Taylor v. United States

• Decision Date: 19 December 1967
• Docket Number: No. 21283.,21283.
• Citation: 388 F.2d 786
• Parties: Melvin Andre TAYLOR, aka James A. Barker, aka James Tate, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

388 F.2d 786 (1967)

Melvin Andre TAYLOR, aka James A. Barker, aka James Tate, Appellant, v. UNITED STATES of America, Appellee.

No. 21283.

United States Court of Appeals Ninth Circuit.

December 19, 1967.

Murray B. Guterson (argued), Seattle, Wash., for appellant.

Eugene Cushing, U. S. Atty., Jerald E. Olson, Asst. U. S. Atty. (argued), Seattle, Wash., for appellee.

Before MADDEN, Judge of the Court of Claims, and HAMLEY and MERRILL, Circuit Judges.

MERRILL, Circuit Judge:

This case presents the question whether it was an abuse of discretion for the District Court to refuse to permit appellant to call as a witness one who had, in violation of the judge's order of exclusion, been present in court while other witnesses were testifying.

Appellant was tried in the District Court for the Western District of Washington on a charge of violating the Mann Act, 18 U.S.C. § 2421, by transporting a young woman from Eureka, California, to Seattle, Washington, for purposes of prostitution.

At the commencement of trial the Government moved for an order excluding all witnesses from the courtroom during trial, with the exception of an FBI agent. There was no objection. The motion was granted and witnesses were instructed as to the order. The court advised counsel that it did not intend to police the order but would leave that responsibility to them.

The Government called as its first witness the young woman who was the alleged victim of the interstate transportation. On both direct and cross-examination, asserting her Fifth Amendment privilege to be free from self-incrimination, she refused to answer substantially all questions put to her. At the conclusion of this fruitless attempt to elicit testimony, the Government requested that the witness be instructed to remain in the courtroom so that she could be identified by subsequent Government witnesses. The court accordingly refrained from excusing her and her own attorney, who had been present during her examination, advised her to comply with the Government's request. She remained in court throughout the Government's presentation of its case in chief.

On the second day of trial, after the Government had concluded its case, appellant's counsel asked leave of court to recall the young woman to the witness stand, stating: "I realize that she has been in the courtroom a good part of the day yesterday." On inquiry by the court the Government interposed the objection that the calling of the witness was in violation of the court's sequestration order. The court then denied leave to call her. Appellant's counsel, after consulting with the young woman, then made an offer to proof to the effect that the witness, if allowed to testify, would state that the purpose of the interstate trip was not for prostitution but to enable appellant to enter the barbering business in Seattle and that she had accompanied him with the understanding that they would be married. The Government made a counter offer that it would rebut such testimony with a witness to prior contradictory statements made by the young woman.

Appellant called no further witnesses. The case was submitted to the jury. Appellant was found guilty and given a sentence of three-and-one-half years imprisonment from which he now appeals.

The exclusion of witnesses from the courtroom during trial is a time-honored practice designed to prevent the shaping of testimony by hearing what other witnesses say. Charles v. United States, 215 F.2d 825, 827 (9th Cir. 1954); 6 Wigmore, Evidence § 1837-39 (3d Ed. 1940). The decision to sequester or not is within the court's discretionary power and is reviewable only for abuse. Young v. United States, 358 F.2d 429 (9th Cir. 1966); Williamson v. United States, 310 F.2d 192 (9th Cir. 1962).

This court has held that permitting a witness to testify notwithstanding his disregard of the court's order of sequestration is not error, but is within the court's discretion. Spindler v. United States, 336 F.2d 678 (9th Cir. 1964), cert. denied sub nom. Richard v. United States, 380 U.S. 909, 85 S.Ct. 894, 13 L.Ed.2d 797 (1965); Coates v. United States, 59 F.2d 173 (9th Cir. 1932). Such is the general rule following Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 10, 37 L.Ed. 1010 (1893), where it is stated:

"If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court."

The Supreme Court there upheld the trial court's admission of testimony from a disobedient witness and had no occasion to spell out the "particular circumstances" which would...