United States District Court, District of Columbia
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
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
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, 374
F.Supp.2d 231, 233 (D.D.C. 2005); see Queen v. Wash.
Metro. Area Transit Auth., 842 F.2d 476, 481-82 (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, 15 F.3d 1161, 1176 (1st Cir. 1993).
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.
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., 533 F.Supp.2d 12, 48 (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, 1990 WL
70819, 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).
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, 374 F.Supp.2d at 233 (quoting United States
v. Sepulveda, 15 F.3d at 1176). 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, 1990 WL 70819, at *3 (exercising discretion under
Rule 611 and Rule 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, 701 F.3d 874, 877 (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, 977 F.2d 1242, 1245 (8th Cir. 1992)); United
States v. Charles, 456 F.3d 249, 257-58 (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, 879 F.2d 945, 953 n.2 (1st
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, 374 F.Supp.2d at 236.
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, 102 F.Supp.3d 327, 334 (D.D.C.
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., 77 Fed.Appx. 133, 153 (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, 1990 WL 70819, at *3; United States
v. Farnham, 791 F.2d 331, 335 (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., 91 F.3d 625,
629 (4th Cir. 1996) (affirming trial court's decision to
sequester expert witness who was also a fact witness
testifying to facts crucial to disputed
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.
 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, 834 F.3d 145, 162 (2d Cir. 2016) (trial court did
not err by declining to sequester party representative under
Rule 615); United States v. Rivera, 971 F.2d 876,
889 (2d Cir. 1992) (trial court did not err by declining to
sequester government's case agent under Rule 615);
United States v. Valencia-Riascos, 696 F.3d 938, 940
(9th Cir. 2012) (no abuse of discretion where trial court