884 F.3d 1103
11th Cir.2018Background
- Skillern and Nelson operated Own Gold LLC, took >$7.3 million from customers for gold sales, but delivered only 150 ounces; they were indicted for mail and wire fraud, related conspiracies, and money offenses.
- Skillern testified over three days; at the end of day one his counsel asked to speak with him during the overnight recess “about matters other than his testimony.” The court granted that limited permission and barred discussion of Skillern’s testimony that night.
- The jury convicted both defendants on multiple counts; Skillern was sentenced to 120 months, Nelson to 96 months.
- On appeal Skillern argued the court’s restriction violated his Sixth Amendment right to assistance of counsel (relying on Geders), and that any such error was structural requiring automatic reversal.
- The government contended the limitation was invited by Skillern’s own counsel and, in any event, the record shows no desire to discuss testimony during the recess; alternative standards (plain error, harmlessness) were raised.
- The Eleventh Circuit affirmed, holding under its en banc Crutchfield rule that the record does not show an actual deprivation of counsel because neither Skillern nor counsel intended to confer about testimony during the recess.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court’s bar on discussing testimony during an overnight recess violated the Sixth Amendment | Skillern: Geders requires the right to consult counsel about anything during overnight recesses; the restriction prevented assistance regarding testimony | Government: The limitation mirrored counsel’s request; counsel invited or acquiesced to the restriction; no showing they intended to discuss testimony | Court: No Sixth Amendment violation shown because record lacks evidence that Skillern or counsel desired to discuss testimony during the recess (Crutchfield rule) |
| Whether a Geders-type restriction is structural error requiring automatic reversal | Skillern: Such deprivations are structural errors not subject to harmless-error review | Government: Not addressed as structural here; alternatively invited error/plain error doctrines apply | Court: Did not decide categorically; noted circuit split and precedent but resolved case on absence of actual deprivation, leaving structural-error question open |
| Applicability of invited-error and plain-error doctrines where defense counsel requested the restriction and made no objection | Government: Counsel invited the error; appellate review should be limited (plain error or barred) | Skillern: No forfeiture/waiver; structural-error analysis would obviate need to object | Court: Declined to resolve interplay definitively; relied on Crutchfield’s actual-deprivation requirement instead of applying invited/plain-error doctrines here |
| Sufficiency of the evidence and good-faith reliance on counsel | Skillern & Nelson: Argued acquittal required based on good-faith reliance on attorney advice and insufficient evidence of intent to defraud | Government: Evidence of misrepresentations, receipts, deliveries, and proceeds disproved good-faith defense and supported convictions | Court: Rejected sufficiency challenges; affirmed convictions as supported by the record |
Key Cases Cited
- Geders v. United States, 425 U.S. 80 (1976) (overnight recess ban on consulting counsel violates Sixth Amendment)
- Perry v. Leeke, 488 U.S. 272 (1989) (short recess prohibition on consulting counsel did not violate Sixth Amendment)
- Crutchfield v. Wainwright, 803 F.2d 1103 (11th Cir. en banc 1986) (actual-deprivation rule: defendant must show they intended to confer and were prevented)
- United States v. Romano, 736 F.2d 1432 (11th Cir. 1984) (restriction on consulting about testimony during multi-day recess found problematic)
- United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015) (court found Sixth Amendment violation for restricting counsel conferral during mid-trial breaks)
- United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (discusses structural error concept and impact on harmless-error review)
- Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) (distinguishes structural errors from trial errors and explains harmless-error framework)