943 F. Supp. 2d 1329
M.D. Ala.2013Background
- Forehand is charged with wire, mail, and securities fraud and transacting in criminally derived property.
- The government seeks to exempt its expert Philip A. Feigin from sequestration under Fed. R. Evid. 615(c).
- Feigin will base opinions on trial testimony from victim-investors to define whether investments meet the definition of 'securities' under federal law.
- Rule 703 allows experts to base opinions on facts the expert is aware of, including trial testimony presented at trial.
- The court weighs the essentiality of Feigin’s presence against Rule 615’s purpose and concludes Feigin’s presence is essential and should be allowed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Feigin may remain in court under Rule 615(c). | Government argues Feigin is essential due to securities element. | Forehand contends expert must be sequestered to avoid prejudice. | Feigin may remain in the courtroom. |
| Whether Rule 703 automatic exemption applies to sequestration. | Rule 703 supports opinions based on trial facts. | No automatic exemption for experts from sequestration. | Rule 703 is not an automatic exemption; but Feigin's presence is still allowed for orderly trial. |
Key Cases Cited
- Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir.1981) (Rule 703 does not furnish an automatic basis for exempting an expert from sequestration)
- United States v. Olofson, 563 F.3d 652 (7th Cir.2009) (Rule 703 is not an automatic exception for experts from Rule 615 sequestration)
- Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625 (4th Cir.1996) (Declining to adopt per se rule exempting expert witnesses from sequestration)
- Morvant v. Construction Aggregates Corp., 570 F.2d 626 (6th Cir.1978) (Rejected automatic exemption for experts)
- United States v. Jackson, 60 F.3d 128 (2d Cir.1995) (Strong presumption in favor of sequestration; government must show essentiality)