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UNITED STATES v. MCLAUGHLIN

February 14, 1997

UNITED STATES OF AMERICA,
v.
RICO MCLAUGHLIN, Defendant.



The opinion of the court was delivered by: FRIEDMAN

 This matter is before the Court on Defendant's Motion for New Trial which the government opposes. The defendant, Rico McLaughlin, raises a single, albeit important issue, namely, whether it is within the Court's discretion to direct a defendant in a criminal case not to talk with his lawyer about the subject matter of his testimony during a short recess between cross-examination and redirect examination. As defendant properly points out, the question implicates the Sixth Amendment right to counsel. In support of his motion, defendant relies primarily on the Supreme Court's decision in Geders v. United States, 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976), and the D.C. Circuit's decision in Mudd v. United States, 255 U.S. App. D.C. 78, 798 F.2d 1509 (D.C. Cir. 1986), while the government relies in its opposition on the later decision of the Supreme Court in Perry v. Leeke, 488 U.S. 272, 102 L. Ed. 2d 624, 109 S. Ct. 594 (1989).

 In this case, the defendant, a drug dealer, was charged with assaulting another drug dealer in the neighborhood, who he believed was then cooperating with and providing information to law enforcement officials, with the intent to kill him. He was charged in a six-count indictment with obstructing justice by retaliating against a witness or informant, using a firearm in relation to that crime and other related assault and weapons offenses. The key witnesses in the case were the defendant, Rico McLaughlin, who denied he was the shooter or had any involvement in or knowledge of the shooting, and the victim, Thomas White, who was shot three times by his assailant while being chased down a neighborhood street at eleven o'clock at night. After a seven-day trial, the jury convicted the defendant on all six counts of the indictment.

 On the second to last day of the trial, after the government had concluded its cross-examination of the defendant, the Court announced its intention to take a brief recess prior to redirect. After the jury left the courtroom, counsel for the government asked that the defendant be prohibited from discussing his testimony with his attorney during the recess. Over the objection of defendant's counsel and despite her specific request that she be permitted to discuss the cross-examination and potential redirect with her client, the Court granted the government's request and ordered that the defendant and his counsel not discuss his testimony during the break. After the recess, which lasted 15 minutes, defense counsel announced that, in view of the Court's order prohibiting consultation with her client regarding his testimony, no redirect examination would be offered. She said that absent an opportunity to consult with her client in advance she was not prepared to inquire about some of the areas covered by the government during cross. The Court elected not to alter its previous ruling. *fn1"

 Rule 615 of the Federal Rules of Evidence permits a court at the request of a party or on its own motion to excuse witnesses from the courtroom during trial so that they cannot hear the testimony of other witnesses, the so-called "rule on witnesses." The Rule does not authorize the exclusion of a party, and the Sixth Amendment obviously entitles a defendant to be present throughout a criminal trial. Nevertheless, it is established that the Court has the inherent authority to make whatever provision it deems necessary to manage trials in the interests of justice, including the authority to instruct witnesses and parties, even those not excluded or excludable from the courtroom, not to discuss their testimony with other witnesses or with counsel. See Geders v. United States, 425 U.S. 80, 87-88, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976); United States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993), cert. denied, 129 L. Ed. 2d 840, 114 S. Ct. 2714 (1994). As defendant properly points out, however, where a non-discussion order limits a criminal defendant from discussing matters with his or her counsel, constitutional concerns arise. Thus, in Geders, the Supreme Court held that it was a violation of the Sixth Amendment to prohibit a criminal defendant from consulting with counsel during an overnight recess that occurred in the middle of the defendant's testimony.

 In Geders, the direct examination of the defendant was nearly complete and cross-examination was imminent. The trial court had instructed the defendant not to engage in any discussion with his attorney, including matters unrelated to his testimony, during the overnight recess. Approximately seventeen hours elapsed between when court adjourned in the afternoon of one day and when it resumed the next morning. On those facts, the Supreme Court unanimously held that such a non-discussion order deprived the defendant of his Sixth Amendment right to counsel. As the Chief Justice wrote:

 
The challenged order prevented petitioner from consulting his attorney during a 17-hour overnight recess, when an accused would normally confer with counsel. We need not reach, and we do not deal with limitations imposed in other circumstances. We hold 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.

 Geders v. United States, 425 U.S. at 91.

 A dozen years later, the Supreme Court revisited the issue in Perry v. Leeke, 488 U.S. 272, 102 L. Ed. 2d 624, 109 S. Ct. 594 (1989). In that case, at the conclusion of the defendant's direct testimony and before cross, the trial judge declared a 15 minute recess and ordered that the defendant not talk to anyone about his testimony during the break, including his lawyer. The Court found that such an order served legitimate purposes and was within the trial court's discretion. Recognizing that "the line between the facts of Geders and the facts of this case is a thin one," the Court found that line to be one of "constitutional dimension." Perry v. Leeke, 488 U.S. at 272. The Court explained:

 
The distinction rests . . . on the fact that when a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying. He has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit of counsel's advice.
 
The reason for the rule is one that applies to all witnesses -- not just defendants. It is a common practice for a judge to instruct a witness not to discuss his or her testimony with third parties until the trial is completed. Such nondiscussion orders are a corollary of the broader rule that witnesses may be sequestered to lessen the danger that their testimony will be influenced by hearing what other witnesses have to say, and to increase the likelihood that they will confine themselves to truthful statements based on their own recollections. The defendant's constitutional right to confront the witnesses against him immunizes him from such physical sequestration. Nevertheless, when he assumes the role of a witness, the rules that generally apply to other witnesses -- rules that serve the truth-seeking function of the trial -- are generally applicable to him as well. Accordingly, it is entirely appropriate for a trial judge to decide, after listening to the direct examination of any witness, whether the defendant or a nondefendant, that cross-examination is more likely to elicit truthful responses if it goes forward without allowing the witness an opportunity to consult with third parties, including his or her lawyer.
 
* * *
 
Thus, just as a trial judge has the unquestioned power to refuse to declare a recess at the close of direct testimony -- or at any other point in the examination of a witness -- we think the judge must also have the power to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the witness and the lawyer would relate to the ongoing testimony. As we have said, we ...

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