded such an opportunity, through a

deposition under Fed. R. Crim. P. 15, but chose not to. Therefore, the

requirements of the Confrontation Clause were violated. There was, furthermore,

no justification for this violation; the Government has offered no reason why it

could not have afforded Ms. Yates the right to confront her accuser in person by

deposition. In the course of this discussion, we show that the Court could avoid

the Confrontation Clause question by resting its decision on Fed. R. Crim. P. 26,

which prohibits the introduction of videoconference testimony.

On the second question, we show that the overseas witnesses were not under

oath in an adequately meaningful sense, making their testimony inadmissible under

the Confrontation Clause (as well as under Fed. R. Evid. 603). The witnesses

12

could never have been prosecuted for perjury, because of substantial doubt as to

whether the perjury statute even applied to their testimony; the rule of lenity would

have forbidden any such prosecution. Moreover, other aspects of the situation

confirm the inadequacy of the oath, in that the witnesses were not in a situation

that would sufficiently impress them with the duty and moral importance of truth-

telling. The issue of the witnesses’ amenability to prosecution for perjury was

expressly discussed below, and our elaboration on that argument in this Court is

proper.

On the third question, we show that, where the evidence was insufficient if

one excludes the evidence that violated the Confrontation Clause, this Court should

render a judgment of acquittal. This Court has the power to do that, rather than

remanding for retrial, under the reasoning of Weisgram v. Marley, 528 U.S. 440,

120 S.Ct. 1011 (2000). That would be the most appropriate course in this case, for

reasons like those discussed in Weisgram. The Government had every opportunity

to submit additional evidence, knowing that its use of teleconferencing technology

gave rise to a substantial legal issue; and the Government failed to do so.

Moreover, having emphasized that the overseas witnesses’ testimony was so vital,

the Government presumably must now admit that no other evidence would be

sufficient to fill the gaps once that evidence is excluded. So, there is no reason to

remand for a retrial. This issue, being a question of this Court’s decision on appeal

13

rather than a real question of preservation of argument in the District Court, is

properly before this Court.

Argument

I. The trial court erred in admitting the videoconference testimony of thewitnesses who were located overseas; this violated Ms. Yates’s rights underthe Confrontation Clause and also violated Fed. R. Crim. P. 26.

The panel was correct: admitting the teleconference testimony of the

overseas witnesses violated Ms. Yates’s rights under the Sixth Amendment’s

Confrontation Clause.1 She was denied the in-person confrontation that is part of

the Clause’s promise, with no justification for this denial. However, this Court

could avoid decision on the constitutional issue by relying instead on Fed. R. Crim.

P. 26, which prohibits the introduction of testimony by teleconference.

A. Fed. R. Crim. P. 26 prohibits testimony by teleconference. Rules 26 and 15also demonstrate that there is no reason to bend Confrontation Clauseprinciples as the Government requests.

The admission of the overseas witnesses’ testimony by teleconference was

patently erroneous under the Rules of Criminal Procedure. The Court could

resolve the case on this basis without reaching the Confrontation Clause issue, or

decide that this issue makes en banc review unnecessary and reinstate the panel

decision. But in any event these observations about the Rules are relevant to the

1 For reasons discussed below, these witnesses’ statements were not actually“testimony,” but that word is used for convenience here.

14

Confrontation Clause question, because the Rules show that there is no reason to

bend the principles of the Confrontation Clause to accommodate the Government.

Criminal Rule 26 provides, “In every trial the testimony of witnesses must be

taken in open court, unless otherwise provided by a statute or by rules adopted

under 28 U.S.C. §§ 2072–2077.” There is undisputedly no statute, Rule of

Procedure, or Rule of Evidence that provided for the use of teleconferencing

technology here. And the testimony of the witnesses in question was not taken “in

... court,” much less “in open court.” So, under Rule 26, the testimony should not

have been allowed.

The phrase “taken in open court” means that the witness must be in the

courtroom. This meaning is plain from the following: (1) The parallel provision in

the civil rules, Rule of Civil Procedure 43(a), likewise requires that testimony be

“taken in open court.” In 1996 a new exception was added, allowing for testimony

“by contemporaneous transmission from another location.” It is therefore plain

from that Rule’s language and history, as well as from the 1996 Advisory

Committee Comment, that the provision requiring testimony to be “taken in open

court” had not permitted video-conferencing from a remote location. Because that

was the meaning of the phrase “taken in open court” in the Civil Rules, the same

meaning obviously applies in the Criminal Rules. (2) Furthermore, in 2002, the

Advisory Committee on the Criminal Rules suggested a revision to Rule 26 that

15

would (like Civil Rule 43(a)) have allowed testimony by remote transmission.

This, too, demonstrates that without such a provision, the phrase “taken in open

court” does not allow such a practice – and that it did not do so in early 2002, at

the time of the trial in this case. Despite the Advisory Committee’s suggestion,

Criminal Rule 26 was not revised to include that suggestion. The Supreme Court

declined to send the amendment to Congress precisely because of constitutional

and practical qualms about allowing such testimony by remote transmission. See

Letter of Transmittal, 535 U.S. 1158 (2002); Statement of Justice Scalia, id. at

1159. (3) Finally, the words “taken” and “in” by their plain meaning require that

the testifying witness be in court (unless, as Rule 26 goes on to say, some Rule or

statute allows an exception).

So, introduction of testimony by remote transmission over Ms. Yates’s

objection was a clear violation of Rule 26’s requirement that testimony be “taken

in open court.” This Court could, as noted above, therefore dispose of this case on

this basis, without reaching the constitutional issue. There is also the fact that Rule

26 was further violated by the taking of the testimony in the U.S. Attorney’s

Office, not in the courtroom. “In open court” plainly does not mean “in the office

of a prosecutor, by teleconference from a police station.” A witness testifying in

court is aware that he or she is sitting next to, and under the eye of, an official

whose job is to ensure fairness and justice; these witnesses, by contrast, were in the

16

domain of those whose job is to convict.

The Government may contend that plain error is the test in regard to these

arguments, on the grounds that Ms. Yates did not specifically mention Rule 26

below. If plain error is the test, that test is met. See U.S. v. Rodriguez, 406 F.3d

1251 (11th Cir. 2005) (discussing plain error test). There was error and it was

plain, as seen above. Without the overseas witnesses’ testimony, even the

Government must agree, the outcome would likely have been different; that is why

the Government was adamant that these witnesses were vital to its case. And

finally, this sort of error seriously affected the fairness and integrity of the

proceedings; this is precisely why in-court testimony is required in criminal cases

(except where a Rule or statute provides otherwise), because this procedure is

necessary to ensure the fairness and integrity of the proceedings.

Plain error should not be required here, because the violation of Rule 26 is

so closely related to the objections that Ms. Yates made in the trial court; the trial

court and the Government were on notice that Ms. Yates objected to the overseas

witnesses’ testimony because of the video-conferencing and because of the move

to the U.S. Attorney’s Office. Furthermore, any reluctance to reverse based on

plain error (which would merely be a prudential rather than a jurisdictional

consideration, U.S. v. Booker, ___ U.S. ___, 125 S.Ct. 738, 769 (2005)), is

outweighed here by a countervailing prudential consideration: the strong policy of

17

avoiding decision on constitutional issues if possible, where a case can be resolved

on non-constitutional grounds. Konikov v. Orange County, ___ F.3d ___, ___ n.1,

2005 U.S. App. LEXIS 10176, *1 n.1 (11th Cir. 2005).

But even if the Court does not dispose of the case on the basis of Rule 26, still

the points made above about the Rule are important. First, they demonstrate that

the Government errs in telling this Court that the allowance of remote testimony is

so important that the Constitution simply must be construed as allowing it. Even if

this Court were to make this new exception to the Confrontation Clause, it would

accomplish nothing; without an amendment to Rule 26 or a statute, testimony-by-

video will still not be allowed. Furthermore, the fact that neither the Congress nor

the Supreme Court has seen fit to adopt such a rule is itself proof that there is no

compelling public necessity for it.

There is also another highly relevant Rule: Fed. R. Crim. P. 15, which

provides for depositions of witnesses who cannot be brought to trial. The

Government has offered no reason why it could not have utilized Rule 15 in this

case. Had it done so in a timely and otherwise procedurally proper fashion, the

Government could have satisfied its own concerns and (barring some problem in

the deposition process or some other now-unforeseen issue) honored Ms. Yates’s

Confrontation Clause rights. Ms. Yates could have attended the depositions to

confront her accusers. See Rule 15(c). She, or the Government, could have had

18

the testimony videotaped and presented to the jury in that way. See Rule 15(e)

(providing that depositions are to be taken in the same manner as civil

depositions); Fed. R. Civ. P. 30(b)(2), (3) (allowing either party to videotape a

deposition). Why did the Government not do that? There is no answer. The

existence of Rule 15, and the Government’s failure to use it, are important in the

Confrontation Clause analysis as will be seen below.

B. The Confrontation Clause requires confrontation in person, at least absentcompelling reason to the contrary. Ms. Yates was denied that right, with nojustification.

Introduction of testimony by teleconference, without a prior in-person

deposition, violated Ms. Yates’s rights under the Confrontation Clause. This

conclusion is mandated by decisions such as Coy v. Iowa, 487 U.S. 1012, 108 S.Ct.

2798 (1987), Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157 (1990), and

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).

i. “Confrontation” entails physical presence.

The first relevant principle from the caselaw is that a physical, face-to-face,

meeting between accuser and accused is a core element of the Confrontation

Clause right. That was what the framers of the Constitution contemplated, and the

norm persists to this day. Craig, 497 U.S. at 846, 110 S.Ct. at 3163 (listing the

“elements of confrontation - physical presence, oath, cross-examination, and

observation of demeanor by the trier of fact”); Coy, 487 U.S. at 1015-19, 108 S.Ct.

19

at 2800-02 (explaining the development of the historical requirement of face-to-

face confrontation, the etymology of the word “confront” as meaning literally the

meeting of foreheads, and the line of Supreme Court cases recognizing this value);

Crawford, 541 U.S. at 49, 124 S.Ct. at 1363 (discussing 1794 North Carolina

decision holding “that depositions could be read against an accused [as an

alternative to in-court testimony] only if they were taken in his presence.”).

The physical-presence aspect of the Confrontation Clause right is important

in at least two ways. First is the fact that an in-person meeting between accuser

and accused makes false accusations less likely; this is the age-old recognition

about human nature that it is much harder to make a false accusation against a

person when he or she is just feet away from you. Coy, 487 U.S. at 1018-19, 108

S.Ct. at 2801-02. Second is the fact that the right of confrontation ensures that the

witness is testifying under at least somewhat neutral conditions, rather than in a

setting that is more aligned with prosecutors. The confrontation right thus avoids

the use of statements obtained from witnesses who are in settings where they might

feel pressure to give a pro-prosecution statement rather than a scrupulously truthful

one. This case presents a serious problem in that regard, as the witnesses in

question were testifying from a police station to the prosecutors’ office.

20

So, physical presence of accused with accuser is at the core of the

Confrontation Clause. As the leading scholar2 on the Clause has put it,

[T]he right reflects a profound commitment to the proposition that thetestimony of a prosecution witness should be given under certainprescribed conditions. Testimony should be under oath, subject tocross-examination, in the presence of the accused – the time-honoredphrase ‘face to face’ is repeated in numerous English statutesbeginning in the sixteenth century – and, if reasonably possible, in thepresence of the fact-finder.

The common law recognized that in some circumstances this lastcondition could not feasibly be satisfied; a witness might, forexample, be dead by the time of trial, or too ill to testify at trial. Thus,the law allowed the possibility of taking the witness's testimonybeforehand, by a deposition that could then be presented at trial if thewitness were unable to appear. But the law sedulously protected theaccused's right to be present at the deposition and to cross-examine.

And thus the law remains.

Richard J. Friedman, Remote Testimony, 35 U. Mich. J. L. Reform 695, 697-98

(2002) (footnotes omitted, emphasis added).

The panel was correct in recognizing that a videoconference is not the same

thing as the constitutionally-protected opportunity for a physical face-to-face

confrontation. U.S. v. Yates, 391 F.3d 1182, 1186 (11th Cir. 2004), vacated, 404

F.3d 1291 (11th Cir. 2005). To the same effect is Justice Scalia’s explanation of

2 The Supreme Court has cited to Professor Friedman’s work as having been oneof the things that led to the watershed Confrontation Clause decision in Crawford.541 U.S. at 60, 124 S.Ct. at 1370.

21

the Supreme Court’s refusal to adopt the revision of Rule 26 that would have

allowed testimony by videoconference.

As we made clear in Craig, supra, at 846-847, a purpose of theConfrontation Clause is ordinarily to compel accusers to make theiraccusations in the defendant’s presence – which is not equivalent tomaking them in a room that contains a television set beamingelectrons that portray the defendant’s image. Virtual confrontationmight be sufficient to protect virtual constitutional rights; I doubtwhether it is sufficient to protect real ones.

Statement of Justice Scalia, 535 U.S. at 1160 (emphasis in original). As Professor

Friedman explained in the article cited above,

[T]estimony transmitted from a remote location still lacks an elementintegral both to live testimony in the courtroom and to depositiontestimony – the presence of both the accused and counsel in the sameroom as the witness. There are two effects of this deficit that wecannot put aside easily. First, even with two-way transmission, wouldthe distance and sense of insulation diminish the sense ofconfrontation – not an idly chosen term – that a prosecution witnessfaces when testifying against an accused? Second, would defensecounsel be impaired to any significant degree in cross-examining sucha witness by the sense of distance and by the delay in transmissionthat, even with up-to-date technology, is still noticeable? Each ofthese effects is perfectly plausible. I do not know of any extant studiesthat can give substantial comfort on these points. At least absentconfidence on these grounds, I believe there is considerable merit toJustice Scalia's aphorism [as quoted above]

Remote Testimony, 35 U. Mich. J. L. Reform at 702-03 (footnotes omitted).

In short, testimony by videoconference is not the equivalent of in-person

confrontation. Surely we all recognize how different it is to be somewhere with

someone, as opposed to seeing television footage of a person thousands of miles

22

away. Real life is different from watching TV, and from being seen on TV. Of all

the scenarios in which this is true, it may be most pronounced in criminal trials. A

witness in a courtroom cannot miss the fact that her testimony could make the

difference between freedom and liberty for a real person who is sitting a few feet

away; but a witness testifying from half a world away, to whom the defendant is at

best just a distant figure on a television screen, is in an entirely different situation.

(Note, in this regard, that one of the overseas witnesses made it clear that he could

hardly even make out the face of Ms. Yates (R11, p.162); this was demonstrably

not, then, equivalent to the “face-to-face” confrontation contemplated by the

Constitution.). Moreover, a witness in a courtroom can be cross-examined with

greater effectiveness; good cross-examination is not the same as saying words into

a television camera, but also includes nuances that can only be felt in person.

In fact, the feeling of distance between accuser and accused that arises from

two-way videoconferencing, and the psychological change that this distance

produces in the witness, is recognized by prosecutors as well as defendants. This

is seen when prosecutors advocate the use of two-way videoconferencing for child

witnesses in abuse cases. In those cases, videoconferencing is allowed precisely

because the witness feels the presence of the accused much less acutely when

seeing the accused only on a monitor rather than in person. See U.S. v. Weekley,

130 F.3d 747, 752-53 (6th Cir. 1997) (allowing testimony by two-way

23

videoconference because of the ways it would be different, from the witness’s

perspective, from physical presence). The use of such technology for child

witnesses in abuse cases is discussed below, where it is shown that the principles in

those cases do not support the use of videoconferencing here. For now, the point is

the simpler one that two-way videoconferencing is materially different from the

physical presence that the Confrontation Clause (at least ordinarily) requires.

The Eighth Circuit has made the same point in U.S. v. Bordeaux, 400 F.3d

548 (8th Cir. 2005). The Circuit explained that two-way video systems fall short of

in-person confrontation, just as one-way systems do; and in so doing, the Eighth

Circuit relied upon and followed the panel decision in this very case:

[T]he "confrontations" [created by two-way videoconferencing] arevirtual, and not real in the sense that a face-to-face confrontation isreal.

The virtual "confrontations" offered by closed-circuit televisionsystems fall short of the face-to-face standard because they do notprovide the same truth-inducing effect. The Constitution favors face-to-face confrontations to reduce the likelihood that a witness will lie."It is always more difficult to tell a lie about a person 'to his face' than'behind his back.'" Coy v. Iowa, 487 U.S. 1012, 1019, 101 L. Ed. 2d857, 108 S. Ct. 2798 (1988). Given the ubiquity of television, evenchildren are keenly aware that a television image of a person(including a defendant in the case of a two-way system) is not theperson - something is lost in the translation. Thus, a defendantwatching a witness through a monitor will not have the same truth-inducing effect as an unmediated gaze across the courtroom. ... [T]hetouchstone for deciding whether a "confrontation" satisfies theConstitution is whether it is likely to lead a witness to tell the truth tothe same degree that a face-to-face confrontation does, and in this

24

respect two-way systems are like one-way systems: they both fallshort.

... [There are] intangible but crucial differences between a face-to-face confrontation and a "confrontation" that is electronically createdby cameras, cables, and monitors. We thus join the Eleventh Circuit inrejecting Gigante's view of the "confrontation" that two-way closed-circuit television systems afford. United States v. Yates, 391 F.3d1182, 1186 (11th Cir. 2004).

Even if we assumed that a two-way system might conceivably capturethe essence of the face-to-face confrontation in some situations,whether it actually did would turn on the answers to a myriad of hardlogistical questions (How big must the monitor be? Where should itbe placed? Where should the camera focused on the defendant beplaced?) that would render the theoretical promise of the two-waysystem practically unattainable.

Id. at 554-55.

Indeed, even the cases upon which the Government will rely are in

agreement: two-way videoconferencing is not the equivalent of in-person presence,

for Confrontation Clause purposes. See Harrell v. State, 709 So.2d 1364, 1368-69

(Fla. 1998): “The State is urging this Court to conclude that the satellite procedure

used in this case is the equivalent of physical, face-to-face confrontation. We

decline to make such a finding. ... [W]e do not conclude that virtual presence is

the equivalent of physical presence for the purposes of the Confrontation

Clause.”); U.S. v. Gigante, 166 F.3d 75, 81 (2nd Cir. 1999) (“Closed-circuit

television should not be considered a commonplace substitute for in-court

testimony by a witness. There may well be intangible elements of the ordeal of

25

testifying in a courtroom that are reduced or even eliminated by remote

testimony.”); id. (limiting use of this technology as a substitute for physical

presence to cases where there is “a finding of exceptional circumstances”).

So, the procedure used in this case – introduction of testimony of a witness

who was not present in the courtroom, by technology that did not fully replicate the

experience of physical presence – did not fully satisfy the requirements and

concerns of the Confrontation Clause. We will show, in the following sections,

that there is no countervailing consideration or exception-to-the-rule that will save

the procedure in this case. But for now the point is the initial one: under the

Confrontation Clause, witnesses must ordinarily testify by being physically present

with the defendant in court.

ii. Out-of-court testimony is not allowed if the defendant had no prioropportunity to cross-examine the witness; that rule was violated here.

The next step of the analysis is governed, and a clear rule is provided, by the

Supreme Court’s recent decision in Crawford v. Washington, 541 U.S. 36, 124

S.Ct. 1354 (2004). If a witness cannot be brought to court, then the witness’s

testimony cannot be introduced unless the defendant had the prior opportunity for

cross-examination (by deposition, or perhaps in a prior trial). Id., 541 U.S. at 54,

124 S.Ct. at 1366 (“[T]he common law in 1791 conditioned admissibility of an

absent witness’s examination on unavailability and a prior opportunity to cross-

examine. The Sixth Amendment therefore incorporates those limitations.”); id.,

26

541 U.S. at 59, 124 S.Ct. at 1369 (“Our cases have thus remained faithful to the

Framers’ understanding: Testimonial statements of witnesses absent from trial

have been admitted only where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine.”); id., 541 U.S. at 68, 124

S.Ct. at 1374 (“Where testimonial evidence is at issue, however, the Sixth

Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.”); Friedman, Remote Testimony, 35 U. Mich. J.

L. Reform at 697-98. It is undisputed that this was not done here. The prior cross-

examination must have been in the accused’s presence, because that again is what

the Confrontation Clause guarantees, as explained in the cited portion of Remote

Testimony. But in any event there was no prior cross-examination of any sort here.

The Government could have complied with the Confrontation Clause by

ensuring that Yates had a prior opportunity for cross-examination, in a deposition

under Fed. R. Civ. P. 15.3 Yates and her counsel could have been physically

present (see Rule 15(c)). The Government did not do this, and thereby violated Ms.

Yates’s Sixth Amendment right to confront the witnesses against her. This case

really is as simple as that, given Crawford’s holding.

3 In saying this, we assume for purposes of argument that the witnesses were“unavailable” in the relevant sense and that the procedures relating to thedeposition would have been sufficiently fair. The Government would have had totimely move for an order allowing such depositions, and otherwise satisfy therequirements of Rule 15.

27

Crawford marks an important change in Confrontation Clause jurisprudence.

Prior to Crawford, a key factor in determining whether to allow out-of-court

testimony or an out-of-court statement into evidence was whether the testimony

was taken, or the statement made, under circumstances that made it sufficiently

“reliable.” As the Supreme Court explained in Crawford, 541 U.S. at 60-62, 124

S.Ct. at 1369-70, that was the mode of analysis under such Confrontation Clause

cases as Ohio v. Roberts, 448 U. S. 56, 100 S.Ct. 2531 (1980).

It was this Roberts-era notion of “reliability” that the District Court, in this

case, repeatedly invoked as justification for allowing the out-of-court testimony of

the overseas witnesses. [R3-314-10 (twice referring to reliability standard); -11

(same, once); -12 (same); -13 to –19 (addressing “reliability” at great length)]. It is

this notion of “reliability” to which the Government will implicitly appeal, arguing

that videoconferencing is a more reliable method of obtaining and presenting

testimony than even a deposition would be. But the Supreme Court explicitly did

away with the Roberts “reliability” test (or quasi-test) in Crawford. 541 U.S. at

61-63, 124 S.Ct. at 1370-71; id., 541 U.S at 67-68, 124 S.Ct. at 1373. In Crawford

the Supreme Court returned to the simple traditional rule of the Confrontation

Clause: live, in-court testimony, or a prior opportunity to cross-examine. It is, as a

matter of law, no longer enough to say that the witness is unavailable for in-court

testimony and that methods have been adopted to adequately ensure the reliability

28

of the testimony.

The now-discarded standard of “reliability” explains the cases upon which

the Government will rely most heavily, and demonstrates that those cases are

unpersuasive after Crawford. The Florida Supreme Court’s decision in Harrell

was explicitly based on the “reliability” standard; the Court was satisfied that the

videoconferencing setup was sufficiently “reliable” to satisfy the Confrontation

Clause. Harrell, 709 So.2d at 1368; id. at 1371 (“Because each of these additional

safeguards was present in the satellite procedure, we are convinced that the

witnesses' testimony was sufficiently reliable. Thus, the second prong of our

analysis is satisfied.”). The same is true of this Court’s decision refusing to grant

habeas relief against that decision in light of the deferential standard of review.

Harrell v. Butterworth, 251 F.3d 926, 930-31 (11th Cir. 2001). But, as discussed

above, “reliability” is not the test anymore after Crawford.

In addition to its other virtues, Crawford’s treatment of the Confrontation

Clause strikes a reasonable balance. Admitting a deposition of an absent witness

is, to be sure, somewhat less good than live testimony in court, because the jury

cannot see the witness as well and because the witness does not have the full truth-

inducing experience of the courtroom. But with a deposition, the defendant has

some countervailing benefit from knowing the witness’s testimony before trial and

(perhaps most importantly) from having had the opportunity for physical presence

29

that is such a deterrent to perjury. Testimony-by-teleconference carries all of those

negatives of a deposition, with none of those benefits that are of some consolation.

And, of course, if testimony by videoconference is really so much better from the

Government’s point of view and better from many defendants’ point of view (as

the Government will argue) then defendants can agree to it. See Statement of

Justice Scalia, 535 U.S. at 1161 (“nothing prevents a defendant who believes this

procedure is ‘more efficient and more fair’ from voluntarily waiving his right of

confrontation. The only issue here is whether he can be compelled to hazard his

life, liberty, or property in a criminal teletrial.”) (footnote omitted, emphasis in

original).

With the advent of Morse code, people no doubt felt much more “present” to

those halfway around the world than they ever had before – and some prosecutors

probably thought that live testimony by Morse code should be good enough to

satisfy the Constitution – but still it was a far cry from actual presence. The same

was true with the advent of the telephone, and the same is true today.4 In the end,

there is nothing like real life. Under Crawford’s tradition-based view of the 4 The next generation of telecommunications – the creation of a precise three-dimensional replica of each speaker, to be placed in the other participant’s far-away location, which will move precisely as the speaker does – is now in earlydevelopment, precisely because the researchers recognize that two-wayvideoconferencing is not enough like being in a room with the person you aretalking to. See “’Teleporting’ Over the Internet,” BBC News World Edition, June17, 2005, available at <http://news.bbc.co.uk/2/hi/technology/4102018.stm>;discussion at <http://www.boingboing.net/2005/06/17/claymation_as_telepr.html>.

30

Clause, the answer is simple in this case. Ms. Yates’s rights were violated,

because she was convicted on the testimony of witnesses who were neither present

in court nor subject to her prior cross-examination.

The Government’s position is that advances in technology should dilute the

Confrontation Clause’s protection, allowing teleconferencing to substitute for

actual presence. But, if anything, the Government has it backwards. It would be

just as easy – and more in furtherance of the values of the Confrontation Clause –

to say that an advance in technology strengthens the requirements of the

Confrontation Clause. One might readily conclude, that is, that a witness who

cannot be brought to the courtroom must not only be subject to an in-person

deposition before trial, but must also be required to testify by two-way

videoconference “live” before the jury. In that way, technology could better serve

all of the interests that the Confrontation Clause seeks to protect, rather than being

used to excuse the trampling of one of those interests. Or perhaps it is enough to

stick with the view that the Confrontation Clause means just what it did at the

beginning: trial presence, or prior cross-examination. This Court does not have to

decide in this case whether advances in technology make the Confrontation Clause

more protective of defendants’ rights; it is enough to note that advances in

technology should not make it less so.

31

iii. Even if some exceptions to Crawford’s command may exist, there wasno justification for an abridgement of Ms. Yates’s rights.

There may, even after Crawford, be room for one more question: whether

there can ever be a sufficient justification to permit the denial of the physical-

presence component of the confrontation right. Will there ever be a case, after

Crawford, where a defendant can be denied both an at-trial in-person confrontation

and a prior opportunity for cross-examination?

Pre-Crawford, the Confrontation Clause had one such exception: in Craig,

the Supreme Court allowed the use of one-way videoconferencing for the

testimony of a child witness in a sex-abuse case, based on case-specific findings

that the procedure was necessary to protect the welfare of the child. Craig, 497

U.S. at 855-56, 110 S.Ct. at 3169. The Supreme Court, here again, emphasized

that physical presence is normally essential to the Confrontation Clause, and that a

departure from this norm must be well-justified. Id., 497 U.S. at 850, 110 S.Ct. at

3166 (“[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.”).

But Crawford takes a more categorical approach to the Confrontation

Clause, making Craig’s future uncertain. Crawford, 541 U.S. at 54, 125 S.Ct. at

1365 (“The text of the Sixth Amendment does not suggest any open-ended

exceptions from the confrontation requirement to be developed by the courts.”).

32

We are not proposing that this Court deem Craig a dead letter. Craig is still good

law as to abused child witnesses, until and unless overruled by the Supreme Court.

It is enough to realize that, under the analysis in Craig, if there is room for

an exception to the physical-presence requirement for any witnesses other than

abused children, the exception must be justified by some real showing of necessity.

This Court should neither expand Craig’s exception, nor invent some new looser

exception to the requirements of the Clause, where Crawford has so recently

returned to a categorical view of the Clause. See Friedman, Remote Testimony, 35

U. Mich. J. L. Reform at 706 (noting, even before the decision in Crawford,

“Craig was a 5-4 decision of dubious merit, and it should not be extended outside

the realm of child witnesses, or beyond the circumstance in which a particularized

showing is made that the specific witness would be subject to trauma by testifying

in the courtroom.”).

So, at most, there might be an exception if the Government could show that

the exception was “necessary to further an important public policy” of the sort

discussed in Craig. Id., 497 U.S. at 850, 110 S.Ct. at 3166. The question is not

just whether the witness’s testimony is important, nor even whether there is an

important reason why the witness cannot come to court. The question, as the

Supreme Court held in Craig, is instead whether there is an acceptably compelling

reason to deny the aspect of the Confrontation Clause right that is being denied –

33

i.e., the right to physical presence. Craig, 497 U.S. at 856, 110 S.Ct. at 3169. The

Supreme Court did not ask in Craig simply whether the child witness’s testimony

was important, and the Court even made clear that the question was not whether

there was a good reason to spare the child from having to come to court. Id. If it

were just a matter of inability to come to court, the Supreme Court noted, the

defendant’s Confrontation Clause right could be vindicated by having a face-to-

face confrontation in some other place. Id. The question was whether there was

sufficient reason why the witness should be spared a face-to-face confrontation

with the defendant. Id.

[I]f the state interest were merely the interest in protecting childwitnesses from courtroom trauma generally, denial of face-to-faceconfrontation would be unnecessary, because the child could bepermitted to testify in less intimidating surroundings, albeit with thedefendant present.

Id. See also id., 497 U.S. at 850, 110 S.Ct. at 3166 (“[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.”) (emphasis supplied).

Even if Craig’s strict test of “necessary to further an important public

policy” were diluted somewhat, still any test would necessarily ask whether there

was a good enough reason to deny Ms. Yates the constitutional interest that she

was denied: the physical-presence component of the Confrontation Clause. The

34

question, again, is not whether the testimony was important or whether there is a

reason why the witnesses cannot come to court. As noted in Craig, if the problem

is that the witness cannot testify in the courtroom, then the constitutionally-

mandated physical confrontation can occur elsewhere. The question instead is

whether there was good reason to deny Ms. Yates one of the things to which the

Confrontation Clause entitles her, at least absent some exceptional circumstance:

the right to be in the same room as her accuser. And that is where the Government

has utterly failed to offer anything. The Government does not even contend that

there was a good reason why a deposition, with Ms. Yates’s physical presence,

could not have been had.5

In Craig, the same reasons that made an in-court physical confrontation

impossible were also reasons that made a deposition confrontation impossible. 5 In addition to a showing of a sufficient reason why in-person confrontation couldnot be had, the Government would surely have to demonstrate that the absentwitness’s testimony would be crucial and could not be replicated by otherevidence. Confrontation Clause rights certainly cannot be abridged lightly, if at all,under Crawford; if the Government can prove its case without abridging thedefendant’s Confrontation Clause rights, surely it must do so. See Harrell v.Butterworth, 251 F.3d at 931 (upholding, on deferential habeas review, decision ofFlorida Supreme Court based in part on that Court’s conclusion that the disputedtestimony was “absolutely essential” to the prosecution).

We are unsure, at this point, whether the Government will contend that theabsent witnesses were indispensable in this sense. If they were not, then there wascertainly no need to trample on Ms. Yates’s Sixth Amendment rights. But if thesewitnesses’ testimony was vital and irreplaceable, then that will have importantimplications for the issue addressed in Section III of this Argument, as to whetherthere should be a retrial or a judgment of acquittal.

35

The reasons had to do with the experience of confrontation itself – the presence of

the accused was the problem that needed to be avoided in order to preserve an

important public policy. Craig, 497 U.S. at 856, 110 S.Ct. at 3169. Here, by

contrast, there is no reason why Ms. Yates’s accusers could not have given

testimony in her presence. There was, in other words, no reason for the denial of

her Confrontation Clause rights.

[T]he situation of the child witness who would be traumatized bypresence in the courtroom and by having to testify face-to-face withthe accused is fundamentally different from that of the witness who isfully able to testify but cannot be brought to the courtroom. In theformer case, by hypothesis, electronically transmitted testimonycreates as much confrontation as can be done without traumatizing thechild. In the latter case, by contrast, if the accused and counsel are notin the same room as the witness then in most cases there is a foregoneopportunity for confrontation, because presumably they could bebrought together.

Friedman, Remote Testimony, 35 U. Mich. J. L. Reform at 706. This Court should

not expand Craig in a way that would allow abridgement of Confrontation Clause

right without at least a showing that it is necessary to abridge that right.

The discussion above also demonstrates that a decision in favor of Ms. Yates

would be consistent with the decisions of other Circuits. The Eighth Circuit’s

Bordeaux opinion has already been discussed above; a ruling in favor of the

Government here would create a stark Circuit-split. And U.S. v. Gigante, on which

the Government will rely heavily, is also understandable in light of the principles

discussed. (Not to say that Gigante was rightly decided, but it is distinguishable

36

and the Court can rule for Ms. Yates without deciding whether Gigante was right).

The crucial fact in Gigante was that, in addition to having been impracticable to

bring the witness to court for trial, it was also impracticable to bring the witness

and the defendant together somewhere else for a deposition. This was explicitly

one of the reasons that the Second Circuit relied upon, in upholding the use of

testimony by videoconference. Gigante, 166 F.3d at 81 (“The facts of [the

witness’s] fatal illness and participation in the Federal Witness Protection Program,

coupled with Gigante's own inability to participate in a distant deposition, satisfy

this exceptional circumstances requirement.”). In addition to the fact that the

defendant and the witness were both too sick to travel to each other, it would have

been a bad idea to let Vinny the Chin know, for even one day, where the witness

(ex-Mafia, now Witness Protection Program) was going to be. There was in

Gigante, in other words, exactly what there is not in this case: a reason to justify

not only the denial of an in-court confrontation but also the denial of an in-person

deposition confrontation.

This Court does not have to write an opinion in this case that would purport

to cover every future case. It is conceivable that in some cases there will be a very

good reason why a particular defendant should not be allowed to physically attend

37

a deposition of some particular witness.6 Perhaps, in those cases, it might be

enough to allow the defendant to physically “confront” the witness through his or

her attorney, with the defendant being present only through telecommunication.

Such hypotheticals can be left for another day.

II. The statements of those witnesses were also inadmissible because thewitnesses were not adequately under oath.

A. The inadmissibility of the statements.

In addition, admitting the testimony of the overseas witnesses was erroneous

6 We believe that (leaving aside Craig, which this Court cannot overrule but candecline to expand) the Confrontation Clause’s command of physical presence attrial or deposition as set forth in Crawford is clear, and is not subject to case-by-case exceptions. If a witness cannot be brought to the same room as the defendantto give his or her testimony, the witness’s testimony cannot be heard.

If there is any exception, it would have to be a case in which the denial ofthe in-person confrontation right was “necessary to further an important publicpolicy” under the Craig standard. Helping the Government present the testimonythat will help gain a conviction is not the sort of “important public policy” thatwould suffice. Instead, as Craig shows, the “important public policy” must besomething else – something like protecting the welfare of a child-witness bysparing the child from trauma, as in Craig. The panel was correct in recognizingthis. Yates, 391 F.3d at 1187 (“[T]he prosecutor's need for the testimony in orderto make a case and expeditiously resolve it are not public policies that areimportant enough to outweigh a defendant's right to confront an accuser face-to-face.”).

But even if this Court disagreed as to what kind of reason would suffice intheory to justify an abridgement of the Confrontation Clause, still in this case therewas simply no reason of any sort why Ms. Yates could not have been afforded herright to prior cross-examination and in-person confrontation.

38

because those witnesses were not properly under oath. This violated both the

Confrontation Clause (Craig, 497 U.S. at 845, 110 S.Ct. at 3163 (noting that the

requirement of an oath is an element of the Clause’s protections)) and Fed. R.

Evid. 603 (“Before testifying, every witness shall be required to declare that the

witness will testify truthfully, by oath or affirmation administered in a form

calculated to awaken the witness’s conscience and impress the witness’s mind with

the duty to do so.”). The ineffectiveness of the oath in this case has two facets, as

described below: the purely legal, and the more intangible.

One irreducible requirement for an oath to be effective is surely at least that

the witness must be prosecutable for perjury if he lies. If a putative promise to tell

the truth will not actually support a prosecution for perjury, it is no oath at all. And

it is at best unclear whether something in the form of an oath, made by a person in

Australia speaking to a person in Alabama by telecommunications technology, is

an oath at all in this sense. As Judge Edmondson wrote in his panel concurrence,

the general statutory language authorizing U.S. court personnel to give oaths “is

not plainly sufficient to cover the anomaly presented by this case.” Yates, 391 F.3d

at 1190. That lack of clarity is fatal to the prospect for a perjury prosecution, since

the first rule of criminal laws is that when they are ambiguous they are to be read

narrowly. U.S. v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 1225 (1997) (“the

canon of strict construction of criminal statutes, or rule of lenity, ensures fair

39

warning by so resolving ambiguity in a criminal statute as to apply it only to

conduct clearly covered.”).

The problem lies, perhaps among other places, in the perjury statute, 18

U.S.C. § 1621. The crucial language is the first portion of subsection (1): it applies

only to a person who has “taken an oath before a competent tribunal, officer, or

person ...” There is, first, the word “before.” If the witness is thousands of miles

away from the official, is the witness taking an oath “before” that official? No; the

common meaning of the word “before,” in this context (where it is a person who is

“before” someone else, not merely a matter or case or issue), is “in front of” or “in

the presence of.”

And then there is the statutory word “competent,” which raises but utterly

fails to answer the crucial question: is a court clerk in Alabama “competent” to put

someone under oath from thousands of miles away in another nation? One must

admit at least that this is a good question, and that an affirmative answer is not

assured. As Judge Edmondson noted in his panel concurrence, when laws are

enacted to ensure that overseas witnesses are under oath, special provisions are

adopted going far beyond what was done in this case. Such provisions include 22

U.S.C. § 4221, designed specifically to allow overseas witnesses to be placed

under oath by federal government personnel in those overseas countries. This

confirms that a person competent to give oaths in Alabama does not clearly have

40

the power to put someone under oath in a foreign land by telecommunication; if it

were so easy, there would be no need for 22 U.S.C. § 4221. So, these witnesses

could not have possibly been successfully prosecuted for perjury – even indulging

the far-fetched notion that the Government might have ever bothered to try, given

the difficulty of extradition and the fact that the witnesses were saying what the

Government wanted them to say – given the rule of lenity and associated doctrines

discussed in Lanier.

In addition to this, there is also the inadequacy of this oath in less tangible

respects. Again, in order to be effective the oath must be in a form “calculated to

awaken the witness’s conscience and impress the witness’s mind with the duty” to

testify truthfully. Fed. R. Evid. 603. In ordinary cases, truth-telling by witnesses

is compelled not only by the fear of prosecution for perjury, but also by the other

aspects of the experience of being a witness. These aspects of the experience are at

their highest when a witness is testifying in court, with all the grandeur of the

courtroom and the knowledge that there are many people within a radius of twenty

feet or so who are on the lookout for false testimony. While the experience is

somewhat less overwhelming when a witness testifies in a pre-trial deposition, still

a witness properly sworn in a deposition has enough of that same sort of

experience to make the oath meaningful. Such a witness knows that there are at

least three people present who are not on the prosecution’s side, and whose interest

41

is not in seeing the testimony most likely to convict; they are the defendant, the

defendant’s lawyer, and the court reporter (and perhaps even a fourth, to

administer the oath). That is a very different experience from sitting in a police

station with no one present but police officers who have allied themselves with the

far-away prosecutors. Furthermore, common sense requires the recognition that a

witness testifying for the prosecution, from thousands of miles away, knowing that

the prosecutors could not even force him to come to America to testify, would

surely not expect any possibility that he would be prosecuted for perjury if he

testified favorably to the Government – even if (contrary to what has been shown

above) such a prosecution was even legally possible in theory. Again, Judge

Edmondson put it well: “I mistrust the notion that many people think that talking to

a television (especially given the other circumstances here) counts for much. So, I

worry that the Constitution’s requirement that a witness in a criminal trial make his

statements under a meaningful oath was not met in this case.” 391 F.3d at 1191.

B. Ms. Yates adequately preserved this issue for review.

Ms. Yates adequately preserved her objection to the inadequacy of the oath.

The objections to the use of videoconference testimony included the objection that

the oath was inadequate. See “Defendant Yates’ Response to Government’s

Motion to Permit Witnesses to Testify at Trial Via Video Teleconference,” R2-

261-5 (“[E]ven using Fed. R. Crim. P. 15(a), the foreign testimony is suspect due

42

to the lack of adequate protections for perjury. See U.S. v. Alvarez, 837 F.2d 1024

(11th Cir. 1988). Likewise, the use of the two way television testimony is likewise

suspect due to the lack of protections from the foreign witnesses committing

perjury.”); Government’s Reply, R2-267-3 (noting that defendants had argued that

“there are no adequate protections should a witness commit perjury”); id. at 4-5

(arguing the point); District Court opinion, R3-314-16 to -19 (addressing

defendants’ contention about the “inability to enforce a penalty for perjury”); R8-

349 (in response to the District Court’s suggestion that the witness would be

“subject to the same sort of penalty for perjury as he would be here,” counsel for

co-defendant replies “Except that ... if he’s perjuring himself there while under

oath here, he’s not perjuring himself in a court of law there.”); R11-184 (District

Court acknowledges that any objection by one defendant is preserved as to all

defendants). The intangible aspects of the inadequacy of the oath likewise are

close to the heart of the Confrontation Clause issue as seen above and are thus

preserved by the extensive argument on the Confrontation Clause.

While authorities have been cited in this brief that were not cited in support

of this argument below, and the argument has received more elaboration here, that

does not mean that Ms. Yates failed to preserve the issue. As the Supreme Court

has held, “once a federal claim is properly presented, a party can make any

argument in support of that claim; parties are not limited to the precise arguments

43

they made below.” Lebron v. Nat’l R. Passenger Corp., 513 U.S. 374, 379, 115

S.Ct. 961, 965 (1995). Lebron shows the breadth of this rule: the plaintiff there

was allowed to argue that Amtrak was “the government” for constitutional

purposes, even though it had explicitly disavowed that argument below, because

the Court saw this as simply a new argument in support of the claim that had

properly been raised: his claim that Amtrak had violated his First Amendment

rights. See also Yee v. Escondido, 503 U.S. 519, 534-35, 112 S.Ct. 1522, 1532

(1992) (“regulatory taking” argument was adequately preserved even if the focus

below had been on “physical taking”). Under Lebron and Yee, the oath/perjury

aspect of the problem would probably be properly before this Court even if it had

not been discussed below, because it is an aspect of the Confrontation Clause claim

that was raised below.

But this is academic because the oath/perjury issue was discussed below,

even though it is now being discussed in more detail, and the issue is therefore

perfectly adequately preserved under Lebron and Yee. We are not asking the Court

to throw the gates open for all sorts of new arguments on appeal in every case.

Where a certain contention has not been made at all below, and where it depends

on factual issues that were not developed below, it would be understandable to

hold that the issue will not be reached on appeal. See, e.g., Access Now, Inc. v.

Southwest Airlines, 385 F.3d 1324 (11th Cir. 2004). But this case is not like that.

44

The Confrontation Clause argument was made below, specifically including the

argument that the oath was inadequate because it failed to ensure that the witness

really were subject to penalty for perjury if they lied. There is no bar to our raising

new points of law in support of that argument.

III. Ms. Yates should receive a judgment of acquittal because there was notsufficient admissible evidence to support the conviction.

Ms. Yates should have a judgment of acquittal, and not merely a retrial,

because there was not sufficient admissible evidence to support the conviction. In

this, we are addressing primarily a question of first impression for this Court and,

so far as we can tell, for any other Court: the impact and implications of Weisgram

v. Marley, 528 U.S. 440, 120 S.Ct. 1011 (2000) in federal criminal procedure.

A. At least under the circumstances of this case, the Court should not considerthe erroneously admitted evidence when reviewing the denial of the motionfor judgment of acquittal.

Without the wrongly-admitted testimony of the overseas witnesses, the

evidence was insufficient to prove Ms. Yates guilty beyond a reasonable doubt.

Without those witnesses, there was certainly not enough evidence that Ms. Yates

had the requisite level of criminal knowledge and intent as charged in the

indictment and as required by the statutes at issue. This has been discussed at

more length in the Statement of Facts, above.

45

The lack of admissible evidence on the point cannot be excused by positing

that the jury could take Ms. Yates’s testimony as substantive evidence of the

opposite of what she said. If that sort of logic is ever permissible, it nonetheless

cannot be used to supply the only evidence on a crucial point. U.S. v. McCarrick,

294 F.3d 1286, 1293 (11th Cir. 2002) (disbelief of defendant’s testimony cannot

suffice to uphold a conviction unless there is also other evidence on the point in

question.); U.S. v. Gonzalez, 183 F.3d 1315, 1325 (11th Cir. 1999).7

In terms of appellate review, then, the real question is whether the Court

should remand with instructions that Ms. Yates receive a judgment of acquittal, or

whether she should receive only a retrial. The answer is that a judgment of

acquittal is appropriate.

Guidance can be taken from Weisgram v. Marley, 528 U.S. 440, 120 S.Ct.

1011 (2000). There, the Supreme Court addressed the same question in the context

of civil litigation: where a defendant-appellant prevails on an evidentiary objection

on appeal, and where the remaining admissible evidence is insufficient to support

the verdict, can the Court of Appeals render a judgment in favor of the defendant?

Or must the Court of Appeals remand for a new trial? Id., 528 U.S. at 443, 120

S.Ct. at 1015. The answer is that the Court of Appeals has the authority, within its

7 Any rule about “inferring the opposite of the defendant’s testimony” topic enbanc, should be equally applicable in civil cases as in criminal ones. There is nological reason why the rule could be any different.

46

discretion, to choose either course. Id. at 443-44, 120 S.Ct. at 1015. In other

words, as Weisgram shows, the reviewing court looks at the evidence without the

erroneously-admitted part, to see whether it is sufficient; and if it is not, then the

reviewing court decides what to do next.

The Supreme Court’s reasoning in Weisgram carries over with at least equal

force to criminal cases. First, the source of an appellate court’s authority to render

a judgment in favor of the appellant in such a situation is the same in civil and

criminal cases: 28 U.S.C. § 2106. Weisgram, 528 U.S. at 450, 120 S.Ct. at 1018

(discussing Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 87 S.Ct. 1072

(1967), which held that 28 U.S.C. § 2106 confers such authority). Second, just as

the Supreme Court held that the grant of judgment as a matter of law by an

appellate court did not conflict with the Seventh Amendment in civil cases,

similarly a grant of a judgment of acquittal based on insufficiency of the evidence

certainly does not conflict with the Sixth Amendment.

The remainder of Weisgram’s reasoning is, in a nutshell, that nothing in Fed.

R. Civ. P. 50 prohibits the exercise of that authority in cases where the evidentiary

sufficiency is the result of the appellate court’s exclusion of wrongly-admitted

evidence. Weisgram, 528 U.S. at 452-57, 120 S.Ct. at 1019-22. Similarly, nothing

in the language of Fed. R. Crim. P. 29 removes from the appellate courts their

power under 28 U.S.C. § 2106 to render a judgment of acquittal where appropriate.

47

So, this Court can do in a criminal case what Weisgram says that this Court

can do in a civil case: render a judgment for the defendant based on insufficiency

of the evidence after exclusion of wrongly-admitted evidence leaves the evidence

insufficient. In fact, four Justices have indicated that this should be the ordinary

result in criminal cases (and, though those Justices were in dissent in the case

where they made this observation, it was a point on which the majority made no

contrary holding). As those Justices stated,

[I]t is not true that the remedy on appeal for the introduction ofinadmissible evidence is always a remand for a new trial. When theonly evidence introduced by the prosecution is evidence that may notbe considered by a jury in determining the defendant’s guilt, theproper result is always acquittal. By the same reasoning, as this Courtdecided just this Term, when a court of appeals has found thatevidence was improperly admitted in a civil trial and that theremaining evidence is insufficient, it may enter judgment as a matterof law rather than ordering a new trial. Weisgram v. Marley Co., 528U. S. 440 (2000).

Carmell v. Texas, 529 U.S. 513, 565 n.10, 120 S.Ct. 1620, 1650 n.10 (2000)

(Ginsburg, J., dissenting) (emphasis supplied).

This Court should exercise that power in this case. For one thing, the value

of swift and final resolution of litigation is even more pronounced in criminal cases

than in civil cases; and that value was part of the reason why the authority of

appellate courts to render final judgments was recognized in Weisgram and Neely.

See Weisgram, 528 U.S. at 451, 120 S.Ct. at 1019 (quoting Neely on the

importance of “speed[ing] litigation and ... avoid[ing] unnecessary retrials”).

48

And, most importantly, the Government here is in the same position as was

the plaintiff who lost his trial victory in Weisgram. The words of the Supreme

Court, in explaining why it was fair to render judgment against Weisgram upon

excluding his expert testimony, are equally apt here. “[A]lthough Weisgram was

on notice every step of the way that Marley was challenging his experts, he made

no attempt to add or substitute other evidence. See Lujan v. National Wildlife

Federation, 497 U. S. 871, 897 (1990) (‘[A] litigant’s failure to buttress its position

because of confidence in the strength of that position is always indulged in at the

litigant’s own risk.’).” Weisgram, 528 U.S. at 456, 120 S.Ct. at 1021. Similarly,

the Government was “on notice every step of the way” that Ms. Yates objected to

the effort to have the two crucial witnesses testify by videoconference; yet the

Government did nothing to allow Ms. Yates to depose those witnesses, and offered

no other evidence that could be added or substituted. Under these circumstances, a

judgment of acquittal is appropriate.

Indeed, the Double Jeopardy Clause should forbid a retrial in this situation.

It is true that the Supreme Court held in Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct.

285 (1988) that the Double Jeopardy Clause did not forbid a retrial where the

evidence at the first trial had been sufficient if one included the improperly-

admitted evidence in that assessment. (Whether the Double Jeopardy Clause

forbids it, of course, is entirely different from the Rule- and statute-based question

49

we have just been discussing). But this case should be recognized as different,

because of the nature of the error in admitting the crucial evidence. A violation of

the Confrontation Clause is unlike a mere violation of a rule of evidence. The

Confrontation Clause is a self-executing constitutional command as to how the

prosecution may prove its case, having its roots in thousands of years of legal

history. Having found itself unable or unwilling to prove its case in a way that

complied with that command, the Government should not be allowed a second

chance. Even if the Court decides in Ms. Yates’s favor based on Fed. R. Crim. P.

26, still the issue is different enough from Lockhart that a different Double

Jeopardy holding is appropriate. This conviction was gained through use of

testimony that offended basic principles of American trial procedure. The

Government ought to be precluded from trying again.

But even if the Double Jeopardy Clause does not require this result, still this

is the most appropriate result for non-constitutional reasons. Ultimately, the

answer to the Court’s third question is that a reviewing court in a criminal case

should look at the sufficiency of the evidence both with and without erroneously-

admitted evidence. If the evidence was insufficient even with the wrongly-

admitted evidence, then a judgment of acquittal is required by the Double Jeopardy

clause. If the evidence becomes insufficient by the subtraction of the erroneously-

admitted part, then the Court faces the further question of what to do next.

50

B. Ms. Yates has adequately preserved and presented this issue.

This issue has been adequately preserved, because Ms. Yates gave the

District Court the first opportunity to make every correct ruling. She objected to

the testimony in question, and she sought a judgment of acquittal. She also raised

the Confrontation Clause issue again in her post-trial motion for judgment of

acquittal or for a new trial.

When deciding whether an issue has been adequately preserved, it is

important to think about why and how and when an issue is to be raised in the trial

court. In civil cases, the defendant must explicitly state the point on which it

claims the plaintiff’s evidence to have been insufficient, at the close of the

plaintiff’s case. The reason is that the plaintiff, having been so challenged, has a

chance to offer more evidence on the point if he or she has any. That is why, in

civil cases, a Rule 50 issue that has not been preserved in this precise way cannot

be raised on appeal: the plaintiff would have been denied the opportunity to which

he or she was entitled, to know of the alleged failure of proof and address it before

the case went to the jury. See, e.g., Doe v. Celebrity Cruises, Inc., 394 F.3d 891,

902-04 (11th Cir. 2004).

Rule 29(c)(3) provides a very different rule for criminal cases: a defendant

can move for judgment of acquittal after the jury has reached a verdict and has

been discharged, without having made a prior motion to that effect. This amounts

51

to a specific decision, by the Rule’s drafters and the Supreme Court and the

Congress, that the Government is not entitled to the same level of warning (“here is

the point of evidentiary sufficiency that I am challenging, so make sure that you

have given it all you’ve got on that point!”) to which a civil plaintiff is entitled. In

light of that specific point of Rule 29(c)(3) there is no reason to adopt, at the

appellate level, a high specificity requirement for preservation of the reasons why a

judgment of acquittal should be entered. To adopt such a rule of that high level of

specificity – that not only must the defendant object to the crucial evidence and

seek a judgment of acquittal, but furthermore the defendant must specifically

mention the evidentiary objection again when arguing her motion for judgment of

acquittal – would serve no point but would merely be a trap for the unwary.

Some sort of heightened-specificity rule for preservation of this sort of

argument would also do the District Courts no good; when the District Court has

considered at length, has made, and has repeatedly reaffirmed an evidentiary

ruling, there is no reason to think that a re-mentioning of the issue in argument on

the Rule 29 motion would make the District Court change its mind. So, to the

extent that the purpose of a “preservation” rule is to respect the dignity of the

District Court and to offer it the first chance to make a correct ruling, that purpose

is served by the level of issue-preservation that Ms. Yates made in this case.

52

In any event, the dispositive point on this third question is one of appellate

practice: what should this Court do, given its options under Weisgram? That is a

question that is adequately preserved in this Court, and should not be focused on

what was said in the trial court.

Conclusion

For the reasons stated herein, the Court should vacate the conviction and

remand for entry of a judgment of acquittal. If the Court does not do that, the

Court should at least vacate the conviction and remand for further proceedings.

Respectfully submitted,

_______________________Ronald W. WiseRichard F. Matthews, Jr.2000 Interstate Park DriveSuite 105Montgomery AL 36109(334) 260-0003

________________________Sam HeldmanGardner, Middlebrooks, Gibbons, Kittrell,

Olsen, Walker & Hill, P.C.2805 31st St. NWWashington DC 20008(202) 965-8884

53

Certificate of Compliance

I certify that the foregoing was prepared in Times New Roman 14 point, and

that it contains 13,107 words, according to the word-processing application that

was used to prepare it.

__________________________

Certificate of Service

I certify that two copies of the foregoing have been served by U.S. Mail on

the following this ____ day of July, 2005, that it has been served electronically on

the same day, and that on this same day an original and 18 copies have been sent

by U.S. Mail overnight to the Clerk for filing.

Michael A. Rotker Linda MarksUnited States Department of Justice Department of JusticeCriminal Division, Appellate Section Post Office Box 386950 Pennsylvania Ave. NW, Suite 1264 Washington, D.C. 20044Washington DC 20530

Tommie Brown Hardwick Timothy C. HalstromAssistant U.S. Attorney 4170 Lomac Street1 Court Square, Suite 201 Montgomery, Alabama 36106Montgomery, Alabama 36104

_____________________________