New York man challenges fraud conviction based on virtual video testimony

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The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The Sixth Amendment gives defendants in criminal trials the right “to be confronted with the witnesses against” them. Known as the confrontation clause, this provision has been interpreted by the Supreme Court to recognize that cross-examining the prosecution’s witnesses is especially essential to a fair trial in the criminal context. This week, we highlight petitions that ask the court to consider, among other things, whether allowing key prosecution witnesses to testify remotely over a two-way video call violates the confrontation clause.

John Won and Tae Hung Kang are New York residents charged with operating an international investment scam. Through a series of ads placed in Korean newspapers and radio programs, as well as in-person seminars in a Korean enclave of Queens, Won and Kang sold dozens of individuals on a lucrative offer to speculate in foreign currency markets. The pair hinted that they had a “secret trading method” guaranteeing 10% returns with zero risk.

In reality, Won and Kang had no such method. They allegedly spent many investors’ funds on business expenses and personal salaries instead. After an investigation by the U.S. Commodity Futures Trading Commission, federal prosecutors charged the pair with a slew of fraud and securities crimes.

Won’s trial was scheduled for November 2021, a year-and-a-half into the COVID-19 pandemic. Although vaccinations were by then available and international travel was expanding, the pandemic’s effects still lingered. For its part, the federal courthouse in Brooklyn had resumed in-person trials but continued to hold many pre-trial conferences remotely. At one of those conferences, the government sought permission for two key witnesses who lived outside the country to testify over a two-way video call.

Won objected, arguing that virtual testimony by government witnesses at his criminal trial would deprive him of his rights under the confrontation clause. Only in-person testimony can satisfy the Sixth Amendment, he insisted, because cross-examining a witness on a video screen deprives jurors of key cues they need to evaluate that witness’s credibility.

The government responded that each witness was “crucial” and that travel would be more than merely inconvenient for them. One witness, a professor in South Korea who had invested in Won and Kang’s scheme, was a caretaker for his elderly mother and worried about both leaving her behind for weeks and exposing her to COVID-19. The other witness, an employee of a foreign currency exchange in Hong Kong who had dealt extensively with Won, would be required to quarantine for three weeks, at his own expense, upon his return.

In the end, the trial court allowed the two witnesses to testify by video. The jury convicted Won on all counts.

The U.S. Court of Appeals for the 2nd Circuit rejected Won’s request for a new trial. Relying on a prior circuit decision, the 2nd Circuit concluded that “exceptional circumstances” justified the virtual testimony in Won’s case notwithstanding the confrontation clause. Although “two-way video ‘should not be considered a commonplace substitute for in-court testimony,’” the court of appeals wrote, the pandemic was precisely the type of exceptional circumstance contemplated by its prevailing policy.

In Won v. United States, Won asks the justices to grant review and reverse the 2nd Circuit’s ruling. He argues that in permitting two-way video testimony from government witnesses in criminal trials, the 2nd Circuit stands alone from its sister circuits, which have uniformly held that the confrontation clause requires in-person testimony and cross-examination. Moreover, Won contends that the ruling is in tension with prior Supreme Court decisions allowing video testimony only under a tougher standard — when justified by “important public policy,” such as shielding children who were sexually abused from having to face their alleged abusers in court. “The Confrontation Clause applies in all circumstances,” Won writes, “even ‘exceptional’ ones.”

The government urges the justices to leave the 2nd Circuit’s ruling — and Won’s conviction — in place. Regardless of the behavior of other circuits, the government argues, the 2nd Circuit’s approach to video testimony is consistent with the Supreme Court’s own cases, which have interepreted the confrontation clause as a “preference” for in-person testimony rather than an “absolute” rule. And in any event, the admission of remote testimony was “harmless” in Won’s case because prosecutors had ample other evidence for conviction, the government reasons.

A list of this week’s featured petitions is below:

Burt v. Gordon

24-73

Issue: Whether the U.S. Court of Appeals for the 6th Circuit improperly denied qualified immunity to prison officials based on their response to the unprecedented COVID-19 global pandemic by defining the relevant law at too high level of generality, and identifying no precedent recognizing a constitutional right under similar circumstances that would have put reasonable officials on notice that their conduct may violate the Constitution given the novel challenge of the pandemic.

Crouch v. Anderson

24-90

Issues: (1) Whether West Virginia violated the equal protection clause of the 14th Amendment by declining to cover surgical treatments for gender dysphoria; and (2) whether West Virginia violated the Medicaid Act and the Affordable Care Act by declining to cover surgical treatments for gender dysphoria.

Folwell v. Kadel

24-99

Issue: Whether a state’s decision to decline to provide health benefit coverage for treatments leading to sex changes violates the equal protection clause of the 14th Amendment.

Zuniga-Ayala v. Garland

24-103

Issue: Whether, under the categorical approach, when a state statute of conviction on its face criminalizes conduct not prohibited by the corresponding federal statute, this mismatch defeats removal under 8 U.S.C. § 1227(a)(2), or a noncitizen must instead show something more.

Won v. United States

24-121

Issue: Whether the confrontation clause of the Sixth Amendment 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.”

Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission

24-154

Issues: (1) Whether a state violates the First Amendment’s religion clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior; and (2) whether, in addressing federal constitutional challenges, state courts may require proof of unconstitutionality “beyond a reasonable doubt.”

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