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8-9-18 US Motion For Curative Instruction EDVA
8-9-18 US Motion For Curative Instruction EDVA
v.
Crim. No. 1:18-cr-83 (TSE)
PAUL J. MANAFORT, JR.,
Defendant.
The United States of America, by and through Special Counsel Robert S. Mueller, III,
hereby moves for a curative instruction, at the beginning of proceedings on August 9, 2018,
correcting the Court’s erroneous admonishment of government counsel in front of the jury on
August 8, 2018. The record demonstrates that the Court mistakenly faulted the government for
permitting IRS revenue agent Michael Welch, the government’s expert witness, to remain in the
courtroom during the proceedings, when in fact on the first day of trial the Court had expressly
granted the government’s motion to do so. The Court’s reprimand of government counsel
A. Background
On the first day of trial, after jury selection and before opening statements, the government
moved to exclude witnesses from the courtroom during the proceedings “with the exception of our
expert and our case agent.” Tr. 7/31/18 at 14-15, See Attachment B. The Court asked the defense
if it had any objection to the government’s case agent and expert remaining in the courtroom, and
the defense answered no. Id. at 15. The Court then asked for the name of the expert; government
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counsel stated “Special Agent Michael Welch,” and, in response to the Court’s further question,
explained that Mr. Welch is an IRS revenue agent and an expert in tax computation. Id. The Court
stated: “All right. I will grant the motion to exclude witnesses.” Id.
On August 8, 2018, at the start of Mr. Welch’s testimony, the government asked if he had
been present in the courtroom during the trial. Tr. 8/8/18 at 1661, see Attachment A. When Mr.
Welch responded that he had, the Court expressed surprise and stated that it was the Court’s “clear
recollection” that it had not permitted expert witnesses to remain in the courtroom and that it did
not “typically” do so. Id. The court instructed government counsel that he must “ask specifically.”
Id. The Court admonished the government to not “do that again,” and stated that the government
B. Argument
The record establishes that the government acted appropriately with respect to Mr. Welch’s
presence in the courtroom. It moved the Court to allow Mr. Welch to remain, and the Court
The Court’s sharp reprimand of government counsel in front of the jury on August 8 was
therefore erroneous. And, while mistakes are a natural part of the trial process, the mistake here
prejudiced the government by conveying to the jury that the government had acted improperly and
had violated court rules or procedures. The exchange could very well lead the jury to reach two
erroneous inferences: (a) that Mr. Welch’s testimony is not credible because he was improperly
privy to the testimony of other witnesses, and (b) that the government sought to secure an unfair
Even if the Court did not intend to suggest that the government had been insubordinate,
actions that project a “negative impression” of one side, United States v. Lefsih, 867 F.3d 459, 467
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(4th Cir. 2017) (internal quotation marks omitted), or that reveal “continual agitation and hostility
toward counsel,” United States v. Cassiagnol, 420 F.2d 868, 879 (4th Cir. 1970), can lead the jury
to decide the case on improper grounds. The government is therefore entitled to a curative
instruction. See United States v. Martinovich, 810 F.3d 232, 240-41 (4th Cir. 2016) (prejudice
from district court’s errors, including incorrectly “chastis[ing]” defense counsel and “accusing him
of going outside the trial court procedure,” was limited by curative instruction).
proceedings on August 9, 2018, stating that: on the prior day the Court had admonished the
government for failing to “ask specifically” that its expert witness be permitted to remain in the
courtroom; that in fact the government had obtained permission from the Court for Mr. Welch to
remain in the courtroom; that the Court was mistaken in its suggestion that the government had
not followed court procedures; and that the jury should not be under the impression that the
government or the witness had acted improperly or violated a court order or rule.
CONCLUSION
For these reasons, the government requests that the Court give the referenced curative jury
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Respectfully submitted,
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CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of August, 2018, I will cause to be filed electronically
the foregoing with the Clerk of Court using the CM/ECF system, which will then send a
/s/ ____
Uzo Asonye
Assistant United States Attorney
U.S. Attorney’s Office
Eastern District of Virginia
2100 Jamieson Avenue
Alexandria, VA 22314
[email protected]
Phone: (703) 299-3700
Fax: (703) 299-3981
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U.S. v. Manafort
M. Welch - Direct
1661
1 an expert in an area and the extent to which you accept that
5 the case.
7 BY MR. ASONYE:
10 A. Yes, I have.
U.S. v. Manafort
M. Welch - Direct
1662
1 and expert witness.
6 make that clear. It may be that I did allow this, but don't
7 do it in the future.
13 Mr. Asonye, because you appear here again. And when I exclude
20 BY MR. ASONYE:
23 A. Yes, I have.
24 Q. And have you reviewed all the exhibits that have been
U.S. v. Manafort
14
1 you need for that?
15 ones that really are the longer ones that are really of
16 concern, but we can let defense know who we are going to call
19 the defendants which ones you intend to use in these first few
U.S. v. Manafort
15
1 our case agent.
7 Honor.
21 P R O C E E D I N G S
22 A F T E R N O O N S E S S I O N
23
24 THE COURT: All right. Mr. Flood, you may bring the