In Re United States of America

Fifth Circuit

In Re United States of America

584 F.2d 666, 48 A.L.R. Fed. 480, 1978 U.S. App. LEXIS 8007

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 2, 1978

Docket78-3299

StatusPublished

Cited by21 cases

This text of 584 F.2d 666 (In Re United States of America) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re United States of America, 584 F.2d 666, 48 A.L.R. Fed. 480, 1978 U.S. App. LEXIS 8007 (5th Cir. 1978).

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CHARLES CLARK, Circuit Judge:

Defendants were indicted for conspiracy to violate various federal statutes. During the course of the trial, one of the defendants invoked Federal Rule of Evidence 615 which requires the exclusion of witnesses from the courtroom.¹ The second exception [667]*667to Rule 615 provides that a witness may remain in the courtroom if he is “an officer or employee of a party which is not a natural person designated as its representative by its attorney.” The government designated a federal agent, Doredant, who had been involved in the preparation of the ease, as its representative under this exception. The District Court rejected the government’s designation holding that since Doredant’s testimony, which had been taken in connection with a Motion to Suppress, was of prime importance in the case, he could not remain in the courtroom if he was to be used as a witness. The government has petitioned for a Writ of Mandamus to overturn the District Court’s ruling.

Although Rule 615 does not expressly provide that a government investigative agent can also be a designated representative for the purpose of exception (2), the legislative history of the Rule indicates that the exception was designed to include agents such as Doredant. In the Senate Report accompanying Rule 615, the Senate Committee on the Judiciary expressed concern that a District Judge, in applying Rule 615, might feel compelled to exclude all government agents who were to testify in the trial, including the agent responsible for the preparation of the case. S.Rep.No.93-1277, 93rd Cong., 2nd Sess. (1974), U.S.Code Cong. & Admin.News 1974, pp. 7051, 7073, reprinted in Historical Note, 28 U.S.C.A., Rule 615. The Committee recognized that the participation of this agent in the trial might be of critical importance to the government’s case. The Committee stated that the second exception was designed to allow the agent to remain in the courtroom. This was their language:

“This problem is solved if it is clear that investigative agents are within the group specified under the second exception made in the rule, for ‘an officer or employee of a party which is not a natural person designated as its representative by its attorney.’ It is our understanding that this was the intention of the House committee. It is certainly this committee’s construction of the rule.”

The notes of the Advisory Committee in the proposed Rules of Evidence also reflect a belief that police officers and other agents in charge of the investigation are embraced within the scope of exception (2). Notes of Advisory Committee on proposed rules, reprinted in 28 U.S.C.A., Rule 615. See also 10 Moore’s Federal Practice, § 615.-02 at VI, 228. In light of the text and legislative history of Rule 615, the District Court erred in excluding Doredant from the courtroom.

Defendants complain that Doredant’s presence in the courtroom while others are testifying would unfairly prejudice them. This same concern was the basis for the District Court’s Order. However, the clear mandate of the rule, reinforced by expressed legislative history controls our decision here. We note though, that the District Court is not left powerless. Our decision today in no way affects that Court’s control over the order of the presentation of the evidence under Rule 611(a).² The District Court may, in the exercise of its discretion under this rule, conclude that the government should be required to present Doredant’s substantive testimony at an early stage of the government’s case if he remains the government’s designated representative under Rule 615. However, should it so require, it cannot bar his subsequent testimony either in the government’s case in chief or on rebuttal because he was not sequestered.

PETITION GRANTED.

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CHARLES CLARK, Circuit Judge:

Defendants were indicted for conspiracy to violate various federal statutes. During the course of the trial, one of the defendants invoked Federal Rule of Evidence 615 which requires the exclusion of witnesses from the courtroom.¹ The second exception [667]*667to Rule 615 provides that a witness may remain in the courtroom if he is “an officer or employee of a party which is not a natural person designated as its representative by its attorney.” The government designated a federal agent, Doredant, who had been involved in the preparation of the ease, as its representative under this exception. The District Court rejected the government’s designation holding that since Doredant’s testimony, which had been taken in connection with a Motion to Suppress, was of prime importance in the case, he could not remain in the courtroom if he was to be used as a witness. The government has petitioned for a Writ of Mandamus to overturn the District Court’s ruling.

Although Rule 615 does not expressly provide that a government investigative agent can also be a designated representative for the purpose of exception (2), the legislative history of the Rule indicates that the exception was designed to include agents such as Doredant. In the Senate Report accompanying Rule 615, the Senate Committee on the Judiciary expressed concern that a District Judge, in applying Rule 615, might feel compelled to exclude all government agents who were to testify in the trial, including the agent responsible for the preparation of the case. S.Rep.No.93-1277, 93rd Cong., 2nd Sess. (1974), U.S.Code Cong. & Admin.News 1974, pp. 7051, 7073, reprinted in Historical Note, 28 U.S.C.A., Rule 615. The Committee recognized that the participation of this agent in the trial might be of critical importance to the government’s case. The Committee stated that the second exception was designed to allow the agent to remain in the courtroom. This was their language:

“This problem is solved if it is clear that investigative agents are within the group specified under the second exception made in the rule, for ‘an officer or employee of a party which is not a natural person designated as its representative by its attorney.’ It is our understanding that this was the intention of the House committee. It is certainly this committee’s construction of the rule.”

The notes of the Advisory Committee in the proposed Rules of Evidence also reflect a belief that police officers and other agents in charge of the investigation are embraced within the scope of exception (2). Notes of Advisory Committee on proposed rules, reprinted in 28 U.S.C.A., Rule 615. See also 10 Moore’s Federal Practice, § 615.-02 at VI, 228. In light of the text and legislative history of Rule 615, the District Court erred in excluding Doredant from the courtroom.

Defendants complain that Doredant’s presence in the courtroom while others are testifying would unfairly prejudice them. This same concern was the basis for the District Court’s Order. However, the clear mandate of the rule, reinforced by expressed legislative history controls our decision here. We note though, that the District Court is not left powerless. Our decision today in no way affects that Court’s control over the order of the presentation of the evidence under Rule 611(a).² The District Court may, in the exercise of its discretion under this rule, conclude that the government should be required to present Doredant’s substantive testimony at an early stage of the government’s case if he remains the government’s designated representative under Rule 615. However, should it so require, it cannot bar his subsequent testimony either in the government’s case in chief or on rebuttal because he was not sequestered.

PETITION GRANTED.

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584 F.2d 666, 48 A.L.R. Fed. 480, 1978 U.S. App. LEXIS 8007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-united-states-of-america-ca5-1978.

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