[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13236 JULY 11, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00154-CR-J-32-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALONZA HALL,
a.k.a. Bubba,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 11, 2006)
Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.
PER CURIAM:
Alonza Hall appeals his conviction and 360-month sentence for conspiracy
to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A). Hall argues that the district court’s failure to remedy
his placement in isolation in an out-of-county jail during the trial constituted a
constructive denial of his right to consult with counsel and a structural error that
requires reversal. Hall further argues that the district court abused its discretion by
denying his request for a jury nullification instruction and by refusing to permit
him to argue for jury nullification in his closing argument.
I.
We review de novo a defendant’s claim that his Sixth Amendment rights
were violated. See United States v. Yates, 438 F.3d 1307, 1311 (11th Cir. 2006)
(citation omitted) (en banc). However, we review constitutional arguments raised
for the first time on appeal for plain error. See United States v. Munoz, 430 F.3d
1357, 1375 (11th Cir. 2005)(citation omitted). To establish plain error, an
appellant must show “(1) error, (2) that is plain, and (3) that affects [the
appellant’s] substantial rights.” Id. (citation and quotation omitted). “If all three
conditions are met, an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (citation and quotation omitted).
“In all criminal prosecutions, the accused shall enjoy the right . . . to have
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the Assistance of Counsel for his defence.” U.S. CONST. amend. VI. “[T]he right
to counsel is the right to the effective assistance of counsel.” McMann v.
Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed.2d 763
(1970).
“To the extent that [any] conflict [exists] between a defendant’s right to
consult with his attorney during a long overnight recess in the trial, and the
prosecutor’s desire to cross-examine the defendant without the intervention of
counsel, . . . the conflict must, under the Sixth Amendment, be resolved in favor of
the right to the assistance and guidance of counsel.” Geders v. United States, 425
U.S. 80, 91, 96 S.Ct. 1330, 1337, 47 L.Ed.2d 592 (1976) (citation omitted). The
“actual or constructive denial of the assistance of counsel altogether is legally
presumed to result in prejudice.” Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346,
354, 102 L.Ed.2d 300 (1988) (citation and quotation omitted). Furthermore, “a
trial is unfair if the accused is denied counsel at a critical stage of his trial.” Id.
(citation and quotation omitted). The “[g]overnment violates the right to effective
assistance when it interferes in certain ways with the ability of counsel to make
independent decisions about how to conduct the defense.” Perry v. Leeke, 488
U.S. 272, 280, 109 S.Ct. 594, 599, 102 L.Ed.2d 624 (1989).
We have held that court orders banning communication between a defendant
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and his counsel during a 15-minute court recess violated the defendant’s Sixth
Amendment right to counsel. Bova v. Dugger, 858 F.2d 1539, 1540 (11th Cir.
1988). However, we have noted that a district court does not need to recess
proceedings or interrupt or terminate a bench conference whenever a defendant
wishes to communicate with his counsel. United States v. Vasquez, 732 F.2d 846,
848 (11th Cir. 1984). There is no constitutional violation as long as a defendant is
allotted “reasonable opportunity to consult with his attorney[.]” Id. “The defendant
must show that the prohibition actually prevented the opportunity to confer with
counsel.” Crutchfield v. Wainwright, 803 F.2d 1103, 1110 (11th Cir. 1986)(en
banc).
We cannot conclude in this case that the district court prevented counsel’s
opportunity to consult with his client. Shortly before opening statements, Hall’s
counsel called attention to the fact that Hall had been placed in isolation at the jail
and denied telephone privileges, and counsel alluded to the apparent distance to the
jail. Counsel moved to have the court order the marshal to hold Hall in the local
jail that night. However, counsel did not suggest an inability to communicate with
his client; he only suggested he might have to drive out there to do so. The trial
judge indicated he would check into the possibility of holding Hall in the local jail.
Opening statements (by both the government and Hall) followed, and extensive
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direct examination of the Government’s first witness. During that examination, a
technical problem arose that prompted the court to adjourn the trial early, shortly
after 4 p.m. Counsel did not inquire again about Hall’s overnight
accommodations, and did not request time to communicate with Hall before he was
returned to jail for the evening. The next day, after conclusion of the
Government’s first witness, the court reported to Hall that it had inquired of the
marshal concerning relocating Hall but had no answer yet. The court indicated a
willingness to accommodate counsel’s need for communication, suggesting a time
at the close of the day. At the end of that second day, the court inquired whether
counsel needed time to consult. Counsel responded that he needed 15 minutes.
The court granted 30 minutes. We cannot conclude that the district court erred; the
court did not preclude counsel’s communication with his client. See also United
States v. Lucas, 873 F.2d 1279, 1280-81 (9th Cir. 1989) (holding that a defendant’s
pretrial detention in a facility 120 miles away from his counsel did not constitute
an actual or constructive denial of assistance of counsel); Caldwell v. United
States, 651 F.2d 429, 433 n.5 (6th Cir. 1981) (recognizing that the defendant never
explained how the geographic distances between his counsel and the defendant’s
custodial locations and between counsel and the trial location constituted
ineffective assistance of counsel); United States v. Kirk, 534 F.2d 1262, 1281 (8th
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Cir. 1976), vacated in part on other grounds, 723 F.2d 1379 (8th Cir. 1983) (noting
that the inconvenience of attorneys traveling 30 miles to communicate with
defendant was not an unconstitutional denial of effective assistance of counsel);
Rees v. Peyton, 341 F.2d 859, 864 (4th Cir. 1965) (finding no prejudice was
inflicted upon the defendant by his incarceration during trial in a federal
penitentiary 50 miles away because the court ensured that the defendant had
reasonable access to his counsel).
II.
We review a district court’s refusal to give a requested jury instruction for
abuse of discretion. United States v. Roberts, 308 F.3d 1147, 1153 (11th Cir.
2002). “A trial judge’s refusal to give a requested instruction will warrant a new
trial only if (1) the requested instruction was substantively correct, (2) the court’s
charge to the jury did not cover the gist of the instruction, and (3) the failure to
give the instruction substantially impaired the defendant’s ability to present an
effective defense.” Id.
Justice Holmes recognized long ago, “the jury has the power to bring in a
verdict in the teeth of both law and facts.” Horning v. District of Columbia, 254
U.S. 135, 137-40, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920), abrogation on other
grounds recognized in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132
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L.Ed.2d 444 (1995). We “acknowledge the jury’s de facto power to refuse to
apply the law as instructed by the court, exercise of such power is in dereliction of
the jury’s sworn duty.” United States v. Funches, 135 F.3d 1405, 1408 (11th Cir.
1998). We have held that a criminal defendant is not entitled to a jury instruction
which alerts the jury of this de facto power. United States v. Trujillo, 714 F.2d
102, 105 (11th Cir. 1983). Furthermore, we have held “that defense counsel may
not argue jury nullification during closing argument.” Id. at 106. According to our
prior-precedent rule, “[o]nly the Supreme Court or this Court sitting en banc can
judicially override a prior panel decision.” United States v. Wright, 392 F.3d
1269, 1280 (11th Cir. 2004) (internal quotations and citations omitted), cert.
denied, 125 S.Ct. 1751 (2005).
We conclude that the district court’s decision on jury nullification was not
an abuse of discretion because our precedent has held that a criminal defendant is
not entitled to either an instruction or an argument for jury nullification.
Accordingly, we affirm Hall’s conviction and sentence.
AFFIRMED.1
1
Hall’s motions to stay and to have his attorney withdraw and submit a pro se brief are
denied. Because Hall’s attorney filed an initial brief, Hall cannot now add new issues that we
not raised in that brief. See United States v. Hembree, 381 F.3d 1109, 1110 (11th Cir. 2004)
(citing United States v. Levy, 379 F.3d 1241 (11th Cir. 2003), for proposition that new issues
cannot be raised in a supplemental brief if they were not raised in initial brief).
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