Federal Evidence Review

In a drug conspiracy prosecution, post-trial claim that cooperating co-conspirators who testified had coordinated their testimony and violated the trial court's FRE 615 sequestration order was insufficient to grant a motion for a new trial, in United States v. Bender, 539 F.3d 449 (7th Cir. August 13, 2008) (Nos. 06-3659, 06-3572)

FRE 615 specifies that the trial court may “order witnesses excluded so that they cannot hear the testimony of other witnesses.” This is often applied not only to a witness hearing testimony in the courtroom, but outside the courtroom as well. A example of how the rule has been employed, both in terms of what is needed to show its violation, as well as relief, particularly when a violation is discovered post-trial, is demonstrated by a recent case decided by the Seventh Circuit.

In the case, Defendant Johnson was charged with conspiracy to distribute cocaine with several other individuals. Six of his co-defendants pled guilty before trial and agreed to cooperate with the government and testify at Johnson's trial. After the trial concluded with the conviction of defendant Johnson, he received a letter from inmate Hibbs who claimed that he learned that four of Johnson's co-defendants who had pled guilty and cooperated by testifying had discussed the case and their desire to reduce their prison exposure and specifically indicated that they would say ‘whatever it takes’ to get reduced sentences.” United States v. Bender, 539 F.3d at 453.

Defendant Johnson accordingly sought relief and claimed that the letter provided evidence that the trial court’s sequestration order was violated. The trial court denied the defense motion for a new trial under Fed. R. Crim. P. 33, “concluding that (1) Bibbs’s letter did not say the witnesses had relayed the substance of their testimony to each other and was therefore not evidence of a violation of the sequestration order; (2) the alleged ‘new evidence’ was merely impeaching and cumulative, as Johnson and Bender had extensively cross-examined the witnesses about their motivation to lie; and (3) any error was harmless, given the overwhelming evidence of Johnson's guilt. United States v. Bender, 539 F.3d at 455

The Seventh Circuit affirmed the trial judge's denial of the defendant's Fed. R. Crim. P. Rule 33 motion of a new trial based on the alleged violation of the sequestration orderl According to the circuit:

“As a threshold matter, we share the district court's skepticism that Bibbs's letter is evidence of a violation of the sequestration order. The sequestration order excluded witnesses from the courtroom so they could not hear and conform their testimony to that of other witnesses. See Fed. R. Evid. 615. This evidentiary and procedural precaution is designed to curb collusion by witnesses but does not address the separate problem of witnesses who coordinate their stories before testifying. Bibbs's letter is entirely general, but he appears to be alleging that the coconspirators discussed the case in the jail before trial and shared their desire to give the sort of testimony that would be most likely to secure reduced sentences in their own cases. Bibbs did not say that they conveyed the substance of their testimony to one another. Bibbs's letter does not establish a violation of the sequestration order.”

But even had the letter been more explicit, the defendant might not be entitled to relief the circuit indicated. The circuit also noted the “overwhelming” evidence of the defendant's guilt, that the defendant had taken advantage of his right at trial to “vigorously cross-examine[ ]" the testifying coconspirators about the "motivations and incentives" for their testimony, and in any event the claims in the letter would have been cumulative of other evidence United States v. Bender, 539 F.3d at 456.

Unless a sufficient showing is made, courts are reluctant to grant a motion for a mistrial or new trial premised on a claim that a sequestration order was violated. As with many other evidentiary errors, the party complaining must be able to show prejudice from the violation in order to achieve relief.