Ninth Circuit Finds No Error in District Court’s Refusal to Sequester State’s Summary Witness in Fraud Trial

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

The recent case United States v. Fujinaga, 2022 WL 671018 (9th Cir. 2022), provides a good example of Rule 615(c) in action.

In Fujinaga, Edwin Fujinaga appealed his conviction  for mail fraud, wire fraud, and money laundering. One of the grounds for his appeal was that the district court erred in denying his motion to sequester the State’s summary witness Michael Petron. The Ninth Circuit, however, turned this argument aside, concluding that

The district court did not abuse its discretion by allowing the government’s summary witness to observe trial after finding the witness essential to the prosecution’s case….Rule 615 does not apply to “a person whose presence a party shows to be essential to presenting the party’s claim or defense.” Fed. R. Evid. 615(c). Here, the district court found the witness essential to helping the prosecutor understand the significance of new testimony and explain it to the jury. Given the complexity of the fraud scheme, and the fact that the witness had spent 1,800 hours familiarizing himself with hundreds of pages of bank records and accounting spreadsheets, the district court did not abuse its discretion in allowing him to remain in the courtroom.

-CM