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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OPUS 3 LIMITED,
Plaintiff-Appellee,
v.
HERITAGE PARK, INCORPORATED,
Defendant-Appellant,
and
No. 95-1863
PAUL STEIN,
Defendant,
and
JAMES O'BRIEN; DAVID KOPP;
DAVID J. MISLIN; JOHN DOES,
Third Party Defendants.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-93-3556-AW)
Argued: April 1, 1996
Decided: July 23, 1996
Before ERVIN, NIEMEYER, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Ervin and Judge Williams joined.
COUNSEL
ARGUED: Paul Mark Sandler, FREISHTAT & SANDLER, Balti-
more, Maryland, for Appellant. Edward W. Cameron, ODIN, FELD-
MAN & PITTLEMAN, P.C., Fairfax, Virginia, for Appellee. ON
BRIEF: Raymond Daniel Burke, FREISHTAT & SANDLER, Balti-
more, Maryland, for Appellant.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
At the outset of the bench trial in this case, which involved a claim
for money due for construction services performed, Opus 3 Limited,
the plaintiff, invoked Federal Rule of Evidence 615 to exclude wit-
nesses from the courtroom during trial. The defendant, Heritage Park,
Incorporated, opposed Opus 3's request to sequester its only witness,
arguing that the witness was both its expert witness and designated
representative at trial. The district court sequestered the witness and
proceeded with trial, ultimately awarding Opus 3 damages.
On appeal, Heritage Park contends that the district court improp-
erly excluded its witness from the courtroom because, as an expert
witness, he was essential to the presentation of its cause under section
(3) of Rule 615, and he was a corporate representative under section
(2). Heritage Park also challenges the district court's damages award.
For the reasons that follow, we affirm.
I
In April 1993, Heritage Park, the owner of a residential apartment
complex in Adelphi, Maryland, allegedly negotiated an agreement
with Opus 3 to perform renovation work on the complex. Under the
agreement, Heritage Park was to compensate Opus 3 on a time and
materials basis, plus profit. Heritage Park retained Bryan Mack, a
general contractor, to act as its on-site representative for the construc-
tion project.
As work progressed, Opus 3 submitted invoices for extra work
approved by Mack. But Heritage Park disputed Mack's authority to
approve any work, contending that he was an independent contractor
hired by Heritage Park only to inspect the property and perform spe-
cific maintenance and construction tasks. When Heritage Park refused
payment, Opus 3 filed this action.
In response to Opus 3's lawsuit, Heritage Park contended that Opus
3 had exceeded its authority to perform work; that it had charged
excessively for its work; and that it had not properly supervised its
subcontractors, causing "massive overtime charges." It also main-
tained that Mack had never been an agent, employee, or officer of
Heritage Park and that therefore he was not authorized to approve the
extra work performed by Opus 3. In the pretrial order, however, Heri-
tage Park did identify Mack as its expert witness in the field of "gen-
eral contracting and project management."
At the beginning of trial, Opus 3 invoked Federal Rule of Evidence
615, requesting "a rule on witnesses." It stated that its "request [was]
really directed specifically at the primary witness[for] the defense in
this case, Mr. Bryan Mack." While acknowledging that Heritage Park
was offering Mack as an expert witness, Opus 3 explained that "he
is also one of the key, in fact, the key fact witness that the defense
would offer today as well."
Heritage Park confirmed that Mack, its only witness, was both a
fact witness and an expert witness. It argued, however, that Mack
should be exempted from sequestration because he was a "critical wit-
ness" who needed to hear "the very testimony he is going to give an
opinion on." Heritage Park also argued that it had designated Mack
as its trial representative, relying on a letter its president had sent
Mack, which stated, "[S]ince I will not be going to the trial in Mary-
land, you are hereby authorized to act on behalf of Heritage Park, Inc.
at the trial."
After considering both parties' arguments, the district court
excluded Mack from the courtroom, explaining:
[S]ince [Mack] is not affiliated with the defendant by way
of an agent or a high managerial position, I think it is unfair
to have him sit in if he is going to address a factual issue
in dispute.
On the issue of damages, Opus 3 introduced evidence of the work
it had performed for Heritage Park, including the work that Mack had
approved, as well as the expenses it had incurred. It introduced all of
the invoices from its various suppliers and subcontractors that related
to the construction work, as well as time records for labor, and evi-
dence that the bills and invoices were reasonable and in line with
industry standards in the area.
The district court credited Opus 3's testimony over Mack's and
awarded Opus 3 $71,280.50, plus pre-judgment interest and costs.
This appeal followed.
II
Upon a party's request for witness sequestration, Federal Rule of
Evidence 615 requires the court to exclude witnesses so that one wit-
ness cannot hear the testimony of another. The rule is designed to dis-
courage and expose fabrication, inaccuracy, and collusion. Fed. R.
Evid. 615 advisory committee's note; see also United States v.
Leggett , 326 F.2d 613, 613 (4th Cir.) (noting that witness sequestra-
tion "prevent[s] the possibility of one witness shaping his testimony
to match that given by other witnesses at the trial"),
cert. denied
,
377
U.S. 955
at least biblical times. The Apocrypha , vv. 36-64, relates how Daniel
vindicated Susanna of adultery by sequestering the two elders who
had accused her and asking each of them under which tree her alleged
adulterous act took place. When they gave different answers, they
were convicted of falsely testifying. See 6 John H. Wigmore, Wig-
more on Evidence § 1837, at 455-56 (James H. Chadbourn ed., 1976).
It is now well recognized that sequestering witnesses "is (next to
cross-examination) one of the greatest engines that the skill of man
has ever invented for the detection of liars in a court of justice." Id .
§ 1838, at 463.
Despite the powerful policies behind sequestration, the rule must
yield to the yet more powerful confrontation and due process consid-
erations of allowing the parties themselves to be in court and to pres-
ent their cases. See Fed. R. Evid. 615 advisory committee's note.
Thus, sections (1) and (2) exempt from sequestration parties to the lit-
igation, deeming the party in the case of a corporation to be its desig-
nated corporate officer or employee. And section (3) exempts any
person whose presence is found by the district court to be essential
to the presentation of the party's cause. 1
Because of its important role in reaching the truth, Rule 615 carries
a presumption favoring sequestration. See United States v. Farnham ,
791 F.2d 331, 335 (4th Cir. 1986). Accordingly, we construe the
rule's exemptions "narrowly in favor of the party requesting seque-
stration." Id . For the same reason, the party seeking to avoid seque-
stration of a witness bears the burden of proving that a Rule 615
exemption applies. See United States v. Jackson , 60 F.3d 128, 135 (2d
Cir.), cert . denied , 116 S. Ct. 487 (1995), and cert . denied , 116 S. Ct.
951, 1057 (1996); Government of the Virgin Islands v. Edinborough ,
625 F.2d 472, 476 (3d Cir. 1980).
Our review of a district court's application of Rule 615 depends on
the nature of the district court's ruling. We review de novo the district
court's order refusing sequestration or sequestering a person whom it
finds exempt under section (1) or (2), and we review for clear error
factual findings about who is a party, officer, or employee. But a rul-
ing under section (3) resembles a trial court's evidentiary rulings,
which fall within the courts' broad discretion over the conduct of tri-
als. Accordingly, we apply an abuse of discretion standard to a district
court's judgment about whether section (3) exempts a person as
essential to a party's presentation of its cause. See Jackson , 60 F.3d
at 134-35; Polythane Sys., Inc. v. Marina Ventures Int'l, Ltd. , 993
F.2d 1201, 1209 (5th Cir. 1993), cert. denied , 114 S.Ct. 1064 (1994).
In the case before us, Opus 3 invoked Rule 615 because Mack's
factual testimony was expected to be at the core of the dispute. And
in response, Heritage Park argued that Mack should be exempted
from sequestration because (1) he was its expert witness who needed
to hear other testimony to form his opinions, and (2) he was Heritage
Park's designated trial representative.
A
In arguing that Mack was exempt from sequestration because of his
role as expert witness, Heritage Park relies on section (3) of Rule 615,
which exempts from sequestration persons essential to the presenta-
tion of its cause, and on Federal Rule of Evidence 703, which permits
experts to base their opinions on facts and data made known to them
"at or before the hearing."
Because Rule 615 is designed to preclude fact witnesses from shap-
ing their testimony based on other witnesses' testimony, it does not
mandate the sequestration of expert witnesses who are to give only
expert opinions at trial. Indeed, an expert who is not expected to tes-
tify to facts, but only assumes facts for purposes of rendering opin-
ions, might just as well hear all of the trial testimony so as to be able
to base his opinion on more accurate factual assumptions. Neverthe-
less, we decline to adopt a per se rule exempting expert witnesses,
even those who are expected only to render opinions, from sequestra-
tion. The rule does not provide such an exemption and section (3)
vests in trial judges broad discretion to determine whether a witness
is essential. See Morvant v. Construction Aggregates Corp. , 570 F.2d
626, 630 (6th Cir.), cert . dismissed , 439 U.S. 801 (1978).
In the case before us, even if Mack were going to testify only as
an expert, Heritage Park failed to establish that he needed to hear the
trial testimony of the other witnesses in order to render his opinions.
Mack had received and reviewed all of Opus 3's records, including
its expert's records of the cost of services rendered, and had prepared
a written analysis well before trial. Thus, Heritage Park never articu-
lated why Mack's presence was "´essential,' rather than simply desir-
able." Jackson , 60 F.3d at 135.
But Mack was not just an expert witness. He was a fact witness
whose testimony was crucial to the disputed issues. Whether Heritage
Park owed Opus 3 money hinged in part on the relative credibility of
Mack on the one hand and Opus 3's witnesses on the other. And the
district court excluded Mack not because he was an expert who would
not benefit from testimony, but because he was a key fact witness. It
is in precisely this circumstance that adherence to the sequestration
rule is most important. See Farnham , 791 F.2d at 335. ("Scrupulous
adherence to [the sequestration rule] is particularly necessary in those
cases in which the outcome depends on the relative credibility of the
parties' witnesses").
We conclude that the district court did not abuse its discretion in
ruling that Mack was not exempt under section (3) of Rule 615. 2
B
Heritage Park also argues that Mack "was specifically employed,
authorized and designated by Heritage Park to be its representative at
trial," and that by excluding him from the courtroom during the trial,
the court violated Heritage Park's right -- "of constitutional dimen-
sion" -- to be present during trial, in violation of section (2) of Rule
615.
Section (2) exempts from sequestration only "an officer or
employee of a party which is not a natural person designated as its
representative by its attorney." Yet, in the pretrial order in this case,
Heritage Park stated that "Mr. Mack has never been an agent,
employee, officer or director of Heritage Park." And Heritage Park
never recanted its position that Mack was an independent contractor
who was not authorized to bind the company in any respect. More-
over, we can find no evidence in the record that Mack was in fact a
Heritage Park employee. There is no indication that the company paid
him a salary, that it paid taxes or other assessments generally due in
respect of employees, or that its officers controlled Mack. Because the
district court's finding that Mack was not an officer or employee of
Heritage Park for section (2) purposes is not clearly erroneous, Heri-
tage Park failed to meet the exemption's requirements.
While Heritage Park had to concede under its theory of the case
that Mack was not a corporate officer or employee, it falls back on
the letter that Heritage Park's president sent to Mack before trial des-
ignating him "to act on behalf of Heritage Park, Inc. at the trial." Heri-
tage Park argues that, by virtue of the letter, Mack became an
employee of the company for Rule 615 purposes and therefore was
entitled to be present at trial as Heritage Park's corporate representa-
tive. We cannot agree that a corporation's mere designation of a per-
son to act on its behalf at trial converts the person into its employee.
Moreover, to allow a corporate party to "employ" a person solely as
its trial representative would render Rule 615 meaningless. A corpo-
rate party could avoid the rule in every case by designating its key
witness or "employing" that witness as its trial representative. We
decline to recognize the efficacy of such a practice.
III
Finally, Heritage Park challenges the sufficiency of Opus 3's dam-
ages evidence. While Heritage Park failed to present its argument to
the district court, we need not determine whether Heritage Park has
thereby waived it because the district court's damages award is well
supported by the evidence in the record. Opus 3 introduced into evi-
dence (1) all of the invoices from its various suppliers and subcon-
tractors relating to its construction activities for Heritage Park, (2) the
time records for its labor, (3) testimony from Opus 3's witnesses that
Opus 3 had actually incurred the various expenses, and (4) expert tes-
timony that the amounts of the invoices and labor charges were rea-
sonable.
Accordingly, the judgment of the district court is
AFFIRMED .
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 autho-
rize 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 des-
ignated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to the presen-
tation of the party's cause.
courtroom was essential to the presentation of its cause because he was
needed "to advise counsel in the management of the litigation." But Heri-
tage Park failed to present this contention to the trial judge when he was
ruling on Opus 3's sequestration request. Heritage Park argued only that
Mack was a "critical witness." Such an assertion, however, is insufficient
to justify the Rule 615(3) exemption. See Miller v. Universal City Stu-
dios, Inc. , 650 F.2d 1365, 1374 (5th Cir. 1981) (noting that defendants
argument that expert witness was "crucial" to their case did not invoke
Rule 615(3) exemption); Morvant , 570 F.2d at 629 (rejecting argument
that expert was needed to advise counsel for failure to present it to dis-
trict court). Moreover, even now Heritage Park cannot demonstrate that
Mack's presence was essential to the presentation of its cause; it has not
articulated any specific harm to counsel that resulted from Mack's seque-
stration.