United States v. Valencia-Riascos

When a defendant has made an FRE 615 request to exclude an investigative official who is both a witness and victim in the prosecution's case, the court may deny the defendant's request by finding that the investigative official is either a case agent permitted to be present according to FRE 615(b), or the individual is authorized under FRE 615(d) by the Crime Victims' Rights Act to be present in the courtroom despite an FRE 615 objection.

Defendant Nilson Valencia-Riascos was convicted of assault on a federal officer by physical conduct. During the trial, Valencia-Riascos relied on Federal Rule of Evidence (FRE) 615 to object to the officer’s presence in the courtroom, and in the alternative, asked the court to require the officer to testify first. The district court denied both requests, and following his conviction, Valencia-Riascos appealed the denied requests. Valencia-Riascos argued that the district court abused its discretion and denied him due process by allowing the officer to be in the courtroom during the prosecution’s case-in-chief prior to the officer’s own testimony. He also argued that allowing the officer to sit at the prosecution’s table gave him an “aura of credibility.” The Ninth Circuit panel determined that the officer was properly within the exception to exclusion stated in FRE 615(b), as clarified by the advisory committee note to the FRE, which states that “investigating officers or ‘case agents’” who will be witnesses are not to be excluded under FRE 615. Valencia-Riascos further argued that the Justice for All Act of 2004/Crime Victims’ Rights Act (CVRA) supplants the 615(b) exception and allows the court to exclude the individual after clear and convincing evidence has been submitted showing that “the testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.” The Ninth Circuit panel disagreed with Valencia-Riascos’s interpretation of the CVRA, and instead held that the trial court may deny a defendant’s request for an investigative officer’s exclusion from the trial by following “either Rule 615(b) or the CVRA (as incorporated by the reference to statutes in Rule 615(d)).” AFFIRMED.