             UNITED STATES COURT OF APPEALS

                    FOR THE FIFTH CIRCUIT


                            No. 99-30549


UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                versus

PATRICK JOHNSON,
                                                   Defendant-Appellant.

                        (consolidated with)
                _______________________________

                            99-30586
                _______________________________

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                versus

SHAWN BERNARD WOODS; KEVIN
JERMAINE PICKENS; AMEILE BROWN;
CRAIG ANTHONY MARKS; TROY
ANTHONY MARKS,
                                                   Defendants-Appellants.


             Appeals from the United States District Court
                for the Western District of Louisiana

                         September 19, 2001
Before POLITZ and BARKSDALE, Circuit Judges, and FALLON,* District Judge.

POLITZ, Circuit Judge:

       Shawn Bernard Woods, Kevin Jermaine Pickens, Ameile Brown, Craig Anthony

Marks, and Troy Anthony Marks appeal their convictions and sentences on various

counts of drug possession, conspiracy, and related charges. Patrick Johnson appeals

the sentence imposed on his plea of guilty. Concluding that the court’s order

prohibiting Troy Marks from discussing the case with his counsel during an overnight

recess and a weekend recess violated his sixth amendment right to counsel, we reverse

his conviction and order a new trial. The sentence imposed on Patrick Johnson and the

convictions and sentences of the other appellants are affirmed.

                                   BACKGROUND

       Appellants and four other individuals were charged in a 49 count indictment with

violations of narcotics statutes and related offenses.1 After the other defendants


   *
   Honorable Eldon E. Fallon, United States District Judge for the Eastern District of
Louisiana, sitting by designation.
   1
       The counts included conspiracy to possess with intent to distribute cocaine
powder, cocaine base, and marihuana in violation of 21 U.S.C. § 846; possession of
cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1); conspiracy
to launder monetary instruments in violation of 18 U.S.C. § 1956(h); money laundering
in violation of 18 U.S.C. §§ 1956(a)(1)(A)(I) and (a)(1)(B)(I); interstate travel in aid
of illegal activity in violation of 18 U.S.C. § 1952(a)(1); use of a communications
facility in violation of 21 U.S.C. § 843(b); possession of a firearm in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1); and discharge of a firearm in a
                                            2
pleaded guilty the case proceeded to trial. The evidence adduced implicated the

appellants in an intricate network of drug transportation, distribution, and sale. This

process included the use of wire transfers, the purchase of assets in other people’s

names, and the creation of a corporation allegedly used to hide appellants’ burgeoning

wealth. The group operated over separate regions of Louisiana, including Lafayette,

Opelousas, Leesville, and Lake Charles. Appellants’ activities eventually attracted the

attention of the FBI and IRS who created a joint investigatory task force. This led to

the use, inter alia, of pen registers and a wiretap on Troy Marks’ telephone. Further

surveillance and investigation led to appellants’ arrest, indictment, trial, and conviction

of various counts. This timely appeal followed.

                                      ANALYSIS

      Each defendant raises numerous issues on appeal, including challenges to the

sufficiency of evidence, alleged errors in the court’s evidentiary rulings, denial of a

defense motion for mistrial, and claims that a court order violated appellants’ rights

under the sixth amendment. We address the one we view most seriously.

      I.     Sixth Amendment Right to Counsel

      Troy Marks began testifying on the ninth day of trial, and while still under direct

examination by his attorney, the judge called a recess for the evening. As he had done


school zone in violation of 18 U.S.C. § 922(3)(A).
                                            3
with non-party witnesses, the judge ordered Marks not to talk with anyone about the

case until after he completed his testimony.       The record reveals the following

discussion between the court and Marks’ attorney:

             COURT:        The record will reflect that the jury has
                           withdrawn from the courtroom. Mr. Marks
                           and counsel, no one is to talk to Mr. Marks
                           about this case until he has completed his
                           testimony, either side. Lawyers – Mr. Marks,
                           I’m talking about lawyers, I’m talking about
                           any codefendants and whatnot. Talk about
                           whatever, the weather or what’s going on in
                           the NBA, or whatever, but don’t talk about the
                           case.

             ATTORNEY AT LAW: I can talk to him, Judge.

             COURT:        No sir, you can’t. Not while he’s under
                           examination you can’t. We just stopped in the
                           middle of his examination.

             ATTORNEY AT LAW:                  Very well.

      The following day, during cross-examination of Marks by the prosecution, the

Court again recessed, this time for the weekend.            The court made the same

sequestration order and, during a discussion regarding the attorneys’ problems with

seeing their clients at the jail, the following exchange took place:

             ATTORNEY AT LAW:                  I wanted to go and – I
                                               can’t talk to him at all.
                                               His relatives can’t talk
                                               [to] him. He’s in this trial

                                           4
                                                for his life. Somebody
                                                ought to be able to. He
                                                should be able to talk to
                                                somebody.

              COURT:         You can’t talk to him Mr. Register because
                             there will be no reason for you to talk to him
                             other than talk to him about the case.

              ATTORNEY AT LAW:                  Exactly.

              COURT:         You can’t do that while he’s under
                             examination. As soon as his examination has
                             been completed, cross and any redirect and
                             completed, then you can talk to him all you
                             want to. Now, do I understand that they’re not
                             going to let you call him next week after he’s
                             completed his examination?

              ATTORNEY AT LAW: I have had no problem.

        Troy Marks urges error in the court’s sequestration orders, asserting that the ban

on communication with his counsel violated his rights under the sixth amendment. We

are compelled to agree.

        The sixth amendment provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defense.”2 The

Supreme Court defined the contours of this right in Geders v. United States,3 holding



   2
       U.S. CONST. amend. VI.
   3
       425 U.S. 80 (1976).
                                            5
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.”4 The Court

discussed “the rule,” a sequestration order barring a witness from discussing the case

with anyone and removing them from the courtroom while other witnesses are

testifying, and found that its rationale failed to support applying it to party witnesses.

The court stated:

               A sequestration order affects a defendant in quite a different
               way from the way it affects a nonparty witness who
               presumably has no stake in the outcome of the trial. A
               nonparty witness ordinarily has little, other than his own
               testimony, to discuss with trial counsel; a defendant in a
               criminal case must often consult with his attorney during the
               trial. Moreover, “the rule” accomplishes less when it is
               applied to the defendant rather than a nonparty witness,
               because the defendant as a matter of right can be and usually
               is present for all testimony and has the opportunity to
               discuss his testimony with his attorney up to the time he
               takes the witness stand.5

The Court also noted that there were other ways to deal with improper coaching,

including rigorous cross-examination designed to ferret out those attorneys who cross




   4
       Id. at 91.
   5
       Id. at 88.
                                             6
the ethical line between discussing testimony and seeking to influence it.6



         The Court clarified the confines of the Geders rule in Perry v. Leeke,7 holding

that an order barring the defendant from consulting with his attorney during a recess

lasting “a few minutes” passed constitutional muster. The Court indicated that during

such recesses “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.”

The Perry opinion notably also held that a showing of prejudice is not an essential

component of establishing a violation of the Geders rule.8

         Finally, we addressed the Geders rule in United States v. Conway,9 where we

held that “depriving a criminal defendant of the right to consult with counsel during

court recesses- regardless of how brief the recesses may be- violates the constitutional

right to effective assistance of counsel.”10 Consistent with the teachings of Perry, this

broad language may not be read to cover all recesses, but it still reflects the view of this

   6
        Id. at 89-91 & n.3.
   7
        488 U.S. 272 (1989).
   8
        Id. at 278-79.
   9
    632 F.2d 641 (5th Cir. 1980), overruled by Crutchfield v. Wainwright, 803 F.2d
1003 (11th Cir. 1986).
   10
        Id. at 645.
                                             7
circuit that the constitutional right to counsel warrants the most zealous protection.

        We find the situation at bar indistinguishable from Geders. On two occasions

the judge prohibited Troy Marks from discussing the case with his counsel during

recesses, despite the fact that both recesses involved long periods of time akin to or in

excess of the overnight recess in Geders. As recognized by the Supreme Court:

              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.11

        By preventing Marks from talking with his attorney during the overnight

recesses, the court deprived Marks of “the guiding hand of counsel at every step in the

proceedings against him.”12 The court’s order was not limited to Marks’ on-going

testimony and the significance, if any, of such a limitation is not before us.

        The government asserts that Geders provides no relief for Marks because neither

he nor his counsel objected to the court’s order. It cites Crutchfield v. Wainwright,

where our brethren in the Eleventh Circuit held that “a defendant or the defendant’s



   11
        Geders, 425 U.S. at 88.
   12
        Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
                                           8
counsel must indicate, on the record, a desire to confer in order to preserve a

deprivation of assistance of counsel claim.”13 We need not address the adoption of

such a rule in this circuit, however, because the record reflects that Marks’ counsel,

before both recesses, made clear his desire to confer with Marks before court resumed

and was ordered to do otherwise.

          Initially, after the court recessed during Marks’ direct testimony, the court

ordered Marks not to discuss the case with anyone. Marks’ counsel countered, “I can

talk to him, Judge,” to which the court responded “no sir, you can’t.” While counsel

subsequently agreed to comply with the court’s order by stating “very well,” his initial

statement in response to the judge’s order underscored his desire to confer with his

client.

          With respect to the sequestration order given during the cross-examination of

Marks, counsel also made clear his desire to confer with his client. After the court

again informed Marks not to speak with anyone about the case, a discussion ensued

about problems the attorneys were having with seeing their clients at the jail. The court

told counsel that the only reason for speaking with Marks would be to discuss the case,

to which counsel responded “exactly.” This clearly evinced counsel’s desire to confer

with Marks about the case over the weekend, especially in light of the court’s

   13
          803 F.2d 1103, 1109 (11th Cir. 1986).
                                            9
instruction directing counsel not to speak with Marks until after the conclusion of his

testimony. This proscription on trial counsel’s ability to confer with his client, as much

as either of the two deemed necessary, is constitutionally unacceptable.



      We do not find these requests inadequate merely because counsel failed to

preface his remarks with the magic words, “I object,” or because counsel, during the

second colloquy, also expressed concern over Marks’ inability to see his family. The

record clearly reflects counsel’s desire to confer with his client and the court’s

directives restricting Marks’ access to his counsel during the overnight and weekend

recesses. We find these restrictions violative of Troy Marks’ sixth amendment right

to the assistance of counsel.

      II.    Pickens and Brown’s Challenge to Marks’ Sequestration Order

      Appellants Pickens and Brown also urge error in the court’s orders barring Troy

Marks from speaking with his counsel. They claim that because of their “alleged close

association with Troy marks in the conspiracy,” any violation of his sixth amendment

rights prejudiced their right to a fair trial and due process. The right to the assistance

of counsel, however, is a personal right and Pickens and Brown lack standing to urge




                                           10
its violation.14

        III.   Remaining Issues on Appeal

        A detailed review of the record, oral arguments of counsel, and the relevant

authorities persuades that the remaining issues raised by appellants present no grounds

for reversible error. Accordingly, for the reasons stated herein, the convictions of Troy

Marks are REVERSED and the matter is remanded for further appropriate proceedings.

The sentence given to Patrick Johnson and the convictions and sentences of Shawn

Bernard Woods, Kevin Jermaine Pickens, Ameile Brown, and Craig Anthony Marks

are AFFIRMED.




   14
     See Faretta v. California, 422 U.S. 806, 819-20 (1975); United States v. Partin,
601 F.2d 1000 (9th Cir. 1979).
                                           11
RHESA HAWKINS BARKSDALE, specially concurring:

       I concur in the result reached by the majority and in all but part I. of the

“Analysis” in its opinion. For part I., which concerns the denial of assistance of

counsel for Troy Marks, I cannot agree with the ratio decidendi, especially the

conclusion that the issue was adequately raised (preserved) in district court. It goes

without saying that Troy Marks’ counsel should have stated far more clearly his

position (objection) concerning not being allowed to confer with his client during the

two lengthy recesses.       On the other hand, even reviewing the issue in the light most

deferential to the Government and, accordingly, assuming that the issue was not

preserved in district court; assuming that only a plain error standard of review would

apply (discretion to correct obvious error that affects substantial rights and, inter alia,

the fairness of the proceeding); and even assuming that, based on this record, a Geders

violation, for the two instances at issue, did not automatically affect a substantial right

for purposes of such review, I would still reverse Troy Marks’ conviction because, on

this record, there was an obvious error that affected his substantial rights (Sixth

Amendment assistance of counsel) and the fairness of this proceeding and, as a result,

it is within our discretion to correct this error. See, e.g., United States v. Olano, 507

U.S. 725, 732-37 (1993); Perry v. Leeke, 488 U.S. 272, 278-80 (1989); Geders v.

United States, 425 U.S. 80, 88-91 (1976).
