*1 dismissing JLI’s Keener against
claim, judgment. we affirm America,
UNITED STATES
Plaintiff-Appellee, ENGELMANN,
Marc Robert
Defendant-Appellant. 12-1343.
No. Appeals, Court of
Eighth Circuit. Sept.
Submitted: Dec.
Filed: *2 DeVolder, Norfolk, argued, Paul jurisdiction Steven ed We retain IA, appellant. for all Engelmann’s to address of points on appeal after these further district court Keller, USA, D. argued, John Daven- proceedings. IA, port, appellee. for BYE, GRUENDER, Before and I. SHEPHERD, Judges. Circuit Engelmann was a real attorney estate SHEPHERD, Judge. Circuit represented and seller nine different juryA Mare Engelmann found Robert transactions that form the basis for his guilty conspiracy to of commit bank and transactions, of convictions. each these § wire fraud under 18 U.S.C. bank buyer and seller entered into a “dual §§ fraud under 18 U.S.C. and and price” purchasing agreement whereby they §§ wire fraud under 18 U-S.C. and 1343. provided lenders with inflated sales prices Engelmann moved for a new trial on the higher to secure loan amounts. The actual (1) grounds that district failed to prices sales were lower than the amounts properly on jury “good instruct lenders, provided to the the buyers and (2) faith” defense-and a conversation be- pocketed the difference. All nine mort- tween government two gages default, went into first payment trial, a sequestration in contravention of properties were sold at foreclosure. order, rights violated his to fair trial and Engelmann’s defense trial was that he to effective assistance of counsel. He also requisite did have the intent to defraud requested evidentiary hearing on. thought because he the lenders of knew motion. The denied trial, the dual pricing scheme. During motion without hearing, mann’s sen- prevented him imprisonment, tenced to 36 months being the courtroom pay and ordered him to three while other different $392,937.73 testifying. financial institutions a total of witnesses were Two Spe- FBI Engelmann appeals restitution. Agents, dis- cial Jeff Huber and Jim McMillan trict court’s denial of his motion for new (collectively Agents”), “the testified at trial trial, motion, denial on its Engelmann told them he knew the application of a sentencing enhance- lenders were pricing unaware the dual loss, ment based on the amount of and its arrangements. however, Engelmann, tes- restitution awards. Agents merely tified the asked him wheth- er the lenders would be victims of if fraud opinion,
In this we one of address lenders not know of the dual pric- Engelmann’s points appeal. Specifical- structure, ing Engelmann responded ly, we vacate the district court’s denial of they would be victims under those Engelmann’s motion for a new facts. In closing argument, prosecutor respect sequestration viola- characterized the version of En- tion. We remand the district court to gelmann’s as impor- statement “the most evidentiary hearing conduct on the lim- tant presented” evidence that has been ited issue of whether the wit- powerful and “the most trial, evidence about nesses’ conversation warranted a new guilt supplemental findings prose- defendant’s in this case.” The make argued Agent reconsider motion for a cutor McMillan’s new light present- regarding especially statement was informing them of parties in letter to both was not since
credible the communication. Agent Huber testified the benefit of hear- “didn’t have thus trial on moved for a new *3 testimony” be- Agent Huber’s ing Special him of deprived the conversation basis that his own. giving fore fair and to effective rights his to a specifically, of counsel. More assistance guilty jury returned its ver- After the the conver- Engelmann argued that since dict, himself as Richard identifying a man come to until after the light sation did not judge’s district court the McNamara called verdict, jury’s opportu- he did not have the to the district According chambers. regard- nity Agents cross-examine the phone this McNa- summary of ing and that the communication mara false prosecutor made statements that he had attended informed Court jury closing arguments. Engelmann to ad- Engelmann trial wanted evidentiary also an requested perceived as what he vise the Court of the motion. during “injustice” that had occurred that, reported trial. Mr. McNamara court The district denied recess after SA Huber during court making any a new trial motion for without testified, McNamara had Mr. observed request evidentiary reference to his McMillan, who talking Huber SA SA First, the court held the record during in the courtroom not been had contain sufficient evidence of testimony. According to Huber’s SA McNamara’s observations since McNa- McNamara, agents the two were Mr. mara neither submitted a sworn affidavit discussing testimony re- SA Huber’s nor an officer of court under a and techniques garding procedure duty sworn to the court. Id. at 991. Sec- during used the case agents ond, if everything the court said that even re- investigation. Mr. McNamara also true, Engelmann were McNamara said SA Huber look at the ported he saw still not be entitled to new trial would during he had referred his testi- *4 standard of review is abuse of discretion.” witnesses). nicate with purpose “The Collins, United States 340 F.3d sequestration is to prevent witnesses Cir.2003) (internal omitted). citation tailoring their testimony prior that of provides, Federal Rule Evidence 615 witnesses and to aid in detection of dishon request, that part, party’s relevant “[a]t Collins, esty.” 681. Applying the court must order witnesses excluded so principle, this we held placing have that they that cannot hear other witnesses’ tes two trial witnesses in holding the same cell However, timony.” Fed.R.Evid. 615. before one either had testified did not explicitly Rule 615 “does not authorize ex violate upheld Id. alsoWe have cluding employee ... officer or determination, a district court’s after an party is not a person, that natural after evidentiary hearing, that a non-testifying being designated party’s represen as the police officer did not violate a sequestra tative A attorney.” person Id. des tion order throughout when he “took notes ignated a party’s representative as can be relayed the trial and this information to present in the government waiting testify.” witnesses testimony, and decision “[t]he whether to Smith, United States v. government’s agent testify allow the (8th Cir.1978). though even sits at the counsel throughout table the trial is left to Applying precedent, we hold court’s discretion.” United States v. that the district court abused its discretion (8th Cir.1992). Sykes, Engelmann’s in denying motion new matter, As a preliminary Agent Huber affording Engelmann without first government’s designated was the repre- evidentiary hearing concerning alleged case, sentative According conversation. to the district such, Agent not. McMillan was As summary phone McNamara’s parties agree Agent presence Huber’s Agent McNamara accused McMillan during Agent McMillan’s of speaking Agent Huber a court testimony did not violate the sequestration Agent recess about Huber’s testi earlier order. does party argue mony. Nor either Agent yet McMillan testi Thus, court erred in allowing Agent Hu- fied. this is situation like testify. Rather, Collins, ber to only dispute which pre-testimony involved con concerns whether witnesses, Smith, out- tact between or like of-court Agent conversation after Huber’s which involved contact between witnesses testimony Agent Nor, but before McMillan’s and a trial as observer. the dissent testimony, which allegedly suggests, concerned the does this merely involve Agents’ investigation allegations government’s Agent testimony regarding representative met with a wit same, the sequestration violated ness prepare for trial. at 881-82. Infra (hold- facts”); Vallie, F.3d at 921 allegations that same
Rather, specific are these allowing err in directly ing details of district court did not disclosed testimony Agent McMillan trial observers to communicate se- earlier “no testified questered witnesses before subject. implicitly evidence conversations between We very same sequestered violations trial observers recognized a wit- to situations where limited in tailored or otherwise are not resulted defendant). Here, in the courtroom while prejudiced” ness is howev- See, e.g., testifying. er, another witness characterized the prosecutor Vallie, important “the most Agents’ testimony as (analyzing whether presented” has been trial observers between powerful “the most evidence about the de- order); violated guilt in this case.” Under the fendant’s Kindle, of this the district court facts abused *5 (8th Cir.1991) (analyzing whether Engelmann’s in denying discretion re- agents case DEA between hearing, concluding, in quested evidentiary order). sequestration violated findings regard- of factual any the absence are meant “to sequestration Since orders conversation, alleged that ing the the con- tes- tailoring their prevent witnesses sequestration versation did not violate witnesses,” Collins, prior timony that of prejudice Engelmann. or illogical at would be holding, express any not so we do McMillan, Agent excluded from hold that Engelmann’s opinion prej- on merits of sequestration pursuant courtroom evidentiary argument. hearing udice order, wait outside the courtroom could might reveal that the conversation Agent Huber and then discuss with doors testimony, not concern just testimony Huber had Agent which all, at place the conversation never took given.1 otherwise preju- was not However, by the diced conversation. deny may properly A district court evidentiary of an un- the absence violations sequestration relief related case, specific of this der facts prejudice not when the violations do principled way court did not have a (holding district id. defendant. alleged to determine whether the conver- motion for denying not err court did sequestration violated order or sation on violation mistrial based any prejudiced Engel- violation testimony on two whether when witnesses “offered necessary Remand to further that did not mann. completely different issues any develop these issues. and did overlap involve prevent Rhynes, (holding did not 313-16 that Rule 615 1. The dissent cites United States (4th Cir.2000) discussing attorney and United defendant's earlier (1st Sepulveda, with later de- F.3d witness’s testified); witness proposition cir- fense witness before defense "[o]ther for the similarly (holding Sepulveda, 615 as a mere 1175-77 cuits read Rule holding placing several in same cell presence in the court- limitation witnesses' room, sequestration order.” trial was "automatic violation of absent a broader order”). However, Rhynes n.4. nor standard Unlike at 880 neither Infra Rhynes Sepulveda, Sepulveda specific allegations of one the alle- involved situations effectively Engelmann’s place prior gations tes- case directly disclosing details of timony McMillan in the to a second witness before second testimony. Rhynes, See witness testified. III. does not prohibit case agent, even one testifies in who Accordingly, we vacate the district conferring witness, with another denial of motion court’s for to conclude otherwise reads into Rule 615 on the limited issue of the new limitation on case conduct that violation. We for remand simply Finally, does not exist. even if the an evidentiary district court to hold alleged out-of-court contact might be hearing concerning Agents’ alleged improper, viewed as the district court was conversation, supplemental to make find- within its discretion find that Engel- ings and to reconsider mann failed to sufficient evidence light mann’s motion for a trial in new require Therefore, a hearing. I re- at that presented spectfully dissent. jurisdiction over appeal retain We Based on pending proceedings. the district court his brief and his counsel’s Khabeer, statements at oral argument, Engelmann’s See States v. (8th Cir.2005) (“[W]e argument sole on appeal remand the is that the out-of- Special district court conversation between Agents limited purpose making supplemental findings and McMillan violated Rule 615 and necessary the district of fact to the resolution of the order.2 claims, retaining jurisdiction.”). assuming ... Even agents two con- suggested
ferred as to the district court in *6 telephone neither Rule GRUENDER, 615 nor Judge, dissenting. Circuit sequestration court’s order was violated. The Court contends that because se- potential In the absence of a violation of questration prevent orders meant to are 615, sequestration Rule or order, or their tailoring testimony any theory other relief, articulated witnesses, “it to that other would be il- remand unnecessary. for a is McMillan, to hold that logical Agent ex- pursuant only cluded to a Rule 615 requires that witnesses be order, wait sequestration they could outside “excluded so that cannot hear other then doors and discuss witnesses’ testimony.” Fed.R.Evid. 615. Agent with Huber the traditionally sequestration which We read just given.” Huber had at narrowly, Ante orders that invoke Rule 615 in It is not illogical terpreting only howev- them to reach actual court er, 615 presence because neither Rule nor the dis- room of witnesses. Collins, prohibit-
trict court’s
order
672,
United States v.
681
contact,
(8th Cir.2003)
and,
ed such out-of-court
even if
(holding that pre-testimony
did, Special Agent
it
was the
Huber
Gov- conversations
between two
agent.
ernment’s
ease
Rule witnesses did not violate the court’s se-
addition,
Cir.2009).
Engelmann
Court notes
before the
specifical-
district
In
Engelmann argued
out-of-court
ly
any potential prosecutorial
disclaimed
mis-
right
conversation also violated his
to a fair
argument
respect
conduct
prose-
with
and to
effective assistance of counsel.
closing argument.
Arg.
cutor's
Oral
at 36:04-
at 876. There
Ante
is no reference to ineffec-
counsel,
Moreover,
36:08.
the extent he
has an
tive assistance of
denial of a fair
claim,
ineffective assistance of counsel
trial,
ground
other additional
for relief
brought
would better be
under 28 U.S.C.
anywhere
Engelmann's
appeal.
brief on
§
Hughes,
2255. See United States v.
330
Therefore, those issues are waived. See Unit-
1068,
(8th Cir.2003).
F.3d
1069
Miller,
560,
ed States v.
F.3d
567
588
order);
with
witnesses.”
States v.
United
questration
(8th Cir.1989).
Stewart,
256,
F.2d
1227,
Smith,
was not violated
that Rule 615
(holding
Here, Engelmann’s allegations, as re-
*7
prevent
trial courts to
“does
authorize
hurdle
attempts
by
Court
overcome this
in
conferring
allegations
from
arguing
“[t]he
executive branch officials
courtroom”);
Court
of these
United States
Se-
3. The
cites some
cases for
from
1161,
(1st Cir.1993)
implicitly
recog-
pulveda,
proposition
"[w]e
15
1176
("Rule
reserve;
sequestration
contemplates
small[]
nized that
violations are
615
a
terms,
pres-
a
by
limited to
where witness is
situations
its
courts must
‘order witnesses
is
only
proper.”).
ent in the courtroom
another witness
excluded'
courtroom
(citing
testifying.”
distinguish
Ante at 878.
attempts
The
these
Court
cases
Vallie,
(8th Cir.2002);
284 F.3d
921
grounds
on the
that neither case deals with a
Kindle,
276).
In
925 F.2d at
each of those
"allegations
situation where
... effective-
cases, however,
reached
place
we never
the issue
ly
during
in
[a witness]
the courtroom
a violation of the
whether
district
agent’s] testimony.”
at 878
[a case
Ante
n.l.
however,
If,
order
con-
because we
purported
Court’s
concern
is
no evidence that
cluded
there was
presence”
witness's “effective
courtroom,
tailored
conversations
resulted in
equally
in
is
that concern
Vallie,
prejudice
the defendant. See
Rhynes
or in
in
in situations like those
921; Kindle,
F.3d at
615(2). In the criminal con- prosecution Cir.1992). Additionally, text, routinely designates the Government given that is “commonplace” for at- a member of law enforcement who is famil- torney to conduct out-of-court consulta- agent” iar the case as its “case tions with clients and representative. serve as the Government’s trial, § Wright course of see & Gold exception Rule 615 en- case-agent This it is illogical standard accuracy fairness and sures be to prohibit designat- order could read proceedings. e.g., 29 Alan Charles assisting in prepa- ed case Gold, Wright & Victor James Federal ration, including meeting and conferring Evidence, § Practice Procedure: with witnesses.5 As the ex- (1997) Wright As the [hereinafter & Gold]. plained, sequestration order “did not Advisory explain: *8 gelmann,
tion to the rule of exclusion and com-
827
at
F.Supp.2d
988. The
Court, however,
pares with the situation defense counsel
overrides
the district
always
understanding
finds himself in—he
the
court’s
has
of
own order.
Instead,
client with him to consult
the
the Court would force a testifying
trial.
investigative agent’s presence
agent
meetings
The
case
to conduct
with other
may
extremely important
govern-
setting
be
to
an
artificial
which
precedent
implicit
5. At least one other circuit
has
the
also
concluded
Court cites no
for its
permits
agent
designated
that Rule 615
a
case
prohibits
conclusion that Rule 615 alone
a
sit at
to
the counsel table
the testimo
agent
discussing
case
ny of
prepa
other witnesses
to aid in trial
course,
testimony with a witness. Of
the fact
Phibbs,
ration.
United States
F.2d
See
v.
999
and contents of such a discussion—-and
1993) (explaining
1073
Cir.
the
that
improper coaching
to
whether
amounted
of
terms of Rule 615
not bar discussion be
do
subject
properly
the
be
would
the
of
witness —
government’s
agent-witness
tween the
case
by
(citing
the
cross-examination
defense.
Id.
and another
the
a court
witness in
absence of
States,
80, 89-91,
U.S.
Geders v.
the
order
case
not “discuss
(1976)).
S.Ct.
was within grant court’s decision on whether to such present sufficient evi- gelmann failed discretion, hearing for an abuse of see The hearing. record require dence to Preciado, 336 I find no abuse contains a letter if the discretion here. evidence parties telephone informing presented require here sufficient to were regarding call it received a conversation evidentiary case-agent hearing, the ex- people that the court “assume[d]” between to Rule 615 would be eviscerated ception Huber and McMil- Special Agents be to. post-trial fishing expeditions routine put After district court’s letter lan.6 agent’s into the contents of out-of- parties on notice out-of- the agents, court conversation between with witnesses. failed to Engelmann sworn sure, primary se- purpose To be any verify other statement evidence questration is “to prevent orders phone matters raised much testimony to tailoring that of support allegations that “specific less to prior witnesses.” See United States directly disclosed details of Cir.2003). Collins, testimony to Agent his earlier However, here, even allegations taken before McMillan testified.” Ante value, at face establish no violation of ei- Nothing suggests in the letter ther Rule 615 or the district se- any difficulty
Engelmann would questration in this there is obtaining such an affidavit. letter competent no alle- support parties informed the trial observer’s gations made. were does McNamara, identity, Richard stated theory not articulate other could that when “Mr. McNamara was asked his Therefore, entitle him to relief. connection to trial ... said he that his no for a are basis remand Because wife and wife friends.” *9 otherwise, explain why an I respect- The Court does not unveri- the Court concludes explains 6. agent In the letter the district court FBI whom iden- other SA the caller: during partner/as- tified as his agents did not mention the but name investiga- sociate in the "good looking guy one was said of them tion; Special Agent I assume sitting prosecution at the table” McMillan. said [The observer] another trial; thus talking I assume he was about gentleman agents, joined the [he] two but Special Agent Huber.... [The observer] gentleman’s third did not know the role said the court called a “normal recess” recognize the case but "would him” if he recess, and that SA Huber went him. saw hallway joined by into the and was remand, fully dissent from this limited
would affirm the district court’s decision issue, proceed
on this and would Engelmann’s ap-
other matters raised in
peal. America,
UNITED STATES
Plaintiff-Appellee,
Anthony AKITI, Defendant-Appellant.
No. 11-3399. of Appeals,
United States Court
Eighth Circuit.
Submitted: 2012. Oct.
Filed: Dec.
Rehearing Rehearing En Banc
Denied Feb. notes did not because conduct violate said mony. Mr. he felt McNamara at 991-92. Id. significant because SA observation was reasoned or- testimony consis- gave McMillan later being der did not forbid Huber from testimony regard- SA tent with during Agent in the courtroom ing agents’ procedure and tech- Agent Hu- McMillan’s because niques investigation and as to government’s designated ber was the [Engelmann] had told them what Furthermore, agent at trial. Id. Mr. McNamara further interview. merely the “sequestration order excluded expressed that it was recollection courtroom; from the it did not argued closing that the Government prohibit attorneys or SA McMillan had SA Huber and SA meeting with a the trial.” independently they testified Third, if Id. the court that even held spoken had never to one another about conversation did violate the their testimonies. order, Engelmann prejudice did not show since the conversation concerned Engelmann, United States (S.D.Iowa 2011) (foot- the investi- procedures techniques F.Supp.2d omitted). gation rather than substance of note The district court wrote confession, since was no mann’s Unless district court specifies a particular sequestration evidence of collusion.Id. otherwise in or der, sequestration orders under Rule 615 do not all forbid all trial wit II. nesses at all times. “Sequestration most witnesses Stewart, mandatory requested, is but the dis Cir.1989) (holding district court did not err granted trict wide im latitude in issuing order explicitly sequestration orders, plementing and the permitting government agents to commu
Notes
notes telephone took police officer conversation be- flected in Richard McNa- tween courtroom observer waiting to witnesses relayed them trial and court, fall well short mara and the district sequestration order testify because violation of Rule 615 or the potential exclusion was limited 'witnesses’ seqúestration An district court’s order. courtroom). a district court un- While alleged out-of-court conversation between may have discre- circumstances der some McMillan, Special Agents Huber and or- tion to enter broader itself, a viola- is insufficient constitute Kindle, der, see United States tion Rule 615 or the court’s se- of either (8th Cir.1991), the district court makes questration no here, Engelmann, see not do so allegation Special McMillan 2011) (ex- (S.D.Iowa 985, 992 F.Supp.2d directly in the courtroom or “the Court’s plaining Special Agent Huber’s testimo- overheard from the court- merely excluded witnesses ny. argues He that an out-of-court room”), not and such a broad order is Special Agents discussion between Kin- required comply see potentially involving dle, 276; see also testimony is a violation of Rule 615 and the Calderin-Rodriguez, 244 F.3d order. That (8th Cir.2001) (“Rule 615 does however, argument, inconsistent with to forbid contact be- require [the] our narrow view of Rule and the tween DEA case and witness [a] Stewart, Collins, discussion of Court’s trial.”) Kindle, (citing Smith, explain ante at how does 276).3 we have said Rule 615 they support contrary conclusion.4 The
Notes Committee prohibit attorneys SA Huber practice permitted excep- meeting as an awith witness trial.” En-