Ninth Circuit's Per Se Rule That “Any Overnight Ban On Communication” Of Defendant With Counsel Violates Sixth Amendment

In drug conspiracy trial, order barring recess communications between the defendant and his counsel about the defendant’s testimony violated the Ninth Circuit per se rule that “any overnight ban on communication” violates the Sixth Amendment, but a ban during a brief recess before or during cross-examination did not implicate the Sixth Amendment's restrictions, in United States v. Sandoval-Mendoza, 472 F.3d 645 (9th Cir. Dec. 27, 2006) (No. 04-10118)

It is well recognized that any blanket prohibition against a witness-client communicating with his attorney during an overnight recess violates the Sixth Amendment right to counsel. Geders v. United States, 425 U.S. 80, 91 (1976) (“[A]n 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.”). This finding is supported by the appreciation that an overnight recess precludes discussion of non-testimonial matters between attorney and client, such as whether to call other witnesses, changes or adjustment of trial tactics, or possible plea deals. However, a limited prohibition does not violate the Sixth Amendment. See Perry v. Leeke, 488 U.S. 272, 283-84 (1989) (Sixth Amendment was not violated by trial court bar of communications during a “brief recess” - a fifteen minute recess in the course of cross-examination.). Between the blanket ban and the short limitation, whether the Sixth Amendment right to counsel was violated by a limitation on a defendant's consultation with counsel is a matter of degree.

The Ninth Circuit recently reviewed the authority pertaining to the application of the Sixth Amendment right to counsel in conformity with the discretion FRE 611(a) provides to the court to “exercise reasonable control” in trial proceedings in order to “make the interrogation and presentation effective for the ascertainment of the truth.” FRE 611(a). In the case, defendant Eduardo Sandoval-Mendoza and his twin brother Ricardo were prosecuted for conspiring to distribute methamphetamine. The defendant admitted to selling methamphetamine at trial, but claimed that he was entrapped by government informants who made recorded conversations of the drug transactions, knowing that the defendant had a brain tumor and that he was “especially susceptible to suggestion” so that they “preyed upon his weakness.” Sandoval-Mendoza, 472 F.3d at 647. During the trial, the defendant testified to this effect and the government's cross-examination of the defendant covered over two days, “spanning a morning recess, a lunch recess, an overnight recess, and another recess on the second day. ” Sandoval-Mendoza, 472 F.3d at 648. Over defense counsel objection, the trial judge ordered that the defendant and his counsel limit their communications: “You can communicate. Just not concerning cross, his testimony, now that he’s on cross-examination, unless that’s concluded. That doesn’t mean you can’t talk with your client at all, just not concerning his testimony.” Sandoval-Mendoza, 472 F.3d at 651. Ultimately the jury convicted the defendant as charged and he appealed, alleging a violation of his Sixth Amendment right to counsel.

The circuit held that the “district court erred in prohibiting Sandoval-Mendoza and his lawyer from discussing his testimony during an overnight recess.” However, because of other errors at trial, the circuit noted that it did not need to address whether this constitutional error alone mandated reversal. It was unclear whether prejudice or structural error must be established before reversal was mandated. However, because the circuit found other independent error (concerning the exclusion of medical expert testimony) it was unnecessary to decide this question.

The circuit compared the case with two Supreme Court cases which involved a trial court order barring communications between the defendant and defense counsel during a recess (as discussed above). The circuit found that the facts of Sandoval-Mendoza's case fell in between the Supreme Court's Geders and Perry cases. While the defendant's case presented “a difficult question,” the circuit “conclude[d] that any overnight ban on communication” violated the Sixth Amendment. As the circuit summarized:

“[W]e conclude that trial courts may prohibit all communication between a defendant and his lawyer during a brief recess before or during cross-examination, but may not restrict communications during an overnight recess. This simple rule is consistent with the reasoning of Geders and Perry. And it has several other advantages. First, it is easy to understand and apply. Second, it dispenses with pretense. Jurors can believe that a defendant did not communicate with his lawyer during a bathroom break. But only a lawyer more wedded to words than common sense can believe that a defendant communicated with his lawyer during an overnight recess without at least implicitly discussing his testimony.”

“Third, as Geders explains, prosecutors and judges can address the coaching problem without prohibiting communication during an overnight recess. The trial court may 'exercise reasonable control' over the order and timing of direct and cross examination in order to 'make the interrogation and presentation effective for the ascertainment of the truth.' For instance, it 'may direct that the examination of the witness continue without interruption until completed' or 'arrange the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption.' If a defense lawyer strings out direct examination until the usual time for the evening recess, the court can delay the recess and give the prosecutor a few minutes to get in some cross examination. Thus, we conclude that the district court erred in prohibiting Sandoval-Mendoza and his lawyer from discussing his testimony during an overnight recess.”
Sandoval-Mendoza, 472 F.3d at 651-52 (footnotes omitted).


As in Sandoval-Mendoza, almost all other federal circuits that have considered the issue have concluded that under Perry and Geders a trial judge may not order a defendant to refrain from discussing his ongoing testimony with counsel during an overnight recess, even if all other communication is allowed, for instance:

  • Fourth Circuit: United States v. Cobb, 905 F.2d 784, 792 (4th Cir. 1990) (Order prohibiting defendant from discussing his cross-examination testimony with his attorney during a weekend recess “effectively eviscerated his ability to discuss and plan trial strategy. To hold otherwise would defy reason. How can competent counsel not take into consideration the testimony of his client in deciding how to try the rest of the case? We are not alone in reaching this conclusion.”)
  • Seventh Circuit: United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000) (Sixth Amendment was violated by trial court order that defense counsel could not discuss the defendant’s testimony during an overnight recess.)
  • Eleventh Circuit: United States v. Romano, 736 F.2d 1432, 1438 (11th Cir. 1984) (Sixth Amendment was violated by trial court order that defendant not consult with his attorney about his testimony during overnight recess that ultimately lasted several days due to defendant’s hospitalization for heart problems was reversible error, given counsel’s objection, effect of order to constrained counsel in assessing options available to defendant and length and circumstances of recess.), vacated in part on reh’g on other grounds, 755 F.2d 1401 (1985)
  • D.C. Circuit: Mudd v. United States, 798 F.2d 1509, 1512 (D.C. Cir. 1986) (Sixth Amendment was violated by weekend ban on defendant’s communications about testimony after completion of direct but before commencement of cross-examination; reaching the same holding under Geders prior to Perry.)

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