United States v. Rhynes ( 2000 )

Filed: July 21, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 97-4466(L)
(CR-96-6-V)
United States of America,
Plaintiff - Appellee,
versus
Michael Sevane Rhynes,
Defendant - Appellant.
O R D E R
The court amends its opinion filed July 10, 2000, as follows:
On the cover sheet, section 3, line 2 -- “Charles H. Haden II,
Chief District Judge, sitting by designation” is added to the lower
court information.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
Opinion on Rehearing En Banc
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4466
MICHAEL SEVANE RHYNES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4640
MICHAEL SEVANE RHYNES,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Charles H. Haden II, Chief District Judge, sitting by designation;
Richard L. Voorhees, District Judge.
(CR-96-6-V)
Argued: April 4, 2000
Decided: July 10, 2000
Before WILKINSON, Chief Judge, and WIDENER, WILKINS,
NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
TRAXLER, and KING, Circuit Judges.*
_________________________________________________________________
Judgment vacated and new trial awarded by published opinion. Judge
_________________________________________________________________
*Judge Murnaghan did not participate in the disposition of this appeal.
King announced the judgment of the Court, in which Judge Widener,
Judge Wilkins, Judge Luttig, Judge Williams, Judge Michael, Judge
Motz, and Judge Traxler joined; wrote the opinion of the Court with
respect to Part III, in which Judge Wilkins, Judge Williams, Judge
Michael, Judge Motz, and Judge Traxler joined; wrote the opinion of
the Court with respect to Parts IV and V, in which Judge Widener,
Judge Wilkins, Judge Luttig, Judge Williams, Judge Michael, Judge
Motz, and Judge Traxler joined; and wrote an opinion with respect to
Parts I and II in which Judge Widener (except perhaps for a footnote),
Judge Luttig (in part), Judge Michael, and Judge Motz joined. Judge
Widener wrote an opinion concurring in part and concurring in the
judgment. Judge Wilkins wrote an opinion concurring in part and
concurring in the judgment, in which Judge Williams and Judge Trax-
ler joined. Judge Luttig wrote an opinion concurring in part and con-
curring in the judgment. Chief Judge Wilkinson wrote a dissenting
opinion, in which Judge Niemeyer joined. Judge Niemeyer wrote a
dissenting opinion, in which Chief Judge Wilkinson joined and in
which Judge Traxler joined with respect to Parts I and II.
_________________________________________________________________
COUNSEL
ARGUED: Michael Smith Scofield, Charlotte, North Carolina, for
Appellant. Robert Jack Higdon, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON
BRIEF: Gretchen C.F. Shappert, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
OPINION
KING, Circuit Judge:
Michael Rhynes and several co-defendants were tried before a jury
in the Western District of North Carolina on a number of drug-related
charges. During the presentation of Rhynes's defense, the district
court excluded his sole supporting witness after finding that his law-
yer had violated the court's sequestration order. We conclude today
that the exclusion of the witness's testimony was improper and consti-
2
tutes reversible error. The conduct of Rhynes's lawyer did not contra-
vene the district court's sequestration order, and, if it had, the sanction
of witness exclusion was unduly severe. Because this error was not
harmless, we must vacate Rhynes's conviction and sentence and
remand for a new trial.
I.
A.
At the outset, we briefly review the proceedings that have brought
us to en banc review. The convictions of Michael Rhynes and his six
co-defendants followed a three-week trial, and a panel of this Court
subsequently heard and considered their consolidated appeals. On
October 26, 1999, the panel disposed of the appeals by a published
decision that, inter alia, affirmed Michael Rhynes's conviction and
thirty-year sentence thereon. See United States v. Rhynes, 196 F.3d
207, 243 (4th Cir. 1999).
Thereafter, each of the defendants petitioned for rehearing, and the
Government cross-petitioned, seeking rehearing of certain issues
decided in the defendants' favor. On February 3, 2000, we denied,
with a single exception, each of the rehearing petitions. In the excep-
tion, we deconsolidated Rhynes's appeals from those of his co-
defendants and granted rehearing en banc on a single issue: whether
the district court's exclusion of Corwin Alexander as a witness consti-
tutes reversible error (the "witness exclusion issue"). By granting lim-
ited rehearing en banc, we vacated the panel decision insofar as it
relates to the witness exclusion issue. See Local Rule 35(c). On April
4, 2000, that issue was argued before the en banc court.
B.
The panel opinion thoroughly recounts the extensive and compli-
cated history underlying the convictions of Michael Rhynes and his
co-defendants. Rhynes, 196 F.3d at 213-43. Thus, we focus here only
on the facts relating to the witness exclusion issue.
3
1.
On September 24, 1996, at the commencement of the trial in Char-
lotte, North Carolina, a lawyer for one of Rhynes's co-defendants
moved for sequestration of the Government's witnesses. In response,
the district court entered its sequestration order from the bench.1 The
Government then noted that its "case agent" and a "summary witness"
were in the courtroom and intended to "sit[ ] in on the testimony pre-
pared to testify at the end of the trial[.]" J.A. 274. The district court
granted the Government's request that two of its witnesses be
excepted from the sequestration order and another motion that the
defense witnesses be sequestered. Thereafter, the lawyer for one of
Rhynes's co-defendants sought to have his investigator excepted from
the sequestration order, and the court granted the exception "[s]o long
as your investigator observes Rule 615 and does not talk to the wit-
nesses about testimony that has just concluded or testimony that has
concluded." J.A. 275.
2.
During the Government's case-in-chief, it presented the testimony
of witness D. S. Davis. Davis is a convicted felon and was, at the time
of trial, serving a seven-year sentence for participating in a drug con-
spiracy. Davis testified, inter alia, that he first met Alexander in 1990,
when he (Davis) asked Alexander to serve as an intermediary in a
drug transaction between Davis and Michael Rhynes.
_________________________________________________________________
1 The entirety of the court's sequestration order is in the record as fol-
lows:
Well, I do grant the usual sequestration rule and that is that the
witnesses shall not discuss one with the other their testimony and
particularly that would apply to those witnesses who have com-
pleted testimony not to discuss testimony with prospective wit-
nesses, and I direct the Marshal's Service, as much as can be
done, to keep those witnesses separate from the-- those wit-
nesses who have testified separate and apart from the witnesses
who have not yet given testimony who might be in the custody
of the marshal.
J.A. 273-74.
4
In response to an objection from Rhynes's lawyer, Michael Sco-
field, the Government explained at the bench that it was "getting to
the focal point of Mike Rhynes." J.A. 1695. Specifically, the Govern-
ment noted that Alexander was listed as a witness for Rhynes, and it
believed that Davis would testify that Alexander had been approached
to serve as an intermediary between Davis and Rhynes but that Alex-
ander had never completed a transaction between the two. In
response, Mr. Scofield stated:
Well, I didn't know what -- where he was going with Cor-
win Alexander, so I had no information that they allege he
was a member of the conspiracy. It sounded like you're not
alleging that now.
J.A. 1695. The Government replied, apparently in reliance on Davis's
statements, that Alexander had told Davis that Rhynes "did not have
the drugs at that time," J.A. 1696, and Davis thereafter dealt directly
with Rhynes.
Davis then concluded his testimony in support of the Government's
case. He maintained that Alexander had approached Rhynes on two
occasions with proposals of drug deals with Davis. According to
Davis, Alexander passed those offers to Rhynes, who did not accept
either offer. Subsequently, Davis approached Rhynes directly, and
Rhynes agreed to sell him cocaine. Thereafter, according to Davis,
Rhynes sold him drugs on several occasions.
3.
During Rhynes's defense, he testified on his own behalf; then, he
called a single witness to corroborate his testimony: Corwin Alexan-
der. Alexander testified on a number of subjects, see infra note 3,
before he was asked about the Government's earlier witness, Davis.
Alexander explained that, at a meeting between the two, Davis told
Alexander that the Government had offered Davis a deal in exchange
for information about Rhynes. Alexander then stated,"And he
[(Davis)] went off to do his time, and I hear from Tuesday he got up
and said --," whereupon the Government objected and requested a
bench conference. J.A. 1945L.
5
At the bench, Mr. Scofield advised the district court that he had
discussed Davis's testimony with Alexander: "I specifically told him
about that testimony and told him I was going to ask him about that,
Your Honor. And I don't think that violates the sequestration order."
J.A. 1945M. The district court indicated its belief that the sequestra-
tion order had been violated. Mr. Scofield then responded, "I'm sorry
then, Your Honor. I've done wrong then because I don't know how
else I can prepare him to testify. I told him that that guy told him that
he was a drug dealer." Id.The district court nonetheless granted the Government's motion to
strike Alexander's testimony and to exclude him as a witness.2 The
court did not develop the record further, either by obtaining any addi-
tional testimony from Alexander or by securing a proffer or testimony
from Mr. Scofield.
4.
Following a brief recess, which apparently included an off-the-
record in camera discussion, Mr. Scofield requested another bench
conference to discuss the witness exclusion issue. There, he apolo-
gized to the court and attempted to deflect any sanction away from
his client and onto himself, stating:
Your Honor, as I told you in chambers, I now realize that
the proper thing for me to do in interviewing Alexander and
preparing him to testify was that I could have asked him all
the details of whether he had been a dealer and whether he
had done drug deals with Michael Rhynes and that sort of
_________________________________________________________________
2 At that point, the following colloquy took place between the court and
Mr. Scofield:
The Court: It's very unprofessional. It's an absolute breach of
the Rule 615, and I don't see how you think you can get that just
because you think you are preparing a witness.
Mr. Scofield: Well, I have to ask him about it. I want to ask
him about it on direct.
J.A. 1945M-45N.
6
thing without telling him that Davis had said that he had
done that.
I wanted to specifically ask him about his relationship with
D. S. Davis. And as I told the court, I did tell him that D.
S. Davis had said that he had done these drug deals and that
I wish I had been more alert in drawing that line about just
asking the questions without saying what D. S. Davis had
said in the court. I am concerned that my mistake will
rebound to the harm of my client and my client will be prej-
udiced and I would -- I'd asked the court in chambers if
you would revisit your decision to strike Corwin[ ] [Alexan-
der's] testimony and not let him testify further. The court
indicated that it would not, and I asked if I could make a
proffer.
J.A. 1945P-45Q (emphasis added).
Scofield then made a proffer of the balance of Alexander's testimony.3
According to Mr. Scofield, Alexander would have testified that he
never dealt drugs with Davis or anyone else. Alexander also knew
Davis well enough to form the opinion that Davis was untruthful, and
that Davis was testifying under pressure to "save three years" of
imprisonment. J.A. 1945R. Moreover, Alexander would have corrob-
orated Rhynes's testimony about an automobile accident and an insur-
ance settlement, which would provide further explanation for what the
_________________________________________________________________
3 Before his in-court testimony was curtailed, Alexander testified on a
number of subjects. Among other things, Alexander stated that he was
Rhynes's best friend and that Rhynes had lived close by for years. In
addition, Alexander spoke about Rhynes's involvement in a number of
his (Rhynes's) father's businesses and other jobs; this testimony indi-
cated the source of Rhynes's otherwise "unexplained wealth." Alexander
also testified about his knowledge of D. S. Davis. He stated that Davis
asked him about obtaining some drugs, in response to which he told
Davis that he was not involved with drugs at all. According to Alexan-
der, Davis informed him that he was a drug dealer. Alexander also
recounted a conversation with Davis following Davis's arrest on drug
charges in which Davis told him that, even though he did not have any
incriminating evidence against Rhynes, the authorities wanted him to
implicate Rhynes, or he would face more time in prison.
7
Government had presented as Rhynes's "unexplained wealth." Alex-
ander also would have challenged the testimony of another witness,
Ted Howze, about Howze's dealings with Rhynes, and Alexander
would have offered both his opinion and reputation evidence that
other witnesses, including Andy Stinson, Kenny Funderburk, Lester
Norman, Jerry Harrison, and Tyron Hicks were untruthful. Further,
Alexander would have testified that he accompanied Rhynes on a trip
to New York, which the Government claimed had been a drug-related
trip. Alexander would have explained that he and Rhynes had gone
to see a basketball game and that they had had no involvement with
drugs, on this trip or otherwise. Finally, Alexander would have cor-
roborated other details about Rhynes.
At the conclusion of the bench conference, the district court denied
Mr. Scofield's request to revisit the witness exclusion issue,4 and
Alexander's testimony was excluded from the trial.
II.
A.
We review a district court's evidentiary rulings, including an order
_________________________________________________________________
4 The district court further explained its exclusion of Alexander as a
witness in the following manner:
I would have to say that your proffer about all the information
that Mr. Alexander has about witnesses who have testified in this
trial would certainly lead this judge to conclude that my Rule
615 order was violated as to the testimony of many witnesses.
...
And not only D. S. Davis. And, you know, I have to state that
strongly on the record, and I consider this to be a reasonable and
a light sanction under the circumstances.
J.A. 1945T-45U.
Mr. Scofield responded: "Your Honor, I do not believe, as I stand here
and think about it, that I mentioned anybody else's testimony other than
D. S. Davis. . . . I asked him, you know, details or relationships with
other people who had testified, but did not relate any other testimony."
J.A. 1945U-45V.
8
excluding witnesses or striking their testimony, for an abuse of discre-
tion. General Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997). Alter-
natively, we review de novo a district court's resolution of questions
of law. United States v. Legree, 205 F.3d 724, 728 (4th Cir. 2000).
B.
It is significant to our consideration of this appeal that the district
court invoked "the usual sequestration rule . . . that the witnesses shall
not discuss one with the other their testimony." This order thus had
two parts: (1) the "usual sequestration rule" and (2) that witnesses
were not to discuss their testimony with one another ("extending lan-
guage").
For several reasons, it is apparent that the reference to "the usual
sequestration rule" did nothing more than invoke Federal Rule of Evi-
dence 615, the rule relating to sequestration orders. At the outset, the
reference to a "rule" in the order was an obvious invocation of Rule
615.5 The district court's subsequent statements relating to the seque-
stration order similarly made clear to each of the parties that "the
usual sequestration rule" was coextensive and conterminous with
Rule 615. First, immediately after entering its order, the court permit-
ted a co-defendant's investigator to remain in the courtroom, but only
if the investigator "observes Rule 615." J.A. 275. Later, when it ini-
tially interrupted Alexander's testimony, the court stated, "It's an
absolute breach of the Rule 615" (J.A. 1945M); similarly, when the
court decided not to revisit its witness exclusion determination, it
noted: "[M]y Rule 615 order was violated as to the testimony of many
witnesses." J.A. 1945U. Given these three clear references to Rule
615, we can only conclude that the district court's reference to a
"rule" did nothing more than invoke Rule 615.
_________________________________________________________________
5 Through complicated procedural circumstances discussed in the panel
decision, see 196 F.3d at 215-16, two district judges presided over
aspects of this case. To ascertain whether any local rules expanded the
scope of Rule 615, we have reviewed the local rules of the Southern Dis-
trict of West Virginia -- where the trial judge then-presiding ordinarily
sits -- and those of the Western District of North Carolina, where the
case was tried. We find nothing in those local rules indicating that the
"usual" rule differs in any respect from Rule 615.
9
Because the district court's order involved these two elements, our
task here is to first ascertain whether either (1) Rule 615 or (2) the
additional admonition that "the witnesses shall not discuss one with
the other their testimony" proscribed the conversation Mr. Scofield
had with Alexander. We begin with a review of Rule 615 -- an analy-
sis that we undertake de novo.
C.
To determine whether Rule 615 proscribes the conduct of Mr. Sco-
field, we must first consider the language of the Rule itself, which
provides:
At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other wit-
nesses, and it may make the order of its own motion. This
rule does not authorize exclusion of (1) a party who is a nat-
ural person, or (2) an officer or employee of a party which
is not a natural person designated as its representative by its
attorney, or (3) a person whose presence is shown by a party
to be essential to the presentation of the party's cause, or (4)
a person authorized by statute to be present.
Fed. R. Evid. 615. It is clear from the plain and unambiguous lan-
guage of Rule 615 that lawyers are simply not subject to the Rule.
This Rule's plain language relates only to "witnesses," and it serves
only to exclude witnesses from the courtroom. Thus, Rule 615 did not
prohibit Mr. Scofield from discussing D. S. Davis's testimony with
Corwin Alexander.6
The district court's bald Rule 615 order was then extended by the
_________________________________________________________________
6 Perhaps the most telling characteristic of the dissenting opinion
crafted by my friend Judge Niemeyer is that its theoretical linchpin is
announced without any supporting authority. That is, while his opinion
references the Book of Susanna, the "wisdom of the ages," and "common
sense," it cites no legal authority for the proposition that invocation of
Rule 615 automatically prevents a witness from hearing, in any form
whatsoever, anything contained in a prior witness's testimony. See post
at 40-41.
10
statement that "the witnesses shall not discuss one with the other their
testimony." Of course, nothing on the face of this extending language
addresses the conduct of lawyers in any way. Moreover, the relevant
authorities interpreting Rule 615, including court decisions and the
leading commentators, agree that sequestration orders prohibiting dis-
cussions between witnesses should, and do, permit witnesses to dis-
cuss the case with counsel for either party: "Sequestration requires
that witnesses not discuss the case among themselves or anyone else,
other than the counsel for the parties." United States v. Walker, 613
F.2d 1349, 1354 (5th Cir. 1980) (emphasis added) (citing Gregory v.
United States, 369 F.2d 185 (D.C. Cir. 1966)); accord United States
v. Buchanan, 787 F.2d 477, 485 (10th Cir. 1986) ("The witnesses
should be clearly directed, when [Rule 615] is invoked . . . that they
are not to discuss the case . . . with anyone other than counsel for
either side.") (emphasis added); 4 Jack B. Weinstein & Margaret A.
Berger, Weinstein's Federal Evidence § 615.06 (Joseph M.
McLaughlin, ed., 2d ed. 1998) ("[Sequestration] instructions, how-
ever, usually permit the witnesses to discuss their own or other wit-
nesses' testimony with counsel for either side.") (emphasis added); 2
Charles A. Wright, Federal Practice & Procedure § 415 (2d ed.
1982) ("If exclusion is ordered, the witnesses should be instructed not
to discuss the case with anyone except counsel for either side.")
(emphasis added).7
In short, neither the bald invocation of Rule 615 nor the extending
language relating to discussions between witnesses served to circum-
scribe the conduct of Mr. Scofield in any way.
_________________________________________________________________
7 We are aware of a single commentator who would endorse district
court orders explicitly prohibiting witness contacts with attorneys:
"While Rule 615 provides solely for the exclusion of witnesses from the
courtroom, the court may take further measures . . . such as ordering
[witnesses] . . . not to discuss the case with one another or with any attor-
ney . . . ." Michael Graham, Federal Practice & Procedure, Federal
Rules of Evidence § 6611, at 216 (interim ed. 1992). Notably, this state-
ment is not supported by the single case that the treatise cites, Perry v.
Leeke, 488 U.S. 272 (1989). In Perry, the Court held only that witnesses
may be prohibited from speaking with lawyers between direct and cross
examination; it did not approve the practice the treatise endorses,
namely, generally prohibiting lawyer-witness contact as part of a seque-
stration order.
11
D.
The Government has conceded that neither the plain language of
the district court's order, nor the provisions of Rule 615, prohibit any
conduct by lawyers, and we note that "in all but the most extraordi-
nary circumstance," the inquiry should end here. Estate of Cowart v.
Nicklos Drilling Co., 505 U.S. 469, 475 (1992). Nonetheless, the
Government asserts that the "purpose and spirit" of the sequestration
order were compromised by Mr. Scofield's discussion with Alexan-
der. Specifically, the Government contends that the"truth-seeking"
process would be hindered if lawyers were permitted to reveal testi-
mony in the manner exercised by Mr. Scofield. This is basically an
argument that Rule 615, the extending language, or the policies
underlying sequestration implicitly proscribed Mr. Scofield's con-
duct; we reject the argument for several reasons.
We have properly recognized the purpose and spirit underlying
witness sequestration: it is "designed to discourage and expose fabri-
cation, inaccuracy, and collusion." Opus 3 Ltd. v. Heritage Park, Inc.,
91 F.3d 625, 628 (4th Cir. 1996). Put differently, sequestration helps
to smoke out lying witnesses: "It is now well recognized that seques-
tering witnesses ``is (next to cross-examination) one of the greatest
engines that the skill of man has ever invented for the detection of
liars in a court of justice.'" Id. (citing 6 Wigmore on Evidence § 1838,
at 463).
To the extent that the Government asserts that Mr. Scofield frus-
trated the purpose and spirit of sequestration, we disagree. The Gov-
ernment asserts that Mr. Scofield's actions undermined the
truthfulness of Alexander's testimony, which, in the Government's
view, is surely an act that runs afoul of the sequestration order. On
the contrary, lawyers are not like witnesses, and there are critical dif-
ferences between them that are dispositive in this case. Unlike wit-
nesses, lawyers are officers of the court, and, as such, they owe the
court a duty of candor, Model Rules of Professional Conduct Rule 3.3
(1995) ("Model Rules"). Of paramount importance here, that duty
both forbids an attorney from knowingly presenting perjured testi-
mony and permits the attorney to refuse to offer evidence he or she
reasonably believes is false. Id. Rule 3.3(a)(4), (c). Similarly, an attor-
ney may not "counsel or assist a witness to testify falsely." Id. Rule
12
3.4(b). And, if an attorney believes that a non-client witness is lying
on the witness stand about a material issue, he is obliged to "promptly
reveal the fraud to the court." Id. Rule 3.3, cmt. 4. The Supreme Court
has emphasized the importance of attorneys' duty of candor: "Any
violation of these strictures would constitute a most serious breach of
the attorney's duty to the court, to be treated accordingly." Geders v.
United States, 425 U.S. 80, 90 n.3 (1976) (citing to parallel provisions
of Model Code of Professional Responsibility). Consequently, law-
yers' ethical obligations to the court distinguish them from trial wit-
nesses.
Moreover, the purpose and spirit underlying sequestration are not
absolute; indeed, we have aptly recognized that even the "powerful
policies behind sequestration" must bend to the dictates of the Consti-
tution. Opus 3 Ltd., 91 F.3d at 628.8 Thus, to the extent that they are
implicated in this case, the policies and spirit of sequestration must
yield to the constitutional and ethical duties Mr. Scofield sought to
effectuate here.9 That is, in the context of a criminal trial like this one,
_________________________________________________________________
8 It is important to note that the language of Rule 615 does not require
exclusion of all witnesses from the courtroom. While an absolute rule
might further promote the truth-seeking policy behind Rule 615, consti-
tutional considerations have required that exceptions be built into the
Rule itself. Opus 3 Ltd., 91 F.3d at 628 ("confrontation and due process
considerations" drive Rule 615's exceptions). Parties or their representa-
tives, as well as expert witnesses, are authorized by Rule 615 to remain
in the courtroom, hear testimony, and subsequently testify. Fed. R. Evid.
615(1)-(3). In criminal cases these exceptions are applied to allow the
prosecution's case agent to remain at counsel table with the prosecutor,
hear the other witnesses testify, and nevertheless testify on behalf of the
prosecution. In this very case, moreover, the district court's sequestration
order specifically exempted the Government's FBI case agent as well as
its summary witness. See supra at 4.
9 While it is unnecessary for us to reach the issue in this case, we
observe that sequestration orders that prevent attorneys from performing
their duties as counsel, including discussing trial proceedings with future
witnesses, may well violate a criminal defendant's Sixth Amendment
rights. The Supreme Court has explicitly forbidden some sequestration
orders that prohibit a defendant-witness from conferring with counsel.
Geders v. United States, 425 U.S. 80, 91 (1976); accord, United States
v. Allen, 542 F.2d 630, 633 (4th Cir. 1976). And at least one court has
13
a defense attorney's duty to his client assumes constitutional stature:
"In all criminal prosecutions, the accused shall . . . have the Assis-
tance of Counsel for his defence." U.S. Const. amend. VI. To all cli-
ents, an attorney owes competence. Model Rules Rule 1.1. To fulfill
this basic duty, the attorney must prepare carefully for the task at
hand: "Competent representation requires . . . thoroughness and prep-
aration reasonably necessary for the representation." Id. Rule 1.1(a).
Thorough preparation demands that an attorney interview and pre-
pare witnesses before they testify. No competent lawyer would call
a witness without appropriate and thorough pre-trial interviews and
discussion. In fact, more than one lawyer has been punished, found
ineffective, or even disbarred for incompetent representation that
included failure to prepare or interview witnesses. United States v.
Tucker, 716 F.2d 576 (9th Cir. 1983) (defense counsel ineffective for
failing to interview witnesses); McQueen v. Swenson, 498 F.2d 207(8th Cir. 1974) (same); In re Warmington, 568 N.W.2d 641, 668
(Wis. 1997) (lawyer disbarred for, among other things, "failing to
supervise the preparation of an expert witness"); In re Wolfram, 847
P.2d 94, 96 (Ariz. 1993) (failure to interview witnesses cited among
reasons for suspending attorney).
In this context, Mr. Scofield's actions were necessary in the exer-
cise of his duties, both constitutional and ethical, as a lawyer. First,
when the Government called Davis as a witness and began asking him
questions about Alexander, Mr. Scofield made clear that he was
unaware that Alexander had been implicated as a co-conspirator. See
supra at 5. Although Davis's subsequent testimony did not implicate
_________________________________________________________________
extended this reasoning to sequestration orders preventing counsel from
discussing prior testimony with non-defendant witnesses:
It has been held that to deprive a party . . . of the right to consult
with counsel as the trial proceeds is to infringe its right to due
process of law. This court believes that similar considerations
apply to the right of a party to have his counsel free to discuss
with prospective witnesses developments in the case, including
the testimony of other witnesses.
United States v. Scharstein, 531 F. Supp. 460, 463-64 (E.D. Ky. 1982)
(emphasis added).
14
Alexander in any specific drug deal, the import of Davis's allegation
was clear: Alexander was serving as an intermediary between drug
buyers and Rhynes. Faced with an allegation that his prime support-
ing witness, Alexander, had been assisting, or participating in, a drug
conspiracy with Rhynes, Mr. Scofield had ethical (and possibly con-
stitutional) duties to investigate these allegations with Alexander
before he put Alexander on the stand. Mr. Scofield was thus com-
pelled to ascertain, if possible: (1) whether Davis's allegations were
untrue (or, if true, whether Alexander intended to invoke his Fifth
Amendment rights); (2) whether Alexander's denials were credible;
and (3) why Davis would make potentially false allegations against
Alexander. Put simply, Mr. Scofield needed to fully assess his deci-
sion to call Alexander as a witness, and, to fulfill his obligations to
his client, Scofield was compelled to discuss Davis's testimony with
Alexander. See Chandler v. Jones, 813 F.2d 773 (6th Cir. 1987) (find-
ing counsel's performance deficient for (1) failing to prepare witness
for trial; (2) improperly using leading questions; and (3) calling wit-
ness who was expected to invoke the Fifth Amendment).
In response, the Government claims that Mr. Scofield did not vio-
late the sequestration order by merely speaking with Alexander;
instead, it was Mr. Scofield's informing Alexander of Davis's testi-
mony that violated the order. Based on this view, the Government
asserts that counsel had ample room to interview and prepare wit-
nesses without running afoul of the sequestration order.10 But this
_________________________________________________________________
10 Our distinguished Chief Judge, capturing a sentiment shared by
Judge Niemeyer, claims that "Scofield himself commendably acknowl-
edged to the district court that attorneys may fully prepare witnesses
without revealing the details of prior testimony in contravention of a
sequestration order." See post at 31-32; see also post at 38 ("Scofield
approached the bench and acknowledged a violation of[Rule 615].").
This observation is both irrelevant and misguided. In actuality, Mr. Sco-
field's after-the-fact mea culpa demonstrates nothing more than an attor-
ney commendably performing his duties to his client-- trying
desperately to obtain reconsideration of an erroneous ruling in order to
get his only supporting witness to the stand. If anything, Mr. Scofield
assumed responsibility so that he, not his client, would be punished. In
any event, Mr. Scofield's statements are irrelevant to the question of
whether the sequestration order prohibited his conversation with Alexan-
der.
15
conclusion begs the question, "How was counsel to discern the limits
of the sequestration order?" Those limits -- as declared after the fact
by the district court -- did not appear on the face of the order, in Rule
615, in controlling precedent, or even in persuasive authorities. In
fact, adoption of the Government's position would make it virtually
impossible for counsel to know whether they have "ample room" to
perform essential tasks without violating an order.11 This argument
thus fails to persuade us.
Further, sequestration is not the only technique utilized to ensure
the pursuit of truth at trial. Indeed, if an attorney has inappropriately
"coached" a witness, thorough cross-examination of that witness vio-
lates no privilege and is entirely appropriate and sufficient to address
the issue. In Geders, Chief Justice Burger, for a unanimous Court,
endorsed cross-examination as the swift antidote for witness coach-
ing:
The opposing counsel in the adversary system is not without
weapons to cope with "coached" witnesses. A prosecutor
may cross-examine a defendant as to the extent of any
"coaching" . . . . Skillful cross-examination could develop a
record which the prosecutor in closing argument might well
exploit by raising questions as to the defendant's credibility,
if it developed that defense counsel had in fact coached the
witness as to how to respond . . . .
Geders, 425 U.S. at 89-90.
In short, the Government's position requires the implication that by
_________________________________________________________________
11 Further, under the Government's argument, it apparently would have
no problem if (hypothetically) Mr. Scofield had asked Alexander during
trial preparation: "You sold drugs to Davis in August 1997, isn't that
true?" On the other hand, the Government would take issue if Mr. Sco-
field had asked: "Davis testified that you sold drugs to Davis in August
1997. Is that testimony true?" The Government insists that, in such a
case, Mr. Scofield would violate the "usual sequestration rule" because
his question included the words: "Davis testified." The Government's
argument fails because it is simply -- and unnecessarily -- splitting
hairs.
16
discussing prior trial testimony with Corwin Alexander, Mr. Scofield
necessarily coached Alexander or made it likely that Alexander would
commit perjury.12 To the contrary, we must trust and rely on lawyers'
abilities to discharge their ethical obligations, including their duty of
candor to the court, without being policed by overbroad sequestration
orders. Furthermore, we are confident that, if an attorney is lax in his
duty of candor, that laxness will normally be exposed -- even
exploited -- by skillful cross-examination.
E.
Undeterred by the weight of contrary authority, the Government
asserts that the district court's ruling that its order actually prohibited
attorney-witness discussions of testimony is a permissible "interpreta-
tion" of the sequestration order. However, it is apparent that the dis-
trict court was not interpreting its own order; rather, it was
interpreting Rule 615. That is, the extending language of the seque-
stration order does not in any way relate to attorneys, and in each of
the post-entry statements relating to the violation of its sequestration
order, the district court clearly believed Rule 615-- not the extending
language in its order -- had been violated. See supra at 9-11. In this
context, reliance by the Government and my dissenting colleagues on
the inherent discretion of a presiding judge is a red herring. We sim-
ply do not defer to a district court's legal interpretation of federal
rules; those interpretations are reviewed de novo.
Further, the Government cites no authority for the proposition that
an unadorned sequestration order, devoid of any reference to lawyers,
nevertheless may be interpreted to prohibit lawyers from discussing
trial proceedings with prospective witnesses. More importantly, if a
district court does not exceed its discretion by interpreting a seque-
stration order in a manner that: (1) is unsupported by its text; (2) is
unsupported by Rule 615; (3) is unprecedented in this circuit; (4) is
contrary to the overwhelming weight of persuasive case law and
scholarship; and (5) arguably unconstitutionally deprived the defen-
dant of effective assistance of counsel, then the district court's discre-
_________________________________________________________________
12 For the sake of clarification, we note that nothing in the record even
remotely suggests that Mr. Scofield improperly coached Alexander or
encouraged him to commit perjury.
17
tion to interpret its orders is effectively limitless. As a practical
matter, our adoption of the Government's position would permit trial
judges, when faced with any trial activity they dislike, not only to
order it stopped prospectively, but to punish it as if it were a violation
of a then-existing order. Such post-hoc exercises of regulatory power
are wholly inconsistent with our system of justice. See generally Kai-
ser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990)
(Scalia, J., concurring) ("The principle that the legal effect of conduct
should ordinarily be assessed under the law that existed when the con-
duct took place has timeless and universal appeal.").13
Given the constitutional significance of the duties Mr. Scofield was
obliged to carry out, we simply cannot agree that the district court
was within its discretion to hinder his performance of those duties
with an expansive, unprecedented, and after-the-fact "interpretation"
of a rule of evidence. To the contrary, where an attorney seeks to per-
form his constitutionally mandated duty to effectively represent a
criminal defendant, he must be free to interview defense witnesses
and to discuss with them all appropriate matters, without being sub-
jected to an overbroad sequestration order.
F.
While the district court concluded that Mr. Scofield violated the
sequestration order, we are unable to find any such violation and con-
clude that there was none. As a result, the district court's decision to
exclude Alexander on the basis of a non-existent violation was an
error of law and, thus, an abuse of discretion. See Koon v. United
_________________________________________________________________
13 Our decision today does not, in any way, diminish a district court's
authority to enter a sequestration order, under appropriate circumstances,
that exceeds the scope of Rule 615. If a district court, in its discretion,
determines to grant a sequestration order that exceeds the express bounds
of Rule 615, the order should at least: (1) be explicit; (2) be of record and
timely; and (3) be tailored as narrowly as possible to achieve its purposes
without hindering counsel in performance of their duties to clients and
the court. Such criteria seem especially prudent in light of the "confusion
about how far the scope of a bald Rule 615 order extends for the sanction
of excluding testimony." United States v. McMahon, 104 F.3d 638, 648
(4th Cir. 1997) (Michael, J., dissenting).
18
States, 518 U.S. 81, 100 (1996) ("A district court by definition abuses
its discretion when it makes an error of law.").
III.
Even if Mr. Scofield had violated a sequestration rule or order, we
would still hold, in the context of this case, that the sanction imposed
-- exclusion of Alexander's testimony -- constituted reversible error.14
"Because exclusion of a defense witness impinges upon the right to
present a defense, we are quite hesitant to endorse the use of such an
extreme remedy." United States v. Cropp, 127 F.3d 354, 363 (4th Cir.
1997). Under these circumstances, we conclude that exclusion of
Alexander's testimony in its entirety was unduly severe.
At the outset, sanction analysis must encompass proportionality,
and sanctions as extreme as witness exclusion must be proportional
to the offense. Cf. Doyle v. Murray, 938 F.2d 33, 34 (4th Cir. 1991)
("[S]anctions [must] be fixed in proportion to the severity of a party's
or lawyer's misconduct[.]"). In this case, when the district court
excluded Alexander's testimony, it was aware, through Mr. Scofield's
representations, that Alexander had been exposed to Davis's accusa-
tion that Alexander was involved in drug deals. However, the district
court conducted no examination of Alexander to determine exactly
what he had been told; neither did the court attempt to ascertain
through Mr. Scofield what he had revealed to Alexander.
More importantly, the proffer of Alexander's testimony covered at
least six other Government witnesses and a number of other topics
that were crucial to Rhynes's defense. Mr. Scofield specifically repre-
sented that, "Your Honor, I do not believe, as I stand here and think
about it, that I mentioned anybody else's testimony other than D. S.
Davis." See supra note 4. Notwithstanding this representation, the dis-
trict court determined that Alexander's testimony relating to each of
the other Government witnesses and other subjects was tainted by the
same "coaching" as the testimony relating to D. S. Davis. Signifi-
cantly, the court apparently made this determination based solely on
_________________________________________________________________
14 We review the district court's choice of a sanction under these cir-
cumstances for an abuse of discretion. United States v. Cropp, 127 F.3d
354, 363 (4th Cir. 1997).
19
Mr. Scofield's proffer, see supra at 7-8, but on this record, the court's
finding of taint with respect to the other witnesses and other subjects
is simply unsubstantiated. The exclusion of Alexander's testimony in
its entirety was thus unduly severe and disproportionate to the narrow
scope of Mr. Scofield's apparent violation.
We must also reject the Government's contention that, in the cir-
cumstances of this case, the sanction was justified and proportional
because the "search for truth" was thereby furthered. We agree, for
example, that if Alexander had been permitted to testify and his testi-
mony had contradicted Davis's testimony, then one-- either Alexan-
der or Davis -- was not, in all likelihood, testifying truthfully.
However, the adversary system ordinarily can be trusted to separate
the liars from the truthful. In this instance, the search for truth would
have been better served by permitting the jury to determine who was
telling the truth. By contrast, the district court's exclusion of Alexan-
der's testimony left Davis's testimony uncontradicted and may have
led the jury to believe, and rely upon, untruthful testimony. Put sim-
ply, excluding Corwin Alexander as a witness did nothing to further
the search for truth.
Further, the degree of fault or intent encompassed in the violation
must be considered in ascertaining the propriety of any given sanc-
tion. See United States v. English, 92 F.3d 909, 913 (9th Cir. 1996)
("One factor given considerable weight in determining what sanction,
if any, is appropriate for the violation of a sequestration order is
whether the side calling the witness deliberately violated the court's
order."). Given the lack of legal support for the district court's broad
interpretation of its order, it is obvious that Mr. Scofield did not
intend to violate the sequestration order. When questioned about his
discussions with the witness Alexander in preparation of the defense,
he was clear about his actions: "I specifically told [Alexander] about
that testimony and told him I was going to ask him about that, Your
Honor. And I don't think that violates the sequestration order." J.A.
1945M. An inadvertent misstep by Mr. Scofield was simply insuffi-
cient to justify the extreme sanction imposed on Rhynes.
We are also cognizant that although the alleged violation of the
sequestration order was effected by Mr. Scofield, the sanction
20
imposed inured to the defendant.15 There was, of course, no require-
ment that Rhynes be sanctioned for his lawyer's conduct; indeed, a
lawyer may be personally sanctioned for violations of court orders. If,
however, a defendant is being sanctioned for his lawyer's conduct,
courts should impose the least severe sanction justified under the cir-
cumstances. The district court had alternative sanctions at its disposal;
we have endorsed at least two others: "sanction of the witness; [and]
instructions to the jury that they may consider the violation toward the
issue of credibility." Cropp, 127 F.3d at 363. Further, there were
many other possible corrective measures that could have been taken,
including: limiting the scope of the witness's testimony, see English,
92 F.3d at 913 (endorsing limitation of witness's testimony following
violation of sequestration order); permitting broad cross-examination
into the alleged "coaching," see United States v. Posada-Rios, 158
F.3d 832, 871-72 (5th Cir. 1998); or any other sanction appropriate
under the circumstances. There is no doubt that, under facts like these,
the district court could have imposed a less severe sanction.
In short, even had Mr. Scofield's contact with Alexander violated
the sequestration order, the district court abused its discretion in
imposing the unduly severe sanction of excluding Alexander's testi-
mony in its entirety.
IV.
While harmless error analysis applies to the district court's error,
we are satisfied that the erroneous exclusion of Michael Rhynes's sole
corroborating witness, who would have sought to rebut much of the
Government's evidence against Michael Rhynes, was not harmless.
We have here an error of constitutional magnitude-- a deprivation
of Michael Rhynes's Sixth Amendment right to call witnesses on his
behalf.16 For this constitutional error to be harmless, the Government
is required to establish, to the satisfaction of this Court beyond a rea-
sonable doubt, "that a rational jury would have found the defendant
_________________________________________________________________
15 There has been no allegation that Rhynes participated in this alleged
violation in any way.
16 "In all criminal prosecutions, the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his favor[.]" U.S.
Const. amend. VI.
21
guilty absent the error." Neder v. United States, 527 U.S. 1, 18 (1999).
When, as here, guilt "was genuinely contested, and there is evidence
upon which a jury could have reached a contrary finding, the error is
not harmless." United States v. Brown, 202 F.3d 691, 701 (4th Cir.
2000).
We need not dwell long on this question because it is clear that the
erroneous exclusion of Alexander's testimony was not harmless.
Indeed, at the en banc argument in this case, Government counsel
conceded as much, candidly acknowledging that, if Alexander's testi-
mony had been believed -- an assumption we must make in assessing
harmless error, Michael Rhynes would have been found not guilty.
We agree with the Government. As Mr. Scofield's unchallenged
proffer of Alexander's testimony made clear, Alexander would have
sought to corroborate myriad details of Michael Rhynes's own testi-
mony, to discredit several of the Government's witnesses, and to
counter a number of the inferences the Government sought to draw
from its evidence. See supra at 7-8. When he lost Alexander as a wit-
ness, Michael Rhynes lost the opportunity to independently challenge
the Government on all of these issues. Faced with an error with such
consequences, we are constrained to conclude that this error was not
harmless.
V.
Pursuant to the foregoing, we vacate Michael Rhynes's conviction
and sentence and remand his case to the district court for a new trial.
VACATED AND REMANDED
WIDENER, Circuit Judge, concurring:
I concur in the result and in Parts I, II, IV, and V of Judge King's
opinion, except, perhaps, n.11, slip at 16, and will explain below.
Finding that the exclusion of the testimony of the witness was
reversible error, I believe it unnecessary and thus do not express an
opinion on the matters addressed in Part III of the opinion.
22
I should add that asking, in terms, one witness to comment on the
testimony of another witness is a practice so uniformly disapproved
as not to bear citation. See n.11, slip at 16. So the real prejudicial
error in the decision of the district court, as Judge King's opinion
points out, was preventing the defense attorney from discussing the
substance of the previous testimony with the upcoming witness, not
the form of the question, which, as the government and n.11 point out,
could easily have been avoided by simply changing the wording of
the question, a matter of no more moment than changing the form of
a leading question by substituting the familiar"State whether or not
. . . ."
So far as this concurrence may be at odds with it, then, I may not
agree with n.11.
WILKINS, Circuit Judge, concurring in part and concurring in the
judgment:
I concur in the judgment that Rhynes' conviction and sentence be
vacated and his case remanded for a new trial, and in what Judge
King has written in Parts III and IV of his opinion. The district court
plainly abused its discretion in excluding the testimony of defense
witness Alexander. And, this error was harmful. Consequently, proper
resolution of this appeal can be achieved without addressing the more
difficult question of whether defense attorney Scofield actually vio-
lated the sequestration order.
As Judge King points out, see ante at 5, when Alexander stated,
"[A]nd I hear from Tuesday [Davis] got up and said . . ." the Govern-
ment immediately objected. A bench conference and a meeting of
counsel and the district judge in chambers took place. As to what was
said by Scofield to sequestered witness Alexander, the record contains
only Scofield's representation to the court. A fair reading of his repre-
sentation indicates that his conversation with Alexander was limited
to relating the accusation made by Davis from the witness stand that
Alexander was a drug dealer. If this is truly what happened, exclusion
of Alexander's testimony was a sanction totally disproportionate to
any possible violation of the sequestration order. Alternatively, while
an on-the-record inquiry may have uncovered facts sufficient to sup-
port a conclusion that the asserted violation of the sequestration order
23
was sufficiently egregious to justify the extreme sanction of exclu-
sion, the failure to conduct such an inquiry before imposing the sanc-
tion was itself an abuse of discretion.
I.
Sequestration of trial witnesses serves the important purpose of
"discourag[ing] and expos[ing] fabrication, inaccuracy, and collu-
sion." Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628 (4th Cir.
1996); see United States v. McMahon, 104 F.3d 638, 643 (4th Cir.
1997) (noting that sequestration of witnesses "prevent[s] the possibil-
ity of one witness shaping his testimony to match that given by other
witnesses at the trial" (internal quotation marks omitted)). Next to
cross-examination, sequestration is "one of the greatest engines that
the skill of man has ever invented for the detection of liars in a court
of justice." Opus 3 Ltd., 91 F.3d at 628 (internal quotation marks
omitted).
Given the importance of sequestration to the truth-finding process,
the violation of a sequestration order should not be taken lightly.
However, depending on the situation, numerous means exist to cor-
rect violations when they occur. For example, the court may grant
opposing counsel broad latitude in cross-examination in order to
expose the extent of any taint resulting from the violation. See United
States v. Eyster, 948 F.2d 1196, 1211 (11th Cir. 1991). The court may
also instruct the jury that the violation of the sequestration order is
relevant in determining the witness' credibility. See United States v.
Cropp, 127 F.3d 354, 363 (4th Cir. 1997). In some cases, it may be
appropriate to sanction the offending witness directly. See id.;
McMahon, 104 F.3d at 642 (noting that "[i]t has long been established
that a judge may find a person who violates a sequestration order in
contempt of court"). Additionally, the extreme sanction of exclusion
of witness testimony is sometimes an appropriate remedy for viola-
tion of a sequestration order. See Cropp, 127 F.3d at 363.
Although exclusion of witness testimony is an available remedy for
violation of a sequestration order, it is not a favored one. See Holder
v. United States, 150 U.S. 91, 92 (1893) (observing that a witness
who has violated a sequestration order "is not thereby disqualified
[from testifying], and the weight of authority is that he cannot be
24
excluded on that ground" alone, although exclusion may be warranted
in some cases); Cropp, 127 F.3d at 363 (expressing hesitation "to
endorse the use of such an extreme remedy" as exclusion); see also
Department of Energy v. White, 653 F.2d 479, 490 (C.C.P.A. 1981)
(characterizing exclusion as a "draconian remedy," the damage of
which in that case "outweigh[ed] any possible harm of supposedly
tainted evidence"). Indeed, because the exclusion of a defense witness
implicates the defendant's due process right to present testimony in
his own defense, exclusion should be reserved for those instances in
which violation of the sequestration order resulted from intentional
misconduct by the defendant or defense counsel. See United States v.
Hobbs, 31 F.3d 918, 922 (9th Cir. 1994); see also Rowan v. Owens,
752 F.2d 1186, 1191 (7th Cir. 1984) (noting that exclusion "might, by
making it impossible for the defendant to put on a meritorious
defense, be a disproportionate sanction for . . . violation" of a
sequestration order).
II.
A.
Assuming that Scofield related only Davis' allegation that Alexan-
der was a drug dealer, in view of the nature of the asserted violation,
the minor effect of any violation on the truth-finding process, and the
severe potential impact of the exclusion of Alexander's testimony on
Rhynes' ability to meet the charges against him, the district court
abused its discretion in excluding Alexander's testimony. First, the
violation, even if one occurred, was not an egregious one. Davis testi-
fied that Alexander was involved in dealing narcotics. Understand-
ably, defense counsel Scofield was very interested in ascertaining
how his only witness would react when confronted with this
accusation--would he deny it, admit it, or refuse to respond, perhaps
asserting his Fifth Amendment right against self-incrimination? Thus,
there can be no doubt that competent counsel would have asked Alex-
ander about the subject of Davis' testimony, and under the circum-
stances there can be little question that even the most carefully
phrased question would have alerted Alexander--or any person of
normal intelligence--to the fact that the allegation had probably been
made in trial testimony. Any possible violation of the sequestration
order occurred solely because Scofield used the words "Davis testi-
25
fied" rather than some more neutral phrasing; indeed, no one suggests
that Scofield would have violated the sequestration order by asking
even a very pointed question that did not identify Davis' testimony as
the source of the allegation. Additionally, it appears from Scofield's
representation that his conversation with Alexander was a product of
a misunderstanding of the scope the district court intended its order
to have, a fact which further lessens the severity of any violation. Cf.
Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1373-74 (5th
Cir. 1981) (affirming exclusion of witness as remedy for "a clear and
intentional" violation of a sequestration order).
Second, the asserted violation did not threaten to undermine the
purpose of the sequestration order, namely, the prevention of collu-
sion and fabrication. The district court was not faced with a situation
in which one witness' testimony regarding key facts was related to a
sequestered witness, giving the latter an opportunity to tailor his testi-
mony to the prior testimony. In such a case, exclusion might well be
an appropriate remedy, particularly when the extent to which the wit-
ness' testimony has been tainted cannot be determined. Here, in con-
trast, the alleged violation of the sequestration order provided no
opportunity for Alexander to tailor his testimony to that of any other
witness. Rather, Alexander simply responded to impeachment testi-
mony by Davis. See United States v. Shurn, 849 F.2d 1090, 1094 (8th
Cir. 1988) (explaining that impeachment testimony does not implicate
the purpose of Rule 615 to prevent tailored testimony).
Finally, any violation of the sequestration order affected only a
limited portion of Alexander's testimony. Alexander testified on a
number of matters. In particular, he testified to the existence of legiti-
mate sources for Rhynes' purportedly unexplained wealth (which the
Government contended was derived from drug dealing) and corrobo-
rated Rhynes' testimony regarding a trip to New York. Additionally,
Alexander impeached several Government witnesses, including
Davis. None of this testimony could have been tainted by the asserted
violation of the sequestration order.
Based on the foregoing considerations, I agree with Judge King
that the district court abused its discretion in excluding Alexander's
testimony. Given the relatively minor nature of the asserted violation,
the absence of a significant denigration of the truth-finding process,
26
and the limited extent of any potential prejudice, remedies other than
complete exclusion of Alexander's testimony would have been
wholly adequate. In my view, it would have been adequate, for exam-
ple, for the district court to allow the Government free rein to cross-
examine Alexander regarding his discussions with Scofield. Cf.
United States v. Posada-Rios, 158 F.3d 832, 871-72 (5th Cir. 1998)
(holding that refusal to strike testimony for violation of sequestration
order was not abuse of discretion when opposing party was provided
with full opportunity to cross-examine witness), cert. denied, 526
U.S. 1137, 526 U.S. 1031, and 119 S. Ct. 1487 (1999). Exclusion was
not necessary, and under the circumstances was excessive.
B.
On the other hand, statements by the district court indicate that it
may have been under the impression that a great deal more of Davis'
testimony was related to Alexander than just the allegation that Alex-
ander was a drug dealer. It may be that the decision of the district
court to exclude Alexander's testimony was based on this impression.
However, the record was not developed and a factual foundation laid
to support such a conclusion. Further exploration of this important
issue on the record was unquestionably required before imposing the
extreme sanction of excluding Alexander's testimony in its entirety.
While I fully recognize that appellate judges review the decisions
of our colleagues on the trial bench with 20/20 hindsight, it is clear
that before excluding Alexander's testimony the district court should
have excused the jury and questioned Alexander about the extent and
detail of his conversation with Scofield while sequestered. If neces-
sary, Scofield should have been required to submit to examination as
well. The failure to conduct such an inquiry rendered the record on
appeal woefully inadequate, for the pertinent facts were simply not
ascertained. And, the district court was in the same position as we are
now--i.e., lacking sufficient information as to the actual extent of
Scofield's conversation with Alexander--when it decided to exclude
Alexander's testimony.
Thus, regardless of which scenario is addressed, the result in each
is that Alexander's testimony should not have been excluded.
27
Judge Williams and Judge Traxler have asked to be shown as join-
ing in this opinion.
LUTTIG, Circuit Judge, concurring:
I fully agree with Judge King that the order entered by the district
court cannot possibly be read to reach the lawyer's conduct in this
case and I concur in those portions of his opinion in which he so
holds. I believe Judge King is also unquestionably correct in his inter-
pretation of Federal Rule of Evidence 615. However, I do not believe
it is even necessary to reach the question of the proper interpretation
of that rule, given that counsel's conduct so plainly did not violate the
district court's order. Only if counsel's conduct had violated the terms
of the order might we be confronted with the questions of the proper
interpretation of Rule 615 and whether the district court exceeded its
authority under that rule in entering its sequestration order, or with the
larger constitutional questions implicating the Sixth Amendment.
Neither of our colleagues in dissent addresses the text of the district
court's order. The sole issue in this case, however, is whether counsel
violated the terms of the district court's order. And it is the language
of that order that must dictate our conclusion, not our general sense
as to whether the "spirit" of the order was violated. The order, which
the district court held counsel violated, reads as follows:
Well, I do grant the usual sequestration rule and that is that
the witnesses shall not discuss one with the other their testi-
mony and particularly that would apply to those witnesses
who have completed testimony not to discuss testimony
with prospective witnesses, and I direct the Marshal's Ser-
vice, as much as can be done, to keep those witnesses sepa-
rate from the -- those witnesses who have testified separate
and apart from the witnesses who have not yet given testi-
mony who might be in the custody of the marshal.
Under no legitimate method of interpretation could this order be inter-
preted to extend to counsel. By its plain terms, the order prohibits
"witnesses" from discussing their testimony "one with the other."
That the order's reach is limited to witnesses, and specifically discus-
sions between or among witnesses, is also apparent from the order's
28
conforming instruction to the Marshal's Service to ensure that "those
witnesses who have testified [are kept] separate and apart from the
witnesses who have not yet given testimony." Not even the govern-
ment was willing to argue that the terms of the district court's order
were violated by counsel's conduct; when pressed, the government
would say at most only that "the spirit" of the order might have been
violated.
We sit to determine whether laws have been violated, not to assess
whether "the spirit" of a law has somehow been offended. In my
view, for a judicial body either to punish or to deprive based upon
perceived offense to a "spirit" of an enactment or a judicial order is
nothing short of the denial of due process.
While this case might be dismissed as relatively insignificant in the
grand scheme of things, I actually believe that it is quite significant
for the insight that it offers as to how one views the law. I believe that
there is nothing more important than that the courts themselves be
bound by the language of their own orders and opinions. For if we are
unwilling ourselves to be bound by what we write, then we forfeit our
authority to insist that others be bound by our writing. If we are to
insist upon obedience to the language of law, then we must likewise
be obedient -- always, but especially when such obedience yields a
result with which we disagree. Obedience to the language of law is
not to engage in "clever wordplay" or to indulge in "literalistic con-
struction," and it must never be mistaken as such. It could not be fur-
ther from these. It is, rather, the very essence of law.
WILKINSON, Chief Judge, dissenting:
I respectfully dissent. I do so because I believe a district court must
have broad discretion not to permit a tainted witness to testify.
The district court acted to protect the integrity of the trial proceed-
ings before it. In the face of the court's sequestration order, Michael
Rhynes' attorney directly related to a defense witness the earlier testi-
mony of a significant prosecution witness. The district court did not
abuse its discretion in finding this to be a violation of its sequestration
order or in excluding the testimony of the tainted witness in the after-
math of the defense attorney's clear violation of the order. By finding
29
an abuse of discretion, this court has invaded the province of the trial
court and impaired the ability of district judges to preserve the integ-
rity of the truth-finding process.
I.
The relevant facts of this case are straightforward. The district
court issued a sequestration order at the outset of this multi-defendant
criminal trial, the text of which is set forth in Judge King's opinion.
During the testimony of defense witness Corwin Alexander, it came
to light that Rhynes' attorney, Michael Scofield, had discussed with
Alexander the prior testimony of prosecution witness D. S. Davis.
While on the stand, Davis had implicated Alexander in Rhynes' drug
dealing activities. Davis' testimony thus threatened to undermine the
credibility of Alexander's exculpatory testimony on Rhynes' behalf.
Once Alexander indicated that he had heard about Davis' prior tes-
timony, the government promptly objected. At the subsequent bench
conference, Scofield admitted that he had specifically told Alexander
about Davis' testimony but protested that he did not think that conver-
sation violated the sequestration order. The district court found that
Scofield had violated the order and that his conduct was unprofes-
sional. The court then excused the witness and instructed the jury to
disregard his testimony. After a recess, Scofield conceded that he had
violated the sequestration order and described what he should have
done instead so as not to run afoul of the order. Following a proffer
of the remainder of Alexander's testimony, the court stood by its orig-
inal ruling and noted that Scofield's proffer "would certainly lead this
judge to conclude that my Rule 615 order was violated as to the testi-
mony of many witnesses."
In light of these circumstances, the district court properly found
that Scofield had violated the sequestration order. As Judge Niemeyer
explains in his opinion, Scofield's conduct directly violated the
court's sequestration order, as Rule 615 admits of no exception that
entitles attorneys to act as couriers of prior testimony to prospective
witnesses. The district court should be commended, not chastised, for
refusing to recognize an exception to Rule 615 that does not exist and
for acting to preserve trial proceedings as a means of ascertaining
truth.
30
Trial courts are not required to stand idly by while attorneys cir-
cumvent court orders in the name of professional privilege. Indeed,
the Supreme Court has stated that "[i]f truth and fairness are not to
be sacrificed, the judge must exert substantial control over the pro-
ceedings." Geders v. United States, 425 U.S. 80, 87 (1976). This is
exactly what the district court did here. The court was confronted with
a multi-defendant criminal conspiracy and was thus on heightened
alert to the risk of conduct such as witness coaching and the tailoring
of testimony. The sequestration order was aimed at preventing pre-
cisely these ills from infecting the trial.
Scofield's conduct, however, utterly thwarted the sequestration
order. A sequestration order is "a product of common sense and its
purpose is obvious." United States v. McMahon, 104 F.3d 638, 644
(4th Cir. 1997) (internal quotation marks omitted). It has no conceiv-
able object other than to prevent prospective witnesses from knowing
the testimony of prior witnesses before taking the stand themselves.
See United States v. Leggett, 326 F.2d 613, 613 (4th Cir. 1964) (per
curiam). Yet Scofield's actions accomplished this prohibited end as
surely as if Alexander had heard Davis' testimony in the courtroom
himself. This was a matter of no small concern to the district court.
Davis' testimony was extremely problematic for Alexander, because
Davis had linked Alexander to Rhynes' drug-dealing activities. Fore-
knowledge of Davis' testimony would enable Alexander to counter
these allegations with greater credibility, specificity, and force. The
district court was understandably troubled when it learned that Sco-
field had related Davis' testimony to Alexander. The court was not
compelled to countenance Scofield's conduct any more than it was
required to permit Alexander to hire a courtroom scribe to record
prior testimony, see McMahon, 104 F.3d 638, or read trial transcripts
of what earlier witnesses said, see Miller v. Universal City Studios,
Inc., 650 F.2d 1365 (5th Cir. 1981).
Nor did the district court's ruling impair Scofield's ability to dis-
charge his professional obligations to thoroughly prepare his wit-
nesses. It should go without saying that attorneys do not require a
privilege to violate valid court orders in order to serve their clients
with competence and zeal. To argue that the district court's ruling
impermissibly ties attorneys' hands is both gross overstatement and
a red herring. Indeed, Scofield himself commendably acknowledged
31
to the district court that attorneys may fully prepare witnesses without
revealing the details of prior testimony in contravention of a seque-
stration order:
Your Honor, as I told you in chambers, I now realize that
the proper thing for me to do in interviewing Alexander and
preparing him to testify was that I could have asked him all
the details of whether he had been a dealer and whether he
had done drug deals with Michael Rhynes and that sort of
thing without telling him that Davis had said that he had
done that.
While it is tempting to dismiss this explanation as part and parcel
of a compulsory mea culpa, Scofield's words in fact speak for them-
selves. And there is nothing wrong with expecting attorneys, as offi-
cers of the court, to respect the boundaries that trial courts establish.
Scofield should have realized previously that his conduct would frus-
trate the court's order. He also could easily have asked the district
court to clarify the scope of its order before he pressed the envelope.
Violation of a sequestration order that the defense itself had requested
understandably disturbed the district court.
The district court did not abuse its discretion in excluding Alexan-
der's testimony. It is well settled that a trial court's choice of remedy
when a sequestration order has been violated is entrusted to the trial
court's discretion. See, e.g., United States v. Cropp, 127 F.3d 354,
363 (4th Cir. 1997); Leggett, 326 F.2d at 614; United States v. Avila-
Macias, 577 F.2d 1384, 1389 (9th Cir. 1978).
Before today, there was "no precedent in which we[had] over-
turned the decision of a district judge to exclude a defense witness
when the violation was plainly the fault of the defendant or defen-
dant's counsel." Cropp, 127 F.3d at 363. Indeed, we have traditionally
reserved the exclusion remedy for precisely those situations where, as
here, it is the party or his counsel who causes the infraction. See id.For example, in Cropp, we found no abuse of discretion in a situa-
tion where, as here, "the right to present a defense ha[d] come into
direct conflict with the protection against tainted testimony." Id. In
that case, it became apparent during the testimony of defense witness
32
Chris Carter that defendant Monte Mosley violated the sequestration
order by talking to Carter before Carter took the stand. This court
noted that "[a]lthough Mosley denies it, it is possible that Mosley in
fact told Carter that there had been previous testimony that Carter had
purchased crack from Mosley on numerous occasions." Id. Even
though this court believed that the district court "would have been
well advised to employ a lesser sanction" and "should perhaps have
more closely examined Carter in voir dire," we nonetheless declined
to take the unprecedented step of overturning the district court's
exclusion remedy on abuse of discretion grounds where the defendant
or his counsel was at fault. Id.We should likewise refuse to upset the district court's exercise of
its discretion in the instant case. Defense counsel was plainly the
cause of the violation and admitted as much at trial. As noted earlier,
Davis was the single most problematic witness from Alexander's
point of view, so it was undoubtedly to Alexander's advantage to
know Davis' testimony before taking the stand. Although the district
court did not conduct a voir dire of Alexander, it did receive a proffer
of Alexander's testimony. After listening to this proffer, the district
court saw no reason to rescind its exclusion remedy, but rather was
concerned that the violation of the sequestration order may have been
even more far-reaching than it originally appeared. Given these cir-
cumstances, I simply cannot say that the district court abused its dis-
cretion. What should be a simple and straightforward matter of
upholding a trial court's evidentiary ruling with respect to tainted tes-
timony has become an exercise in appellate mischief.
II.
The majority interposes appellate courts into the most sensitive
aspects of trial management. It is for good reason that evidentiary
decisions are committed to the discretion of the district court. Cf.
General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); United States
v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993). "[T]rial judges are
much closer to the pulse of a trial than [appellate judges] can ever be
. . . ." United States v. Tindle, 808 F.2d 319, 327 n.6 (4th Cir. 1986)
(alteration in original) (internal quotation marks omitted). Trial judges
are charged with and are uniquely capable of preserving the integrity
of a trial. See Geders, 425 U.S. at 86-87. Our respect for their judg-
33
ment is thus all the more important when the truthfulness of witness
testimony is at stake, for a trial is by its very nature "a search for
truth," Nix v. Whiteside, 475 U.S. 157, 166 (1986). Trial courts are
also in the best position to interpret their own orders and are entitled
to inherent deference when they construe those orders. See Vaughns
v. Board of Educ., 758 F.2d 983, 989 (4th Cir. 1985); Anderson v. Ste-
phens, 875 F.2d 76, 80 n.8 (4th Cir. 1989). By usurping the role of
the district court, this court impairs the ability of trial judges to ensure
the integrity of trial proceedings.
My good colleagues are treading some treacherous paths. Judge
King's opinion would subject the sequestration orders of a trial court
to the strictest canons of statutory construction. See ante at 10 ("[the]
Rule's plain language relates only to ``witnesses'"); id. at 10 ("nothing
on the face of this extending language addresses the conduct of law-
yers in any way"); id. at 10 ("It is clear from the plain and unambigu-
ous language of Rule 615 . . . ."). Nothing in the above discussion of
Rule 615 renders this order any less the order of a trial court.* In
undercutting the trial court's construction of its own order, the plural-
ity would allow attorneys to construe trial court orders in the most
permissive light possible, even where such construction plainly and
_________________________________________________________________
*My brother King seeks to buttress his second-guessing of the trial
court by converting the district court's interpretation of its sequestration
order into a matter of law to be reviewed de novo. See ante at 10-11. For
the reasons that Judge Niemeyer and I have explained, the district court's
finding that Scofield violated the order easily passes muster under this
more searching standard of review. Nonetheless, it is difficult to discern
how a sequestration order entered pursuant to Rule 615, which primarily
authorizes a court to enter such an order, somehow ceases to be the
court's own order simply because the court invokes Rule 615. The plu-
rality's argument to this effect contravenes our obligation to accord a dis-
trict court's interpretation of its own order the deference it is due. See
Anderson, 875 F.2d at 80 n.8; see also United States v. Shurn, 849 F.2d
1090, 1094 (8th Cir. 1988) ("The trial court is given broad discretion in
the interpretation of Rule 615."); McKee v. McDonnell Douglas Techni-
cal Servs. Co., 700 F.2d 260, 262 (5th Cir. 1983) ("Allowing the seque-
stration of witnesses is imparted to the discretion of the trial judge. It is
equally within his discretion to determine whether the separation man-
date has been violated and, if so, what sanctions, if any, should be
imposed.").
34
utterly frustrates the purpose of the order. Attorneys could then
immunize themselves by employing clever wordplay to justify post
hoc their behavior to appellate courts. I would not deprive trial courts
of the necessary latitude to ensure that the truth does not routinely
become the victim of sandbagging and cramped word games. Nor
would I supplant our customary rule of deference to a trial court's rea-
sonable interpretation of its own order with a rule of deference to an
attorney's literalistic construction of the same.
My brother Luttig contends that to defer to the district court's inter-
pretation of its own order is to forsake the textualism that properly
guides us in the task of statutory construction. This contention is mis-
placed. The differences between our duty in interpreting a statute and
our task in reviewing a district court's interpretation of its own order
are significant. It is not possible for us to obtain the views of 100 sen-
ators and 435 House members in discerning the meaning of a federal
statute. By contrast, it is entirely possible for an attorney to obtain an
explanation of an order from a single trial judge, an explanation that
is there for the asking. In the pursuit of pure textualism, my brother
Luttig supplants the cooperation that should obtain between the bench
and bar with a more antagonistic relationship based on exploiting trial
court orders for every loophole and imprecision. Just as departing
from text undermines the rule of law in the course of statutory inter-
pretation, so too will stripping a district court of the ability to enforce
its orders undermine the rule of law at trial.
My brother Wilkins would thrust appellate courts into much too
close a supervisory role over the remedial judgments of a district
court when a sequestration order has been violated. Judge Wilkins
would effectively substitute a carefully calibrated test of proportional-
ity for the abuse of discretion standard in assessing whether the dis-
trict court employed a permissible remedy. While an appellate judge
may wish in hindsight that the district court had conducted a more
extensive voir dire or taken a different remedial tack, appellate courts
should be reluctant to delve deeply into the business of conducting tri-
als. For example, the choice between excluding a compromised wit-
ness' testimony and allowing the witness to be cross-examined is a
classic one for the trial court in determining how best to facilitate the
truth-finding function.
35
In overturning the district court, we not only upset the balance
between trial and appellate courts, we strike at the soul of the judicial
process. Alexander Hamilton pointed out long ago that the judiciary
"has no influence over either the sword or the purse." The Federalist
No. 78, at 465 (Clinton Rossiter ed., 1961). Possessing "neither force
nor will," we have "merely judgment." Id. And faith in our judgment
will rise and fall on the degree to which our processes represent a
search for truth. If attorneys can inform subsequent witnesses of prior
testimony, trials themselves will become more choreographed perfor-
mances than spontaneous events. When an en banc appellate court
brings a trial court up short on a routine evidentiary matter where the
trial court's actions were consistent with the Federal Rules, circuit
precedent, and its own order, we create a state of affairs we shall
come to lament.
By according Scofield every benefit of the doubt while at the same
time viewing the district court's actions in the most unfavorable light
possible, the majority subtly shifts control of trial proceedings from
the trial court to the hands of advocates. This is a shame. The job of
managing complex criminal litigation is difficult enough even with
the supportive standards of appellate review. When circuit courts dis-
regard the deference mandated by those standards, the trial judge's
task becomes one of responsibility without authority. I would not
impose on district courts this inordinate burden.
I am authorized to say that Judge Niemeyer joins me in this dissent.
NIEMEYER, Circuit Judge, dissenting:
The plurality's interpretation of Federal Rule of Evidence 615,
which would create an attorney exception to the rule, is contrary to
precedent and common sense. In misconstruing the rule, the plurality
would substantially frustrate its purpose and effect.
Because I believe that the district court's interpretation of Rule 615
was reasonable and consistent with the customary interpretation of the
rule and that the court's finding that counsel for the defendant vio-
lated the rule is supported by the record, I would affirm the district
court's conclusion that counsel violated its sequestration order. With
respect to the remedy, while I believe that the court, in the exercise
36
of its discretion, might have better articulated its consideration of the
full range of available sanctions before excluding the witness' testi-
mony, for the reasons given by Chief Judge Wilkinson, I conclude
that the exclusion of the witness' testimony fell within the discretion
conferred upon district courts to administer Rule 615.
I
At the outset of this criminal trial, counsel for one of the seven
defendants in this case invoked Federal Rule of Evidence 615 to have
witnesses sequestered during trial. Accordingly, the district court
stated in open court:
Well, I do grant the usual sequestration rule and that is that
the witnesses shall not discuss one with the other their testi-
mony and particularly that would apply to those witnesses
who have completed testimony not to discuss testimony
with prospective witnesses, and I direct the Marshal's Ser-
vice, as much as can be done, to keep those witnesses sepa-
rate from the -- those witnesses who have testified separate
and apart from the witnesses who have not yet given testi-
mony who might be in the custody of the marshal.
In presenting Michael Rhynes' defense, Rhynes' counsel, Michael
Scofield, called Corwin Alexander as a witness. Alexander was ques-
tioned about D. S. Davis, a witness who had testified during the gov-
ernment's case. In the course of answering these questions, Alexander
began to relate his understanding of what Davis had testified to earlier
in the trial. When the government objected on the ground that the
court's sequestration order had been violated, the following dialogue
took place:
The Court: I'd like to know how he heard that because
everyone in this courtroom was instructed not
--
Mr. Scofield: Because I discussed his testimony with him. I
specifically told him about that testimony and
told him I was going to ask him about that,
37
Your Honor. I don't think that violates the
sequestration order.
The Court: Certainly does.
* * *
The Court: It's very unprofessional. It's an absolute
breach of Rule 615, and I don't see how you
think you can get by that just because you
think you are preparing a witness.
Mr. Scofield: Well, I have to ask him about it. I want to ask
him about it on direct.
Government
Attorney: Seems to me the proper way to prepare the
witness is the way the government prepared.
We ask what they know. We don't tell them
what went on in the courtroom.
The court thereupon struck Alexander's testimony.
Following the afternoon recess, Scofield approached the bench and
acknowledged a violation of the Rule:
Your Honor, as I told you in chambers, I now realize that
the proper thing for me to do in interviewing Alexander and
preparing him to testify was that I could have asked him all
the details of whether he had been a dealer and whether he
had done drug deals with Michael Rhynes and that sort of
thing without telling him that Davis had said that he had
done that.
Scofield then explained that he had related the government witness'
testimony to Alexander in order to elicit Alexander's response to it.
He also proffered the remainder of Alexander's testimony. The court
thereupon concluded:
38
I am not going to revisit that issue. And I would have to say
that your proffer about all the information that Mr. Alexan-
der has about witnesses who have testified in this trial would
certainly lead this judge to conclude that my Rule 615 order
was violated as to the testimony of many witnesses.
* * *
[T]he only thing you lose is the testimony of this witness,
who has been obviously coached on testimony that's been
given in this courtroom under a separation of witness rule.
And that is wrong, sir.
The sanction is reasonable under the circumstances. I've
held the government's feet to the fire, and it was the defense
that suggested that the government observe that ruling at the
beginning of the trial.
Scofield thereafter assured the court that he violated the order only in
repeating to Alexander the testimony of government witness Davis.
The sole question raised on this appeal en banc is whether the dis-
trict court's exclusion of Alexander's testimony constituted reversible
error. The plurality would hold that Rule 615 does not prohibit coun-
sel for the parties from discussing the testimony of prior witnesses
with prospective witnesses because "nothing on the face of [Rule 615]
addresses the conduct of lawyers in any way." Ante at 10. The plural-
ity would hold further that the demands of attorney preparation, eth-
ics, and constitutional provisions require that the rule permit attorneys
to discuss the testimony of prior witnesses with prospective witnesses
in preparing them for trial. It adds that if a witness is inappropriately
coached, the remedy is through cross-examination, thus eviscerating,
in essence, the proscription of Rule 615 as it applies to attorneys.
The government argues on appeal that the "serious and dangerous
nature of this argument cannot be overstated. If attorneys are allowed
to conduct themselves in a manner that undermines the purpose of
court orders, those orders and our function as ``officers of the Court'
are rendered meaningless." The government notes that excusing
39
defense counsel from compliance with sequestration orders would
subject rulings of trial courts to "the word games so popular in our
public life today. We believe this Court should not countenance those
games at the expense of justice, truth and the proper functioning of
our court system."
For the reasons that follow, I heartily agree with the government's
position. The plurality's opinion would be without precedent and
would all but render Rule 615 a hollow shell, since attorneys try virtu-
ally all cases in which a Rule 615 order is imposed. Under the plurali-
ty's holding, attorneys could legally undermine sequestration orders
simply by acting as "go-betweens," relating to prospective witnesses
what has already been testified to by other witnesses.
II
The operative language of Federal Rule of Evidence 615 reads: "At
the request of a party the court shall order witnesses excluded so that
they cannot hear the testimony of other witnesses, and it may make
the order of its own motion." This rule is designed to discourage and
expose fabrication, inaccuracy, and collusion by limiting the ability
of one witness to shape his testimony to match that given by other
witnesses at trial. See Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625,
628 (4th Cir. 1996). The rule is one of the most important trial mecha-
nisms for reaching truth. Indeed, it is recognized that the sequestration
of witnesses is "one of the greatest engines that the skill of man has
ever invented for the detection of liars in a court of justice." Id. (quot-
ing 6 John Henry Wigmore, Wigmore on Evidence § 1838, at 463
(James H. Chadbourn ed., 1976)). The mechanism is not a creation of
Rule 615, but represents the wisdom of the ages. In the book of
Susanna, in the Apocrypha, Susanna of Biblical times was charged
with adultery, for which the penalty was death. Daniel, suspecting
complicity between the two prosecutorial witnesses, issued this order:
"Separate [the witnesses] far from each other, and I will examine
them." Apocrypha, Susanna, v. 51 (New Rev. Standard Version).
When the process revealed material discrepancies in the witnesses'
stories, Susanna was acquitted and the witnesses were beheaded for
giving false testimony. Professor Wigmore, characterizing the pedi-
gree and importance of the sequestration rule, states, "There is per-
haps no testimonial expedient which, with as long a history, has
40
persisted in this manner without essential change." 6 Wigmore on Evi-
dence § 1837, at 457.
While the express directive of Rule 615 -- that witnesses be "ex-
cluded so that they cannot hear the testimony of other witnesses" --
suggests most immediately the exclusion of witnesses from the court-
room, it has always been understood also to preclude the discussion
among witnesses of testimony that has taken place in the courtroom.
Common sense commands that if a rule prohibits a witness from
"hearing" the testimony of other witnesses, the prohibition is violated
if the testimony of a prior witness is repeated and heard in the court-
house corridor or outside on the street. As Professor Wigmore points
out, a sequestration of witnesses of necessity includes requirements
that (1) prospective witnesses not consult with each other; (2) one
witness not listen to the testimony of another; and (3) a witness who
has left the stand not consult with a prospective witness. See 6 Wig-
more on Evidence § 1840, at 471.1 While Professor Wigmore recog-
nizes that a trial judge may relax these requirements in the court's
discretion, he admonishes that "nothing should sanction any indirect
method of conveying to the prospective witnesses information of the
testimony already given. For example, it would seem obvious to good
sense that the perusal of journals reporting the testimony should be
forbidden." Id. at 471-72.
_________________________________________________________________
1 Judge King suggests an absence of any authority for the proposition
that when Rule 615 is invoked, "a witness [is prohibited] from hearing,
in any form whatsoever, anything contained in a prior witness's testi-
mony." Ante at 10 n.6. As I further develop this point below, I note at
this point, only to respond to Judge King, that Rule 615 itself provides
for sequestration "so that [witnesses] cannot hear the testimony of other
witnesses." Fed. R. Evid. 615 (emphasis added). While the purpose of
Rule 615 in preventing witnesses from "hearing" the testimony of prior
witnesses is not limited in the Rule to any particular location, were there
any doubt, our own precedent holds that "hearing" includes the reading
of testimony outside of the courtroom. See United States v. McMahon,
104 F.3d 638 (4th Cir. 1997). This is a universally understood reading
of the Rule. See, e.g. Perry v. Leeke, 488 U.S. 272, 281 (1989); Miller
v. Universal City Studio, Inc., 615 F.2d 1365, 1373 (5th Cir. 1981); State
v. Steele, 359 S.E.2d 558, 562 (W. Va. 1987).
41
Even the plurality acknowledges that the sequestration of witnesses
under Rule 615 requires that witnesses "not discuss the case among
themselves or anyone else . . . ." Ante at 11. Indeed, the Supreme
Court has recognized this prohibition not only as "common practice,"
but also as a "corollary" of Rule 615. Perry v. Leeke, 488 U.S. 272,
281 (1989). The Court noted that the rule is enforced "to lessen the
danger that [witnesses'] testimony will be influenced by hearing what
other witnesses have to say, and to increase the likelihood that they
will confine themselves to truthful statements based on their own rec-
ollections." Id. at 281-82. Thus, the common understanding is that the
prohibition against "hearing" what other witnesses have stated in the
courtroom extends to the learning of testimony outside of the court-
room. We explicitly recognized this in United States v. McMahon,
104 F.3d 638 (4th Cir. 1997), where we upheld the contempt convic-
tion of a witness, who was subject to a Rule 615 sequestration order,
for reading daily trial transcripts and sending his secretary to the
courtroom to find out what was transpiring. The order in McMahon
was the most simple invocation of Rule 615: "The Government's
motion to sequester the Defendant's witnesses will be granted, and
the Defendant's witnesses will be excluded from the courtroom." 104
F.3d at 640; see also Miller v. Universal City Studios, Inc., 650 F.2d
1365, 1373 (5th Cir. 1981) (holding that Rule 615 prohibits the read-
ing of trial transcripts); State v. Steele, 359 S.E.2d 558, 562 (W. Va.
1987) (listening to "mechanical recordings" of courtroom testimony
violates sequestration order). As the Fifth Circuit explained in Miller,
"The opportunity to shape testimony is as great with a witness who
reads trial testimony as with one who hears the testimony in open
court." 650 F.2d at 1373.
While the plurality does not seem to take issue with the notion that
Rule 615 prohibits one witness from speaking with another witness
or with anyone else, it would hold that a witness may discuss with an
attorney the testimony of another witness: "This Rule's plain lan-
guage relates only to ``witnesses' . . . . Thus, Rule 615 did not prohibit
Mr. Scofield from discussing D. S. Davis's testimony with Corwin
Alexander." Ante at 10. As the plurality observes, "nothing on the
face of [Rule 615] addresses the conduct of lawyers in any way." Ante
at 10.
This observation is remarkable in two respects. First, a rule that
prohibits a witness from "hearing" the testimony of other witnesses
42
must include a prohibition against hearing that testimony not only
from another witness directly but also through intermediaries. This is
a necessary conclusion, as the plurality acknowledges. And second,
if Rule 615 precludes a person from acting as an intermediary to
relate to one witness the testimony of another, how can we exempt an
attorney from the proscription? Just as a discussion among witnesses
outside the courtroom would frustrate the rule that one witness cannot
hear the testimony of another, a discussion between a witness and an
attorney about another witness' testimony frustrates the rule. This is
the specific holding of the Fifth Circuit in Jerry Parks Equip. Co. v.
Southeast Equip. Co., Inc., 817 F.2d 340 (5th Cir. 1987). In that case,
the party and its counsel met with the witness during lunchtime. The
court not only found a violation of Rule 615, but also, because the
party's attorneys were involved, upheld the district court's exclusion
of the witness' testimony. See id. at 342-43. The Supreme Court cited
this case with approval in Perry v. Leeke, invoking it as an example
of the "common practice" under Rule 615 and summarizing it as
involving the "improper discussion of [a] case by defense witness
with defense counsel." 488 U.S. at 281 & n.4.
Thus, while the plurality seems to endorse an interpretation of Rule
615 that would prohibit witnesses from discussing testimony among
themselves or with anyone else, it maintains that the "someone else"
does not mean an attorney and that somehow an attorney has a license
to violate the proscription and frustrate the rule. Stated otherwise,
while two witnesses are prohibited from discussing testimony with
each other directly, they may conduct such a discussion through the
ears and mouth of an attorney. This conclusion is neither logical nor
supported by precedent.2
_________________________________________________________________
2 In a separate opinion, Judge Luttig agrees, arguing that attorneys in
a case subject to a Rule 615 sequestration order are prohibited only "in
spirit" from acting as a "go-between" two witnesses -- one who has testi-
fied and the other who is about to testify. He argues that the district
court's order that "witnesses shall not discuss one with the other their
testimony" is not addressed to attorneys and therefore permits a practice
by which an attorney can act as the eyes and ears of communication
between witnesses. I would reject this practice not only as directly viola-
tive of the court's order but also as contumacious.
43
To be sure, the cases and text relied upon by the plurality acknowl-
edge that attorneys may discuss "the case" with witnesses, but this
observation does not suggest that the attorneys may, in the face of a
sequestration order, relate to a prospective witness the testimony that
a prior witness has given. The plurality rationalizes its attorney excep-
tion on three bases. First, "[t]horough preparation demands that an
attorney interview and prepare witnesses before they testify. No com-
petent lawyer would call a witness without appropriate and thorough
pre-trial interviews and discussion." Ante at 14. But it does not follow
from this observation that an attorney cannot fulfill this duty of dili-
gence without violating a sequestration order. The attorney may
review facts and arguments with the witness, but the attorney should
not be complicit in shaping testimony and matching it with the testi-
mony of other witnesses.
Second, the plurality suggests that the attorney in this case "had
ethical (and possibly constitutional) duties to investigate [Davis'] alle-
gations with Alexander before he put Alexander on the stand." Ante
at 15. Again, however, the attorney could have fulfilled those duties
by asking Alexander what he knew of the events about which he was
going to testify. But relating to Alexander the testimony of a prior
witness allowed Alexander to "hear" the testimony of that prior wit-
ness, directly in violation of Rule 615.
Finally, acknowledging that an attorney exception to Rule 615
would permit attorneys to "coach" witnesses, the plurality seeks to
provide assurance by identifying other truth-seeking mechanisms:
"[I]f an attorney has inappropriately ``coached' a witness, thorough
cross-examination of that witness violates no privilege and is entirely
appropriate and sufficient to address the issue." Ante at 16.
The lofty purpose of Rule 615 deserves greater deference than it
would be given if it were allowed to be engulfed by an attorney
exception for trial preparation. And the rule is forfeited altogether by
arguing that even though the truth-seeking purpose of Rule 615 might
be debased by an attorney exception, cross-examination will fill the
gap. The rule is given, and we ought to enforce it. And it is totally
inconsistent with the "common practice" under the rule to allow an
attorney to tell a prospective witness what a prior witness has said on
the witness stand. The attorney in this case heard the order from the
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court, and by telling a prospective witness about the testimony of a
prior witness, the attorney directly violated the court's order.
III
For the reasons given by Chief Judge Wilkinson, I find that the dis-
trict court's order excluding the testimony of Alexander did not con-
stitute an abuse of discretion. See Jerry Parks , 817 F.2d at 342-43.
Accordingly, I would affirm.
I am authorized to indicate that Chief Judge Wilkinson joins in this
opinion and that Judge Traxler joins in Parts I and II of the opinion
affirming a violation of the district court's sequestration order.
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