Opposition Brief — Suarez v. United States

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Sy GUILLERMO SUAREZ, PETITIONER

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AG Ea UNITED STATES OF AMERICA

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es . we KENNETH W. STARR

a ie Solicitor General

ee SHIRLEY D. PETERSON

4 ™ | . Assistant Attorney General :

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x ite. | ALAN HECHTKOPF

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QUESTIONS PRESENTED

1. Whether the district court violated Fed. R. Crim. P.

30 when, after hearing closing arguments, it supplemented

a proposed jury instruction that it had provided to the par-

ties during the charge conference.

2. Whether the district court abused its discretion

when it denied petitioner’s counsel’s request for additional

time to prepare for closing argument.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases: ~

Carter v. United States, 373 F.2d 911 (9th Cir.

eT EEE See ee ny ee ee

Geders v. United States, 425 U.S. 80 (1976) .......

Hamling v. United States, 418 U.S. 87 (1974) .....

Johnson v. United States, 291 F.2d 150 (8th Cir.),

cert. denied, 368 U.S. 880(1961) ..............

Morris v. Slappy, 461 U.S. 1 (1983) .............

Perry v. Leeke, 109 S. Ct. 594 (1989) ............

Ungar v. Sarafite, 376 U.S. 575 (1964) ...........

United States v. Bowman, 798 F.2d 333 (8th Cir

1986), cert. denied, 479 U.S. 1043 (1987) .......

United States v. Buishas, 791 F.2d 1310 (7th Cir.

AER SE Ry Se

United States v. Cardall, 550 F.2d 604 (10th Cir.

1976), cert. denied, 434 U.S. 841 (1977) ........

United States v. Clarke, 468 F.2d 890 (Sth Cir.

EUR OR eee ae ee a

United States v. Frady, 456 U.S. 152 (1982) ......

United States v. Fusaro, 708 F.2d 17 (ist Cir.), cert.

Gemeee, 464 U.S. CIGBS) 2... nc ccc ccc eccccscss

United States v. McLain, 823 F.2d 1457 (11th Cir.

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IV

Cases — Continued: Page

United States v. Newson, 531 F.2d 979 (10th Cir.

Pr Ckactscdccameethhéeietedtenteneheaks 7

United States v. Pomponio, 563 F.2d 659 (4th

Cir. 1977), cert. denied, 435 U.S. 942 (1978) .... 9

United States v. Rochelle, 384 F.2d 748 (Sth Cir.

1967), cert. denied, 390 U.S. 946 (1968) ........ 4

United States v. Rosenthal, 470 F.2d 837 (2d Cir.

1972), cert. denied, 412 U.S. 909 (1973) ........ 9

United States v. Shirley, 435 F.2d 1076 (7th Cir.

SICA bi GEE be et ee a, 7,9

United States v. Smith, 789 F.2d 196 (3d Cir.

1986), cert. denied, 479 U.S. 1031 (1987) ....... 7

United States v. Swallow, 511 F.2d 514 (10th Cir.),

cert. denied, 423 U.S. 845 (1975) .............. 9

United States v. Vasquez, 732 F.2d 846 (11th Cir.

Re ae a eae ey 13

United States v. Williams, 447 F.2d 894 (Sth Cir.

EN chek DANG EERE UNE Ge ee cc ene bake uaksss 6

United States v. Young, 470 U.S. 1 (1985) ........ 5, ll

Wisniewski v. United States, 353 U.S. 901 (1957) .. 11

Wright v. United States, 339 F.2d 578 (9th Cir.

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Constitution, statute and rules:

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Fed. R. Crim. P.:

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Jn the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-846

GUILLERMO SUAREZ, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The court of appeals affirmed without opinion.

- JURISDICTION

The judgment of the court of appeals was entered on

August 24, 1989. The petition for a writ of certiorari was

- filed on October 18, 1989. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the Middle District of Florida,

| petitioner was convicted on two counts of willfully at-

(1)

2

tempting to evade taxes, in violation of 26 U.S.C. 7201.

He was sentenced to six months’ imprisonment, five years’

probation, a $50,000 fine, and community service. Pet.

App. 2-3. The court of appeals affirmed the conviction

without opinion.

1. During 1982 and 1983, petitioner was a physician

with a family practice in St. Petersburg, Florida.' He

operated as a professional corporation. On the joint

returns that he filed with his wife for those years, peti-

tioner failed to report as income: (i) a number of $2500

monthly bonuses that he received from the corporation;

(ii) cash that he diverted from office receipts; and (iii)

payments from corporate funds for personal expenses. On

his income tax returns, petitioner reported adjusted gross

income of $39,222 for 1982 and $60,000 for 1983. As

calculated by the government, petitioner’s gross income

was actually $89,361.45 for 1982 and $92,420.05 for 1983.

Petitioner’s tax deficiencies amounted to $11,746.26 for

1982 and $8,205.91 for 1983. Gov’t C.A. Br. 3-8.

The theory of the defense was that there had been no tax

deficiency and that any shortfall in petitioner’s reported

income was not willful. Petitioner did not testify. With

respect to the monthly bonuses, one of petitioner’s ac-

countants testified that he considered the payments to be

repayments of loans that the corporation had received

from petitioner. However, the accountant conceded that

he had never seen the interest rate on the purported loans

and had no information regarding their maturity date. The

loans were not reflected on _ petitioner’s financial

statements. Office employees testified that the accountant

and petitioner had referred to the payments as bonuses,

' The indictment charged petitioner with attempting to evade taxes

for the 1981, 1982, and 1983 tax years. Petitioner was acquitted with

respect to 1981. See Pet. App. 1.

Tw

—

3

and the payments were recorded as “bonus” in check

registers. Finally, in connection with a mortgage loan,

petitioner advised a bank representative that he received a

bonus of $2500 per month; and another of petitioner’s ac-

countants confirmed the existence of the bonuses in a let-

ter to the bank. That accountant testified that petitioner

had never told him that the payments were loan repay-

ments. Gov’t C.A. Br. 4-§.

3. Petitioner’s case was completed during the after:

noon of July 21, 1988, a Thursday. The government an-

nounced that it would present no rebuttal. After a brief

colloquy, the court decided to allow each party an hour

and a half for closing argument. Petitioner’s counsel then

asked the court to postpone the arguments until Saturday

morning. The trial court denied that request, explaining

that it wished to complete arguments that day so that the

jury could deliberate on Friday and perhaps avoid a Satur-

day session. 13 Tr. 123-124.

After a brief recess, the court began the charge con-

ference. The court gave counsel for both parties its pro-

posed jury instructions and began to go through them one

by one, inviting counsel to raise questions and make com-

ments or objections concerning individual instructions. 13

Tr. 125-141. Petitioner’s counsel objected to that pro-

cedure, saying that he had not had an opportunity to

review the court’s proposed instructions or compare them

to his requested instructions. Jd. at 125, 130. The district

court responded by allowing petitioner’s counsel time to

consider each instruction. For instance, in answer to peti-

tioner’s counsel’s complaint that he had not been able to

compare one proposed instruction to an instruction re-

quested by the defense, the court stated, “Well, read it,

compare it and tell me if you have any objection to it.” Jd.

at 132. See id. at 137-138 (granting counsel’s response for a

“chance to read [an instruction] a little more thoroughly”).

4

Before all of the proposed instructions had been re-

viewed, the court announced that it was going to bring in

the jury for closing arguments. Petitioner’s counsel did not

object to going forward with closing arguments before the

charge conference was completed and did not argue that

Fed. R. Crim. P. 30 prohibited that procedure. 13 Tr. 141.

Consequently, counsel delivered their closing arguments

on Thursday afternoon (id. at 141-226), and the court

completed the charge conference the following morning

(14 Tr. 2-40).

During the portion of the charge conference that

preceded closing arguments, the government asked the

court to supplement an instruction (requested by the

defense) that the court had included in its proposed in-

structions. In the form in which the court provided it to

the parties at the beginning of the charge conference, the

instruction provided that amounts received as loans or

repayments of loans are not taxable income; the prose-

cutor argued that the instruction should also make clear

that simply calling a transaction a loan does not make it a

loan unless the borrower has a good faith intent to repay

funds that have been advanced. 13 Tr. 138-139. The court

denied the government’s request, but told the prosecutor

that “if you want to argue that simply designating a loan a

loan does not make it a loan unless it really is a loan,

you’re at liberty to argue that.” Jd. at 139. After closing

arguments, the government renewed its request for lan-

guage making it clear that there must be an intent to repay

a loan. 14 Tr. 10-16. While petitioner’s counsel argued

against the addition of that language, he did not maintain

that Fed. R. Crim. P. 30 foreclosed amending the instruc-

tion or that his closing argument had been affected by the

omission of the supplemental language from the court’s

proposed instruction. 14 Tr. 10-16. The district court

amended the loan instruction in the manner suggested by

5

the government, observing that the amendment was “ac-

curate,” “sensible,” “in conformity with the issues

presented to the jury,” and not prejudicial to petitioner. 14

Tr. 14.

ARGUMENT

1. Petitioner contends that the district court violated

Fed. R. Crim. P. 30 by interrupting the charge conference

to hear closing arguments and later amending the jury in-

struction on the tax treatment of loans. Pet. 10-16.

When the district court interrupted the charge confer-

ence, petitioner’s counsel did not suggest that Rule 30 pro-

hibited that course. Similarly, although counsel objected

to the substance of the amendment proposed by the pros-

ecutor to the loan instruction, he did not contend that

Rule 30 prohibited the court from adopting it. Conse-

quently, petitioner’s claim that the district court violated

Rule 30 is foreclosed in the absence of plain error. Fed. R.

Crim. P. 52(b). This Court has repeatedly emphasized that

“the plain-error exception to the contemporaneous-

objection rule is to be ‘used sparingly, solely in those cir-

cumstances in which a miscarriage of justice would other-

wise result.”” United States v. Young, 470 U.S. 1, 15

(1985), quoting United States v. Frady, 456 U.S. 152, 163

n.14 (1982). No such showing can be made on the record

of this case.

The procedure followed by the court in this case was in

compliance with Rule 30.? By its terms, that rule requires

? Rule 30 provides in pertinent part:

At the close of the evidence or at such earlier time during the

trial as the court reasonably directs, any party may file written re-

quests that the court instruct the jury on the law as set forth in the

requests. * * * The court shall inform counsel of its proposed ac-

6

the trial court to “inform counsel of its proposed action

upon the [parties’ written] requests [for instructions] prior

to their arguments to the jury” (emphasis added). In this

case, the district court provided counsel with copies of its

proposed instructions — which reflected the court’s action

on both parties’ requests—before closing arguments.

Although courts often hear objections to their proposed

instructions and consider modifications during a charge

conference conducted before oral arguments begin, Ruie

30 does not mandate that procedure. There was no error,

let alone plain error, in the procedure that the district

court followed here.

Similarly, Rule 30 did not prohibit the court from add-

ing the sentence proposed by the government to the loan

instruction after closing arguments had been completed.‘

tion upon the requests prior to their arguments to the jury. The

court may instruct the jury before or after the arguments are

completed or at both times. No party may assign as error any por-

tion of the charge or omission therefrom unless that party objects

thereto before the jury retires to consider its verdict, stating

distinctly the matter to which that party objects and the grounds

of the objection.

3 Cf. United States vy. Williams, 447 F.2d 894, 901 (Sth Cir. 1971)

(in a case in which the district court stated that it found nothing in the

parties’ requested instructions that it would “state flatly” that it would

not charge, but that it would instruct the jury in its own language,

there was no prejudicial violation of Rule 30).

* Petitioner was the party that requested the loan instruction. See 14

Tr. 10. The government requested only that the instruction be

modified through the insertion of a sentence clarifying its application

to sham loans. 13 Tr. 139; 14 Tr. 10-16. The instruction was discussed

before closing arguments. 13 Tr. 139. Thus, petitioner was aware

before closing arguments that the court had granted his request for a

loan instruction. The only point that remained in question, and which

was subsequently resolved in favor of the government, was whether

the instruction would include the clarifying language requested by the

prgsecutor.

The purpose of the rule is “to fairly inform the trial

lawyers [of the instructions] so that they may intelligently

argue to the jury.” United States v. Fusaro, 708 F.2d 17,

22 (Ist Cir.), cert. denied, 464 U.S. 1007 (1983).5 In keep-

ing with this purpose, the courts have recognized that Rule

30 permits a trial court to modify or supplement a pro-

posed instruction after closing arguments in order to pre-

vent the jury from becoming confused and deciding the

case on the basis of a mistaken understanding of the law.

United States v. Bowman, 798 F.2d 333 (8th Cir. 1986);

United States v. Buishas, 791 F.2d 1310, 1316-1317 (7th

Cir. 1986); United States v. Smith, 789 F.2d 196, 202-203

(3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987); United

States v. Newson, 531 F.2d 979, 982-983 (10th Cir. 1976);

United States v. Shirley, 435 F.2d 1076, 1078 (7th Cir.

1970).6 Bowman and Smith, the cases on which petitioner

principally relies (Pet. 11), are among the cases that have

applied Rule 30 in this manner.’

5 Accord United States v. Bowman, 798 F.2d 333 (8th Cir. 1986),

cert. denied, 479 U.S. 1043 (1987); Wright v. United States, 339 F.2d

578, 580 (9th Cir. 1964); United States v. Shirley, 435 F.2d 1076, 1078

(7th Cir. 1970).

¢ The courts have also agreed that the rule does not guarantee ad-

vance knowledge of all instructions, but requires only that the trial

court inform counsel of its rulings on instructions requested by the

parties. United States v. Buishas, 791 F.2d at 1316; United States v.

Newson, 531 F.2d at 982-983; United States v. Clarke, 468 F.2d 890,

892 (5th Cir. 1972).

7 In Smith, the Third Circuit upheld a supplemental jury instruction

delivered a day after the court had charged the jury, noting that the

supplemental instruction “did not state a new theory” and that defense

counsel was on notice of the issue the instruction addressed. 789 F.2d

at 203. In Bowman, the trial court modified a defendant’s requested

instruction on credibility but delivered the “gist” of the instruction; the

Eighth Circuit held that the trial court’s action “complied with both

the letter and the purpose of Rule 30.” 798 F.2d at 336. In United

Under the standards applied in these cases, the district

court acted within its discretion when it clarified its pro-

posed loan instruction after closing arguments. The post-

argument addition to that instruction only made clear that

sham loans —i.e., transactions in which a borrower has no

good-faith intent to repay funds that it has received —are

includable in a taxpayer’s gross income.® As the district

States v. Cardalt, 550 F.2d 604, 607 (10th Cir. 1976), cert. denied, 434

U.S. 841 (1977), the only other case addressing Rule 30 that is cited in

the petition, the trial court apparently overlooked ruling on certain re-

quested instructions; the Tenth Circuit held that in the absence of any

objection or any indication of resulting prejudice, the violation of

Rule 30 did not constitute grounds for reversal of the conviction. The

reasoning of Smith, Bowman, and Cardail are entirely consistent with

the decision of the court of appeals in this case.

This case bears no resemblance to cases in which convictions have

been reversed on the basis of violations of Rule 30. See Wright v.

United States, 339 F.2d 578, 579-580 (9th Cir. 1964) (court refused to

give defense counsel any indication of whether instructions requested

by the defense would be given; as a result, “counsel’s closing argument

was based upon a theory of defense which the court rejected, or at

least ignored, in its subsequent instructions”); United States v. Men-

doza, 473 F.2d 697, 700-701 & n.2 (Sth Cir. 1973) (trial court refused

to provide specific rulings on instructions requested by the defense

before closing arguments and then denied many of those requests after

arguments had been heard).

§ The court instructed the jury as follows (14 Tr. 51) (emphasis

added to material added after closing arguments at the request of the

government):

Now, a loan, which the parties to the loan agree is to be repaid,

does not constitute gross income as that term is defined by the In-

ternal Revenue Code. If you find that a distribution received by

the defendant or any part thereof was either a loan from the cor-

poration which was to be repaid or the repayment of a loan which

had been made by defendant to the corporation, then to the ex-

tent that the distribution was a loan or a repayment thereof, it

would not be income and taxable to the defendant. A loan which

the parties to the loan agree is to be repaid does not constitute

9

court noted, that clarification was undoubtedly a correct

statement of the law, and it served to assure that the jury

would not misunderstand or misapply the remainder of

the instruction. United States v. Pomponio, 563 F.2d 659,

662-663 (4th Cir. 1977), cert. denied, 435 U.S. 942 (1978);

United States v. Swallow, 511 F.2d 514, 519, 522-523 &

n.7 (10th Cir.), cert. denied, 423 U.S. 845 (1975); United

States v. Rosenthal, 470 F.2d 837, 841-842 (2d Cir. 1972),

cert. denied, 412 U.S. 909 (1973); United States v.

Rochelle, 384 F.2d 748, 751-752 (Sth Cir. 1967), cert.

denied, 390 U.S. 946 (1968). Significantly, the new

language did not change the substance of the proposed in-

struction that the court had made available to the parties.

In its initial form, the instruction stated twice that a loan

“which the parties to the loan agree is to be repaid” is not

includable in gross income; the sentence added after clos-

ing arguments only made it explicit that a good faith intent

to repay is an element of such an agreement. A modifica-

tion of this kind, which leaves the substance of an instruc-

tion unchanged, does not violate Rule 30. See United

States v. Shirley, 435 F.2d at 1078 (approving post-

argument modification to requested instruction that

“simply removed a potential source of confusion concern-

ing the elements of the crime charged which might have

marred the jury’s deliberation”).

The court’s clarification of the loan instruction also did

not deprive petitioner’s counsel of any opportunity to

argue petitioner’s loan defense. Before beginning his argu-

ment, petitioner’s counsel was aware that the jury would

gross income as that term is defined by the Internal Revenue

Code. However, merely denominating a transaction as a loan is

not sufficient to make it such, and where there is no good faith in-

tent on the part of the borrower to repay the funds advanced,

such funds are income under the income tax laws and are taxable

as such.

10

be instructed that loans are not includable in gross income.

He was thus free to call the jury’s attention to any evidence

that might support an acquittal on that basis and to alert

the jury to that forthcoming instruction. Since sham loans

are indisputably taxable, counsel could not have argued

for an acquittal on a theory inconsistent with the subse-

quent clarification in any event. Thus, this is not a case in

which counsel could have been misled into arguing a

theory of the defense that the court subsequently fore-

closed in its jury instructions. Compare Wright v. United

States, 339 F.2d 578, 580 (9th Cir. 1964). The clarification

of the loan instruction simply did not curtail or undercut

any permissible jury argument that was available to peti-

tioner.

There is no merit to petitioner’s claim that his attorney

would have “addressed more thoroughly the intent-to-

repay aspect of the facts” had he known of the forth-

coming modification. Pet. 12. Petitioner has not identified

any evidence on that question that he could have, but did

not, call to the jury’s attention. There was none. There

were no contemporaneous documents or other evidences

of indebtedness that bore on whether petitioner had ad-

vanced funds to the corporation with the expectation that

they would be repaid. The fact that the parties’ closing

arguments focused on whether the loans existed at all and

whether petitioner had treated the bonuses as loan repay-

ments during the period he was receiving them was a

consequence of the evidence in the case, not the court’s

handling of proposed instructions. Finally, although it de-

clined initially to add the language requested by the

government, the court advised both parties that the prose-

cutor would be permitted “to argue that simply designat-

ing a loan a loan does not make it a loan unless it really is a

loan.” 14 Tr. 139. As petitioner’s counsel well knew, he

ll

was also free to devote as much attention to that issue as

he wished.

In short, there was no violation of Rule 30 in this case,

much less a violation resulting in “a miscarriage of

justice.” United States v. Young, 470 U.S. at 15. Further-

more, even if there had been a violation and petitioner had

timely raised the issue, petitioner could not establish that

he suffered any actual prejudice—a necessary predicate

for relief based on a violation of Rule 30. Hamiing v.

United States, 418 U.S. 87, 134-135 (1974).

2. Petitioner also contends (Pet. 16-21) that the

district court’s refusal to postpone closing arguments was

an abuse of discretion.

A trial judge has broad discretion with respect to re-

quests for continuances and recesses in the course of trial

proceedings. Morris v. Slappy, 461 U.S. 1, 11-12 (1983);

Ungar v. Sarafite, 376 U.S. 575, 589 (1964); Carter v.

United States, 373 F.2d 911, 914 (9th Cir. 1967); Johnson

v. United States, 291 F.2d 150, 153 (8th Cir.), cert. denied,

368 U.S. 880 (1961). The exercise of this discretion will be

disturbed on appeal only in the event of “an unreasoning

and arbitrary ‘insistence upon expeditiousness in the face

of a justifiable request for delay.’ ” Morris v. Slappy, 461

U.S. at 11-12, quoting Ungar v. Sarafite, 376 U.S. at 589.

The facts of this case do not disclose an abuse of the

court’s discretion to schedule its proceedings. The only

asserted basis for the request for a recess was petitioner’s

counsel’s claim that he had not “had a chance to really go

through” the evidence he had introduced through defense

witnesses that day and the day before. 13 Tr. 124.

However, the district court was entitled to discount the

Suggestion that an experienced attorney was unfamiliar

with evidence he himself had presented only a short time

before. Morgover, having observed petitioner’s counsel

‘ 12

throughout the trial, the court noted that he was “suffi-

ciently familiar with the details of this case to be able to do

as good a job today as you would do tomorrow or Satur-

day.” Jbid. In fact, counsel’s closing argument did include

a detailed recitation of evidence presented by numerous

witnesses. 13 Tr. 175-212. Significantly, petitioner’s court

of appeals brief and the petition have identified no short-

coming in counsel’s closing argument that could be at-

tributed to the court’s refusal to grant the request for a

recess. This record provides no support for a conclusion

that the trial court abused its discretion or that petitioner

was prejudiced by the district court’s decision.®

The denial of a recess did not interfere with petitioner's

Sixth Amendment right to the assistance of counsel. See

Pet. 19-21. Petitioner was not prohibited from conferring

with his counsel concerning his closing argument or any

other matter at any point during the trial. Moreover, when

* Contrary to petitioner’s contention (Pet. 18-19), there is no con-

flict between the decision in this case and United States v. McLain,

823 F.2d 1457, 1460 (11th Cir. 1987). In McLain, in an effort to speed

up the trial, the judge informed the attorneys that they were being

clocked by the courtroom deputy, and the judge periodically an-

nounced how much court time had elapsed and how much time each

attorney had used. /bid. When the court became dissatisfied with the

pace of the trial, she carried out a threat to begin court sessions at 7:30

each morning. /bid. As a result of this “excruciating trial schedule,”

jurors became restless and inattentive. In an effort to ensure their at-

tentiveness, the judge allowed jurors te eat and drink while seated in

the jury box, and to stand while attorneys were conducting their ex-

aminations. Jd. at 1460-1461. These measures proved ineffective:

there were reports of jurors sleeping throughout the trial. /d. at 1461.

The schedule also exhausted counsel, who often worked until mid-

night preparing for the next day. /bid. There is no parallel between

those unusual facts and the facts of this case. In any event, this Court

ordinarily does not grant review to resolve an asserted intra-circuit

conflict. Wisniewski v. United States, 353 U.S. 901, 902 (1957).

13

he sought a recess, petitioner’s counsel did not suggest that

he needed time to consult with petitioner. Thus, this case

does not implicate any of the concerns underlying this

Court’s decisions in Perry v. Leeke, 109 S. Ct. 594 (1989),

and Geders v. United States, 425 U.S. 80 (1976).'® Neither

Geders nor Perry suggests that a defendant has a constitu-

tional right to require a trial court to recess a trial at a time

of the defendant’s choosing to enable him to speak with

his attorney. See United States v. Vasquez, 732 F.2d 846,

847-848 (11th Cir. 1984).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

SHIRLEY D. PETERSON

Assistant Attorney General

ROBERT E. LINDSAY

ALAN HECHTKOPF

Attorneys

JANUARY 1990

'© In Geders, this Court held that an order preventing the defendant

from consulting with his attorney during a 17-hour overnight recess

between the defendant's direct and cross-examination violated the

defendant's Sixth Amendment right to the assistance of counsel. In

Perry, the Court held that a defendant need not show prejudice to ob-

tain a reversal of a conviction where he is impermissibly barred from

consulting with his counsel during a break in trial proceedings, as in

Geders.

* US GOVERNMENT PRINTING OFFICE 1990— 262 20300738