John H. Bailey v. Walter Redman, Warden, Delaware Correctional Center, and Richard R. Wier, Attorney General of the State of Delaware · 657 F.2d 21

holding there was no Sixth Amendment violation where the defendant "fail[ed] to demonstrate that he was actually 'deprived' of his right to consult with his attorney"

How later courts described this case

holding there was no Sixth Amendment violation where the defendant "fail[ed] to demonstrate that he was actually 'deprived' of his right to consult with his attorney"
noting the recognized distinction between an actual deprivation of the Sixth Amendment right to counsel (which is a “predicate to relief”) and “the ‘prejudice’ that may result therefrom”
no deprivation of right to counsel from order barring defendant from discussing ongoing testimony with anyone during overnight recess because no objection and no showing that defend *278 ant would have conferred with counsel but for order
distinguishing "between the 'deprivation' of a right and the 'prejudice' that may result therefrom”

Written by the judges who cited it.

The opinion

MEANOR, District Judge,

concurring:

I join all but paragraphs seven and eight of the per curiam opinion. I believe that they are superfluous and that there is no need to discuss, much less reject, the issue of prejudice in connection with an instruction that violates Geders. See United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981). In this case it is clear that the instruction did not deprive appellant of a right he sought to exercise. There was no objection to the instruction and there is no showing that, during the overnight recess, appellant desired to consult with counsel or counsel desired to consult with him.

I also add that in this case we do not reach the question whether Geders is to be applied in post-conviction proceedings to instructions during trials that preceded that decision. The Fourth Circuit has held that Geders is not to be so applied. United States v. Horger, 547 F.2d 1204 (4th Cir.), cert. denied, 434 U.S. 840 , 98 S.Ct. 135 , 54 L.Ed.2d 104 (1977). In this Circuit any issues concerning the retroactive application of Geders will have to await resolution on another day.