Ninth Circuit Reverses Drug Conviction

A government-friendly panel of the Ninth Circuit held today that it violates the 6th Amendment to restrict communication between a defense attorney and his or her client during an overnight trial recess.  (USA v. Sandoval-Mendoza, No. 04-10118) (Goodwin, O'Scannlain, Kleinfeld).  The case involves a defendant who testified that he was mentally impaired by a large brain tumor and unfairly entrapped by undercover officers.  When the court broke for the night in the middle of the defendant's testimony, defense counsel was ordered not to discuss his client's testimony with his client during the recess in order to avoid coaching. Other topics of conversation were allowed.  The Ninth Circuit held that the district court's communication restriction violated Geders v. United States, 425 U.S. 80 (1976), even though that case involved a complete ban on communication between counsel and client during an overnight recess.  The Ninth Circuit also concluded that the trial court improperly excluded expert testimony on the defendant's brain tumor.  Marc Zilversmit represented the defendant at trial and on appeal.