                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1343
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              Marc Robert Engelmann

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                          Submitted: September 21, 2012
                            Filed: December 19, 2012
                                 ____________

Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

       A jury found Marc Robert Engelmann guilty of conspiracy to commit bank and
wire fraud under 18 U.S.C. § 371, bank fraud under 18 U.S.C. §§ 2 and 1344, and
wire fraud under 18 U.S.C. §§ 2 and 1343. Engelmann moved for a new trial on the
grounds that (1) the district court failed to properly instruct the jury on his “good
faith” defense and (2) a conversation between two government witnesses during trial,
in contravention of a sequestration order, violated his rights to a fair trial and to
effective assistance of counsel. He also requested an evidentiary hearing on the
motion. The district court denied Engelmann’s motion without a hearing, sentenced
him to 36 months imprisonment, and ordered him to pay three different financial
institutions a total of $392,937.73 in restitution. Engelmann appeals the district
court’s denial of his motion for a new trial, its denial of a hearing on the motion, its
application of a sentencing enhancement based on the amount of loss, and its
restitution awards.

       In this opinion, we only address one of Engelmann’s points on appeal.
Specifically, we vacate the district court’s denial of Engelmann’s motion for a new
trial with respect to the alleged sequestration violation. We remand for the district
court to conduct an evidentiary hearing on the limited issue of whether the
government witnesses’ conversation warranted a new trial, to make supplemental
findings of fact, and to reconsider Engelmann’s motion for a new trial in light of any
evidence presented at this hearing. We retain jurisdiction to address all of
Engelmann’s points on appeal after these further district court proceedings.

                                           I.

       Engelmann was a real estate attorney and represented a seller in nine different
transactions that form the basis for his convictions. In each of these transactions, the
buyer and seller entered into a “dual price” purchasing agreement whereby they
provided lenders with inflated sales prices to secure higher loan amounts. The actual
sales prices were lower than the amounts provided to the lenders, and the buyers
pocketed the difference. All nine mortgages went into first payment default, and the
properties were sold at foreclosure.

      Engelmann’s defense at trial was that he did not have the requisite intent to
defraud because he thought the lenders knew of the dual pricing scheme. During

                                          -2-
trial, a sequestration order prevented witnesses from being in the courtroom while
other witnesses were testifying. Two FBI Special Agents, Jeff Huber and Jim
McMillan (collectively “the Agents”), testified at trial that Engelmann told them he
knew the lenders were unaware of the dual pricing arrangements. Engelmann,
however, testified the Agents merely asked him whether the lenders would be victims
of fraud if the lenders did not know of the dual pricing structure, and Engelmann
responded that they would be victims under those facts. In closing argument, the
prosecutor characterized the Agents’ version of Engelmann’s statement as “the most
important evidence that has been presented” and “the most powerful evidence about
the defendant’s guilt in this case.” The prosecutor argued Agent McMillan’s
testimony regarding the statement was especially credible since Agent McMillan was
not in the courtroom while Agent Huber testified and thus “didn’t have the benefit of
hearing Special Agent Huber’s testimony” before giving his own.

      After the jury returned its guilty verdict, a man identifying himself as Richard
McNamara called the district court judge’s chambers. According to the district
court’s summary of this phone call, McNamara

      informed the Court that he had attended the Engelmann trial and wanted
      to advise the Court of what he perceived as an “injustice” that had
      occurred during trial. Mr. McNamara reported that, during a court
      recess after SA Huber had testified, Mr. McNamara observed SA Huber
      talking to SA McMillan, who had not been in the courtroom during SA
      Huber’s testimony. According to Mr. McNamara, the two agents were
      discussing SA Huber’s testimony regarding the procedure and
      techniques the agents had used during the case investigation. Mr.
      McNamara also reported that he saw SA Huber look at the notes he had
      referred to during his testimony. Mr. McNamara said he felt this
      observation was significant because SA McMillan later gave testimony
      consistent with SA Huber’s testimony regarding the agents’ procedure
      and techniques in their investigation and as to what [Engelmann] had
      told them during the interview. Mr. McNamara further expressed that
      it was his recollection that the Government argued in closing that SA

                                         -3-
      Huber and SA McMillan had testified independently and that they had
      never spoken to one another about their testimonies.

United States v. Engelmann, 827 F. Supp. 2d 985, 988 (S.D. Iowa 2011) (footnote
omitted). The district court wrote a letter to both parties informing them of the
communication.

       Engelmann moved for a new trial on the basis that the conversation deprived
him of his rights to a fair trial and to effective assistance of counsel. More
specifically, Engelmann argued that since the conversation did not come to light until
after the jury’s verdict, he did not have the opportunity to cross-examine the Agents
regarding the alleged communication and that the prosecutor made false statements
to the jury in closing arguments. Engelmann also requested an evidentiary hearing
on the motion.

       The district court denied Engelmann’s motion for a new trial without making
any reference to his request for an evidentiary hearing. First, the court held the record
did not contain sufficient evidence of McNamara’s observations since McNamara
neither submitted a sworn affidavit nor was an officer of the court under a sworn duty
to the court. Id. at 991. Second, the court said that even if everything McNamara
said were true, Engelmann still would not be entitled to a new trial because the
Agents’ conduct did not violate the sequestration order. Id. at 991-92. The court
reasoned the sequestration order did not forbid Agent Huber from being present in the
courtroom during Agent McMillan’s testimony because Agent Huber was the
government’s designated case agent at trial. Id. at 992. Furthermore, the
“sequestration order merely excluded witnesses from the courtroom; it did not
prohibit attorneys or SA Huber from meeting with a witness during the trial.” Id.
Third, the court held that even if the conversation did violate the sequestration order,
Engelmann did not show prejudice since the conversation concerned only the



                                          -4-
procedures and techniques of the investigation rather than the substance of
Engelmann’s confession, and since there was no evidence of collusion. Id.

                                           II.

       “Sequestration of most witnesses is mandatory when requested, but the district
court is granted wide latitude in implementing sequestration orders, and the standard
of review is abuse of discretion.” United States v. Collins, 340 F.3d 672, 680 (8th
Cir. 2003) (internal citation omitted). Federal Rule of Evidence 615 provides, in
relevant part, that “[a]t a party’s request, the court must order witnesses excluded so
that they cannot hear other witnesses’ testimony.” Fed. R. Evid. 615. However, Rule
615 explicitly “does not authorize excluding . . . an officer or employee of a party that
is not a natural person, after being designated as the party’s representative by its
attorney.” Id. A person designated as a party’s representative can be present in the
courtroom during witness testimony, and “[t]he decision whether to allow the
government’s agent to testify even though the agent sits at the counsel table
throughout the trial is left to the trial court’s discretion.” United States v. Sykes, 977
F.2d 1242, 1245 (8th Cir. 1992).

       As a preliminary matter, Agent Huber was the government’s designated
representative in Engelmann’s case, while Agent McMillan was not. As such, the
parties agree that Agent Huber’s presence in the courtroom during Agent McMillan’s
testimony did not violate the sequestration order. Nor does either party argue the
district court erred in allowing Agent Huber to testify. Rather, the only dispute
concerns whether the Agents’ alleged out-of-court conversation after Agent Huber’s
testimony but before Agent McMillan’s testimony, which allegedly concerned the
Agents’ investigation of Engelmann and Agent Huber’s testimony regarding the
same, violated the sequestration order.




                                           -5-
        Unless a district court specifies otherwise in a particular sequestration order,
sequestration orders under Rule 615 do not forbid all contact with all trial witnesses
at all times. See, e.g., United States v. Stewart, 878 F.2d 256, 259 (8th Cir. 1989)
(holding district court did not err in issuing sequestration order explicitly permitting
government agents to communicate with witnesses). “The purpose of sequestration
is to prevent witnesses from tailoring their testimony to that of prior witnesses and
to aid in detection of dishonesty.” Collins, 340 F.3d at 681. Applying this principle,
we have held that placing two trial witnesses in the same holding cell before either
one had testified did not violate Rule 615. Id. We also have upheld a district court’s
determination, after an evidentiary hearing, that a non-testifying police officer did not
violate a sequestration order when he “took notes throughout the trial and relayed this
information to government witnesses waiting to testify.” United States v. Smith, 578
F.2d 1227, 1235 (8th Cir. 1978).

       Applying this precedent, we hold that the district court abused its discretion in
denying Engelmann’s motion for a new trial without first affording Engelmann an
evidentiary hearing concerning the alleged conversation. According to the district
court’s summary of McNamara’s phone call, McNamara accused Agent McMillan of
speaking to Agent Huber during a court recess about Agent Huber’s earlier testimony.
Agent McMillan had not yet testified. Thus, this is not a situation like Collins, which
involved pre-testimony contact between witnesses, or like Smith, which involved
contact between witnesses and a trial observer. Nor, as the dissent suggests, does this
case merely involve allegations that a government’s designated representative met
with a government witness to prepare for trial. Infra at 12-13. Rather, these are
specific allegations that Agent Huber directly disclosed details of his earlier
testimony to Agent McMillan before Agent McMillan testified on the very same
subject. We implicitly have recognized that sequestration violations are not limited
to situations where a witness is present in the courtroom while another witness is
testifying. See, e.g., United States v. Vallie, 284 F.3d 917, 921 (8th Cir. 2002)
(analyzing whether contact between trial observers and sequestered witnesses

                                          -6-
violated sequestration order); United States v. Kindle, 925 F.2d 272, 276 (8th Cir.
1991) (analyzing whether contact between DEA case agents and sequestered
witnesses violated sequestration order). Since sequestration orders are meant “to
prevent witnesses from tailoring their testimony to that of prior witnesses,” Collins,
340 F.3d at 681, it would be illogical to hold that Agent McMillan, excluded from the
courtroom pursuant to a sequestration order, could wait outside the courtroom doors
and then discuss with Agent Huber the testimony which Agent Huber had just given.1

      A district court may properly deny relief related to sequestration violations
when the violations do not prejudice a defendant. See, e.g., id. (holding district court
did not err in denying motion for mistrial based on sequestration violation when
witnesses “offered testimony on two completely different issues that did not overlap
and did not involve any of the same facts”); Vallie, 284 F.3d at 921 (holding district
court did not err in allowing trial observers to communicate with sequestered
witnesses when there was “no evidence that any conversations between trial observers
and sequestered witnesses resulted in tailored testimony or otherwise prejudiced” the
defendant). Here, however, the prosecutor characterized the Agents’ testimony as
“the most important evidence that has been presented” and “the most powerful


      1
        The dissent cites United States v. Rhynes, 218 F.3d 310, 316 (4th Cir. 2000)
and United States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993) for the
proposition that “[o]ther circuits similarly have read Rule 615 as a mere limitation on
witnesses’ presence in the courtroom, absent a broader sequestration order.” Infra at
11 n.4. However, neither Rhynes nor Sepulveda involved specific allegations of one
witness directly disclosing details of prior testimony to a second witness before the
second witness testified. See Rhynes, 218 F.3d at 313-16 (holding that Rule 615 did
not prevent defendant’s attorney from discussing earlier government witness’s
testimony with later defense witness before defense witness testified); Sepulveda, 15
F.3d at 1175-77 (holding that placing several witnesses in same holding cell during
trial was not “automatic violation of a standard sequestration order”). Unlike the
situations in Rhynes and Sepulveda, the allegations in Engelmann’s case effectively
place Agent McMillan in the courtroom during Agent Huber’s testimony.
                                          -7-
evidence about the defendant’s guilt in this case.” Under the facts of this case, the
district court abused its discretion in denying Engelmann’s requested evidentiary
hearing, concluding, in the absence of any factual findings regarding the alleged
conversation, that the conversation did not violate the sequestration order or prejudice
Engelmann.

       In so holding, we do not express any opinion on the merits of Engelmann’s
prejudice argument. The evidentiary hearing might reveal that the Agents’
conversation did not concern their trial testimony, that the conversation never took
place at all, or that Engelmann was not otherwise prejudiced by the conversation.
However, in the absence of an evidentiary hearing under the specific facts of this
case, the district court did not have a principled way to determine whether the alleged
conversation violated the sequestration order or whether any violation prejudiced
Engelmann. Remand is necessary to further develop these issues.

                                          III.

       Accordingly, we vacate the district court’s denial of Engelmann’s motion for
a new trial on the limited issue of the alleged sequestration violation. We remand for
the district court to hold an evidentiary hearing concerning the Agents’ alleged
conversation, to make supplemental findings of fact, and to reconsider Engelmann’s
motion for a new trial in light of any evidence presented at that hearing. We retain
jurisdiction over this appeal pending the district court proceedings. See United States
v. Khabeer, 410 F.3d 477, 479 (8th Cir. 2005) (“[W]e remand the case to the district
court for the limited purpose of making supplemental findings of fact necessary to the
resolution of the . . . claims, while retaining jurisdiction.”).




                                          -8-
GRUENDER, Circuit Judge, dissenting.

       The Court contends that because sequestration orders are meant to prevent
witnesses from tailoring their testimony to that of other witnesses, “it would be
illogical to hold that Agent McMillan, excluded from the courtroom pursuant to a
sequestration order, could wait outside the courtroom doors and then discuss with
Agent Huber the testimony which Agent Huber had just given.” Ante at 7. It is not
illogical in this case, however, because neither Rule 615 nor the district court’s
sequestration order prohibited such out-of-court contact, and, even if it did, Special
Agent Huber was the Government’s designated case agent. Rule 615 does not
prohibit a designated case agent, even one who testifies in the case, from conferring
with another witness, and to conclude otherwise reads into Rule 615 a limitation on
case agent conduct that simply does not exist. Finally, even if the alleged out-of-
court contact might be viewed as improper, the district court was within its discretion
to find that Engelmann failed to present sufficient evidence to require a hearing.
Therefore, I respectfully dissent.

       Based on his brief and his counsel’s statements at oral argument, Engelmann’s
sole argument on appeal is that the out-of-court conversation between Special Agents
Huber and McMillan violated Rule 615 and the district court’s sequestration order.2
Even assuming that the two agents conferred as suggested to the district court in a

      2
       The Court notes that before the district court Engelmann argued that the out-
of-court conversation also violated his right to a fair trial and to effective assistance
of counsel. Ante at 4. There is no reference to ineffective assistance of counsel,
denial of a fair trial, or any other additional ground for relief anywhere in
Engelmann’s brief on appeal. Therefore, those issues are waived. See United States
v. Miller, 588 F.3d 560, 567 (8th Cir. 2009). In addition, Engelmann specifically
disclaimed any potential prosecutorial misconduct argument with respect to the
prosecutor’s closing argument. Oral Arg. at 36:04-36:08. Moreover, to the extent he
has an ineffective assistance of counsel claim, it would better be brought under 28
U.S.C. § 2255. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003).
                                          -9-
telephone call, neither Rule 615 nor the court’s sequestration order was violated. In
the absence of a potential violation of Rule 615, or the sequestration order, or any
other articulated theory for relief, a remand for a hearing is unnecessary.

       Rule 615 requires only that witnesses be “excluded so that they cannot hear
other witnesses’ testimony.” Fed. R. Evid. 615. We traditionally have read
sequestration orders that invoke Rule 615 narrowly, interpreting them to reach only
actual courtroom presence of witnesses. See, e.g., United States v. Collins, 340 F.3d
672, 681 (8th Cir. 2003) (holding that pre-testimony conversations between two
sequestered witnesses did not violate the court’s sequestration order); United States
v. Smith, 578 F.2d 1227, 1235 (8th Cir. 1978) (holding that Rule 615 was not violated
when a police officer took notes during the trial and relayed them to witnesses
waiting to testify because the sequestration order was limited to witnesses’ exclusion
from the courtroom). While a district court under some circumstances may have
discretion to enter a broader sequestration order, see United States v. Kindle, 925
F.2d 272, 276 (8th Cir. 1991), the district court did not do so here, see Engelmann,
827 F. Supp. 2d 985, 992 (S.D. Iowa 2011) (explaining “the Court’s sequestration
order merely excluded witnesses from the courtroom”), and such a broad order is not
required to comply with Rule 615, see Kindle, 925 F.2d at 276; see also United States
v. Calderin-Rodriguez, 244 F.3d 977, 984 (8th Cir. 2001) (“Rule 615 does not require
[the] court to forbid contact between [a] DEA case agent and witness during trial.”)
(citing Kindle, 925 F.2d at 276)).3 In fact, we have said that Rule 615 “does not


      3
        The Court cites some of these cases for the proposition that “[w]e implicitly
have recognized that sequestration violations are not limited to situations where a
witness is present in the courtroom while another witness is testifying.” Ante at 6-7.
(citing United States v. Vallie, 284 F.3d 917, 921 (8th Cir. 2002); Kindle, 925 F.2d
at 276). In each of those cases, however, we never reached the issue of whether there
was a violation of the district court’s sequestration order because we concluded that
there was no evidence that any conversations resulted in tailored testimony or in
prejudice to the defendant. See Vallie, 284 F.3d at 921; Kindle, 925 F.2d at 276.
                                        -10-
authorize trial courts to prevent executive branch officials from conferring with their
witnesses.” United States v. Stewart, 878 F.2d 256, 259 (8th Cir. 1989).

        Here, Engelmann’s allegations, as reflected in the telephone conversation
between courtroom observer Richard McNamara and the district court, fall well short
of a potential violation of Rule 615 or the district court’s sequestration order. An
alleged out-of-court conversation between Special Agents Huber and McMillan, by
itself, is insufficient to constitute a violation of either Rule 615 or the court’s
sequestration order. Engelmann makes no allegation that Special Agent McMillan
was present in the courtroom or directly overheard Special Agent Huber’s testimony.
He argues only that an out-of-court discussion between Special Agents Huber and
McMillan potentially involving trial testimony is a violation of Rule 615 and the
district court’s sequestration order. That argument, however, is inconsistent with our
narrow view of Rule 615, and the Court’s discussion of Stewart, Collins, and Smith,
ante at 6, does not explain how they support a contrary conclusion.4 The Court
attempts to overcome this hurdle by arguing that “[t]he allegations in Engelmann’s
case effectively place Agent McMillan in the courtroom during Agent Huber’s

      4
        Other circuits similarly have read Rule 615 as a mere limitation on witnesses’
presence in the courtroom, absent a broader sequestration order. See, e.g., United
States v. Rhynes, 218 F.3d 310, 316 (4th Cir. 2000) (en banc) (Rule 615 “serves only
to exclude witnesses from the courtroom”); United States v. Sepulveda, 15 F.3d 1161,
1176 (1st Cir. 1993) (“Rule 615 contemplates a small[] reserve; by its terms, courts
must ‘order witnesses excluded’ only from the courtroom proper.”). The Court
attempts to distinguish these cases on the grounds that neither case deals with a
situation where the “allegations...effectively place [a witness] in the courtroom during
[a case agent’s] testimony.” Ante at 7 n.1. If, however, the Court’s purported concern
is a sequestered witness’s “effective presence” in the courtroom, that concern is
equally present in situations like those in Rhynes and Sepulveda. In fact, the court in
Rhynes expressly rejected any argument that the “‘purpose and spirit’ of the
sequestration order were compromised” when a defense attorney discussed the
contents of a government witness’s testimony with a defense witness who had yet to
testify. Rhynes, 218 F.3d at 317-18.
                                         -11-
testimony.” Ante at 7 n.1 (emphasis added). However, the concept of “effective
presence” is found nowhere in the text of Rule 615 and is not supported by precedent.

       Moreover, even under the Court’s more expansive view that Rule 615 and the
sequestration order applied to out-of-court contact between witnesses, I still would
not find a violation because Special Agent Huber was the Government’s designated
case agent. Rule 615 “does not authorize excluding . . . an officer or employee of a
party that is not a natural person, after being designated as the party’s representative
by its attorney.” Fed. R. Evid. 615(2). In the criminal prosecution context, the
Government routinely designates a member of law enforcement who is familiar with
the case as its “case agent” to serve as the Government’s representative. This case-
agent exception to Rule 615 ensures fairness and accuracy in courtroom proceedings.
See, e.g., 29 Charles Alan Wright & Victor James Gold, Federal Practice and
Procedure: Evidence, § 6242 (1997) [hereinafter Wright & Gold]. As the Advisory
Committee Notes explain:

      The practice is permitted as an exception to the rule of exclusion and
      compares with the situation defense counsel finds himself in—he always
      has the client with him to consult during the trial. The investigative
      agent’s presence may be extremely important to government counsel,
      especially when the case is complex or involves some specialized
      subject matter. The agent, too, having lived with the case for a long
      time, may be able to assist in meeting trial surprises where the
      best-prepared counsel would otherwise have difficulty.

Fed. R. Evid. 615, Advisory Committee Notes.

       Thus, it is accepted that the case-agent exception permits the case agent to sit
at the counsel table throughout trial, United States v. Riddle, 193 F.3d 995, 997 (8th
Cir. 1999), and testify in court despite the agent’s presence during other witnesses’s
testimony, even if a sequestration order is in place, United States v. Sykes, 977 F.2d
1242, 1245 (8th Cir. 1992). Additionally, given that it is “commonplace” for an

                                         -12-
attorney to conduct out-of-court consultations with clients and witnesses during the
course of trial, see Wright & Gold § 6243, it is illogical that a standard sequestration
order could be read to prohibit a designated case agent from assisting in trial
preparation, including meeting and conferring with witnesses.5 As the district court
explained, its sequestration order “did not prohibit attorneys or SA Huber from
meeting with a witness during trial.” Engelmann, 827 F. Supp. 2d at 988. The Court,
however, overrides the district court’s understanding of its own order. Instead, the
Court would force a testifying case agent to conduct meetings with other witnesses
in an artificial setting in which his own testimony—or that of other witnesses who
have testified—did not exist. Such a conclusion undermines the reasons behind the
case-agent exception.

       As discussed above, in his brief to this court Engelmann failed to articulate any
other theory upon which relief might be available to him beyond an alleged violation
of Rule 615 and the district court’s sequestration order. Even if he had articulated
some other theory, the district court was within its discretion to find that Engelmann
failed to present sufficient evidence to require a hearing. The record contains only
a letter from the district court informing the parties of a telephone call it received
regarding a conversation between people that the court “assume[d]” to be Special


      5
        At least one other circuit also has concluded that Rule 615 permits a
designated case agent to sit at the counsel table during the testimony of other
witnesses and to aid in trial preparation. See United States v. Phibbs, 999 F.2d 1053,
1073 (6th Cir. 1993) (explaining that the terms of Rule 615 do not bar discussion
between the government’s case agent-witness and another witness in the absence of
a court order that the case agent not “discuss the case with any other witnesses”). In
contrast, the Court cites no precedent for its implicit conclusion that Rule 615 alone
prohibits a designated case agent from discussing trial testimony with a witness. Of
course, the fact and contents of such a discussion—and whether it amounted to
improper coaching of the witness—properly would be the subject of cross-
examination by the defense. Id. (citing Geders v. United States, 425 U.S. 80, 89-91
(1976)).
                                         -13-
Agents Huber and McMillan.6 After the district court’s letter put the parties on notice
of the alleged out-of-court conversation between the agents, Engelmann failed to
present a sworn statement or any other evidence to verify the matters raised in the
phone call, much less to support “specific allegations that Agent Huber directly
disclosed details of his earlier testimony to Agent McMillan before Agent McMillan
testified.” Ante at 6. Nothing in the letter suggests that Engelmann would have had
any difficulty obtaining such an affidavit. The letter informed the parties of the trial
observer’s identity, Richard McNamara, and stated that when “Mr. McNamara was
asked his connection to the trial . . . he said that his wife and Engelmann’s wife are
friends.” The Court does not explain why an unverified telephone call from an
unsworn observer should be sufficient evidence to compel a hearing, especially where
Engelmann apparently did nothing to create a record.

       A district court has “wide discretion” in determining whether to grant an
evidentiary hearing, United States v. Baker, 479 F.3d 574, 579 (8th Cir. 2007)
(quoting United States v. Preciado, 336 F.3d 739, 747 (8th Cir. 2003)), and we
review a district court’s decision on whether to grant such a hearing for an abuse of
discretion, see Preciado, 336 F.3d at 747. I find no abuse of discretion here. In fact,


      6
          In the letter the district court explains that the caller:

      did not mention the agents by name but said one of them was the “good
      looking guy sitting at the prosecution table” during the trial; thus I
      assume he was talking about Special Agent Huber. . . . [The observer]
      said that the court called a “normal recess” and that during the recess,
      SA Huber went into the hallway and was joined by the other FBI agent
      whom SA Huber had identified during his testimony as his
      partner/associate agent in the Engelmann investigation; I assume this
      was Special Agent McMillan. [The observer] said another gentleman
      joined the two agents, but [he] did not know the third gentleman’s role
      in the case but “would recognize him” if he saw him.


                                             -14-
if the evidence presented here were sufficient to require an evidentiary hearing, the
case-agent exception to Rule 615 would be eviscerated by routine post-trial fishing
expeditions into the contents of a case agent’s out-of-court contact with witnesses.

       To be sure, the primary purpose of sequestration orders is “to prevent witnesses
from tailoring their testimony to that of prior witnesses.” See United States v.
Collins, 340 F.3d 672, 681 (8th Cir. 2003). However, the allegations here, even taken
at face value, establish no violation of either Rule 615 or the district court’s
sequestration order in this case, and there is no competent evidence to support the
allegations that were made. Engelmann does not articulate any other theory that
could entitle him to relief. Therefore, there is no basis to remand for a hearing.
Because the Court concludes otherwise, I respectfully dissent from this limited
remand, would affirm the district court’s decision on this issue, and would proceed
to the other matters raised in Engelmann’s appeal.
                         ______________________________




                                         -15-
