A Florida federal judge has ruled that Scott Rothstein, a convicted Ponzi schemer and current participant in the federal witness protection program, must testify as a defense witness at the upcoming trial of a former attorney accused of assisting Rothstein with his massive $1.4 billion Ponzi scheme. U.S. District Judge Daniel T. Hurley granted defendant Christina Kitterman's request to have Rothstein testify at her trial, but with one exception - that Kitterman be responsible for footing the bill to transport Rothstein to and from trial. Because of his participation in the witness protection program, it has been estimated that the costs to produce Rothstein could exceed $20,000.
After Rothstein quickly pleaded guilty to masterminding the $1.4 billion fraud, his hopes for leniency were dashed when U.S. District Judge James I. Cohn handed down a 50-year sentence - 10 years more than prosecutors had requested and 20 years longer than the sentence sought by Rothstein's attorneys. Following his incarceration, Rothstein began extensively cooperating with prosecutors in an effort to win a reduction in his sentence.
Rothstein's cooperation included providing testimony against other alleged co-conspirators that assisted Rothstein's scheme, including former colleagues at Rothstein's law firm, Rothstein Rosenfeldt Adler ("RRA"). One of these colleagues, Kitterman, was named by Rothstein at a deposition in Summer 2012 as having agreed to pose as a Florida Bar investigator to help dupe investors. Interestingly, Rothstein named someone else as posijng as the Florida Bar investigator at a December 2011 deposition.
After prosecutors announced the charges against Kitterman, it became clear that the case against Kitterman would rely heavily on Rothstein's post-incarceration deposition testimony. Defense lawyers then sought to compel Rothstein's presence at trial, arguing that Rothstein's deposition transcript alone was insufficient and prevented defense lawyers from effectively cross-examining Rothstein. This principle, known as the confrontation clause, provides that an accused shall have the right under the Fourteenth Amendment to a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.
While ordering Rothstein to testify, Judge Hurley included a rare caveat in his order in adopting prosecutors' recommendation that the defense be responsible for covering the costs of producing Rothstein at trial - a task that is complicated (and more expensive) because of Rothstein's participation in the witness protection program. Several criminal defense attorneys immediately questioned the ruling, noting whether the requirement that the defense be required to foot the bill of confronting their accuser could possibly violate the defendant's right to a fair trial.
Kitterman has been charged with one count of conspiracy to commit wire fraud, and faces up to twenty years in prison.