922 F.2d 1283 (6th Cir. 1991), 90-5211, United States v. Pulley

Docket Nº:90-5211.
Citation:922 F.2d 1283
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bobby D. PULLEY, Defendant-Appellant.
Case Date:January 10, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1283

922 F.2d 1283 (6th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bobby D. PULLEY, Defendant-Appellant.

No. 90-5211.

United States Court of Appeals, Sixth Circuit

January 10, 1991

Argued Oct. 4, 1990.

Rehearing and Rehearing En Banc

Denied March 25, 1991.

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Joseph M. Whittle, U.S. Atty., Randy W. Ream, Asst. U.S. Atty. (argued), Terry Cushing, Asst. U.S. Atty., Office of the U.S. Atty., Louisville, Ky., for plaintiff-appellee.

John F. Carroll, Jr. (argued), John L. Smith, Patrick H. Molloy, Bradley H. Pruitt, Alagia, Day, Marshall, Mintmire & Chauvin, Louisville, Ky., for defendant-appellant.

Before NELSON and NORRIS, Circuit Judges, and HIGGINS, District Judge. [*]

DAVID A. NELSON, Circuit Judge.

This is an appeal from a criminal conviction and sentence in a drug case. Perhaps the most significant of the several issues presented involves Rule 615, Fed.R.Evid., which governs the exclusion of witnesses from the courtroom so they cannot hear the testimony of other witnesses.

Subject to three exceptions, Rule 615 requires the trial court to order a separation of witnesses upon request. Here, notwithstanding such a request, the court allowed two government agents, both of whom were on the witness list, to remain in the courtroom throughout the trial. The court relied on the rule's second exception, which allows "an" officer or employee of a governmental or corporate party to remain as the party's designated representative.

The rule, as we read it, allows the designation of only one agent. But although a technical violation of the rule occurred, we conclude, under the circumstances of this case, that the error was harmless. Accordingly, and because we find no other prejudicial error in the record, we shall affirm the judgment.

I

During the latter part of 1988, as the evidence showed, a government informant in Bowling Green, Kentucky, made a series of cocaine purchases. In the course of several of these transactions one of the sellers repaired to a used car lot where defendant Bobby Douglas Pulley maintained an office. The government suspected that the sellers were getting their drugs from Mr. Pulley.

On December 9, 1988, members of a joint federal-state drug task force gave the informant $1,600 in marked bills and told him to make another purchase. The informant contacted his usual source, whereupon the latter's associate (one Johnny Humphreys) went to the used car lot and saw defendant Pulley in his office. When the meeting broke up, Messrs. Pulley and Humphreys were both arrested.

Mr. Humphreys was found to have an ounce of cocaine in his possession, and defendant Pulley had more than $3,000 in his pants pocket. Of this sum, $1,500 consisted

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of marked bills with which the informant had been supplied that morning.

With help from other officers, a federal agent named Price searched defendant Pulley's office. No cocaine was found there. (The officers did, however, find a loaded revolver and two boxes of plastic "baggies" similar to those in which cocaine previously bought by the informant had been packaged.) Steve Trosper, a Kentucky State Police Detective, helped search the downstairs of a residence adjoining the used car lot. That search disclosed more cash (the combined total reached almost $18,000) and more baggies, but no cocaine.

A third officer, United States Customs Agent Donald Obermiller, eventually searched an upper floor of the residence. Although a dog trained to detect drugs had previously been led through the upstairs without result, Agent Obermiller, while going through one of the upstairs bedrooms, found a supply of plastic bags containing 132 ounces of cocaine.

Pulley, Humphreys and Humphreys' associate were indicted on various cocaine and firearms charges. A mistrial was declared during the first trial, after which Pulley and Humphreys, but not the third defendant, were tried again on a superseding indictment.

As he had done at the first trial, defense counsel moved at the outset for a separation of witnesses. The district court ordered the separation, but granted a request by the prosecution that Agent Price and Detective Trosper both be permitted to remain at the trial table even though both were scheduled to be witnesses. The prosecution made no attempt to show that the concurrent presence of both men was essential to the presentation of its case.

Agent Price was the first witness called by the prosecution, and Detective Trosper was the second. (The nature of their testimony, and of certain other trial evidence, will be discussed hereafter.) The jury acquitted Defendant Pulley on some charges, but found him guilty on two counts of aiding and abetting the possession of cocaine with intent to distribute it, one count of possession with intent to distribute, and one count of conspiracy.

The United States Sentencing Guidelines called for a sentence of imprisonment in the range of 63-78 months. Finding an upward departure appropriate, the district court imposed a ten-year sentence (120 months), along with a $100,000 fine. This appeal followed.

II

Rule 615, Fed.R.Evid., provides as follows:

"Exclusion of Witnesses

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a...

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