U.S. v. McLaughlin

• Decision Date: 18 December 1998
• Docket Number: No. 97-3011,97-3011
• Citation: 334 U.S. App. D.C. 1,164 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Rico McLAUGHLIN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1

164 F.3d 1

334 U.S.App.D.C. 1

UNITED STATES of America, Appellee, v. Rico McLAUGHLIN, Appellant.

No. 97-3011.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 4, 1998.

Decided Dec. 18, 1998.

Appeal from the United States District Court for the District of Columbia (No. 95cv00466).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Elizabeth C. Coombe, Assistant United States Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, United States Attorney, John R. Fisher, Mary Patrice Brown and Henry K. Kopel, Assistant United States Attorneys.

Before: WALD, SENTELLE and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Circuit Judge TATEL.

SENTELLE, Circuit Judge:

Rico McLaughlin was convicted of multiple federal and D.C. offenses, all related to the shooting of a government informant. After trial, McLaughlin filed a motion for a new trial on the ground that he was denied the right to confer with counsel during a brief recess between his cross-examination and redirect. That motion was denied. On appeal, McLaughlin argues that the court's denial of his request to confer with counsel during the recess between his cross-examination and redirect violated the Sixth Amendment. He also argues that he was convicted and sentenced under multiple federal and D.C. provisions which Congress did not intend to apply to the same underlying conduct, and that his simultaneous convictions under these statutes violate the Double Jeopardy Clause. We find that there was no Sixth Amendment violation, and we reject appellant's arguments that his federal and D.C. convictions cannot stand simultaneously. However, we do find that defendant's convictions under two D.C. assault provisions merge. Accordingly, we reverse his conviction for aggravated assault and vacate the concurrent sentence imposed for that offense.

I. Background

Rico McLaughlin was tried in the United States District Court for the District of Columbia in connection with the shooting of Thomas White. White had been an informant in an operation called Project Uptown which involved a joint task force of the Bureau of Alcohol, Tobacco and Firearms, the U.S. Secret Service, the Department of Housing and Urban Development, and the Metropolitan Police Department. On April 26, 1995, White received multiple gunshot wounds while being chased down a neighborhood street in the District of Columbia. At trial, White testified that McLaughlin was a drug dealer with whom he had transacted in the past, and identified McLaughlin as the shooter. An eyewitness who saw the shooting from a distance confirmed some aspects of the identification. The court also heard evidence from neighborhood residents, who testified that there was a rumor in the neighborhood that White was an informant, and that McLaughlin might have known about that rumor.

Mr. McLaughlin took the stand in his own defense. After the government finished its cross-examination, the court ordered a brief recess, noting that defense counsel could redirect after the recess, if desired. In response to a request from the government, and over defense objections, the court directed counsel not to speak to defendant during the break "about anything he said in his testimony today." The recess lasted fifteen minutes. After the recess, defense counsel stated that "given the Court's ruling," she had no redirect. Defense counsel stated: "I should also stress for the record that I did think to myself what other areas I might want to explore with Mr. McLaughlin. I have identified other areas, and I would be prepared to consult with him on that. But given the Court's ruling, I am not permitted to do that, so I have no further questions."

At the close of trial, McLaughlin was convicted of (1) knowingly causing bodily injury with the intent to retaliate for providing information to law enforcement, 18 U.S.C. § 1513(b); (2) using or carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c); (3) assault with intent to kill while armed, D.C.Code §§ 22-501 and 22-3202; (4) aggravated assault while armed, D.C.Code §§ 22-504.1 and 22-3202; (5) possession of a firearm during a crime of violence, D.C.Code § 22-3204(b); and (6) carrying a pistol without a license, D.C.Code § 22-3204(a).

On December 2, 1996, defendant filed a written motion for new trial on the ground that the court's order denying him the right to confer with counsel about his testimony during the recess violated his Sixth Amendment rights. The court denied defendant's motion, and later issued a written memorandum explaining the denial. United States v. McLaughlin, 955 F.Supp. 132 (D.D.C.1997). Defendant was sentenced on all six counts on which he was convicted. He received eighty-seven months imprisonment on count one, including an upward departure of twenty-four months; sixty months imprisonment on count two, counts one and two to be served consecutively; five to fifteen years imprisonment on count three; five to fifteen years imprisonment on count four, counts three and four to be served concurrently but consecutively to counts one and two; five to fifteen years imprisonment on count five; and forty months to ten years imprisonment on count six, counts five and six to be served concurrently, but consecutively to counts one through four.

The defendant now appeals, contending that the court's denial of his request to confer with counsel during the recess denied him his Sixth Amendment right to counsel. He also argues that the district court erred in allowing him to be convicted and sentenced under multiple provisions which Congress did not intend to give rise to simultaneous convictions, and whose simultaneous application offends the Double Jeopardy Clause. In addition, appellant asserts that the prosecutor made improper statements at trial which substantially prejudiced the outcome and that the district court made an improper upward departure from the sentencing guidelines on the § 1513(b) charge. While we have carefully considered each of appellant's arguments, the prosecutorial misconduct and sentencing departure arguments do not merit separate discussion.

II. The Right to Confer with Counsel

We first examine appellant's argument that the district court's refusal to allow him to confer with defense counsel during a brief recess between defendant's cross-examination and redirect denied him his Sixth Amendment right to counsel. Asserting this alleged denial, McLaughlin requested a new trial pursuant to Fed.R.Crim.P. 33. He now appeals from the district court's denial of his request.

Three cases frame the Sixth Amendment issue in this case: Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Mudd v. United States, 798 F.2d 1509 (D.C.Cir.1986); and Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989). Geders held that prohibiting discussions with defense counsel during an overnight recess shortly before defendant's cross-examination violated the Sixth Amendment, apparently without a showing of prejudice to the defendant. 425 U.S. at 91, 96 S.Ct. 1330. Mudd held that the Sixth Amendment was violated by an order for a defendant not to speak to his defense attorney over a weekend recess between his direct and cross-examination, even where the order prohibited only discussions regarding the defendant's testimony. 798 F.2d at 1512. Mudd squarely held that no showing of prejudice is required once a Sixth Amendment violation is established, but noted that restricting discussion during a very brief recess might give rise to no Sixth Amendment violation at all. Id. at 1514. Both Geders and Mudd, while holding that prohibiting consultation with counsel during the relatively lengthy recesses in those cases was a Sixth Amendment violation, explicitly declined to decide whether the same would necessarily be true if a shorter recess were involved. Geders, 425 U.S. at 89 n. 2, 96 S.Ct. 1330; Mudd, 798 F.2d at 1514 (suggesting that orders which do not impose blanket prohibitions on discussions between counsel and defendant but prevent only discussion regarding a defendant's testimony "only interfere with the right to counsel when they cover a substantial trial recess").

The question left open by Geders and Mudd was settled by Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989), which held that, while no prejudice need be shown once a Sixth Amendment violation is established, the Sixth Amendment is not violated where no discussions are allowed between a defendant and his attorney during a fifteen-minute recess between the defendant's direct and cross. The Perry Court distinguished Geders, noting that during an overnight recess, a defendant may need access to his attorney to discuss matters that "go beyond the content of the defendant's own testimony." Id. at 284, 109 S.Ct. 594. While noting that "[i]t is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess," id., the Court held that "in a short recess 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." Id.

The lengths of the recesses in this case and in Perry are similar. The order at issue in Perry barred all communication, while the order in this case was less restrictive, barring only communication regarding defendant's testimony. Nonetheless, appellant argues that this case is distinguishable from Perry because the recess here was after cross-examination rather than before. We agree with the district court that this distinction is not constitutionally significant. See McLaughlin, 955 F.Supp. at 135.

Appellant notes that the Perry Cour...