By Emil Mikkelsen
Assistant Criminal District Attorney in Smith County
A Smith County jury recently convicted a man who stole thousands of dollars from churchgoers in Flint, Texas. The defendant was a South African national, and much of the State’s proof was in South Africa. While preparing for trial, prosecutors learned 1) how to prove a case when half the evidence and witnesses are on a different continent; 2) how to authenticate foreign business records; and 3) when and how witnesses are permitted to testify remotely at a jury trial. Through this article, the Smith County Criminal District Attorney’s Office aims to help other Texas prosecutors and investigators by sharing how it worked through unique issues of international law in this case.
Meeting Livingstone Zitha
On an ordinary Wednesday in Flint, a man by the name of Livingstone Zitha stumbled into a small Baptist church in need of medical attention. Zitha said he was an evangelist from South Africa and was looking for a church he knew in the area, but he had discovered a donut shop in its place. The church promptly took him to the hospital, covered the cost of the ER visit, and paid for his prescriptions.
Zitha amazed churchgoers with stories of his fight against apartheid and powerful conversion to Christianity. He said he ran a large orphanage and pastored a megachurch in Johannesburg and had come to Texas to raise money for the orphanage. In many ways, Zitha seemed like an answered prayer for the small church, which already supported mission work in Africa. Church members put him up in a motel for two months, had him preach at a revival, and helped him book speaking events at other local churches. Whenever he told crowds that $250 could feed a child for a year, people gave generously.
Over time, church members grew wary of the once-charming Zitha, who treated waitstaff with disdain and had become increasingly demanding of women in the church. Why would a man on a fundraising mission insist on picking up the tab at restaurants? Shouldn’t that money have gone to feed orphaned children? It was hard to get a straight answer out of Zitha, who alternately claimed to be 1) scraping by, and 2) independently wealthy by virtue of his marriage to a famous actress. After some online sleuthing, church members began to think of him as a wolf in sheep’s clothing. Zitha left in a huff when he was confronted, but the next day he emailed what purported to be the orphanage’s founding constitution and a nonprofit certificate of registration. Neither document appeared genuine, though, so they contacted law enforcement.
In the ensuing investigation, bank records revealed that Zitha spent the church’s love offerings on fast food, Starbucks, and rental cars. No such orphanage was registered as a corporation in South Africa, and the U.S. Secret Service’s field office couldn’t verify its existence either. Zitha was arrested just as he was set to step into a pulpit in Dallas, and he was charged with third-degree theft of $10,000.
Even with strong evidence of theft by deception, our office had no experience prosecuting a case with roots halfway around the world. But with help from modern technology and investigators in South Africa, Livingstone Zitha is now incarcerated and can no longer charm his way into the fold.
How do you prepare for trial when witnesses and evidence are on another continent?
Conducting an international investigation is impossible without boots on the ground. You need someone who speaks the language, knows the culture, and understands the government. The U.S. Secret Service field office in South Africa was a great resource for us—its competent agents and investigators were interested in our case and willing to track down documents, find witnesses, visit the supposed locations of Zitha’s church and orphanage, and analyze exhibits. During trial, they facilitated witness testimony from their offices. If you need help conducting an international investigation, the local U.S. Secret Service field office should be your first stop. If one isn’t available, ask the U.S. embassy in that country for help. Remember, English might be your contact person’s second language, and certain words or phrases could be misunderstood. Err on the side of formality in emails and use clear, specific language.
If you’re using video-conferencing software, preparation pays off. We found Zoom invaluable for both witness prep and trial testimony. At trial, we preloaded electronic copies of all exhibits onto the State’s laptop, and we showed them to remote witnesses using Zoom’s screen-share function. From 9,000 miles away, our witnesses could see and testify effectively about the evidence. For the defense, Zoom was an unmitigated disaster during trial. Nobody had done a practice run to ensure internet connection speeds and video quality were up to snuff. It was nearly midnight in South Africa by the time their connection issues were finally sorted, and some witnesses were visibly struggling. They testified from smartphones, resulting in testimony that was somehow both pixelated and blurry.
How do you get foreign business records admitted into evidence?
During our investigation, the Companies and Intellectual Property Commission, a South African agency that registers companies, told us Zitha’s orphanage did not exist in corporate form. Because an orphanage of its supposed size should have been incorporated, this was strong proof it didn’t exist at all.[1] At trial, we got the agency’s lack-of-incorporation affidavit admitted into evidence as a self-authenticating foreign public document, under Tex. R. Evid. 902(3).
If you find yourself in a similar situation, there are three ways it can be done:
(A) In General. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States.
We were thankful this onerous subsection didn’t apply in our case. To be self-authenticating under 902(3)(A), a document needs final certification from a member of the U.S. diplomatic corps, who has certified that the foreign official’s signature is genuine and the foreign official is who he says he is. Realistically, this happens only 1) if a foreign official signs the document in front of a U.S. diplomat; or 2) via a complicated certification chain where Person A signs a document in front of Person B, who then certifies A’s signature is authentic. The process repeats itself when Person B signs a document in front of Person C, who then certifies B’s signature is authentic. And so on and so on, until the document gets to a U.S. diplomat for final certification.
(B) If Parties Have Reasonable Opportunity to Investigate. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:
(i) order that it be treated as presumptively authentic without final certification; or
(ii) allow it to be evidenced by an attested summary with or without final certification.
Subsection (B) permits a judge to admit a foreign public document without a final certification if both sides have had time to investigate and good cause exists. There’s no clear consensus on “good cause,” though.
In Jordan-Meier v. State,[2] good cause meant a good reason to believe a foreign document was genuine. The State had offered what purported to be the defendant’s criminal convictions from Germany. On review, the First Court of Appeals approved of the trial court’s decision to admit the evidence without final certifications because there was “good cause” to believe the documents were authentic: They contained Jordan-Meier’s fingerprints, plus personal information about him that was consistent with the evidence that had been presented at trial.
In United States v. McGowan,[3] good cause meant a good reason to discard the usual rule.[4] Prosecutors tried obtaining final certification for Jamaican documents, but the Jamaican government was dragging its feet. Thus, the trial court had “a sound basis or legitimate need to take judicial action” and admit the evidence without final certification, under 902(3)(B).
If relying on 902(3)(B) for a foreign public document, be prepared to explain 1) your efforts to obtain a final certification and 2) why you believe the document is authentic.
But chances are, Subsection C will apply:
(C) If a Treaty Abolishes or Displaces the Final Certification Requirement. If the United States and the foreign country in which the official record is located are parties to a treaty or convention that abolishes or displaces the final certification requirement, the record and attestation must be certified under the terms of the treaty or convention.
Subsection (C) applies in cases where the U.S. and foreign country are parties to a treaty that has abolished the final certification requirement. The Hague Convention, to which both the U.S. and South Africa are parties, abolished final certifications in 1961.[5] Today, documents are authenticated via an “Apostille Certificate.” Each country designates officials to attach apostilles, and a list of these officials is available online.[6] In South Africa, one agency and 15 courts can attach apostilles, and our affiant signed her affidavit in front of one of them.
With the apostille attached, the now self-authenticating document (reprinted below) was mailed to Texas and ready for use at trial.
Can overseas witnesses testify remotely?
At the time our case was first set for trial, COVID-19 travel restrictions prevented South Africans from entering the U.S.[7] To get around the travel ban, a South African’s entry into the United States needed to further “important U.S. law-enforcement objectives.” A local theft prosecution in Smith County likely wouldn’t have qualified, so we sought a workaround.
In our research, we came across a line of cases permitting video testimony when public policy, significant impracticability, or witness health prevents in-court testimony.
In Paul v. State,[8] a witness whose cancer diagnosis kept her from traveling testified via video-conferencing software; jurors watched it on a large video screen. On appeal, Paul argued the remote testimony violated due process and the Confrontation Clause. But the Twelfth Court of Appeals disagreed because the necessary characteristics of in-court testimony had been preserved: Jurors had a full view of the witness, and the sworn testimony was subject to cross-examination and had occurred under the defendant’s eye.
In Gonzales v. State,[9] the Court of Criminal Appeals found due process wasn’t violated when a child witness was allowed to testify by two-way closed-circuit system. The trial court’s decision to allow this form of testimony was justified by a compelling State interest in safeguarding the child’s psychological well-being.
In Rivera v. State,[10] an active-duty soldier testified from Iraq via live video conferencing. The Ninth Court of Appeals approved; the witness’s military obligations made it reasonable to set aside the preference for in-person testimony.
In Haggard v. State,[11] a Sexual Assault Nurse Examiner testified from Montana via FaceTime. The State hadn’t subpoenaed her, and the witness’s financial status was the only reason the State gave for her not appearing in person. Because none of the usual reasons applied (health issues, overseas deployment, public policy, or witnesses outside subpoena power), the remote testimony was improper. Haggard’s conviction was reversed and remanded.
In Zitha’s case, our witnesses were allowed to testify via Zoom because an executive order kept them from appearing in person. They testified under oath from the U.S. Embassy in Pretoria, South Africa, remained subject to cross-examination, and were clearly visible on a 65-inch video screen.
Conclusion
Prosecuting this case was an enjoyable change of pace, and the guilty verdict felt particularly rewarding, given all the hours spent studying international treaty law and South African corporate regulations. I hope the next prosecutor who faces similar issues will be able to use this article as a jumping-off point. If you have questions or would like to share your own experiences, feel free to email me at [email protected].
Endnotes
[1] In South Africa, a lesser form of legal-entity status can be secured by registering as a nonprofit with the Department of Social Development. At trial, Zitha produced an old nonprofit registration in the same name as his alleged orphanage and said it proved his innocence. But because our witness explained it was typical to register as both a corporation and nonprofit, jurors rejected Zitha’s “proof.”
[2] Jordan-Maier v. State, 792 S.W.2d 188, 190-92 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).
[3] United States v. McGowan, 552 F. App’x 950, 955 (11th Cir. 2014).
[4] Tex. R. Evid. 902(3) mirrors Fed. R. Evid. 902(3).
[5] The full title of the treaty is: Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.
[6] www.hcch.net/en/instruments/conventions/ authorities1/?cid=41.
[7] The travel restrictions came from President Biden’s Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease.
[8] Paul v. State, 419 S.W.3d 446, 459 (Tex. App.—Tyler 2012, pet. ref’d).
[9] Gonzales v. State, 818 S.W.2d 756, 766 (Tex. Crim. App. 1991).
[10] Rivera v. State, 381 S.W.3d 710, 713 (Tex. App.—Beaumont 2012, pet. ref’d).
[11] Haggard v. State, 612 S.W.3d 318, 328 (Tex. Crim. App. 2020).