White Collar Criminal Defense Group

Managing Your Client On the Witness Stand: SCOTUS Draws a Line on Mid-Testimony Coaching

The Supreme Court’s recent decision in Villarreal v. Texas takes up a familiar but often uncomfortable moment for trial lawyers: your client is on the stand, the day ends, and you have hours, sometimes overnight, to talk to your client. The trial question is simple enough. What, exactly, can you talk about?

FACTS

David Villarreal was on trial for murder in Texas. He took the stand in his own defense and claimed he acted in self-defense. Midway through his testimony, the court recessed for the evening. Before breaking, the trial judge gave defense counsel a pointed instruction: you may speak with your client, but you may not “manage” his ongoing testimony.

Defense counsel objected, arguing that any limitation on attorney-client communication during an overnight recess runs afoul of the Sixth Amendment. The objection was preserved, but not sustained. Villarreal resumed his testimony the next day, was ultimately convicted, and the issue made its way to the Supreme Court.

THE FRAMEWORK: GEDERS VS. PERRY

The case forced the Court to confront a tension it had previously addressed, but never quite resolved. On one hand, in Geders v. United States, the Court held that a judge cannot bar all communication between a defendant and counsel during an overnight recess. On the other hand, in Perry v. Leeke, the Court held that a judge could bar all communication during a short daytime break in testimony. Villarreal presented a third scenario: an overnight recess, but with a partial restriction on the scope of communication.

THE COURT’S ANSWER: IT’S ABOUT CONTENT, NOT TIME

Writing for the majority, Justice Jackson rejected the notion that the answer turns simply on the length of the recess. Instead, the Court drew a line based on the content of the attorney/client communication. A defendant retains the right to consult with counsel about strategy, witnesses, plea considerations, and the broader conduct of the case. But once the defendant takes the stand, he also assumes the role, and burdens, of a witness under oath. Among those burdens is the expectation that his testimony will not be shaped in real time by his lawyer.

That distinction proved decisive. The Court held that the Sixth Amendment does not protect discussions aimed at influencing or refining a defendant’s ongoing testimony while it is still in progress. In the Court’s view, prohibiting that narrow category of discussion preserves the truth-seeking function of trial without meaningfully impairing the defendant’s right to counsel.

Importantly, the order at issue did not bar communication altogether. Villarreal remained free to speak with his lawyers about strategy, potential sentencing exposure, plea considerations, and any number of other topics. What was off limits was one thing: using the overnight break to adjust or “manage” what he had already said, or what he would say next.

IN PRACTICE

Villarreal provides helpful clarity, even if it requires a degree of discipline in practice. The line between “strategy” and “testimony” will not always be perfectly clean. But the Court’s message is clear enough: once your client is on the stand, some of the tools of trial preparation have to be put down, at least until the testimony is over.

No Fees Allowed: Third Circuit Slams the Door on Attorney-Fee Restitution Under the MVRA

The Third Circuit has issued an important restitution decision that significantly narrows the scope of recoverable losses under the Mandatory Victims Restitution Act (“MVRA”). In United States v. Abrams, the Court held that attorneys’ fees may not be included in restitution orders, even when those fees were incurred by victims while cooperating with the government’s criminal investigation.

The Case

Appellant Abrams was convicted of an extensive fraud scheme arising out of a clean-energy startup. The district court ordered restitution totaling more than $1 million to defrauded investors. After post-sentencing briefing, the court amended its judgment to include nearly $100,000 in attorneys’ fees incurred by victims during their participation in the government’s investigation and prosecution. On appeal, Abrams challenged only the fee component of the restitution order.

The Holding

The Third Circuit affirmed the convictions and the underlying restitution award, but vacated the portion of the restitution order awarding attorneys’ fees. The Court held that 18 U.S.C. § 3663A(b)(4) does not authorize restitution for legal fees, rejecting the government’s reliance on the statute’s residual phrase permitting restitution for “other expenses incurred during participation in the investigation or prosecution.”

The Court’s Reasoning

The MVRA allows restitution for “lost income and necessary child care, transportation, and other expenses” incurred during participation in a criminal investigation or prosecution. Applying traditional tools of statutory interpretation, the Court concluded that the enumerated items reflect modest, attendance-related out-of-pocket costs, such as missing work to meet with investigators or travel to court. Attorneys’ fees, by contrast, are fundamentally different in nature and scale, involving professional advocacy rather than incidental participation. The Third Circuit also noted that Congress expressly authorized restitution for certain professional services elsewhere in the MVRA (e.g., medical and rehabilitative services), underscoring the absence of any similar authorization for attorneys’ fees.

Breaking from Other Courts

In reaching its decision, the Third Circuit expressly abrogated prior Middle District of Pennsylvania decisions that had allowed restitution to include attorneys’ fees. Additionally, in declining to permit restitution for attorneys’ fees, the Third Circuit expressly rejected the approach taken by the Second Circuit, which has allowed recovery of such fees under the MVRA’s residual clause. Other circuits have addressed the issue only indirectly, assumed the availability of fees without deciding the question, or resolved cases on plain-error grounds. This emerging divergence among the circuits, particularly between the Third and Second Circuits raises the possibility that the Supreme Court may ultimately be called upon to resolve the issue.

Why This Matters

After Abrams, the rule in the Third Circuit is clear: MVRA restitution covers direct losses and incidental participation costs, but not attorneys’ fees. Courts may not use the statute’s residual language to shift victims’ legal bills onto criminal defendants.