Police blotter: Net pharmacy conviction overturned

"Police blotter" is a weekly report on the intersection of technology and the law.

What: Owners of an Internet pharmacy appeal their conviction on charges including mail fraud and illegally offering prescription drugs.

When: Decided Feb. 13 by the United States Court of Appeals, 11th Circuit.

Outcome: Conviction overturned and new trial granted.

What happened: Anton Pusztai and Anita Yates were indicted in July 2000 on charges of running an illegal pharmacy--a Web site called the Norfolk Men's Clinic--and operating a drug repackaging facility that was not registered with the federal government. They pleaded not guilty, and the case went to trial in Alabama.

That's where an unusual twist took place. Prosecutors asked the trial judge to approve the testimony of two witnesses from Australia through a live, two-way video conference.

The Justice Department maintained that was the only way to secure the testimony, because two key witnesses were in Australia and "beyond the government's subpoena powers." The judge approved the remote testimony over objections from the defendant's attorney. Witnesses Paul Fletcher Christian and Tibor Konkoly were sworn in, and they testified for the prosecution.

After a jury convicted the two defendants on all charges, they appealed and said their Sixth Amendment right to "be confronted with the witnesses" against them was violated.

The 11th Circuit agreed. It did acknowledge that a 1990 Supreme Court case said that Sixth Amendment right could be compromised where "considerations of public policy and necessities of the case" dictate.

But the judges ruled that it was hardly clear that this case was exceptional, and granted a new trial. A dissent, on the other hand, said the "live, two-way video transmission used in this case does not violate the defendant's Sixth Amendment right to confrontation."

Excerpt from the majority's opinion: In this case, the district court (permitted) the Australian witnesses to testify by two-way video conference broadcast on a television monitor at the trial convened in the United States Attorney's Office in Montgomery, Ala.

However, it held no hearing to consider evidence of the necessity for the video conference testimony. Rather, the trial court allowed the two-way video testimony based only on the government's assertions in its motion that the Australian witnesses were unwilling to travel to the United States for trial, and the government's posited "important public policies of providing the fact-finder with crucial evidence," "expeditiously and justly resolving the case," and "ensuring that foreign witnesses can so testify."

The district court considered sufficient the government's stated "important public policy of providing the fact-finder with crucial evidence," and "interest in expeditiously and justly resolving the case."

We accept the district court's statement that the witnesses were necessary to the prosecution's case on at least some of the charges, as the record supports the government's assertion that the testimony was crucial to a successful prosecution of the defendants and aided expeditious resolution of the case. The government's interest in presenting the fact-finder with crucial evidence is, of course, an important public policy.

We hold, however, that, under the circumstances of this case, the prosecutor's need for the video conference testimony to make a case and to expeditiously resolve it are not the type of public policies that are important enough to outweigh the defendants' rights to confront their accusers face-to-face.

The district court made no case-specific findings of fact that would support a conclusion that this case is different from any other criminal prosecution in which the government would find it convenient to present testimony by two-way video conference.

All criminal prosecutions include at least some evidence crucial to the government's case, and there is no doubt that many criminal cases could be more expeditiously resolved were it unnecessary for witnesses to appear at trial. If we were to approve introduction of testimony in this manner, on this record, every prosecutor wishing to present testimony from a witness overseas would argue that providing crucial prosecution evidence and resolving the case expeditiously are important public policies that support the admission of testimony by two-way video conference.