U.S. v. Pulley

• Decision Date: 25 March 1991
• Docket Number: No. 90-5211,90-5211
• Citation: 922 F.2d 1283
• Parties: 32 Fed. R. Evid. Serv. 128 UNITED STATES of America, Plaintiff-Appellee, v. Bobby D. PULLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1283

922 F.2d 1283

32 Fed. R. Evid. Serv. 128

UNITED STATES of America, Plaintiff-Appellee, v. Bobby D. PULLEY, Defendant-Appellant.

No. 90-5211.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 4, 1990.

Decided Jan. 10, 1991.

Rehearing and Rehearing En Banc

Denied March 25, 1991.

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 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 natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause."

The rule says that the court "shall" order a separation of witnesses upon request, and the notes of the Advisory Committee confirm that this means what it says; a requesting party is entitled to an order of separation "of right."

It is undisputed that under subpart (2) of the second sentence of Rule 615, at least one investigating agent may be designated to remain in the courtroom as the government's representative notwithstanding that the agent will be a prosecution witness. See United States v. Parodi, 703 F.2d 768, 773-74 (4th Cir.1983), and the cases there cited. The parties disagree as to whether the rule entitles the government to designate more than one agent-witness to represent it. The issue has not heretofore been decided by our court.

The district judge concluded that subpart (2) gives a trial court discretion to let the government be represented by two agent-witnesses. United States v. Alvarado, 647 F.2d 537 (5th Cir.1981), which was cited by the district judge, appears to support this view. United States v. Farnham, 791 F.2d 331 (4th Cir.1986), on the other hand, rejects it. So does United States v. Kosko, 870 F.2d 162 (4th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3197, 105 L.Ed.2d 704 (1989), which reaffirms Farnham.

We agree with the conclusion announced by the United States Court of Appeals for the Fourth Circuit in Farnham and Kosko. "Relying on the mandatory language of Rule 615 and the singular phrasing of the exception embodied in 615(2)," the Farnham court said, "we hold that the district court erred in refusing to sequester [the second agent], if not during the entire trial, at least during the testimony of his colleague." Farnham, 791 F.2d at 335.

The Fourth Circuit's reading of the rule is supported by the notes of the Advisory Committee, which contain this sentence: "As the equivalent of the right of a natural-person party to be present, a party which is not a natural person is entitled to have a representative present." (Emphasis supplied.) "Most of the cases," the note continues, "have involved allowing a police officer who has been in charge of an investigation to remain in court despite the fact that he will be a witness." (Emphasis supplied.)

"A" representative, like "a" natural person, "a" police officer, and "an" officer or employee, is singular. Our court has been known to treat the plural as the functional equivalent of the singular, see Minority Employees of the Tennessee Dept. of Employment Sec., Inc. v. State of Tennessee Dept. of Employment Sec., 901 F.2d 1327, 1342 (6th Cir.) (en banc) (Nelson, J., dissenting), cert. denied, --- U.S. ----, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990), but in the instant case we can discern no reason to convert the singular into the plural.

Where the government wants to have two agent-witnesses in attendance throughout the trial, it is always free to designate one agent as its representative under subpart (2) and try to show under subpart (3) that the presence of the second agent is "essential" to the presentation of its case. No such attempt was made here, and we doubt that the government would have been able to demonstrate that it was essential to have both agents in court together.

But we are not at the end of our inquiry. There is no strict requirement that the defendant prove prejudice in a situation such as this, but we nevertheless remain bound by the harmless error rule. Farnham, 791 F.2d at 335. We think the error committed by the district court in this case was harmless.

Agent Price, it will be remembered, was the very first witness to take the stand. He could not possibly have tailored his testimony to conform to the testimony of earlier witnesses, see Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976), because there were no earlier witnesses. Detective Trosper, who testified second, might theoretically have tailored his testimony to fit Price's, but that possibility would have existed anyway if the prosecution had simply designated Trosper as its sole representative. Had it done so, Agent Price would still have testified first, Detective Trosper would still have heard every word that Price said, and Price would doubtless have been permitted to remain in the courtroom following the completion of his own testimony unless there had...