Mudd v. U.S.

• Decision Date: 22 August 1986
• Docket Number: No. 85-5850,85-5850
• Parties: , 255 U.S.App.D.C. 78, 55 USLW 2143 John M. MUDD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1509

798 F.2d 1509

95 A.L.R.Fed. 589, 255 U.S.App.D.C. 78,

55 USLW 2143

John M. MUDD, Appellant, v. UNITED STATES of America, Appellee.

No. 85-5850.

United States Court of Appeals District of Columbia Circuit.

Argued May 12, 1986.

Decided Aug. 22, 1986.

On Appeal from the United States District Court for the District of Columbia (Criminal Action No. 85-00039-01).

Gerald I. Fisher, Washington, D.C., for appellant.

Mary Ellen Abrecht, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Barry M. Tapp, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before MIKVA, EDWARDS and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge SCALIA.

MIKVA, Circuit Judge:

This appeal is the latest in a series of cases construing the Supreme Court's decision in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). The question presented is whether an order by the district court, instructing defense counsel not to speak with his client about the latter's testimony over a weekend recess, deprived defendant of his sixth amendment right to the effective assistance of counsel. If there was a violation, we then must decide whether reversal is automatically required or whether the order should be subject to a "harmless error" inquiry.

Although Geders did not address the precise question before us, we find its reasoning decisive. We hold that an order that denies a criminal defendant the right to consult with counsel during a substantial trial recess, even though limited to a discussion of testimony, is inconsistent with the sixth amendment of the Constitution. We also find that the harm caused by this violation is such that reversal is required without a showing of actual prejudice. We therefore reverse the defendant's conviction and remand for a new trial.

I.

In September 1984, appellant John Mudd was arrested on suspicion of receiving stolen government property, in violation of 18 U.S.C. Sec. 641 (1982). Mudd was charged with having received several units of computer equipment which had been stolen from the U.S. Department of Agriculture. He also was charged with possession of an unregistered firearm and possession of unregistered ammunition. See D.C.Code Sec. 6-2311(a) (1981) (unregistered firearm); id. Sec. 6-2361(3) (1981) (unregistered ammunition).

Mudd's trial began on Wednesday, April 24, 1985. On Friday, April 26, defendant took the stand in his own defense and testified on direct examination. At the close of the day, the court called a recess until the following Monday morning, at which time cross-examination would begin. Before adjourning the judge instructed Mudd's lawyer:

You are not to talk to Mr. Mudd about his testimony between now and the time he undergoes his cross-examination. You can talk to him about other things, but not about his testimony.

Trial Trans. at 42 (Apr. 26, 1985). Defense counsel objected, but said that he would obey the instruction.

The jury subsequently found defendant guilty on all counts. Mudd was fined $10,000 for receiving stolen property, $1,000 for possession of a firearm, and was placed on probation for three years. Defendant also received a one-year, concurrent probation term for possession of unregistered ammunition.

II.

Mudd's primary contention on appeal is that the order restricting his ability to consult with his lawyer denied him the effective assistance of counsel. Appellant further asserts that this type of violation requires automatic reversal, without an inquiry into whether it was prejudicial. To support his claims, Mudd relies heavily on the Supreme Court's decision in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).

Petitioner in Geders was a co-defendant charged with conspiracy to import and illegal importation of drugs. Geders elected to take the stand, and testified on direct examination until the end of the day when the judge called a recess. Because he was concerned that the defendant might try to alter his testimony in anticipation of cross-examination, the judge instructed defense counsel not to discuss "anything" about the case with his client during the overnight recess. He gave Geders a similar (but not identical) instruction. Id. at 82-83 & n. 1, 96 S.Ct. at 1332-33 & n. 1. Defendant was convicted and the Fifth Circuit affirmed, finding that even if the order deprived Geders of the assistance of counsel, reversal was not warranted absent a showing that the order caused actual prejudice.

United States v. Fink, 502 F.2d 1, 8-9 (5th Cir.1974).

The Supreme Court unanimously reversed. The Court ruled that the trial judge's order deprived defendant of the "guiding hand of counsel" at a critical point in the proceeding. Geders, 425 U.S. at 89, 96 S.Ct. at 1335, quoting Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). It noted that an overnight recess is often a crucial time for both defendant and counsel:

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.

Geders, 425 U.S. at 88, 96 S.Ct. at 1335. Because of the overriding importance of the assistance of counsel to a criminal defendant, the Court found that the judge's order could not be upheld. Id. at 91, 96 S.Ct. at 1336. The conviction was reversed and the case remanded for further proceedings.

Subsequent cases have liberally construed Geders. Courts have extended the holding to strike down orders restricting all discussion between attorney and client during a one-hour lunch recess, United States v. Conway, 632 F.2d 641 (5th Cir.1980); United States v. Bryant, 545 F.2d 1035 (6th Cir.1976), and during brief, routine recesses in the trial day, United States v. Allen, 542 F.2d 630 (4th Cir.1976) (recesses lasting 20 minutes and "a minute"), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977). The message of these cases is clear: a trial court may not place a blanket prohibition on all attorney/client contact, no matter how brief the trial recess.

The government nevertheless argues that this case is distinguishable, because the scope of the trial court's order was significantly different. The trial judge in Geders told defendant not to speak with his lawyer about "anything"; in contrast, Mudd's lawyer was ordered not to discuss Mudd's testimony with his client, but was told that he could discuss "anything else." The government argues that Geders was specifically concerned about a prohibition on all attorney/client contact, and that it never reached the question of a more limited restriction. The government notes that the cases relied on by Mudd all involve blanket restrictions, and indicates that no federal court has found a violation in the situation presented here.

The government claims that the language in Geders shows that the Supreme Court only intended to forbid complete sequestration of defendant from counsel. In a footnote, for example, the Court said that the trial judge initially instructed defense counsel not to discuss "anything," but then later told defendant not to discuss his "testimony" with anyone. Geders, 425 U.S. at 85 n. 1, 96 S.Ct. at 1334 n. 1. The Court resolved this "ambiguity" by concluding that the order was intended to restrict all discussion. Id. The government claims that had the Court meant to prohibit restrictions such as the one imposed here, it would not have been necessary to resolve the difference between the trial judge's two orders.

In addition, the government argues that the sixth amendment interests are substantially lower when the judge's order only extends to a discussion of testimony. The government points out that Mudd was free to do things that the defendant in Geders was not: help counsel plot strategy and tactics, pursue leads, and discuss some of the day's events. See id. at 88, 96 S.Ct. at 1335. Here, says the government, the court struck a balance by ensuring that Mudd's testimony was protected from outside influence, without interfering with his right of consultation on other matters.

We cannot construe Geders as the government suggests. A fair reading of that opinion shows that a more limited order would not have cured the constitutional While the order in this case was indeed more limited than the one in Geders, the interference with sixth amendment rights was not significantly diminished. Even though Mudd was free to discuss strategy and tactics, there are obvious, legitimate reasons he may have needed to consult with counsel about his upcoming cross-examination. For example, Mudd's lawyer may have wanted to warn defendant about certain questions that would raise self-incrimination concerns, or questions that could lead Mudd to mention excluded evidence. More generally, defendant may have needed advice on demeanor or speaking style, a task made more difficult if specific testimony could not be mentioned. While many of the benefits of counsel outlined by Geders are not related to testimony per se, an order such as the one in this case can have a chilling effect on cautious attorneys, who might avoid giving advice on non-testimonial matters for fear of violating the court's directive. Consultation between lawyers and clients cannot be neatly divided into discussions about "testimony" and those about "other" matters.

                defect.  The Court recognized that if a defendant is allowed to discuss his testimony, there is a danger that counsel might improperly help his client tailor his testimony in response to the anticipated cross-examination;

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