United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 22, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
________________________ Clerk
NO. 04-31068
________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MARY ANN COLOMB, et al.,
Defendants-Appellees.
______________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
______________________________________________
Before KING, Chief Judge, DAVIS, Circuit Judge, and FITZWATER,
District Judge.*
FITZWATER, District Judge:
In this interlocutory appeal, the government challenges the
district court’s bench ruling precluding it from calling sixteen
witnesses of whom it first learned after the criminal trial of four
defendants was continued for several months. We must decide
whether the district court abused its discretion by excluding the
witnesses based on Fed. R. Evid. 611(a) and on its inherent power
to avoid the needless consumption of time and to control its
docket, but without first considering the content of their
anticipated testimony. Concluding the district court abused its
*
District Judge of the Northern District of Texas, sitting by
designation.
discretion, we VACATE and REMAND for further proceedings.
I
Defendants Mary Ann Colomb, Edward James Colomb, Sammy Davis,
Jr. (“Sammy Davis”), and Danny Davis are charged by superseding
indictment with various drug-related and firearm offenses arising
from the alleged operation of a drug distribution network from
November 1991 to November 2001.1 They are accused, inter alia, of
conspiring to possess with intent to distribute not less than fifty
grams of crack cocaine, although the government maintains that it
can prove they trafficked several kilograms of crack during the
conspiracy.
The grand jury handed up the original indictment on May 15,
2002.2 Defendants pleaded not guilty. After several continuances
apparently caused by the complexity of the case, the district court
set the trial for May 17, 2004. During late April 2004 Sammy Davis
and his codefendants each moved to sever from the remaining counts
the trial of his charge of possession of a firearm by a convicted
felon. The court granted the motion, severed the count for a
separate trial, and continued the trial of the remaining charges
against Sammy Davis and the codefendants until June 1, 2004.3 On
1
Danny Davis is not charged in the firearm count.
2
The grand jury returned superseding indictments on April 15,
2004 and June 9, 2004. The changes made in the superseding
indictments are irrelevant to this appeal.
3
Sammy Davis was convicted of the offense at the separate
trial.
- 2 -
June 1, 2004, as scheduled, the district court conducted jury
selection. After the jury was chosen, but before it was sworn,
issues arose concerning the scope of the superseding indictment and
the anticipated length of the trial. The court on its own
continued the trial until September 23, 2004 to allow more time to
consider the issue. It later delayed the trial to September 27,
2004.
Beginning in June 2004, the prosecutor, Assistant United
States Attorney Brett L. Grayson (“Grayson”), began to receive
letters or telephone calls from several individuals——almost all of
whom are incarcerated——who said they had information concerning
defendants’ alleged offenses and offered to testify at trial. The
number of contacts intensified in September. Grayson and the case
agents interviewed these persons and determined that sixteen should
be called as witnesses. From September 12 through September 21,
2004 Grayson advised defendants’ counsel that the government
intended to call additional coconspirator-type witnesses and
provided discovery concerning them.
On September 23, 2004 defendants moved to continue the trial
or, alternatively, to strike the new witnesses, contending they did
not have sufficient time to prepare for cross-examination. On
September 27, 2004, in a bench ruling, the district court denied
the continuance motions, concluding that defendants were not
entitled to delay the trial based on the new government witnesses.
The court reasoned that there might be circumstances in which a
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continuance would be warranted based on the addition of a witness,
but it concluded that this was not the appropriate type of case
given the additional evidence to be offered.
The court also decided on its own to exclude the witnesses
whom the government had added after the May 17, 2004 trial date.
The court concluded that “[t]he judge is supposed to control his or
her docket, the order of the trial, and avoid the needless
consumption of time, and to decide all of that on the particular
circumstances of the case.” R. 14:14. It stated that its ruling
was not based on the government’s purpose for calling the witnesses
or on what each would say, but on “control of the docket, needless
consumption of time.” Id. at 23. The court cited as authority to
exclude the witnesses Rule 611(a)4 and its “inherent power to avoid
the needless consumption of time and the Court’s ability to control
its docket.” Id. at 15.5 It did not find that the government’s
attempt to add the witnesses violated a scheduling order in the
case or a court rule, nor did it consider the content of the
witnesses’ anticipated testimony.6 Instead, the court pointed out
4
The court actually referred to “Federal Rule of Civil
Procedure 611(a),” R. 14:15, but all parties agree that it intended
to cite Fed. R. Evid. 611(a).
5
The court also cited its authority “under the common law,”
id. at 15, 16, but it appears that it was referring to common law
principles incorporated in Rule 611(a), see id. at 15, 18.
6
For example, at one point in its ruling the court stated:
I did not ask him, now, Mr. Grayson, are any
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that the government had been ready to go to trial on May 17, 2004
without the witnesses, suggesting that, since the government was
prepared at that time to try the case without the testimony, it
should be ready for trial without it now.7 From the inception of
its bench ruling, the court made plain that it was attempting by
its decision to establish through appellate review what are the
limits on the power of district judges to control their dockets by
restricting the witnesses who can testify.8
of these eight or ten or twelve witnesses, are
they going to give you any more information
than you had on May 17th when this trial
started other than to show that these four
defendants —— and some maybe to all, maybe
some to only one or two —— are guilty of the
crimes charged in the indictment that none of
the other witnesses are going to address? I
didn’t give him that opportunity. It seemed
to me a question that didn’t need to be asked
simply because we were going to trial on May
the 17th.
Id. at 18-19. It elsewhere “conceded that [it] hadn’t gone through
each one of these witnesses with [Grayson], given [him] the
opportunity to do that before [it] said what [it] was going to
do[.]” Id. at 23.
7
The court noted: “And, again, this is a two-year-old case, an
over two-year-old case, and I think my statement at the pretrial on
the record —— off the record was that, gee, you were ready to go on
May 17th.” Id. at 13.
8
As it began dictating the ruling, the court noted that it was
speaking “for the record for the three judges that will get the
opportunity to review this case,” id. at 3, opined that, “from this
judge’s view, this is a very significant issue about the role of
Article III in the administration of justice and the ability of the
Court to control its own docket,” id. at 4, and stated, “It’s a
serious matter, Court of Appeal judges. Please bear with me.” Id.
- 5 -
Although at various times the district court referred to some
of the following factors as not being germane, being only
tangentially germane, or being mere asides to its dispositive
reasoning, it appears to have been influenced by how the witnesses
came to the government’s attention, what motives they likely had
for testifying (i.e., prisoners attempting to obtain reduced
sentences), and the number of additional witnesses. It noted that,
in the interim between the May 17, 2004 and September 2004 trial
dates, it had presided over a three-week trial in United States v.
John Timothy Cotton, et al., which Grayson had also prosecuted. In
Cotton the government had called 106 witnesses, many of whom the
court thought were cumulative at best, and several of whom had
contacted the government after learning about the case, in hopes of
obtaining sentence reductions.9 Similarly, in the instant case the
witnesses in question were prisoners who contacted the government
after Sammy Davis was convicted of the felon-in-possession charge,
stating that they could provide information that could help convict
the defendants. The court seemed to be concerned that, with the
increasing number of such persons called as witnesses, the
9
The court observed that it saw nothing improper about the
government’s calling such witnesses, and it stated that its
experience in the Cotton trial had given it a new perspective on
the place and use of such witnesses, despite the potential for
abuse. It also expressed the belief that, before calling such
witnesses, the government, including Grayson as a prosecutor, would
satisfy its obligation to ensure that the trial, including the
testimony presented, was a search for the truth, not an effort to
get a conviction.
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likelihood would also escalate that unreliable testimony could
escape government scrutiny, be introduced at trial, and taint the
system.10
Although the court appears to have been influenced by the
foregoing factors, it expressly based its decision on Rule 611(a)
and its inherent power to avoid the needless consumption of time
and its ability to control its docket.11 The court saw the case as
one that was two years old, where the government had been ready to
go to trial on May 17, 2004, without prisoner witnesses who had
come to light only afterward and who would not have been available
to testify had the case been tried as scheduled, and who were
motivated to help themselves by testifying. It recognized a
general government prerogative to call as many witnesses as it
wanted, but, having tried the Cotton case, where the government
10
Although we recognize that the district court’s concern with
the witnesses’ motivation to testify apparently influenced its
decision, we accept its statements that it excluded the evidence
for the reasons it dictated on the record. We therefore have no
reason to address whether the court could have excluded the
evidence on this basis, although we note that we have long held
that such concerns are appropriately assessed by the jury in
determining witness credibility. See, e.g., United States v.
Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) (en banc)
(holding that informant who receives contingent fee is not
disqualified from testifying, and stating that, “[a]s in the case
of the witness who has been promised a reduced sentence, it is up
to the jury to evaluate the credibility of the compensated
witness.”).
11
See R. 14:16 (“The basis of the ruling is this Court’s
authority under the federal rules, the common law, and its inherent
power to control its docket and avoid the needless consumption of
time.”).
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called 106 witnesses, and in the circumstances of the present case,
it declined to permit the government to exercise that right.
After it ruled, the court permitted the government to make a
proffer. The government asserted that the court’s decision
effectively excluded sixteen witnesses whom it had discovered only
after the May 17, 2004 trial date. Grayson detailed the date each
witness contacted the government, the manner (letter or telephone
call) in which contact was made, and the expected content of the
witness’ testimony. The government contended the witnesses were
helpful to its case, and were not cumulative, because some would
testify to drug transactions that constituted unalleged overt acts
in furtherance of the conspiracy, and others would corroborate the
testimony of other cooperating witnesses. It posited that the
evidence would also assist the government in proving drug
quantities necessary to establish guilt on the offense charged,
i.e., in excess of fifty grams of crack cocaine, and that were
relevant to sentencing. One witness, who was not a prisoner, would
corroborate the testimony of a witness who had been designated
before the May 17, 2004 trial date, and who was subject to
impeachment as a coconspirator.
In announcing its ruling, the district court observed several
times that reasonable jurists could disagree about whether the new
witnesses should be excluded, and it noted that the issue would
likely recur. It strongly encouraged the government to appeal its
decision, and it granted the government’s motion for a trial
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continuance so that it could seek permission to pursue an
interlocutory appeal. The government obtained the approval of the
Acting Solicitor General, and this appeal followed.12
II
We review the “district court’s evidentiary rulings for abuse
of discretion.” United States v. Griffin, 324 F.3d 330, 347 (5th
Cir. 2003) (citing United States v. Miranda, 248 F.3d 434, 440 (5th
Cir. 2001)). “A district court by definition abuses its discretion
when it makes an error of law.” United States v. Delgado-Nuñez,
295 F.3d 494, 496 (5th Cir. 2002) (brackets omitted) (quoting Koon
v. United States, 518 U.S. 81, 100 (1996)).
III
Our first question is whether Rule 611(a) authorized the
12
We have jurisdiction under 18 U.S.C. § 3731, which provides,
in relevant part:
An appeal by the United States shall lie to a
court of appeals from a decision or order of a
district court suppressing or excluding
evidence or requiring the return of seized
property in a criminal proceeding, not made
after the defendant has been put in jeopardy
and before the verdict or finding on an
indictment or information, if the United
States attorney certifies to the district
court that the appeal is not taken for purpose
of delay and that the evidence is a
substantial proof of a fact material in the
proceeding.
In this case, the United States Attorney certified that the appeal
is not taken for purpose of delay and that the evidence is a
substantial proof of a fact material in the proceeding.
- 9 -
district court to exclude the witnesses. Rule 611(a) provides:
The court shall exercise reasonable control
over the mode and order of interrogating
witnesses and presenting evidence so as to (1)
make the interrogation and presentation
effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue
embarrassment.
The government contends Rule 611(a) neither supported excluding the
witnesses nor supplied an independent basis for determining the
admissibility of evidence, because it only empowers a court to
control the mode and order of presenting evidence. Defendants
maintain that Rule 611(a) authorized the court to exclude the
witnesses because it enables a district court to exercise control
over its docket and limit the number of government witnesses to
avoid the needless consumption of time.
The command of Rule 611(a) that “[t]he court shall exercise
reasonable control over the mode and order of interrogating
witnesses and presenting evidence” does not support the decision
below to exclude the sixteen government witnesses. “Unlike the
vast majority of the other Evidence Rules, Rule 611 does not
purport to regulate the admissibility of evidence. Instead, the
rule gives trial courts broad powers to control the ‘mode and
order’ of what is otherwise admissible evidence.” 28 Charles Alan
Wright & Victor James Gold, Federal Practice and Procedure § 6162,
at 338 (1993) (footnote omitted). Although decisions that a court
makes under Rule 611 may indirectly affect whether proof is
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admitted, the Rule does not provide an independent ground for
excluding otherwise-admissible evidence. See id. § 6163, at 344-
45. “Thus, the key to understanding the scope of Rule 611 is that
it affects admissibility only as an incident to regulating mode and
order; the provision itself creates no standards for
admissibility.” Id. at 345-46. “Where a court excludes evidence
to advance the policies specifically described in subdivision (a),
it is Rule 403 and not Rule 611 that supplies the power for that
action.” Id. at 345.
Defendants rely on a portion of the Advisory Committee note
that indicates that questions may arise during trial that “can be
solved only by the judge’s common sense and fairness in view of the
particular circumstances.” Appellees Br. at 12 (quoting Rule 611
advisory committee’s note).13 The district court cited this
13
The paragraph at issue states:
Item (1) restates in broad terms the power and
obligation of the judge as developed under
common law principles. It covers such
concerns as whether testimony shall be in the
form of a free narrative or responses to
specific questions, the order of calling
witnesses and presenting evidence, the use of
demonstrative evidence, and the many other
questions arising during the course of a trial
which can be solved only by the judge’s common
sense and fairness in view of the particular
circumstances.
Rule 611 advisory committee’s note (citations omitted).
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language, considering it a “catchall.” R. 14:18.14 Defendants
appear to suggest that this note language, combined with Rule
611(a)(2)’s directive that “[t]he court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to . . . avoid needless consumption of
time,” authorizes a court to exclude witnesses when their testimony
will needlessly use trial time.
When the note language is understood in its proper context,
however, it does not support the assertion that it is a catchall
provision for regulating the admission of evidence. A fair
assessment of the entire paragraph reveals that, in addressing Rule
611(a)(1), the Advisory Committee is providing examples of
“concerns” addressed by a Rule that “restates in broad terms the
power and obligation of the judge as developed under common law
principles.” Each relates to the “mode and order” of interrogating
witnesses and presenting evidence. The “many other questions” to
which the note refers pertain to the “mode and order” of presenting
evidence, not to questions of admissibility. The note language
cannot be read to enlarge the powers of the district court found in
the text of the Rule.
In explaining its decision, the district court also discussed
the part of the Advisory Committee note that relates to Rule
14
The district court stated: “That’s what I’m doing in this
case to the best of my ability, Fifth Circuit, under the particular
circumstances of this case and the procedural developments that
were occasioned by the Court’s May 17th ruling.” R. 14:18.
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611(a)(2). But as the note suggests, it is Rule 403 that provides
the authority to exclude evidence. See Rule 611 advisory
committee’s note (“A companion piece is found in the discretion
vested in the judge to exclude evidence as a waste of time in Rule
403[ ].”). “Where a court excludes evidence to advance the
policies specifically described in subdivision (a), it is Rule 403
and not Rule 611 that supplies the power for that action.” Wright
& Gold, supra, § 6163, at 345. Under Rule 611(a)(2), needless
consumption of time is avoided through the court’s regulation of
the mode and order of interrogating witnesses and presenting
evidence.
The district court erred as a matter of law, and therefore
abused its discretion, in relying on Rule 611(a) to preclude the
government from calling the witnesses in question.
IV
We next consider whether the district court’s inherent
authority to avoid the needless consumption of time and to control
its docket authorized it to exclude the witnesses. The government
posits that the court abused its discretion in excluding non-
cumulative evidence without first considering its content and after
acknowledging that there was no evidence that the testimony was
untruthful. Defendants maintain that, like court orders that limit
the number of alibi or character witnesses a party may call, the
district court’s ruling prohibiting the new witnesses from
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testifying was a proper use of its inherent power.
A
A district court has inherent power “to control the
disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Landis v. N.
Am. Co., 299 U.S. 248, 254 (1936) (referring to power to stay
proceedings as incident to such inherent powers). “The federal
courts are vested with inherent power ‘to manage their own affairs
so as to achieve the orderly and expeditious disposition of
cases[,]’ . . . includ[ing] the power of the court to control its
docket[.]” Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir.
1995) (footnote omitted) (addressing inherent power of court to
control its docket by dismissing case as sanction for failing to
obey court order) (quoting Link v. Wabash R. R. Co., 370 U.S. 626,
630 (1962), and citing In re United Mkts. Int’l, Inc., 24 F.3d 650,
654 (5th Cir. 1994)). We have approved various rulings based on
the district court’s invocation of this inherent power. See, e.g.,
United States v. Hughey, 147 F.3d 423, 430-31 (5th Cir. 1998)
(concluding that district court had power and duty to control its
docket and ensure that counsel properly prepared so that case could
be tried rather than continued, and holding that district court did
not err by requiring defense counsel either to commit to firm trial
date or withdraw from case); Marinechance Shipping, Ltd. v.
Sebastian, 143 F.3d 216, 218 (5th Cir. 1998) (holding that inherent
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authority to control docket authorized district court to decide
order in which to hear and decide pending issues). We have also
recognized that a district court may impose reasonable time limits
on the presentation of evidence and the examination of witnesses.
“The district court has broad discretion in managing its docket
including maintaining the pace of the trial by interrupting counsel
or setting time limits. Reasonable limits on questioning ‘based on
concerns about . . . harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant’ are permissible.” United States v.
Maloof, 205 F.3d 819, 828 (5th Cir. 2000) (alteration in original;
citation omitted) (citing Sims v. ANR Freight Sys., Inc., 77 F.3d
846, 849 (5th Cir. 1996), and quoting United States v. Gray, 105
F.3d 956, 964-65 (5th Cir. 1997)); see also Aetna Cas. & Sur. Co.
v. Guynes, 713 F.2d 1187, 1193 (5th Cir. 1983) (affirming decision
in civil case to limit number of expert witnesses who could
testify). Our precedents thus allow a court to place reasonable
structural limits on the government’s case, leaving the prosecution
room to operate within them by culling unnecessary evidence,
prioritizing witnesses, and streamlining testimony, without
sacrificing significantly probative evidence as a result of
arbitrary restrictions that unduly constrict its ability to
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prosecute crimes.15
In reviewing the district court’s exercise of its inherent
power in this case, we set to one side whether the court could
have placed structural limits on the government’s case that might
have indirectly affected the presentation of its evidence but that
did not specifically exclude witnesses individually or
categorically. The district court did not impose such
restrictions; it simply forbade the government from calling all
witnesses designated after the May 17, 2004 trial date, leaving the
prosecution without viable options to fill the voids in its proof.
We focus instead on the court’s inherent authority to take ad hoc
measures, such as the one adopted here.
“The scope of the district court’s discretion to manage trials
before it is and must be particularly broad. . . . [D]istrict
courts have wide-ranging control over management of their dockets,
the courtroom procedures, and the admission of evidence.” United
States v. Janati, 374 F.3d 263, 273 (4th Cir. 2004). But in the
context of a criminal prosecution, “[s]ubject to the district
court’s reasonable management of cases brought to the court for
trial, the government too has broad discretion to prosecute crimes,
15
We use the term “structural” as convenient shorthand to
describe reasonable restrictions on the government that regulate
the overall presentation of its case, such as limits on time or on
the number of witnesses, but that leave the prosecution free to
make individual tactical and methodological choices within these
limits, such as concerning whom it will call to testify and what
other evidence it will introduce.
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probably limited otherwise only by an unconstitutional motive.”
Id. at 274 (citation omitted). Moreover, as in the present case,
“when the government prosecutes a conspiracy involving a series of
crimes . . . the government must be given additional latitude
during trial to carry its burden of proof.” Id. We think the
proper adjustment of the court’s broad inherent power to control
its docket and manage trials, and the government’s correspondingly-
broad discretion to prosecute crimes, requires that when, as here,
the district court invokes an ad hoc measure, it must consider the
content of facially-relevant and admissible evidence before
excluding it based on its inherent power.16
B
The government’s proffer reflects several grounds for
concluding that the evidence is facially relevant and admissible.
Fifteen witnesses can testify to distinct overt acts, such as drug
sales, that involve one or more defendants, that are not charged in
the superseding indictment, but that were allegedly undertaken in
furtherance of the conspiracy. The government is entitled to prove
uncharged overt acts. See United States v. Jackson, 845 F.2d 1262,
1265 (5th Cir. 1988) (holding that the government “may prove
16
Although we discuss the court’s obligation to consider the
content of anticipated testimony when imposing ad hoc limits on
witnesses, we do not suggest that content considerations are
irrelevant when imposing structural limitations. Instead, in such
circumstances the content assessment is effectively subsumed in the
determination of what restrictions are reasonable.
- 17 -
additional overt acts not listed in the indictment”). No
previously-identified witness can testify concerning these
transactions.
Moreover, in a drug case, although some drug quantity evidence
is more pertinent to sentencing than to trial, drug quantity must
be charged and proved beyond a reasonable doubt when the statutory
maximum sentence increases based on the amount. See, e.g., United
States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000).17 The
government’s interest in establishing additional drug quantities
can thus be substantial.18
The remaining witness, who is not presently incarcerated,
intends to testify to facts that the government says will
corroborate the testimony of a previously-identified witness
regarding numerous drug transactions, over a period of about
eighteen months, involving some of the defendants.
17
The district court made its ruling after the Supreme Court
granted certiorari in United States v. Booker, ___ U.S. ___, 125 S.
Ct. 738 (2005), but before it decided the case in January 2005.
Recognizing the rule of cases like Doggett, and perhaps
anticipating one possible outcome of Booker, the government argued
that the new witnesses would enable it to prove the required
quantity of at least fifty grams of crack cocaine “and would
provide for sentencing purposes relevant conduct quantities of
controlled substances.” R. 14:21-22.
18
We recognize that the government’s right to prove additional
drug quantities is not completely unfettered. A district court may
in its discretion conclude that the government has reached the
point where it should not be permitted to use valuable trial time
to prove relatively small amounts that probably will not affect the
jury’s determination of drug quantity but likely will bear only on
a sentencing issue to be decided by the judge.
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According to the government, the evidence to be adduced from
all sixteen witnesses will strengthen its case by demonstrating the
breadth and scope of the defendants’ drug trafficking activities,
showing that during the conspiracy numerous crack and powder
cocaine transactions occurred in several cities in two states.
C
It follows from the foregoing recitation of the government’s
facially-relevant evidence that defendants’ reliance on cases that
recognize the district court’s authority to limit the number of
alibi or character witnesses is misplaced. Character witnesses
necessarily testify to a limited range of issues, and such
testimony is often cumulative when presented by several witnesses.
See, e.g., United States v. Edwards, 702 F.2d 529, 530 (5th Cir.
1983) (holding that testimony of more than five character witnesses
would have been cumulative). The government’s evidence, by
contrast, pertains to several discrete drug transactions that are
probative of the nature and details of defendants’ alleged
participation in the conspiracy.
Unlike the witnesses in the present case, who will testify to
several different drug transactions and disparate conduct to which
others cannot testify, the witnesses in Loux v. United States, 389
F.2d 911 (9th Cir. 1968), the sole alibi case that defendants
discuss, would all have related the same fact: that the defendant
was playing basketball in prison at the time of the crime. Id. at
- 19 -
917. The district court in Loux allowed the defendant to subpoena
five convicts to testify to this alibi, but drew the line there,
denying a request to subpoena five additional convicts. The Ninth
Circuit found no abuse of discretion, noting that, “[a]s a
practical matter, the court needs the right to impose some
limitation on the number of witnesses testifying about a particular
fact.” Id. (emphasis added).
D
In the instant case, the district court ruled that presenting
the additional witnesses would needlessly consume time, but it did
not assess the content of their anticipated testimony. Although it
was apparently influenced by such factors as how the witnesses came
to the government’s attention, their likely motives for testifying,
and the number of additional witnesses, the court essentially
concluded, based on the fact that the government was prepared to go
to trial on May 17, 2004 and presumably believed its evidence was
then sufficient to establish guilt, that introducing additional
evidence would necessarily be wasteful and a needless expenditure
of time and should be pretermitted as a function of docket control.
The court abused its discretion by excluding the witnesses on this
basis, without first considering the content of their anticipated
testimony.19
19
Our conclusion does not suggest that a district court must
necessarily consider the content of anticipated testimony before it
excludes a witness who was not timely disclosed in accordance with
- 20 -
V
Defendants also maintain that Rule 40320 authorized the
district court to exclude evidence that it determined would result
in needless consumption of time. We do not doubt that the court
could have acted under Rule 403, but we agree with the government
that the court did not do so.21 Because we review a Rule 403
decision for abuse of discretion, see, e.g., United States v. Hays,
872 F.2d 582, 587 (5th Cir. 1989), and since the district court did
not exercise its discretion on this basis or engage in a balancing
process that we can review, we have no occasion to decide whether
the sixteen witnesses were properly excluded under the Rule.
a court order or rule. Although in some contexts we have expressed
a decided preference for continuances over excluding witnesses,
see, e.g., United States v. Garrett, 238 F.3d 293, 301 (5th Cir.
2000) (reversing district court exclusion of twenty five government
witnesses where, inter alia, prejudice could have been cured by
brief continuance), we recognize that there are instances, such as
when the speedy trial clock is about to expire, when the case must
be tried when set, and the court may in its discretion exclude a
government witness who was not timely disclosed and whose testimony
would unduly prejudice the defendant.
20
Rule 403:
Although relevant, evidence may be excluded if
its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence.
21
The district court referred to Rule 403 when reading the
Advisory Committee note to Rule 611(a), but it did not base its
decision on the Rule.
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Our decision today does not, of course, preclude the district
court on remand from considering, either in a pretrial hearing or
during trial, whether some or all of the witnesses in question
should be excluded under Rule 403 (or, for that matter, on any
other proper procedural or evidentiary basis). But because Rule
403 permits the exclusion of relevant evidence only if, as
pertinent here, “its probative value is substantially outweighed by
. . . considerations of . . . waste of time, or needless
presentation of cumulative evidence,” it follows that the district
court must in some manner consider the content of the witnesses’
anticipated testimony so that it can assess its probative value
before deeming it inadmissible. See Swajian v. Gen. Motors Corp.,
916 F.2d 31, 34 (1st Cir. 1990) (holding, inter alia, that district
court erred as a matter of law by failing to fully consider
probative value of evidence before excluding it under Rule 403).
VI
Having determined that the district court’s ruling cannot
stand, we return to its request for guidance, including its
apparent concern that a decision contrary to its own will signal
that the government, rather than the district court, effectively
controls the presentation of government witnesses in a criminal
trial.22
22
At the conclusion of its bench ruling, the district court
stated:
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There are in fact several tools available to a court that
seeks to rein in a prosecutor’s extravagant use of limited court
time. The court can rely on its inherent power to control its
docket and manage trials, provided it considers the content of the
evidence before excluding it.23 The court can place structural
limits on the government’s presentation of its case, as long as
they are reasonable and appropriately recognize the prosecution’s
broad discretion to prosecute crimes. And, provided it considers
the content of the government’s proposed testimony and engages in
the required balancing process, the court can exercise its
discretion under Rule 403 to exclude evidence when its probative
value is substantially outweighed by considerations such as waste
of time or needless presentation of cumulative evidence.
* * *
We note in closing that this case has been pending since May
[U]nder these kind of circumstances, if it’s
the government’s call about who’s going to
come rather than the district judge’s call,
the Fifth Circuit needs to tell me, and I
suspect and suggest respectfully to them, all
the other district judges. That’s how it
works, District Judge. You just sit there and
let them keep going.
R. 14:47.
23
We do not hold that the district court, when exercising its
inherent authority and considering whether to exclude facially-
relevant and admissible evidence, must follow any prescribed
procedure. The district court remains firmly in control, retaining
the discretion to decide the specific method that is appropriate
under the particular circumstances of the case, provided the one it
employs is adequate to assess the content of the evidence.
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2002 and, despite its apparent complexities,24 it is time that it
is tried. We therefore encourage the district court to set a
prompt trial date and give the government and the defendants their
day in court.25 The district court’s September 27, 2004 bench
ruling excluding the government from calling the witnesses in
question is VACATED, and this case is REMANDED for further
proceedings consistent with this opinion.
VACATED and REMANDED.
24
The government asserts that “this is a relatively complex
drug case involving numerous drug sales, purchases, and
negotiations over the course of ten years.” Appellant Br. at 22.
25
The district judge stated during his bench ruling that he did
not “recall exactly why it is that this case is going on two and a
half years old,” and specifically did not recall whether his
“intervening [serious illness] played some role in it.” R. 14:5.
By urging that this case be brought expeditiously to trial, we
intend neither disrespect for, nor insensitivity toward, our
colleague or the burdens under which he labored during his illness.
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