United States v. Gonzalez-Lopez

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. GONZALEZ-LOPEZ

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No. 05–352. Argued April 18, 2006—Decided June 26, 2006

Respondent hired attorney Low to represent him on a federal drug

charge. The District Court denied Low’s application for admission

pro hac vice on the ground that he had violated a professional con

duct rule and then, with one exception, prevented respondent from

meeting or consulting with Low throughout the trial. The jury found

respondent guilty. Reversing, the Eighth Circuit held that the Dis

trict Court erred in interpreting the disciplinary rule, that the court’s

refusal to admit Low therefore violated respondent’s Sixth Amend

ment right to paid counsel of his choosing, and that this violation was

not subject to harmless-error review.

Held: A trial court’s erroneous deprivation of a criminal defendant’s

choice of counsel entitles him to reversal of his conviction. Pp. 3–12.

(a) In light of the Government’s concession of erroneous depriva

tion, the trial court’s error violated respondent’s Sixth Amendment

right to counsel of choice. The Court rejects the Government’s conten

tion that the violation is not “complete” unless the defendant can

show that substitute counsel was ineffective within the meaning of

Strickland v. Washington, 466 U. S. 668, 691–696—i.e., that his per

formance was deficient and the defendant was prejudiced by it—or

the defendant can demonstrate that substitute counsel’s perform

ance, while not deficient, was not as good as what his counsel of

choice would have provided, creating a “reasonable probability that

. . . the result . . . would have been different,” id., at 694. To support

these propositions, the Government emphasizes that the right to

counsel is accorded to ensure that the accused receive a fair trial,

Mickens v. Taylor, 535 U. S. 162, 166, and asserts that a trial is not

unfair unless a defendant has been prejudiced. The right to counsel

2 UNITED STATES v. GONZALEZ-LOPEZ

Syllabus

of choice, however, commands not that a trial be fair, but that a par

ticular guarantee of fairness be provided—to wit, that the accused be

defended by the counsel he believes to be best. Cf. Crawford v. Wash

ington, 541 U. S. 36, 61. That right was violated here; no additional

showing of prejudice is required to make the violation “complete.”

Pp. 3–7.

(b) The Sixth Amendment violation is not subject to harmless-error

analysis. Erroneous deprivation of the right to counsel of choice,

“with consequences that are necessarily unquantifiable and indeter

minate, unquestionably qualifies as ‘structural error.’ ” Sullivan v.

Louisiana, 508 U. S. 275, 282. It “def[ies] analysis by ‘harmless error’

standards” because it “affec[ts] the framework within which the trial

proceeds” and is not “simply an error in the trial process itself.” Ari

zona v. Fulminante, 499 U. S. 279, 309–310. Different attorneys will

pursue different strategies with regard to myriad trial matters, and

the choice of attorney will affect whether and on what terms the de

fendant cooperates with the prosecution, plea bargains, or decides to

go to trial. It is impossible to know what different choices the re

jected counsel would have made, and then to quantify the impact of

those different choices on the outcome of the proceedings. This in

quiry is not comparable to that required to show that a counsel’s defi

cient performance prejudiced a defendant. Pp. 8–11.

(c) Nothing in the Court’s opinion casts any doubt or places any

qualification upon its previous holdings limiting the right to counsel

of choice and recognizing trial courts’ authority to establish criteria

for admitting lawyers to argue before them. However broad a trial

court’s discretion may be, this Court accepts the Government’s con

cession that the District Court erred. Pp. 11–12.

399 F. 3d 924, affirmed and remanded.

SCALIA, J., delivered the opinion of the Court, in which STEVENS,

SOUTER, GINSBURG, and BREYER, JJ., joined. ALITO, J., filed a dissenting

opinion, in which ROBERTS, C. J., and KENNEDY and THOMAS, JJ., joined.

Cite as: 548 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–352

_________________

UNITED STATES, PETITIONER v. CUAUHTEMOC

GONZALEZ-LOPEZ

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 26, 2006]

JUSTICE SCALIA delivered the opinion of the Court.

We must decide whether a trial court’s erroneous depri

vation of a criminal defendant’s choice of counsel entitles

him to a reversal of his conviction.

I

Respondent Cuauhtemoc Gonzalez-Lopez was charged

in the Eastern District of Missouri with conspiracy to

distribute more than 100 kilograms of marijuana. His

family hired attorney John Fahle to represent him. After

the arraignment, respondent called a California attorney,

Joseph Low, to discuss whether Low would represent him,

either in addition to or instead of Fahle. Low flew from

California to meet with respondent, who hired him.

Some time later, Low and Fahle represented respondent

at an evidentiary hearing before a Magistrate Judge. The

Magistrate Judge accepted Low’s provisional entry of

appearance and permitted Low to participate in the hear

ing on the condition that he immediately file a motion for

admission pro hac vice. During the hearing, however, the

Magistrate Judge revoked the provisional acceptance on

the ground that, by passing notes to Fahle, Low had vio

2 UNITED STATES v. GONZALEZ-LOPEZ

Opinion of the Court

lated a court rule restricting the cross-examination of a

witness to one counsel.

The following week, respondent informed Fahle that he

wanted Low to be his only attorney. Low then filed an

application for admission pro hac vice. The District Court

denied his application without comment. A month later,

Low filed a second application, which the District Court

again denied without explanation. Low’s appeal, in the

form of an application for a writ of mandamus, was dis

missed by the United States Court of Appeals for the

Eighth Circuit.

Fahle filed a motion to withdraw as counsel and for a

show-cause hearing to consider sanctions against Low.

Fahle asserted that, by contacting respondent while re

spondent was represented by Fahle, Low violated Mo.

Rule of Professional Conduct 4–4.2 (1993), which prohibits

a lawyer “[i]n representing a client” from “communi

cat[ing] about the subject of the representation with a

party . . . represented by another lawyer” without that

lawyer’s consent. Low filed a motion to strike Fahle’s

motion. The District Court granted Fahle’s motion to

withdraw and granted a continuance so that respondent

could find new representation. Respondent retained a

local attorney, Karl Dickhaus, for the trial. The District

Court then denied Low’s motion to strike and, for the first

time, explained that it had denied Low’s motions for ad

mission pro hac vice primarily because, in a separate case

before it, Low had violated Rule 4–4.2 by communicating

with a represented party.

The case proceeded to trial, and Dickhaus represented

respondent. Low again moved for admission and was

again denied. The Court also denied Dickhaus’s request to

have Low at counsel table with him and ordered Low to sit

in the audience and to have no contact with Dickhaus

during the proceedings. To enforce the Court’s order, a

United States Marshal sat between Low and Dickhaus at

Cite as: 548 U. S. ____ (2006) 3

Opinion of the Court

trial. Respondent was unable to meet with Low through

out the trial, except for once on the last night. The jury

found respondent guilty.

After trial, the District Court granted Fahle’s motion for

sanctions against Low. It read Rule 4–4.2 to forbid Low’s

contact with respondent without Fahle’s permission. It

also reiterated that it had denied Low’s motions for admis

sion on the ground that Low had violated the same Rule in

a separate matter.

Respondent appealed, and the Eighth Circuit vacated

the conviction. 399 F. 3d 924 (2005). The Court first held

that the District Court erred in interpreting Rule 4–4.2 to

prohibit Low’s conduct both in this case and in the sepa

rate matter on which the District Court based its denials

of his admission motions. The District Court’s denials of

these motions were therefore erroneous and violated

respondent’s Sixth Amendment right to paid counsel of his

choosing. See id., at 928–932. The Court then concluded

that this Sixth Amendment violation was not subject to

harmless-error review. See id., at 932–935. We granted

certiorari. 546 U. S. ___ (2006).

II

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defence.” We have previ

ously held that an element of this right is the right of a

defendant who does not require appointed counsel to

choose who will represent him. See Wheat v. United

States, 486 U. S. 153, 159 (1988). Cf. Powell v. Alabama,

287 U. S. 45, 53 (1932) (“It is hardly necessary to say that,

the right to counsel being conceded, a defendant should be

afforded a fair opportunity to secure counsel of his own

choice”). The Government here agrees, as it has previously,

that “the Sixth Amendment guarantees the defendant the

right to be represented by an otherwise qualified attorney

4 UNITED STATES v. GONZALEZ-LOPEZ

Opinion of the Court

whom that defendant can afford to hire, or who is willing

to represent the defendant even though he is without

funds.” Caplin & Drysdale, Chartered v. United States, 491

U. S. 617, 624–625 (1989). To be sure, the right to counsel

of choice “is circumscribed in several important respects.”

Wheat, supra, at 159. But the Government does not dispute

the Eighth Circuit’s conclusion in this case that the District

Court erroneously deprived respondent of his counsel of

choice.

The Government contends, however, that the Sixth

Amendment violation is not “complete” unless the defen

dant can show that substitute counsel was ineffective

within the meaning of Strickland v. Washington, 466 U. S.

668, 691–696 (1984)—i.e., that substitute counsel’s per

formance was deficient and the defendant was prejudiced

by it. In the alternative, the Government contends that

the defendant must at least demonstrate that his counsel

of choice would have pursued a different strategy that

would have created a “reasonable probability that . . . the

result of the proceedings would have been different,” id.,

at 694—in other words, that he was prejudiced within the

meaning of Strickland by the denial of his counsel of

choice even if substitute counsel’s performance was not

constitutionally deficient.1 To support these propositions,

the Government points to our prior cases, which note that

the right to counsel “has been accorded . . . not for its own

——————

1 Thedissent proposes yet a third standard—viz., that the defendant

must show “ ‘an identifiable difference in the quality of representation

between the disqualified counsel and the attorney who represents the

defendant at trial.’ ” Post, at 4 (opinion of ALITO, J.). That proposal

suffers from the same infirmities (outlined later in text) that beset the

Government’s positions. In addition, however, it greatly impairs the

clarity of the law. How is a lower-court judge to know what an “identi

fiable difference” consists of? Whereas the Government at least appeals

to Strickland and the case law under it, the most the dissent can claim

by way of precedential support for its rule is that it is “consistent with”

cases that never discussed the issue of prejudice. Id.

Cite as: 548 U. S. ____ (2006) 5

Opinion of the Court

sake, but for the effect it has on the ability of the accused

to receive a fair trial.” Mickens v. Taylor, 535 U. S. 162,

166 (2002) (internal quotation marks omitted). A trial is

not unfair and thus the Sixth Amendment is not violated,

the Government reasons, unless a defendant has been

prejudiced.

Stated as broadly as this, the Government’s argument in

effect reads the Sixth Amendment as a more detailed

version of the Due Process Clause—and then proceeds to

give no effect to the details. It is true enough that the

purpose of the rights set forth in that Amendment is to

ensure a fair trial; but it does not follow that the rights

can be disregarded so long as the trial is, on the whole,

fair. What the Government urges upon us here is what

was urged upon us (successfully, at one time, see Ohio v.

Roberts, 448 U. S. 56 (1980)) with regard to the Sixth

Amendment’s right of confrontation—a line of reasoning

that “abstracts from the right to its purposes, and then

eliminates the right.” Maryland v. Craig, 497 U. S. 836,

862 (1990) (SCALIA, J., dissenting). Since, it was argued,

the purpose of the Confrontation Clause was to ensure the

reliability of evidence, so long as the testimonial hearsay

bore “indicia of reliability,” the Confrontation Clause was

not violated. See Roberts, supra, at 65–66. We rejected

that argument (and our prior cases that had accepted it) in

Crawford v. Washington, 541 U. S. 36 (2004), saying that

the Confrontation Clause “commands, not that evidence be

reliable, but that reliability be assessed in a particular

manner: by testing in the crucible of cross-examination.”

Id., at 61.

So also with the Sixth Amendment right to counsel of

choice. It commands, not that a trial be fair, but that a

particular guarantee of fairness be provided—to wit, that

the accused be defended by the counsel he believes to be

best. “The Constitution guarantees a fair trial through

the Due Process Clauses, but it defines the basic elements

6 UNITED STATES v. GONZALEZ-LOPEZ

Opinion of the Court

of a fair trial largely through the several provisions of the

Sixth Amendment, including the Counsel Clause.” Strick

land, supra, at 684–685. In sum, the right at stake here is

the right to counsel of choice, not the right to a fair trial;

and that right was violated because the deprivation of

counsel was erroneous. No additional showing of preju

dice is required to make the violation “complete.”2

The cases the Government relies on involve the right to

the effective assistance of counsel, the violation of which

generally requires a defendant to establish prejudice. See,

e.g., Strickland, supra, at 694; Mickens, supra, at 166;

United States v. Cronic, 466 U. S. 648 (1984). The earliest

case generally cited for the proposition that “the right to

counsel is the right to the effective assistance of counsel,”

McMann v. Richardson, 397 U. S. 759, 771, n. 14 (1970),

was based on the Due Process Clause rather than on the

Sixth Amendment, see Powell, 287 U. S., at 57 (cited in

e.g., McMann, supra, at 771, n. 14). And even our recogni

tion of the right to effective counsel within the Sixth

Amendment was a consequence of our perception that

representation by counsel “is critical to the ability of the

adversarial system to produce just results.” Strickland,

supra, at 685. Having derived the right to effective repre

sentation from the purpose of ensuring a fair trial, we

have, logically enough, also derived the limits of that right

from that same purpose. See Mickens, supra, at 166. The

——————

2 Thedissent resists giving effect to our cases’ recognition, and the

Government’s concession, that a defendant has a right to be defended

by counsel of his choosing. It argues that because the Sixth Amend

ment guarantees the right to the “assistance of counsel,” it is not

violated unless “the erroneous disqualification of a defendant’s counsel

of choice . . . impair[s] the assistance that a defendant receives at trial.”

Post, at 1–2 (opinion of ALITO, J.). But if our cases (and the Govern

ment’s concession) mean anything, it is that the Sixth Amendment is

violated when the erroneous disqualification of counsel “impair[s] the

assistance that a defendant receives at trial [from the counsel that he

chose].”

Cite as: 548 U. S. ____ (2006) 7

Opinion of the Court

requirement that a defendant show prejudice in effective

representation cases arises from the very nature of the

specific element of the right to counsel at issue there—

effective (not mistake-free) representation. Counsel cannot

be “ineffective” unless his mistakes have harmed the

defense (or, at least, unless it is reasonably likely that

they have). Thus, a violation of the Sixth Amendment

right to effective representation is not “complete” until the

defendant is prejudiced. See Strickland, supra, at 685.

The right to select counsel of one’s choice, by contrast,

has never been derived from the Sixth Amendment’s

purpose of ensuring a fair trial.3 It has been regarded as

the root meaning of the constitutional guarantee. See

Wheat, 486 U. S., at 159; Andersen v. Treat, 172 U. S. 24

(1898). See generally W. Beaney, The Right to Counsel in

American Courts 18–24, 27–33 (1955). Cf. Powell, supra,

at 53. Where the right to be assisted by counsel of one’s

choice is wrongly denied, therefore, it is unnecessary to

conduct an ineffectiveness or prejudice inquiry to establish

a Sixth Amendment violation. Deprivation of the right is

“complete” when the defendant is erroneously prevented

from being represented by the lawyer he wants, regardless

of the quality of the representation he received. To argue

otherwise is to confuse the right to counsel of choice—

which is the right to a particular lawyer regardless of

comparative effectiveness—with the right to effective

counsel—which imposes a baseline requirement of compe

tence on whatever lawyer is chosen or appointed.

——————

3 In Wheat v. United States, 486 U. S. 153 (1988), where we formu

lated the right to counsel of choice and discussed some of the limita

tions upon it, we took note of the overarching purpose of fair trial in

holding that the trial court has discretion to disallow a first choice of

counsel that would create serious risk of conflict of interest. Id., at 159.

It is one thing to conclude that the right to counsel of choice may be

limited by the need for fair trial, but quite another to say that the right

does not exist unless its denial renders the trial unfair.

8 UNITED STATES v. GONZALEZ-LOPEZ

Opinion of the Court

III

Having concluded, in light of the Government’s conces

sion of erroneous deprivation, that the trial court violated

respondent’s Sixth Amendment right to counsel of choice,

we must consider whether this error is subject to review

for harmlessness. In Arizona v. Fulminante, 499 U. S. 279

(1991), we divided constitutional errors into two classes.

The first we called “trial error,” because the errors “oc

curred during presentation of the case to the jury” and

their effect may “be quantitatively assessed in the context

of other evidence presented in order to determine whether

[they were] harmless beyond a reasonable doubt.” Id., at

307–308 (internal quotation marks omitted). These in

clude “most constitutional errors.” Id., at 306. The second

class of constitutional error we called “structural defects.”

These “defy analysis by ‘harmless-error’ standards” be

cause they “affec[t] the framework within which the trial

proceeds,” and are not “simply an error in the trial process

itself.” Id., at 309–310.4 See also Neder v. United States,

——————

The dissent criticizes us for our trial error/structural defect dichot

4

omy, asserting that Fulminante never said that “trial errors are the

only sorts of errors amenable to harmless-error review, or that all

errors affecting the framework within which the trial proceeds are

structural,” post, at 8 (opinion of ALITO, J.) (internal quotation marks

and citation omitted). Although it is hard to read that case as doing

anything other than dividing constitutional error into two comprehen

sive categories, our ensuing analysis in fact relies neither upon such

comprehensiveness nor upon trial error as the touchstone for the

availability of harmless-error review. Rather, here, as we have done in

the past, we rest our conclusion of structural error upon the difficulty of

assessing the effect of the error. See Waller v. Georgia, 467 U. S. 39,

49, n. 9 (1984) (violation of the public-trial guarantee is not subject to

harmlessness review because “the benefits of a public trial are fre

quently intangible, difficult to prove, or a matter of chance”); Vasquez v.

Hillery, 474 U. S. 254, 263 (1986) (“[W]hen a petit jury has been selected

upon improper criteria or has been exposed to prejudicial publicity, we

Cite as: 548 U. S. ____ (2006) 9

Opinion of the Court

527 U. S. 1, 7–9 (1999). Such errors include the denial of

counsel, see Gideon v. Wainwright, 372 U. S. 335 (1963),

the denial of the right of self-representation, see McKaskle

v. Wiggins, 465 U. S. 168, 177–178, n. 8 (1984), the denial of

the right to public trial, see Waller v. Georgia, 467 U. S. 39,

49, n. 9 (1984), and the denial of the right to trial by jury by

the giving of a defective reasonable-doubt instruction, see

Sullivan v. Louisiana, 508 U. S. 275 (1993).

We have little trouble concluding that erroneous depri

vation of the right to counsel of choice, “with consequences

that are necessarily unquantifiable and indeterminate,

unquestionably qualifies as ‘structural error.’ ” Id., at 282.

Different attorneys will pursue different strategies with

regard to investigation and discovery, development of the

theory of defense, selection of the jury, presentation of the

witnesses, and style of witness examination and jury

argument. And the choice of attorney will affect whether

and on what terms the defendant cooperates with the

prosecution, plea bargains, or decides instead to go to trial.

In light of these myriad aspects of representation, the

erroneous denial of counsel bears directly on the “frame

work within which the trial proceeds,” Fulminante, supra,

——————

have required reversal of the conviction because the effect of the viola

tion cannot be ascertained”). The dissent would use “fundamental

unfairness” as the sole criterion of structural error, and cites a case in

which that was the determining factor, see Neder v. United States, 527

U. S. 1, 9 (1999) (quoted by the dissent, post, at 6). But this has not

been the only criterion we have used. In addition to the above cases

using difficulty of assessment as the test, we have also relied on the

irrelevance of harmlessness, see McKaskle v. Wiggins, 465 U. S. 168, 177,

n. 8 (1984) (“Since the right to self-representation is a right that when

exercised usually increases the likelihood of a trial outcome unfavor

able to the defendant, its denial is not amenable to ‘harmless error’

analysis”). Thus, it is the dissent that creates a single, inflexible

criterion, inconsistent with the reasoning of our precedents, when it

asserts that only those errors that always or necessarily render a trial

fundamentally unfair and unreliable are structural, post, at 8.

10 UNITED STATES v. GONZALEZ-LOPEZ

Opinion of the Court

at 310—or indeed on whether it proceeds at all. It is

impossible to know what different choices the rejected

counsel would have made, and then to quantify the impact

of those different choices on the outcome of the proceed

ings. Many counseled decisions, including those involving

plea bargains and cooperation with the government, do

not even concern the conduct of the trial at all. Harmless-

error analysis in such a context would be a speculative

inquiry into what might have occurred in an alternate

universe.

The Government acknowledges that the deprivation of

choice of counsel pervades the entire trial, but points out

that counsel’s ineffectiveness may also do so and yet we do

not allow reversal of a conviction for that reason without a

showing of prejudice. But the requirement of showing

prejudice in ineffectiveness claims stems from the very

definition of the right at issue; it is not a matter of show

ing that the violation was harmless, but of showing that a

violation of the right to effective representation occurred.

A choice-of-counsel violation occurs whenever the defen

dant’s choice is wrongfully denied. Moreover, if and when

counsel’s ineffectiveness “pervades” a trial, it does so (to

the extent we can detect it) through identifiable mistakes.

We can assess how those mistakes affected the outcome.

To determine the effect of wrongful denial of choice of

counsel, however, we would not be looking for mistakes

committed by the actual counsel, but for differences in the

defense that would have been made by the rejected coun

sel—in matters ranging from questions asked on voir dire

and cross-examination to such intangibles as argument

style and relationship with the prosecutors. We would

have to speculate upon what matters the rejected counsel

would have handled differently—or indeed, would have

handled the same but with the benefit of a more jury-

pleasing courtroom style or a longstanding relationship of

trust with the prosecutors. And then we would have to

Cite as: 548 U. S. ____ (2006) 11

Opinion of the Court

speculate upon what effect those different choices or dif

ferent intangibles might have had. The difficulties of

conducting the two assessments of prejudice are not re

motely comparable.5

IV

Nothing we have said today casts any doubt or places

any qualification upon our previous holdings that limit the

right to counsel of choice and recognize the authority of

trial courts to establish criteria for admitting lawyers to

argue before them. As the dissent too discusses, post, at 3,

the right to counsel of choice does not extend to defendants

who require counsel to be appointed for them. See Wheat,

486 U. S., at 159; Caplin & Drysdale, 491 U. S., at 624,

626. Nor may a defendant insist on representation by a

person who is not a member of the bar, or demand that a

court honor his waiver of conflict-free representation. See

Wheat, 486 U. S., at 159–160. We have recognized a trial

court’s wide latitude in balancing the right to counsel of

choice against the needs of fairness, id., at 163–164, and

against the demands of its calendar, Morris v. Slappy, 461

U. S. 1, 11–12 (1983). The court has, moreover, an “inde

pendent interest in ensuring that criminal trials are con

ducted within the ethical standards of the profession and

——————

5 In its discussion of the analysis that would be required to conduct

harmless-error review, the dissent focuses on which counsel was

“better.” See post, at 7–8 (opinion of ALITO, J.). This focus has the

effect of making the analysis look achievable, but it is fundamentally

inconsistent with the principle (which the dissent purports to accept for

the sake of argument) that the Sixth Amendment can be violated

without a showing of harm to the quality of representation. Cf.

McKaskle, supra, at 177, n. 8. By framing its inquiry in these terms

and expressing indignation at the thought that a defendant may receive

a new trial when his actual counsel was at least as effective as the one

he wanted, the dissent betrays its misunderstanding of the nature of

the right to counsel of choice and its confusion of this right with the

right to effective assistance of counsel.

12 UNITED STATES v. GONZALEZ-LOPEZ

Opinion of the Court

that legal proceedings appear fair to all who observe

them.” Wheat, supra, at 160. None of these limitations on

the right to choose one’s counsel is relevant here. This is

not a case about a court’s power to enforce rules or adhere

to practices that determine which attorneys may appear

before it, or to make scheduling and other decisions that

effectively exclude a defendant’s first choice of counsel.

However broad a court’s discretion may be, the Govern

ment has conceded that the District Court here erred

when it denied respondent his choice of counsel. Accept

ing that premise, we hold that the error violated respon

dent’s Sixth Amendment right to counsel of choice and

that this violation is not subject to harmless-error

analysis.

* * *

The judgment of the Court of Appeals is affirmed, and

the case is remanded for further proceedings consistent

with this opinion.

It is so ordered.

Cite as: 548 U. S. ____ (2006) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–352

_________________

UNITED STATES, PETITIONER v. CUAUHTEMOC

GONZALEZ-LOPEZ

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 26, 2006]

JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE

KENNEDY, and JUSTICE THOMAS join, dissenting.

I disagree with the Court’s conclusion that a criminal

conviction must automatically be reversed whenever a

trial court errs in applying its rules regarding pro hac vice

admissions and as a result prevents a defendant from

being represented at trial by the defendant’s first-choice

attorney. Instead, a defendant should be required to make

at least some showing that the trial court’s erroneous

ruling adversely affected the quality of assistance that the

defendant received. In my view, the majority’s contrary

holding is based on an incorrect interpretation of the Sixth

Amendment and a misapplication of harmless-error prin

ciples. I respectfully dissent.

I

The majority makes a subtle but important mistake at

the outset in its characterization of what the Sixth

Amendment guarantees. The majority states that the

Sixth Amendment protects “the right of a defendant who

does not require appointed counsel to choose who will

represent him.” Ante, at 3. What the Sixth Amendment

actually protects, however, is the right to have the assis

tance that the defendant’s counsel of choice is able to

provide. It follows that if the erroneous disqualification of

2 UNITED STATES v. GONZALEZ-LOPEZ

ALITO, J., dissenting

a defendant’s counsel of choice does not impair the assis

tance that a defendant receives at trial, there is no viola

tion of the Sixth Amendment.1

The language of the Sixth Amendment supports this

interpretation. The Assistance of Counsel Clause focuses

on what a defendant is entitled to receive (“Assistance”),

rather than on the identity of the provider. The back

ground of the adoption of the Sixth Amendment points in

the same direction. The specific evil against which the

Assistance of Counsel Clause was aimed was the English

common-law rule severely limiting a felony defendant’s

ability to be assisted by counsel. United States v. Ash, 413

U. S. 300, 306 (1973). “[T]he core purpose of the counsel

guarantee was to assure ‘Assistance’ at trial,” id., at 309,

and thereby “to assure fairness in the adversary criminal

process,” United States v. Morrison, 449 U. S. 361, 364

(1981). It was not “the essential aim of the Amendment

. . . to ensure that a defendant will inexorably be repre

sented by the lawyer whom he prefers.” Wheat v. United

States, 486 U. S. 153, 159 (1988); cf. Morris v. Slappy, 461

U. S. 1, 14 (1983) (“[W]e reject the claim that the Sixth

Amendment guarantees a ‘meaningful relationship’ be

tween an accused and his counsel”).

There is no doubt, of course, that the right “to have the

Assistance of Counsel” carries with it a limited right to be

represented by counsel of choice. At the time of the adop

tion of the Bill of Rights, when the availability of ap

pointed counsel was generally limited,2 that is how the

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1 This

view is consistent with the Government’s concession that “[t]he

Sixth Amendment . . . encompasses a non-indigent defendant’s right to

select counsel who will represent him in a criminal prosecution,” Brief

for United States 11, though this right is “circumscribed in several

important respects,” id., at 12 (citation and internal quotation marks

omitted).

2 See Act of Apr. 30, 1790, ch. 9, §29, 1 Stat. 118 (providing for ap

pointment of counsel in capital cases); Betts v. Brady, 316 U. S. 455,

Cite as: 548 U. S. ____ (2006) 3

ALITO, J., dissenting

right inevitably played out: A defendant’s right to have the

assistance of counsel necessarily meant the right to have

the assistance of whatever counsel the defendant was able

to secure. But from the beginning, the right to counsel of

choice has been circumscribed.

For one thing, a defendant’s choice of counsel has al

ways been restricted by the rules governing admission to

practice before the court in question. The Judiciary Act of

1789 made this clear, providing that parties “in all the

courts of the United States” had the right to “the assis

tance of such counsel or attorneys at law as by the rules of

the said courts respectively shall be permitted to manage

and conduct cases therein.” Ch. 20, §35, 1 Stat. 92.

Therefore, if a defendant’s first-choice attorney was not

eligible to appear under the rules of a particular court, the

defendant had no right to be represented by that attorney.

Indeed, if a defendant’s top 10 or top 25 choices were all

attorneys who were not eligible to appear in the court in

question, the defendant had no right to be represented by

any of them. Today, rules governing admission to practice

before particular courts continue to limit the ability of a

criminal defendant to be represented by counsel of choice.

See Wheat, 486 U. S., at 159.

The right to counsel of choice is also limited by conflict-

of-interest rules. Even if a defendant is aware that his or

her attorney of choice has a conflict, and even if the defen

dant is eager to waive any objection, the defendant has no

constitutional right to be represented by that attorney.

See id., at 159–160.

Similarly, the right to be represented by counsel of

choice can be limited by mundane case-management

considerations. If a trial judge schedules a trial to begin

on a particular date and defendant’s counsel of choice is

already committed for other trials until some time thereaf

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467, n. 20 (1942) (surveying state statutes).

4 UNITED STATES v. GONZALEZ-LOPEZ

ALITO, J., dissenting

ter, the trial judge has discretion under appropriate cir

cumstances to refuse to postpone the trial date and

thereby, in effect, to force the defendant to forgo counsel of

choice. See, e.g., Slappy, supra; United States v. Hughey,

147 F. 3d 423, 428–431 (CA5 1998).

These limitations on the right to counsel of choice are

tolerable because the focus of the right is the quality of the

representation that the defendant receives, not the iden

tity of the attorney who provides the representation.

Limiting a defendant to those attorneys who are willing,

available, and eligible to represent the defendant still

leaves a defendant with a pool of attorneys to choose

from—and, in most jurisdictions today, a large and diverse

pool. Thus, these restrictions generally have no adverse

effect on a defendant’s ability to secure the best assistance

that the defendant’s circumstances permit.

Because the Sixth Amendment focuses on the quality of

the assistance that counsel of choice would have provided,

I would hold that the erroneous disqualification of counsel

does not violate the Sixth Amendment unless the ruling

diminishes the quality of assistance that the defendant

would have otherwise received. This would not require a

defendant to show that the second-choice attorney was

constitutionally ineffective within the meaning of Strick

land v. Washington, 466 U. S. 668 (1984). Rather, the

defendant would be entitled to a new trial if the defendant

could show “an identifiable difference in the quality of

representation between the disqualified counsel and the

attorney who represents the defendant at trial.” Rodri

guez v. Chandler, 382 F. 3d 670, 675 (CA7 2004), cert.

denied, 543 U. S. 1156 (2005).

This approach is fully consistent with our prior deci

sions. We have never held that the erroneous disqualifica

tion of counsel violates the Sixth Amendment when there

is no prejudice, and while we have stated in several cases

that the Sixth Amendment protects a defendant’s right to

Cite as: 548 U. S. ____ (2006) 5

ALITO, J., dissenting

counsel of choice, see Caplin & Drysdale, Chartered v.

United States, 491 U. S. 617, 624–625 (1989); Wheat,

supra, at 159; Powell v. Alabama, 287 U. S. 45, 53 (1932),

we had no occasion in those cases to consider whether a

violation of this right can be shown where there is no

prejudice. Nor do our opinions in those cases refer to that

question. It is therefore unreasonable to read our general

statements regarding counsel of choice as addressing the

issue of prejudice.3

——————

3 Powell is the case generally cited as first noting a defendant’s right

to counsel of choice. Powell involved an infamous trial in which the

defendants were prevented from obtaining any counsel of their choice

and were instead constrained to proceed with court-appointed counsel

of dubious effectiveness. We held that this denied them due process

and that “a fair opportunity to secure counsel of [one’s] own choice” is a

necessary concomitant of the right to counsel. 287 U. S., at 53; cf. id.,

at 71 (“[T]he failure of the trial court to give [petitioners] reasonable

time and opportunity to secure counsel was a clear denial of due proc

ess”). It is clear from the facts of the case that we were referring to the

denial of the opportunity to choose any counsel, and we certainly said

nothing to suggest that a violation of the right to counsel of choice could

be established without any showing of prejudice.

In Wheat, we held that the trial judge had not erred in declining the

defendant’s waiver of his right to conflict-free counsel, and therefore we

had no need to consider whether an incorrect ruling would have re

quired reversal of the defendant’s conviction in the absence of a show

ing of prejudice. We noted that “the right to select and be represented

by one’s preferred attorney is comprehended by the Sixth Amendment,”

486 U. S., at l59, but we went on to stress that this right “is circum

scribed in several important respects,” ibid., including by the require

ment of bar membership and rules against conflicts of interest. Wheat

did not suggest that a violation of the limited Sixth Amendment right

to counsel of choice can be established without showing prejudice, and

our statements about the Sixth Amendment’s “purpose” and “essential

aim”—providing effective advocacy and a fair trial, ibid.—suggest the

opposite.

Finally, in Caplin & Drysdale, we held that the challenged action of

the trial judge—entering an order forfeiting funds that the defendant

had earmarked for use in paying his attorneys—had been proper, and,

accordingly, we had no occasion to address the issue of prejudice. We

recognized that “the Sixth Amendment guarantees a defendant the

6 UNITED STATES v. GONZALEZ-LOPEZ

ALITO, J., dissenting

II

But even accepting, as the majority holds, that the

erroneous disqualification of counsel of choice always

violates the Sixth Amendment, it still would not follow

that reversal is required in all cases. The Constitution, by

its terms, does not mandate any particular remedy for

violations of its own provisions. Instead, we are bound in

this case by Federal Rule of Criminal Procedure 52(a),

which instructs federal courts to “disregar[d]” “[a]ny error

. . . which does not affect substantial rights.” See also 28

U. S. C. §2111; Chapman v. California, 386 U. S. 18, 22

(1967). The only exceptions we have recognized to this

rule have been for “a limited class of fundamental consti

tutional errors that ‘defy analysis by “harmless error”

standards.’ ” Neder v. United States, 527 U. S. 1, 7 (1999)

(quoting Arizona v. Fulminante, 499 U. S. 279, 309

(1991)); see also Chapman, supra, at 23. “Such errors . . .

‘necessarily render a trial fundamentally unfair’ [and]

deprive defendants of ‘basic protections’ without which ‘a

criminal trial cannot reliably serve its function as a vehi

cle for determination of guilt or innocence . . . and no

criminal punishment may be regarded as fundamentally

fair.’ ” Neder, supra, at 8–9 (quoting Rose v. Clark, 478

U. S. 570, 577–578 (1986) (second omission in original));

see also ante, at 9 (listing such errors).

Thus, in Neder, we rejected the argument that the omis

sion of an element of a crime in a jury instruction “neces

sarily render[s] a criminal trial fundamentally unfair or

——————

right to be represented by an otherwise qualified attorney whom that

defendant can afford to hire, or who is willing to represent the defen

dant even though he is without funds,” 491 U. S., at 624–625, but we

added that “[w]hatever the full extent of the Sixth Amendment’s

protection of one’s right to retain counsel of his choosing, that protec

tion does not go beyond ‘the individual’s right to spend his own money

to obtain the advice and assistance of . . . counsel,’ ” id., at 626 (omission

in original).

Cite as: 548 U. S. ____ (2006) 7

ALITO, J., dissenting

an unreliable vehicle for determining guilt or innocence.”

527 U. S., at 9. In fact, in that case, “quite the opposite

[was] true: Neder was tried before an impartial judge,

under the correct standard of proof and with the assis

tance of counsel; a fairly selected, impartial jury was

instructed to consider all of the evidence and argument in

respect to Neder’s defense . . . .” Ibid.

Neder’s situation—with an impartial judge, the correct

standard of proof, assistance of counsel, and a fair jury—is

much like respondent’s. Fundamental unfairness does not

inexorably follow from the denial of first-choice counsel.

The “decision to retain a particular lawyer” is “often unin

formed,” Cuyler v. Sullivan, 446 U. S. 335, 344 (1980); a

defendant’s second-choice lawyer may thus turn out to be

better than the defendant’s first-choice lawyer. More

often, a defendant’s first- and second-choice lawyers may

be simply indistinguishable. These possibilities would not

justify violating the right to choice of counsel, but they do

make me hard put to characterize the violation as “always

render[ing] a trial unfair,” Neder, supra, at 9. Fairness

may not limit the right, see ante, at 5, but it does inform

the remedy.

Nor is it always or nearly always impossible to deter

mine whether the first choice would have provided better

representation than the second choice. There are un

doubtedly cases in which the prosecution would have little

difficulty showing that the second-choice attorney was

better qualified than or at least as qualified as the defen

dant’s initial choice, and there are other cases in which it

will be evident to the trial judge that any difference in

ability or strategy could not have possibly affected the

outcome of the trial.

Requiring a defendant to fall back on a second-choice

attorney is not comparable to denying a defendant the

right to be represented by counsel at all. Refusing to

permit a defendant to receive the assistance of any counsel

8 UNITED STATES v. GONZALEZ-LOPEZ

ALITO, J., dissenting

is the epitome of fundamental unfairness, and as far as

the effect on the outcome is concerned, it is much more

difficult to assess the effect of a complete denial of counsel

than it is to assess the effect of merely preventing repre

sentation by the defendant’s first-choice attorney. To be

sure, when the effect of an erroneous disqualification is

hard to gauge, the prosecution will be unable to meet its

burden of showing that the error was harmless beyond a

reasonable doubt. But that does not justify eliminating

the possibility of showing harmless error in all cases.

The majority’s focus on the “trial error”/“structural

defect” dichotomy is misleading. In Fulminante, we used

these terms to denote two poles of constitutional error that

had appeared in prior cases; trial errors always lead to

harmless-error review, while structural defects always

lead to automatic reversal. See 499 U. S., at 306–310. We

did not suggest that trial errors are the only sorts of errors

amenable to harmless-error review, or that all errors

“affecting the framework within which the trial proceeds,”

id., at 310, are structural. The touchstone of structural

error is fundamental unfairness and unreliability. Auto

matic reversal is strong medicine that should be reserved

for constitutional errors that “always” or “necessarily,”

Neder, supra, at 9 (emphasis in original), produce such

unfairness.

III

Either of the two courses outlined above—requiring at

least some showing of prejudice, or engaging in harmless-

error review—would avoid the anomalous and unjustifi

able consequences that follow from the majority’s two-part

rule of error without prejudice followed by automatic

reversal.

Under the majority’s holding, a defendant who is erro

neously required to go to trial with a second-choice attor

ney is automatically entitled to a new trial even if this

Cite as: 548 U. S. ____ (2006) 9

ALITO, J., dissenting

attorney performed brilliantly. By contrast, a defendant

whose attorney was ineffective in the constitutional sense

(i.e., “made errors so serious that counsel was not func

tioning as the ‘counsel’ guaranteed . . . by the Sixth

Amendment,” Strickland, 466 U. S., at 687) cannot obtain

relief without showing prejudice.

Under the majority’s holding, a trial court may adopt

rules severely restricting pro hac vice admissions, cf. Leis

v. Flynt, 439 U. S. 438, 443 (1979) (per curiam), but if it

adopts a generous rule and then errs in interpreting or

applying it, the error automatically requires reversal of

any conviction, regardless of whether the erroneous ruling

had any effect on the defendant.

Under the majority’s holding, some defendants will be

awarded new trials even though it is clear that the errone

ous disqualification of their first-choice counsel did not

prejudice them in the least. Suppose, for example, that a

defendant is initially represented by an attorney who

previously represented the defendant in civil matters and

who has little criminal experience. Suppose that this

attorney is erroneously disqualified and that the defen

dant is then able to secure the services of a nationally

acclaimed and highly experienced criminal defense attor

ney who secures a surprisingly favorable result at trial—

for instance, acquittal on most but not all counts. Under

the majority’s holding, the trial court’s erroneous ruling

automatically means that the Sixth Amendment was

violated—even if the defendant makes no attempt to argue

that the disqualified attorney would have done a better

job. In fact, the defendant would still be entitled to a new

trial on the counts of conviction even if the defendant

publicly proclaimed after the verdict that the second at

torney had provided better representation than any other

attorney in the country could have possibly done.

Cases as stark as the above hypothetical are unlikely,

but there are certainly cases in which the erroneous dis

10 UNITED STATES v. GONZALEZ-LOPEZ

ALITO, J., dissenting

qualification of a defendant’s first-choice counsel neither

seriously upsets the defendant’s preferences nor impairs

the defendant’s representation at trial. As noted above, a

defendant’s second-choice lawyer may sometimes be better

than the defendant’s first-choice lawyer. Defendants who

retain counsel are frequently forced to choose among

attorneys whom they do not know and about whom they

have limited information, and thus a defendant may not

have a strong preference for any one of the candidates. In

addition, if all of the attorneys considered charge roughly

comparable fees, they may also be roughly comparable in

experience and ability. Under these circumstances, the

erroneous disqualification of a defendant’s first-choice

attorney may simply mean that the defendant will be

represented by an attorney whom the defendant very

nearly chose initially and who is able to provide represen

tation that is just as good as that which would have been

furnished by the disqualified attorney. In light of these

realities, mandating reversal without even a minimal

showing of prejudice on the part of the defendant is

unwarranted.

The consequences of the majority’s holding are particu

larly severe in the federal system and in other court sys

tems that do not allow a defendant to take an interlocu

tory appeal when counsel is disqualified. See Flanagan v.

United States, 465 U. S. 259, 260 (1984). Under such

systems, appellate review typically occurs after the defen

dant has been tried and convicted. At that point, if an

appellate court concludes that the trial judge made a

marginally incorrect ruling in applying its own pro hac

vice rules, the appellate court has no alternative but to

order a new trial—even if there is not even any claim of

prejudice. The Sixth Amendment does not require such

results.

Because I believe that some showing of prejudice is

required to establish a violation of the Sixth Amendment,

Cite as: 548 U. S. ____ (2006) 11

ALITO, J., dissenting

I would vacate and remand to let the Court of Appeals

determine whether there was prejudice. However, assum

ing for the sake of argument that no prejudice is required,

I believe that such a violation, like most constitutional

violations, is amenable to harmless-error review. Our

statutes demand it, and our precedents do not bar it. I

would then vacate and remand to let the Court of Appeals

determine whether the error was harmless in this case.