holding that it was not an abuse of discretion for a district court to permit a witness's testimony even after the witness had violated the sequestration order with the knowledge of the witness's party because the error was not prejudicial
How later courts described this case
- holding that it was not an abuse of discretion for a district court to permit a witness's testimony even after the witness had violated the sequestration order with the knowledge of the witness's party because the error was not prejudicial
- stating that the jury’s acquittal of some co-conspirators while others were convicted demonstrated that the jury was able to consider the evidence and charges against each defendant individually
- concluding that juror misconduct does not No. 06-4080 United States v. Wheaton Page 8 create a presumption of prejudice and that the defendant bears the burden of proving actual bias
- concluding that jury’s decision to “acquit[]” selected defendants “on three counts” shows that it “evidently disregarded any information” it may have heard from external news source
Written by the judges who cited it.
The opinion
MERRITT, Chief Judge,
dissenting.
I would reverse Rugiero’s conviction because of the prosecutor’s violation of the sequestration rule. The Court is right to suggest that the prosecutor obviously violated the rule.by not keeping Milewski out of the courtroom while under subpoena to testify and by staging a confrontation and conversation between him and a witness who was testifying. The obvious purpose of this confrontation was to get Milewski to testify in a way that would be consistent with the testimony of the witness who was then on the stand. The witness on the stand told Milew-ski facts that the government wanted Milew-ski to testify to. Milewski then did so testify. This is too much of a violation to condone or to sweep under the “harmless error” rug. We are always reluctant, as we should be, to set aside a verdict on a technicality when it is'fairly clear that the defendant is guilty and may have been convicted anyway. But if prosecutors know that in such circumstances we will always overlook egregious transgressions they will then have no incentive to play ball by the rules. The “war on drugs” of the last decade has emboldened many prosecutors to believe that they are immune from normal rules of procedure in criminal cases. In our zest to incarcerate, we are in danger of losing the rule of law. This is such an obvious and notorious violation in this case that I would reverse and remand for a new trial.