APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 75-235).
Aldisert and Gibbons, Circuit Judges, and Joseph L. McGlynn, Jr.,*fn* District Judge.
Appellant, Eric Redding, appeals from a judgment of conviction for bank robbery, in violation of 18 U.S.C. § 2113(a) and (d).*fn1 Appellant raises several issues, none of which is adequate to command reversal. Two of these issues, because they are likely to recur in other cases, warrant discussion.*fn2
The first issue involves an interpretation of Fed. R. Evid. 615 which relates to the sequestration of witnesses. After appellant's jury had been sworn but prior to the opening statements of either counsel, appellant's counsel requested, and the court ruled:
Appellant's Counsel: Your Honor, at this time I would request that the witnesses be sequestered prior to the time that Mr. McKay [the prosecutor] might make an opening statement to the jury.
The Court: Well, ordinarily we don't observe that practice unless there are some special reasons, so the motion is denied.
Appellant contends that this ruling violated Fed. R. Evid. 615, which reads:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
The advisory notes to Rule 615 read in part:
The authority of the judge [to sequester witnesses] is admitted, the only question being whether the matter is committed to his discretion or one of right. This rule takes the latter position. No time is specified for making this request.
We do not dispute that a party may request as of right that witnesses be excluded prior to the time that any opportunity exists for them to hear the testimony of other witnesses. We do not, however, construe a party's request for the exclusion of witnesses prior to opposing counsel's opening statement to be within the purview of Rule 615. Rule 615 relates exclusively to the time testimony is being given by other witnesses. Its language is clear and unambiguous: "the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses." Even such a strong advocate of mandatory sequestration as Professor Wigmore*fn3 was of the view that the sequestration of witnesses was not appropriate during the opening statement of counsel.
"The time for sequestration begins with the delivery of testimony upon the stand and ends ...