UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) RODNEY BRADSHAW, ) ) Plaintiff, ) ) v. ) Civil Action No. 04-1422 (PLF) ) SONNY PERDUE, Secretary, United ) States Department of Agriculture, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

During the final pretrial conference on July 23, 2018, plaintiff Rodney Bradshaw

invoked his right under Rule 615 of the Federal Rules of Evidence to sequester witnesses at the

bench trial that began yesterday, July 31, 2018. In response, defendant Sonny Perdue, Secretary

of the United States Department of Agriculture (“USDA”), designated Dwight Jurey as its party

representative pursuant to Rule 615(b). In the motion in limine presently before the Court, Mr.

Bradshaw moves to exclude Mr. Jurey from the courtroom for the duration of trial or, at a

minimum, during Mr. Bradshaw’s testimony. See Plaintiff’s Motion in Limine to Sequester

Defense Party Representative Dwight Jurey (“Mot.”) [Dkt. No. 232] and Memorandum of Law

in Support (“Mem.”) [Dkt. No. 232-1]. Defendant USDA opposes the motion. See Defendant’s

Opposition to Motion (“Opp’n”) [Dkt. No. 233]. Upon careful consideration of the parties’

filings, the relevant legal authorities, and the entire record in this case, the Court granted the

motion by separate Order [Dkt. No. 234] on July 30, 2018. This Memorandum Opinion explains

the reasons for that Order. Rule 615 of the Federal Rules of Evidence provides that, at the request of a party,

the Court must order witnesses excluded so that they cannot hear the testimony of other

witnesses. Rule 615(a) exempts a party who is a natural person from this directive. And Rule

615(b) “does not authorize excluding . . . an officer or employee of a party that is not a natural

person, after being designated as the party’s representative by its attorney.” FED. R. EVID.

615(b). “The sequestration rule serves two primary purposes: to prevent a witness from

tailoring his testimony in light of the testimony of other witnesses, and to permit the discovery of

false testimony and other problems relating to credibility.” Minebea Co., Ltd. v. Papst,

(D.D.C. 2005); see Queen v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 1988). As Judge Selya observed in United States v. Sepulveda, “the

sequestration process involves three parts: preventing prospective witnesses from consulting

each other; preventing witnesses from hearing other witnesses testify; and preventing

prospective witnesses from consulting witnesses who have already testified.” United States v.

Sepulveda,

(1st Cir. 1993).

In his motion, Mr. Bradshaw does not contest Mr. Jurey’s designation as

defendant’s party representative under Rule 615(b). See Mem. at 1 n.1. Rather, Mr. Bradshaw

contends that the Court may sequester Mr. Jurey notwithstanding this designation in order to

ensure that Mr. Jurey “cannot mold his testimony to respond to the testimony of the other critical

witness in this case, Mr. Bradshaw.” Id. at 1. Defendant responds that as defendant’s designated

party representative, Mr. Jurey is entitled to remain in the courtroom for the duration of the trial.

See Opp’n at 3-4. Defendant further argues that because Mr. Jurey’s expected testimony is clear

from prior testimony and motion practice, it is unlikely that Mr. Bradshaw’s testimony will color

Mr. Jurey’s testimony. See id. at 2.

2 The question is whether Mr. Jurey – as defendant’s designated party

representative under Rule 615(b) – may properly be excluded from the courtroom during some

or all of the trial proceedings. This appears to be an open question in this District. As Judge

Kollar-Kotelly explained: “Rule 615 does not bar the Court from excluding [party

representatives]; it ‘merely withholds authorization for the[ir] exclusion’ . . . . This is a subtle

difference that suggests the Court may still ‘have discretion to exclude these individuals so long

as that power derives from a source other than Rule 615, such as the court’s general powers to

manage the conduct of trial.’” United States ex rel. El-Amin v. George Washington Univ.,

(D.D.C. 2008) (quoting 29 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD,

FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6245); see United States v. Mosky, No. 89-

0669,

, at *3 (N.D. Ill. May 14, 1990) (invoking Rule 611 to exclude

government’s Rule 615 case agent from the courtroom until after he had testified).

“Courts have broad discretion to achieve [the goals of sequestration] and ‘may

make whatever provisions [they deem] necessary to manage trials in the interests of

justice . . . including the sequestration of witnesses before, during, and after their testimony.’”

Minebea Co., Ltd. v. Papst,

(quoting United States v. Sepulveda,

). In addition, Rule 611 of the Federal Rules of Evidence authorizes the trial court to

“exercise reasonable control over the mode and order of examining witnesses . . . so as to . . .

make those procedures effective for determining the truth.” FED. R. EVID. 611(a)(1). “Several

cases suggest that courts still have discretion to exclude a Rule 615(b) witness” pursuant to the

Court’s general powers to manage the conduct of trial or Rule 611. See 29 CHARLES ALAN

WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6245;

United States v. Mosky,

, at *3 (exercising discretion under Rule 611 and Rule

3 102 to sequester witness until after he had testified, despite his designation as government’s case

agent under Rule 615); see also United States v. Engelmann,

(8th Cir. 2012)

(“A person designated as a party’s representative can be present in the courtroom during witness

testimony, and ‘[t]he decision whether to allow the government’s agent to testify even though

the agent sits at the counsel table throughout the trial is left to the trial court’s discretion.’”)

(quoting United States v. Sykes,

(8th Cir. 1992)); United States v. Charles,

(1st Cir. 2006) (while Rule 615(b) has “severely curtailed the discretion of

the trial court to sequester the government’s case agent,” the Rule does not withdraw all

discretion from the trial court to exclude a case agent “in an exceptional case”) (quoting United

States v. Machor,

, 953 n.2 (1st Cir. 1989)). 1

The Court finds that the circumstances of this case warrant limited sequestration

of Mr. Jurey pursuant to the Court’s general powers to manage the conduct of trial and to control

the mode and order of witness presentation under Rule 611. The purpose of the sequestration

rule is to prevent the shaping of testimony by one witness to match that of another, and to

discourage fabrication and collusion. See Minebea Co., Ltd. v. Papst,

.

1 Defendant cites multiple appellate court decisions affirming the trial court’s decision not to sequester a designated party representative or case agent under Rule 615. See Opp’n at 3-4. But these cases address a trial court’s authority to exempt party representatives from sequestration under Rule 615, not whether the trial court has discretion to sequester a properly-designated party representative under either Rule 611 or its inherent powers to manage the conduct of trial. Furthermore, in these cases, the appellate court recognized that the trial court had discretion to exclude or not to exclude. See, e.g., United States v. Lee,

(2d Cir. 2016) (trial court did not err by declining to sequester party representative under Rule 615); United States v. Rivera,

(2d Cir. 1992) (trial court did not err by declining to sequester government’s case agent under Rule 615); United States v. Valencia-Riascos,

(9th Cir. 2012) (no abuse of discretion where trial court permitted government’s case agent to sit at counsel table during trial under Rule 615); Nanoski v. Gen. Motors Acceptance Corp.,

(8th Cir. 1989) (affirming trial court’s refusal to sequester party representative under Rule 615).

4 This trial is about whom to believe, Mr. Bradshaw or Mr. Jurey. It is a “he said-he said” kind of

case that turns largely on the credibility of these two witnesses recalling events that occurred

over fifteen years ago. As the Court has previously explained, “Mr. Bradshaw faces a

formidable challenge in persuading [the factfinder] that Dwight Jurey has lied about not

receiving Bradshaw’s paperwork as a means of cloaking racial discrimination. This is

particularly so given the evidence that Jurey appears to have worked diligently over several years

to shepherd a number of Mr. Bradshaw’s loan applications through the process.” Bradshaw v.

Vilsack,

(D.D.C. 2015).

Permitting Mr. Jurey to remain in the courtroom during Mr. Bradshaw’s

testimony would risk jeopardizing the truth-seeking function of the proceeding by providing the

opportunity for defendant’s critical fact witness to – consciously or subconsciously – shape his

testimony to counter what he has heard from plaintiff’s critical fact witness in court rather than

simply recount events from fifteen years ago as he remembers them. See Kozlowski v. Hampton

Sch. Bd.,

(4th Cir. 2003) (“When a witness is properly sequestered, that

witness loses his ability to re-characterize his testimony in light of damaging contradictory

testimony by other witnesses or to explain away inconsistencies.”). Excluding Mr. Jurey from

the courtroom during Mr. Bradshaw’s testimony under these circumstances will avoid such a

result. See United States v. Mosky,

, at *3; United States v. Farnham,

(4th Cir. 1986) (trial court erred in refusing to sequester government’s Rule 615 case

agent in part because “[s]crupulous adherence to [the sequestration rule] is particularly necessary

in those cases in which the outcome depends on the relative credibility of the parties’

witnesses”); see also Opus 3 Ltd. v. Heritage Park, Inc.,

(4th Cir. 1996)

5 (affirming trial court’s decision to sequester expert witness who was also a fact witness testifying

to facts crucial to disputed issues). 2

For these reasons, by Order issued on July 30, 2018, the Court granted plaintiff’s

Motion in Limine to Sequester Defense Party Representative Dwight Jurey [Dkt. No. 232]. Mr.

Jurey will be excluded from the courtroom during the testimony of Mr. Bradshaw, but not during

the testimony of any other witnesses. The application of Rule 615 to fact witnesses other than

Mr. Bradshaw and Mr. Jurey is set forth in the Court’s Order of July 30, 2018.

SO ORDERED.

_______/s/_______________ PAUL L. FRIEDMAN United States District Judge DATE: August 1, 2018

2 The Court leaves open the question for now whether to exclude Mr. Jurey from the courtroom if Mr. Bradshaw testifies as part of plaintiff’s rebuttal case.

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