USA. v. Rhynes

• Decision Date: 04 April 2000
• Docket Number: No. 97-4466,CR-96-6-V,No. 97-4640,97-4466,97-4640
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL SEVANE RHYNES, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL SEVANE RHYNES, Defendant-Appellant. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 310

218 F.3d 310 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL SEVANE RHYNES, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL SEVANE RHYNES, Defendant-Appellant.

No. 97-4466 No. 97-4640 (CR-96-6-V).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: April 4, 2000.

Decided: July 10, 2000.

Appeals from the United States District Court for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, District Judge.

[Copyrighted Material Omitted] COUNSEL ARGUED: Michael Smith Scofield, Charlotte, North Carolina, for Appellant. Robert Jack Higdon, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Gretchen C.F. Shappert, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before WILKINSON, Chief Judge, and WIDENER, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges.^*

Judgment vacated and new trial awarded by published opinion. Judge King announced the judgment of the Court, in which Judge Widener, Judge Wilkins, Judge Luttig, Judge Williams, Judge Michael, Judge Motz, and Judge Traxler joined; wrote the opinion of the Court with respect to Part III, in which Judge Wilkins, Judge Williams, Judge Michael, Judge Motz, and Judge Traxler joined; wrote the opinion of the Court with respect to Parts IV and V, in which Judge Widener, Judge Wilkins, Judge Luttig, Judge Williams, Judge Michael, Judge Motz, and Judge Traxler joined; and wrote an opinion with respect to Parts I and II in which Judge Widener (except perhaps for a footnote), Judge Luttig (in part), Judge Michael, and Judge Motz joined. Judge Widener wrote an opinion concurring in part and concurring in the judgment. Judge Wilkins wrote an opinion concurring in part and concurring in the judgment, in which Judge Williams and Judge Traxler joined. Judge Luttig wrote an opinion concurring in part and concurring in the judgment. Chief Judge Wilkinson wrote a dissenting opinion, in which Judge Niemeyer joined. Judge Niemeyer wrote a dissenting opinion, in which Chief Judge Wilkinson joined and in which Judge Traxler joined with respect to Parts I and II.

OPINION

KING, Circuit Judge:

Michael Rhynes and several co-defendants were tried before a jury in the Western District of North Carolina on a number of drug-related charges. During the presentation of Rhynes's defense, the district court excluded his sole supporting witness after finding that his lawyer had violated the court's sequestration order. We conclude today that the exclusion of the witness's testimony was improper and constitutes reversible error. The conduct of Rhynes's lawyer did not contravene the district court's sequestration order, and, if it had, the sanction of witness exclusion was unduly severe. Because this error was not harmless, we must vacate Rhynes's conviction and sentence and remand for a new trial.

I.

A.

At the outset, we briefly review the proceedings that have brought us to en banc review. The convictions of Michael Rhynes and his six co-defendants followed a three-week trial, and a panel of this Court subsequently heard and considered their consolidated appeals. On October 26, 1999, the panel disposed of the appeals by a published decision that, inter alia, affirmed Michael Rhynes's conviction and thirty-year sentence thereon. See United States v. Rhynes, 196 F.3d 207, 243 (4th Cir. 1999).

Thereafter, each of the defendants petitioned for rehearing, and the Government cross-petitioned, seeking rehearing of certain issues decided in the defendants' favor. On February 3, 2000, we denied, with a single exception, each of the rehearing petitions. In the exception, we deconsolidated Rhynes's appeals from those of his codefendants and granted rehearing en banc on a single issue: whether the district court's exclusion of Corwin Alexander as a witness constitutes reversible error (the "witness exclusion issue"). By granting limited rehearing en banc, we vacated the panel decision insofar as it relates to the witness exclusion issue. See Local Rule 35(c). On April 4, 2000, that issue was argued before the en banc court.

B.

The panel opinion thoroughly recounts the extensive and complicated history underlying the convictions of Michael Rhynes and his co-defendants. Rhynes, 196 F.3d at 213-43. Thus, we focus here only on the facts relating to the witness exclusion issue.

1.

On September 24, 1996, at the commencement of the trial in Charlotte, North Carolina, a lawyer for one of Rhynes's co-defendants moved for sequestration of the Government's witnesses. In response, the district court entered its sequestration order from the bench.¹ The Government then noted that its "case agent" and a "summary witness" were in the courtroom and intended to "sit[ ] in on the testimony prepared to testify at the end of the trial[.]" J.A. 274. The district court granted the Government's request that two of its witnesses be excepted from the sequestration order and another motion that the defense witnesses be sequestered. Thereafter, the lawyer for one of Rhynes's co-defendants sought to have his investigator excepted from the sequestration order, and the court granted the exception "[s]o long as your investigator observes Rule 615 and does not talk to the witnesses about testimony that has just concluded or testimony that has concluded." J.A. 275.

2.

During the Government's case-in-chief, it presented the testimony of witness D. S. Davis. Davis is a convicted felon and was, at the time of trial, serving a seven-year sentence for participating in a drug conspiracy. Davis testified, inter alia, that he first met Alexander in 1990, when he (Davis) asked Alexander to serve as an intermediary in a drug transaction between Davis and Michael Rhynes.

In response to an objection from Rhynes's lawyer, Michael Scofield, the Government explained at the bench that it was "getting to the focal point of Mike Rhynes." J.A. 1695. Specifically, the Government noted that Alexander was listed as a witness for Rhynes, and it believed that Davis would testify that Alexander had been approached to serve as an intermediary between Davis and Rhynes but that Alexander had never completed a transaction between the two. In response, Mr. Scofield stated:

Well, I didn't know what -where he was going with Corwin Alexander, so I had no information that they allege he was a member of the conspiracy. It sounded like you're not alleging that now.

J.A. 1695. The Government replied, apparently in reliance on Davis's statements, that Alexander had told Davis that Rhynes "did not have the drugs at that time," J.A. 1696, and Davis thereafter dealt directly with Rhynes.

Davis then concluded his testimony in support of the Government's case. He maintained that Alexander had approached Rhynes on two occasions with proposals of drug deals with Davis. According to Davis, Alexander passed those offers to Rhynes, who did not accept either offer. Subsequently, Davis approached Rhynes directly, and Rhynes agreed to sell him cocaine. Thereafter, according to Davis, Rhynes sold him drugs on several occasions.

3.

During Rhynes's defense, he testified on his own behalf; then, he called a single witness to corroborate his testimony: Corwin Alexander. Alexander testified on a number of subjects, see infra note 3, before he was asked about the Government's earlier witness, Davis. Alexander explained that, at a meeting between the two, Davis told Alexander that the Government had offered Davis a deal in exchange for information about Rhynes. Alexander then stated,"And he [(Davis)] went off to do his time, and I hear from Tuesday he got up and said --," whereupon the Government objected and requested a bench conference. J.A. 1945L.

At the bench, Mr. Scofield advised the district court that he had discussed Davis's testimony with Alexander: "I specifically told him about that testimony and told him I was going to ask him about that, Your Honor. And I don't think that violates the sequestration order." J.A. 1945M. The district court indicated its belief that the sequestration order had been violated. Mr. Scofield then responded, "I'm sorry then, Your Honor. I've done wrong then because I don't know how else I can prepare him to testify. I told him that that guy told him that he was a drug dealer." Id.

The district court nonetheless granted the Government's motion to strike Alexander's testimony and to exclude him as a witness.² The court did not develop the record further, either by obtaining any additional testimony from Alexander or by securing a proffer or testimony from Mr. Scofield.

4.

Following a brief recess, which apparently included an off-therecord in camera discussion, Mr. Scofield requested another bench conference to discuss the witness exclusion issue. There, he apologized to the court and attempted to deflect any sanction away from his client and onto himself, stating:

Your Honor, as I told you in chambers, I now realize that the proper thing for me to do in interviewing Alexander and preparing him to testify was that I could have asked him all the details of whether he had been a dealer and whether he had done drug deals with Michael Rhynes and that sort of thing without telling him that Davis had said that he had done that.

I wanted to specifically ask him about his relationship with D. S. Davis. And as I told the court, I did tell him that D. S. Davis had said that he had done these drug deals and that I wish I had been more alert in drawing that line about just asking the questions without saying what D. S. Davis had said in the court. I am concerned that my mistake will rebound to the harm of my client and my client will be prejudiced and I would -I'd asked the court in chambers if you would revisit your decision to strike Corwin[ ] [Alexan der's] testimony and not let him testify further. The court indicated that it would...