United States v. Woods

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30549
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK JOHNSON,
Defendant-Appellant.
(consolidated with)
_______________________________
99-30586
_______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN BERNARD WOODS; KEVIN
JERMAINE PICKENS; AMEILE BROWN;
CRAIG ANTHONY MARKS; TROY
ANTHONY MARKS,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Louisiana
September 19, 2001
Before POLITZ and BARKSDALE, Circuit Judges, and FALLON,* District Judge.
POLITZ, Circuit Judge:
Shawn Bernard Woods, Kevin Jermaine Pickens, Ameile Brown, Craig Anthony
Marks, and Troy Anthony Marks appeal their convictions and sentences on various
counts of drug possession, conspiracy, and related charges. Patrick Johnson appeals
the sentence imposed on his plea of guilty. Concluding that the court’s order
prohibiting Troy Marks from discussing the case with his counsel during an overnight
recess and a weekend recess violated his sixth amendment right to counsel, we reverse
his conviction and order a new trial. The sentence imposed on Patrick Johnson and the
convictions and sentences of the other appellants are affirmed.
BACKGROUND
Appellants and four other individuals were charged in a 49 count indictment with
violations of narcotics statutes and related offenses.1 After the other defendants
*
Honorable Eldon E. Fallon, United States District Judge for the Eastern District of
Louisiana, sitting by designation.
1
The counts included conspiracy to possess with intent to distribute cocaine
powder, cocaine base, and marihuana in violation of 21 U.S.C. § 846; possession of
cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1); conspiracy
to launder monetary instruments in violation of 18 U.S.C. § 1956(h); money laundering
in violation of 18 U.S.C. §§ 1956(a)(1)(A)(I) and (a)(1)(B)(I); interstate travel in aid
of illegal activity in violation of 18 U.S.C. § 1952(a)(1); use of a communications
facility in violation of 21 U.S.C. § 843(b); possession of a firearm in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1); and discharge of a firearm in a
2
pleaded guilty the case proceeded to trial. The evidence adduced implicated the
appellants in an intricate network of drug transportation, distribution, and sale. This
process included the use of wire transfers, the purchase of assets in other people’s
names, and the creation of a corporation allegedly used to hide appellants’ burgeoning
wealth. The group operated over separate regions of Louisiana, including Lafayette,
Opelousas, Leesville, and Lake Charles. Appellants’ activities eventually attracted the
attention of the FBI and IRS who created a joint investigatory task force. This led to
the use, inter alia, of pen registers and a wiretap on Troy Marks’ telephone. Further
surveillance and investigation led to appellants’ arrest, indictment, trial, and conviction
of various counts. This timely appeal followed.
ANALYSIS
Each defendant raises numerous issues on appeal, including challenges to the
sufficiency of evidence, alleged errors in the court’s evidentiary rulings, denial of a
defense motion for mistrial, and claims that a court order violated appellants’ rights
under the sixth amendment. We address the one we view most seriously.
I. Sixth Amendment Right to Counsel
Troy Marks began testifying on the ninth day of trial, and while still under direct
examination by his attorney, the judge called a recess for the evening. As he had done
school zone in violation of 18 U.S.C. § 922(3)(A).
3
with non-party witnesses, the judge ordered Marks not to talk with anyone about the
case until after he completed his testimony. The record reveals the following
discussion between the court and Marks’ attorney:
COURT: The record will reflect that the jury has
withdrawn from the courtroom. Mr. Marks
and counsel, no one is to talk to Mr. Marks
about this case until he has completed his
testimony, either side. Lawyers – Mr. Marks,
I’m talking about lawyers, I’m talking about
any codefendants and whatnot. Talk about
whatever, the weather or what’s going on in
the NBA, or whatever, but don’t talk about the
case.
ATTORNEY AT LAW: I can talk to him, Judge.
COURT: No sir, you can’t. Not while he’s under
examination you can’t. We just stopped in the
middle of his examination.
ATTORNEY AT LAW: Very well.
The following day, during cross-examination of Marks by the prosecution, the
Court again recessed, this time for the weekend. The court made the same
sequestration order and, during a discussion regarding the attorneys’ problems with
seeing their clients at the jail, the following exchange took place:
ATTORNEY AT LAW: I wanted to go and – I
can’t talk to him at all.
His relatives can’t talk
[to] him. He’s in this trial
4
for his life. Somebody
ought to be able to. He
should be able to talk to
somebody.
COURT: You can’t talk to him Mr. Register because
there will be no reason for you to talk to him
other than talk to him about the case.
ATTORNEY AT LAW: Exactly.
COURT: You can’t do that while he’s under
examination. As soon as his examination has
been completed, cross and any redirect and
completed, then you can talk to him all you
want to. Now, do I understand that they’re not
going to let you call him next week after he’s
completed his examination?
ATTORNEY AT LAW: I have had no problem.
Troy Marks urges error in the court’s sequestration orders, asserting that the ban
on communication with his counsel violated his rights under the sixth amendment. We
are compelled to agree.
The sixth amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defense.”2 The
Supreme Court defined the contours of this right in Geders v. United States,3 holding
2
U.S. CONST. amend. VI.
3
425 U.S. 80 (1976).
5
that “an order preventing petitioner from consulting his counsel ‘about anything’ during
a 17-hour overnight recess between his direct- and cross-examination impinged upon
his right to the assistance of counsel guaranteed by the Sixth Amendment.”4 The Court
discussed “the rule,” a sequestration order barring a witness from discussing the case
with anyone and removing them from the courtroom while other witnesses are
testifying, and found that its rationale failed to support applying it to party witnesses.
The court stated:
A sequestration order affects a defendant in quite a different
way from the way it affects a nonparty witness who
presumably has no stake in the outcome of the trial. A
nonparty witness ordinarily has little, other than his own
testimony, to discuss with trial counsel; a defendant in a
criminal case must often consult with his attorney during the
trial. Moreover, “the rule” accomplishes less when it is
applied to the defendant rather than a nonparty witness,
because the defendant as a matter of right can be and usually
is present for all testimony and has the opportunity to
discuss his testimony with his attorney up to the time he
takes the witness stand.5
The Court also noted that there were other ways to deal with improper coaching,
including rigorous cross-examination designed to ferret out those attorneys who cross
4
Id. at 91.
5
Id. at 88.
6
the ethical line between discussing testimony and seeking to influence it.6
The Court clarified the confines of the Geders rule in Perry v. Leeke,7 holding
that an order barring the defendant from consulting with his attorney during a recess
lasting “a few minutes” passed constitutional muster. The Court indicated that during
such recesses “in which it is appropriate to presume that nothing but the testimony will
be discussed, the testifying defendant does not have a constitutional right to advice.”
The Perry opinion notably also held that a showing of prejudice is not an essential
component of establishing a violation of the Geders rule.8
Finally, we addressed the Geders rule in United States v. Conway,9 where we
held that “depriving a criminal defendant of the right to consult with counsel during
court recesses- regardless of how brief the recesses may be- violates the constitutional
right to effective assistance of counsel.”10 Consistent with the teachings of Perry, this
broad language may not be read to cover all recesses, but it still reflects the view of this
6
Id. at 89-91 & n.3.
7
488 U.S. 272 (1989).
8
Id. at 278-79.
9
632 F.2d 641 (5th Cir. 1980), overruled by Crutchfield v. Wainwright, 803 F.2d
1003 (11th Cir. 1986).
10
Id. at 645.
7
circuit that the constitutional right to counsel warrants the most zealous protection.
We find the situation at bar indistinguishable from Geders. On two occasions
the judge prohibited Troy Marks from discussing the case with his counsel during
recesses, despite the fact that both recesses involved long periods of time akin to or in
excess of the overnight recess in Geders. As recognized by the Supreme Court:
Such recesses are often times of intensive work, with
tactical decisions to be made and strategies to be reviewed.
The lawyer may need to obtain from his client information
made relevant by the day’s testimony, or he may need to
pursue inquiry along lines not fully explored earlier. At the
very least, the overnight recess during trial gives the
defendant a chance to discuss with counsel the significance
of the day’s events.11
By preventing Marks from talking with his attorney during the overnight
recesses, the court deprived Marks of “the guiding hand of counsel at every step in the
proceedings against him.”12 The court’s order was not limited to Marks’ on-going
testimony and the significance, if any, of such a limitation is not before us.
The government asserts that Geders provides no relief for Marks because neither
he nor his counsel objected to the court’s order. It cites Crutchfield v. Wainwright,
where our brethren in the Eleventh Circuit held that “a defendant or the defendant’s
11
Geders, 425 U.S. at 88.
12
Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
8
counsel must indicate, on the record, a desire to confer in order to preserve a
deprivation of assistance of counsel claim.”13 We need not address the adoption of
such a rule in this circuit, however, because the record reflects that Marks’ counsel,
before both recesses, made clear his desire to confer with Marks before court resumed
and was ordered to do otherwise.
Initially, after the court recessed during Marks’ direct testimony, the court
ordered Marks not to discuss the case with anyone. Marks’ counsel countered, “I can
talk to him, Judge,” to which the court responded “no sir, you can’t.” While counsel
subsequently agreed to comply with the court’s order by stating “very well,” his initial
statement in response to the judge’s order underscored his desire to confer with his
client.
With respect to the sequestration order given during the cross-examination of
Marks, counsel also made clear his desire to confer with his client. After the court
again informed Marks not to speak with anyone about the case, a discussion ensued
about problems the attorneys were having with seeing their clients at the jail. The court
told counsel that the only reason for speaking with Marks would be to discuss the case,
to which counsel responded “exactly.” This clearly evinced counsel’s desire to confer
with Marks about the case over the weekend, especially in light of the court’s
13
803 F.2d 1103, 1109 (11th Cir. 1986).
9
instruction directing counsel not to speak with Marks until after the conclusion of his
testimony. This proscription on trial counsel’s ability to confer with his client, as much
as either of the two deemed necessary, is constitutionally unacceptable.
We do not find these requests inadequate merely because counsel failed to
preface his remarks with the magic words, “I object,” or because counsel, during the
second colloquy, also expressed concern over Marks’ inability to see his family. The
record clearly reflects counsel’s desire to confer with his client and the court’s
directives restricting Marks’ access to his counsel during the overnight and weekend
recesses. We find these restrictions violative of Troy Marks’ sixth amendment right
to the assistance of counsel.
II. Pickens and Brown’s Challenge to Marks’ Sequestration Order
Appellants Pickens and Brown also urge error in the court’s orders barring Troy
Marks from speaking with his counsel. They claim that because of their “alleged close
association with Troy marks in the conspiracy,” any violation of his sixth amendment
rights prejudiced their right to a fair trial and due process. The right to the assistance
of counsel, however, is a personal right and Pickens and Brown lack standing to urge
10
its violation.14
III. Remaining Issues on Appeal
A detailed review of the record, oral arguments of counsel, and the relevant
authorities persuades that the remaining issues raised by appellants present no grounds
for reversible error. Accordingly, for the reasons stated herein, the convictions of Troy
Marks are REVERSED and the matter is remanded for further appropriate proceedings.
The sentence given to Patrick Johnson and the convictions and sentences of Shawn
Bernard Woods, Kevin Jermaine Pickens, Ameile Brown, and Craig Anthony Marks
are AFFIRMED.
14
See Faretta v. California, 422 U.S. 806, 819-20 (1975); United States v. Partin,
601 F.2d 1000 (9th Cir. 1979).
11
RHESA HAWKINS BARKSDALE, specially concurring:
I concur in the result reached by the majority and in all but part I. of the
“Analysis” in its opinion. For part I., which concerns the denial of assistance of
counsel for Troy Marks, I cannot agree with the ratio decidendi, especially the
conclusion that the issue was adequately raised (preserved) in district court. It goes
without saying that Troy Marks’ counsel should have stated far more clearly his
position (objection) concerning not being allowed to confer with his client during the
two lengthy recesses. On the other hand, even reviewing the issue in the light most
deferential to the Government and, accordingly, assuming that the issue was not
preserved in district court; assuming that only a plain error standard of review would
apply (discretion to correct obvious error that affects substantial rights and, inter alia,
the fairness of the proceeding); and even assuming that, based on this record, a Geders
violation, for the two instances at issue, did not automatically affect a substantial right
for purposes of such review, I would still reverse Troy Marks’ conviction because, on
this record, there was an obvious error that affected his substantial rights (Sixth
Amendment assistance of counsel) and the fairness of this proceeding and, as a result,
it is within our discretion to correct this error. See, e.g., United States v. Olano, 507
U.S. 725, 732-37 (1993); Perry v. Leeke, 488 U.S. 272, 278-80 (1989); Geders v.
United States, 425 U.S. 80, 88-91 (1976).