United States v. Marc EngelmannUnited States v. Marc Engelmann
Lead Opinion
A jury found Mare Robert Engelmann guilty of conspiracy to commit bank and wire fraud under
In this opinion, we only address one of Engelmann’s points on appeal. Specifically, we vacate the district court’s denial of Engelmann’s motion for a new trial with respect to the alleged sequestration violation. We remand for the district court to conduct an evidentiary hearing on the limited issue of whether the government witnesses’ conversation warranted a new trial, to make supplemental findings of fact, and to reconsider Engelmann’s motion for a new trial in light of any evidence presented at this hearing. We retain jurisdiction to address all of Engelmann’s points on appeal after these further district court proceedings.
I.
Engelmann was a real estate attorney and represented a seller in nine different transactions that form the basis for his convictions. In each of these transactions, the buyer and seller entered into a “dual price” purchasing agreement whereby they provided lenders with inflated sales prices to secure higher loan amounts. The actual sales prices were lower than the amounts provided to the lenders, and the buyers pocketed the difference. All nine mortgages went into first payment default, and the properties were sold at foreclosure.
Engelmann’s defense at trial was that he did not have the requisite intent to defraud because he thought the lenders knew of the dual pricing scheme. During trial, a sequestration order prevented witnesses from being in the courtroom while other witnesses were testifying. Two FBI Special Agents, Jeff Huber and Jim McMillan (collectively “the Agents”), testified at trial that Engelmann told them he knew the lenders were unaware of the dual pricing arrangements. Engelmann, however, testified the Agents merely asked him whether the lenders would be victims of fraud if the lenders did not know of the dual pricing structure, and Engelmann responded that they would be victims under those facts. In closing argument, the prosecutor characterized the Agents’ version of Engelmann’s statement as “the most important evidence that has been presented” and “the most powerful evidence about the defendant’s guilt in this case.” The prosecutor argued Agent McMillan’s testimony regarding the statement was especially
After the jury returned its guilty verdict, a man identifying himself as Richard McNamara called the district court judge’s chambers. According to the district court’s summary of this phone call, McNamara
informed the Court that he had attended the Engelmann trial and wanted to advise the Court of what he perceived as an “injustice” that had occurred during trial. Mr. McNamara reported that, during a court recess after SA Huber had testified, Mr. McNamara observed SA Huber talking to SA McMillan, who had not been in the courtroom during SA Huber’s testimony. According to Mr. McNamara, the two agents were discussing SA Huber’s testimony regarding the procedure and techniques the agents had used during the case investigation. Mr. McNamara also reported that he saw SA Huber look at the notes he had referred to during his testimony. Mr. McNamara said he felt this observation was significant because SA McMillan later gave testimony consistent with SA Huber’s testimony regarding the agents’ procedure and techniques in their investigation and as to what [Engelmann] had told them during the interview. Mr. McNamara further expressed that it was his recollection that the Government argued in closing that SA Huber and SA McMillan had testified independently and that they had never spoken to one another about their testimonies.
United States v. Engelmann,
Engelmann moved for a new trial on the basis that the conversation deprived him of his rights to a fair trial and to effective assistance of counsel. More specifically, Engelmann argued that since the conversation did not come to light until after the jury’s verdict, he did not have the opportunity to cross-examine the Agents regarding the alleged communication and that the prosecutor made false statements to the jury in closing arguments. Engelmann also requested an evidentiary hearing on the motion.
The district court denied Engelmann’s motion for a new trial without making any reference to his request for an evidentiary hearing. First, the court held the record did not contain sufficient evidence of McNamara’s observations since McNamara neither submitted a sworn affidavit nor was an officer of the court under a sworn duty to the court. Id. at 991. Second, the court said that even if everything McNamara said were true, Engelmann still would not be entitled to a new trial because the Agents’ conduct did not violate the sequestration order. Id. at 991-92. The court reasoned the sequestration order did not forbid Agent Huber from being present in the courtroom during Agent McMillan’s testimony because Agent Huber was the government’s designated case agent at trial. Id. at 992. Furthermore, the “sequestration order merely excluded witnesses from the courtroom; it did not prohibit attorneys or SA Huber from meeting with a witness during the trial.” Id. Third, the court held that even if the conversation did violate the sequestration order, Engelmann did not show prejudice since the conversation concerned only the procedures and techniques of the investigation rather than the substance of Engel
II.
“Sequestration of most witnesses is mandatory when requested, but the district court is granted wide latitude in implementing sequestration orders, and the standard of review is abuse of discretion.” United States v. Collins,
As a preliminary matter, Agent Huber was the government’s designated representative in Engelmann’s case, while Agent McMillan was not. As such, the parties agree that Agent Huber’s presence in the courtroom during Agent McMillan’s testimony did not violate the sequestration order. Nor does either party argue the district court erred in allowing Agent Huber to testify. Rather, the only dispute concerns whether the Agents’ alleged out-of-court conversation after Agent Huber’s testimony but before Agent McMillan’s testimony, which allegedly concerned the Agents’ investigation of Engelmann and Agent Huber’s testimony regarding the same, violated the sequestration order.
Unless a district court specifies otherwise in a particular sequestration order, sequestration orders under
Applying this precedent, we hold that the district court abused its discretion in denying Engelmann’s motion for a new trial without first affording Engelmann an evidentiary hearing concerning the alleged conversation. According to the district court’s summary of McNamara’s phone call, McNamara accused Agent McMillan of speaking to Agent Huber during a court recess about Agent Huber’s earlier testimony. Agent McMillan had not yet testified. Thus, this is not a situation like Collins, which involved pre-testimony contact between witnesses, or like Smith, which involved contact between witnesses and a trial observer. Nor, as the dissent suggests, does this case merely involve allegations that a government’s designated representative met with a government witness to prepare for trial. Infra at 881-82.
A district court may properly deny relief related to sequestration violations when the violations do not prejudice a defendant. See, e.g., id. (holding district court did not err in denying motion for mistrial based on sequestration violation when witnesses “offered testimony on two completely different issues that did not overlap and did not involve any of the same facts”); Vallie,
In so holding, we do not express any opinion on the merits of Engelmann’s prejudice argument. The evidentiary hearing might reveal that the Agents’ conversation did not concern their trial testimony, that the conversation never took place at all, or that Engelmann was not otherwise prejudiced by the conversation. However, in the absence of an evidentiary hearing under the specific facts of this case, the district court did not have a principled way to determine whether the alleged conversation violated the sequestration order or whether any violation prejudiced Engelmann. Remand is necessary to further develop these issues.
Accordingly, we vacate the district court’s denial of Engelmann’s motion for a new trial on the limited issue of the alleged sequestration violation. We remand for the district court to hold an evidentiary hearing concerning the Agents’ alleged conversation, to make supplemental findings of fact, and to reconsider Engelmann’s motion for a new trial in light of any evidence presented at that hearing. We retain jurisdiction over this appeal pending the district court proceedings. See United States v. Khabeer,
Notes
. The dissent cites United States v. Rhynes,
Dissenting Opinion
dissenting.
The Court contends that because sequestration orders are meant to prevent witnesses from tailoring their testimony to that of other witnesses, “it would be illogical to hold that Agent McMillan, excluded from the courtroom pursuant to a sequestration order, could wait outside the courtroom doors and then discuss with Agent Huber the testimony which Agent Huber had just given.” Ante at 878. It is not illogical in this case, however, because neither
Based on his brief and his counsel’s statements at oral argument, Engelmann’s sole argument on appeal is that the out-of-court conversation between Special Agents Huber and McMillan violated
Here, Engelmann’s allegations, as reflected in the telephone conversation between courtroom observer Richard McNamara and the district court, fall well short of a potential violation of
Moreover, even under the Court’s more expansive view that
The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in — he always has the client with him to consult during the trial. The investigative agent’s presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty.
Thus, it is accepted that the case-agent exception permits the case agent to sit at the counsel table throughout trial, United States v. Riddle,
As discussed above, in his brief to this court Engelmann failed to articulate any other theory-upon which relief might be available to him beyond an alleged violation of
A district court has “wide discretion” in determining whether to grant an evidentiary hearing, United States v. Baker,
To be sure, the primary purpose of sequestration orders is “to prevent witnesses from tailoring their testimony to that of prior witnesses.” See United States v. Collins,
. The Court notes that before the district court Engelmann argued that the out-of-court conversation also violated his right to a fair trial and to effective assistance of counsel. Ante at 876. There is no reference to ineffective assistance of counsel, denial of a fair trial, or any other additional ground for relief anywhere in Engelmann's brief on appeal. Therefore, those issues are waived. See United States v. Miller,
. The Court cites some of these cases for the proposition that "[w]e implicitly have recognized that sequestration violations are not limited to situations where a witness is present in the courtroom while another witness is testifying.” Ante at 878. (citing United States v. Vallie,
. Other circuits similarly have read
. At least one other circuit also has concluded that
. In the letter the district court explains that the caller:
did not mention the agents by name but said one of them was the "good looking guy sitting at the prosecution table” during the trial; thus I assume he was talking about Special Agent Huber.... [The observer] said that the court called a “normal recess” and that during the recess, SA Huber went into the hallway and was joined by the other FBI agent whom SA Huber had identified during his testimony as his partner/associate agent in the Engelmann investigation; I assume this was Special Agent McMillan. [The observer] said another gentleman joined the two agents, but [he] did not know the third gentleman’s role in the case but "would recognize him” if he saw him.