The opinion of the court was delivered by: John F. Keenan, United States District Judge
Before the Court is Mahmoud Reza Banki's ("Banki" or "Defendant") motion to present testimony at trial from witnesses located in Iran using live videoconferencing. For the reasons that follow, the motion is denied.
In an Indictment filed January 6, 2010, Banki was charged with conspiracy to violate and the violation of various Executive Orders and regulations issued under the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706, including the Iran Trade Embargo, and with operating an unlicensed money transmitting business in violation of 18 U.S.C. § 1960, 2. Specifically, the Government alleges that Banki and unnamed co- conspirators "operated an informal value transfer system known as a 'hawala' [in which] funds are transferred by customers to a hawala operator, or 'hawaladar,' in one country (here, the United States), and then corresponding funds, less any fees, are disbursed to recipients in another country (here, Iran) by foreign hawaladars associated with the U.S.-based hawaladar." (Indictment ¶ 10).
Banki claims that he was not a hawaladar, but merely was the recipient of gifts and other remittances from his family to help him purchase an apartment in New York City. As such, Banki proposes to offer the testimony of several relatives for the purpose of proving that the transfers which are the subject of the Indictment were family remittances that, according to him, were lawful under the relevant regulations. Specifically, Banki's father, brother, paternal uncle, maternal uncle, and cousin would testify that they gave him cash gifts and/or arranged for the transfer of money into his United States bank account.*fn1 Banki also wishes to elicit testimony from his family's broker in Iran who purportedly arranged the monetary transfers. All of the proposed witnesses are Iranian citizens, and all currently reside in Iran. Banki's father and brother are also U.S. citizens, and his paternal uncle is a permanent resident of this country.
Although several of the proposed witnesses are legally able to enter the United States, they will not do so due to concern that they could be arrested as Banki's co-conspirators. Banki requested that the Government grant some of his witnesses "safe passage" to New York so that they could testify without fear of arrest, but the Government has stated that it is not in a position to enter into such an agreement.*fn2 However, at this time, the Government has not sought provisional arrest warrants for any of the proposed witnesses.
As some or all of the defense witnesses may be unavailable to provide live testimony, Banki now asks the Court to allow them to testify at trial from Iran through live videoconferencing.
Federal Rule of Criminal Procedure 26 states that "[i]n 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." Congress has approved the use of videoconference technology, with the defendant's consent, to conduct initial appearances and arraignments. Fed. R. Crim. P. 5(f), 10(c). Testimony through two-way closed circuit television ("CCTV") is also permitted to allow a child to testify from outside the courtroom in proceedings involving offenses against the child. See 18 U.S.C. § 3509(b)(1). However, in 2002, the United States Supreme Court rejected a proposed revision to Rule 26 which would have allowed trial testimony via two-way videoconferencing, see Order of the Supreme Court of the United States, 207 F.R.D. 89, 93-96 (2002), and, to date, Congress has not acted independently to override the Court's decision. Thus, despite provisions for the use of videoconference technology in other stages of criminal proceedings, neither the Criminal Rules nor federal law generally permits videoconference testimony at trial.
Nonetheless, some courts have upheld the use of this technology to allow a witness to testify remotely despite the concomitant limitations on a criminal defendant's confrontation rights. In Maryland v. Craig, the Supreme Court held that the Sixth Amendment does not "categorically prohibit a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television." 497 U.S. 836, 840 (1990). However, the Court noted that "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 and only where the reliability of the testimony is otherwise assured." Id. at 850. Similarly, the Court of Appeals in United States v. Gigante established that in "exceptional circumstances" trial courts can allow testimony via live videoconference "when this furthers the interest of justice." 166 F.3d 75, 81 (2d Cir. 1999). In Gigante, the Court allowed a Government witness to testify at trial using two-way CCTV where the witness was too ill to travel to court and was living in an undisclosed location as part of the Federal Witness Protection Program. Id. at 79. Notably, in that case the Court found that CCTV testimony would preserve the most vital characteristics of in-court testimony: "1) the giving of testimony under oath; 2) the opportunity for cross-examination; 3) the ability of the fact-finder to observe demeanor evidence; and 4) the reduced risk that a witness will wrongfully implicate an innocent defendant when testifying in his presence." Id. at 80.
The Court is well aware that these cases involved criminal defendants' Sixth Amendment confrontation rights, rights which are not implicated here because it is Defendant, not the Government, who proposes the use of live videoconference testimony. Although they do not provide direct authority, some of the principles undergirding Craig and Gigante nevertheless present important considerations which bear on the integrity of the overall proceedings. Specifically, in both Craig and Gigante, safeguards such as the administration of the oath, the opportunity for cross-examination, and the ability of all parties and the jury to observe the witnesses' demeanor ensured that CCTV testimony was as reliable as live testimony. The Government's interest in confrontation may not be of constitutional proportions, but these cases suggest that the Court should evaluate whether the proposed testimony has similar indicia of reliability as a matter of public policy.
Unlike any of the cases Defendant cites in support of his motion, including Gigante, this case presents the difficult situation of witnesses who are entirely beyond the reach of the United States government. This country has no diplomatic relations with Iran and no means to extradite even U.S. citizens residing within its borders. Even if the Court were to administer the oath to the Iranian witnesses over the computer monitor in real time, there is no way to ensure truth-telling as the Government cannot prosecute the witnesses for perjury or for the making of false statements.*fn3 Without the teeth of the penalty of perjury, the oath becomes nothing more than an empty recital. Thus, the strongest indicator of the reliability of a witness' testimony -- the oath -- is effectively absent here.
As a secondary concern, since the witnesses are essentially free to say anything without reprisal, the Government's ability to cross-examine them in person and to directly observe the witnesses' demeanor, body language, and interactions in order to gauge the truth of their statements becomes especially important. However, it is widely acknowledged that "[t]he simple truth is that confrontation through a video monitor is not the same as physical face-to-face confrontation." United States v. Yates, 438 F.3d 1307, 1315 (11th Cir. 2006); see also Gigante, 166 F.3d at 81 ("There may well be intangible elements of the ordeal of testifying in a courtroom that are reduced or even eliminated by remote testimony."). The ineffective oath, coupled with the lack of opportunity for in-person cross-examination and observation, makes it extremely difficult to assess the reliability of the proposed witnesses' testimony.
The Court is not persuaded by the example of United States v. Guild, No. 07 Cr. 404, 2008 WL 191184 (E.D. Va. Jan. 17, 2008). In that case, the trial court's decision to allow the videoconference testimony of defense witnesses located in Australia rested primarily on the comparative expense of bringing the witnesses to the United States. It does not appear that costs are a prohibitive factor in this case. Crucially, however, in Guild, "United States Consular Officers will be available in the remote locations where the witnesses are being videotaped. These persons will be available to swear the witnesses and provide an assurance that the proceedings maintain the appropriate level of formality and accuracy." Id. at *4. Unlike with Australia, there is no United States Embassy or Consulate in Iran, and no realistic way for officers of the United States to travel there to administer the ...