United States District Court, D. Colorado
For Silvestre Mayorqui Rivera, also known as, Chikali, Defendant: David Arthur Lane, LEAD ATTORNEY, Killmer, Lane & Newman, LLP, Denver, CO; Kathryn J. Stimson, Kathryn J. Stimson, Attorney at Law, Denver, CO.
For Richard Santiago, Material Witness: Nathan Dale Chambers, LEAD ATTORNEY, Nathan D. Chambers LLC, Denver, CO.
For USA, Plaintiff: Mary Jo Menendez, LEAD ATTORNEY, Valeria Neale Spencer, U.S. Attorney's Office-Denver, Denver, CO; Jeffrey Bradford Kahan, U.S. Department of Justice-DC-Capital Case Unit, Washington, DC.
Robert E. Blackburn, United States District Judge.
The matter is before me on the Opposed Motion To Endorse Richard Santiago as Advisory Witness for Silvestre Rivera [#1056], filed April 2, 2015. I heard the motion on April 3, 2015, and took it under advisement. At the hearing, the government presented its oral response to the motion and the defendant, Silvestre Rivera, presented his oral reply. In fashioning my ruling, I have carefully considered the following: (1) all relevant adjudicative facts of record; (2) all relevant facts to which there is no express or implied objection; and (3) all reasons stated, arguments advanced, and authorities cited by Mr. Rivera and the government in their papers and oral presentations. I now deny the motion on both procedural and substantive grounds.
I. The Motion Is Procedurally Deficient
Procedurally, the motion -- filed on the eve of trial -- is woefully and inexplicably out of time. The extant trial preparation conference order provides expressly that " regardless of how denominated, non-CJA motions shall not be filed out of time without leave of court." (Third Trial Preparation Conference Order at 1-2 [#952], filed November 3, 2014 (footnotes omitted).) Mr. Rivera has not sought such leave here, let alone provided any explanation for the extraordinarily belated timing of the motion. The motion is subject to denial on this basis alone.
II. The Motion Is Substantively Deficient
Nevertheless, the motion fails substantively as well. Mr. Rivera asks that his severed co-defendant, Richard Santiago, be permitted to be present throughout the trial as a so-called advisory witness. Mr. Rivera seeks this relief under Fed.R.Evid. 615,
which governs the sequestration of witnesses:
Because a court may only decline to grant a party's request to sequester particular witnesses under one of the Rule 615 exemptions, the rule carries a strong presumption in favor of sequestration. The party opposing sequestration therefore has the burden of demonstrating why the pertinent Rule 615 exception applies . . . and why the ...