FRE 615 Sequestration Order Reviewed Again Following Remand For Evidentiary Hearing

What are the consequences when witnesses violate a trial court's sequestration order? In a recent case, after circuit remanded defendant's fraud conspiracy trial, with instructions to conduct an evidentiary hearing on whether two government witnesses violated the trial court's FRE 615 sequestration order, the circuit affirms the defendant's conviction and trial court finding that any error was harmless, in United States v. Engelmann, _ F.3d _ (8th Cir. July 30, 2013) (No. 12-1343)

Last December, the Federal Evidence Blog noted an Eighth Circuit case involving application of FRE 615 concerning the sequestration of witnesses. See Evidentiary Hearing Ordered Based On Alleged Violation Of Trial Sequestration Order. The evidentiary hearing occurred and recently the Eighth Circuit affirmed the defendant's conviction, accepting the trial judge's finding after the evidentiary hearing that the alleged violation had not occurred.

As noted in the prior blog post, a divided Eighth Circuit panel had vacated the trial court’s denial of motion for a new trial based on a claim that two agents were seen "directly disclosing details of prior testimony to a second witness before the second witness testified.” United States v. Engelmann, 701 F.3d 874, 878 (8th Cir. Dec. 19, 2012) (No. 12-1343). Upon remand, the trial court conducted the ordered evidentiary hearing, at which the following facts were developed:

  • Three trial observers testified to seeing the agents in the case speaking outside the court; none reported hearing the agents say anything directly concerning the trial.
  • The agents testified, as well as the government trial attorney in the case. They denied discussing or disclosing any "details of any witness's testimony."
  • The agent who allegedly violated the sequestration order testified that he had not been told of the sequestration order, and "[a]s a result, he entered the courtroom on several occasions before his own testimony on rebuttal and observed brief portions of the testimony of one of Engelmann's co-conspirators and of an expert witness."
Engelmann, _ F.3d at _.

The Eighth Circuit affirmed the trial court's findings that these facts did not entitle the defendant to a new trial or other relief. First, the circuit found that FRE 615 was not violated because, as the trial judge had found:

the Agents' out-of-court conversation did not violate the sequestration order. As the district court concluded, the evidence presented at the remand hearing showed that the conversation did not involve disclosure of any details regarding trial testimony. Rather, Agent McMillan was told in general terms in preparation for his upcoming rebuttal testimony that "Engelmann denied making certain statements during our interview." It was within the district court's discretion to conclude that this conversation did not violate the sequestration order, but rather was permissible contact between a government attorney, the government's case agent, and a government witness in preparation for the witness's trial testimony.
Engelmann, __ F.3d at __ (citing United States v. Stewart, 878 F.2d 256, 259 (8th Cir. 1989) (“ Federal Rule of Evidence 615 ... does not authorize trial courts to prevent executive branch officials from conferring with their witnesses.”)).

But even if this assessment of the evidence from the hearing was in error, the defendant would not be entitled to relief because the error was harmless. The agent who allegedly violated the sequestration order was only a rebuttal witness and the extent of other witness's testimony he was exposed to "'bore no direct relationship to' and was not 'in any way pivotal to' Agent McMillan's own later testimony." Because the defendant did not bother to contest this point, the circuit concluded that "the district court did not abuse its discretion in finding that Agent McMillan's sequestration violations did not prejudice Engelmann." Engelmann, __ F.3d at __ (citing United States v. Collins, 340 F.3d 672, 681 (8th Cir. 2003) (no prejudice when witnesses “offered testimony on two completely different issues that did not overlap and did not involve any of the same facts")

Besides the circuit's approval of the trial court's disposition, the real significance of the case was noted by the circuit in its concluding remarks on the application and enforcement of FRE 615 requirements:

We note, however, that the result of the proceedings on remand illustrate the importance of holding an evidentiary hearing in this case. The hearing revealed that the government did not timely advise Agent McMillan that he was subject to a sequestration order since he was a potential witness. Agent McMillan consequently violated the sequestration order on several occasions by entering the courtroom to view portions of trial testimony before Agent Huber finally advised him that he should not be in the courtroom. Moreover, before the evidentiary hearing, a courtroom observer alleged that he overheard the Agents discussing details of trial testimony. At the hearing, however, this observer only testified that he overheard someone in the Agents' vicinity make a brief reference to Engelmann. The hearing gave Engelmann the opportunity to present evidence concerning the Agents' conduct, which in turn allowed the district court to meaningfully evaluate Engelmann's claims of prejudice. It is important for courts not only to ensure that justice is done, but also to preserve the appearance of justice so that litigants and the public maintain confidence in our legal system. Holding an evidentiary hearing in this case furthered these twin goals.
Engelmann, __ F.3d at __ .

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