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United States v. Spencer

United States District Court, D. Minnesota

June 5, 2019

United States of America, Plaintiff,
v.
Mario Martell Spencer (1) and Ahmed Osman Farah (2), Defendants.

          ORDER

          Wilhelmina M. Wright United States District Judge

         Before the Court are motions in limine filed by Defendants Mario Martell Spencer and Ahmed Osman Farah and Plaintiff United States of America. As addressed below, Defendants' motions are granted in part and denied in part and the United States's motions are granted in part and denied in part.

         BACKGROUND

         Two individuals brandishing firearms robbed a convenience store in Minneapolis on March 23, 2018. After receiving a description of the perpetrators and the getaway vehicle over the dispatch radio, Minneapolis police officers encountered a vehicle that matched the description. The officers attempted to initiate a traffic stop, but the vehicle fled, led police on a chase, and eventually crashed into a garage. After approaching the crashed vehicle and observing that it was empty, the officers searched the area for the suspects. A short time later, the police apprehended Spencer and Farah separately on foot. A grand jury subsequently returned an indictment charging Spencer and Farah with three offenses-interference with commerce by robbery; using, carrying, and brandishing a firearm during and in relation to a crime of violence; and unlawful possession of a firearm by a felon.

         Farah waived his right to counsel on February 26, 2019, and attorney James S. Becker's representation of Farah was terminated. The Court appointed Becker as Farah's standby counsel over Farah's objection and scheduled trial to begin May 6, 2019. The parties filed several motions in limine and other pretrial motions, and the Court heard argument on those motions at an April 24, 2019 pretrial hearing. At the pretrial hearing, Spencer withdrew his pro se motion for substitute counsel. In addition, Farah made an oral motion to reappoint Becker has his counsel, which the Court granted. The Court also granted Farah's motion to continue the trial and rescheduled it to begin on June 10, 2019. In doing so, the Court permitted Farah the opportunity to supplement his pro se filings. Farah subsequently filed a supplemental motion in limine and a supplemental response to the motions in limine filed by the United States. Farah also withdrew several of his previously filed pro se motions.[1] The Court addresses each pending motion, in turn.

         ANALYSIS

         I. Defendants' Motions

         Several of Defendants' motions either have been withdrawn or were decided at the pretrial hearing. Five of Defendants' motions are pending: Spencer's motion to sever, three pro se motions filed by Spencer that have not been expressly withdrawn, and Farah's motion to sequester all witnesses except his defense investigator.

         A. Spencer's Motion to Sever

         Spencer argues that, because Farah is representing himself pro se, “there exists a high risk of irreparable prejudice” to Spencer's constitutional rights as Farah might make inculpatory statements about Spencer at trial.[2] But Farah no longer is proceeding pro se at trial. For this reason, Spencer's motion to sever is denied as moot.

         B. Spencer's Pro Se Motions

         Spencer filed three pro se motions together with his April 12, 2019 motion for substitute counsel. Although Spencer withdrew his pro se motion for substitute counsel at the pretrial hearing, he has not expressly withdrawn three other pro se motions that seek dismissal of the indictment, a Franks hearing, and discovery pertaining to the grand jury proceedings. A “district court has no obligation to entertain pro se motions filed by a represented party.” United States v. Pate, 754 F.3d 550, 553 (8th Cir. 2014) (internal quotation marks omitted). Accordingly, the Court declines to rule on Spencer's remaining pro se motions.

         C. Farah's Sequestration Motion

         Farah moves to permit defense investigator John Lageson to remain in the courtroom during witness testimony to assist with Farah's defense, even though Lageson might be called by Farah as a witness at trial. Farah seeks to sequester all other witnesses. The United States has taken no position in response to this motion.

         Federal Rule of Evidence 615 governs the sequestration of witnesses during trial, providing four exemptions to sequestration:

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.

Fed. R. Evid. 615. This rule is designed to limit the possibility that a witness who is present in court will present testimony that is modified to comport with the testimony of other witnesses. United States v. Ortiz, 10 F.Supp.2d 1058, 1060 (N.D. Iowa 1998) (citing United States v. Klaphake, 64 F.3d 435, 437 (8th Cir. 1995)). The burden of establishing that a Rule 615 exemption applies rests with the party seeking to exempt a witness from sequestration. See Klaphake, 64 F.3d at 437; Ortiz, 10 F.Supp.2d at 1060.

         To the extent that Farah seeks to sequester all witnesses other than his defense investigator, Farah's motion is granted in part and denied in part. At the pretrial hearing, the United States requested permission for its case agents, Special Agent Nathan Boyer and Sergeant David Swierzewski, to sit at counsel table during trial. Employees designated as representatives of an entity party are exempt from the sequestration rule. Fed.R.Evid. 615(b). This exemption permits government case agents to sit at counsel table throughout a criminal trial. United States v. Riddle, 193 F.3d 995, 997 (8th Cir. 1999) (citing United States v. Sykes, 977 F.2d 1242, 1245 (8th Cir. 1992)). As Special Agent Boyer and Sergeant Swierzewski are exempt from sequestration, they may sit at counsel table during trial.

         With respect to Farah's defense investigator, Lageson, Farah's motion neither cites Rule 615 nor expressly invokes a particular Rule 615 exemption. The only exemption that might apply to Lageson is the exemption for “a person whose presence a party shows to be essential to presenting the party's claim or defense.” Fed.R.Evid. 615(c). A party invoking this exemption “must show that the witness has such specialized expertise or intimate knowledge of the facts that the party could not effectively function in the witness's absence.” Klaphake, 64 F.3d at 437. “A showing that the witness's presence would be ‘helpful' is not enough; the party seeking an exemption from sequestration must demonstrate that the witness's presence is ‘essential' to his or her cause.” Ortiz, 10 F.Supp.2d at 1061.

         Farah neither argues nor presents any evidence to establish that Lageson's presence in the courtroom during trial is “essential” to his defense. Farah's motion provides no information whatsoever as to Lageson's expertise or knowledge of the facts pertinent to this case. Nor does Farah explain why any aspect of Lageson's expertise or knowledge cannot be communicated to Farah's counsel before trial. See Klaphake, 64 F.3d at 437 (affirming district court's decision not to exempt defense witness from sequestration because, despite the witnesses' purported intimate knowledge of relevant facts, defendant did “not explain why information concerning such matters could not have been communicated to his attorney prior to ...


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