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United States v. Nelson

United States Court of Appeals, Eleventh Circuit

March 8, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,

         Appeals from the United States District Court for the Middle District of Florida D.C. Docket No. 8:14-cr-00058-MSS-TBM-2

          Before MARCUS and NEWSOM, Circuit Judges, and MOORE, [*] District Judge.


         Defendants Michael Skillern and Jon Craig Nelson appeal their convictions for mail fraud, wire fraud, and associated conspiracies, all of which arose out of their efforts to peddle non-existent gold to the public through their company, Own Gold LLC. Although Skillern and Nelson have raised a number of issues on appeal, our focus in this opinion is on Skillern's contention that the district court deprived him of his Sixth Amendment right to the "Assistance of Counsel" when, just before an overnight recess that occurred while Skillern was on the stand, the court granted his lawyer's request to speak to him "about matters other than his testimony." Skillern now insists that the Constitution required the district court to go farther and to specify that he could speak to his attorney about any topic, including his testimony.

         Because Skillern's attorney proposed the very limitation of which he now complains by asking to speak to Skillern "about matters other than his testimony, " we are presented with several questions about the nature of and relationship among the various "error" doctrines that pervade federal criminal law-trial error, harmless error, structural error, plain error, and invited error. In the end, we needn't definitively resolve those questions, because Skillern's Sixth Amendment argument fails for the separate and more basic reason that, in the circumstances of this case, the district court committed no constitutional error. Under this Court's en banc decision in Crutchfield v. Wainwright, 803 F.2d 1103 (11th Cir. 1986), because the record does not reflect that Skillern (or his lawyer) actually wanted or planned to discuss his testimony during the recess, he was not deprived of his Sixth Amendment right to the assistance of counsel.


         In 2011, Skillern and Nelson started a company called Own Gold LLC for the purpose of mining, processing, and selling gold. Own Gold's website and marketing materials represented that it was a "gold producer" with mining claims worth some $81 billion. For the next two years Own Gold used a telemarketing firm to execute contracts with hundreds of people who believed that they were actually buying gold. Those contracts specified the amounts of gold purchased and prices, and represented that customers could retrieve their gold ore "at any time after the execution and payment of consideration" by "appear[ing] in person" at the mining site. Otherwise, Own Gold had 360 days to deliver the gold; if it failed to do so, it would refund the purchase price. All told, Own Gold accepted 441 orders and collected more than $7.3 million from customers.

         As it turns out, Own Gold's representations about its gold production were, well, misrepresentations. From its inception in 2011 until it stopped executing sales contracts with customers in 2014, Own Gold appears to have produced less than six ounces of gold from its own mining operations. In light of its near-total failure to produce any gold from its own mines, Own Gold resorted to trying to fulfill customers' orders by purchasing gold from third parties. Even so, despite taking orders for 5, 912 ounces of gold and accepting more than $7.3 million from its 351 customers, Own Gold ultimately delivered a mere 150 ounces-valued at $241, 000-to 20 customers. Own Gold refunded only $35, 022 to four customers; none of the other orders was either fulfilled or refunded. Meanwhile, Skillern collected approximately $488, 000, Nelson bagged about $300, 000, and Own Gold's telemarketing firm netted a whopping $5.1 million over a two-year period.

         In February 2014, Skillern and Nelson were indicted for mail fraud, wire fraud, conspiracy to commit mail and wire fraud, conspiracy to launder money, and illegal money transactions in connection with their operation of Own Gold. As particularly relevant here, Skillern testified in his own defense at trial, and his testimony spanned three days. At the end of his first day on the stand, after the jury was excused for the afternoon, his attorney asked the district court, "Your Honor, may I speak to Mr. Skillern about matters other than his testimony this evening?" The court granted the request, stating, "Yes, anything about the proceeding and so forth, who's coming, who is not coming, that's fine, but just not his testimony or his impending testimony." Skillern's attorney responded, "Fine, Your Honor." Nothing more was said about the issue that day.[1]

         The jury found both Skillern and Nelson guilty of four counts of mail fraud, four counts of wire fraud, one count of conspiracy to commit mail fraud, and one count of conspiracy to launder money. Skillern was sentenced to 120 months in prison, and Nelson was sentenced to 96 months.

         On appeal, Skillern principally asserts that the district court deprived him of the assistance of counsel in violation of the Sixth Amendment. According to Skillern, the court should have responded to his attorney's request to speak to him about "matters other than his testimony" by stating, sua sponte, that Skillern and his attorney could discuss any subject-including his testimony-during the overnight break. We now turn to a careful consideration of that issue.


         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." U.S. Const. amend. VI. The Supreme Court first considered the parameters of that right in the context of trial recesses that occur during a criminal defendant's testimony in Geders v. United States, 425 U.S. 80 (1976). The Court held there that a defendant's Sixth Amendment rights were violated when he was precluded from consulting with his attorney "about anything" during an overnight recess between his direct- and cross-examination. Id. at 91. Similarly, in United States v. Romano, this Court found a Sixth Amendment violation when a district court allowed a defendant to speak with his lawyer about some topics, but not his testimony, during a five-day recess in the middle of his testimony. 736 F.2d 1432, 1434-38 (11th Cir. 1984), vacated in part on other grounds, 755 F.2d 1401 (11th Cir. 1985). More recently, though, the Supreme Court held in Perry v. Leeke that a district court did not violate the Sixth Amendment when it directed a defendant not to consult with his attorney during a 15-minute recess. 488 U.S. 272, 280-85 (1989).

         Where, then, does this case fall along the spectrum marked out by Geders, Romano, and Perry? The limitation on lawyer-client communication here was "worse, " so to speak, than in Perry, in which the Supreme Court found no Sixth Amendment violation, in that its duration was longer: there, the recess lasted only minutes; here, it spanned an entire night. In two respects, though, the limitation in this case was not as bad as in Geders and Romano, both of which found violations: the limitation here was more narrowly circumscribed than in Geders, in that Skillern was permitted to talk to his lawyer about issues other than his testimony; and the limitation here persisted for only a fraction of the five days at issue in Romano. So we're somewhere in the middle: Does it violate the Sixth Amendment to prevent a criminal defendant from discussing his testimony, but not other topics, during a single overnight recess? Although no existing precedent resolves that precise question, even the Government seems to concede that ...

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