Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Gear

United States District Court, D. Hawaii

January 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MELVYN GEAR, Defendant.

          ORDER DENYING THE GOVERNMENT'S MOTION FOR RECONSIDERATION WITH RESPECT TO ITS REQUEST TO ALLOW TRUDY GEAR TO TESTIFY DURING TRIAL VIA TWO-WAY VIDEOCONFERENCING

          SUSAN OKI MOLLWAY, UNITED STATES DISTRICT JUDGE

         ORDER DENYING THE GOVERNMENT'S MOTION FOR RECONSIDERATION WITH RESPECT TO ITS REQUEST TO ALLOW TRUDY GEAR TO TESTIFY DURING TRIAL VIA TWO-WAY VIDEOCONFERENCING

         Before the court is the Government's motion for reconsideration of the order filed on January 3, 2019. ECF No. 40. That order denied the Government's “Motion in Limine Seeking a Court Order to Allow an Australian Witness, Trudy Gear, to Testify Live During the Trial via Two-Way Video-Teleconferencing.” ECF No. 39. The court denies the Government's motion for reconsideration, concluding that the order does not contain the purported errors of fact or law that the Government complains about.

         In its motion in limine, the Government requested that Defendant Melvyn Gear's ex-wife, Trudy Gear (“Trudy”), be allowed to testify at trial via two-way videoconferencing in Australia because she was unwilling to travel to Hawaii. ECF No. 25. The court denied the motion because the Government failed to demonstrate that such videoconferencing was “necessary to further an important public policy” as required by Maryland v. Craig, 496 U.S. 836, 850 (1990). See ECF No. 39, PageID #s 387-89. The order explained that (1) “it cannot be the case that an important public policy arises anytime a foreign witness is located abroad and refuses to travel to testify at trial, ” and (2) “the denial of Gear's right to confront Trudy is not ‘necessary' when a deposition is available under Rule 15 of the Federal Rules of Criminal Procedure.” Id. at 387-88. As a result, allowing Trudy to testify via videoconferencing would violate Gear's right to physical, face-to-face confrontation under the Confrontation Clause of the Sixth Amendment. See id.

         The Government's motion for reconsideration argues that the order made a manifest error of fact, focusing on the following statement: “It is this court's understanding that the Government has concluded that it will not take Trudy's deposition in Australia with or without Gear's attendance and with or without Gear's paying of his own expenses.” ECF No. 40, PageID # 391 (quoting ECF No. 39, PageID # 389). The Government argues that “i[n] actuality, as the government's counsel informed the Court during the hearing on [December 13, 2018, ][1] the government is willing to take Ms. Gear's deposition” provided Gear shares equally in all costs associated with the deposition. Id. at 391-92.

         This argument overlooks the court's actual reasoning in the order and the Government's statements at the hearing on its motion in limine on December 13, 2018. At the start of the hearing, the court asked what precisely the Government was seeking in its motion in limine and whether it was requesting a deposition under Rule 15. The Government made it abundantly clear that its motion sought only to allow Trudy to testify via videoconferencing. The Government was not seeking to depose Trudy and would proceed without her testimony should the court deny their motion in limine:

MR. SILVERBERG [Government counsel]: . . . . We are not moving for a deposition for this Court -- there's no motion for a deposition in front of the Court right now. What there is is a Motion in Limine for us to have her testify live. If the Court wants to deny that, which is the Court's option of course, then we're going to go without her testimony.

         ECF No. 36-1, PageID # 405. The Government repeated this position throughout the hearing:

THE COURT: Okay. So -- so Rule 15(d) says if the deposition was requested by the government, and you're saying you are not requesting a deposition.
MR. SILVERBERG: That's correct.
THE COURT: You only want me to determine that it is necessary to have testimony by videoconference. It's hard for me to rule that it is necessary if a deposition is available.
MR. SILVERBERG: Right, and I understand that because I went through that already. So twice they've stipulated that they would share the cost. Now they think because of this recent case, U.S. versus Carter, that all they have to do is say, We want to attend, therefore the government will be compelled to say, Okay, we'll pay for your expenses to go.
THE COURT: No, it's --
MR. SILVERBERG: I refuse to allow the government to be manipulated that way. They said this witness is an essential witness. They've said this in three different stipulations. If they're ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.