Filed: Jul. 24, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 7-24-2003 USA v. Drummond Precedential or Non-Precedential: Non-Precedential Docket No. 02-4012 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Drummond" (2003). 2003 Decisions. Paper 345. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/345 This decision is brought to you for free and open access by the Opinions of the United St
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 7-24-2003 USA v. Drummond Precedential or Non-Precedential: Non-Precedential Docket No. 02-4012 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Drummond" (2003). 2003 Decisions. Paper 345. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/345 This decision is brought to you for free and open access by the Opinions of the United Sta..
More
Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
7-24-2003
USA v. Drummond
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4012
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Drummond" (2003). 2003 Decisions. Paper 345.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/345
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 02-4012
____________
UNITED STATES OF AMERICA,
v.
ALVIN DRUMMOND,
Appellant
____________
Appeal from the United States District Court
for the District of Delaware
(Crim. No. 01-cr-00094)
District Judge: Honorable Gregory M. Sleet
____________
Submitted Under Third Circuit LAR 34.1(a) July 15, 2003
Before: McKEE, BARRY and ROSENN, Circuit Judges
(Filed July 24, 2003)
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge:
This case raises the issue of whether the District Court committed reversible error
when it denied the motion in limine of defendant, Alvin Drummond, to compel the
Government’s case agent to testify first at trial. The purpose of the motion was to prevent
the possibility that the case agent might endeavor, when called as a witness, to conform his
testimony to that of the preceding Government witness.
On reviewing the matter de novo, we hold that, under the circumstances of this case,
the harm to the Government’s case that would have resulted from granting Drummond’s
motion far outweighs any possible harm to Drummond from denying the motion. The
District Court did not abuse its discretion in denying the motion. We affirm. Drummond
timely appealed.
I.
A jury convicted Drummond on two counts of cocaine distribution. The trial court
sentenced him to a 327-month prison term. Before his trial began, he filed a Motion in
Limine requesting that the Court order the Government to call its case agent, Detective
Ronald Marzec, as its first witness at trial. The District Court denied the motion, holding
that, under Federal Rule of Criminal Procedure 615, it was outside its authority to control the
sequence of the Government’s witnesses.
At trial, the Government first called Detective Marvin Charles Mailey, Jr., who
testified that, while he was working undercover, Drummond sold him cocaine. Mailey
testified to his close contact with Drummond, and unequivocally identified him as the person
who sold him cocaine on multiple occasions. Agent Marzec then testified that he witnessed
some of the drug-sales transactions between Drummond and Mailey from a distance,
sometimes aided by binoculars. Marzec verified that the person present at these transactions
2
was Drummond and, in that respect, his testimony was consistent with Mailey’s.
Drummond’s defense was primarily based on a challenge to the prosecution’s identification
of Drummond. Drummond’s witnesses testified, inter alia, that Drummond had brothers
who closely resembled him, and that he often loaned one of his cars – the car in which
Mailey and Marzec testified some of the drug sales had occurred in – to others.
Drummond now challenges the District Court’s denial of his motion to compel
Marzec to testify first.
II.
Our review here is plenary.1 The District Court is alleged to have misinterpreted the
Rules of Evidence. This is a question of whether it correctly understood the scope of its
authority under the Rules. We review the District Court’s refusal to require the case agent
to testify first for abuse of discretion.
The District Court erred in its exclusive reliance on Rule 615. Rule 615 provides that
a court shall order the sequestration of witnesses, upon the request of a party. However, Rule
615 does not permit the exclusion from trial of “an officer or employee of a party which is
not a natural person designated as its representative by its attorney.” Fed. R. Evid. 615(2).
We have held that a case agent for the Government falls within this exemption, and ordinarily
cannot be sequestered pursuant to Rule 615. United States v. Gonzalez, 918 F.2d 1129, 1138
1
Jurisdiction in the District Court was proper under 18 U.S.C. § 3231; appellate
jurisdiction is satisfied by 28 U.S.C. § 1291.
3
(3d Cir. 1990). Thus, Marzec, as the case agent, could not have been validly sequestered
under this Rule. The District Court apparently believed that Rule 615 somehow protected
the Government against judicial intervention in its sequence of trial witnesses.
However, Rule 611(a) does not exempt case agents. It merely provides: “The court
shall exercise reasonable control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment.” Fed. R. Evid. 611(a). There is no obvious reason
why the Rule 615 case agent exemption, designed to allow a representative of the
Government to be in the courtroom at all times, would have any relevance to Rule 611.
Accordingly, other courts of appeals have held that case agents, ineligible for
sequestration under Rule 615, might nonetheless be forced to testify first at trial, to avoid
giving the prosecution unfair advantage. See United States v. Parodi, 703 F.2d 768, 774 (4 th
Cir. 1983) (permission for the investigating officer to remain in court at trial under Rule 615
may be conditioned on requirement that the officer be forced to testify first); In Re United
States,
584 F.2d 666, 667 (5 th Cir. 1978) (“[T]he District Court may, in the exercise of its
discretion under [Rule 611(a)], conclude that the government should be required to present
[its case agent’s] testimony at an early stage of the government’s case.”). Thus, the District
Court’s sole reliance on Rule 615 was error; the language of the Rules of Evidence and the
4
persuasive holdings of our sister courts suggest that Rule 611(a) was applicable.2
Drummond next urges that, in determining the standard under which a district
court should evaluate a request to have the case agent testify first, we should adopt a rule
promulgated by the Court of Appeals for the Fourth Circuit. Under its rule, a
Government case agent “should ordinarily be called first so as to avoid giving the
prosecution unfair advantage or the appearance that the prosecution is being favored.”
United States v. Frazier, 417 F.2d 1138, 1139 (4 th Cir. 1969). That court went on to state
that “[t]his should be the order of presentation unless, in the judge’s considered opinion,
it would unduly break the continuity and seriously impair the coherence of the
Government’s proof.”
Id. At the opposite interpretive pole is the Court of Appeals for
the First Circuit. In United States v. Machor,
879 F.2d 945, 954 (1 st Cir. 1989), the court
held that “good reason should exist before the court intervenes [as to the sequence of
witnesses] in what is essentially a matter of trial strategy.”
Drummond insists that regardless of the standard we choose, we must set forth
some interpretive benchmark as to Rule 611 motions or any other motion regarding the
sequencing of case agent witnesses. Because this court has not previously ruled on this
issue, he asserts that we must remand to the District Court so that it can apply whatever
standard we announce. However, Drummond was not entitled to have Marzec testify
first. The Government has an interest in the order of its presentation, cf. Machor, 879
2
We may affirm for reasons other than those assigned by the District Court.
5
F.2d at 954 (sequencing of witnesses is “essentially a matter of trial strategy”), and here
the chief witness was Mailey. It would have been confusing to the jury and harmful to
the Government case to force it to have its secondary witness testify first.
Furthermore, in Gonzalez, we observed that there was no prejudice in declining
to sequester a case agent, because “[the defendant’s] argument that [two Government]
agents could coordinate their testimony does not pose a likelihood of prejudice since they
had ample time before trial to do that, were they so inclined.” 918 F.2d at 1138 n.8.
Here, the two witnesses were both law enforcement officers, who had worked closely
together throughout the investigation, and Drummond gave no other reason for his motion
than to prevent deliberate conformity of testimony. If the witnesses were so inclined, and
we have confidence that they were not, the two easily could have discussed their
testimony before trial.
Therefore, the Government’s interests in the orderly presentation of its case far
outweighs the negligible possibility of prejudice to Drummond. Although this might be a
more difficult issue if Marzec’s testimony were not clearly subsidiary to Mailey’s, or if
there were non-Government witnesses involved for whom pre-trial coordination of
testimony would be more difficult, in this case there was no justification for ordering
Marzec to testify first. Moreover, Rule 611 only calls for an ordering of witnesses to
maximize the “ascertainment of the truth.” While there may be instances where the
defense is hamstrung by its inability to sequester a case agent, and where it may be
6
justified in requesting that the case agent to testify first, such a measure is not warranted
here and would not further the trial’s truth-seeking function. The judgment of conviction
and sentence is affirmed.
_____________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Max Rosenn
Circuit Judge
7
