I.R.S. AGENT PLATT SHOULD BE EXCLUDED FROM THE COURTROOM DURING

TRIAL PURSUANT TO FEDERAL RULE OF EVIDENCE 615

As this Court is well aware, this case involves allegations that Mr. *, either individually or as a part of a conspiracy, engaged in extortionate acts in order to secure payment on an extension of credit. A jury trial on these allegations commenced on 28 October 1997. This Court declared a mistrial on all three counts on 20 November 1997 after the jury was unable to reach a unanimous verdict on any of the counts. During the trial the government was permitted to have two "case agents" seated at counsel table purportedly to assist government counsel with the presentation of his case. These agents were F.B.I. Agent Gangel and I.R.S. Agent Platt.

Federal Rule of Evidence 615 permits "a person whose presence is shown by a party to be essential to the presentation of the party's cause" to remain in the courtroom during a trial. During voir dire, government counsel introduced agents Gangel and Platt. Government counsel informed the panel that Agent Platt worked for the I.R.S. and inquired as to whether any prospective jurors harbored any bias toward the I.R.S. Accordingly, the jurors were well aware that Agent Platt worked for the Internal Revenue Service.

A. As the Indictment against Mr. * Does Not Involve Tax Charges, I.R.S. Agent Platt's Presence Caused Jurors to Speculate that Mr. * Either had Pending Tax Charges or was Under Investigation by the I.R.S.

The Indictment in this case relates only to allegations of collection of an extension of credit by extortionate means. None of the charges currently before this Court relate to tax offenses. After this Court declared a mistrial on 20 November 1997, defense counsel and other Federal Defender employees interviewed numerous jurors. Several of the jurors inquired as to why an I.R.S. agent was present since the allegations did not involve tax charges. These jurors stated that there was speculation by the jury during deliberations over whether Mr. had "tax problems" or was under investigation by the I.R.S.

B. This is not a Document Intensive Case that Necessitates the Designation of Two "Case Agents" in Order to Assist Government Counsel With the Presentation of His Case.

This case involves lay witnesses and their recollection of past meetings and conversations. During the last trial very few documentary exhibits were admitted in evidence. Federal Rule of Evidence 615 only permits a person whose presence is "essential" to the presentation of the party's cause to remain in the courtroom during the taking of testimony. Given the relatively simple set of facts at issue in this case, government counsel cannot reasonably claim that two government agents are needed to facilitate the presentation of the government's case.

Most importantly, emphasizing to the jury that Agent Platt is with the Internal Revenue Service naturally causes the jurors to speculate as to why the I.R.S. is involved in a non-tax case. This speculation is prejudicial to Mr. Federal Rule of Evidence 615 is a procedural rule directed at the fairness of the proceedings. United States v. Brewer, 947 F.2d 404, 410 (9th Cir. 1991). Mr. * moves for the exclusion of I.R.S. Agent Platt from the courtroom during the next trial because his presence causes speculation by the jury that compromises the fairness of these proceedings. See Fed. R Evid. 403.

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