The White Collar Appeal: Seventh Circuit Endorses Remote Video Depositions for Unavailable Foreign Witnesses

• In Baldwin, the Seventh Circuit affirmed the wire fraud conviction of a Ponzi scheme defendant, holding that the use of a remote video deposition for a key foreign witness who refused to travel to the U.S. was permissible under Rule 15 of the Federal Rules of Criminal Procedure and the Confrontation Clause.
• The court held that witnesses are unavailable within the meaning of Rule 15(a)’s “exceptional circumstances” requirement when they are beyond the subpoena power of the United States and the court finds, including based on a mere representation from counsel, that they are substantially unlikely to testify in person at trial. 
• Baldwin underscores that defendants must (1) strenuously object to being absent from a remote deposition to be used at trial, and (2) clearly raise both a Rule 15 and a Confrontation Clause issue in order to preserve both for appeal.

Background

This case involved a Chicago investment manager who stole more than $10 million from over a dozen clients and lenders.  The plot had all the hallmarks of a Ponzi scheme.  For over a decade, Shawn Baldwin convinced college buddies, a friend’s widow, business contacts, and others to invest in what Baldwin claimed were legitimate ventures but used the money instead for jewelry, travel, and his kids’ tuition.  And when existing investors asked to be paid out, he covered their redemptions by obtaining new investments.  All the while, Baldwin appeared as a commentator on CNBC, CNN, NBC News, and Bloomberg, where he doled out industry insights and discussed sage investment strategies.

Baldwin’s biggest fish was Luca Tenuta, a Monaco-based financier whom Baldwin bilked for more than $8 million.  Tenuta at first was cooperative with the government, but, as trial neared, his counsel informed them that he was “definitively” unwilling to travel to the United States to testify.  He was, however, willing to travel to London to sit for a deposition.  With trial just three weeks away, the government filed a motion to depose Tenuta pursuant to Rule 15 of the Federal Rules of Criminal Procedure.  Baldwin opposed, arguing that it “would be prejudicial” to “have [Tenuta] testify outside of the presence of the jury so that the jury is not in a position to be able to observe him one on one from the witness stand where it should be able to[,] where he’s not subject to the courtroom and also to looking at your Honor, myself and Mr. Baldwin ….  It’s a lot easier to lie from FaceTime than it is … face-to-face.”  The district court, however, granted the motion and authorized the government to depose Tenuta.  In discussing the logistics, the district court proposed to conduct the examination by video, with the parties and judge in Chicago and Tenuta in London. Baldwin’s counsel responded, “If you Honor is inclined to grant the motion, that would be my preference.”

The court then admitted Tenuta’s video deposition at trial; the jury convicted; and Baldwin appealed, arguing the video violated Rule 15 and the Confrontation Clause.  Specifically, Baldwin argued (1) there were no “exceptional circumstances” because Tenuta was not unavailable within the meaning of Rule 15(a), and (2) permitting the deposition to proceed remotely violated Rule 15(c)(2) and (c)(3) and the Sixth Amendment Confrontation Clause.

Holdings

The Seventh Circuit affirmed the conviction, holding the district court did not abuse its discretion in permitting the deposition nor that it was error to permit the deposition to proceed remotely.

Rule 15(a).  The court first determined that foreign nationals are unavailable within the meaning of Rule 15(a)’s exceptional-circumstances requirement when (1) they are beyond the subpoena power of the United States, and (2) the court finds that they are substantially unlikely to testify in person at trial.  Making the latter showing, the Seventh Circuit held, does not require an affidavit or other factual demonstration—a district court may base its finding on a party’s representation that the witness is unwilling or unable to testify in person at trial.  In doing so, the Seventh Circuit adopted the same standard that prevails in the Second, Fifth, and Eleventh Circuits.

Confrontation Clause.  The court did not engage with Baldwin’s Confrontation Clause argument, holding that he waived it.  Specifically, the court found that Baldwin’s statement that, to the extent the district court would permit a Rule 15 deposition, his “preference” would be to conduct it remotely.  The court concluded that “[p]ermitting Baldwin to advance a Confrontation Clause objection premised on his absence from the Rule 15 deposition, an absence he explicitly preferred, would be nonsensical.”

Key Takeaways

No good deed goes unpunished.  The court’s finding of waiver seems unfair.  Although she did not use the words “Confrontation Clause” in opposing the government’s Rule 15 motion, Baldwin’s counsel clearly articulated the policies animating that constitutional protection:  it “would be prejudicial” to “have [Tenuta] testify … where he’s not … looking at your Honor, myself and Mr. Baldwin ….  It’s a lot easier to lie from FaceTime than it is … face-to-face.”  It was only after the district court rejected those arguments that Baldwin’s counsel indicated, if the deposition were to proceed, she would prefer to have the court and parties in person in the courtroom and the witness remote.  It thus seems that Baldwin’s counsel’s was trying to be reasonable:  having lost the motion, and with trial only three weeks away, she was trying to be accommodating to the court and the government by not insisting on delaying a complicated white collar case for which everyone no doubt had invested considerable time and resources preparing.  Zealous advocacy does not require intransigence or unreasonableness after the court has ruled for the other side.  The Seventh Circuit’s determination that this sequence of events constituted a waiver of a constitutional right, however, appears to create an incentive to be obstreperous at trial.  That’s unfortunate.

Defendants should object early and often. The upshot thus appears to be that defense counsel should object repeatedly, even where it seems the record is clear they’ve preserved the issue and it would mean delaying trial. Defense counsel should also be sure to use the magic words “Confrontation Clause” so no appellate court can doubt that the objection was based on both the constitutional right and the right under Rule 15 to be present.  

The Confrontation Clause implications nevertheless may be limited.  The Baldwin court sidestepped the Confrontation Clause issue based on its finding of waiver, but Seventh Circuit caselaw suggests that remote depositions likely would not create a Confrontation Clause issue in any event. In United States v. Protho, the Seventh Circuit affirmed its position that “a witness’s physical absence from the courtroom” does not automatically violate the Confrontation Clause. United States v. Protho, 41 F.4th 812, 826–27 (7th Cir. 2022).  There, the court found no Confrontation Clause issue where the victim testified via a two-way contemporaneous video stream because she was “under oath and cross-examined in person by [the defendant’s] counsel, who was in the same room with [the witness],” and the defendant could “text his attorney during [the witness’s] testimony to ask questions and express his thoughts.  [The witness’s] physical presence in the courtroom was the only thing missing.” 

But defendants should still object to admission of the deposition. Even if a deposition goes forward, that doesn’t mean the testimony necessarily is admissible.  Objections based on relevance (including conditional relevance), Rule 403, Rule 404(b), and others may be viable depending on when, how, and for what purpose the testimony is offered at trial.