In United States v. Nelson, No. 16-12453 (Newsom, Marcus, Moore), the Court upheld the defendant's mail and wire-fraud convictions.
On appeal, the defendant argued that the district court violated his Sixth Amendment right to assistance of counsel. The district court recessed the trial for the evening while the defendant's testimony was ongoing. Defense counsel asked the court if he was permitted to speak to the client during the recess "about matters other than his [ongoing] testimony." The court responded affirmatively, telling counsel that he could speak to the client about anything other than his testimony. Given that defense counsel had himself invited that limitation, there was no objection about it. And, more importantly, there was no indication that the defendant or defense counsel actually wanted to confer about the defendant's testimony. For that reason, and relying on the Court's en banc decision in Crutchfield, the Court concluded that there was no Sixth Amendment "deprivation" at all. As a result, the Court declined to resolve issues about how structural error, plain error, and invited error might apply in this context.
