UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
December 28, 1987
UNITED STATES OF AMERICA, PETITIONER,
JOSEPH RICCHE, ET AL., JOSEPH RICCHE, FRANCIS ROMANI AND JOYCE ROMANI, ACTUAL RESPONDENTS, THE HONORABLE PAUL A. SIMMONS, NOMINAL RESPONDENT
Paul SIMMONS, UNITED STATES DISTRICT JUDGE
TO THE HONORABLE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT:
Opinion AND ORDER OF RESPONDENT JUDGE PAUL A. SIGNS IN AID OF THE MANDAMUS JURISDICTION OF THE UNITED STATES COURT OF APPEALS
An introductory background statement delineating the present procedural posture of the above-captioned mandamus action and the issues involved, as well as the present procedural posture of the Suppression of Evidence Hearing, docketed at Criminal No. 87-139, which is currently ongoing in the United States District Court for the Western District of Pennsylvania, in Court Room No. One, and said case is presided over by the undersigned United States District Judge, Paul A. Simmons.
This case involves the allegation of the United States Government that the defendants were involved with a conspiracy to possess with the intent to distribute certain Schedule II narcotic drug controlled substances.
The defendants have moved to suppress certain taped conversations concerning said defendants' involvement with narcotics claiming that said tapes were obtained unlawfully and were thus rendered inadmissible at the trial of the case.
In order to develop the necessary factual background, a suppression hearing was scheduled and preparatory to the taking of testimony the government witnesses with the exception of the case agent were sequestered by an oral order of this court.
The case agent, a Mr. Frye, was permitted to remain in the court room to aid the United States Attorney in the presentation of the government's case, but said agent was orally instructed by this court to refrain from speaking to or communicating with any of the government witnesses about the case.
At the time these oral sequestration orders were made on the record, this court had been informed by the Assistant United States Attorney Manning, that Mr. Frye would not be called as a witness. Attorney Manning, prior to the actual taking of testimony suddenly decided that the Case Agent Frye would be removed from the court room. This court again orally advised Mr. Frye that he still was not to speak with or otherwise communicate with any of the government's witnesses.
Thereupon, the government petitioned your Honorable Court of Appeals for a Writ of Mandamus and requested your Court of Appeals to order this Judge to vacate the oral orders of sequestration directed to Case Agent Frye claiming that Case Agent Frye was exempted from sequestration orders pursuant to Rule 615 of the Federal Rules of Evidence.
Additionally, your Honorable Court of Appeals was requested to stay the suppression hearing. This request was refused by your Honorable Court of Appeals and the suppression hearing went forward in this District Court. After the three of four essential and material government witnesses had testified, Attorney Manning apparently changed his mind and he called Case Agent Frye as a witness. Said Case Agent Frye has been continuously sequestered up to the time of his testimony.
This District Judge has been directed by your Honorable Judges of the United States Court of Appeals for the Third Circuit to frame an order in conformity to your directions, which directions are set out fully in an order entered by your Honorable Court of Appeals, dated December 17, 1987. A copy of said order of your Appeals Court is attached to this Opinion as Exhibit "A".
As hereinabove stated, this matter arises by virtue of a petition of the United States Government for a writ of mandamus which prays that the undersigned Judge, Paul A. Simmons, be directed to vacate an oral sequestration of witness order entered on October 5, 1987, at Criminal No. 87-139, in the United States District Court for the Western District of Pennsylvania, which sequestration of witness order directed Case Agent Frye of the F.B.I. to refrain from talking to or from otherwise contacting government witnesses outside or inside the court room for the duration of the suppression of evidence hearing after it had been represented to this Judge by Assistant United States Attorney, Jeffrey Manning, that Case Agent Frye was not going to be a witness in the said suppression of evidence hearing which was then before this Court, and after the government represented to this Judge that the government had voluntarily chosen to have Case Agent Frye remain outside the court room for the duration of said suppression hearing.
This Judge notes initially that your Honorable Appeals Court wisely did not stay these proceedings at the request of the government, and that after weeks of testimony, this suppression hearing has been almost concluded. Two of the three essential and material government witnesses, (Noble and DeGennaro) have already completely testified at great length and have been excused. The remaining third essential material witness, Case Agent Frye has completed his direct testimony and has completed much of the cross-examination testimony.
The suppression of evidence hearing has gone on very well, and that contrary to the protestations of the government, there has been no need of any kind other than when he is testifying as an essential and material witness for Case Agent Frye to be in the court room during the suppression hearing and there was no expressed and/or discernible need of any kind requested by the government for Frye to have spoken to the other two essential material witnesses, i.e., Noble and DeGennaro, while Case Agent Frye was outside of the court room during said suppression hearing.
It is well to note here again that Assistant United States Attorney Manning had represented to this Judge at the time the oral sequestration of witness order as to Frye was entered, that the Case Agent Frye would not be called as a witness in the suppression of evidence hearing. It is obvious that Attorney Manning changed his mind because Case Agent Frye, an essential material witness was called to the witness stand after the other two essential material witnesses, Noble and DeGennaro had completed their testimony. It can be inferred that Attorney Manning must have intended all along to call a very necessary essential material witness and that Attorney Manning intentionally misled this Judge and the defense attorneys, however, this Judge will give Mr. Manning the benefit of the doubt. As heretofore stated, Case Agent Frye was called to testify after the completion of the testimony of Noble and DeGennaro, the other two essential material witnesses.
In fact, this entire issue raised by the petition in mandamus is now moot because all witnesses, including Case Agent Frye, have been effectively and properly sequestrated as was requested by the defense attorneys as a matter of constitutional right, and the real potential for reversible error has been eliminated.
It is noted that it is the belief of this Judge that the United States Supreme Court has never passed on the issues raised by the Government's Petition for Mandamus in this case. Even though it is admitted by the government that the Case Agent Frye is an "essential" witness to the very criminal activity for which the defendants have been charged; and even though Case Agent Frye's testimony was and is material and essential for directly proving the criminal charges against the defendants in that said Frye was one of the architects of and an active participant in a "sting" operation criminally designed to ensnare the three allegedly predisposed defendants in a criminal conspiracy involving the unlawful possession and distribution of illegal narcotics, such as cocaine; and even though the testimony of Case Agent Frye is necessary for corroborating and supporting the testimony of the other two essential material witnesses, Noble and DeGennaro, who have been admittedly engaged in criminal activities other than the "sting operation" in question; and even though the said Noble and DeGennaro allegedly began the "sting operation" and were the original architects of said "sting operation" and admittedly said two persons engaged in illegal drug activities with the avowed intention of implicating the defendants in the very criminal charges now being considered in the abovementioned suppression of evidence hearing, the government contends that Agent Frye is exempted without qualification from witness sequestration.
Further, said Noble and DeGennaro instigated this "sting operation" without either the knowledge and/or consent of the United States Government; and in fact, these two unindicted co-conspirators Noble and DeGennaro, are testifying in this suppression of evidence hearing under a grant of "use immunity".
Considering that all of the above-recited facts are undisputed and are a matter of record, this Judge is of the opinion based on the above-recited admitted and undisputed facts that the defendants are entitled as a matter of constitutional due process of law to have all three of these essential material witnesses, Frye, Noble and DeGennaro effectively sequestrated in order to properly and effectively protect the defendants from perjury or subornation of perjury. See Exhibit "C", attached hereto which is a copy of my first opinion in aid of your Honorable Court's appellate jurisdiction which held that sequestration of all witnesses can be properly demanded as a constitutional right.
It is very obvious that the Government refuses to concede and/or agree that there is a constitutional right for the defendants to have essential and material witnesses such as Case Agent Frye sequestered by an order of this District Court in order to protect the defendants against perjury or subornation of perjury.
At pages 8 and 9, of the Government's Reply Brief in this case, (see Exhibit "B" attached hereto) the government contends that Rule 615(2) of the Federal Rules of Evidence meant that United States Case Agents were to be exempted without qualification from the sequestration provision of said Rule 615, and irrespective of any special circumstances that might be involved. On page 9, of said Reply Brief, the government naively believes that cross-examination of and contempt sanctions against the offending case agents who have improperly influenced the testimony of others and/or who have "shaded" their testimony improperly will vindicate justice in these cases and prevent the use of perjured testimony.
To this specious argument of the government, the great John Henry Wigmore in speaking of the necessity and legal efficacy of the general principle of the sequestration of all witnesses, responds as follows:
'It seems properly to be demandable as of right, precisely as is cross-examination. In the first place, it is simple and feasible. In the next place, it is so powerful and practical a weapon of defense that no contingency can justify its denial as being a mere formality or an empty sentimentality. In the third place, in the case when it is most useful (namely, a combination to perjure), it is almost the only hope of an innocent opponent. After all is 'said and done, the fact remains (as Sir James Stephen has declared, out of a lengthy experience as a criminal judge) that successful perjury is always a possible feature of human justice. No rule, therefore, should ever be laid down which will by possibility deprive an opponent of the chance of exposing perjury. Finally, it cannot be left with the judge to say whether the resort to this expedient is needed; not even the claimant himself can know that it will do him service; he can merely hope for its success. He must be allowed to have the benefit of the chance, if he thinks that there is such a chance. To require him to show some probable need to the judge, and to leave to the latter the estimation of the need, is to misunderstand the whole virtue of the expedient, and to deny it in perhaps that very situation of forlorn hope and desperate extreme when it is most valuable and most demandable." underlining supplied. (See Exhibit "C" attached to this opinion)
It is clear to this Judge that an argument of constitutional dimensions has been joined.)
Although this Judge believes this entire constitutional matter is temporarily moot since Case Agent Frye has been effectively sequestered in this suppression of evidence proceeding and the other two essential and material witnesses, namely, Noble and DeGennaro, have completed their testimony, this Judge will nevertheless comply with the above-referenced order of your Honorable Court of Appeals. (See Exhibit "A" attached.)
This District Court Judge should not have his inherent judicial discretion controlled or circumscribed by your Honorable Court of Appeals as to any future action concerning sequestration of witnesses that this Judge might be required to make in another proceeding in this case (such as the time of the actual trial, if any) and especially where the facts and circumstances then prevailing in the future may be different from the facts now prevailing and where as in this case the respective government and defense attorneys have not had the opportunity to brief and argue the legal issues that may be raised as to future witness sequestration orders unless your Honorable Court of Appeals is prepared to hold at this time that all case agents in every case are entirely exempted from any constitutionally protected right of defendants to require them to be sequestered, irrespective of the special factual circumstances then prevailing.
Because the government is attempting wrongfully to have your Honorable Court of Appeals control and circumscribe my inherent judicial discretion in future matters involving the sequestration of government case agents in this case and in other future cases as a matter of law, this Judge feels compelled to answer the dangerous and impertinent factual and legal contentions of the government as set forth on pages 6, 7, 8 and 9, of its Reply Brief, wherein the said government contentions are stated in full in Exhibit "B", attached hereto.
It just is not true that this Judge effectively removed the case agent from the case as stated in the government's brief. The record will clearly show that the government probably for tactical reasons contrived a false scenario to make it appear that this Judge in effect had taken the case agent out of the case, when in truth the government voluntarily removed the case agent from the case probably to protect certain tactical options. (See pages 26, 27, 28, 29, 3O, and 31 of the record and attached hereto as Exhibit "E".)
It is readily apparent that the Government is attempting to mislead your Honorable Court into ruling that all case agents, (including those agents who are essential material witnesses to the crime charged and who are involved in very special circumstances as is the case at bar) should be exempted from the usual rules involving the sequestration of witnesses. There is no doubt and contrary to the government's brief, that the circumstances of this are very different and special. In fact, in over 38 years of legal experience, (7 years as a law professor who has taught evidence; 17 years as a very active trial lawyer and almost 15 years as a trial judge) this Judge has never experience any case even nearly like the one at bar.
The record will show, (contrary to the false and misleading representations of the government's brief, (See Exhibit "B" attached that this case is replete with special circumstances involving the case agent who was one of the architects of a "sting operation" and who is an essential material witness to the alleged crime itself, and these special circumstances usually are never present in the ordinary crime case.
This case is not at all the usual one as is the case where a F.B.I. case agent is called to the scene to investigate a completed criminal activity or even a ongoing criminal activity.
It is undisputed that in this case, Case Agent Frye and Assistant United States Attorney Bradley Barbin were called in as active participants in a ongoing "sting operation" which "sting operation" was at most relevant times being directly supervised by Bradley Barbin, an Assistant United States Attorney for the Western District of Pennsylvania, and where Case Agent Frye was a central actor in creating the very criminal scenario or "sting" that "allegedly" enticed the alleged three "predisposed" defendants into the criminal activity charged.
During the course of the "sting operation" the Case Agent Frye, was in continuous contact with Mr. Barbin and Mr. Barbin advised the case agent on how to proceed. As a matter of fact, Assistant United States Attorney Bradley Barbin was the de facto case agent who has been at the counsel table all throughout this suppression hearing along with Jeffrey Manning, the Chief Assistant United States Attorney assigned to try this case. Mr. Barbin has actively participated in this suppression hearing at all relevant times making Mr. Frye's presence in the court room unnecessary.
Additionally, in the special circumstances of this case, there was and is absolutely no legitimate reason for the Case Agent Frye to ever have to contact and/or speak with essential material witness, Noble and DeGennaro in this suppression hearing despite the government contentions to the contrary for the following reasons:
1. There is nothing to prevent Assistant United States Attorney Bradley Barbin, who has been in the court room at every stage of the proceeding, from speaking to the essential material witnesses at any time during the course of the suppression hearing in order to gain additional information and/or to clarify any statements or testimony of the various witnesses. As heretofore stated, Mr. Barbin has been the de facto case agent in this case practically from the beginning of the creation of this "sting operation" and Mr. Barbin is fully knowledgable of this case in that the F.B.I. Case Agent Frye was at all relevant times during the formulation and completion of this "sting operation" in constant contact with Attorney Barbin and was continuously consulting with and taking advice from Mr. Barbin.
2. Because Mr. Barbin is an officer of this court, and subject to the direct control and sanction of this court, there is and was substantially a less likelihood that Mr. Barbin would be engaged in a conspiracy to suborn perjury than is the situation involving an F.B.I. case agent. (In one instance in my court room a F.B.I. agent admittedly disregarded my direct order forbidding him to speak to witnesses. It is very difficult to control the actions of F.B.I. agents who are not directly under the court's supervision. It is also, in the absence of an admission almost impossible to detect and prove the violation of a sequestration order. See Wigmore's statement in this Judge's first opinion in aid of appellate jurisdiction attached hereto as Exhibit "C".)
3. Assistant United States Attorneys, Mr. Barbin and/or Mr. Manning are and were privy to all interviews, statements, debriefing, tape recordings and all other pre-hearing contacts with the essential material witnesses in this case, Case Agent Frye, Mr. Noble and Mr. DeGennaro.
4. Mr. Barbin and/or Mr. Manning can transfer information or request for information received from the case agent to the sequestered witnesses for any lawful comment and/or information on any question that is relevant to prosecuting the case. There is no need of any kind for a sequestered case agent who is also an essential material witness to in any way discuss the operative facts of the alleged crime with another essential material witness, especially in this case, where the Case Agent Frye, Mr. Noble and Mr. DeGennaro all testified about the same material transactions that gave rise to the very crime charged.
5. In this very case the two very cooperative and willing essential material witnesses, Mr. Noble and Mr. DeGennaro were given use immunity which made it very easy for said witnesses to be fully cooperative, truthful and forthcoming with Mr. Barbin and/or Mr. Manning.
6. If either of the two essential material witnesses, Mr. Noble and/or Mr. DeGennaro balked at giving testimony ad/or became hostile, the government could ask this court to employ the sanction of contempt to force their testimony as to any such immunized witness. The government could cross-examine and impeach such a hostile witness; the government could introduce contrary evidence such as Case Agent Frye's testimony to rebut a hostile witness.
(It is this court's belief that Mr. Manning wished to hold these "trump cards" in reserve in case of need and therefore he did not want the Case Agent Frye (also an essential material witness) to testify before the other two essential material witnesses just in case said Noble or DeGennaro became hostile or conveniently uncooperative or forgetful. Consequently, Mr. Manning misled this court for strategic reasons by at first saying to this Judge that the Case Agent Frye would not be called as a witness and so he should remain in the court room. It also is believed that Mr. Manning told this court that he was not going to call Case Agent Frye as a witness because he was afraid that this Judge would order Mr. Frye to testify first so that Mr. Frye would be prevented from first hearing the testimony of the other two essential material witnesses, Mr. Noble and Mr. DeGennaro, and thus, Mr. Frye would be unable to effectively circumvent the protection of the sequestration order by tailoring, fitting, and/or shading his (Mr. Frye's testimony to suit the testimony of the other two essential material witnesses, Noble and DeGennaro.)
In the actual suppression of evidence hearing, despite Mr. Manning's assertion that he would not call Case Agent Frye in the case, Mr. Manning changed his mind and did in fact call said Case Agent Frye after the two essential material witnesses (Noble and DeGennaro) had testified and it is believed that Mr. Manning change his mind for the reasons above-mentioned and to bolster and corroborate the testimony of the two essential material witnesses, Noble and DeGennaro, who were admitted felons.
In any event this Judge is satisfied beyond a reasonable doubt that there was and is no legitimate reason and/or necessity for Case Agent Frye (who also is an essential and material witness as to the commission of the crime charged) to speak to or confer with the two essential material witnesses, Noble and DeGennaro, after the beginning of the suppression hearing and before he, (Case Agent Frye) testified at said hearing.
On record page 20, line 13, of the suppression hearing proceedings on this matter of October 5, 1987, we find the following:
"THE COURT: Is Frye an essential witness, Mr. Manning?
MR. MANNING: I believe he is Your Honor, but I don't intend to call him.
In summary it was obvious from the testimony that this Judge heard in the two detention hearing held prior to the suppression hearing that Case Agent Frye's testimony as to certain operative acts involved in the commission of the alleged crime itself is, was and will be very critical to the outcome of this case. Mr. Schmukler pointed out the following on page 12, beginning at line 6, of the October 5, 1987, transcript:
'MR. SCHMUKLER: There's certainly going to be evidence that the F.B.I. was on hand, supervised and assisted in the making of these recordings, but that doesn't preclude the possibility that whatever criminal purpose DeGennaro may have had had come to an end prior to that time. If there's still an operating criminal purpose--"
As was prophesied by Mr. Schmukler, Agent Frye's suppression hearing testimony in fact concerned his active participation in creating and carrying out the "sting operation" against the defendants and his testimony as heretofore noted is essential and material and is vitally necessary for supplementing and corroborating the testimony of lay participants, such as Mr. Noble and Mr. DeGennaro in the "sting operation", who are admitted criminals testifying under grants of immunity from the Federal Government.
This court is convinced in the light of experience, critical analysis, and after balancing the need for case agents in prosecuting crimes against the government and against the people, with the need of criminal defendants to have constitutional protection against perjured testimony, the balance weighs heavily for protecting the criminal defendants against perjury, and the constitutional right of a defendant to a fair trial. Certainly, as is the case at bar, case agents should not be automatically exempted from sequestration in every criminal case and irrespective of the circumstance of a case since the need for efficient prosecution of criminals should not triumph over justice. As will be pointed out in the next part of this opinion, courts who employ some imagination can properly protect the important functions that a case agent can play in the prosecution of criminal cases, and at the same time a defendant can be protected from perjured testimony by completely sequestrating all of the witnesses.
Contrary to the contentions of the government, (See Exhibit "B" attached) case agents who are essential material witnesses as to the crime charged can be properly sequestrated so as to protect defendants from the possibility of perjury and/or the suborning of perjury without causing the case agents to loose any of their effectiveness in assisting the government counsel in the prosecution of crime. A court can properly balance the needs of the government to have a knowledgable case agent available to aid the government counsel in a complex case which may involve some specialized subject matter, with ultimate and more important need to protect a defendant from perjured testimony and the subornation of perjured testimony.
Now, this court will examine and make reference in the record from the transcript of the October 5, 1987, suppression hearing, to delineate what in fact this Judge did in his attempt to reconcile the need to insure the constitutional right of the defendants to have the government witnesses sequestered, with the right of the prosecuting attorney to have the aid of a case agent who is also an "essential material witness", during the suppression of evidence hearing. [See appended hereto as Exhibit "C", a copy of my first opinion submitted to Your Honorable Court in aid of your jurisdiction in this case where the great Wigmore writes that sequestration of witnesses is "demandable as of right" and that there is no substitute and/or better method to protect the defendants against perjury than by the method of sequestrating the government's witnesses.] (That there can be a safe and proper substitute for sequestration of witnesses for the protection of defendants against perjury is narrow-mindedly suggested by the government at page 9, of its Reply Brief.)
At page 14, line 22, of the October 5, 1987, suppression record, it is noted that Attorney Glass brought up the matter of sequestering the witnesses.
At page 16, line 7, Mr. Schmukler did not object to the Case Agent Frye remaining in the court room as long as Mr. Frye was put on the witness stand "first". Also See Mr. Schmukler's statement, page 20, line 5 to 8, inclusive.
It is very clear from reading transcript record pages 16, 17, 18, 19 and 20, of the suppression of evidence hearing, (which are attached hereto as Exhibit "D",) that this Judge felt that Mr. Frye could remain in the court as long as he was prohibited from speaking to other government witnesses before or after his testimony, an additionally, Mr. Schmukler felt Case Agent Frye should testify after Mr. DeMento, a Boston attorney, (See record page 20, lines 9 through 12, which would mean that Frye's testimony would be before the other two essential material witnesses, namely, Mr. Noble and Mr. DeGennaro. (The three important and essential material witnesses were Case Agent Frye, Noble and DeGennaro.)
It is obvious and clear and contrary to the inferences drawn in the government's brief, that there was a concern by defense attorney Schmukler and this Judge that the Case Agent Frye should testify before Noble and DeGennaro took the witness stand so that Agent Frye could not shade his testimony to fit that of Noble and DeGennaro.
It is very important to note that immediately after Schmukler stated that Case Agent Frye should testify before Noble and DeGennaro presumably so Agent Frye could not shade his testimony (which of course was of the utmost concern to this Judge), this Judge asked Mr. Manning whether Case Agent Frye was an essential witness (record page 20, line 13) and Mr. Manning responded, "I believe he is Your Honor, but I don't intend to call him." At this point, this Judge took Mr. Manning at his word, and it is clear that this court at that time would not be concerned whether Case Agent Frye would "shade his testimony" if in fact, Frye was not going to testify at all during the suppression hearing.
Had Mr. Manning told this Judge that Case Agent Frye was in fact going to testify, this Judge would have undoubtedly compelled Case Agent Frye to testify prior to Noble and DeGennaro so he, Frye, would not be tempted to shade his testimony and so that he could remain in the court room to aid the government attorneys subject also to the condition that he, Frye, would not discuss the case with Mr. Noble and DeGennaro.
Contrary to the assertions in the Government's Reply Brief, this Judge did not bar Case Agent Frye from the court room. The only requirement exacted of Case Agent Frye by this Judge was that he (Frye) could not speak to the witnesses, Noble and DeGennaro. Case Agent Frye was clearly allowed in the court room by this Judge to assist Mr. Manning and Mr. Barbin at all times. It was Mr. Manning's decision to take the Case Agent Frye out of this court room and it was not the decision of this court to do so. (See pages 24 through 31, of the transcript which are attached to this opinion as Exhibit "E". )
As the suppression hearing was unfolded and progressed and contrary to Mr. Manning's promise that Mr. Frye would not be called as a witness, he, Mr. Frye, has in fact been called as a essential material witnesses after essential material witnesses Noble and DeGennaro had already testified. It was difficult from the beginning for this Judge to believe that Mr. Manning would intentionally fail to call an "essential witness" in a case of this magnitude, and Mr. Manning certainly acted as this Judge believed he would act.
As this Judge accurately predicted (See Exhibits "D" and "E" attached) and the record confirms that there was no need at all for Case Agent Frye to talk to the other two essential material witnesses at any time after the suppression hearing had begun. Further the record shows the government has presented its case smoothly and without difficulty. The record indicates that there has been absolutely no articulated prejudice or otherwise to the government's case due to the voluntary absence from the court room of Case Agent Frye and in addition the record will indicate that this Judge has given all of the defendants their full constitutional protection against perjury that the full and complete sequestration of witnesses allows. As noted in my first opinion (Exhibit "C", attached hereto,) sequestration of witnesses is a constitutional right and there can be no substitute for it. Consequently it is believed the action of this Judge in sequestrating Case Agent Frye has obviated and prevented a potential appeal by the defendants to the United States Appellate Courts including the Supreme Court of the United States.
This Judge is convinced that the clash of Rule 615(2) of the Federal Rules of Evidence with the constitutional right of a defendant to sequestrate a case agent in a proper case, can be resolved by a judicious application of the following rules.
It is the opinion of this Judge that the following rules should apply to determine whether and how a case agent should be sequestered as a witness if he is an essential material witness as Frye is in this case in order to preserve the full constitutional right of the defendants to demand the effective sequestration of all witnesses, including case agents in a proper case, to protect the defendants against perjury.
1. If the case agent is an essential witness and it is necessary for him to testify, he should testify first before other essential material witnesses are permitted to testify and said case agent should be forbidden to talk to the other essential material witnesses, and the case agent should be allowed to remain in the court room throughout the proceeding in order to help the government attorney.
2. If the case agent is an essential material witness and for tactical reasons he wishes to testify after other essential material witnesses have testified, he should be removed from the court room to prevent shading his testimony and he should not be permitted to talk to the other essential material witnesses until after the trial has ended.
3. If the case agent is not an essential material witness and is testifying only about background matters which do not tend to prove the ultimate guilt or innocense of the defendant, he should be allowed in the court room at all times but he should not be allowed to discuss the testimony given in court with other essential material witnesses since any such necessary discussion may be carried out by the government attorney who is trying the case.
In almost fifteen years as a trial Judge, I never have been required to retry a case for trial error or for any reason. I sincerely hope that this case will not have to be tried more than once.
AND NOW, this day of December, 1987, it appearing that this Judge has been directed to enter this Order without hearing further argument from the attorneys involved, and it appearing to the court that F.B.I. Agent Dale Frye has been heretofore a sequestered witness in this case and Agent Frye is admittedly an essential material witness as to the underlying allegations of crime in the suppression hearing now ongoing before the undersigned Judge, and
It further appearing that the other two essential material sequestered witnesses, Joseph DeGennaro and James Noble, have already testified in great detail and that all of the attorneys have excused them from further testimony, and
It further appearing that F.B.I. Agent, Dale Frye has completed all of his testimony on direct examination and some of his testimony on cross-examination and Agent Frye is scheduled to complete his testimony on February 7, 1988, or as soon thereafter as it is possible, and
It appearing that the court will have heard all of the government's essential material witnesses at the conclusion of Agent Frye's testimony (although the government still has two additional witnesses to call. It has been represented to this court that these witnesses are not central, essential or critical in the credibility sense.)
NOW THEREFORE, IT IS THE ORDER OF THIS COURT, this
day of December, 1987, that F.B.I. Agent Frye shall be permitted to contact, speak to and/or interview any and all government witnesses up to the time of the beginning of the jury or bench trial of this case, if in fact there is a trial ultimately scheduled in this matter when Agent Frye has finally completed his suppression hearing testimony. Until F.B.I. Agent Frye has completed said suppression hearing testimony, he shall refrain from speaking to any government witness and he shall refrain from reading the transcript of the testimony of any government witness.
FURTHER, IT IS ORDERED that the issues of whether F.B.I. Agent Frye will be precluded from sitting in the court room during the complete trial, if any, and only if there is a trial of this matter, and/or whether F.B.I. Agent Frye will be precluded from talking to essential material government witnesses, such as Mr. DeMento, Mr. Cassels, Mr. Noble and Mr. DeGennaro after the trial (if any) has begun, but during said trial, will be decided by this court, if and when a motion for sequestration of said witnesses (including F.B.I. Agent Frye) has been filed with this court and at a time when the government and defense attorneys will have been given ample opportunity to address sequestration issues with briefs and oral argument. (To date the issue of sequestration of witnesses at a trial of this case has not been properly raised by motion, and none of the attorneys have been given the opportunity to argue their respective positions on this issue of sequestration of witnesses during a trial.)
(related to D.C. Crim. No. 87-139 - W.D. of Pa.)
PRESENT: SEITZ, HUTCHINSON and ROSENN, Circuit Judges
In aid of our mandamus jurisdiction In the above-captioned matter, it is
Ordered that the Honorable Paul A. Simmons enter a written order specifying the precise nature of the restrictions on F.B.I. agent Daniel Frye including: 1) whether Frye is precluded from communicating with the witnesses in the above-captioned criminal case even if Frye is not present in the courtroom during the proceedings; 2) the proceedings during which the preclusion applies; and 3) whether the preclusion applies during the period in which no proceedings are being conducted.
The order should be filed with the Clerk's office on or before December 28, 1987.
DATED: DEC 17 1987
REASONS WHY THE WRIT SHOULD ISSUE
Judge Simmons' order, as originally entered, and as viewed in light of subsequent proceedings, clearly exceeds any authority he might have to control the proceedings in his courtroom, and/or to sequester witnesses pursuant to Rule 615, Federal Rules of Evidence. As the government understood the lower court's order of October 5, 1987, Agent Frye could continue to participate as the case-agent in this matter, and continue to communicate with witnesses as long as he was not present in the courtroom during the course of the pretrial hearings and trial in this matter. For the reasons stated in our original petition, this order seriously hinders the government in its preparation and presentation of its case because it deprives the government of the assistance of its chief investigating officer both in and out of the courtroom. Moreover, it now appears that Judge Simmons intends to preclude Agent Frye from communicating with witnesses even if he is not in the courtroom. Thus, the lower court, in effect, has removed the case agent from the case.
More importantly, when the order is viewed in light of the surrounding circumstances, it appears that the lower court's order in this case was not entered out of a concern that Agent Frye, as a witness in this matter, would, if permitted to remain in the courtroom, shade his testimony to that of the other witnesses. Instead, it is clear from the record in the court below that the lower court's concern is that Agent Frye, in his role as case-agent, will have an influence on the testimony of the witnesses, who he comes into contact with; either purposefully or subconsciously. This concern, however, is equally applicable no matter, who the case agent is. Since there are no special circumstances leading to the entry of the order in this case, other than Agent Frye's role as case agent, we can anticipate similar orders in criminal cases, which come before Judge Simmons in the future.
Thus while respondents attempt to portray this petition as an attempt on the part of the government to have this Court interfere with the discretion of the lower court to control the conduct of proceedings before it, the matter ate issue in this case is much more egregious in nature. Case Agents are a very important part of the prosecutorial team. As the individuals responsible for conducting the investigation from the outset they are in reality the individuals, who have the most knowledge concerning the case. As such their importance to the prosecution of the case does not end once an indictment is returned. Instead, their assistance, both in and out of the courtroom, is necessary to the expeditious and efficacious preparation and presentation of a criminal case.
Judge Simmons' order, however, which has the effect of precluding the case agent from coming into contact with witnesses once an indictment has been handed down, limits the ability of the case agent to assist in the preparation and prosecution of the case. As such it infringes upon the prerogative of the executive to pursue the prosecution of criminal cases in the most efficient and economical matter. Moreover, it is inconsistent with the rules, which govern the conduct of proceedings in Federal Courts.
While Rule 615, Federal Rules of Evidence, which governs the sequestration of witnesses, mandates the exclusion of witnesses upon the request of a party, it also prohibits exclusion of a "an officer or employee of a party which is not a natural person designated as its representative by its attorney. . . Rule 615(2), Federal Rules of Evidence, As discussed in our original petition at some length at pages 9-11, it is clear from the history of the Rule, that the promulgators of the Rule were aware of the important function that case agents play in the prosecution of criminal cases, and meant for them to be exempted from the sequestration provisions of the rule. See Notes of the Committee on the Judiciary, Senate Report No. 93-1277 wherein it is stated:
The investigative agent's presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. . .
Recognizing the importance of the case agents role in the prosecution and presentation of a criminal case, the promulgators of Rule 615 deprived the lower court of it's discretion to exclude case agents from the courtroom; the most basic of protective measures, which can be taken to ensure that witnesses do not shade their testimony. Given that fact it would be anomalous to hold that the lower court nevertheless had authority to essentially preclude a case agent from participating in the preparation and presentation of the case once an indictment has been handed down as a means of ensuring that he/she does not influence the testimony of a witness even subconsiously.
While the lower court's concern that Agent Frye, or any other case agent would -- consciously or otherwise -- telegraph to other government witnesses how they should tell their stories, may be a legitimate one in the abstract, there are far less drastic ways to protect against such a possibility. Certainly defendants are entitled to cross-examine a government case agent in an effort to discover whether his testimony has been influenced in any way by what preceding witnesses have said. United States v. Butera, 677 F.2d 1376, 1381 (11th Cir. 1982). Similarly, the defense is entitled to question any other government witnesses to determine whether their testimony has been influenced in any way by the prosecution team. See United States v. Lloyd, 743 F.2d 1555, 1564 (11th Cir. 1984). Furthermore a trial court may impose a variety of sanctions and remedies if the case agent -- or any other witness-violates any court order relating to sequestration. See e.g Pickel v. United States, 746 F.2d 176, 182 (3d Cir. 1984) (a district court may hold an offending witness in contempt, comment to the jury how such violation should affect its view of the evidence, and exclude testimony of offending witnesses).
Where, as here, a lower court, in entering an order, has exceeded its authority, thereby nullifying the intent of
Opinion IN AID OF APPELLATE JURISDICTION
This case involves the allegation of the United States Government that the defendants were involved with a conspiracy to possess with the intent to distribute certain Schedule II narcotic drug controlled substances.
The defendants have moved to suppress certain taped conversations concerning said defendants' involvement with narcotics claiming that said tapes were obtained unlawfully and were thus rendered inadmissible at the trial of the case.
In order to develop the necessary factual background, a hearing was scheduled and preparatory to the taking of testimony the government witnesses with the exception of the case agent were sequestered.
The case agent, a Mr. Frye, was permitted to remain in the Court Room to aid the United States Attorney in the presentation of the Government's case, but said agent was instructed by the Court to refrain from speaking to or communicating with any of the Government witnesses about the case. The Government has objected.
It seemed very clear to this Court that the rule permitting sequestration of witnesses would be an empty right and would not adequately protect the defendants from potential perjury, if the case agent was permitted to first hear the testimony of the Government witnesses and then if said agent was also permitted to approach and speak to the Government witness who were outside the Court Room about what was said by Government witnesses in the Court Room. So, if the case agent is not forbidden to speak to potential Government witnesses under the above recited circumstances, the protection afforded by sequestrating witnesses will be rendered nugatory.
The great John Henry Wigmore in speaking of the necessity and legal efficacy of the general principle of the sequestration of witnesses said,
"It seems properly to be demandable as of right, precisely as is cross-examination. In the first place, it is simple and feasible. In the next place, it is so powerful and practical a weapon of defense that no contingency can justify its denial as being a mere formality or an empty sentimentality. In the third place, in the case when it is most useful (namely, a combination to perjure), it is almost the only hope of an innocent opponent. After all is said and done, the fact remains (as Sir James Stephen has declared, out of a lengthy experience as a criminal judge) that successful perjury is always a possible feature of human justice. No rule, therefore, should ever be laid down which will by possibility deprive an opponent of the chance of exposing perjury. Finally, it cannot be left with the judge to say whether the resort to this expedient is needed; not even the claimant himself can know that it will do him service; he can merely hope for its success. He must be allowed to have the benefit of the chance, if he thinks that there is such a chance. To require him to show some probable need to the judge, and to leave to the latter the estimation of the need, is to misunderstand the whole virtue of the expedient, and to deny it in perhaps that very situation of forlorn hope and desperate extreme when it is most valuable and most demandable:
SNEED, J., in Rainwater v. Elmore, 1 Heisk, 363, 365 (Tenn. 1870): The lawyer who has practised long in jury cases cannot have failed to observe that the practice of permitting witnesses to hear each other's testimony has often resulted in a great and gross abuse of public justice. Human nature is frail, and that frailty is as often illustrated in the witness box as elsewhere. The witness in an excited litigation often becomes the mere partisan of the litigant whose cause he represents. . . . [He often] lapses into the conviction that the scene before him is a mere tilt and tourney, in which he enters to overturn and countervail the testimony of the adverse party. He has heard the evidence of his own party in regard to the transaction, and perhaps he remembers it somewhat differently; but a conflict would be fatal, and he often reasons his flexible conscience into the opinion 'that his own memory is at fault and the statement of his confederate is the true version; and he therefore corroborates it. He has heard the testimony of the adverse party, and his ingenuity is taxed at once to strike it where it is vulnerable and destroy it; a brief and whispered conference behind the bar, and he finds one of his own party who saw the transaction as he saw it; and the thing is done. Of what value is cross-examination -- that most efficacious test of truth -- under such circumstances? The witness who is disposed to ignore the truth may now defy the onset of the most skilful cross-examination; and even he who would fain lean towards an honest story finds himself confounded, and often yields his own conviction, to adopt the strong, emphatic statements of another. The object of the trial is to elicit the truth; but under such circumstances and in an excited controversy the truth is as often smothered as disclosed. . . . This doctrine, that upon the mere motion of suggestion of a party it does not seem a matter of right [to order to witnesses' separation], appears to be traceable to the darker ages of English jurisprudence. . . . We have no hesitation in declaring that such a doctrine cannot stand the test of principle, and that it is utterly incompatible with the perfect enjoyment of the right of a fair trial guaranteed by the laws to the citizens of this country".
See Volume VI, Wigmore on Evidence, Section 1839, Chadbourn Revision 1976.
Clearly, there is no compelling necessity articulated by the Government in this case for permitting Agent Frye to speak to all future Government witnesses after he has heard all of the prior Government witness testimony in the Court Room.
As a Judge, I have witnessed trials wherein Government Agents admittedly have violated witness sequestration orders by discussing in court testimony in an ongoing case with future Government witnesses. I don't believe that Agent Frye should be subjected to such temptation which might cause possible serious injustice to the defendants in this case.
person designated as Its representative by Its attorney.
THE COURT: What we've done In the past is, there's a discussion over here, but I think what we used to do or have done is to caution the case agent that he's not to In any way talk to any of the other witnesses. I think that's salutary. What do you think?
MR. SCHMUKLER: Well most, when I say It's never done my any good to object, It's always been In situations where the government puts the case agent on first, then once he has exhausted his testimonial value, there's little room for a complaining that the other party has been prejudiced by his remaining In the courtroom.
THE COURT: He could, though, go out In the hall and say, I said so, and so, and so, and so, make your testimony jive with mine. He could say that. As a matter of fact, that's the whole idea of sequestration, is to prevent that very thing happening.
MR. GLASS: Ne couldn't tell those people to make It jive with the testimony In the courtroom because he hasn't heard It.
MR. SCHMUKLER: He can't make his own testimony jIve once he's given it.
THE COURT: He could accomplish Indirectly the same thing by telling the people outside what he said. So that's why sequestration, WIgmore points out, is such a great agent of the truth. The idea is not for the first man to testimony correctly, It's the Idea of succeeding witnesses to corroborate what the first man said.
MR. MANNING: Your Honor, Mr. Frye --
THE COURT: Because theoretically, the first man, especially the case agent, knows the elements of the crime and he knows what has to be proved. But I think what we do, or what I have done in these cases is to warn him not to In any way to speak to or discuss the case with anybody else. I think that's the proper way of doing It.
MR. MANNING: Your Honor, Mr. Frye is an experienced agent of the Federal Bureau of Investigation; he understands Your Honor's rulings and the Court order, and he is not about to violate any sequestration.
THE COURT: It's good, though, just to caution him on the record, so that nobody -- it has a, sort of a restraining effect If he's told on the record, now, don't you do this. I think that's one way of at least ensuring, to some extent, that the right of sequestration is observed. You see, sequestration, cross examination and confrontation are the groat engines of truth, and if you allow the case agent to talk about the case to the other people, with the other people, I mean, you're effectively denying one of the great protections that a defendant has.
MR. SCHMUKLER: Can I Inquire whether the government plans to call Agent Frye after Mr. DeMento's testimony.
MR. MANNING: No.
MR. SCHMUKLER: If that's the case, I don't see any problems.
THE COURT: You mean immediately after?
MR. SCHMUKLER: Yeah.
MR. MANNING: I don't believe so.
THE COURT: You're not going to call him?
MR. MANNING: I haven't made that decision yet. I have to see where I am.
THE COURT: Well, Mr. Schmukler, It seems that most of the cases have allowed this. I mean, the notes of the Committee on the Judiciary. Of course, this goes even deeper, though, because If you would hold a sequestration, as is the case with cross examination and confrontation, there's a constitutional common law of the constitutional right, it would be very Important to at least warn him.
For example, this is what I say. Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial, although the agent is or may be his witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in, he always has the client with him to consult during the trial. The investigative agent's presence may be extremely important to government counsel, especially when a case is complex or involves some specialized subject matter. The agent, too -- t-o-o -- having lived with the case for a long time, may be able to assist in meeting trial surprises, whore the best prepared counsel would otherwise have difficulty. Yet, It would not seem the government could often meet the burden under Rule 615 of showing that the agent's presence is essential.
Furthermore, it would be dangerous to use the agent as a witness as early, as early in the case as possible, so that he might then help counsel as a non-witness, since the agent's testimony could be needed In rebuttal. Using another non-witness agent from the same investigative agency would not generally meet government counsel's needs.
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, quote, an officer, employee of a party which is not a natural person, designated as it's representative by his attorney. That's the United States Government; that's the, the party which is not a natural person.
It is our understanding that this was the intention of the House Committee. It is certainly this committees' construction of the rule. That's the notes of the Committee on the Judiciary Report. That's what they thought. They, the draftspersons of this rule, felt it was in contemplation of the Congress at the time It was passed, but, of course, we all know that Congress cannot properly pass a law that's violative of people's constitutional rights, you know. Goes without saying.
MR. SCHMUKLER: Whether he's essential to the presentation of the government's cause is, I think, a matter for the Court to decide under It's Inherent supervisory powers ' of the mode of witnesses.
I don't have any objection to his remaining throughout all the proceedings if, If he's giving his testimony after Attorney DeMento, whom we have all agreed ought to be accorded some consideration.
THE COURT: Is Frye an essential witness, Mr. Manning?
MR. MANNING: I believe he is, Your Honor, but I don't, intend to call him. Second, I don't Intend for Mr. Schmukler to put me In a box to have me do It.
THE COURT: We're going to caution him, It's a direct order of this Court he shall not in any way discuss this case with any witness from now on In. Once he takes the stand as a ' witness he cannot communicate what he has said or in any way query or talk with a witness until the case has ended.
MR. SCHMUKLER: Once he takes the stand as a witness, he may than become the last witness in the case. That's before he talked to everybody.
MR. MANNING: Your Honor, I conferred with Mr. Johnson, Your Honor. I would point out for the record that the rule refers to the Court ordering witnesses excluded so that they cannot hear the testimony of other witnesses. I understand, as the Court has gone at length to explain It's ruling, but I would point out that what the Court has done here to put the government in a position where in order to maintain It's case agent that It must bar it's case agent from the proceeding.
THE COURT: No, no, that's not true. All I'm trying to tell you is this, in plain English, the case agent may remain In the room, but the case agent can't speak with the witnesses. He doesn't have to be barred from the room.
MR. MANNING: Your Honor, the whole function of --
THE COURT: There's no need -- lot me say this to you. Let us talk about It In a rational way. I'm sure the case agent isn't going to tell the witnesses what to say, so there's no need for the case agent to talk to the witnesses. I can't imagine any need, any need whatsoever for this case agent to Interview or talk to witnesses.
MR. MANNING: With all due respect --
THE COURT: There's absolutely no discernable reason that I can Imagine where the -- and you can get other people to call the witnesses and say, please come down to the Court House on such and such a date; we're going to have a hearing. I I don't understand why this case agent has to speak to witnesses.
MR. MANNING: With all due respect to the Court --
THE COURT: There's no reason.
MR. MANNING: I will be glad to explain that.
THE COURT: I'd appreciate it.
MR. MANNING: Number I, it is customary for the case agent to sit In on pretrial, I'm talking about, not at this stage, but later on, preparation for trial, on IntervIews with witnesses to, in fact, on occasions show them statements that they may have made In the past; there's other things.
But more Importantly, Agent Frye is conducting an Investigation that relates to matters other than just this case which may well involve many or more of the same witnesses. There are other witnesses who need to be contacted. For example, Agent Frye may have the only knowledge of certain witnesses' whereabouts, he may have the only knowledge of certain documents and things which the government intends to use.
In any event, I am saying it is necessary, It is absolutely necessary for the government to maintain Agent Frye as a case agent, and to maintain him as a case agent he must be able to talk to witnesses. The Court is excluding him. This is --
THE COURT: Wait a minute, Mr. Manning.
MR. MANNING: May I finish, Your Honor, please.
THE COURT: Just let me stop, to be helpful, Just to be helpful, please. I'm not trying to harm you or anything. He can do all the things you're talking about without talking to the witnesses. He doesn't have to speak to any witnesses to do anything you are mentioning. We're not barring this gentleman as case agent. All we're saying, he just can't speak to witnesses. There's no problem there. He can -- as long as he doesn't speak to these witnesses, there's no problem, and he has other people he can talk to; he can continue on with his Investigation, and he's got an abundance of help. There's nothing stopping him from going on with his Investigation. MR. MANNING: Your Honor, Mr. Frye does not have an abundance of help. Mr. Frye is the only agent on this case, has been the only agent on this case from it's Inception. To take another agent and to train him from day one on the entire II length of this case is nearly impossible.
What the Court has done is place an undue hardship on government counsel, because I must, I must make the decision that Agent Frye be excluded from the courtroom in order that he can assist me In this case. But he's not allowed to assist me in this case Inside this courtroom. I consider it dilatory and directly contrary, directly contrary to the exception, the second exception In Rule 615. And I'm, that's what I'm doing. I want that on the record, that the government takes severe exception to it, that the Court, It's a dilatory order by the Court; It places an undue hardship on government counsel, and I'm directing Mr. Frye to leave the courtroom.
THE COURT: Mr. Frye, before you leave -- Mr. Manning, the things that you say just aren't true. All I'm saying to you is that Mr. Frye should not speak to the witnesses, that's all. He's not to tell the witnesses what went on here In this courtroom.
MR. MANNING: That's different, Your Honor. If all the Court is saying, that Agent Frye is not to repeat the testimony of one witness to the testimony of the other, I have no trouble with that.
THE COURT: But he is not to discuss the case with these witnesses, that's all. In other words, he shall not speak to the witnesses after he testifies, that's all I'm saying.
MR. MANNING: He may not even talk to a witness.
THE COURT: Let me say something to you, Mr. Manning.
MR. MANNING: Your Honor, I want to make sure we're not violating the Court's order.
THE COURT: I'm trying to be helpful. I'm not trying to hamper the government. I'm trying to be fair, that's all.
Let me say this to you. I know from experience that the English language is such a broad, vague, difficult language that there are many ways, you could talk to a witness In many, many ways, or talk to people in many, many ways, and you can communicate In very, very subtle ways and different ways, we know this, I know this. And all I'm saying is we don't want Mr. Frye to discuss the case with the witnesses. He can go ahead and do whatever he has to do to investigate, as long as the witnesses are presently in the courtroom or are about to testify In this courtroom, and other witnesses who will be testifying, he's not to discuss the case with them. And I don't think that's asking too much.
You can discuss -- you're the lawyer. I never heard of a U.S. Attorney who couldn't prepare witnesses and talk with witnesses and do a good job. Mr. Manning, you're eminently qualified to do a good job, and I'm sure you can talk to the witnesses just as expertly and as properly, and maybe more so, because you're trained In the law, than Mr. Frye could do It.
So, we're not stopping the government from doing anything, except we don't want Mr. Frye to directly or indirectly, consciously or unconsciously, maybe even accidentally, talk to a witness and divulge to a witness in the course of his Interrogation and discussion something that went bon here in the courtroom; that would be detrimental to the whole Idea of sequestration.
We're not stopping Mr. Frye from being a case agent in this case, and if you want him to leave the courtroom, he can leave the courtroom, and then, and in that Instance he wouldn't have anything to talk about as to what went on in the courtroom. You can do that. If he wants to leave the courtroom during the testimony of all these people, he can do that, too. Now, it's up to you, however you want to do it.
MR. MANNING: That's what I must do, Your Honor, because I need the agent to do certain things. I, therefore, must bar him from the courtroom. And the Court has not permitted the government to have Its case agent present In the courtroom, which the rule provides, so --
THE COURT: We're going to let you, If you need another case agent, call him In.
MR. MANNING: Your Honor, there is no other case agent. That's what I've tried to explain to the Court.
THE COURT: I'm just telling you that I think you're making a mountain out of a mole hill, and I think if Mr. Frye would just refrain from talking to any of the witnesses he could accomplish everything the government needs, and at the same time the right of sequestration will be protected. That's all we're trying to do, we're trying to balance needs here. You got to balance the needs of your, the government to have the case agent with the need of the defense for sequestration. Now, if you have this clashing policy matter, something has to give. And all I'm saying to the case agent, It's not necessary for him to talk with witnesses. I am sure any good lawyer who knows his business, and, Mr. Manning, you are a good lawyer, you know your business, you can discuss these, these matters with those witnesses just as easily as Mr. Frye, and ascertain what they are going to say and how they are going to say It, and Mr. Frye isn't that necessary under these circumstances. But he can be in the courtroom here at all times, but he just can't talk to witnesses, that's all. I think that's real simple. There's nothing unusual about that, or there's nothing alarming, or it's not any burden being put on the government. He can continue on as case agent; he just can't talk with witnesses any more, because It's not going to be fair It he does. Fairness is what we're after. We're after justice.
MR. MANNING: Your Honor, I understand that, and I certainly don't want to be accused of doing anything to the contrary, but I just point out to the Court that if he cannot talk to witnesses, he ceases to be the case agent for the government's purposes and for the government's benefit.
THE COURT: I just dispute that fact, but you might be right, but I dispute it.
Okay. He can leave the courtroom if he wishes. Go right ahead.
(Dale Frye left the courtroom.)
All right. Now you can call your first witness.
MR. MANNING: Thank you. Call Vincent DeMento.
I certify that the forogoing excerpt is a correct transcript from the record of proceedings In the above-entitled matter.
Virginia S. Pease, Official Court Reporter
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