“Beyond the Subpoena Power” – Seventh Circuit Defines Rule 15 Unavailability and Clarifies Waiver of Confrontation Rights
Commentary on United States v. Shawn Baldwin, No. 21-2925 (7th Cir. 2025)

1. Introduction

United States v. Shawn Baldwin is a wide-ranging fraud appeal arising from a decade-long Ponzi scheme that cost victims more than US $10 million. Although the Seventh Circuit eventually affirmed all convictions and the 204-month sentence, the opinion is doctrinally significant for two distinct reasons:

  • It supplies the first explicit definition of “unavailability” for foreign witnesses under Federal Rule of Criminal Procedure 15 within the circuit, holding that a foreign national “beyond the subpoena power” who is “substantially unlikely” to appear live at trial satisfies the exceptional-circumstances requirement without the need for sworn affidavits.
  • It establishes that a defendant who waives physical presence at a Rule 15 deposition necessarily waives any later Confrontation Clause objection to admission of that deposition, closing what had been an arguable gap in earlier Seventh Circuit precedent (Cannon; McGowan).

The case therefore clarifies procedural options available to the Government when key foreign witnesses balk at travelling to the United States and delineates the concomitant rights—and potential pitfalls—facing criminal defendants.

2. Summary of the Judgment

The panel (Judges Scudder, Kirsch and Maldonado; opinion by Judge Kirsch) rejected five sets of challenges:

  1. Rule 15 / Confrontation Clause – The court found no error in authorizing and admitting the video deposition of the principal victim, Luca Tenuta, recorded in London three weeks before trial.
  2. Alleged Perjured Testimony – The FBI forensic accountant’s statements were deemed accurate when read in context.
  3. Misjoinder / Severance – All counts were part of one Ponzi scheme and were properly tried together; failure to renew a severance motion waived that claim.
  4. Rule 404(b) Evidence – Testimony from uncharged victims constituted intrinsic evidence of the same scheme and was thus admissible.
  5. Sentencing Enhancements – The court upheld 20-, 2- and 4-level increases for loss amount, violation of an administrative order, and securities-law involvement, respectively.

3. Analysis

3.1 Precedents Cited and Their Influence

  • United States v. Drogoul, 1 F.3d 1546 (11th Cir. 1993) – Adopted for the “substantial likelihood” standard of unavailability, permitting courts to rely on counsel’s representations rather than sworn affidavits.
  • United States v. Sindona, 636 F.2d 792 (2d Cir. 1980) & Farfan-Carreon, 935 F.2d 678 (5th Cir. 1991) – Supported the sufficiency of counsel’s statements that a foreign witness refused to travel.
  • United States v. Cannon, 539 F.3d 601 (7th Cir. 2008) and McGowan, 590 F.3d 446 (7th Cir. 2009) – Earlier cases that found no Confrontation Clause violation where the defendant attended the deposition. Baldwin extends these cases by addressing what happens when the defendant chooses not to attend.
  • Rule 15 “case-specific findings” requirement – The opinion clarifies that such findings become moot if the defendant waives presence, giving trial judges flexibility.

3.2 The Court’s Legal Reasoning

3.2.1 Rule 15 Exceptional Circumstances

The Seventh Circuit had never articulated a concrete test for when a witness is “unavailable” under Rule 15(a). The court adopted the Drogoul/Sindona approach:

“One way in which a witness is unavailable … is when he is beyond the subpoena power of the United States and the court finds that he is substantially unlikely to testify in person at trial.”

Practical take-away: a firm refusal by a foreign witness, recorded by counsel’s letter or e-mail, combined with the Government’s reasonable efforts to secure attendance, suffices.

3.2.2 Waiver of the Right to be Present – Rule 15(c)(2)

Because Baldwin expressly told the district court that remaining in Chicago was his “preference,” the panel held he waived the right conferred by Rule 15(c)(2). Waiver is evaluated under Olano (“intentional relinquishment of a known right”). Crucially, an explicit preference not to travel meets that standard.

3.2.3 Confrontation Clause Waiver

The court linked Rule 15 waiver to the constitutional right:

  • The defendant “knew full well” the deposition would later be played to the jury.
  • Counsel raised confrontation concerns during pre-trial hearings yet chose not to object when the video was admitted.
  • Allowing a later Confrontation challenge would make “nonsense” of the strategic waiver.

Hence, waiver at the deposition stage forecloses Confrontation objections at trial and on appeal.

3.2.4 Other Holdings in Brief

  • Perjury Claim – Context matters; partial account review is not perjury when the witness says “the universe of accounts I analyzed.”
  • Joinder – A Ponzi scheme is a single “common scheme or plan,” satisfying Rule 8(a); failure to renew severance argument waived Rule 14 issue.
  • Rule 404(b) – Transactions with uncharged victims are intrinsic to the scheme; therefore, Rule 404(b) is not implicated and Rule 403 balancing favored admission.
  • Sentencing – Loss calculation may include (i) intended loss, (ii) funds briefly returned to lull victims, and (iii) fluctuating share valuations if the estimate is reasonable. Enhancements for violating an administrative bar and involving securities laws were also upheld.

3.3 Likely Impact of the Decision

  1. Streamlined Rule 15 Practice – Prosecutors in the Seventh Circuit can now rely on counsel’s statements to establish a foreign witness’s unavailability, reducing the need for sworn affidavits and protracted “proof-of-unavailability” hearings.
  2. Defense Strategy Re-assessment – Defense lawyers must think carefully before declining to travel to foreign depositions. A tactical decision to stay home will forever bar a Confrontation-based appeal.
  3. Guidance for District Courts – Trial judges can grant Rule 15 motions with greater confidence where (a) the witness is abroad, (b) credible evidence shows refusal to travel, and (c) the defendant opts not to attend. Case-specific findings under Rule 15(c)(3) are unnecessary once the presence right is waived.
  4. Broader Securities-Fraud Sentencing – The opinion reaffirms that advice to buy stock, even if informal and unregistered, qualifies one as an “investment adviser” for guideline purposes; this may increase exposure for non-broker fraudsters masquerading as consultants.

4. Complex Concepts Simplified

Rule 15 Deposition A sworn examination of a witness before trial, recorded for later playback when live testimony is impracticable. Think of it as a courtroom session that happens early—and sometimes overseas—so the jury can still see and hear the witness.
Exceptional Circumstances Situations where securing live testimony is so difficult (e.g., the witness is abroad and refuses to travel) that the court allows the deposition alternative.
Confrontation Clause The Sixth Amendment guarantee giving defendants the right to cross-examine prosecution witnesses face-to-face in front of the jury.
Waiver vs. Forfeiture Waiver = intentional relinquishment; forfeiture = failure to object in time. Waiver extinguishes claims; forfeiture leaves room for plain-error review.
Intrinsic Evidence Proof that directly constitutes or completes the charged offense—distinct from “other-acts” evidence, which merely shows propensity.
Guideline § 2B1.1(b)(20) An enhancement targeting securities-related fraud by professionals (brokers, investment advisers) or schemes that violate securities laws, even if the conviction is for generic wire fraud.

5. Conclusion

United States v. Shawn Baldwin cements two important procedural points in Seventh Circuit jurisprudence:

  1. A foreign witness who is beyond subpoena power and refuses to travel is “unavailable” under Rule 15(a) when the court is convinced of a “substantial likelihood” that live testimony will not occur.
  2. A defendant who elects not to attend the Rule 15 deposition waives subsequent Confrontation Clause objections to its admission.

These clarifications will likely reduce satellite litigation over depositions of foreign witnesses and sharpen strategic decision-making for defense counsel. Beyond procedure, the opinion also reaffirms a broad view of what constitutes a common scheme for joinder, intrinsic evidence for Rule 404(b), and an investment-advisor role for sentencing enhancements. In short, Baldwin reinforces the judiciary’s commitment to practical trial management while insisting that defendants bear the consequences of tactical choices—especially when constitutional rights are knowingly relinquished.