U.S. v. Horger, s. 75-1645

• Decision Date: 25 January 1977
• Docket Number: Nos. 75-1645,s. 75-1645
• Parties: UNITED STATES of America, Appellee, v. Leonard Russell HORGER, Appellant. UNITED STATES of America, Appellee, v. Robert THIEMAN, Appellant. UNITED STATES of America, Appellee, v. Jack Simmons HORGER, Appellant. to 75-1647.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1204

547 F.2d 1204

UNITED STATES of America, Appellee, v. Leonard Russell HORGER, Appellant.

UNITED STATES of America, Appellee, v. Robert THIEMAN, Appellant.

UNITED STATES of America, Appellee, v. Jack Simmons HORGER, Appellant.

Nos. 75-1645 to 75-1647.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 4, 1976.

Decided Jan. 25, 1977.

Betty M. Sloan, Columbia, S. C. (Frank K. Sloan, Columbia, S. C., on brief), for Leonard and Jack Horger.

James B. Craven, III, Durham, N. C. (Everett, Everett, Creech & Craven, Durham, N. C., on brief), for Robert Thieman.

Thomas P. Simpson, Asst. U. S. Atty., Columbia, S. C. (Mark W. Buyck, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and RUSSELL and HALL, Circuit Judges.

HAYNSWORTH, Chief Judge:

Three men were found guilty of intimidating a United States Drug Enforcement Administration special agent while he was engaged in the performance of his official duties and of stealing government property from him. Each seeks reversal, but only one contention deserves comment.

Leonard Russell Horger argues that Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) requires reversal of his conviction. That is true only if Geders is to be retroactively applied, and we hold that under these facts it is not. Geders held that an order preventing the defendant 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.

On February 26, 1975, after defendant, Leonard Russell Horger's, direct examination was completed, defense counsel requested that another, out-of-town defense witness be called out-of-turn. As the defendant left the witness stand the court admonished him:

Now, you can't talk, talking to you, Mr. Horger, you can't talk to anyone. You're still under examination. Just as a matter of convenience, its a good spot. I know she's got to be back, so if you want to take her right now, we'll take her right now. You can step down, but you can't talk with anybody about this. No, you can sit back there, but I'll know whether you're talking or not

After the testimony of the out-of-town witness the court recessed for the evening. After the jury was excused the judge again told the defendant he was still under oath and was not to talk to anyone about the case. The defendant returned to the witness stand when court reconvened the next morning.

No objection was made at trial to the court's ruling and no prejudice to the defendant has been claimed.

It is settled that the retroactivity of a new rule does not depend on the particular section of the constitution on which it is based. Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Shiflett v. Virginia, 447 F.2d 50, 54 (4th Cir. 1971); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) is a Sixth Amendment right to counsel case and is fully retroactive, but that does not necessarily require a finding of retroactivity in this effective assistance of counsel situation. Gideon recognized the fundamental fact that a layman, unassisted by counsel, could not adequately further his claims of innocence and violation of previously declared rights, but the bare possibility that the rule may have some effect on the reliability of the fact-finding process does not automatically require its retroactive application. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972). See...