UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5625

JOHN DARRELL T. HARTMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-95-10)

Submitted: March 22, 1996

Decided: April 8, 1996

Before WILKINS and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

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Reversed by unpublished per curiam opinion.

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COUNSEL

Deborah S. Roe, MCDERMOTT, ROE & JONES, Hampton, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, Alan M.
Salsbury, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

John Darrell T. Hartman was convicted by a jury of three counts
of theft of government funds, 18 U.S.C.A. § 641 (West Supp. 1995),
and was sentenced to a term of nine months imprisonment. Hartman
appeals his conviction and sentence. We find that Hartman was
denied the assistance of counsel during an overnight recess in viola-
tion of his right guaranteed by the Sixth Amendment and we therefore
reverse his conviction.

From 1987 to 1992, John Darrell T. Hartman was vice president
and treasurer of Community Living Homes, Inc., which owned six
nursing homes in the Tidewater area of Virginia. Hartman's own
company, Community Living Services, Inc., managed the homes. In
1988, Hartman entered into a fiduciary agreement with the Depart-
ment of Veterans Affairs (VA) by which he was authorized to receive
veterans benefits for Mrs. Margaret Horner, a resident of one of the
homes. In April 1992, Hartman was fired or voluntarily terminated his
association with Community Living Homes and notified the VA that
he could no longer serve as the payee for Mrs. Horner. A year later,
three VA benefits checks for Mrs. Horner were mistakenly sent to
Hartman. He deposited them in a Community Living Homes account,
then transferred almost all of the money to a corporation he owned,
ostensibly to help settle a dispute with Dr. Henry D. McCoy, the prin-
cipal shareholder and president of Community Living Homes.

Hartman was charged with three counts of theft of government
funds. On the first day of trial, Hartman was in the middle of his
direct testimony when the district court recessed for the day. The
court instructed Hartman and his attorney not to have any contact dur-
ing the overnight recess. Defense counsel did not object at the time.
However, she objected the next morning, off the record, before Hart-
man resumed his testimony, and was allowed to confer with Hartman

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for ten minutes. After both sides rested, the district court noted on the
record that he had allowed Hartman to confer with his attorney in
accordance with Geders v. United States, 425 U.S. 80, 91 (1976).

Hartman was convicted and sentenced to a 9-month term of impris-
onment. On appeal, Hartman contends, among other things, that he
was denied the right to counsel during the overnight recess.

In Geders, the Supreme Court held that a defendant has a Sixth
Amendment right to consult with his attorney during an overnight
recess called while he is giving his testimony, despite the risk of
improper coaching by his attorney. In Perry v. Leeke, 488 U.S. 272,
284 (1989), the Court held that the right did not extend to a brief
recess which occurs during the defendant's ongoing testimony
because in such a brief recess the conversation between the lawyer
and the defendant-witness would almost certainly relate only to his
testimony. However, the Court reiterated its prior holding in Geders
that the defendant has the right to unrestricted access to his attorney
during an overnight recess even if it comes in the midst of his testi-
mony. See also United States v. Cobb, 905 F.2d 784, 791-92 (4th Cir.
1990) (under Geders, defendant cannot be prohibited from discussing
his testimony with attorney during a weekend recess), cert. denied,
498 U.S. 1049 (1991).

The government argues that Hartman was not denied the right to
consult with his attorney because he was allowed the brief conference
before resuming his testimony. However, the ten-minute conference
permitted just before his cross-examination would not cure the error.
It was the kind of brief access to which Perry found that the defen-
dant does not have a right because of the danger of improper coach-
ing. The right secured by the Sixth Amendment is to"unrestricted
access . . . for advice on a variety of trial-related matters." Perry, 488
U.S. at 284. Relying on Stubbs v. Bordenkircher , 689 F.2d 1205, 1207
(4th Cir. 1982), cert. denied, 461 U.S. 907 (1983), the government
also argues that, in these circumstances, the right to counsel is not
denied unless the defendant demonstrates that he wanted to meet with
his attorney and was prevented from doing so by the court's order.
However, Stubbs is not helpful here because it was decided before
Perry; moreover, it involved a relatively short lunch recess. See
Perry, 488 U.S. at 272 n.2 (citing Stubbs as one of a variety of views

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taken by circuit courts before then on the constitutionality of orders
barring access to counsel during a trial recess).

Because the circumstances in Hartman's case so closely mirror
those in Geders, we find that the district court's order denying Hart-
man access to his attorney during the overnight recess requires rever-
sal of his conviction. Even if Hartman's attorney did not properly
preserve the issue, as the government argues, by not objecting at the
time of the ruling and by not objecting to the short consultation
granted the next morning, the denial of access was so clearly forbid-
den under Geders that it constitutes plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725 (1993) (plain error must
be obvious under current law, affect substantial rights, and seriously
affect the fairness, integrity, or public reputation of judicial proceed-
ings).

We therefore reverse the conviction. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

REVERSED

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