Prosecutor did not violate the trial court’s sequestration order by permitting contact with the victim witness during an overnight recess, and where no improper or prejudicial contact was shown, in United States v. Guthrie, 557 F.3d 243 (6th Cir. 2009) (Nos. 07-6215, 07-6286)
A sequestration order, prohibiting witness contact before a witness testifies, ensures that one witness’s testimony may not be influenced by another. The Sixth Circuit recently considered a claim that the prosecutor violated a sequestration order by having contact with a victim witness during an overnight recess. The circuit concluded there was no improper contact.
In the case, defendant Guthrie was charged with carjacking, possessing firearms as a felon, possessing a sawed-off shotgun, and discharging a firearm during a crime of violence after trying to collect money he claimed a drug distributor owed. Officers pursued the defendant during a high speed chase and ultimately apprehended him. During the trial, the court allowed the defense to complete its line of cross-examination of kidnap victim Williams, permitted an overnight recess, and allowed the prosecutor to speak with the witness before the cross-examination was concluded the next day.
As the witness was dismissed, defense counsel requested “that [the prosecutor] not have any conversation with [the witness]. She is on cross-examination at this point.” The trial court allowed the prosecutor to speak with the witness, noting: “[The prosecutor] may have conversations with his witness. He may not coach the witness…. She is going to be here tomorrow morning at 9:00 o’clock, and you may examine her about anything improper in the interim.” Guthrie, 557 F.3d at 249. Two other witnesses were called to testify before the end of the trial day. The defendant was convicted as charged. On appeal, the defendant claimed that the court violated his Confrontation Clause rights.
The Sixth Circuit found no abuse of discretion in the trial court’s procedure. As the court explained:
“In permitting the prosecutor to speak with the victim while she was still on cross examination, the district court did not explicitly violate the rule on sequestration of witnesses. Federal Rule of Evidence 615 provides that ‘at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.’ Fed. R. Evid. 615 (emphasis added). Sequestration orders, even when granted, do not prohibit witnesses from speaking with counsel.”
Guthrie, 557 F.3d at 248 (citing United States v. Maliszewski, 161 F.3d 992, 1011-12 (6th Cir. 1998) (rejecting claim that sequestration order was violated when prosecutor and agent met with witness during a weekend break in the testimony where there was “no showing that [the AUSA or the agent] consulted with this witness Galvan for the purpose of coordinating his testimony with the testimony of any previous witness”)).
The Sixth Circuit found that the trial court’s ruling was appropriate. Finally, the defendant did not identify any improper contact during the recess and did not raise the issue when the witness resumed her cross-examination. There was no showing of prejudice which denied the defendant from a fair trial.
The Sixth Circuit properly distinguished between witness contact for purposes of preparing to testify from prohibited witness contact for purposes of influencing witness testimony. The court permitted an opportunity to cross-examine the witness over any improper contact.
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