Confronting Zoom Testimony: "Pot Biz" Trial Defendants Petition Supreme Court For Review Of Video Testimony Decision

• Published date: 17 April 2023
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Arnold & Porter
• Author: Ms Alyssa T. Gerstner and Murad Hussain

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 The Second Circuit affirmed that decision in an unpublished opinion in United States v. Patterson, No. 21-1678-CR, 2022 WL 17825627 (2d Cir. Dec. 21, 2022).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

Background

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

Second Circuit Appeal

On appeal, Akhavan and Weigand raised several issues regarding fraudulent intent and materiality, as well as an argument that the decision to let the witness testify remotely violated their rights under the Sixth Amendment's Confrontation Clause...