United States v. Etienne

                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4008



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JOSEPH F. ETIENNE, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:06-cr-00150-JRS-1)


Submitted:   July 18, 2007               Decided:   September 24, 2008


Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Craig W. Sampson, BARNES LAW FIRM, Richmond, Virginia, for
Appellant.   Chuck Rosenberg, United States Attorney, Brian Lee
Whisler, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Following a jury trial, Joseph Etienne was convicted of

conspiracy to commit health care fraud, in violation of 18 U.S.C.

§ 1349 (2000), multiple counts of health care fraud, in violation

of 18 U.S.C. §§ 1374, 2 (2000), and possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000).

Etienne was sentenced to 120 months of imprisonment. On appeal, he

raises two issues.    For the following reasons, we affirm.

          Etienne first asserts that the district court abused its

discretion by permitting a government agent (Agent Costen), who was

not sequestered as a witness, to testify regarding the § 922(g)(1)

firearm charge after observing the testimony of another government

agent (Agent Gladwin) on that issue.       At the outset of the trial,

the court granted the Government’s unopposed request to have both

Costen and Gladwin remain in the courtroom for trial, based on the

Government’s assertion that only Gladwin would testify.        Gladwin

testified on direct examination that, during an interview of

Etienne   by   Costen    and     Gladwin    in   Etienne’s   residence

contemporaneous with a search thereof, Gladwin confronted Etienne

with information that agents had found a gun in the residence.

According to Gladwin, Etienne responded by saying “he forgot to

tell us that it was there,” and that the gun “was [his roommate]

LeVaughn Walker’s grandfather’s gun and that it had been given to

LeVaughn Walker.”    J.A. 464.   Gladwin also testified that Etienne


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took some breaks from the interview to make telephone calls, and

that Gladwin overheard Etienne’s side of one such conversation with

Walker’s mother, Celestine Green.         Gladwin testified that “[w]hen

[Etienne] got on the phone, within like the first ten seconds, I

remember [him] saying, ‘They found the gun.’”            Id. at 463.    When

challenged to do so on cross-examination, however, Gladwin could

not specify whether Etienne had said agents found “the” gun or “a”

gun.    Id. at 494.     Over Etienne’s objection, the Government then

was permitted to call Costen to the stand.         The sole purpose of the

Government’s examination of Costen was to establish that Etienne

had told Green during their telephone conversation that agents

found “the” gun.        J.A. 507.     The defense did not cross-examine

Costen, and the Government rested its case.               Thereafter, the

defense unsuccessfully moved to strike Costen’s testimony for

failure to sequester her.

            Ordinarily, when Federal Rule of Evidence 615 (relating

to sequestration of witnesses) is invoked, the Government “may be

permitted to have only one case agent in the courtroom during

trial.”    United States v. Kosko, 870 F.2d 162, 164 (4th Cir. 1989)

(citing United States v. Farnham, 791 F.2d 331, 335 (4th Cir.

1986)).    “[T]he sequestration of witnesses effectively discourages

and     exposes    fabrication,      inaccuracy,   and   collusion,”    and

“[s]crupulous adherence to [Rule 615] is particularly necessary in

those    cases    in   which   the   outcome   depends   on   the   relative


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credibility of the parties’ witnesses.”    Farnham, 791 F.2d at 335.

In Farnham,

     we were willing to, in effect, presume prejudice where
     the district court clearly violated the rule by allowing
     both testifying government agents to remain in court
     during each other’s testimony and where it would be
     impossible for the defendant to prove that the second
     agent’s testimony would have been different if he had not
     heard the first agent’s testimony.

United States v. Harris, 39 F.3d 1262, 1268 (4th Cir. 1994) (citing

Farnham, 791 F.2d at 335).    Nevertheless, we recognized in Harris

that violations of Rule 615 are subject to the harmless error rule

and, thus, that an error in nonsequestration does not warrant per

se reversal if the circumstances of a particular case illustrate

clearly that the witness’s testimony had no substantial influence

on the verdict.    Id.

            Even accepting that a violation of Rule 615 occurred here

(an issue that the Government disputes on the premise that the

trial court properly exercised its discretion), we conclude under

the circumstances presented that the district court’s decision to

permit Costen to testify was harmless error.      That is, Etienne’s

conviction under § 922(g)(1) is supported by other substantial

evidence.     See Fed. R. Crim. P. 52(a); United States v. Ince, 21

F.3d 576, 583 (4th Cir. 1994).      For instance, Gladwin testified

that, when confronted during the interview with information about

the gun, Etienne indicated that he knew but forgot to tell agents

about the gun’s presence in his residence.      Furthermore, the gun


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was found in a dresser along with business and banking documents

bearing     Etienne’s    and   Walker’s      names,      and    Etienne’s   driver’s

license and a yellow bracelet bearing his name were found nearby in

a cigar box.

             Next, Etienne asserts that the district court erred in

refusing to give his proposed jury instruction.                      We review the

decision to give, or not to give, a jury instruction and the

content of that instruction for an abuse of discretion.                         United

States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995).                      The district

court’s refusal to grant a requested jury instruction is reversible

error only if the proffered instruction “(1) was correct; (2) was

not substantially covered by the court’s charge to the jury; and

(3) dealt with some point in the trial so important, that failure

to   give    the    requested       instruction         seriously    impaired     the

defendant’s ability to conduct his defense.”                      United States v.

Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks

omitted).       Etienne    has      not    met    the   above    requirements      for

reversible error, in that his requested jury instruction was

substantially      covered     by    the     court’s      charge    to    the    jury.

Accordingly, we find that the district court did not abuse its

discretion in refusing Etienne’s requested instruction.

             For   the   reasons     stated       herein,   we   affirm     Etienne’s

convictions and sentence.           We dispense with oral argument because

the facts and legal contentions are adequately presented in the


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materials   before   the   court   and     argument   would   not   aid   the

decisional process.

                                                                    AFFIRMED




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