United States v. Torres ( 2021 )

Case: 20-50092 Document: 00515867710 Page: 1 Date Filed: 05/19/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50092 May 19, 2021
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Bryan Torres,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-1212-2
Before Haynes, Graves, and Willett, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
Bryan Torres was convicted of conspiracy to possess with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)
and § 846, for which he was sentenced to 240 months of imprisonment.
Torres appeals his conviction and sentence. We conclude that Torres was
deprived of his Sixth Amendment right to the assistance of counsel when he
was barred from all communication with his attorney during an overnight
recess at trial. We REVERSE and REMAND for further proceedings.
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No. 20-50092
I. Background
This case arose from a narcotics trafficking and distribution
investigation involving a violent street gang known as the Almighty Latin
Kings and Queens Nation (“Latin Kings”). Billy Ramirez was the target of
the investigation, and, in June 2014, wiretaps were placed on his phones,
providing access to voice and text conversations. Bryan Torres was a member
of the Latin Kings, and purportedly a methamphetamine supplier for
Ramirez.
In October 2015, Torres and nine co-defendants were charged with
conspiracy to possess with intent to distribute methamphetamine in violation
of 21 U.S.C. § 841(a)(1) & (b)(1)(A) and § 846. Torres pled not guilty, and
trial commenced on March 21, 2017. During the first and second days of trial,
the Government presented the testimonies of multiple witnesses who were
involved in the conspiracy. On the second day of trial, the last government
witness was excused at 7:09 P.M.
Subsequently, defense counsel informed the district court that Torres
intended to testify, expressing that it would take “several hours” to complete
direct examination. At the court’s direction, Torres took the stand at 7:13
P.M. After approximately fifty minutes of direct examination, the trial judge
declared an overnight recess and dismissed the jury at 8:03 P.M. The district
court issued a sequestration order, and the following exchange occurred:
Court: All right. Mr. Torres, let me give you some instructions.
Now that you are testifying, you are not to speak to anyone
about your testimony directly or indirectly. You may not even
speak to [counsel], not through your mother, not directly to
[counsel], not directly through any other members of the Latin
Kings that have been in this courtroom throughout this time.
You are to talk to no one about your testimony. Neither take
advice, neither talk about it, neither discuss it, neither ask
questions, anything of that nature. Am I clear?
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Torres: Yes, ma’am.
Court: Okay.
Counsel: I’m not sure, did you just say I cannot talk to my
client?
Court: You may not speak to him. Now that he’s started his
testimony, you may not consult with him anymore, [counsel],
period. You cannot [a]ffect his testimony in any way from this
point forward until he’s finished off the—off the stand. So, no,
you may not discuss anything with him at all at this point.
Counsel: Thank you.
Court adjourned at 8:06 P.M. and resumed at 9:42 A.M. the next day. Direct
examination continued, and Torres was ultimately excused at 12:17 P.M. on
the third day of trial. At the end of the third day, the jury found Torres guilty
of conspiracy to possess with intent to distribute methamphetamine.
At sentencing, the district court applied a four-level aggravating role
adjustment for Torres’ role as an organizer or leader of criminal activity
involving more than five participants or that was otherwise extensive under
U.S.S.G. § 3B1.1(a). The court imposed a within-Guidelines sentence of 240
months of imprisonment and five years of supervised release. Torres timely
appealed.
II. Legal Analysis
Torres appeals his conviction and sentence on the following grounds:
(1) his Sixth Amendment right to counsel was violated when he was barred
from speaking with his attorney during an overnight recess; (2) his Sixth
Amendment right to confrontation was violated when the district court
limited his cross-examination of a government witness; and (3) the
aggravating role adjustment was erroneously applied. Because we agree with
Torres on the first issue, we do not address his other arguments.
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The Sixth Amendment guarantees a criminal defendant the right to
the assistance of counsel for his defense. U.S. Const. amend. VI. In Geders v.
United States, 425 U.S. 80, 91 (1976), the Supreme Court held that an order
preventing a testifying defendant from consulting with his counsel “about
anything” during a 17-hour overnight recess between his direct and cross-
examination violated his Sixth Amendment right to the assistance of counsel.
But the Supreme Court narrowed the Geders rule in Perry v. Leeke, 488 U.S.
272, 284–85 (1989), holding that an order barring consultation with counsel
during a short recess between a defendant’s direct and cross-examination
that only lasted “a few minutes” did not violate the Sixth Amendment.
Here, the district court prohibited Torres from speaking with his
counsel during a 13-hour overnight recess declared in the middle of his direct
examination, right before the end of the trial the next day. The facts of this
case fall squarely within the Geders rule; that is, a trial court may not bar a
testifying criminal defendant from all communication with his attorney
during an overnight recess. See United States v. Johnson, 267 F.3d 376, 379
(5th Cir. 2001) (concluding that sequestration orders prohibiting
communication between defendant and counsel during an overnight recess
and a weekend recess were “indistinguishable from Geders”). As the
Supreme Court recognized, such a long interruption implicates “the
defendant’s right to unrestricted access to his lawyer for advice on a variety
of trial-related matters that is controlling in the context of a long recess.”
Perry, 488 U.S. at 284 (citing Geders, 425 U.S. at 88). Though discussions
during an overnight recess “will inevitably include some consideration of the
defendant’s ongoing testimony,” they will encompass “matters that the
defendant does have a constitutional right to discuss with his lawyer, such as
the availability of other witnesses, trial tactics, or even the possibility of
negotiating a plea bargain.” Id. “[T]he role of counsel is important precisely
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because ordinarily a defendant is ill-equipped to understand and deal with the
trial process without a lawyer’s guidance.” Geders, 425 U.S. at 88.
Having found a violation, we next consider whether reversal is
required, or whether we should conduct plain error analysis. The
Government argues that we should review the violation for plain error
because defense counsel did not expressly object to the sequestration order
at trial. However, we need not decide whether the objection was preserved.
Even under plain error review, the Geders violation requires reversal here.
To succeed under plain error review, a defendant must show (1) a
forfeited error (2) that is clear or obvious, and (3) that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, we have the discretion to correct the error, but that discretion
should be exercised only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings. Id. The Government concedes the
first and second prongs, so we only address the third and fourth prongs of the
plain error review test.
To affect a defendant’s “substantial rights,” the error must be
“prejudicial,” which means that “there must be a reasonable probability that
the error affected the outcome of the trial.” United States v. Marcus, 560 U.S.
258, 262 (2010). Considering both the caselaw and the facts of this case, we
conclude that the district court’s sequestration order was prejudicial. The
Supreme Court has observed that there are “circumstances that are so likely
to prejudice the accused that the cost of litigating their effect in a particular
case is unjustified.” United States v. Cronic, 466 U.S. 648, 658 (1984). One
“obvious” circumstance is the “complete denial of counsel”; that is, when
“the accused is denied counsel at a critical stage of his trial.” Id. at 659. The
Supreme Court and this Circuit have recognized that a defendant who is
barred from all communication with his attorney during an overnight recess
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is denied the assistance of counsel during a “critical stage” of his trial. See id.
at n.25; United States v. Pleitez, 876 F.3d 150, 158 & n.5 (5th Cir. 2017). The
“absence of counsel at critical stages of a defendant’s trial undermines the
fairness of the proceeding and therefore requires a presumption that the
defendant was prejudiced by such deficiency.” Burdine v. Johnson, 262 F.3d
336, 341 (5th Cir. 2001) (en banc); see Perry, 488 U.S. at 278–79 (noting that
“a showing of prejudice is not an essential component of a violation of the
rule announced in Geders”); Strickland v. Washington, 466 U.S. 668, 692
(1984) (“Actual or constructive denial of the assistance of counsel altogether
is legally presumed to result in prejudice. So are various kinds of state
interference with counsel’s assistance.”).
Having recognized that a Geders violation is presumptively prejudicial,
we now consider whether the sequestration order actually affected Torres’
substantial rights. Here, Torres was barred from all communication with his
attorney during an overnight recess. This deprivation of the assistance of
counsel affected his substantial rights, especially given that it was the last
night before the end of trial. It was the last opportunity to discuss important
case-related matters, such as conducting further examination of witnesses,
closing arguments, a general recapitulation of how trial was going so far, and
even the possibility of negotiating a plea bargain. See Perry, 488 U.S. at 284.
Indeed, we have difficulty envisioning a scenario in which an overnight ban
just before the end of trial of all communication between a defendant and his
attorney would not be prejudicial. See Mickens v. Taylor, 535 U.S. 162, 166
(2002) (“[W]here assistance of counsel has been denied entirely or during a
critical stage of the proceeding . . . the likelihood that the verdict is unreliable
is so high that a case-by-case inquiry is unnecessary.”) (citing, inter alia,
Geders). We conclude that Torres meets the third prong of plain error review.
Under the fourth prong, we have discretion to correct the error only
if it seriously affects the fairness, integrity or public reputation of judicial
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proceedings. Though “the fourth prong is not automatic if the other three
prongs are met,” we must employ discretion “in those circumstances which
a miscarriage of justice would otherwise result.” United States v. Escalante-
Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc) (internal quotation marks
and citation omitted). We have recognized that “a defendant must have the
actual assistance of counsel at every critical stage of a criminal proceeding for
the court’s reliance on the fairness of that proceeding to be justified.”
Burdine, 262 F.3d at 345. Torres was deprived of the assistance of his
attorney during the last overnight recess, and the “absence of counsel at
critical stages of a defendant’s trial undermines the fairness of the
proceeding.” Id. at 341; see Johnson, 267 F.3d at 381 (Barksdale, J.,
concurring) (stating that under plain error review, conviction should be
reversed because banning defendant from communicating with counsel
during an overnight recess and a weekend recess was “obvious error that
affected his substantial rights (Sixth Amendment assistance of counsel) and
the fairness of this proceeding”).
We also note that this error could have been avoided. After the last
government witness was excused around 7 P.M., defense counsel informed
the court that Torres intended to testify and that his direct examination
would take “several hours.” Rather than declaring the overnight recess then,
the court instead directed Torres to take the stand late at night, declared a
recess approximately fifty minutes later, and barred any subsequent
overnight discussion between Torres and his attorney before the last day of
trial. While trials should be expediently adjudicated, and the risk of counsel
improperly coaching his client in preparation for cross-examination should
be avoided, a criminal defendant is nevertheless entitled to a fair trial. And a
fair trial necessarily includes the assistance and guidance of his counsel
during an overnight recess. See Geders, 425 U.S. at 91 (observing that the
conflict between defendant’s right to consult with his attorney during an
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overnight recess and prosecutor’s desire to cross-examine defendant without
intervention of counsel “must, under the Sixth Amendment, be resolved in
favor of the right to the assistance and guidance of counsel”). Thus, we
exercise our discretion and conclude that Torres’ deprivation of the
assistance of his counsel during a critical stage at trial warrants correction
under plain error review.
III. Conclusion
For the foregoing reasons, we REVERSE and REMAND for further
proceedings.
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