U.S. v. Romano

• Decision Date: 19 July 1984
• Docket Number: 82-5114,Nos. 81-5710,s. 81-5710
• Citation: 736 F.2d 1432
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Frank ROMANO and Thomas Romano, Defendants-Appellants, Cross-Appellees. In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1432

736 F.2d 1432

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Frank ROMANO and Thomas Romano, Defendants-Appellants Cross-Appellees In re UNITED STATES of America, Petitioner.

Nos. 81-5710, 82-5114.

United States Court of Appeals Eleventh Circuit.

July 19, 1984.

Sidney Glazer, Sara Criscitelli, Atty., Appellate Section, Crim. Div., Washington, D.C., James M. Deichert, Sp. Atty., Dept. of Justice, Atlanta, Ga., for U.S.

Neal R. Sonnett, Benedict P. Kuehne, Bierman, Sonnett, Shohat & Sale, Miami, Fla., for Frank and Thomas Romano.

Terence Anderson, University of Miami School of Law, Coral Gables, Fla., for Judge Hastings.

Appeals from the United States District Court for the Southern District of Florida and On Petition for Writ of Mandamus to the United States District Court for the Southern District of Florida.

Before RONEY, HATCHETT and ANDERSON, Circuit Judges.

RONEY, Circuit Judge:

Frank and Thomas Romano, two brothers, were each convicted of 18 counts relating to a series of criminal offenses committed in the course of obtaining and using construction financing to complete a condominium project. ¹ We reverse the convictions as to both defendants on the ground that under Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), they were denied effective assistance of counsel when the district court ordered that Thomas Romano refrain from consulting with his attorney concerning his testimony during an overnight recess which ultimately extended several days due to Thomas's hospitalization for heart problems. So that this reversal will not constitute an impediment to a new trial, we note that we would affirm the district court's rulings that the indictment was not unduly complex or multiplicitous, and that the evidence was sufficient to support the convictions. We need not reach the questions of the propriety of the use of Thomas Romano's videotaped testimony, or the correctness of the district court's final order of forfeiture.

In Geders v. United States, 425 U.S. 80, 88, 96 S.Ct. 1330, 1335, 47 L.Ed.2d 592 (1976), the Supreme Court held that sequestration orders as to criminal defendant witnesses contravene the Sixth Amendment entitlement to the effective assistance of counsel. The Court reversed a defendant's conviction on the ground that the trial court's order forbidding defendant to consult with his attorney "about anything" during an overnight recess denied defendant the effective assistance of counsel. The Court recognized that a trial judge has broad power to sequester witnesses before, during and after their testimony. It stated the three purposes of sequestration: to restrain witnesses from "tailoring" their testimony to that of earlier witnesses, to aid in detecting less than candid testimony, and to prevent improper influence on the testimony of a witness during a recess of court while that witness is testifying.

The court then discussed the different situation of a person who is both a witness and a defendant on two scores. First, a non-party witness with no stake in the outcome of the trial ordinarily has little to discuss with the trial counsel other than his own testimony. A defendant, on the other hand, must consult with his attorney often during a trial about everything that is going on in the courtroom. Second, since a defendant has a right to be present during the entire trial, he can hear the testimony of other witnesses and discuss his testimony with his lawyer up to the time he takes the witness stand. In effect, it would seem that the only purpose that could be accomplished by the rule as applied to a defendant is to preclude improper "coaching" of the witness by counsel during a recess of his testimony.

The court then discussed the need for a defendant to talk to his attorney during court recess:

[i]t is common practice during such recesses for an accused and counsel to discuss the events of the day's trial. 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. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer's guidance.

425 U.S. at 88, 96 S.Ct. at 1335. Balancing the defendant's right to consult with counsel against the prosecutor's desire to cross-examine the defendant without the risk of improper "coaching", the court resolved the conflict in favor of the defendant.

This Court had decided the issue in favor of the Government on Geders' appeal to us, holding that there was no reversible error in such a restraint on defendant's counsel absent some showing of prejudice. See United States v. Fink, 502 F.2d 1 (5th Cir.1974), rev'd sub nom. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). After the Supreme Court's reversal of our decision, however, we explicitly agreed that "to the extent that the goal of preventing potential improper coaching conflicts with a defendant's right to freely consult with counsel ... 'the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel.' " United States v. Conway, 632 F.2d 641, 644 (5th Cir.1980). In Conway the Geders rule was extended to all court recesses regardless of how brief.

The facts in this case fall within the Geders principle. After several days of trial, on Monday, December 15, 1980, the first day of defendant Thomas Romano's testimony on direct examination, the court recessed at mid-day due to the illness of this defendant. Trial was scheduled to resume on Wednesday, December 17. Throughout the trial, the judge had instructed witnesses whose testimony was interrupted by recesses not to discuss the case with anyone. Over the objection of counsel, the court cautioned Thomas Romano not to discuss his testimony with counsel during the recess. The court stated that the replacement or rescheduling of this defendant's testimony could be discussed, but prohibited any discussion "of any testimony past or future" that Thomas Romano might give. ² Due to the continuing infirmity of this defendant, the recess lasted five days. The question, of course, is whether the trial judge's instruction was proper in this context. The Government contends that the prohibition in this case should not be controlled by Geders because the court limited its instruction to consultation about Thomas Romano's testimony, leaving room for discussion of other matters in connection with the case, including the state of the defendant's health.

No case has been cited to us which ruled on a situation where the court said the attorney could talk to the defendant, but not about his testimony, under circumstances such as these. In one case the Third Circuit reversed judgment on whether a partial rather than a total prohibition similar to the one here at issue should be distinguished from Geders. Bailey v. Redman, 657 F.2d 21, 23 n. 3 (3d Cir.1981).

Our review of Geders and its progeny indicates that the order here at issue cannot be upheld. First, the Geders rule has been rather strictly applied. In United States v. Conway, 632 F.2d 641 (5th Cir.1980), this Court held that a sequestration order issued to a defendant witness during a lunch recess which interrupted his cross-examination constituted grounds for reversal of his conviction under the rationale of Geders. See also Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983) ("any restriction upon a defendant's access to his counsel during a recess, whether the recess be extended or brief, is constitutionally impermissible."); United States v. Bryant, 545 F.2d 1035 (6th Cir.1976) (order directing defendant not to converse with anyone during a one-hour lunch break during direct examination held to be a violation of Sixth Amendment right to counsel); United States v. Allen, 542 F.2d 630 (4th Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977) (holding that "a restriction on a defendant's right to consult with his attorney during a brief routine recess is constitutionally impermissible," and reversing the conviction of a co-defendant witness ordered not to talk to her lawyer during an overnight recess); United States v. Vesaas, 586 F.2d 101, 102 n. 2 (8th Cir.1978) (expressing in dicta the court's "grave doubts that even a brief restriction on a criminal defendant's right to confer with counsel can be squared with the Sixth Amendment"). In all of these cases, the courts prohibited attorney-client discussion on any subject.

Second, in considering other ways to deal with the problem of possible "coaching", the Supreme Court did not suggest a modified restriction. The Geders Court thought that proper cross-examination could reveal improper "coaching", that the judge could direct continued interrogation without interruption, that the judge might arrange the sequence of testimony so that cross-examination of a witness could be completed without interruption, and suggested there were a variety of ways of serving the purpose of sequestration "without placing a sustained barrier to communication between a defendant and his lawyer." Our own Court, noting that "attorneys are duty bound not to engage in the type of activity feared by" a trial court, agreed that the trial judge can take steps to alleviate potential harm. It did not indicate that a restricted prohibition against talking with a defendant about his testimony was a possibility. To the extent a conflict remains after the suggested...