Petition for Writ of Certiorari — John Won, Petitioner v. United States
Supreme Court briefJul 31, 2024
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No. ______
IN THE
Supreme Court of the United States
_________
JOHN WON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Second Circuit
________
PETITION FOR A WRIT OF CERTIORARI
________
BRIAN A. JACOBS
MORVILLO ABRAMOWITZ
GRAND IASON & ANELLO P.C.
565 Fifth Avenue
New York, NY 10017
(212) 880-9536
bjacobs@maglaw.com
ADAM G. UNIKOWSKY
Counsel of Record
JENNER & BLOCK LLP
1099 New York Ave., NW
Suite 900
Washington, DC 20001
(202) 639-6000
aunikowsky@jenner.com
JOHNATHAN T. HALL
JENNER & BLOCK LLP
353 N. Clark St.
Chicago, IL 60654
i
QUESTION PRESENTED
Whether the Confrontation Clause contains an
exception that permits the government to present
testimony at a criminal trial by two-way video so long as
“exceptional circumstances” are present and admitting
such testimony would serve the “interest of justice.”
ii
LIST OF PARTIES AND PROCEEDINGS
Petitioner is John Won.
States.
Respondent is the United
Related proceedings:
United States v. Won, No. 22-2716-cr (2d Cir.)
United States v. Won, No. 18-CR-00184 (RJD)
(E.D.N.Y.)
iii
TABLE OF CONTENTS
QUESTION PRESENTED .............................................. i
LIST OF PARTIES AND PROCEEDINGS............... iii
TABLE OF AUTHORITIES .......................................... v
PETITION
FOR
A
WRIT
OF
CERTIORARI ....................................................... 1
OPINIONS BELOW ......................................................... 1
JURISDICTIONAL STATEMENT .............................. 1
INTRODUCTION ............................................................. 1
STATEMENT OF THE CASE ....................................... 5
REASONS FOR GRANTING THE WRIT ................ 11
I.
II.
The Second Circuit’s Decision Conflicts
With Every Other Court To Have
Considered The Issue. ......................................... 12
A.
This Court has cast profound
doubt on Gigante....................................... 12
B.
Numerous other courts have
followed this Court’s lead and
rejected Gigante’s standard. ................... 15
The
Question
Presented
Is
Exceptionally Important. .................................... 19
A.
The gap between Craig’s
standard and Gigante’s standard
has great practical significance. ............. 19
B.
This Court should clarify how
Craig
and
Crawford
fit
together...................................................... 22
iv
III.
IV.
This Case Is An Ideal Vehicle. ........................... 25
A.
This case squarely tees up the
question presented. .................................. 25
B.
This case is a better vehicle than
Akhavan..................................................... 28
The Second Circuit’s Decision Is
Wrong. .................................................................... 30
CONCLUSION ................................................................ 33
Appendix A
United States v. Won, Docket No. 22-2716,
2024 WL 827774 (2d Cir. Feb. 28, 2024) ................... 1a
Appendix B
Transcript of Criminal Cause for Pre-Trial
Conference, United States v. Won, Docket No.
18-CR-00184(RJD) (E.D.N.Y. Oct. 13, 2021)
(excerpt) ...................................................................... 15a
Appendix C
Denial of Rehearing en banc, United States v.
Won, Docket No. 22-2716 (2d Cir. May 8, 2024) .... 17a
v
TABLE OF AUTHORITIES
CASES
Akhavan v. United States, 143 S. Ct. 2639
(2023) .................................................................. 25, 28
Bush v. State, 193 P.3d 203 (Wyo. 2008) .................... 17
C.A.R.A. v. Jackson County Juvenile
Office, 637 S.W.3d 50 (Mo. 2022) ........................... 18
California v. Green, 399 U.S. 149 (1970) ............... 1, 30
Campbell v. Commonwealth, 671 S.W.3d
153 (Ky. 2023) .................................................... 18, 24
Coronado v. State, 351 S.W.3d 315 (Tex.
Crim. App. 2011) ..................................................... 24
Coy v. Iowa, 487 U.S. 1012 (1988) ....................... 1, 2, 30
Crawford v. Washington, 541 U.S. 36
(2004) ............................................ 4, 12, 14, 15, 23, 31
Haggard v. State, 612 S.W.3d 318 (Tex. Ct.
Crim. App. 2020) ..................................................... 17
Lipsitz v. State, 442 P.3d 138 (Nev. 2019).................. 17
Maryland v. Craig, 497 U.S. 836 (1990) .... 2, 23, 30, 31
Newson v. State, 526 P.3d 717 (Nev. 2023) ................ 18
People v. Jemison, 952 N.W.2d 394 (Mich.
2020) .............................................................. 18, 19, 24
People v. Wrotten, 923 N.E.2d 1099 (N.Y.
2009) .......................................................................... 24
State v. Carter, No. 23-0156, -- N.E.3d --,
2024 WL 1447893 (Ohio Apr. 4, 2024) ............ 18, 24
vi
State v. Comacho, 960 N.W.2d 739 (Neb.
2021) .......................................................................... 18
State v. Mercier, 479 P.3d 967 (Mont. 2021) .............. 17
State v. Rogerson, 855 N.W.2d 495 (Iowa
2014) ..................................................................... 16-17
State v. Smith, 636 S.W.3d 576 (Mo. 2022) .......... 19, 24
State v. Strommen, 547 P.3d 1227 (Mont.
2024) .......................................................................... 18
State v. Tate, 985 N.W.2d 291 (Minn. 2023) ............... 18
State v. Thomas, 376 P.3d 184 (N.M. 2016) ............... 17
United States v. Abu Ghayth, No. 98-cr1023, 2014 WL 144653 (S.D.N.Y. Jan. 15,
2014) .......................................................................... 21
United States v. Bethea, 888 F.3d 864 (7th
Cir. 2018), superseded by statute as
stated in United States v. Coffin, 23
F.4th 778 (7th Cir. 2022) ........................................ 32
United States v. Bordeaux, 400 F.3d 548
(8th Cir. 2005) ........................................ 15, 16, 31, 32
United States v. Carter, 907 F.3d 1199 (9th
Cir. 2018) ...................................................... 16, 24, 32
United States v. Colello, No. 20-cr-613, 2023
WL 3584466 (S.D.N.Y. May 19, 2023) .................. 22
United States v. Cox, 871 F.3d 479 (6th Cir.
2017) .......................................................................... 23
United States v. Daskal, No. 21-cr-110, 2023
WL 4185966 (E.D.N.Y. June 26, 2023) ................ 22
vii
United States v. Gigante, 166 F.3d 75 (2d
Cir. 1999) ....................................... 3, 12-15, 20, 21, 31
United States v. Lawrence, 248 F.3d 300 (4th
Cir. 2001) .................................................................. 32
United States v. Mostafa, 14 F. Supp. 3d 515
(S.D.N.Y. 2014) ....................................................... 21
United States v. Navarro, 169 F.3d 228 (5th
Cir. 1999) .................................................................. 32
United States v. Rossy, No. 22-cr-550-02,
2023 WL 8520732 (S.D.N.Y. Dec. 8,
2023) .......................................................................... 22
United States v. Torres-Palma, 290 F.3d
1244 (10th Cir. 2002) ............................................... 33
United States v. Williams, 641 F.3d 758 (6th
Cir. 2011) .................................................................. 33
United States v. Yates, 438 F.3d 1307 (11th
Cir. 2006) (en banc) ..................................... 16, 20, 31
Wrotten v. New York, 560 U.S. 959 (2010) ................ 25
CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. Const. amend. VI ................................................... 1
28 U.S.C. § 1254(1) .......................................................... 1
CARES Act, Pub. L. No. 116-136,
§ 15002(b)(1), 134 Stat. 281, 527-28
(2020) ........................................................................ 17
viii
OTHER AUTHORITIES
Brief of the United States in Opposition
Akhavan v. United States, No. 22-844
(U.S. May 12, 2023), 2023 WL 3479617 .......... 28, 29
Nancy
Gertner,
Videoconferencing:
Learning Through Screens, 12 Wm. &
Mary Bill Rts. J. 769 (2004) ................................... 33
Order of the Supreme Court, 207 F.R.D. 89
(2002) .............................................................. 4, 13, 14
Jenia I. Turner, Remote Criminal Justice,
53 Tex. Tech L. Rev. 197 (2021) ............................ 33
PETITION FOR A WRIT OF CERTIORARI
John Won respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Second Circuit.
OPINIONS BELOW
The decision of the Second Circuit (Pet. App. 1a-14a)
is reported at 2024 WL 827774. The district court’s oral
decision granting the government’s motion in limine
(Pet. App. 15a-16a) is unreported. The Second Circuit’s
denial of rehearing en banc (Pet. App. 17a) is
unreported.
JURISDICTIONAL STATEMENT
The judgment of the Second Circuit was entered on
February 28, 2024. The Second Circuit denied rehearing
en banc on May 8, 2024. This Court has jurisdiction
pursuant to 28 U.S.C. § 1254(1).
INTRODUCTION
The Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right
… to be confronted with the witnesses against him.”
U.S. Const. amend. VI. As this Court has made clear,
the “literal right to ‘confront’ the witness at the time of
trial” lies at “the core of the values furthered by the
Confrontation Clause.” California v. Green, 399 U.S.
149, 157 (1970). As such, the Clause “guarantees the
defendant a face-to-face meeting with witnesses
appearing before the trier of fact.” Coy v. Iowa, 487 U.S.
1012, 1016 (1988) (emphasis added). This right reflects
the fundamental reality that “there is something deep in
human nature that regards face-to-face confrontation
2
between accused and accuser as ‘essential to a fair trial
in a criminal prosecution.’” Id. at 1017.
Only once—in a sharply divided, 5-4 decision—has
this Court ever recognized an exception to that ancient
principle. In Maryland v. Craig, 497 U.S. 836 (1990), a
child witness who was the victim of abuse testified
against his abuser by one-way closed-circuit television—
that is, everyone in the courtroom could watch the
child’s testimony, but the child could not see the
defendant. Id. at 841. This Court held, over a blistering
dissent by Justice Scalia, that the admission of the child’s
testimony did not violate the Confrontation Clause. It
reasoned 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.
In the years since Craig, federal appellate courts and
state supreme courts have repeatedly encountered cases
in which the government sought to introduce testimony
by two-way television—that is, both the victim and the
defendant can see each other. With only one exception,
every federal appellate court and state supreme court
encountering that scenario has held that Craig’s
“important public policy” exception is the sole exception
to the Confrontation Clause’s requirement of face-toface confrontation. But the Second Circuit has charted
a different course. For twenty-five years, it has
recognized a second exception to the Confrontation
Clause’s requirement of face-to-face confrontation.
3
In United States v. Gigante, 166 F.3d 75 (2d Cir.
1999), the Second Circuit dramatically expanded Craig
in a case where the witness testified via two-way video.
The Second Circuit rejected the defendant’s argument
that Craig’s standard should apply to such testimony—
i.e., that the testimony should be admissible only if the
denial of face-to-face confrontation furthers an
“important public policy.” Id. at 81. It explained that
“the Supreme Court crafted this standard to constrain
the use of one-way closed-circuit television, whereby the
witness could not possibly view the defendant.” Id. By
contrast, in the context of a “two-way system that
preserved the face-to-face confrontation, … it is not
necessary to enforce the Craig standard.” Id.
Instead, the Second Circuit held, as long as the
“interest of justice” is furthered, district courts could
authorize two-way video testimony based on a highly
malleable standard: “exceptional circumstances.” Id.
The Court reasoned that video testimony was reliable
because the jury could view the witness’s demeanor,
even though there was no actual face-to-face
confrontation. Id. Applying this loose standard, the
Second Circuit found that “exceptional circumstances”
justified the district court’s decision to permit testimony
via two-way video where the witness was too ill to travel
to court and was participating in the Federal Witness
Protection Program, and the defendant was too sick to
participate in a deposition. Id.
Shortly after the Second Circuit decided Gigante,
this Court took a different view. The Court rejected the
Judicial Conference’s proposed revision to Criminal
Rule 26(b) that would have authorized the use of two-
4
way video in criminal cases in “exceptional
circumstances” if the “[victim] is unavailable within the
meaning of Federal Rule of Evidence 804(a)(4)-(5).”
Order of the Supreme Court, 207 F.R.D. 89, 99 (2002)
(Appendix to Statement of Breyer, J.). The Judicial
Conference expressly stated in the Committee Note that
its intent was to codify Gigante’s legal standard. Id. at
101–03. But this Court refused to go along with Gigante.
Concurring in that decision, Justice Scalia explained that
he “share[d] the majority’s view that the Judicial
Conference’s proposed Fed. Rule Crim. Proc. 26(b) is of
dubious validity under the Confrontation Clause of the
Sixth Amendment to the United States Constitution.”
Id. at 93 (Scalia, J., concurring). In Justice Scalia’s view,
the proposal “[wa]s unquestionably contrary to the rule
enunciated in Craig.” Id.
Two years later, Justice Scalia authored Crawford v.
Washington, 541 U.S. 36 (2004), the most important
Confrontation Clause case in modern history.
Eschewing Gigante’s reliability-based rationale, this
Court held that application of the Confrontation Clause
does not turn on a trial judge’s ad hoc assessment of a
statement’s reliability, but instead on whether a
declarant is a “witness” under the Confrontation
Clause’s original public meaning.
In the subsequent years, every federal appellate
court and state supreme court to have considered the
matter has declined to adopt Gigante’s freewheeling
“exceptional circumstances” exception. But the Second
Circuit has stubbornly clung to Gigante. Within the
Second Circuit, courts liberally authorize video
testimony based on “exceptional circumstances,” which
5
in practice, requires little more than a showing that the
witness is outside of the court’s subpoena power and
unwilling to travel to trial.
This case is a paradigmatic example of how Gigante
has hollowed out the Confrontation guarantee.
Petitioner John Won’s trial occurred in the latter stages
of the COVID pandemic in late 2021, when international
travel was legal but inconvenient. As a result, two
witnesses in foreign countries were unwilling to travel
to court to testify but were willing to testify by video.
Every other federal appellate and state supreme court
to have considered the matter would have disallowed
such testimony, but the Eastern District of New York
admitted it under Gigante’s “exceptional circumstances”
standard. The Second Circuit affirmed, deeming itself
bound by Gigante. It then denied rehearing en banc.
This Court’s review is badly needed. Because of
Gigante, criminal trial practice in the Second Circuit is
now different from criminal trial practice everywhere
else in the country. Even after COVID, prosecutors
within the Second Circuit routinely request, and courts
routinely permit, video testimony based on an
“exceptional circumstances” standard that has been
uniformly repudiated by every other court.
This must stop. The Confrontation Clause applies in
all circumstances, even “exceptional” ones. This Court
should grant certiorari and reverse.
STATEMENT OF THE CASE
Petitioner John Won was charged with conspiracy to
commit wire fraud, conspiracy to commit securities
6
fraud, securities fraud, and conspiracy to commit money
laundering. The charges stem from allegations that Won
defrauded victims by persuading them to invest in a
foreign exchange business called “ForexNPower”
(FNP). Pet. App. 2a. According to the government,
Won’s alleged fraud in part involved lying to an online
brokerage platform known as FXCM. Pet. App. 4a.
On September 27, 2021, less than two months before
the trial was scheduled to begin, the government moved
in limine for permission to call two witnesses via twoway video. CA2 A-87. 1
The first witness was “Victim Investor,” later
identified as Greg Suh. CA2 A-87; see Pet. App. 6a.
According to the government, “Victim Investor was an
individual whom the defendant and his co-conspirators
defrauded.” CA2 A-87. After offering a detailed
explanation of Suh’s anticipated testimony, the
government told the court that “Victim Investor’s
testimony is crucial to the government’s case.” Id. His
“testimony is important to demonstrating the existence
of” the allegedly fraudulent schemes, and “is also
important to establishing the misrepresentations that
the defendant and his co-conspirators made and directed
as part of these fraudulent schemes, and how those
misrepresentations harmed investors.” Id.
“CA2 A-87” refers to page A-87 of the Second Circuit Appendix.
See Appendix, Volume 1 of 6, Won v. United States, No. 22-2716-cr
(2d Cir. filed June 6, 2023), ECF No. 45. All other citations to the
Second Circuit appendix will be written as “CA2 A-##.” See
Appendix, Won v. United States, No. 22-2716-cr (2d Cir. filed June
6, 2023), ECF Nos. 45–51.
1
7
The government then stated that “Victim Investor
resides in South Korea” and “has advised the
government that international travel to the United
States would pose a significant burden on Victim
Investor, his family, and his responsibilities at work.”
Id. The government emphasized that Victim Investor
cared for his 77-year-old mother, who faced risk from
COVID. Id. According to the government, “[a]lthough
Victim Investor is vaccinated and thus may be granted
an exception from South Korea’s quarantine rules,
Victim Investor is concerned that he could contract a
breakthrough infection in the course of international
travel, which could put his elderly mother at risk.” Id.
The government also explained that international travel
would “impede [Victim Investor’s] ability to fulfill his
duties as a professor.” Id. The government represented
that “Victim Investor is willing to testify by [video] from
South Korea,” but “is beyond the subpoena power of the
Court.” CA2 A-88.
The second witness was “FXCM Employee,” later
identified as Deric Chen. CA2 A-88; see Pet. App. 6a.
The government explained that FXCM Employee would
testify about his business relationship with one of Won’s
businesses. CA2 A-88. According to the government,
“FXCM Employee’s testimony is crucial to the
government’s case.” Id. Among other things, “FXCM
Employee’s testimony is important to demonstrating
that the defendant unilaterally handled the relationship
between [Won’s businesses] and FXCM.” Id. The
government emphasized that “[i]mportantly, FXCM
Employee is the government’s only witness from FXCM
who had first-hand interactions with the defendant.” Id.
8
The government then stated that “FXCM Employee
resides in Hong Kong,” and “advised the government
that if he were to travel to the United States and then
return to Hong Kong, he would be required under Hong
Kong law to quarantine at a hotel for 21 days.” Id. This
“would place a substantial burden on his personal,
financial and professional life.” Id. “First, FXCM
Employee would be away from home for at least four
weeks and, during that time, he would be unable to help
care for his young children.” Id. Second, “he would have
to pay for the cost of the hotel during his quarantine,
which he estimates would cost approximately $100 per
day.” Id. “Third, even if FXCM Employee were
successfully to persuade his employer to allow him to
take four weeks off from work, he would have to take all
of his twelve vacation days and lose pay for the
remaining time when he would be unable to work.” Id.
The government represented that FXCM Employee “is
unable and unwilling to travel to New York to testify in
person” but “is willing to testify by [video] from Hong
Kong.” Id. “FXCM Employee is beyond the subpoena
power of the Court.” Id.
Based on these representations, the government
contended that there were “exceptional circumstances”
that warranted video testimony. CA2 A-88 (quoting
Gigante, 166 F.3d at 81). The government expressly
relied on Gigante’s holding that “it is not necessary to
enforce the Craig standard” when using two-way video.
CA2 A-89 (quoting Gigante, 166 F.3d at 81). It
emphasized that the testimony of both witnesses was
“relevant, material and necessary to each of the six
counts in the indictment.” CA2 A-91. In particular,
9
“FXCM Employee is the government’s only witness
from FXCM who had first-hand interactions with the
defendant and can demonstrate the defendant’s central
role in the scheme and the defendant’s intent to continue
the scheme in the face of significant investor losses.” Id.
The government represented that the witnesses were
“unavailable” and that permitting them to testify “will
further the interests of justice,” in part because “the
interests of justice are served by permitting the
government to present evidence in order to meet that
burden and in support of its efforts to present the whole
truth to the jury.” CA2 A-92.
Won objected to the admission of this testimony on
Confrontation Clause grounds. CA2 A-99. He argued
that neither witness was genuinely “unavailable.” CA2
A-100–03. Victim Investor would miss only three days
of work and was vaccinated, reducing the risk of a
breakthrough infection. CA2 A-101. FXCM Employee’s
travel expenses could be mitigated if the government
paid for his accommodation, and he could work remotely.
CA2 A-102. Won also emphasized that the government
failed to offer a deposition under Federal Rule of
Criminal Procedure 15 that would have allowed for faceto-face confrontation. Id. As Won explained, “the
reliability of FXCM Employee’s testimony cannot be
assured,” because the United States rescinded its
extradition treaty with Hong Kong and FXCM
Employee could not be prosecuted for perjury or making
false statements if he was not on U.S. soil. CA2 A-103.
The district court granted the government’s motion
in limine, concluding that “based upon the
representations
made
to
me,”
“exceptional
10
circumstances and the interests of justice warrant”
video testimony. Pet. App. 16a.
At trial, both Chen and Suh offered incriminating
testimony. Suh claimed that Won’s co-conspirator told
him of Won’s role in the company, that Won attended a
seminar hosted by the co-conspirator, and that Won
signed a share purchase certificate. CA2 A-820–21, 824,
827, 832–33, 835–36. Chen testified in detail regarding
Won’s alleged misrepresentations. He told the jury that
Won represented how his company involved a “new
strategy,” “better risk management,” and a “new
algorithmic program” that would lead to “new partners.”
CA2 A-624-25. The government referred to Chen’s
testimony twenty-eight times during its main
summation and twenty times during its rebuttal. CA2
A-1392–1456, CA2 A-1485–1506. Won was convicted on
all counts. Pet. App. 2a.
The Second Circuit affirmed Won’s convictions. As
relevant here, the court rejected Won’s claim that the
admission of Chen’s and Suh’s testimony violated the
Confrontation Clause. As the court explained, “[i]n the
wake of Craig,” the Second Circuit “recognized another
narrow exception for testimony by two-way video in
United States v. Gigante”: a witness could testify “upon
a finding of exceptional circumstances . . . when [video
testimony] furthers the interest of justice.” Pet. App. 6a
(citation omitted). The court acknowledged Won’s
argument that “Gigante was wrongly decided,” but
stated that the Second Circuit has “never overruled it or
deemed it abrogated,” and noted that it is “bound by the
decisions of prior panels until such time as they are
11
overruled either by an en banc panel of our Court or by
the Supreme Court.” Pet. App. 7a n.2 (citation omitted).
“Applying Gigante to the facts here,” the Second
Circuit held that “exceptional circumstances” justified
permitting Chen and Suh to testify by video. Pet. App.
7a. It emphasized that the trial took place during
COVID, and traveling to the United States would cause
inconvenience for both Chen and Suh. Id. “Moreover,
both witnesses were beyond the court’s subpoena power
and represented that they would not testify in person,
even if the government were to bear the full cost of
travel.” Id.
The Second Circuit also rejected Won’s argument
that Chen and Suh were not “unavailable” under the
criteria of Federal Rule of Evidence 804(a) because they
had no “infirmity, physical illness, or mental illness” and
did not meet any of Rule 804(a)’s other requirements.
Pet. App. 8a. The court reasoned that Gigante is not
“strictly limited to cases of ‘unavailability’ under
Federal Rule of Evidence 804(a),” but instead “extends
to other case-specific findings of ‘exceptional
circumstances.’” Pet. App. 8a. The court did not offer
any alternative rationale for its holding, such as
harmless error.
Won filed a petition for rehearing en banc, urging the
Second Circuit to overrule Gigante. The court denied
the petition. Pet. App. 17a.
REASONS FOR GRANTING THE WRIT
The Second Circuit’s decision cements a widelyrecognized, longstanding conflict of authority over the
12
admissibility of two-way video testimony under the
Confrontation Clause.
The question presented is
extremely important, and this case is an ideal vehicle.
This Court should grant certiorari and reverse the
Second Circuit.
I.
The Second Circuit’s Decision Conflicts
With Every Other Court To Have
Considered The Issue.
In Gigante, the Second Circuit held that two-way
video testimony was admissible at criminal trials in
“exceptional circumstances” when needed to serve the
“interest of justice.” 166 F.3d at 81. But this Court then
refused to adopt Gigante’s standard into the Federal
Criminal Rules, and subsequently repudiated Gigante’s
reliability-based logic in Crawford v. Washington, 541
U.S. 36 (2004). These developments make clear that
Gigante is wrong. As such, numerous other courts have
taken the hint and rejected Gigante’s standard. Yet the
Second Circuit has clung to Gigante, creating a chasm
between trial practice in the Second Circuit and trial
practice everywhere else in the country.
A. This Court has cast profound doubt on
Gigante.
In United States v. Gigante, 166 F.3d 75 (2d Cir.
1999), the Second Circuit held “[u]pon a finding of
exceptional circumstances, such as were found in this
case, a trial court may allow a witness to testify via twoway closed-circuit television when this furthers the
interest of justice.” Id. at 81. In the Second Circuit’s
view, in the context of a “two-way system … it is not
13
necessary to enforce the Craig standard.” Id. The
Second Circuit based its ruling on the assumption that
video testimony would be sufficiently reliable: in the
court’s view, despite the lack of face-to-face
confrontation, the jury could “judge [the witness’s]
credibility through his demeanor and comportment” on
the screen. Id.
Shortly after Gigante was decided, however, this
Court made clear in two ways that it was not on board
with Gigante’s loose approach to the Confrontation
Clause.
First, as noted above, the Judicial Conference
proposed a revision to Criminal Rule 26(b) that would
have authorized the use of two-way video in criminal
cases in “exceptional circumstances” if the “[victim] is
unavailable within the meaning of Federal Rule of
Evidence 804(a)(4)-(5).” Order of the Supreme Court,
207 F.R.D. at 99 (Appendix to Statement of Breyer, J.).
The Judicial Conference openly stated that it intended
to codify Gigante’s legal standard. Id. at 101–03.
But this Court refused to accept the Judicial
Conference’s proposal. Concurring in that decision,
Justice Scalia explained that he “share[d] the majority’s
view that the Judicial Conference’s proposed Fed. Rule
Crim. Proc. 26(b) is of dubious validity under the
Confrontation Clause of the Sixth Amendment to the
United States Constitution.” Id. at 93 (Scalia, J.,
concurring). In Justice Scalia’s view, the proposal “[wa]s
unquestionably contrary to the rule enunciated in
Craig.” Id. Justice Scalia acknowledged Gigante’s
holding, on which the Committee relied, that “the use of
14
a two-way transmission made it unnecessary to apply
the Craig standard.” Id. at 93–94 (quotation marks
omitted). But he disagreed with that holding: “I cannot
comprehend how one-way transmission (which Craig
says does not ordinarily satisfy confrontation
requirements) becomes transformed into full-fledged
confrontation when reciprocal transmission is added.”
Id. at 94. “As we made clear in Craig, … a purpose of
the Confrontation Clause is ordinarily to compel
accusers to make their accusations in the defendant’s
presence—which is not equivalent to making them in a
room that contains a television set beaming electrons
that portray the defendant’s image.” Id.
Gigante justified its “exceptional circumstances” rule
by analogizing two-way video testimony to depositions
under Federal Rule of Criminal Procedure 15. 166 F.3d
at 81. But Justice Scalia rejected that analogy. 207
F.R.D. at 94. Among other things, Justice Scalia pointed
out that “Rule 15 accords the defendant a right to faceto-face confrontation during the deposition.” Id. He
further noted that a defendant could voluntarily agree
to waive his right to confrontation, but could not “be
compelled to hazard his life, liberty, or property in a
criminal teletrial.” Id.
Two years later, Justice Scalia authored this Court’s
seminal decision in Crawford v. Washington, 541 U.S. 36
(2004). The Court overruled prior case law holding that
admissibility under the Confrontation Clause turned on
whether an out-of-court statement bore “adequate
indicia of reliability.” Id. at 42. The Court explained that
the Framers did not mean “to leave the Sixth
Amendment’s protections … to amorphous notions of
15
‘reliability.’” Id. at 61. To the contrary, “[a]dmitting
statements deemed reliable by a judge is fundamentally
at odds with the right of confrontation.” Id. As the
Court memorably explained, “[d]ispensing with
confrontation because testimony is obviously reliable is
akin to dispensing with jury trial because a defendant is
obviously guilty. This is not what the Sixth Amendment
prescribes.” Id. at 62. Instead, the Court held that all
testimonial statements—whether “reliable” or not—are
subject to the constitutional guarantee of confrontation.
Id. at 68.
B. Numerous other courts have followed this
Court’s lead and rejected Gigante’s
standard.
Following this Court’s rejection of the Criminal
Rules amendment and this Court’s decision in Crawford,
federal and state courts outside the Second Circuit have
repeatedly repudiated Gigante’s conclusion that in the
context of a “two-way system … it is not necessary to
enforce the Craig standard.” 166 F.3d at 81.
Three federal appellate courts have held that
Gigante is wrong:
•
In United States v. Bordeaux, 400 F.3d 548
(8th Cir. 2005), the Eighth Circuit held that
“‘[c]onfrontation’ through a two-way closedcircuit television is not different enough from
‘confrontation’ via a one-way closed-circuit
television to justify different treatment under
Craig.”
Id. at 554.
It explained that
“Gigante does not persuade us that
16
‘confrontation’ through a two-way closed
circuit television is constitutionally equivalent
to a face-to-face confrontation.” Id.
•
In United States v. Yates, 438 F.3d 1307, 1313–
14 (11th Cir. 2006) (en banc), the Eleventh
Circuit held that “the findings of the trial
court must satisfy the Craig test in order to
satisfy the Confrontation Clause.” Id. at 1313.
The court declined to “disregard the history of
the proposed amendments to Rule 26” and
“approve a procedure not contemplated by the
Federal Rules of Criminal Procedure.” Id. at
1315. As the court noted, “[t]he Second
Circuit stands alone in its refusal to apply
Craig.” Id. at 1313–14.
•
In United States v. Carter, 907 F.3d 1199 (9th
Cir. 2018), the Ninth Circuit “agree[d] with
the Eighth and Eleventh Circuits that
Gigante is an outlier and that the proper test
is Craig.” Id. at 1208 n.4. As the court
explained, “[r]egardless of whether the video
procedure is one-way or two-way, the
defendant is being denied a physical, face-toface confrontation at trial.” Id. (internal
quotation marks and citation omitted). The
Ninth Circuit relied on the Supreme Court’s
rejection of the amendment to Rule 26. Id. at
1207.
State supreme courts, too, have repeatedly rejected
Gigante’s reasoning and applied Craig’s standard to twoway video testimony. See State v. Rogerson, 855 N.W.2d
17
495, 503–04 (Iowa 2014) (“In contrast to the numerous
courts that have applied the Craig test to two-way as
well as one-way videoconferencing technology, the
Second Circuit alone has declined to require a finding of
Craig-based necessity before allowing witnesses to
testify via two-way video. … Upon our review, we agree
with the vast majority of courts that have considered the
issue and determined that Craig’s test should apply to
two-way as well as one-way video testimony.”); State v.
Mercier, 479 P.3d 967, 975, 977 (Mont. 2021) (observing
that Gigante is part of a “circuit split” but concluding
that “[d]espite the disagreement among courts, our
research leads to the conclusion that the overwhelming
majority of jurisdictions have applied Craig to two-way
video procedures, a position that we continue to adhere
to”); Lipsitz v. State, 442 P.3d 138, 143–44 (Nev. 2019)
(holding that “the requirements articulated in Craig
apply to two-way audiovisual transmission”); State v.
Thomas, 376 P.3d 184, 194–95 (N.M. 2016) (stating that
“we adopt the Craig standard here in our analysis of the
admissibility of two-way video testimony” and confining
Gigante to a “But see” citation); Haggard v. State, 612
S.W.3d 318, 325–26 (Tex. Ct. Crim. App. 2020) (adopting
Craig standard and relying on Justice Scalia’s
concurrence); Bush v. State, 193 P.3d 203, 216 (Wyo.
2008) (adopting Craig standard).
During COVID, the CARES Act authorized federal
trial courts to conduct certain hearings by two-way
video, but that Act did not authorize video testimony in
criminal trials. See CARES Act, Pub. L. No. 116-136,
§ 15002(b)(1), 134 Stat. 281, 527-28 (2020). Although
some state trial courts experimented with permitting
18
video testimony in criminal trials, state supreme courts
repeatedly held that the admission of such testimony
violated the Confrontation Clause under Craig’s
standard. See State v. Carter, No. 23-0156, -- N.E.3d --,
2024 WL 1447893, at *7 (Ohio Apr. 4, 2024); State v.
Strommen, 547 P.3d 1227, 1241 (Mont. 2024); Campbell
v. Commonwealth, 671 S.W.3d 153, 161 (Ky. 2023);
Newson v. State, 526 P.3d 717, 722 (Nev. 2023); C.A.R.A.
v. Jackson Cnty. Juv. Off., 637 S.W.3d 50, 65 (Mo. 2022).
In a few cases, courts found Craig’s “important public
policy” standard to be satisfied when trial courts made
specific findings that the witness was exposed to COVID
and would endanger other courtroom participants if the
witness testified live. See State v. Tate, 985 N.W.2d 291,
302-03 (Minn. 2023) (rejecting Confrontation Clause
claim when witness had been exposed to COVID and
was directed by public health officials to quarantine);
State v. Comacho, 960 N.W.2d 739, 755 (Neb. 2021) (“We
emphasize also that it is important to our determination
of necessity that in this case, the witness had actually
tested positive for COVID-19 and was experiencing
symptoms.”). But outside of that narrow context, courts
held fast to the time-honored principle that criminal
defendants have a constitutional right to confront
witnesses face to face.
Two state supreme courts have applied an even more
defendant-friendly standard on this issue. In People v.
Jemison, 952 N.W.2d 394 (Mich. 2020), the Michigan
Supreme Court held that it would “apply Craig only to
the specific facts it decided,” i.e., testimony by “a child
victim.” Id. at 400. Outside of that specific factual
context, “Crawford … provides the applicable rule”—
19
which is that all out-of-court testimonial statements,
including those by two-way video, are excluded unless
“the witness is unavailable and the defendant had a prior
[opportunity] to cross-examine” him. Id. at 400-01. In
State v. Smith, 636 S.W.3d 576, 587 (Mo. 2022), the
Missouri Supreme Court similarly concluded that if the
witness is “neither a victim nor a child,” and is not
“unavailable,” the Confrontation Clause bars out-ofcourt testimony by two-way video. Id. Those cases
squarely conflict with Gigante’s holding that two-way
video testimony is admissible whenever there are
“exceptional circumstances” and the “interest of justice”
will be served.
In sum, there is an entrenched, longstanding, and
widely-recognized conflict of authority over the
admissibility of two-way video testimony under the
Confrontation Clause.
II.
The Question Presented Is Exceptionally
Important.
The question presented was important when Gigante
was decided, and it is even more important now, in view
of the dramatic technological and legal developments
since that time.
A. The gap between Craig’s standard and
Gigante’s standard has great practical
significance.
The Court should grant certiorari in view of the great
practical significance of the question presented—which
20
has increased in view of the recent proliferation of twoway video communication technology.
This case is practically significant because Gigante’s
“exceptional circumstances” standard permits video
testimony in a broader range of circumstances than
Craig’s more stringent standard.
One recurring
scenario when video testimony is inadmissible under
Craig, but is admissible under Gigante, arises when a
foreign witness refuses to travel to the United States
but is willing to testify by video. In that scenario, it is
impossible for a court to make the finding that Craig
requires: “a case-specific finding” that video testimony
is “‘necessary to further an important public policy.’”
166 F.3d at 80 (quoting Craig, 497 U.S. at 850). Unlike
in Craig, in which video testimony furthers the public
policy of preventing child abuse victims from being retraumatized, video testimony of foreign witnesses does
not further any public policy—other than the generic
public policy in obtaining criminal convictions, which
arises in every case and cannot possibly be sufficient to
satisfy Craig. See Yates, 438 F.3d at 1316 (rejecting
argument that, for overseas witnesses, “providing
crucial prosecution evidence and resolving the case
expeditiously are important public policies that support
the admission of testimony by two-way video
conference”).
Yet, Gigante’s looser “exceptional circumstances”
standard does permit video testimony in that scenario.
In Gigante, the Second Circuit observed that “the
‘exceptional circumstances’ required to justify the
deposition of a prospective witness” under Federal Rule
of Criminal Procedure 15 “are present if that witness’s
21
testimony is material to the case and if the witness is
unavailable to appear at trial.” 166 F.3d at 81. The
Gigante court “decline[d] to adopt a stricter standard for
its use than the standard articulated by Rule 15.” Id.
Applying Gigante’s standard, courts within the
Second Circuit—but nowhere else in the country—
authorize video testimony of witnesses in foreign
countries merely because they refuse to travel to the
United States. For instance, in United States v.
Mostafa, 14 F. Supp. 3d 515, 522-24 (S.D.N.Y. 2014), and
United States v. Abu Ghayth, No. 98-cr-1023, 2014 WL
144653, at *2-3 (S.D.N.Y. Jan. 15, 2014), New York
courts permitted a foreign witness to testify by video
when the witness refused to travel to the United States
out of fear that he would be arrested for violating U.S.
law. There was no “public policy” that would be
furthered by the witnesses testifying remotely—in fact,
public policy would be advanced if the witnesses
traveled to the United States and were held accountable
for violating U.S. law. But applying Gigante’s legal
standard, those courts held that the witnesses were
unavailable and that remote testimony would advance
the interests of justice—which was a sufficient basis to
authorize such testimony.
In the pre-COVID era, remote testimony occurred
infrequently. Technologies like Zoom and Microsoft
Teams were not as widespread as today, and witnesses
in foreign countries could not snap their fingers and set
up a two-way video connection with an American
courtroom. But people became accustomed to video
communication during COVID. And now, in the postCOVID era, there are almost no technological barriers
22
to federal prosecutors requesting permission to examine
foreign witnesses by video—and federal courts in the
Second Circuit routinely authorize such testimony under
Gigante. See, e.g., United States v. Daskal, No. 21-cr110, 2023 WL 4185966, at *2 (E.D.N.Y. June 26, 2023)
(holding that Gigante authorized video testimony of
witness who “refuses to travel to the United States to
appear at trial, despite having traveled to New York for
business just this past April”); United States v. Colello,
No. 20-cr-613, 2023 WL 3584466, at *1 (S.D.N.Y. May 19,
2023) (holding that Gigante authorized video testimony
of witness in the United Kingdom who had been
hospitalized). Courts also authorize video testimony of
witnesses who cannot attend trial for other reasons. See,
e.g., United States v. Rossy, No. 22-cr-550-02, 2023 WL
8520732, at *1 (S.D.N.Y. Dec. 8, 2023) (holding that
Gigante authorized video testimony of witness who
could not travel because of injuries sustained in
accident).
Again, this type of two-way video testimony does not
occur in the many jurisdictions that have rejected
Gigante. This real-world divergence between trial
practice in the Second Circuit and trial practice in other
jurisdictions is a direct consequence of the circuit split.
B. This Court should clarify how Craig and
Crawford fit together.
In addition to being practically significant, this case
has profound jurisprudential significance. As numerous
courts have observed, Craig and Crawford are difficult
to reconcile. Only this Court can clarify how they fit
together.
23
Craig was decided in a freewheeling era of
Confrontation Clause jurisprudence when convenience
trumped constitutional text. Craig held that the
“central concern of the Confrontation Clause is to ensure
the reliability of the evidence against a criminal
defendant,” 497 U.S. at 845, and that a defendant’s
constitutional right to confrontation must sometimes
give way to the “societal interest in accurate
factfinding.” Id. at 849. In the Court’s view, a procedure
that “ensures the reliability of the evidence” satisfies the
Confrontation Clause “despite the absence of face-toface confrontation.” Id. at 857. Crawford repudiated
this reasoning, holding that “[a]dmitting statements
deemed reliable by a judge is fundamentally at odds with
the right of confrontation.” 541 U.S. at 61. The
Confrontation Clause “commands, not that evidence be
reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination.”
Id.
Several lower-court judges have recognized the
tension between these two approaches. Judge Sutton,
for instance, has observed that “Craig is in tension with,
if not in opposition to,” Crawford, “[a]nd yet, both
decisions stand.” United States v. Cox, 871 F.3d 479, 495
(6th Cir. 2017) (Sutton, J., concurring). Indeed, “the two
opinions would give Janus a run for his money.” Id. at
492.
After walking through the irreconcilable
differences between the two cases, Judge Sutton asked:
“How can we guarantee the full effect of [the
Confrontation Clause’s] protection when two lines of
cases, both purportedly good law, dispute the nature and
reach of the Clause that guarantees it?” Id. at 494.
24
Several other courts have similarly remarked on the
contradictory nature of these cases. Carter, 2024 WL
1447893, at *5; Campbell, 671 S.W.3d at 159-60; Carter,
907 F.3d at 1206 n.3; Coronado v. State, 351 S.W.3d 315,
321 (Tex. Crim. App. 2011).
And—as elaborated above—courts have resolved
this tension in contradictory ways. Some courts have
held that Crawford’s standard applies to two-way
testimony in all cases except for testimony by child
victims, see Jemison, 952 N.W.2d at 400-01; Smith, 636
S.W.3d at 586, while many others apply Craig’s
“important public policy” standard to all cases involving
two-way video. Meanwhile, the Second Circuit stands
alone in applying a standard dramatically broader than
Craig’s “important public policy” standard in cases
involving two-way video. Only this Court can resolve
the tension in its cases.
Notably, in a post-Crawford case, a member of this
Court has questioned whether it makes sense to apply
Craig in the context of two-way video testimony by
unavailable witnesses. In People v. Wrotten, 923 N.E.2d
1099 (N.Y. 2009), the New York Court of Appeals, over
two dissents, rejected a Confrontation Clause challenge
to the admission of an 85-year-old witness’s two-way
video testimony. Id. at 1101. Applying Craig’s standard,
the court held that admitting the testimony satisfied
Craig because the witness was too ill to appear in court.
Id. at 1102–03.
This Court denied the defendant’s petition for
certiorari. But Justice Sotomayor filed a separate
statement observing that “[b]ecause the use of video
25
testimony in this case arose in a strikingly different
context than in Craig, it is not clear that the latter is
controlling.” Wrotten v. New York, 560 U.S. 959 (2010)
(statement of Sotomayor, J., respecting the denial of the
petition for writ of certiorari). Justice Sotomayor
concurred in the Court’s decision to deny certiorari in
light of the “procedural difficulties” arising from the
case’s “interlocutory posture,” but thought it
“appropriate to emphasize that the Court’s action does
not constitute a ruling on the merits and certainly does
not represent an expression of any opinion concerning
the importance of the question presented.” Id. at 960
(internal quotation marks omitted).
In this case, there is a final judgment of conviction
and there are no procedural difficulties. This case is an
appropriate vehicle to decide the question that was
important in Wrotten, and is even more important now.
III.
This Case Is An Ideal Vehicle.
This case is a flawless vehicle to resolve the conflict
between Gigante and every other court in the country.
This Court previously denied certiorari in Akhavan v.
United States, 143 S. Ct. 2639 (2023), which presented a
similar question, but this case is a vastly better vehicle
than Akhavan.
A. This case squarely tees up the question
presented.
As the proceedings in both the district court and
Second Circuit make clear, this case is a perfect vehicle
for resolving the circuit split.
26
In the district court, the government’s motion in
limine to admit Suh’s and Chen’s testimony by video
relied on Gigante’s “exceptional circumstances”
standard. CA2 A-88 (quoting Gigante, 166 F.3d at 81).
The government emphasized Gigante’s holding that “it
is not necessary to enforce the Craig standard” when
using two-way video. CA2 A-89 (quoting Gigante, 166
F.3d at 81). In response, Won expressly preserved a
Confrontation Clause objection to the admission of this
testimony. CA2 A-99. The district court’s order
granting the government’s motion in limine concluded
that “exceptional circumstances and the interests of
justice warrant” admission of video testimony. Pet.
App. 16a. Neither the government nor the district court
ever suggested that Craig’s “important public policy”
standard could be satisfied.
Nor, on the facts of this case, could the government
possibly have made that showing. Unlike in Craig, when
in-court testimony would have traumatized the child
witness, no public policy would have been thwarted by
live testimony. Although Suh, the less important of the
two witnesses, resided with his 77-year-old mother, Suh
was vaccinated, and there was no showing of any risk to
the mother other than her age. CA2 A-87. The risk to
Suh’s family was no greater than the risk to the families
of jurors and witnesses who attended court in person.
And even if concerns over Suh’s mother’s health
represented an “important public policy,” no such
concerns existed with respect to Chen, the more
important of the two witnesses. It is difficult to
overstate how central Chen was to the government’s
case. The government itself explained that Chen’s
27
testimony was “crucial” because he is “the government’s
only witness from FXCM who had first-hand
interactions with the defendant and can demonstrate the
defendant’s central role in the scheme and the
defendant’s intent to continue the scheme in the face of
significant investor losses.” CA2 A-91 (emphasis added);
see also CA2 A-88. Yet the government did not cite any
health concerns that would arise if Chen testified live.
Instead, the government reasoned that it would be
inconvenient to Chen to testify live in view of his childcare obligations, out-of-pocket costs, and potential loss
of vacation days.
CA2 A-88.
These personal
inconveniences do not approach the type of “important
public policy” that justifies abrogating Won’s
constitutional rights—which is perhaps why the
government never bothered relying on Craig’s standard.
Of even greater importance, the government
emphasized to the district court that both witnesses
were outside of the court’s subpoena power and neither
witness was willing to attend the trial. CA2 A-88. As
explained above, this case therefore presents a
recurring scenario in which the disparity between the
Gigante and Craig standards matters—making this case
an ideal vehicle.
The proceedings within the Second Circuit confirm
that this case is a flawless vehicle. The court not only
expressly relied on Gigante, but expressly recognized
that Gigante’s standard departs from Craig’s standard.
Pet. App. 6a (emphasizing that “[i]n the wake of Craig,
we recognized another narrow exception for testimony
by two-way video in [Gigante]”). The court also
emphasized that “both witnesses were beyond the
28
court’s subpoena power and represented that they
would not testify in person.” Pet. App. 7a. The court
noted Won’s objection to Gigante, but nonetheless held
it was bound by circuit precedent to follow it. Pet. App.
7a n.2 (“Though Won suggests that Gigante was wrongly
decided, we have never overruled it or deemed it
abrogated”).
Won petitioned for rehearing en banc urging the
Second Circuit to reconsider Gigante in view of
subsequent developments, but the petition was denied.
Pet. App. 18a. It is clear that the sharp split of authority
will persist until this Court steps in.
B. This case is a better vehicle than Akhavan .
This Court previously denied certiorari in Akhavan
v. United States, 143 S. Ct. 2639 (2023), which presented
a similar question. But this case is easily distinguishable
from Akhavan. The government’s brief in opposition in
Akhavan highlighted several vehicle problems which
counseled against review. All of those vehicle problems
are absent here.
•
In Akhavan, “the district court … specifically
found that ‘[t]he standard articulated in Craig is
satisfied,’” and the “court of appeals then echoed
the district court’s analysis, citing Craig
throughout its discussion.” Br. of the United
States in Opposition at 13 Akhavan, No. 22-844
(U.S. May 12, 2023), 2023 WL 3479617 (“Akhavan
BIO”). Here, by contrast, the district court made
no such finding, and the court of appeals went out
of its way to emphasize that Gigante represented
29
“another narrow exception” to the Confrontation
Clause which was distinct from Craig. Pet. App.
6a.
•
In Akhavan, Mr. Akhavan “expressly agreed
with Gigante’s reasoning and conclusion” in the
Second Circuit, and the government therefore
claimed that Mr. Akhavan had forfeited his
argument. Akhavan BIO 18-19. Here, Won
expressly disagreed with Gigante at the panel
stage, and the Second Circuit held it was bound
by circuit precedent. Pet. App. 7a n.2. Won then
filed a petition for rehearing en banc, urging the
court to overturn Gigante, but it was denied. Pet.
App. 17a.
•
In Akhavan, the district court made an express
determination that “any error in this case would
have been harmless beyond a reasonable doubt.”
BIO 19 (quotation marks omitted).
The
government’s BIO offered an extensive
explanation of why the asserted error was
harmless. Akhavan BIO 19-22. Here, the courts
below did not offer any hint that the error would
have been harmless. This is no surprise, because
the government’s motion in limine to permit the
video testimony was premised on the
government’s own representations to the district
court that the witnesses were “crucial.” See CA2
A-87 (“Victim Investor’s testimony is crucial to
the government’s case”); CA2 A-88 (“FXCM
Employee’s testimony is crucial to the
government’s case”).
30
This Court’s denial of certiorari in Akhavan, therefore,
should not deter the Court from granting certiorari here.
IV.
The Second Circuit’s Decision Is Wrong.
Gigante is wrong.
There is no “exceptional
circumstances” exception to the Confrontation Clause’s
requirement of face-to-face confrontation. In light of
Crawford, the Second Circuit has no warrant to
dramatically expand Craig’s narrow exception to the
Confrontation guarantee.
The “literal right to ‘confront’ the witness at the time
of trial” lies at “the core of the values furthered by the
Confrontation Clause.” Green, 399 U.S. at 157. “[T]here
is something deep in human nature that regards face-toface confrontation between accused and accuser as
‘essential to a fair trial in a criminal prosecution.’” Coy,
487 U.S. at 1017 (quoting Pointer v. Texas, 380 U.S. 400,
404 (1965)). When looking directly at a witness, a factfinder can better ascertain credibility, as it is “more
difficult to tell a lie about a person ‘to his face.’” Id. at
1019.
Craig acknowledged these principles. It emphasized
that “face-to-face confrontation enhances the accuracy of
factfinding by reducing the risk that a witness will
wrongfully implicate an innocent person,” and noted the
“strong symbolic purpose served by requiring adverse
witnesses at trial to testify in the accused’s presence.”
Craig, 497 U.S. at 846–47. Nonetheless, Craig approved
video testimony in a very narrow circumstance—when
justified by the “important public policy” of preventing
a child abuse victim from being re-traumatized and
31
“where the reliability of the testimony is otherwise
assured.” Id. at 850. In Crawford, this Court abandoned
“reliability” as the basis for admissibility under the
Confrontation
Clause,
instead
holding
that
“[t]estimonial 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.” 541 U.S. at 59.
There is no “reliability exception to the common-law
rule.” Id. at 61.
In light of Crawford’s guidance, Craig should not be
expanded. Yet that is exactly what the Second Circuit
did in Gigante. Gigante held that because the district
court “employed a two-way system that preserved …
face-to-face confrontation …, it is not necessary to
enforce the Craig standard.” 166 F.3d at 81. The
decisions of other courts of appeals rejecting that
reasoning are persuasive. “The simple truth is that
confrontation through a video monitor is not the same as
physical face-to-face confrontation.” Yates, 438 F.3d at
1315.
“[T]wo-way systems share with one-way systems a
trait that by itself justifies the application of Craig: the
‘confrontations’ they create are virtual, and not real in
the sense that a face-to-face confrontation is real.”
Bordeaux, 400 F.3d at 554. “Given the ubiquity of
television, even children are keenly aware that a
television image of a person (including a defendant in the
case of a two-way system) is not the person something is
lost in the translation.” Id. “Thus, a defendant watching
a witness through a monitor will not have the same
truth-inducing effect as an unmediated gaze across the
32
courtroom.” Id. Gigante “neglects the intangible but
crucial differences between a face-to-face confrontation
and a ‘confrontation’ that is electronically created by
cameras, cables, and monitors.” Id. at 554–55.
“There are also important practical differences
between face-to-face confrontation and virtual
confrontation. From the remote witness’s point of view,
the courtroom will necessarily be defined by the angle
and quality of the courtroom camera as well as the size
and quality of the screen on which the video is projected.
These variables can distort any effort to approximate inperson testimony.” Carter, 907 F.3d at 1207.
In the analogous context of sentencing, based on the
same crucial distinction between being face-to-face
versus on video, numerous courts of appeals have found
that a district court reversibly errs by substituting
virtual presence for actual physical presence when
sentencing a criminal defendant. See United States v.
Bethea, 888 F.3d 864, 867 (7th Cir. 2018) (in the absence
of a “personal interaction between the judge and the
defendant,” which “videoconferencing cannot fully
replicate,” the “force of the other rights guaranteed by
Rule 43 is diminished”), superseded by statute as stated
in United States v. Coffin, 23 F.4th 778 (7th Cir. 2022);
United States v. Lawrence, 248 F.3d 300, 303-05 (4th Cir.
2001) (Rule 43 “reflects a firm judgment . . . that virtual
reality is rarely a substitute for actual presence and that,
even in an age of advancing technology, watching an
event on the screen remains less than the complete
equivalent of actually attending it”); United States v.
Navarro, 169 F.3d 228, 239 (5th Cir. 1999) (“In light of
the value of face-to-face sentencing, we find the logic in
33
the Notes to Civil Rule 43 to be equally applicable to
Criminal Rule 43—i.e., transmission [from a different
location] cannot be justified by showing that it is
inconvenient for the defendant to attend the
sentencing.”); United States v. Williams, 641 F.3d 758,
764 (6th Cir. 2011) (“Rule 43 requires that the defendant
be present, which simply cannot be satisfied by anything
less than physical presence in the courtroom.”); United
States v. Torres-Palma, 290 F.3d 1244, 1246-48 (10th Cir.
2002) (“[V]ideo conferencing for sentencing is not within
the scope of a district court’s discretion.”).
An abundant secondary literature similarly notes
concerns as to the reliability of video testimony. See,
e.g., Jenia I. Turner, Remote Criminal Justice, 53 Tex.
Tech L. Rev. 197, 220-21 (2021) (collecting empirical data
“suggest[ing] that the use of video may have biasing
effects”); Nancy Gertner, Videoconferencing: Learning
Through Screens, 12 Wm. & Mary Bill Rts. J. 769, 786
(2004) (concluding, based on social science literature
review, that “in live testimony, face-to-face transmission
plainly increases the information available to the factfinder”).
This Court should therefore hold that Gigante’s
freewheeling “exceptional circumstances” standard is
incompatible with the Confrontation Clause.
CONCLUSION
The petition for a writ of certiorari should be
granted.
34
BRIAN A. JACOBS
MORVILLO ABRAMOWITZ
GRAND IASON & ANELLO P.C.
565 Fifth Avenue
New York, NY 10017
(212) 880-9536
bjacobs@maglaw.com
Respectfully submitted,
ADAM G. UNIKOWSKY
Counsel of Record
JENNER & BLOCK LLP
1099 New York Ave., NW
Suite 900
Washington, DC 20001
(202) 639-6000
aunikowsky@jenner.com
JOHNATHAN T. HALL
JENNER & BLOCK LLP
353 N. Clark St.
Chicago, IL 60654
APPENDIX
TABLE OF CONTENTS
Appendix A
United States v. Won, Docket No. 22-2716,
2024 WL 827774 (2d Cir. Feb. 28, 2024) ................... 1a
Appendix B
Transcript of Criminal Cause for Pre-Trial
Conference, United States v. Won, Docket No.
18-CR-00184(RJD) (E.D.N.Y. Oct. 13, 2021)
(excerpt) ...................................................................... 15a
Appendix C
Denial of Rehearing en banc, United States v.
Won, Docket No. 22-2716 (2d Cir. May 8, 2024) .... 17a
1a
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City
of New York, on the 28th day of February, two thousand
twenty-four.
PRESENT:
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
EUNICE C. LEE,
Circuit Judges.
No. 22-2716
UNITED STATES of America, Appellee,
v.
John WON, Defendant-Appellant. *
FILED February 28, 2024
The Clerk of Court is respectfully directed to amend the official
case caption as set forth above.
*
2a
Attorneys and Law Firms
For Defendant-Appellant: Brian A. Jacobs, Morvillo
Abramowitz Grand Iason & Anello P.C., New York, NY.
For Appellee: Sarah M. Evans (Nicholas J. Moscow, on
the brief), Assistant United States Attorneys, for Breon
Peace, United States Attorney for the Eastern District
of New York, Brooklyn, NY.
Appeal from a judgment of the United States
District Court for the Eastern District of New York
(Raymond J. Dearie, Judge).
UPON DUE CONSIDERATION, IT IS
HEREBY
ORDERED,
ADJUDGED,
AND
DECREED that the September 27, 2022 judgment of
conviction is AFFIRMED except as to the sentence,
which is VACATED and REMANDED for further
consideration consistent with this order.
SUMMARY ORDER
John Won appeals a judgment of conviction
entered following a jury trial in which he was found
guilty of conspiracy to commit wire fraud in violation of
18 U.S.C. §§ 1349 and 1343; conspiracy to commit
securities fraud in violation of 18 U.S.C. § 371; securities
fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff; and
conspiracy to commit money laundering in violation of 18
U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h), in connection with
his involvement in a fraudulent foreign exchange
business called ForexNPower (“FNP”) that he ran with
his longtime business partner, Tae Hung (“Kevin”)
3a
Kang. 1 We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on
appeal.
I. Sufficiency of the Evidence
Won first argues that the district court erred in
denying his motion for a judgment of acquittal, which he
made after the prosecution rested and renewed after the
close of his defense. He asserts that the government
failed to prove his specific intent – a necessary element
for each of Won’s counts of conviction – and urges us to
reverse his convictions for insufficient evidence. We
decline to do so.
“[A] defendant challenging the sufficiency of the
evidence that led to his conviction at trial bears a heavy
burden, as the standard of review is exceedingly
deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d
Cir. 2012) (citation and internal quotation marks
omitted). Ultimately, “[a] judgment of acquittal is
warranted only if the evidence that the defendant
committed the crime alleged is nonexistent or so meager
that no reasonable jury could find guilt beyond a
reasonable doubt.” United States v. Martoma, 894 F.3d
64, 72 (2d Cir. 2017) (internal quotation marks omitted).
Moreover, “[t]he law has long recognized that criminal
intent may be proved by circumstantial evidence alone,”
which is particularly appropriate for conspiracies given
that they are typically “undertak[en] in secret.” United
States v. Heras, 609 F.3d 101, 106 (2d Cir. 2010) (internal
quotation marks omitted). For instance, circumstantial
1
Kang was also charged and ultimately pleaded guilty.
4a
evidence can prove conspiratorial intent by showing “a
defendant’s association with conspirators in furtherance
of the conspiracy” or “his presence at critical stages of
the conspiracy that cannot be explained by
happenstance.” United States v. Anderson, 747 F.3d 51,
60 (2d Cir. 2014) (internal quotation marks omitted).
The jury heard more than enough evidence to
infer Won’s specific intent to participate in the FNP
fraud. To begin, witnesses from two of FNP’’s key
partners – online brokerage platform FXCM and
introducing broker FXEvolve – testified that Won was
their main contact at FNP and that he lied to them in
order to establish the critical relationships that propped
up FNP’s fraud. When FNP first applied to trade on
FXCM through an FNP trading entity called Safety
Capital Management, Inc. (“Safety Capital”), Won
misrepresented that Safety Capital was eligible to do
business with FXCM because it was “exempt” from
certain licensing regulations. App’x at 615–16. Then,
after FXCM banned Safety Capital, specifically due to
Kang’s involvement, over “excessive losses,” id. at 621,
Won maneuvered to resume trading on FXCM by falsely
stating that he had formed a new venture – GNS Capital
Inc. (“GNS”) – with “new partners,” even though Kang
was in fact still at the helm, id. at 624–25, 636–38. Won
then compounded his misrepresentations by falsely
attesting that GNS was also exempt from licensing
regulations. See id. at 646–49; Gov’t App’x at 340, 353.
Won also made false statements to FXEvolve – which
provided FNP with a vital revenue stream in the form
of commissions for each trade made in an FNP customer
account – when he misrepresented that FNP provided
5a
only “educational services” and was not trading on
behalf of clients. App’x at 776–77; Gov’t App’x at 301–02.
The jury also heard detailed testimony
concerning Won’s “association with conspirators in
furtherance of the conspiracy” through his participation
in FNP’s predatory seminars. Anderson, 747 F.3d at 60
(internal quotation marks omitted). One victim testified
about multiple occasions on which Won distributed false
brochures and prospectuses, spoke on stage, and at one
point even “shouted” a solicitation to potential investors,
urging them to “line up” in order to invest. App’x at 511.
This victim also explained that Won was in charge of
setting up accounts for new investors, and that Kang
introduced Won as someone who was “like a brother to
him” and whom Kang “had been doing business
partnerships [with] for years.” Id. at 470. At one point
Won even handed the victim a business card featuring
the false claim that FNP used a “[s]ecret method of
generating 10 percent or more [in monthly] profit.” Id.
at 472.
Although Won argued to the jury that he was just
an assistant who engaged in only a “handful” of
misrepresentations to FNP’s business partners and was
merely “presen[t]” when Kang misled investors at
seminars, Won Br. at 22, there was ample circumstantial
evidence from which the jury could reasonably conclude
that Won intended to join the conspiracy with full
knowledge of its illegal purpose.
II. Confrontation Clause
Won also argues that his Confrontation Clause
rights were violated when the district court permitted
6a
two witnesses – Deric Chen, from FXCM, and Dr. Greg
Suh, an investor-victim – to testify by two-way video.
We review challenges under the Confrontation Clause de
novo. See United States v. Vitale, 459 F.3d 190, 195 (2d
Cir. 2006).
In general, “the Confrontation Clause guarantees
the defendant a face-to-face meeting with witnesses
appearing before the trier of fact.” Coy v. Iowa, 487 U.S.
1012, 1016 (1988). But this right is “not absolute.”
Maryland v. Craig, 497 U.S. 836, 850 (1990). Indeed, the
Supreme Court has recognized that, in limited cases, a
witness may testify by “one-way closed circuit television”
– outside the defendant’s presence – upon a case-specific
finding that such testimony is “necessary to further an
important state interest.” Id. at 852, 857 (holding that
one-way video testimony was permissible in that case to
protect a child victim of sexual abuse from the trauma of
testifying in front of her abuser). In the wake of Craig,
we recognized another narrow exception for testimony
by two-way video in United States v. Gigante. 166 F.3d
75, 81 (2d Cir. 1999) (explaining that the “Craig standard”
does not apply in the case of “two-way” video). There we
held that a witness could testify by two-way video –
without offending a defendant’s confrontation right –
“upon a finding of exceptional circumstances ... when
[video testimony] furthers the interest of justice.” Id.
Based on that standard, we found that a witness with a
“fatal illness” who was “participat[ing] in the Federal
Witness Protection Program” could testify by two-way
7a
video within the confines of the Confrontation Clause.
Id. 2
Applying Gigante to the facts here, we find that
exceptional circumstances likewise justified the use of
two-way video testimony against Won. At the time of
Won’s trial in November 2021, the world was in the midst
of a pandemic, prompting the Chief Judge of the Eastern
District of New York to extend the court’s “national
emergency” protocols as new strains of the virus
emerged that were potentially vaccine-resistant. Gov’t
App’x at 39–44. Chen lived in Hong Kong and would
have had to quarantine for three weeks after returning
from the United States. Suh lived in South Korea and
was the caretaker for his seventy-seven-year-old
mother; live, in-person testimony would have required
Suh to abandon his mother for weeks while potentially
exposing her to COVID upon his return. Moreover, both
witnesses were beyond the court’s subpoena power and
represented that they would not testify in person, even
if the government were to bear the full cost of travel.
Finally, the district court used procedures to ensure the
protection of Won’s confrontation rights, including by
setting up large screens that allowed the jury to see the
witnesses and also allowed the witnesses to see the
attorneys and Won himself. Though two-way video
“should not be considered a commonplace substitute for
in-court testimony,” we are persuaded that “exceptional
Though Won suggests that Gigante was wrongly decided, we have
never overruled it or deemed it abrogated. See United States v.
Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) (“[W]e ... are bound by
the decisions of prior panels until such time as they are overruled
either by an en banc panel of our Court or by the Supreme Court.”).
2
8a
circumstances” justified such video testimony here.
Gigante, 166 F.3d at 81.
In so holding, we reject Won’s argument that
Gigante is strictly limited to cases of “unavailability”
under Federal Rule of Evidence 804(a), such as when a
witness is unable to testify due to their own “infirmity”
or “physical illness.” Fed. R. Evid. 804(a). To the
contrary, Gigante itself looked to factors beyond the
compass of Rule 804(a) when it stressed that the witness
was unavailable due to both his “fatal illness and [his]
participation in the Federal Witness Protection
Program” – the latter of which does not bear on the Rule
804(a) standard for “[u]navailability.” Gigante, 166 F.3d
at 81 (emphasis added). Moreover, we have held that
Gigante permitted two-way testimony during the
pandemic in part because a witness had to care for
elderly relatives, which is again a factor not found in the
Rule 804(a) analysis. See United States v. Patterson, No.
21-1678, 2022 WL 17825627, at *4 (2d Cir. Dec. 21, 2022).
By its own terms and its subsequent application, Gigante
thus extends to other case-specific findings of
“exceptional circumstances” beyond the rigid confines of
Rule 804(a).
III. Jury Instructions
Won also contends that the district court erred in
administering a “conscious avoidance” instruction to the
jury with respect to each of his counts. We review such
challenges de novo. See United States v. Aina-Marshall,
336 F.3d 167, 170 (2d Cir. 2003). “[A] conscious avoidance
instruction may be given only (i) when the defendant
asserts the lack of some specific aspect of knowledge
9a
required for conviction, and (ii) the appropriate factual
predicate for the charge exists, i.e., the evidence is such
that a rational juror may reach the conclusion beyond a
reasonable doubt that the defendant was aware of a high
probability of the fact in dispute and consciously avoided
confirming that fact.” Id. (citation and internal quotation
marks omitted). Defendants challenging the existence of
that factual predicate face a “heavy burden,” as we will
affirm so long as “any rational trier of fact” could have
found conscious avoidance beyond a reasonable doubt. Id.
at 171 (internal quotation marks omitted).
Won argues that the government failed to
establish the necessary “factual predicate” because
there was “no evidence” that Won was aware of a “high
probability” that Kang was defrauding investors. Won
Br. at 42. The trial record belies that contention. Won
was well aware that Safety Capital was losing money, to
the point that Won had to form an alter ego entity (GNS)
just to keep trading with FXCM after Safety Capital
was kicked off the platform. At the same time, Won
attended seminars and distributed materials – including
his own business card – proclaiming that FNP used a
“[s]ecret method of generating 10 percent or more
[monthly] profit” and could turn a $10,000 investment
into $1.5 million in three years. App’x at 463, 472. In light
of this evidence, a rational juror could well have found
that Won consciously avoided learning the fraudulent
truth underpinning FNP. 3
We also reject Won’s contention that the district court committed
plain error by failing to “make clear” that the conscious avoidance
instruction could not be applied to Won’s aiding-and-abetting
3
10a
IV. Rule of Completeness
Next, Won contends that the district court abused
its discretion when it precluded Won from introducing
portions of his deposition under Federal Rule of
Evidence 106, known as the rule of completeness. We
review such evidentiary decisions for abuse of discretion.
See United States v. Williams, 930 F.3d 44, 58 (2d Cir.
2019). Though Rule 106 permits the introduction of
omitted portions of a statement (including those made
during a deposition) to “explain” or provide “context,”
the completeness doctrine does not “require the
admission of portions of a statement that are neither
explanatory of nor relevant to the admitted passages.”
United States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007)
(internal quotation marks omitted).
Won argues that the district court should have
allowed him to introduce three excerpts from his
deposition pursuant to Rule 106. Because none of these
excerpts explained or provided context for the admitted
portions, the district court was well within its discretion
to exclude them. For instance, Won contends that he
should have been permitted to introduce deposition
testimony that he was not aware that a specific
charges or used to prove Won’s intent to participate in a conspiracy.
Won Br. at 44. The district court’s instructions were accurate, and
Won cites no case in which we found error merely because a district
court failed to give a gratuitous reminder that conscious avoidance
should not be used when assessing intent. See United States v. Whab,
355 F.3d 155, 158 (2d Cir. 2004) (“We typically will not find [plain]
error where the operative legal question is unsettled, including
where there is no binding precedent from the Supreme Court or this
Court.” (internal quotation marks omitted)).
11a
investor’s check had been deposited into an FNP bank
account used to distribute proceeds to the conspirators.
But that testimony was not relevant to the admitted
portion of the deposition, in which Won conceded that he
ultimately controlled that bank account and was a
signatory on it. Nor was his testimony that he did not
trade in customers’ individually managed accounts
relevant to his admitted testimony that he was CEO and
president of GNS, or that he had access to a different
GNS-managed account of “pooled” investor funds. App’x
at 1274, 1276–77. Lacking any clear relevance to the
admitted portions, these omitted segments were
properly excluded.
V. Expert Testimony
Nor are we persuaded by Won’s challenge to the
district court’s admission of expert testimony explaining
regulations on the foreign exchange market. As with
other evidentiary rulings, we review this challenge for
abuse of discretion, reversing only if we find “manifest
error.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997).
Won argues that it was improper to admit testimony
from Daniel Driscoll – who testified about the foreign
exchange market’s license and registration rules,
proficiency exam requirements, and advertising
regulations – because it invited the jury to find Won
guilty (or otherwise disfavor him) based on his
uncharged failure to comply with those rules. We cannot
agree. As this Court has already held, references to
regulations are not “improper” when the district court
provides a “limiting instruction” and when the “purpose”
of the reference is to explain the basis for a defendant’s
misconduct, as opposed to “suggest[ing] to the jury that
12a
it could find the defendant guilty simply by reason of his
violation of the regulation.” United States v. McElroy,
910 F.2d 1016, 1023–24 (2d Cir. 1990).
Here, the purpose of Driscoll’s testimony was to
explain how Won’s misrepresentations to FXCM and
FXEvolve furthered FNP’s fraudulent business, and the
district court gave several limiting instructions to cabin
the jury’s use of that evidence. It was therefore “well
within the court’s discretion to allow the evidence.”
McElroy, 910 F.2d at 1024.
VI. Speedy Trial
Won next argues that his case should have been
dismissed with prejudice because his trial was conducted
in violation of his Sixth Amendment guarantee of a
speedy trial. A “constitutional speedy trial right claim is
governed by the four Barker v. Wingo factors: ‘[l]ength
of delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.’ ”
United States v. Abad, 514 F.3d 271, 274 (2d Cir. 2008)
(quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)).
Though the first factor – the forty-two-month delay until
Won’s trial – favors Won, the rest do not. If anything, the
second factor favors the government, as the delay was
attributable not to governmental obstruction but rather
to joint scheduling requests, Won’s motion for severance
from Kang, and Won’s insistence that Kang go to trial
first. The third factor likewise favors the government,
given that Won did not demand a speedy trial or
otherwise raise the issue below. The final factor is
neutral, as Won was not prejudiced by any delay, since
he was not incarcerated pretrial and the government
13a
faced similar challenges in preparing for trial in the
midst of the pandemic. On balance, Won cannot establish
that his Sixth Amendment right was violated.
VII. Restitution
Finally, Won argues that the district court should
have ordered him to pay restitution on a joint-andseveral basis with Kang. The government concedes that
this was error and joins Won’s request that we remand
for resentencing.
Generally, “[w]e review awards of restitution for
abuse of discretion.” United States v. Desnoyers, 708
F.3d 378, 389 (2d Cir. 2013). Because Won “fail[ed] to
object to ... the order of restitution in the court below, we
review his arguments on appeal for plain error.” United
States v. Nucci, 364 F.3d 419, 421 (2d Cir. 2004). This
requires a showing that there was an error that was
plain and that the error affected his substantial rights as
well as the fairness, integrity, or public reputation of the
judicial proceedings. See id.
Here, the district court did not initially order Won
and Kang to pay restitution jointly and severally. At the
request of Kang’s counsel – and without a similar motion
from Won – the district court amended Kang’s judgment
to impose restitution jointly and severally with Won.
The district court did not amend Won’s judgment and
offered no explanation for the resulting discrepancy in
its treatment of the two co-defendants.
We agree that this was plain error. As is well
established, a district court abuses its discretion when it
fails to explain discrepancies in restitution judgments.
14a
See Desnoyers, 708 F.3d at 390. This error also affected
Won’s substantial rights and the fairness of judicial
proceedings, as it required Won to pay his restitution
award on arbitrarily harsher terms than his codefendant. See Nucci, 364 F.3d at 421. We therefore
vacate Won’s sentence and remand so that the district
court may either amend Won’s judgment to impose jointand-several liability or provide an explanation for the
mismatch.
***
We have considered Won’s remaining arguments
and find them to be without merit. Accordingly, we
AFFIRM the judgment of conviction except as to Won’s
sentence, which we VACATE and REMAND to allow
the district court to reconsider Won’s restitution
obligation.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
15a
Appendix B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES OF
AMERICA
18-CR-00184( RJD)
-against-
United States
Courthouse Brooklyn,
New York
Wednesday, October 13,
2021
JOHN WON,
Defendant.
2:00 p.m.
TRANSCRIPT OF CRIMINAL CAUSE FOR PRETRIAL CONFERENCE BEFORE THE
HONORABLE RAYMOND J. DEARIE
UNITED STATES SENIOR DISTRICT JUDGE
***
Page 7
***
THE COURT: Okay, I will leave that to all of you
to schedule and set up.
As far as the other principal issue that I am ready
to discuss is concerned, also involving testimony of an
unusual nature, you know, having been through the
papers, including the Government's last response, I
think it is pretty clear to me that they have met their
burden to justify this testimony by video. However, I
really am going to insist that this technology be crystal
16a
clear, both audio and video, for the very reasons raised
by the defense in their application as we’ve read before.
I want the jury to see these witnesses in a way, as some
have opined and written, in terms of the jury sizing up a
witness, this video arrangement, which I doubt is here
to stay, but given COVID is here for the time being, may
indeed provide the fact-finder with a greater
opportunity to observe the nuances, facial expressions
and so forth, of the witnesses.
And I am comfortable with the notion that under
these
circumstances,
and
based
upon
the
representations made to me, that exceptional
circumstances and the interests of justice warrant it.
***
17a
Appendix C
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of
Appeals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 8th day of May, two
thousand twenty-four.
United States of America,
Appellee,
v.
ORDER
Docket No: 22-2716
John Won,
Defendant - Appellant.
Appellant, John Won, has filed a petition for
rehearing en banc. The active members of the Court
have considered the request for rehearing en banc.
IT IS HEREBY ORDERED that the petition is denied.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.