United States v. Etienne , 293 F. App'x 977 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4008
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH F. ETIENNE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:06-cr-00150-JRS-1)
Submitted: July 18, 2007 Decided: September 24, 2008
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Craig W. Sampson, BARNES LAW FIRM, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Brian Lee
Whisler, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Joseph Etienne was convicted of
conspiracy to commit health care fraud, in violation of 18 U.S.C.
§ 1349 (2000), multiple counts of health care fraud, in violation
of 18 U.S.C. §§ 1374, 2 (2000), and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000).
Etienne was sentenced to 120 months of imprisonment. On appeal, he
raises two issues. For the following reasons, we affirm.
Etienne first asserts that the district court abused its
discretion by permitting a government agent (Agent Costen), who was
not sequestered as a witness, to testify regarding the § 922(g)(1)
firearm charge after observing the testimony of another government
agent (Agent Gladwin) on that issue. At the outset of the trial,
the court granted the Government’s unopposed request to have both
Costen and Gladwin remain in the courtroom for trial, based on the
Government’s assertion that only Gladwin would testify. Gladwin
testified on direct examination that, during an interview of
Etienne by Costen and Gladwin in Etienne’s residence
contemporaneous with a search thereof, Gladwin confronted Etienne
with information that agents had found a gun in the residence.
According to Gladwin, Etienne responded by saying “he forgot to
tell us that it was there,” and that the gun “was [his roommate]
LeVaughn Walker’s grandfather’s gun and that it had been given to
LeVaughn Walker.” J.A. 464. Gladwin also testified that Etienne
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took some breaks from the interview to make telephone calls, and
that Gladwin overheard Etienne’s side of one such conversation with
Walker’s mother, Celestine Green. Gladwin testified that “[w]hen
[Etienne] got on the phone, within like the first ten seconds, I
remember [him] saying, ‘They found the gun.’” Id. at 463. When
challenged to do so on cross-examination, however, Gladwin could
not specify whether Etienne had said agents found “the” gun or “a”
gun. Id. at 494. Over Etienne’s objection, the Government then
was permitted to call Costen to the stand. The sole purpose of the
Government’s examination of Costen was to establish that Etienne
had told Green during their telephone conversation that agents
found “the” gun. J.A. 507. The defense did not cross-examine
Costen, and the Government rested its case. Thereafter, the
defense unsuccessfully moved to strike Costen’s testimony for
failure to sequester her.
Ordinarily, when Federal Rule of Evidence 615 (relating
to sequestration of witnesses) is invoked, the Government “may be
permitted to have only one case agent in the courtroom during
trial.” United States v. Kosko, 870 F.2d 162, 164 (4th Cir. 1989)
(citing United States v. Farnham, 791 F.2d 331, 335 (4th Cir.
1986)). “[T]he sequestration of witnesses effectively discourages
and exposes fabrication, inaccuracy, and collusion,” and
“[s]crupulous adherence to [Rule 615] is particularly necessary in
those cases in which the outcome depends on the relative
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credibility of the parties’ witnesses.” Farnham, 791 F.2d at 335.
In Farnham,
we were willing to, in effect, presume prejudice where
the district court clearly violated the rule by allowing
both testifying government agents to remain in court
during each other’s testimony and where it would be
impossible for the defendant to prove that the second
agent’s testimony would have been different if he had not
heard the first agent’s testimony.
United States v. Harris, 39 F.3d 1262, 1268 (4th Cir. 1994) (citing
Farnham, 791 F.2d at 335). Nevertheless, we recognized in Harris
that violations of Rule 615 are subject to the harmless error rule
and, thus, that an error in nonsequestration does not warrant per
se reversal if the circumstances of a particular case illustrate
clearly that the witness’s testimony had no substantial influence
on the verdict. Id.Even accepting that a violation of Rule 615 occurred here
(an issue that the Government disputes on the premise that the
trial court properly exercised its discretion), we conclude under
the circumstances presented that the district court’s decision to
permit Costen to testify was harmless error. That is, Etienne’s
conviction under § 922(g)(1) is supported by other substantial
evidence. See Fed. R. Crim. P. 52(a); United States v. Ince, 21
F.3d 576, 583 (4th Cir. 1994). For instance, Gladwin testified
that, when confronted during the interview with information about
the gun, Etienne indicated that he knew but forgot to tell agents
about the gun’s presence in his residence. Furthermore, the gun
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was found in a dresser along with business and banking documents
bearing Etienne’s and Walker’s names, and Etienne’s driver’s
license and a yellow bracelet bearing his name were found nearby in
a cigar box.
Next, Etienne asserts that the district court erred in
refusing to give his proposed jury instruction. We review the
decision to give, or not to give, a jury instruction and the
content of that instruction for an abuse of discretion. United
States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). The district
court’s refusal to grant a requested jury instruction is reversible
error only if the proffered instruction “(1) was correct; (2) was
not substantially covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important, that failure
to give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” United States v.
Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks
omitted). Etienne has not met the above requirements for
reversible error, in that his requested jury instruction was
substantially covered by the court’s charge to the jury.
Accordingly, we find that the district court did not abuse its
discretion in refusing Etienne’s requested instruction.
For the reasons stated herein, we affirm Etienne’s
convictions and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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