Petition for Writ of Certiorari — Lourdes Margarita Garcia, Petitioner v. United States
Supreme Court briefMar 18, 2019
Ask Donna
What actually matters in this document.
Text
NO:
______________________________________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
_____________________
LOURDES MARGARITA GARCIA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
_____________________
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
_____________________
PETITION FOR WRIT OF CERTIORARI
_____________________
MICHAEL CARUSO
Federal Public Defender
Counsel for Petitioner
150 West Flagler Street, Suite 1500
Miami, Florida 33130-1555
Telephone (305) 536-6900
______________________________________________________________________________
QUESTION PRESENTED FOR REVIEW
The district court ordered the government, at a critical stage of the trial, to present
inculpatory and disputed evidence in the absence of the defendant and her counsel.
Did the Eleventh Circuit err by holding this “startling, intentional” violation of the
defendant’s constitutional and statutory rights did not constitute structural or
hybrid error and therefore required a showing of prejudice.
INTERESTED PARTIES
There are no parties to the proceeding other than those named in the caption
of the case.
i
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW .................................................................... i
INTERESTED PARTIES ............................................................................................... i
TABLE OF AUTHORITIES ......................................................................................... iv
PETITION ...................................................................................................................... 1
OPINION BELOW......................................................................................................... 2
STATEMENT OF JURISDICTION .............................................................................. 2
STATUTORY AND OTHER PROVISIONS INVOLVED ............................................ 2
STATEMENT OF THE CASE....................................................................................... 4
REASONS FOR GRANTING THE WRIT .................................................................. 10
I. The Application of Cronic’s Automatic Reversal Rule to a
Direct Appeal Challenging Defense Counsel’s Absence During a
Critical Stage of Trial Has Deeply Divided the Courts of
Appeals, and is an Open Question Under Supreme Court
Precedent. ....................................................................................................... 13
II. Petitioner’s Case Provides an Ideal Vehicle to Resolve
Cronic’s Application to Direct Appeals Challenging Defense
Counsel’s Absence During a Critical Stage of Trial. ............................. 25
III. The Eleventh Circuit’s Decision To Not Recognize The
Brecht “Hybrid” Error Standard Has Created a Conflict And Is
An Open Question Under Supreme Court Precedent. .......................... 26
CONCLUSION............................................................................................................. 30
APPENDIX
Decision of the Court of Appeals for the Eleventh Circuit,
United States v. Lourdes Margarita Garcia................................................... A-1
Order Denying Petition for Rehearing,
United States v. Lourdes Margarita Garcia................................................... A-2
ii
Motion for New Trial ...................................................................................... A-3
Order Denying Motion for New Trial ............................................................ A-4
Judgment imposing sentence ......................................................................... A-5
iii
CASES
TABLE OF AUTHORITIES
Arizona v. Fulminante,
499 U.S. 279 (1991) ............................................................................... 10, 15, 16
Bell v. Cone,
535 U.S. 685 (2002) ..................................................................................... 14, 23
Brecht v. Abrahamson,
507 U.S. 619 (1993) ..................................................................................... 11, 26
Brooks v. Tennessee,
406 U.S. 605 (1972) ........................................................................................... 13
Burdine v. Johnson,
262 F.3d 336 (5th Cir. 2001) ....................................................................... 22, 24
Chambers v. Maroney,
399 U.S. 42 (1970) ............................................................................................. 10
Chapman v. California,
386 U.S. 18 (1967) ............................................................................... 8, 9, 10, 15
Coleman v. Alabama,
399 U.S. 1 (1970) ............................................................................................... 14
Davis v. Alaska,
415 U.S. 308 (1974) ........................................................................................... 14
Ferguson v. Georgia,
365 U.S. 570 (1961) ........................................................................................... 13
iv
Geders v. United States,
425 U.S. 80 (1976) ............................................................................................. 13
Gideon v. Wainwright,
372 U.S. 335 (1963) ............................................................................... 12, 16, 25
Green v. Arn,
809 F.2d 1257 (6th Cir.1987) ................................................................ 18, 20, 21
Hamilton v. Alabama,
368 U.S. 52 (1961) ................................................................................. 13, 14, 23
Hernandez v. United States,
202 F.3d 486 (2d Cir.2000) ............................................................................... 18
Herring v. New York,
422 U.S. 853 (1975) ........................................................................................... 13
Hunte v. Keane,
CV–97–1879 (RR), 1999 WL 754273 (E.D.N.Y. Aug. 24, 1999) ...................... 18
Kotteakos v. United States,
328 U.S. 750 (1946) ..................................................................................... 11, 26
Marshall v. Rodgers,
569 U.S. 58 (2013) ....................................................................................... 19, 29
Neder v. United States,
527 U.S. 1 (1999) ............................................................................................... 15
Strickland v. Washington,
446 U.S. 668 (1984) ....................................................................................... 8, 16
v
Tucker v. Day,
969 F.2d 155 (5th Cir.1992) .............................................................................. 18
United States v. Bowen,
799 F.3d 336 (5th Cir. 2015) ................................................................. 11, 26, 29
United States v. Cronic,
466 U.S. 648 (1984) ................................................................................... passim
United States v. Garcia,
906 F.3d 1255 (11th Cir. 2018) ....................................................................... 7, 9
United States v. Glasser,
315 U.S. 60 (1942) ............................................................................................. 14
United States v. Gonzalez-Lopez,
548 U.S. 140 (2006) ..................................................................................... 10, 15
United States v. Harbin,
250 F.3d 532 (7th Cir.2001) .............................................................................. 29
United States v. Lampton,
158 F.3d 251 (5th Cir.1998) .............................................................................. 18
United States v. Martinez,
850 F.3d 1097 (9th Cir. 2017) ........................................................................... 20
United States v. Minsky,
963 F.2d 870 (6th Cir. 1992) ............................................................................. 21
United States v. Olden,
224 F.3d 561 (6th Cir. 2000) ....................................................................... 20, 21
vi
United States v. O'Leary,
856 F.2d 1011 (7th Cir.1988) ...................................................................... 18, 21
United States v. Roy,
855 F.3d 1133 (11th Cir. 2017) ................................................................. passim
United States v. Russell,
205 F.3d 768 (5th Cir. 2000) ..................................................................... passim
United States v. Wade,
388 U.S. 218 (1967) ..................................................................................... 13, 14
Van v. Jones,
475 F.3d 292 (6th Cir. 2007) ....................................................................... 17, 19
Vines v. United States,
28 F.3d 1123 (11th Cir.1994) ...................................................................... 18, 24
Weaver v. Massachusetts,
___ U.S. ___, 137 S. Ct. 1899 (2017) ........................................................... 15, 16
White v. Maryland,
373 U.S. 59 (1963) ................................................................................. 13, 14, 23
Williams v. Kaiser,
323 U.S. 471 (1945) ........................................................................................... 13
Woods v. Donald,
575 U.S. ___, 135 S. Ct. 1372 (2015)................................................................. 18
vii
STATUTES
18 U.S.C. § 3742 ............................................................................................................. 2
28 U.S.C. § 1254(1) ........................................................................................................ 2
28 U.S.C. § 1291 ............................................................................................................. 2
OTHER AUTHORITIES
Fed. R. Crim. P. 43..................................................................................................... 5, 6
SUP. CT. R. 13.1 .............................................................................................................. 2
viii
IN THE
SUPREME COURT OF THE UNITED STATES
No:
LOURDES MARGARITA GARCIA,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
Lourdes Margarita Garcia respectfully petitions the Supreme Court of the
United States for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Eleventh Circuit, rendered and entered in case number 1411845-FF in that court on October 19, 2018, United States v. Lourdes Margarita
Garcia, which affirmed the judgment and commitment of the United States District
Court for the Southern District of Florida.
1
OPINION BELOW
A copy of the decision of the United States Court of Appeals for the Eleventh
Circuit, which affirmed the judgment and commitment of the United States District
Court for the Southern District of Florida, is contained in the Appendix (A-1). A
copy of the decision of the United States Court of Appeals for the Eleventh Circuit
denying Ms. Garcia’s Petition for Rehearing En Banc is contained in the Appendix
(A-2).
STATEMENT OF JURISDICTION
Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) and PART III of
the RULES OF THE SUPREME COURT OF THE UNITED STATES. The decision of the court
of appeals was entered on October 19, 2018. This petition is timely filed pursuant to
SUP. CT. R. 13.1. The district court had jurisdiction because petitioner was charged
with violating federal criminal laws. The court of appeals had jurisdiction pursuant
to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, which provide that courts of appeals shall
have jurisdiction for all final decisions of United States district courts.
STATUTORY AND OTHER PROVISIONS INVOLVED
Petitioner intends to rely upon the following constitutional provisions,
treaties, statutes, rules, ordinances and regulations:
The Fifth Amendment to the Constitution of the United States provides:
No person shall be . . . be deprived of life, liberty, or property, without due
process of law . . . .”
2
The Sixth Amendment to the Constitution of the United States provides:
In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him; . . . and to have the Assistance of
Counsel for his defence.
Federal Rule of Criminal Procedure Rule 43 provides:
(a) WHEN REQUIRED. Unless this rule, Rule 5, or Rule 10 provides otherwise,
the defendant must be present at:
. . . (2) every trial stage, including jury impanelment and the return of the
verdict; and . . . .
3
STATEMENT OF THE CASE
After a federal grand jury charged Ms. Garcia with various tax-related
offenses, she proceeded to trial. For the first five days of trial and the morning of
the sixth, Ms. Garcia and her counsel were present for the start of all court
proceedings. On the sixth day of trial, however, the district court ordered the trial to
resume without Ms. Garcia or either of her two lawyers present. During the time
that Ms. Garcia and her lawyers were not present, the government elicited
incriminating evidence from IRS Revenue Agent Angela Arevalo who had been
called as a witness prior to the lunch break. Ms. Garcia’s lead counsel missed
approximately three minutes of the direct examination, while Ms. Garcia missed
approximately five to ten minutes.
After a weekend break, trial continued the following Monday. At the request
of the government, the parties approached sidebar. Ms. Garcia remained at the
defense table.
At sidebar, the prosecutor reminded the district court that after the lunch
break on the previous Friday, trial had commenced without Ms. Garcia or her
counsel being present. The prosecutor informed the district court that he
understood that “they had a big crowd at the security station downstairs and they
were caught up in that and I think we only proceeded a minute or two.” The
prosecutor suggested that the testimony be read back into the record for the benefit
of Ms. Garcia and her counsel.
4
The district court reacted this way: “She didn’t have to be here if she didn’t
want to be here. I mean, everybody else seemed to be able to make it on time.”
Although unclear (because her two lawyers were women), presumably the district
court was rereferring to Ms. Garcia. The district court stated that the defense could
order a copy of the transcript if they wanted. Despite being informed by the
prosecutor that Ms. Garcia and her counsel were delayed due to the crowd at the
security checkpoint, the district court concluded that “she voluntarily absented
herself from the proceedings.” The district court ended the discussion by describing
the problem as “self-inflicted.” “She manufactured the problem herself; I don’t know
how she can fault anybody else for it.” The district court asked Ms. Garcia’s lawyer
if she had an objection and she stated “not at this time.” The district court did not
inquire of Ms. Garcia nor was she even aware that this discussion occurred.
Ultimately, the jury convicted Ms. Garcia of all counts.
Ms. Garcia then filed a Motion for New Trial. In her motion, she asserted
that the district court’s decision to resume the trial in her absence and the absence
of her counsel violated her Fifth and Sixth Amendment rights, and her right to be
present under Federal Rule of Criminal Procedure 43. In support, Ms. Garcia’s lead
counsel submitted an affidavit in which she stated under oath that courthouse
officials, employees of the court, prohibited Ms. Garcia from clearing the security
checkpoint because they erroneously believed that she had a telephone in her purse.
(A-3). As a result of this mistaken belief, the courthouse officials ordered Ms. Garcia
to remove all the contents from her purse. Id. While the wrongful search occurred,
5
Ms. Garcia’s lead counsel left the security checkpoint to return to the courtroom. Id.
When lead counsel returned, the prosecutor was eliciting testimony from Agent
Arevalo. Id. By her estimation, counsel missed approximately 3 minutes of
government directed questioning. Id.
Ms. Garcia waited downstairs for the officials to complete their search. Id.
Only after these officials thoroughly searched Ms. Garcia’s belongings did they
allow her to enter the courthouse. Id. Ms. Garcia arrived in the courtroom 5-10
minutes after the proceedings had commenced. Id.
The district court denied Ms. Garcia’s Motion for New Trial. First, the district
court held that by not allowing herself sufficient time — by assuming that she
would have to pass through a “longer security check than usual” — her absence
from the trial was “voluntary” and she had waived the right to be present under
Rule 43. (A-4). The court also faulted Ms. Garcia’s defense counsel for not raising a
contemporaneous objection or an objection the following trial day. Id. The district
court never examined his own actions in ordering the trial to commence with a
completely empty defense table. Id.
Similarly, the district court concluded that counsel’s absence did not work a
constitutional violation. Id. The district court held that by starting trial without her
counsel, Ms. Garcia was not “completely denied” counsel. Id. Furthermore, the
district court did not deem “critical” the portion of trial missed by counsel because
the testimony concerned a previously admitted government exhibit, counsel did not
6
object, counsel did not ask for the testimony to be read back, counsel failed to order
the transcript of the testimony she missed, and she cross-examined the witness. Id.
Finally, the district court held that no prejudice occurred from counsel’s absence
because the evidence was against Ms. Garcia was overwhelming, and therefore any
error was harmless. Id.
On appeal, the Eleventh Circuit Court of Appeals affirmed. Given the district
court’s actions, the majority opinion began by stating the obvious: “[t]his is a
troubling case.” United States v. Garcia, 906 F.3d 1255, 1260 (11th Cir. 2018). The
concurring opinion, while also calling the case “troubling” and “startling,” made a
sharper point by commenting that the district court had committed this type of
violation in a different case:
This troubling case presents a familiar factual scenario—a district
court judge permitted a criminal trial to resume, and inculpatory
evidence to be taken, without defense counsel present. We recently
confronted a nearly identical appeal from the same district judge as an
en banc court in United States v. Roy, 855 F.3d 1133 (11th Cir. 2017)
(en banc). In Roy, we determined that such constitutional violations
can—and usually will—be harmless. The facts of this case, however,
are even more egregious than those in Roy because here, the defendant
was also absent. Despite the deserted defense table, the district court
judge prompted the government to continue its direct examination of
an important witness.
Id. at 1284 (Wilson, J., concurring).
Despite the acknowledged troubling nature of this case, both the majority
and concurring opinions found that the district court’s deliberate and intentional
constitutional violations were “trial errors” susceptible to plain or harmless error
review. Id. at 1266; at 1284 (Wilson, J., concurring). To reach this conclusion, each
7
opinion treated United States v. Roy, 855 F.3d 1133 (11th Cir. 2017) (en banc) as
controlling the issue.
In Roy, a four-judge plurality found that a Sixth Amendment violation
occurred when the prosecutor introduced inculpatory evidence without the
defendant’s counsel present. Id. at 1142-43 (plurality opinion). Notwithstanding, the
plurality reasoned that unless counsel missed a “substantial portion” of the trial
prejudice would not be presumed and the court would engage in a harmless error
analysis. Because the court deemed counsel’s absence to be for an “insubstantial”
period, the court affirmed Roy’s conviction under the constitutional harmless error
doctrine of Chapman v. California, 386 U.S. 18 (1967). Id. at 1164 (plurality
opinion). Four concurring judges disagreed with the plurality’s creation of this
“substantial portion” test (dubbed the “New Rule” in various opinions), as did all
three dissenting judges.
Judge Rosenbaum’s concurring opinion rejected the New Rule, and contended
that the New Rule violated this Court’s instruction to use a categorical approach to
determining whether error is structural. Two other concurring opinions also
rejected the New Rule. Instead, Judges William Pryor and Jordan would have
simply applied the Chapman harmless error doctrine in any case, without adverting
first to the New Rule. Crucially, however, Judge Jordan left open the issue
presented here – the absence of both counsel and defendant.
Judge Tjoflat, concurring specially, had his own approach, arguing that “the
New Rule cannot exist side by side with Strickland v. Washington, 446 U.S. 668
8
(1984), the Court’s formulation for reviewing ineffective-of-assistance of counsel]”;
that it “materially alters the scheme the Supreme Court has established to protect
the right to the assistance of counsel,” and it changes the standard of review this
Court applies by not only replacing Strickland with Chapman, but also by setting
aside plain-error review when defense counsel fails to object to the introduction of
inculpatory testimony taken in his absence.
Three other opinions, authored by Judges Wilson, Martin and Jill Pryor,
dissented entirely, rejecting the New Rule and requiring adherence to the
categorical formulation of structural error, presumed prejudice, and automatic
reversal.
As this recitation makes clear, Roy did not control Ms. Garcia’s case, and the
panel here never grappled with what made Ms. Garcia’s case different: (1) the
absence of both Ms. Garcia and her lawyer; and (2) the undisputed fact that the
district court deliberately and intentionally violated Ms. Garcia’s constitutional
rights.
Instead, the panel made the determination that the district court’s
intentional and deliberate violation of Ms. Garcia’s constitutional rights was not a
structural error because: (1) the Supreme Court has stated “the vast majority of
constitutional errors that occur at a criminal trial, including Sixth Amendment
violations, should be examined for prejudicial effect and those errors do not require
reversal if they are harmless”; and (2) “[s]ound considerations of judicial policy show
why we rarely treat an error as structural.” Garcia, 906 F.3d 1255, 1264 (11th Cir.
9
2018). As for whether the intentional constitutional violations were “hybrid” errors
under Brecht v. Abrahamson, 507 U.S. 619 (1993), the court stated in a footnote
that “[w]e have never recognized this standard—known as “hybrid error”—and
decline to do so here.’ Garcia, 906 F.3d at 1263 n.1.
This petition for a writ of certiorari follows.
REASONS FOR GRANTING THE WRIT
This Court’s cases recognize two broad categories of constitutional errors in
criminal trials: trial errors (as to which prejudice must be demonstrated) and
structural errors (as to which prejudice is presumed). A trial error is a discrete error
that “‘occur[s] during presentation of the case to the jury.’” United States v.
Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (quoting Arizona v. Fulminante, 499 U.S.
279, 307-308 (1991)). A trial error is amenable to harmless-error analysis because it
“may . . . be quantitatively assessed in the context of other evidence presented in
order to determine [the effect it had on the trial].” Id. at 307-08.
Trial errors include, for example, admission of evidence obtained in violation
of the Fourth Amendment (Chambers v. Maroney, 399 U.S. 42 (1970)), a
prosecutor’s comment on the defendant’s silence in violation of the Fifth
Amendment (Chapman v. California, 386 U.S. 18 (1967)), and a restriction on a
defendant’s right to cross-examine a witness in violation of the Sixth Amendment
(Delaware v. Van Arsdall, 475 U.S. 673 (1986)). See Fulminante, 499 U.S. at 306307 (collecting examples).
10
Structural defects, on the other end of the spectrum, are “defects in the
constitution of the trial mechanism” that affect “the framework within which the
trial proceeds,” with such a resulting impairment in the trial’s function of
determining guilt or innocence that “‘no criminal punishment may be regarded as
fundamentally fair.’” Fulminante, 499 at 309–10 (quoting Rose v. Clark, 478 U.S.
570, 577–78 (1986). Structural defects lead to automatic reversals because they are
per se prejudicial. See id. at 307–10.
This Court also has identified a mode of review that lies between structural
defects and trial errors. In Brecht v. Abrahamson, 507 U.S. 619 (1993), this Court
held that to obtain relief on collateral review, a habeas petitioner must establish
that the constitutional trial error had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Id. at 637–38 (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946). In other words, the habeas petitioner must
establish actual prejudice. But, this Court also stated that:
in an unusual case, a deliberate and especially egregious error of the
trial type, or one that is combined with a pattern of prosecutorial
misconduct, might so infect the integrity of the proceeding as to
warrant the grant of habeas relief, even if it did not substantially
influence the jury’s verdict.
Id. at 638 n. 9. Although decided in the habeas context, Brecht review has been
found to be applicable to cases on direct appeal with the burden of proof falling on
the party defending the verdict. See United States v. Bowen, 799 F.3d 336 (5th Cir.
2015); United States v. Harbin, 250 F.3d 532, 545 (7th Cir. 2001).
11
In this case, the district court committed both a standard Fifth and Sixth
Amendment violation and a “deliberate and egregious” error by ordering the
government to present inculpatory evidence in the absence of Ms. Garcia and her
lawyer. First, the district court’s actions violated Ms. Garcia’s right to due process
and right to counsel. Second, these violations were intentional and purposeful. The
government concedes (and the Court of Appeals did not question) that the district
court knew that Ms. Garcia and her counsel were absent. When court resumed after
lunch, the defense table was completely empty. Despite the knowing absence of Ms.
Garcia and her lawyers, the district court directed the prosecutor to continue his
direct examination of Agent Arevalo. The prosecutor, who also knew that Ms.
Garcia and her lawyers were absent, took this opportunity to elicit inculpatory
evidence from Agent Arevlo.
Third, the district court’s actions were egregious. As Judge Rosenbaum wrote
in Roy “the right to counsel—particularly during trial—is absolutely fundamental to
our system of justice. A single-defendant trial where counsel is absent for more than
a very brief period inflicts great damage upon our system of justice; it is antithetical
to it, to our sense of fairness, and to the reliability of any resulting verdict.” Roy,
855 F.3d at 1228 (Rosenbaum, J., concurring in part and concurring in the result).
And we know from Roy that this is not the first time this district court judge has
invited the government to elicit inculpatory evidence in the absence of the
defendant’s lawyer. Id. at 1135. The district court’s pattern of permitting the
government to introduce inculpatory evidence against a defendant in the absence of
12
counsel, without any inquiry as to why counsel was not present, is an affront to the
Constitution and the law of the United States. The government exacerbated the
violation by eliciting disputed and objectionable testimony during their absence.
I.
The Application of Cronic’s Automatic Reversal Rule to a Direct
Appeal Challenging Defense Counsel’s Absence During a Critical
Stage of Trial Has Deeply Divided the Courts of Appeals, and is an
Open Question Under Supreme Court Precedent.
In United States v. Cronic, 466 U.S. 648 (1984), the Court drew on the
fundamental principle of Gideon v. Wainwright, 372 U.S. 335 (1963), to establish a
categorical rule for review of a criminal trial from which defense counsel was
absent: “The presumption that counsel’s assistance is essential requires us to
conclude that a trial is unfair if the accused is denied counsel at a critical stage of
his trial.” Cronic, 466 U.S. at 658-59. In declaring its rule of presumptive
unfairness, the Court reasoned that “[t]here are . . . circumstances that are so likely
to prejudice the accused that the cost of litigating their effect in a particular case is
unjustified.” 466 U.S. at 658-659 & n.25. These include if “the accused is denied
counsel at a critical stage of his trial.” Id.
Cronic explains that the automatic reversal rule derived from a long line of
Court precedent: “The Court has uniformly found constitutional error without any
showing of prejudice when counsel was either totally absent, or prevented from
assisting the accused during a critical stage of the proceeding.” 466 U.S. at 659, n.25
(alternate citations omitted) (citing Geders v. United States, 425 U.S. 80 (1976);
Herring v. New York, 422 U.S. 853 (1975); Brooks v. Tennessee, 406 U.S. 605, 612–
613 (1972); Hamilton v. Alabama, 368 U.S. 52, 55 (1961); White v. Maryland, 373
13
U.S. 59, 60 (1963) (per curiam); Ferguson v. Georgia, 365 U.S. 570 (1961); Williams
v. Kaiser, 323 U.S. 471, 475–476 (1945)).
Cronic’s categorical rule about the absence of counsel fortifies the Sixth
Amendment’s expectations about the role of defense counsel. Thus, a critical stage
arises whenever “[a]vailable defenses may be . . . irretrievably lost, if not then and
there asserted,” Hamilton v. Alabama, 368 U.S. at 54, “where rights are preserved
or lost,” White v. Maryland, 373 U.S. at 60, “whenever necessary to assure a
meaningful ‘defence,’” United States v. Wade, 388 U.S. 218, 225 (1967), where
“‘potential substantial prejudice to defendant’s rights inheres in the . . .
confrontation and the ability of counsel to help avoid that prejudice,’” Coleman v.
Alabama, 399 U.S. 1, 9 (1970) (alteration in Coleman) (quoting Wade, 388 U.S. at
227), and when the stage holds “significant consequences for the accused,” Bell v.
Cone, 535 U.S. 685, 696 (2002).
Thus, for example, the presence of counsel during the examination of an
adverse witness is “necessary to assure a meaningful ‘defence.’” See Wade, 388 U.S.
at 225. This is for good reason. The absence of counsel during the presentation of
inculpatory evidence used by the government to convict the defendant eliminates
the opportunity for the defense to decide whether to lodge an objection and how to
frame the objection, as well as the ability to conduct cross-examination. See Davis v.
Alaska, 415 U.S. 308, 318 (1974) (“[D]eni[al of] the right of effective crossexamination [is] constitutional error of the first magnitude and no amount of
showing of want of prejudice would cure it.” (internal quotation marks omitted)).
14
Indeed, a defendant may irretrievably lose available defenses and rights during
direct testimony of a prosecution witness. See Hamilton, 368 U.S. at 54; White, 373
U.S. at 60.
Cronic’s categorical rule of presumed prejudice mirrors the Court’s
declaration 75 years ago that “[t]he right to have the assistance of counsel is too
fundamental and absolute to allow courts to indulge in nice calculations as to the
amount of prejudice resulting from denial.” United States v. Glasser, 315 U.S. 60, 76
(1942). For this is a structural error, which is “markedly different” from trial errors
(which can be “quantitatively assessed”), and it is for this reason that structural
errors “defy analysis by harmless-error standards.” Arizona v. Fulminante, 499 U.S.
279, 308-09 (1991) (Rehnquist, C.J., maj. op.) (internal quotation marks omitted).
The Court’s decision in United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006)
highlights “the myriad aspects of representation” the participation of an attorney
entails that make it impossible to truly quantify the extent of error resulting from
the absence of one’s counsel.
Cronic’s categorical rule is also entirely consistent with Court’s most recent
discussion of structural error on direct appeal, in which the Court reminded that, in
such cases, “the defendant generally is entitled to ‘automatic reversal’ regardless of
the error’s actual ‘effect on the outcome.’” Weaver v. Massachusetts, ___ U.S. ___,
137 S. Ct. 1899, 1910 (2017) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)).
On direct appeal, the Court noted, “the government is not entitled to deprive the
defendant of a new trial by showing that the error was ‘harmless beyond a
15
reasonable doubt’ [under Chapman v. California, 386 U.S. 18 (1967)].” Weaver, 137
S. Ct.; see also, United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (where counsel
of one’s choice is denied, “it is unnecessary to conduct an ineffectiveness or prejudice
inquiry to establish a Sixth Amendment violation.”). The latter decision was
reiterated in Weaver: “Because harm is irrelevant to the basis underlying the right,
the Court has deemed a violation of that right structural error.” (citing United
States v. Gonzalez–Lopez, 548 U.S. at 149, n. 4).
The reason that structural error requires automatic reversal on direct appeal
(as opposed to on collateral review) is described in some detail in Weaver, which
discusses the types of structural errors that may arise and the purposes for
recognizing them. One “purpose of the structural error doctrine is to ensure
insistence on certain basic, constitutional guarantees that should define the
framework of any criminal trial” 137 S. Ct. at 1907. “Thus,” the Court explained,
“the defining feature of a structural error is that it ‘affect[s] the framework within
which the trial proceeds,’ rather than being ‘simply an error in the trial process
itself.’” (quoting Arizona v. Fulminante, 499 U.S. at 310). “For the same reason, a
structural error ‘def[ies] analysis by harmless error standards.’” Id. (quoting
Fulminante, 499 U.S. at 309).
Although Weaver addressed a different type of structural error – a closed
courtroom – the decision nevertheless discusses the structural error resulting from
absent counsel: “[A]n error has been deemed structural if the error always results in
fundamental unfairness. For example, if an indigent defendant is denied an
16
attorney . . . , the resulting trial is always a fundamentally unfair one.” 137 S. Ct. at
1908 (citing Gideon v. Wainwright, 372 U.S. at 343–345). “It therefore would be
futile for the government to try to show harmlessness.” Weaver, 137 S. Ct. 1908.
Cronic’s rule governing the absence of counsel from a critical stage of trial is
different from the analytical rule for claims of ineffective assistance of counsel by
lawyers present in the courtroom. On the day Cronic was decided, the Court also
decided Strickland v. Washington, 446 U.S. 668 (1984), which sets forth the
formulation for addressing ineffective assistance of counsel claims. Although
Strickland claims require a showing of prejudice, Cronic dispenses with the
prejudice component in cases in which counsel was absent from a critical stage.
Cronic appears to provide a straightforward categorical rule: A defendant’s
conviction should be reversed if the defense attorney was absent from a critical
stage of his trial. Yet, the circuits have wrestled with the meaning of the phrase
“critical stage of his trial” in cases in which counsel was temporarily absent during
trial. The Roy en banc opinion upon which the decision in Ms. Garcia’s case rested,
candidly shared the lament of the Sixth Circuit about the lack of clear guidance on
the question: “We, like the Sixth Circuit, ‘would welcome a final and one-line
definition of “critical stage” for the purposes of determining whether error is Cronic
error. Van v. Jones, 475 F.3d 292, 312 (6th Cir. 2007). Relatedly, the en banc
plurality opinion lamented the absence of Court guidance on the application of
critical-stage analysis to temporary absence of counsel: “[T]he Supreme Court has
never addressed th[e] issue [of whether prejudice is presumed when a defendant is
17
temporarily without counsel during a critical stage of trial].” Roy, 855 F.3d at 1160
(plurality opinion).
The uncertainty has existed for many years and has plagued a wide variety of
cases. In United States v. Russell, 205 F.3d 768, 771-72 (5th Cir. 2000), the Fifth
Circuit recounted a number of such cases through the last century:
Since Cronic was announced, various Courts of Appeals have struggled
to define the “critical” stages of trial during which the absence of
counsel creates a presumption of prejudice. See e.g., Hernandez v.
United States, 202 F.3d 486, 489 (2d Cir.2000) (finding that counsel's
failure to prosecute direct appeal of conviction is prejudicial per se);
United States v. Lampton, 158 F.3d 251, 255 (5th Cir.1998) (finding
that absence of counsel at juror-tampering hearing due to illness was
harmless error); Vines v. United States, 28 F.3d 1123, 1129 (11th
Cir.1994) (in a multi-defendant case finding that absence of counsel
during the taking of non-inculpatory evidence at trial is not prejudicial
per se); Tucker v. Day, 969 F.2d 155, 159 (5th Cir.1992) (finding that
constructive absence of counsel at re-sentencing hearing was
prejudicial per se); United States v. O'Leary, 856 F.2d 1011, 1019 (7th
Cir.1988) (finding that absence of counsel on appeal and failure to
timely file brief was prejudicial per se); Green v. Arn, 809 F.2d 1257,
1263 (6th Cir.1987) (finding the absence of counsel during the taking of
evidence on the defendant’s guilt at trial was prejudicial per se),
vacated on other grounds, 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17
(1987), reinstated, 839 F.2d 300 (1988); Siverson[ v. O’Leary], 764 F.2d
[1208 (7th Cir. 1985)] at 1220 (finding the absence of counsel during
jury deliberations was harmless error); see also Hunte v. Keane, CV–
97–1879 (RR), 1999 WL 754273, at *8 (E.D.N.Y. Aug. 24, 1999)
(finding that absence of counsel at suppression hearing is not
prejudicial).
205 F.3d at 771-72.
That
uncertainty
continues
because
the
Court
specifically
deferred
addressing the substantive question in its recent decision in Woods v. Donald, 575
U.S. ___, 135 S. Ct. 1372, 1378 (2015) (per curiam). Donald’s counsel was
temporarily absent from a multi-defendant trial while testimony was elicited about
18
a chart of phone calls among his co-defendants. Donald’s counsel had disclaimed his
client’s interest in, or dispute with, the chart both before and after his absence. The
question presented was whether the temporary absence of counsel, under these
circumstances, constituted Cronic error. Although this Court noted that “none of
our cases confront the specific question presented by this case,” it deferred
answering the constitutional question based on prudential grounds reserved to
habeas corpus review: “Because we consider this case only in the narrow context of
federal habeas review, ‘we express no view on the merits of the underlying Sixth
Amendment principle.’” 135 S. Ct. at 1378 (quoting Marshall v. Rodgers, 569 U.S.
58 (2013) (per curiam).
The decision below illustrates the resulting uncertainty. The district court
denied Ms. Garcia her counsel because he commenced the post-lunch afternoon
session before defense counsel returned to the courtroom. Despite Ms. Garcia and
her counsel’s absence, the district court directed the government to resume its
direct examination of disputed inculpatory expert testimony. There is no dispute
that the absence of both the defendant and her counsel was known to both the court
and the prosecutor.
As noted, the Sixth Circuit has openly pondered, “What is a critical stage?”
and welcomed this Court’s guidance. Van v. Jones, 475 F.3d at 312: “The case law
available suggests that the pithy definitions we have do not simply capture the
sometimes permissive or inclusive conclusions by the Supreme Court and our court
that this or that period, moment, or event in the course of a criminal proceeding is a
19
critical stage.” Id. (holding absence of counsel at a consolidation hearing was not a
critical stage).
Circuit confusion over what constitutes a critical stage increased when
recently the Ninth Circuit noted it had itself “muddled” the answer by its own cases
that have accorded different meanings to the phrase critical stage based on whether
the Sixth Amendment right is being enforced, or its violation is analyzed as error.
“Our circuit has muddled the analysis of which trial stages are ‘critical stages’ so as
to trigger Sixth Amendment rights and which are ‘critical stages’ so that the
absence of counsel during the stage is structural error.” United States v. Martinez,
850 F.3d 1097, 1104 n.4 (9th Cir. 2017) (holding that critical stage includes trial
court’s response to substantive jury note during deliberations).
This confusion stands in contrast to decisions of some other circuits, and the
Court, which have understood Cronic’s categorical critical stage approach. In
protecting a defendant’s Sixth Amendment right to counsel, Cronic speaks
specifically to “a critical stage of his trial.” 466 U.S. at 658-59. The Fifth and Sixth
Circuits have held that the presentation of inculpatory testimony by a government
witness is a critical stage of trial. United States v. Russell, 205 F.3d 768 (5th Cir.
2000) (reversing conviction due to counsel’s absence during presentation of
evidence, a “critical stage” of trial); United States v. Olden, 224 F.3d 561 (6th Cir.
2000) (“When the government presents evidence probative of a defendant’s
culpability in criminal activity, or evidence that further implicates a defendant in
criminal conduct, that portion of the trial is sufficiently critical to trigger the
20
protections of Cronic.”); Green v. Arn, 809 F.2d 1257, 1263 (6th Cir.1987), rem. other
grounds (mootness), 484 U.S. 806 (1987), reinstated following remand, 839 F.2d 300
(6th Cir. 1988 (Cronic rule of automatic reversal applies when counsel is absent
during taking of evidence).
The Cronic rule applies to temporary absences of counsel from a critical stage
of trial. Green, 839 F.2d 300; see Russell; Olden; see also, United States v. Minsky,
963 F.2d 870, 874 (6th Cir. 1992) (citing Cronic) (when a defendant has been denied
counsel’s presence from a critical stage of proceedings, an ensuing conviction must
be reversed, without any specific showing of prejudice).
Green v. Arn addressed what the prosecution estimated was a five-minute
absence of counsel during testimony by a prosecution witness. Counsel for codefendants remained in the courtroom. During Green’s lawyer’s absence, codefendants’ counsel conducted cross-examination of a prosecution witness.
Ultimately, Green was convicted of kidnaping and gross sexual imposition. In
affirming a grant of habeas corpus based on his counsel’s absence, the Sixth Circuit
determined that “[t]he presumption that counsel’s assistance is essential requires
us to conclude that a trial is unfair if the accused is denied counsel at a critical
stage of his trial.” Id. at 1263 (quoting Cronic, 466 U.S. at 659). As the Sixth Circuit
stated, “the present case is one where a harmless error inquiry should be foreclosed.
It is difficult to perceive a more critical stage of a trial than the taking of evidence
on the defendant’s guilt.” Id. at 1263. Green held: “The absence of counsel during
the taking of evidence on the defendant’s guilt is prejudicial per se and justifies an
21
automatic grant of the writ ‘without any opportunity for a harmless error inquiry.’”
Id. (quoting Siverson v. O’Leary, 764 F.2d at 1217 n.6).
The Fifth Circuit’s decision in United States v. Russell is in accord. Russell’s
lawyer became ill during his conspiracy trial. A co-defendant’s lawyer offered to sit
in and “[t]he district court instructed the government not to call any witness
relevant to Russell” while Russell’s counsel was absent. 205 F.3d at 769-70. None of
the testimony presented during counsel’s absence “directly implicated Russell,” but
evidence relating to the conspiracy, which detailed the co-conspirators’ attempts to
launder money and import marijuana, was introduced. Id. at 770. Before counsel
became ill, the government had presented evidence “about Russell’s management of
the distribution of marijuana operations and involvement in providing [a coconspirator] with funds.” Id. The evidence presented during counsel’s absence
therefore “flowed directly from Russell’s role in the money laundering conspiracy to
the roles of [his co-conspirators] in the same money laundering conspiracy and the
overall conspiracy to import and distribute marijuana.” Id. The Fifth Circuit held
that counsel was denied at a critical stage of his trial and that the Cronic
presumption applied because “Russell [was] without counsel as the probability of
his guilt increased during the government’s presentation of evidence against his coconspirators.” Id. at 772.
Also illustrative of the Cronic rule’s application is the Fifth Circuit’s decision
in Burdine v. Johnson, 262 F.3d 336, 339 (5th Cir. 2001) (en banc) (citing and
quoting Cronic). In Burdine the en banc Fifth Circuit considered an occasionally
22
sleeping lawyer, who was physically present at trial, but mentally absent. The court
began its analysis by recognizing that “[t]he Supreme Court has long recognized
that a ‘trial is unfair if the accused is denied counsel at a critical stage of his trial.’”
Id. “To justify a particular stage as critical, the Court has not required the
defendant to explain how having counsel would have altered the outcome of his
specific case. Rather, the Court has looked to whether the substantial rights of a
defendant may be affected during that type of proceeding.” 262 F.3d at 347. “[I]n
such circumstances, the Supreme Court’s Sixth Amendment jurisprudence compels
the presumption that counsel’s unconsciousness prejudiced the defendant.” Id.
Applying that rule to a sleeping lawyer, the court noted that counsel was “absent”
by virtue of his unconsciousness during sleep “through a not insubstantial portion of
the 12 hour and 51 minute trial.” Id. Significantly, the Burdine court equated
unconsciousness “to no counsel at all,” because “[u]nconscious counsel does not
analyze, object, listen or in any way exercise judgment on behalf of a client.” Id.
Thus, the court ruled that “[w]hen we have no basis for assuming that counsel
exercised judgment on behalf of his client during critical stages of the trial, we have
insufficient basis for trusting the fairness of that trial and consequently must
presume prejudice.” Id.
The Cronic rule has been reiterated by the Court, as in Bell v. Cone, 535 U.S.
685, 695-96 (2002): “A trial would be presumptively unfair, we said [in Cronic],
where the accused is denied the presence of counsel at a ‘critical stage,’ . . . a phrase
we used in Hamilton v. Alabama, . . . and White v. Maryland . . . to denote a step of
23
a criminal proceeding . . . that held significant consequences for the accused.” (citing
and quoting Cronic) (citations omitted).
This is consistent with the position previously taken by the Eleventh Circuit
before the development of the “New Rule.” Prior to the Roy en banc decision, the
Eleventh Circuit summarized Cronic’s impact on appellate review, the presumption
of prejudice, and the application of the automatic reversal rule:
Cronic recognizes that there are “circumstances that are so likely to
prejudice the accused that the cost of litigating their effect in a
particular case is unjustified.” Id. 466 U.S. at 658. Cronic teaches that
prejudice will be presumed if: (1) counsel is completely denied; (2)
counsel is denied at a critical stage of trial; or (3) counsel fails to
subject the prosecution’s case to meaningful adversarial testing. Id. at
659. This presumption of prejudice is seemingly irrebuttable since “the
cost of litigating [its] effect . . . is unjustified.” Id. at 658.
United States v. Vines, 28 F.3d 1123, 1127 (11th Cir. 1994 (alternate citations
omitted) (ultimately finding that counsel’s absence was not during a critical stage of
trial because inculpatory evidence had not been presented). Vines’ understanding of
what constitutes a critical stage has now been repudiated and expressly limited by
the Roy en banc decision relied upon by the panel in this case. Notably, however,
the Fifth Circuit’s decisions in Russell, 205 F.3d at 772 and Burdine, 262 F.3d 387,
previously relied on Vines’ original pronouncement, citing it with approval,
heightening the present inter-circuit conflict.
The circuits are at odds. They have expressed confusion and acknowledged
their own muddling of what constitutes a critical stage of trial. The issue is ripe for
certiorari review.
24
II.
Petitioner’s Case Provides an Ideal Vehicle to Resolve Cronic’s
Application to Direct Appeals Challenging Defense Counsel’s
Absence During a Critical Stage of Trial.
Ms. Garcia’s case is an ideal vehicle with which to clarify the framework for
reviewing temporary absence of counsel from trial. It was a jury trial of a single
defendant with a lawyer who was absent during a portion of trial in which the
prosecution elicited disputed testimony used to convict her. The record of these
events is clear and undisputed.
The facts and procedural posture of the present case permit the Court to set
forth a clearly defined interpretation of Cronic’s rule governing the presence of
counsel during trial court proceedings: A trial judge has a duty to ensure the Fifth
and Sixth Amendment right to counsel at each critical stage of proceedings,
including trial. See Gideon and Cronic. A session of trial at which incriminating
evidence will be adduced may not commence in the absence of defense counsel.
The transcript of proceedings in the present case provides an uncluttered
backdrop for application of the Cronic rule when a direct appeal challenges the
temporary absence of counsel during trial. Here, there is no dispute that the trial
judge intentionally violated Ms. Garcia’s rights by ordering the prosecutor to
continue despite a completely empty defense table. Moreover, the prosecutor also
conceded on appeal that he too knew that the defense table was empty. These
record facts and circumstances permit a clear-cut application of Cronic’s categorical
rule to the temporary absence of counsel caused when a trial judge intentionally
violates a defendant’s constitutional right to the assistance of counsel.
25
III.
The Eleventh Circuit’s Decision To Not Recognize The Brecht
“Hybrid” Error Standard Has Created a Conflict And Is An Open
Question Under Supreme Court Precedent.
In addition to the Cronic error issue present in this case, Ms. Garcia’s
petition presents an ideal vehicle for a question left open by this Court in Brecht v.
Abrahamson, 507 U.S. 619 (1993). To obtain relief on collateral review, a habeas
petitioner must establish that the constitutional trial error had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Id. at 637–38
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946). In other words, the
habeas petitioner must establish actual prejudice. But, the Supreme Court also
stated that:
in an unusual case, a deliberate and especially egregious error of the
trial type, or one that is combined with a pattern of prosecutorial
misconduct, might so infect the integrity of the proceeding as to
warrant the grant of habeas relief, even if it did not substantially
influence the jury’s verdict.
Id. at 638 n. 9. Although decided in the habeas context, Brecht review has been
found to be applicable to cases on direct appeal with the burden of proof falling on
the party defending the verdict. Brecht 507 U.S. at 760; United States v. Bowen, 799
F.3d 336 (5th Cir. 2015. And, Brecht error does not depend on an allegation of
prosecutorial misconduct. Rather, Brecht error may be predicated solely upon a
deliberate and egregious trial error committed by the district court judge. Brecht,
507 U.S. at 638 n.9.
In this case, the Court of Appeals recognized that the district court
committed a “deliberate and egregious” error by ordering the government to present
26
inculpatory evidence in the absence of Ms. Garcia and her lawyers. First, the
district court’s actions were intentional and purposeful. There is no doubt that the
district court knew that Margarita and her counsel were absent. When court
resumed after lunch, the defense table was completely empty. This could not have
escaped the district court’s notice.
Moreover, the district court made clear that trial started at the appointed
time even if Margarita and her counsel were not present: “She didn’t have to be
here if she didn’t want to be here. I mean, everyone else seemed to be able to make
it on time.” The reasonable inference based upon these proceedings and Roy is that
district court’s practice is to begin trial without the defendant and counsel being
present if everyone else is present.
Despite the knowing absence of Ms. Garcia and her lawyers, the district court
directed the prosecutor to continue his direct examination of Agent Arevalo. The
prosecutor, who also knew that Margarita and her lawyers were absent, took this
opportunity to elicit inculpatory evidence from Agent Arevalo.
Second, the district court’s actions were egregious. As Judge Rosenbaum
wrote in Roy: “the right to counsel—particularly during trial—is absolutely
fundamental to our system of justice. A single-defendant trial where counsel is
absent for more than a very brief period inflicts great damage upon our system of
justice; it is antithetical to it, to our sense of fairness, and to the reliability of any
resulting verdict.” Roy, 855 F.3d at 1228 (Rosenbaum, J., concurring in part and
concurring in the result). And we know from Roy that this is not the first time this
27
district court judge has invited the government to elicit inculpatory evidence in the
absence of the defendant’s lawyer. Id. at 1135. The district court’s pattern of
permitting the government to introduce inculpatory evidence against a defendant in
the absence of counsel, without any inquiry as to why counsel was not present, is an
affront to the Constitution and the law of the United States. The government
exacerbated the violation by eliciting disputed and objectionable testimony.
As previously discussed, both of these constitutional rights are fundamental
to our system of criminal justice and infected the integrity of the proceedings. The
district court’s actions undoubtedly signaled to the jury that the defense was so
wanting and deficient that the trial could proceed without the defendant and her
counsel.
Judge Wilson’s dissenting opinion in Roy rings truer in the instant context.
In his dissent, Judge Wilson details the real-world impossibility of evaluating, afterthe-fact, how counsel’s absence altered the outcome of trial, “There is no way to
quantify the extent of this error’s effects on the jury without speculating. We cannot
assess it from a transcript.” Roy, 855 F.3d at 1236 (Wilson, J., dissenting). As noted
by one commentator on whom he relied: “The idea that a reviewing court can assess
from a cold transcript the prejudice caused by counsel’s absence completely ignores
the role that counsel’s physical presence in the courtroom actually plays.” David A.
Moran, Don’t Worry, I’ll Be Right Back: Temporary Absences of Counsel During
Criminal Trials and the Rule of Automatic Reversal, 85 Neb. L. Rev. 186, 207 (2011.
“This is because ‘the reviewing court cannot possibly discern from the transcript
28
how the jury . . . reacted non-verbally to the proceedings that occurred in counsel’s
absence.” During trial, these “real-world” issues are exacerbated when the defense
table is completely deserted during the taking of inculpatory evidence.
The Eleventh’s Circuit’s decision not to engage in a Brecht or “hybrid” error
analysis has created a conflict with the Fifth Circuit in United States v. Bowen, 799
F.3d 336, 352 (5th Cir. 2015), the Seventh Circuit in United States v. Harbin, 250
F.3d 532, 545 (7th Cir.2001) (trial errors described in Brecht footnote nine require
automatic reversal), and the Ninth Circuit in Hardnett v. Marshall, 25 F.3d 875,
879 (9th Cir.1994) (hybrid footnote nine error is “assimilated to structural error and
declared to be incapable of redemption by actual prejudice analysis”). For the
reasons stared above in the context of the Cronic issue, Ms. Garcia’s petition is the
ideal vehicle to resolve this important question that has divided the courts of
appeals.
29
CONCLUSION
Based upon the foregoing petition, the Court should grant a writ of certiorari
to the Court of Appeals for the Eleventh Circuit.
Respectfully submitted,
MICHAEL CARUSO
Federal Public Defender
By:
/s/ Michael Caruso
Counsel for Petitioner
Miami, Florida
March 18, 2019
30
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.