UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4008

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSEPH F. ETIENNE, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. James R. Spencer, Chief

District Judge. (3:06-cr-00150-JRS-1)

Submitted: July 18, 2007 Decided: September 24, 2008

Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Craig W. Sampson, BARNES LAW FIRM, Richmond, Virginia, for

Appellant. Chuck Rosenberg, United States Attorney, Brian Lee

Whisler, Assistant United States Attorney, Richmond, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Following a jury trial, Joseph Etienne was convicted of

conspiracy to commit health care fraud, in violation of 18 U.S.C.

§ 1349 (2000), multiple counts of health care fraud, in violation

of 18 U.S.C. §§ 1374, 2 (2000), and possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000).

Etienne was sentenced to 120 months of imprisonment. On appeal, he

raises two issues. For the following reasons, we affirm.

Etienne first asserts that the district court abused its

discretion by permitting a government agent (Agent Costen), who was

not sequestered as a witness, to testify regarding the § 922(g)(1)

firearm charge after observing the testimony of another government

agent (Agent Gladwin) on that issue. At the outset of the trial,

the court granted the Government’s unopposed request to have both

Costen and Gladwin remain in the courtroom for trial, based on the

Government’s assertion that only Gladwin would testify. Gladwin

testified on direct examination that, during an interview of

Etienne by Costen and Gladwin in Etienne’s residence

contemporaneous with a search thereof, Gladwin confronted Etienne

with information that agents had found a gun in the residence.

According to Gladwin, Etienne responded by saying “he forgot to

tell us that it was there,” and that the gun “was [his roommate]

LeVaughn Walker’s grandfather’s gun and that it had been given to

LeVaughn Walker.” J.A. 464. Gladwin also testified that Etienne
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took some breaks from the interview to make telephone calls, and

that Gladwin overheard Etienne’s side of one such conversation with

Walker’s mother, Celestine Green. Gladwin testified that “[w]hen

[Etienne] got on the phone, within like the first ten seconds, I

remember [him] saying, ‘They found the gun.’” Id. at 463. When

challenged to do so on cross-examination, however, Gladwin could

not specify whether Etienne had said agents found “the” gun or “a”

gun. Id. at 494. Over Etienne’s objection, the Government then

was permitted to call Costen to the stand. The sole purpose of the

Government’s examination of Costen was to establish that Etienne

had told Green during their telephone conversation that agents

found “the” gun. J.A. 507. The defense did not cross-examine

Costen, and the Government rested its case. Thereafter, the

defense unsuccessfully moved to strike Costen’s testimony for

failure to sequester her.

Ordinarily, when Federal Rule of Evidence 615 (relating

to sequestration of witnesses) is invoked, the Government “may be

permitted to have only one case agent in the courtroom during

trial.” United States v. Kosko, 870 F.2d 162, 164 (4th Cir. 1989)

(citing United States v. Farnham, 791 F.2d 331, 335 (4th Cir.

1986)). “[T]he sequestration of witnesses effectively discourages

and exposes fabrication, inaccuracy, and collusion,” and

“[s]crupulous adherence to [Rule 615] is particularly necessary in

those cases in which the outcome depends on the relative
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credibility of the parties’ witnesses.” Farnham, 791 F.2d at 335.

In Farnham,

we were willing to, in effect, presume prejudice where

the district court clearly violated the rule by allowing

both testifying government agents to remain in court

during each other’s testimony and where it would be

impossible for the defendant to prove that the second

agent’s testimony would have been different if he had not

heard the first agent’s testimony.

United States v. Harris, 39 F.3d 1262, 1268 (4th Cir. 1994) (citing

Farnham, 791 F.2d at 335). Nevertheless, we recognized in Harris

that violations of Rule 615 are subject to the harmless error rule

and, thus, that an error in nonsequestration does not warrant per

se reversal if the circumstances of a particular case illustrate

clearly that the witness’s testimony had no substantial influence

on the verdict. Id.

Even accepting that a violation of Rule 615 occurred here

(an issue that the Government disputes on the premise that the

trial court properly exercised its discretion), we conclude under

the circumstances presented that the district court’s decision to

permit Costen to testify was harmless error. That is, Etienne’s

conviction under § 922(g)(1) is supported by other substantial

evidence. See Fed. R. Crim. P. 52(a); United States v. Ince, 21

F.3d 576, 583 (4th Cir. 1994). For instance, Gladwin testified

that, when confronted during the interview with information about

the gun, Etienne indicated that he knew but forgot to tell agents

about the gun’s presence in his residence. Furthermore, the gun
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was found in a dresser along with business and banking documents

bearing Etienne’s and Walker’s names, and Etienne’s driver’s

license and a yellow bracelet bearing his name were found nearby in

a cigar box.

Next, Etienne asserts that the district court erred in

refusing to give his proposed jury instruction. We review the

decision to give, or not to give, a jury instruction and the

content of that instruction for an abuse of discretion. United

States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). The district

court’s refusal to grant a requested jury instruction is reversible

error only if the proffered instruction “(1) was correct; (2) was

not substantially covered by the court’s charge to the jury; and

(3) dealt with some point in the trial so important, that failure

to give the requested instruction seriously impaired the

defendant’s ability to conduct his defense.” United States v.

Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks

omitted). Etienne has not met the above requirements for

reversible error, in that his requested jury instruction was

substantially covered by the court’s charge to the jury.

Accordingly, we find that the district court did not abuse its

discretion in refusing Etienne’s requested instruction.

For the reasons stated herein, we affirm Etienne’s

convictions and sentence. We dispense with oral argument because

the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the

decisional process.

AFFIRMED