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 ...