The defendant-appellant was charged in a three cоunt indictment for violation of Title 18 U.S.C. § 912, by pretending to be an agent оf the Federal Bureau of Investigation and acting as such, and in suсh pretended character demanding and obtaining from onе, Archie Burrus, certain guest registration cards of a motel operated by Burrus.
At the beginning of the trial, counsel for the defendant moved for the exclusion or sequestration of witnesses which mo< tiоn was granted. The jury returned a verdict of guilty and thereafter defendant moved to set the verdict aside on the ground that the Assistant United States Attorney had violated the order of the court by leaving the courtroom and conferring with Charles W. Miller, an F.B.I. agent and government witness, during the time that Burrus, the first government witness, was being cross-examined. After a hearing the district judge denied the motion and this appeal followed.
The purpose of the exclusion rule is, оf course, to prevent the possibility of one witness shaping his tеstimony to match that given by other witnesses at the trial;
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and if a witness violates the
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order he mаy be disciplined by the court. The question of the exclusion of thе testimony of the offending witness, however, depends upon the рarticular circumstances and lies within the sound discretion of thе trial court. Holder v. United States,
From the record it appears thаt at the time of the incident of which appellant comрlains, Burrus was being cross-examined in regard to his acquaintance and contact with the agent Miller whom he apparently hаd known for some time prior to September 10, 1961, the date of thе alleged offense. In response to a question Burrus stated that he had never looked at Miller’s F.B.I. credentials. At this juncture the Assistant United States Attorney left the courtroom and sought out Miller for the purpose of obtaining Miller’s credentials for use on re-dirеct examination of Burrus. Some conversation ensued stemming from Miller’s reluctance to permit the credentials to leаve his possession. The government attorney returned to the courtroom with the credentials and thereafter had them markеd as an exhibit and used them in questioning Burrus. Burrus recognized the exhibit as Miller’s credentials which he then stated he had first seen sometime subsequеnt to September 10, 1961. There was no objection to either the exhibit or testimony of Burrus on this point by defense counsel.
In our oрinion, the record supports the action of the district judge in denying the motion. .Here there was no “shaping” of the testimony of Burrus as a result of the action of government counsel. The cоntact with Miller was for the sole purpose of obtaining the exhibit upon which Burrus was later questioned. The government argues that thе answers of Burrus on cross-examination were the result of confusion on his part relative to the time about which he was being questioned, and the exhibit was necessary to clarify that he had, in fаct, seen Miller’s credentials at a time subsequent to the incidеnt on September 10, 1961. In the light of Burrus’ testimony, we cannot say that the gоvernment’s argument is illogical.
While it may have been an impropriety on the part of counsel for the government to contact Miller without first obtaining leave of the court, the incident was not prejudicial to the defendant, and the judgment of conviction should stand.
Affirmed.
Notes
. Charles v. United States (9th Cir. 1954)