United States v. Scharstein, Crim. No. 81-21.

• Decision Date: 22 January 1982
• Docket Number: Crim. No. 81-21.
• Citation: 531 F. Supp. 460
• Parties: UNITED STATES of America, Plaintiff, v. Victor Forest SCHARSTEIN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

531 F. Supp. 460

UNITED STATES of America, Plaintiff, v. Victor Forest SCHARSTEIN, et al., Defendants.

Crim. No. 81-21.

United States District Court, E. D. Kentucky, Covington Division.

January 22, 1982.

Robert E. Rawlins, Asst. U. S. Atty., Lexington, Ky., for plaintiff.

Charles Schaffner, Covington, Ky., for Victor Scharstein.

Steven R. Jaeger, Covington, Ky., for William Walters.

Hugh Kranitz, St. Joseph, Mo., and Don W. Ziglar, Covington, Ky., for Robert Miller.

Steven E. Starke, Covington, Ky., for Ellen Orta.

A. J. Jolly, Newport, Ky., for David & Terri Herald.

OPINION and ORDER

BERTELSMAN, District Judge.

This criminal prosecution for illegally manufacturing, storing, and transporting illegal explosives was triggered when a garage in downtown Newport, Kentucky exploded without warning on April 2, 1981. Two young men were killed and some $4,000,000 of property damage occurred over a wide area of the city.

Subsequent investigation by agents of the United States Bureau of Alcohol, Tobacco & Firearms led them to conclude that one of the final stages of an illegal fireworks manufacturing operation, the powdering or loading phase, was being conducted in the garage. Six alleged participants in the illicit business were indicted, all but three pleaded guilty.

The evidence, somewhat synthesized here, tended to show that the defendant Victor Forest Scharstein, who did not enter a guilty plea, masterminded a clandestine unlawful fireworks cottage industry involving several phases, culminating in the manufacture and distribution of M-80 and M-100 firecrackers. Scharstein, the evidence showed, would purchase tubes, glue, trays and other paraphernalia necessary to manufacture the fireworks. He would then farm out various stages of the manufacturing function to different individuals, usually to be performed in their homes. The end product was sold to customers in various states.

For example, Scharstein would take a tray of M-80 hollow tubes to a participant's house where the ends would be sealed with glue. He would then pick them up and take them elsewhere to be filled with powder, and finally to another location to be fused.

It was the powdering location that exploded, killing the two individuals engaged in operating it and causing extensive damage over several square blocks, endangering the lives of many innocent citizens.

One of the other defendants who went to trial, William Walters, was alleged to be the business manager of the illicit scheme. The third defendant tried was Robert Miller of DeKalb, Missouri, who was found guilty of conspiring to transport some of the finished product in interstate commerce.¹

All three defendants were convicted. The court is asked to review certain rulings made during trial on motions for new trial. These are as follows:

Rule 615—Federal Rules of Evidence

Rule 615 of the Federal Rules of Evidence reads 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 his cause."

We are here presented with the issue whether, upon request of one of the parties, the court must impose a standard more stringent than that required by the language of the Rule itself and instruct prospective witnesses excluded from the courtroom pursuant to the Rule that, while waiting to testify, they should not discuss the case with other witnesses, who have already testified or who are going to testify.

There is a conflict of authority on this issue. On the one hand, some courts say that for the Rule to be effective, the court should give the more stringent instruction. Other authorities, however, hold that the matter is within the discretion of the trial court. This court believes that the latter view is to be preferred and hereby adopts it.

Rule 615 by its terms applies to excluding witnesses "so that they cannot hear the testimony of other witnesses." (Emphasis supplied). Nevertheless, some courts have felt it necessary to go beyond the language of the Rule. One trial court excluded from evidence the testimony of experts who, although they did not enter the courtroom, had read daily copy of the testimony of other witnesses before testifying themselves. This drastic sanction was upheld by an appellate court.²

Perhaps the best expression of the view urged by defendants here is to be found in a leading text on the Federal Rules of Evidence.

"Counsel who believe that sequestration of witnesses will work to the advantage of their clients should make all reasonable efforts to assure that a sequestration order is fully protective. For example, it is not sufficient for counsel simply to ask the Trial Judge to have the witnesses removed from the courtroom when they are not testifying. Counsel should also ask that the Trial Judge instruct the witnesses that they are not to discuss the case with one another. An option worth considering is for counsel to request that the Trial Judge order the lawyers for both sides to fully instruct their witnesses on the purpose of a sequestration order and its effect. An advantage of this procedure is that, if the purpose of the order is frustrated by the actions of the witnesses untrained in the law, sometimes counsel (who should know better) can be held responsible."³

With deference to authorities advocating this view, this court believes that there is no reason to go beyond the plain language of the Rule and that it is sounder and more practical to place the question of whether or not to instruct segregated witnesses concerning communications with other witnesses within the discretion of the trial court.⁴

In the view of this court, absolute adherence to the more stringent view involves such practical difficulties as to be for the most part unworkable. In any hard-fought case the parties adjust and revise their strategies as the trial proceeds. As the Supreme Court of the United States has pointed out:

"It is common practice during such overnight recesses for an accused and counsel to discuss the events of the day's trial. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day's testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day's events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer's guidance."⁵

It is also common practice and an essential part of trying a case for the trial attorney to confer with his experts and other prospective witnesses during such recesses, as well as before trial. It has been held that to deprive a party, even a corporate party in a civil case, of the right to consult with counsel as the trial proceeds is to infringe its right to due process of law.⁶ This court believes that similar considerations apply to the right of a party to have his counsel free to discuss with prospective witnesses developments in the case, including the testimony of other witnesses.

If counsel can relate to a witness what another witness has said, it would seem to be an exercise in futility for the court to try to prohibit one witness from talking to another about the case outside the courtroom. Although the United States in a criminal prosecution may not technically have a right to due process of law, this court believes that fairness requires that it be afforded the same latitude in the interpretation of Rule 615 that due process would afford a corporate defendant.

The express requirement of Rule 615 that prospective witnesses be excluded from the courtroom is an objective, readily enforceable criterion. If a stricter standard is imposed, the court becomes involved in a myriad of enforcement problems and a plethora of collateral issues. In the instant case defendant's counsel reported to the court that the government's prospective witnesses were talking in the hall while waiting to testify. If the more stringent approach were adopted, the court would have to stop the trial and hold an evidentiary hearing every time this occurs, which this court is inclined to believe would not be infrequently.

It is somewhat unrealistic to expect policemen, agents, experts and witnesses who have known each other for years and who have worked together in preparing a case to sit for hours together in a witness room or hall without carrying on some conversation. The court cannot afford to allow itself to be bogged down in numerous inquiries as to the contents of such conversations, where there is no genuine need to do so. A court is ill-advised to issue an order that is impractical to enforce.⁷

In some cases, as where the result turns on fine nuances in the testimony, it may be necessary to take the time and make the effort to enforce the more stringent restrictions. But this was not such a case, and this court believes the intent of the drafters of the Rule was to give the trial court discretion as to the exact means of its implementation over and above its express requirements. If they had meant to adopt a more rigorous approach, they could easily have incorporated it in the text of the Rule. The general approach of the Federal Rules of Evidence is to place heavy reliance on the discretion of the trial court in conducting a fair trial. See e.g., Fed.R.Evi. 403, 611(a). Further, Rule 615 leaves a...