## Facts

- Mosky (defendant) was indicted for illegal trading activity connected to trading on an exchange floor.
- Federal Bureau of Investigation (FBI) Special Agent Jannett worked undercover on the trading floor during the investigation.
- While undercover, Agent Jannett recorded trades and related events that the government alleged were illegal.
- The United States (plaintiff) planned to call Agent Jannett as a trial witness regarding what he observed and recorded during the undercover operation.
- Before or during trial, the government moved under Federal Rule of Evidence 615 (Rule 615) for an order allowing Agent Jannett to remain in the courtroom and sit at the prosecutors’ table throughout the trial.
- Mosky opposed the request, arguing that Agent Jannett was a novice trader and did not reliably know when illegal trading began or ended, placing Agent Jannett’s credibility and reliability in dispute.
- Mosky asked the court to exclude Agent Jannett from the courtroom during other witnesses’ testimony under Rule 615, contending that hearing other testimony could sharpen or shape Agent Jannett’s own testimony.

## Issues

1. Under Fed. R. Evid. 615, may the government keep its undercover FBI case agent in the courtroom at counsel table during trial, even though the agent will testify and the defendant requests sequestration to prevent tailored testimony?

## Decision

- The court granted the government’s Rule 615 motion.
- The court permitted Agent Jannett to remain in the courtroom and sit at the prosecution table during the trial despite the defense request for sequestration.

## Legal Principles

- Fed. R. Evid. 615 generally requires the court, on request, to exclude witnesses so they cannot hear other witnesses’ testimony, but the rule contains specified exceptions.
- In a criminal prosecution, the United States may designate an investigative agent to be present in the courtroom as the government’s representative within Rule 615’s exceptions, even if that agent is expected to testify.
- When a designated government representative is allowed to remain in the courtroom, the defendant’s concern that the witness might shape testimony is ordinarily handled through cross-examination and impeachment rather than by exclusion that would defeat the Rule 615 exception.
- Disputes about an undercover agent’s competence, reliability, and credibility ordinarily bear on the weight the factfinder should give the testimony, not on whether the government may treat the agent as its in-court representative under Rule 615.

## Conclusion

In *United States v. Mosky*, the court allowed the government’s undercover FBI agent—who recorded the alleged illegal trading and was expected to testify—to remain at counsel table during trial under Rule 615, rejecting the defendant’s request to sequester the agent based on concerns that hearing other witnesses could influence the agent’s testimony.


United States v. Mosky, 1990 U.S. Dist. LEXIS 5865 (1990)