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ORDER ON DEFENDANT’S MOTION FOR 

RECONSIDERATION REGARDING VIDEO 

TESTIMONY- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

HENRY C. ROSENAU,

Defendant.

CASE NO. CR06-157MJP

ORDER ON DEFENDANT’S 

MOTION FOR RECONSIDERATION 

REGARDING VIDEO TESTIMONY

This matter comes before the Court on Defendant Henry Rosenau’s motion for 

reconsideration of the Court’s decision to admit the live video testimony of witness Kip 

Whelpley from a Canadian courtroom during Defendant’s trial. (Dkt. No. 97.) Having reviewed 

Defendant’s motion and the Government’s response (Dkt. No. 115), and having held oral

argument April 20, 2012, the Court DENIES the motion for reconsideration. The Court finds that 

the admission of live video testimony is constitutional in this case because it necessary to further 

an important public policy and because the reliability of Whelpley’s testimony is otherwise 

assured. 
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ORDER ON DEFENDANT’S MOTION FOR 

RECONSIDERATION REGARDING VIDEO 

TESTIMONY- 2

Background

Defendant Henry Rosenau, a Canadian citizen, is on trial in the U.S. District Court for the 

Western District of Washington on charges stemming from his alleged participation in 2004 and 

2005 in a conspiracy to smuggle marijuana by helicopter across the Canadian border into the 

United States. (Dkt. No. 4.) The Government alleges that Rosenau is one of the pilots who flew 

helicopters with marijuana loads. (Id.) Rosenau contested his extradition and was not brought to 

the United States until April 2011. (Dkt. No. 17 at 2.)

Kip Whelpley, a Canadian citizen, is alleged to be another member of the conspiracy. 

(Dkt. No. 79 at 4.) Whelpley is alleged to have accompanied Rosenau on helicopter trips 

between the United States and Canada, received multiple loads of marijuana from Rosenau, and 

given money to Rosenau. (Id.) Whelpley was arrested in 2008, pleaded guilty to one count of 

conspiracy to import marijuana, and was sentenced to 20 months in prison. United States v. 

Whelpley, Case No. CR05-407-RSM, Dkt. No. 38 (W.D. Wash.). Whelpley has since returned to 

Canada. (Dkt. No. 27 at 3.) His plea agreement included a promise to return to the United States 

testify in the case against Rosenau. (Dkt. No. 55 at 4.) Whelpley’s anticipated testimony 

encompasses nearly all criminal conduct charged against Rosenau. (Dkt. No. 79 at 4.)

Through various legal maneuvers in Canada, Defendant Rosenau has effectively made it 

impossible for Whelpley to testify against him in person at the present trial. Rosenau’s Canadian

legal activities first came to the Court’s attention in October 2011, when the Government 

presented evidence that Rosenau, through his agents, filed a lawsuit against Whelpley in his 

hometown in British Columbia, and that he obtained a default judgment preventing Whelpley 

from coming to the United States. (Dkt. No. 54 at 5-11.) Rosenau also filed similar suits against 
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ORDER ON DEFENDANT’S MOTION FOR 

RECONSIDERATION REGARDING VIDEO 

TESTIMONY- 3

the Royal Canadian Mounted Police. (Id.) The Government has stated that it cannot have the 

Canadian default judgment against Whelpley set aside without Whelpley’s participation. (Id.) 

The Government has three times sought to obtain the Court’s permission to depose 

Whelpley in Canada, pursuant to Fed. R. Crim. P. 15. (Dkt. Nos. 27, 55, 79.) The Court initially 

denied the Government’s motion for lack of specific information explaining why Whelpley was 

unavailable to physically testify at trial. (Dkt. No. 34.) On reviewing the Government’s later 

motions, the Court found that “exceptional circumstances” existed to permit the deposition of 

Whelpley, but not another witness, Zachary Miraback, who simply preferred not to come to the 

United States. (Dkt. No. 89.) Rather than authorizing Whelpley’s deposition, however, the Court 

reasoned that live video testimony would better preserve the Defendant’s right to confrontation. 

(Id.)

On March 23, 2012, after hearing oral argument on the Government’s motion to 

authorize the deposition of Whelpley, the Court ordered the Government to facilitate Whelpley’s

live video testimony from a Canadian courtroom. (Dkt. No. 89 at 2.) The Court ordered that the 

Government arrange the video conference so that the Defendant can see Whelpley, Whelpley can 

see the Defendant, and the jury can see Whelpley. (Id.) The Court further ordered that

Government counsel and Rosenau’s court-appointed lawyer travel to Canada to examine and 

cross-examine Whelpley in person, and that Defendant be provided a direct communication link 

with his attorney as well as breaks during the proceeding to speak with his attorney. (Id.) The 

Court also appointed a second attorney to be present with Defendant in the U.S. Courtroom, in 

order to facilitate his participation. (Id.)

Defendant challenges the live video testimony arrangement on three grounds. First, 

Defendant argues that the present case fails the test established by the Supreme Court in 
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ORDER ON DEFENDANT’S MOTION FOR 

RECONSIDERATION REGARDING VIDEO 

TESTIMONY- 4

Maryland v. Craig, 497 U.S. 836, 850 (1990), because stopping marijuana trafficking is not a 

sufficiently important public policy to justify impairment of his Confrontation Clause rights. 

(Dkt. No. 97 at 10-11.) Second, Defendant argues that the Court incorrectly applied the Rule 15 

test for depositions to the question of live video testimony. (Dkt. No. 97 at 4.) Finally, Defendant 

argues that Crawford v. Washington, 541 U.S. 36, 69 (2004), overruled Craig “sub silento,” and 

that the Supreme Court’s new Confrontation Clause analysis always requires physical face-toface confrontation in criminal trials. (Dkt. No. 97 at 9.)

Findings:

After holding a hearing on the issue of live video testimony on April 20, 2012, the Court 

makes the following case-specific findings: 

1. Defendant Henry Rosenau has sued witness Kip Whelpley in courts of British Columbia 

and obtained a default judgment prohibiting Whelpley from entering the United States.

2. Rosenau’s legal actions in Canada have created a legal reality whereby Whelpley is 

unable to cross the border to testify. 

3. The Canadian Government will not allow Rosenau to travel to Canada for the purposes of 

attending the hearing where Whelpley will testify against him.

4. The U.S. Marshals Service is unable to maintain control of a Defendant outside the 

physical boundaries of the United States.

5. The Canadian Government has agreed to facilitate Whelpley’s testimony via live 

videoconference from a Canadian courtroom. The proceedings would be governed by 

U.S. law and Whelpley would be administered an oath under U.S. law.

6. There is an important public policy interest in allowing the Government to effectively try 

cases regarding the breach of international boundaries by smuggling of narcotics by air 
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ORDER ON DEFENDANT’S MOTION FOR 

RECONSIDERATION REGARDING VIDEO 

TESTIMONY- 5

into the United States. The Government also has a public interest in ensuring that the 

national forests are not used as staging grounds to facilitate the introduction of 

contraband into the United States.

7. Because Whelpley’s truthful testimony against Rosenau in the present case was a 

condition of his 2008 plea agreement, perjury in the present trial of Rosenau may lead to 

Whelpley’s extradition. The threat of extradition and possible imprisonment for perjury 

makes the reliability of Kip Whelpley’s testimony reasonably assured.

Discussion

A. Video Testimony

The present arrangement to permit live video testimony meets or exceeds the 

requirements established by the Supreme Court in Maryland v. Craig. 497 U.S. at 850. In Craig, 

the Supreme Court approved a Maryland statute that permitted victims in child sex abuse cases 

to testify in a separate room where they could not see the defendant, but the defendant could see 

them on a one-way video monitor. Id. at 851. The Court stated that “the Confrontation Clause 

reflects a preference for face-to-face confrontation,” but that this preference “must occasionally 

give way to considerations of public policy and the necessities of the case.” Id. at 849. The Court 

held that a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, 

face-to-face confrontation at trial where denial of such confrontation is necessary to further an 

important public policy and where the reliability of the testimony is otherwise assured. Id. at 850. 

The procedures in the present case surpass those approved in Craig. First, the video 

connection in the instant case would be two-way, so the witness can see the Defendant, in 

addition to the Defendant seeing the witness. Second, dramatic improvements in technology 

since Craig was decided twenty-two years ago, including clearer video and audio, improve the 
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ORDER ON DEFENDANT’S MOTION FOR 

RECONSIDERATION REGARDING VIDEO 

TESTIMONY- 6

jury’s ability to observe the demeanor and body language of the witness. Third, appointing a 

second counsel ensures that one defense lawyer will cross-examine the witness face-to-face in 

Canada, while the other remains with the Defendant, facilitating his participation. While the 

witness in Craig was in a different room, not a different country, the arrangements proposed in 

this Court—including personal video monitors for each juror—make the experience close to that 

of watching a live witness testify in person.

Next, the public policy interest in allowing the Government to effectively try cases 

regarding the breach of international boundaries by smuggling of narcotics by air into the United 

States is sufficiently important to justify permitting live video testimony. Video testimony may 

overcome the requirement of physical confrontation only when it is “necessary to further an 

important public policy.” 497 U.S. at 850. A wide variety of public policy objectives may satisfy 

this test, but the Government must make some showing of necessity. In Craig, the Supreme 

Court held that the state’s interest in “protecting the physical and emotional well being of youth” 

was sufficient. Id. at 852. Interpreting Craig, the Fourth Circuit held that combating international 

terrorism was a sufficiently important public policy to justify video testimony in a criminal trial. 

United States v. Ali, 528 F.3d 210, 240 (4th Cir. 2008). In contrast, in United States v. Yates, the 

Eleventh Circuit held that the public policy interest must be “more than the Government’s 

convenience,” and that the Confrontation Clause “requires something more than mere 

unavailability” to justify introducing video testimony. 438 F.3d 1307, 1316-17 (11th Cir. 2006) 

(en banc). 

The Government’s public policy interest in the present case is more similar to that in Ali

and Craig than the public policy interest in Yates. Defendant argues that Yates stands for the 

proposition that prosecuting drug cases is not a sufficiently important public policy to permit 
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ORDER ON DEFENDANT’S MOTION FOR 

RECONSIDERATION REGARDING VIDEO 

TESTIMONY- 7

video testimony in a criminal trial. (Dkt. No. 97 at 10-11.) However, a more persuasive reading 

of Yates is that the Government must show good reason why video testimony is necessary, rather 

than simply claiming “convenience.” Yates, 438 F.3d 1316-17. The Government meets that 

burden here by showing that Whelpley is prevented from entering the United States by a

Canadian court order. (Dkt. No. 79.) In fact, the record in this case shows the Court has declined 

to approve video testimony of witnesses where the Government has not shown a clear necessity. 

(See Dkt. No. 89.)

Live video testimony is also appropriate here because other factors “adequately ensure[] 

that the testimony is both reliable and subject to rigorous adversarial testing in a manner 

functionally equivalent to that accorded live, in-person testimony.” Craig, 497 U.S. at 851. In 

Craig, the Court found it significant that Maryland’s procedure preserved “all other elements of 

the confrontation right,” including requiring the witness to be competent, to testify under oath, to 

undergo contemporaneous cross examination, and for the judge, jury and defendant to view the 

demeanor and body, “albeit by video monitor,” of the witness as he or she testifies. Id. Those 

same factors exist in the present case. Defendant’s attorney may cross-examine Whelpley, 

because the two will be in the same courtroom in Canada. Whelpley will take an oath 

administered by a U.S. District Court Judge, and the jury will be able to observe Whelpley’s

demeanor, his movements, and his body language as he is examined by both advocates. As in 

Craig, Whelpley will “give his statements under oath—thus impressing him with the seriousness 

of the matter and guarding against the lie by the possibility of a penalty for perjury.” Id. at 845-

56. Finally, Whelpley’s reliability in providing truthful testimony is buttressed by the fact that 

any perjury may result in Whelpley’s extradition and imprisonment in the United States.
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ORDER ON DEFENDANT’S MOTION FOR 

RECONSIDERATION REGARDING VIDEO 

TESTIMONY- 8

B. Rule 15

To the extent that the Defendant argues the court “erred when it applied the Rule 15 

exceptional circumstances standard for authorization of video testimony,” the Court agrees. (Dkt. 

No. 97 at 3.) Craig is the proper standard. Through this order, the Court has explained why live 

video testimony is permissible in this particular case. 

However, the Ninth Circuit’s analysis of the constitutionality of Rule 15 depositions is 

relevant here because a videotaped deposition where the defendant is not present is similar in 

practice to live video testimony. In the context of Rule 15, the Ninth Circuit allows the use of a

video deposition in a criminal trial, even when the defendant does not attend the deposition, in 

situations where the Government (1) “first attempt[s] to secure the defendant’s actual, physical 

presence” at the deposition, and (2) the Government employs “procedures that are adequate to 

allow the defendant to take an active role in the [] proceedings.” United States v. Medjuck, 156 

F.3d 916, 920 (9th Cir. 1998). The Government’s burden is simply to demonstrate “the 

impossibility of obtaining [defendant’s] physical presence on terms acceptable to the 

Government.” Id; see also United States v. McKeeve, 131 F.3d 1, 7-8 (1st Cir. 1997); United 

States v. Gifford, 892 F.2d 263, 265 (3d Cir. 1989). 

The Court’s proposal for live video testimony in the present case surpasses the 

requirements of the Ninth Circuit in allowing videotaped depositions when the defendant cannot 

attend. First, the Government adequately shows that it cannot obtain Defendant Rosenau’s 

presence on acceptable terms. In Medjuck, the “Government was unable to secure [defendant’s] 

presence at the Canadian depositions because there was no mechanism in place to allow United 

States officials to transfer [defendant] over to Canadian authorities at the Canadian border, and 

secure his return to the United States in a timely fashion after the depositions.” 156 F.3d at 920. 
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ORDER ON DEFENDANT’S MOTION FOR 

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TESTIMONY- 9

The same situation exists here, because Canada will not permit Defendant Rosenau to attend the 

hearing where Whelpley will testify. 

Second, the arrangement proposed here allows Defendant Rosenau to take an active role 

in the proceedings. In Medjuck, the Ninth Circuit approved an “elaborate system to allow 

[defendant] to witness the depositions live by video feed and to participate with his attorneys by 

private telephone connection during the depositions taken in Canada.” Id. Here, as in Medjuck, 

the Government is taking steps to ensure that Defendant Rosenau will be able to take an active 

role in the proceedings by establishing a live two-way video link and appointing a second 

attorney to assist him while his primary attorney is in Canada. Id. While the Court’s proposed 

solution in the present case is different from Medjuck, the Court’s approach to satisfying the 

requirements of the Confrontation Clause is the same.

C. Crawford

Finally, Defendant’s argument that Crawford v. Washington “overruled Craig sub 

silento” asks the Court to go too far. (Dkt. No. 97 at 9 (citing 541 U.S. 36 (2004)).) While the 

Supreme Court may revisit Craig, this Court is bound to follow directly applicable Supreme 

Court precedent until it is clearly overruled. Defendant cites no case stating that Crawford

overrules Craig. In fact, the primary case that Defendant cites, Yates, explicitly relies on Craig in 

reaching its conclusion. Yates, 438 F.3d at 1316-17. 

A close reading of Crawford reveals that the opportunity for rigorous cross-examination, 

rather than mere physical presence of the defendant, is the central tenet of the confrontation 

right. 541 U.S. at 51 (endorsing the prior opportunity for cross-examination hearsay exception). 

As Crawford explained, “[t]he principal evil at which the Confrontation Clause was directed 

was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as 
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ORDER ON DEFENDANT’S MOTION FOR 

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TESTIMONY- 10

Marsha J. Pechman

United States District Judge

evidence against the accused.” Id. at 50. By way of illustration, Justice Scalia described the 1603 

trial of Sir Walter Raleigh, whose fate was sealed when a letter containing the confessions of his

alleged accomplice, Lord Cobham, was read to his jury. Id. (citing 1 D. Jardine, Criminal Trials 

435 (1832)).

In contrast to the situation Sir Walter Raleigh faced, the proposal here gives Defendant

Henry Rosenau a full opportunity to cross-examine his accuser in front of the jury—albeit by 

video. It is difficult to imagine what Sir Walter Raleigh’s peers would have thought of modern 

telecommunication technology. It seems at least plausible that a two-way videoconference

allowing Raleigh and his jury to look on as Raleigh’s representative cross-examined Cobham in 

person may have alleviated some of the injustice Raleigh faced. Given the technological progress 

the world has seen in the four centuries since Raleigh’s trial, it seems reasonable that the 

requirements of confrontation could, in special circumstances, be satisfied in other ways.

Conclusion

The admission of live video testimony in this case is necessary to further an important 

public policy and the reliability of the testimony is otherwise assured. Therefore, it is ordered 

that Kip Whelpley’s testimony be taken by live videoconference from Canada pursuant to the 

methodology described. 

The clerk is ordered to provide copies of this order to all counsel.

Dated this 24th day of April, 2012.

A