Petition for Writ of Certiorari — Kwok Cheung Chow, aka Raymond Chow, aka Ha Jai, Petitioner v. United States

No.

______________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________________

KWOK CHEUNG CHOW AKA RAYMOND CHOW

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

_________________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KAREN L. LANDAU, CSB # 128728

Attorney at Law

2626 Harrison St.

Oakland, California 94612

(510) 839-9230

Counsel for Petitioner

Kwok Cheung Chow aka Raymond Chow

COUNSEL OF RECORD

QUESTIONS PRESENTED

1. In Presley v. Georgia, 558 U.S. 209 (2010), this Court held

the right to a public trial in criminal cases extends to the entire

trial, and any closure must be justified by an overriding

governmental interest. Given that holding, have the federal courts

of appeals undermined these constitutional principles by adopting a

test that requires a lesser governmental interest to justify a closure

that is deemed “partial.”

2. The qualified right to counsel of choice is both the core of

the Sixth Amendment right to counsel, and independent of the

Sixth Amendment’s guarantee of a fair trial. Accordingly, can the

denial of counsel of choice occurring during post-trial proceedings

be evaluated for harmless error?

i

LIST OF ALL PARTIES

The caption of the case in this Court contains the names of all

parties (petitioner and the United States).

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................................. i

LIST OF ALL PARTIES........................................................................ ii

TABLE OF CONTENTS ....................................................................... iii

INDEX TO APPENDIX ......................................................................... iv

TABLE OF AUTHORITIES .................................................................. iv

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT .......................... 1

OPINION BELOW ................................................................................ 1

JURISDICTION .................................................................................... 1

STATUTES, RULES AND CONSTITUTIONAL PROVISIONS

INVOLVED ........................................................................................... 2

STATEMENT OF THE CASE .............................................................. 2

Statement of Lower Court Jurisdiction Under Rule 14.1(i). ................ 7

REASONS FOR GRANTING THE WRIT ............................................ 7

I. The Ninth Circuit Adopted a Penurious Interpretation of the Right to

a Public Trial, Which allows Significant Closures When the

Government Identifies Virtually Any Risk to a Law Enforcement

Witness. ................................................................................................. 7

iii

II. The Interest Articulated by the Government was Not Sufficient to

Justify Closure. ..................................................................................... 11

III. This Court Should Grant Certiorari to Clarify that a Denial of the

Sixth Amendment Right to Counsel of Choice is not Subject to Harmless

Error Review. ........................................................................................ 15

IV. CONCLUSION ............................................................................... 24

INDEX TO APPENDIX

A. Ninth Circuit Memorandum Disposition

B. District Court Ruling re Denial of Public Trial (Trial Transcript, Vol.

6, pp. 1091-92; Vol. 12, pp. 1719-22)

C. Ninth Circuit Order Denying Petition for Rehearing

TABLE OF AUTHORITIES

Supreme Court Cases

Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617 (1989) .......... 18

Faretta v. California, 422 U.S. 806 (1975).............................................. 18

Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977)

............................................................................................................... 23

Marshall v. Rodgers, 569 U.S. 58, 133 S. Ct. 1446; 185 L. Ed. 2d 540

(2013)..................................................................................................... 23

iv

Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967) .. 23

Powell v. Alabama, 287 U.S. 45 (1932) ................................................... 18

Presley v. Georgia, 558 U.S. 209 (2010)....................................... i, 8, 9, 10

Press-Enterprise v. Superior Court, 464 U.S. 501, 104 S. Ct. 819, 78 L.

Ed. 2d 629 (1984) .............................................................................. 8, 12

United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 165 L.

Ed. 2d 409 (2006) .......................................................................... passim

Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) . 8

Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d

140 (1988) .................................................................................. 18, 19, 20

Federal Circuit Cases

Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997)(en banc) .................... 9, 10

Bucci v. United States, 662 F.3d 18 (7th Cir. 2011) ................................. 9

United States v. Bolton, 908 F.3d 75 (5th Cir. 2018) ............................. 20

United States v. De Jesus-Casteneda, 705 F.3d 1117 (9th Cir. 2013) ... 14

United States v. Deluca, 137 F.3d 24 (1st Cir. 1998) ............................... 9

United States v. Jimenez-Antunez, 820 F.3d 1267 (11th Cir. 2016) ..... 19

United States v. Lillie, 989 F.2d 1054 (9th Cir. 1993), overruled in part

on other grounds by United States v. Garrett , 179 F.3d 1143, 1145 (9th

Cir. 1999)............................................................................................... 20

v

United States v. Lucas, 932 F.2d 1210 (8th Cir. 1991) .......................... 13

United States v. Maness, 566 F.3d 894 (9th Cir. 2009) ................... 16, 21

United States v. Rivera-Corona, 618 F.3d 976 (9th Cir. 2010) .............. 19

United States v. Sherlock, 962 F.2d 1349 (9th Cir. 1992) .................. 9, 11

United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) ........................ 13

United States v. Walters, 309 F.3d 589 (9th Cir. 2002) ............. 16, 20, 22

United States v. Zimny, 873 F.3d 38 (1st Cir. 2017) .............................. 20

Statutes

18 U.S.C. § 3231 ........................................................................................ 7

28 U.S.C. § 1291 ........................................................................................ 7

vi

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Petitioner Kwok Cheung Chow aka Raymond Chow respectfully

petitions this Court for a writ of certiorari to review the decision of the

United States Court of Appeals for the Ninth Circuit issued on May 15,

2019, affirming the judgment of conviction. Appx. A.

OPINION BELOW

The decision of the United States Court of Appeals for the Ninth

Circuit affirming petitioner’s convictions is unpublished and is attached

as Appendix A to this petition.

JURISDICTION

The judgment of the United States Court of Appeals for the Ninth

Circuit affirming petitioner’s judgment of conviction and sentence was

entered on May 15, 2019. Appx. A. This Petition is filed within 90 days

of August 19, 2019, the date on which the Ninth Circuit denied a timely

filed petition for rehearing. Appx. C. Petitioner invokes this Court's

jurisdiction under 28 U.S.C. § 1254(1).

1

STATUTES, RULES AND CONSTITUTIONAL PROVISIONS

INVOLVED

The Sixth Amendment to the United States Constitution

provides,

In all criminal prosecutions, the accused shall have the right

to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defence.

STATEMENT OF THE CASE

On April 3, 2014, a federal grand jury sitting in the Northern

District of California returned a multicount indictment against

petitioner and 29 codefendants. On October 15, 2015, following a

severance Order, the grand jury returned a Third Superseding

Indictment against petitioner alone. Count One alleged that on

beginning at least by 2003, and continuing through March 26, 2014,

petitioner and codefendants conspired to conduct and participate in the

conduct of the affairs of the Chee Kung Tong enterprise through a

2

pattern of racketeering activity, in violation of 18 U.S.C. § 1961(1) and

(5). The alleged racketeering activity included dealing in controlled

substances, extortionate collection of unlawful debt, money laundering,

interstate sale and receipt of stolen property, dealing in contraband

cigarettes, murder for hire and murder. The indictment also alleged a

substantive charge of murder in aid of racketeering, a separate

conspiracy to commit murder in aid of racketeering, multiple counts of

money laundering, and separate conspiracies to receive, possess and

dispose of alcohol represented to be stolen and contraband cigarettes.

The case was tried to a jury between November 2, 2015, and

January 8, 2016, on which date the jury convicted petitioner on all

counts. On August 4, 2016, the district court sentenced him to a

mandatory term of life imprisonment.

A significant portion of the trial – the entirety of the testimony of

two FBI agents who worked undercover on the investigation -- was

3

closed to the public.1 One of the agents, who testified using the

pseudonym “Dave Jordan” was the government’s primary witness

against petitioner. The second undercover agent, who used the

pseudonym “Jimmy Chen,” also gave significant inculpatory testimony.

Over defense objection, the court closed the courtroom during the

testimony of witnesses “Chen” and “Jordan.” The portion of the trial

closed thereby was substantial, consisting of seven days of trial

testimony. The trial, exclusive of voir dire, instructions, and closing

arguments comprised 27 trial dates. Thus, approximately 25% of the

trial was closed.

During the agents’ testimony, the district court excluded the

public from the courtroom, restricting them to the overflow viewing

room, and disconnected the camera which usually focused on the

witnesses. Thus, although the jury was able to see the faces of the

testifying witnesses, the public could not.

1 In addition to closing the trial, the court withheld from the public – and from

defense counsel – the true identity of the two undercover FBI agents.

4

Explaining its ruling, the district court stated:

My understanding is that justification for this is that

one or both – maybe both – of these individuals are

engaged in ongoing undercover operations. And if their

identity, either by name or by face, is known or

available to the public, that that will destroy their – one,

it will destroy their effectiveness as an undercover

agent; and two, it may endanger their lives. That’s the

argument that the Government has.

Appx. B-2. The court continued:

And so for that reason, I’m going to allow – I’m going to

opt for Option Number One, which is simply that the

courtroom be closed, and the video as to the witness be

disconnected. The audio will proceed.

…

But I think the Government has demonstrated a

good and sufficient cause to depart from the normal

open courtroom so that witnesses can be seen and

heard. This way, with the proper admonition to the jury,

the jury will be able to fully examine -- see the

examination of the witness.

Appx. B-2—B-3. Subsequently, when it was revealed that the agents

were not currently working undercover, the district court reiterated its

ruling:

THE COURT: I think my understanding is that he is

5

used from time to time to engage in undercover

operations. So he doesn't want to destroy his

effectiveness today by disclosing his true identity. That's

what I based it on.

Appx. B-6. The court added:

THE COURT: Well, I don't know if it's a policy in the

future. The policy is, as far as I understand it, a person

who has been -- yeah -- who has been engaged in an

undercover operation, and is currently employed by the

Federal Bureau of Investigation, and it is the intention

of the Bureau sometime in the future to use him again

as an undercover officer, that his identity should not be

disclosed -- his true identity.

Based upon that, I ruled that his true identity

shouldn't be disclosed. Anyway, that's the ruling. I

mean, that was the ruling. So are you asking me to

reconsider the ruling?

And I'm not going to change it based upon the

argument that he is not presently engaged in an

undercover operation. Based upon that, I'm not going to

change my ruling.

Appx. B-7—B-8.

Petitioner challenged his conviction on appeal, raising several

constitutional challenges. He particularly challenged the exclusion of

the public from the seven days of trial testimony. He also challenged the

6

district court’s post-trial denial of his motion to relieve retained counsel,

and the court’s refusal to appoint substitute counsel. The United States

Court of Appeals for the Ninth Circuit rejected his arguments.

Statement of Lower Court Jurisdiction Under Rule 14.1(i).

The district court's jurisdiction was properly invoked in this case

under 18 U.S.C. § 3231. The jurisdiction of the court below was invoked

under 28 U.S.C. § 1291.

REASONS FOR GRANTING THE WRIT

I. The Ninth Circuit Adopted a Penurious Interpretation of the Right to a

Public Trial, Which allows Significant Closures When the Government

Identifies Virtually Any Risk to a Law Enforcement Witness.

The Ninth Circuit decision concluded that because the district

court only partially closed the courtroom, the closure did not have to be

justified by an overriding governmental interest, but only by a

substantial one. Appx. A-3. The court’s ruling undermines both the

Sixth Amendment right of a criminal defendant to a public trial and

this Court’s repeated caution that closures should be rarely employed

and only when supported by an overriding governmental interest.

7

Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed. 2d 31

(1984).

Any analysis must start with the fundamental principle that

“[t]he presumption of openness may be overcome only by an overriding

interest based on a finding that closure is essential to preserve higher

values and is narrowly tailored to serve that interest.” Press-Enterprise

v. Superior Court, 464 U.S. 501, 510 (1984); see also Waller v. Georgia,

467 U.S. 39, 46 (1984). This Court’s summary reversal in Presley v.

Georgia, 558 U.S. 209 (2010), in which the Georgia Supreme Court had

upheld the exclusion of the public (in the form of one of the defendant’s

family members) from voir dire, supports the conclusion that any

closure requires a compelling governmental interest.

This Court has not distinguished between partial and complete

closures. The Presley decision suggests that there is no difference,

emphasizing the requirement that any closure be justified by a

compelling governmental interest. See also Waller, 467 U.S. at 45.

Presley itself involved what might be termed a partial closure: the trial

8

court excluded the public in the form of one member of the defendant’s

family.

Prior to Presley, some federal courts of appeals adopted a test

requiring a lesser showing for closures deemed “partial.” E.g., United

States v. Deluca, 137 F.3d 24, 33-34 (1st Cir. 1998); Ayala v. Speckard,

131 F.3d 62, 72 (2d Cir. 1997)(en banc); United States v. Sherlock, 962

F.2d 1349 (9th Cir. 1992). These courts have concluded a “partial”

closure need be supported only by a substantial governmental interest,

as opposed to a compelling one. E.g., Sherlock, 962 F.2d at 1356-58.

Since Presley, the circuits have treated these decisions, and the

distinction between a partial and complete closure, as controlling. See

Appx. A-3; Bucci v. United States, 662 F.3d 18, 24-26 (7th Cir. 2011).

The circuit decisions on partial closure are noteworthy for their

inconsistency on what constitutes a partial closure as opposed to a

complete one. For example, the closure termed partial in Sherlock

excluded the defendant’s family members from the testimony of a minor

victim of sexual assault, but allowed the public to remain. 962 F.2d at

9

1356-58. A similar closure in Presley, which excluded one member of

the defendant’s family from voir dire, was treated as a complete one.

The closure in Ayala v. Speckard -- deemed partial -- excluded

spectators from the testimony of undercover officers. 131 F.3d at 64-65.

And the closure here excluded the public from the trial for the seven

days of trial testimony given by the undercover agents.

Perhaps more importantly, the aforementioned circuit decisions

are inconsistent with Presley. Presley did not distinguish between types

of closures, but emphasized instead the overriding interest needed for

any closure. And, Presley itself involved what might be termed a

partial closure: the exclusion of a member of the defendant’s family

from voir dire. Despite the limited nature of the closure in Presley, this

Court did not minimize its significance, differentiate between a partial

or complete closure, or establish a lower level of governmental interest

necessary for its justification. Instead, this Court simply vacated the

judgment of conviction. Presley, 558 U.S. at 214-15.

10

This case well presents the issue at hand. The court of appeals

first found that the closure was a partial one, because the public was

not excluded from the entire trial and was permitted to hear the

witnesses’ testimony if not to see their faces and demeanor. Appx. A-3.

The court relied on its decision in Sherlock and concluded that the

government need not demonstrate a compelling or overriding interest to

justify closure. Id.

The rule adopted by a significant number of federal circuits

undermines is in contradiction with this Court’s rulings on the Sixth

Amendment right to a public trial. This Court should grant certiorari to

clarify whether any non-trivial closure may be justified by something

less than a compelling governmental interest.

II. The Interest Articulated by the Government was Not Sufficient to Justify

Closure.

The Ninth Circuit’s decision is further marred by its summary

conclusion that the government here articulated a substantial interest.

The record showed that the anonymous witnesses were not currently

involved in undercover operations that would have been placed at risk.

11

“Jimmy Chen” was nearing retirement. “Dave Jordan” testified that he

was currently not involved in any other undercover operations.

Nonetheless, the district court found that the government’s desire to

preserve the secrecy of its undercover witnesses’ identity, largely so

they could work undercover in the future, was substantial. Appx. A-3.

The government’s interest in using an agent in a future

undercover investigation cannot outweigh a defendant’s Sixth

Amendment right to a public trial. “The presumption of openness may

be overcome only by an overriding interest based on a finding that

closure is essential to preserve higher values and is narrowly tailored to

serve that interest.” Press-Enterprise v. Superior Court, 464 U.S. 501,

510 (1984). The government’s interest in continuing to use an agent in

an undercover capacity is not such an interest. Rather, the

government’s interest in the continued effectiveness of undercover

agents involves a decision regarding the use of governmental resources.

The government has the right to control the use of its staff, including

undercover agents, but decisions have consequences. Training an agent

12

in undercover techniques does not mean that agent can work

undercover forever. Our system is one of openness, and the

government’s desire to preserve the secrecy of its undercover agents’

identity should not be used to justify closing a trial. Preserving the

future is not a compelling governmental interest, at least not in the

usual case.

Moreover, even if such an interest can be deemed substantial in

some cases, the facts articulated in support of the interest here were too

weak to support closure. Compare United States v. Lucas, 932 F.2d

1210, 1216-17 (8th Cir. 1991)(undercover agent was one of only a small

number of black female detectives and, at the time of trial, was involved

in extensive drug investigations). There was little offered to suggest

that the agents would be endangered by public testimony, and matters

of national security were not involved. Cf. United States v. Sterling,

724 F.3d 482, 515-17 (4th Cir. 2013) (no confrontation clause violation

when CIA operatives were allowed to testify behind screen: disclosure of

their identities presented the danger of exposing them to targeting by

13

foreign intelligence services and terrorist organizations); cf. also United

States v. De Jesus-Casteneda, 705 F.3d 1117, 1119-21 (9th Cir.

2013)(concluding that district court decision allowing a confidential

informant to testify wearing a wig, sunglasses and a mustache did not

violate the Confrontation Clause, given evidence that the informant was

currently involved in investigations with the notorious Sinaloa Cartel).

The court’s ruling allows the government to obtain closure in

virtually every case involving an undercover agent. Under the Ninth

Circuit’s analysis, closure may be obtained routinely, when the

government offers the truisms that (a) undercover agents are at risk;

and (b) the agents’ identities cannot be exposed because exposure may

prevent them from working undercover in the future. While in rare

cases closing the trial to the public can be justified by national security

concerns or particularized dangers to the agents, closure cannot be the

general rule. If the government’s mere desire to keep secret the

identities of its undercover agents is sufficient to justify closure,

14

without a particularized and powerful showing of danger, then closure

will become the rule, not the exception.

The use of government staff, including undercover agents, is a

matter of administrative discretion, concerning the use of government

resources. The government’s decision to use undercover agents in the

investigation and prosecution of cases does not outweigh the

defendant’s – and the public’s – right to a public trial. Preserving the

opportunity of a law enforcement agent to work undercover in the

future is not a overriding governmental interest, either in the usual

case or in this one.

III. This Court Should Grant Certiorari to Clarify that a Denial of the Sixth

Amendment Right to Counsel of Choice is not Subject to Harmless Error

Review.

The court of appeals concluded, relying on circuit authority, that

the deprivation of the right to counsel of choice at sentencing and in

connection with post-trial motions is not structural error. The court

further ruled any error in not allowing petitioner to discharge retained

counsel between June 16 and July 19, was harmless. Appx. A-6. See

15

United States v. Walters, 309 F.3d 589, 592-93 (9th Cir. 2002); United

States v. Maness, 566 F.3d 894, 897 (9th Cir. 2009). The Ninth Circuit’s

decision is based on circuit authority effectively overruled by United

States v. Gonzalez-Lopez, 548 U.S. 140, 147-48, 126 S. Ct. 2557, 165 L.

Ed. 2d 409 (2006). The Ninth Circuit’s continued evaluation of the

denial of counsel of choice for harmless error undermines the core of the

constitutional right, and should be corrected by this Court.

At the commencement of criminal proceedings, petitioner was

indigent and qualified for the appointment of counsel. Subsequently,

retained counsel entered their appearance on petitioner’s behalf.

Counsel represented they would be representing petitioner on a pro

bono basis, and lead counsel, Tony Serra, continued to represent

petitioner pro bono throughout the proceedings. Ultimately, however,

Mr. Serra’s assistant attorneys began receiving payments pursuant to

the Criminal Justice Act. Mr. Serra remained as retained counsel.

Attorney-client relations broke down after conviction. Despite

petitioner’s repeated instructions to counsel to move to withdraw,

16

counsel continued to represent petitioner in post-trial motions. Finally,

after the district court denied a late-filed motion for new trial, trial

counsel moved to withdraw. At a hearing on June 15, 2016, petitioner

asked that all of his attorneys – retained/pro bono and appointed, be

relieved and asked for appointment of substitute counsel. The court

evaluated the motion as if it were a motion to substitute appointed

counsel, and relieved only one of petitioner’s appointed attorneys. The

court refused to relieve retained counsel and denied the motion to

appoint replacement counsel.

On July 19, 2016, petitioner filed a substitution of counsel under

which a new pro bono attorney, Matthew Dirkes, entered his

appearance. On July 21, 2016, at a hearing on the substitution, Dirkes

stated that he was replacing attorney Serra and his assistant attorney

Smith. After conducting some research, the court agreed that petitioner

had an absolute right to discharge attorneys Smith and Serra and

relieved them.

17

Four days later, petitioner moved for reconsideration of the court’s

prior Order denying his June motion to relieve all counsel and appoint

replacement counsel. Petitioner again requested the appointment of

counsel. The district court denied the motion for reconsideration as

moot, since it previously had allowed the substitution of pro bono

counsel.

On appeal, the Ninth Circuit ruled that the court’s erroneous

refusal to allow petitioner to discharge retained counsel was harmless.

Appx. A-6.

The Sixth Amendment guarantees to the criminal defendant the

right to retain his counsel of choice. Wheat v. United States, 486 U.S.

153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988); see also, Caplin &

Drysdale, Chtd. v. United States, 491 U.S. 617, 624 (1989); Powell v.

Alabama, 287 U.S. 45, 53 (1932)(“…a defendant should be afforded a

fair opportunity to secure counsel of his own choice”); see also Faretta v.

California, 422 U.S. 806, 834 (1975).

18

The right to counsel of choice is the “root meaning of the

constitutional guarantee.” United States v. Gonzalez-Lopez, 548 U.S.

140, 147-48 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006)(quoting Wheat v.

United States, supra, 486 U.S. at 159). The right is independent “from

the Sixth Amendment’s purpose of ensuring a fair trial.” Id. at 147.

Further, the wrongful denial of a criminal defendant’s qualified right to

counsel of choice is a type of error that cannot be quantified. Id. at 150,

152. Therefore, deprivation of the right to counsel of choice is not

subject to harmless error analysis. Id.; see United States v. Jimenez-

Antunez, 820 F.3d 1267, 1271-72 (11th Cir. 2016). Recognizing the

independence of the qualified right to counsel of choice, the Ninth

Circuit has concluded that the right includes the right to terminate

retained counsel when a criminal defendant no longer desires counsel’s

services. United States v. Rivera-Corona, 618 F.3d 976, 979-80 (9th Cir.

2010).

While the right to retain or discharge counsel of choice is not

absolute, it may be abridged only to secure a compelling purpose.

19

United States v. Lillie, 989 F.2d 1054, 1055-56 (9th Cir. 1993), overruled

in part on other grounds by United States v. Garrett , 179 F.3d 1143,

1145 (9th Cir. 1999). Such compelling purposes include, for example, a

serious conflict of interest, or causing an undue delay in the

proceedings. Wheat v. United States, 486 U.S. at 159; United States v.

Zimny, 873 F.3d 38, 51-52 (1st Cir. 2017); United States v. Bolton, 908

F.3d 75, 99-100 (5th Cir. 2018)(affirming decision not to allow counsel of

choice to appear at sentencing, where the defendant did not notify the

court or government of new counsel, and counsel did not seek pro hac

vice admission or enter his admission on defendant’s behalf).

Although the Ninth Circuit has recognized the independence of

the qualified right to counsel of choice in the context of discharging

retained counsel, the court has not retreated from its prior decisions

holding that a deprivation of the right may be reviewed for harmless

error. In United States v. Walters, 309 F.3d at 592-93, decided before

Gonzalez-Lopez, the court of appeals concluded that a deprivation of the

right to counsel of choice did not constitute structural error when it was

20

limited to sentencing. Subsequent to Gonzalez-Lopez, however, the

Ninth Circuit did not alter its view that a deprivation of the right to

counsel of choice, occurring post-trial, could be reviewed for harmless

error. See United States v. Maness, 566 F.3d at 896-97 (applying

harmless error analysis to request for self-representation on postconviction remand proceeding). Instead, the Ninth Circuit reiterated

the flawed conclusion that the deprivation of the right to counsel of

choice – at least one occurring post-trial – could be reviewed for

harmless error, because a Sixth Amendment deprivation at a single

proceeding did not infect the trial. Id. at 897.

Gonzalez-Lopez’s reasoning undermines entirely the Ninth

Circuit’s conclusion that harmless error analysis is applicable to a posttrial deprivation of the right to counsel of choice. Although the right to

counsel of choice may be limited by matters such as an attorney’s

conflict of interest, or lack of qualifications, Gonzalez-Lopez offers no

suggestion that an erroneous deprivation of the right to counsel of

choice can be reviewed for harmless error. Indeed, Gonzalez-Lopez

21

supports the opposite conclusion because of its emphasis that the right

to counsel of choice is distinct from the right to a fair trial.

The Ninth Circuit’s reasoning is flawed. Walters and Maness

conflate the qualified right to counsel of choice with the Sixth

Amendment’s general guarantee of a fair trial, disregarding utterly the

point that the right to counsel of choice is independent from the general

guarantee of a fair trial. Gonzalez-Lopez, 548 U.S. at 146 (“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.). The Ninth Circuit’s holding instead subsumes the right

to counsel of choice within the Sixth Amendment guarantee of a fair

trial. The notion that a post-trial deprivation of the right to counsel of

choice is not structural error contradicts Gonzalez-Lopez’s

constitutional rationale.

Further, the Ninth Circuit’s reasoning fails to acknowledge the

reality that both sentencing – at issue in Walters -- and a motion for

new trial – at issue in petitioner’s case -- are critical stages of the

22

criminal proceeding. E.g., Gardner v. Florida, 430 U.S. 349, 358, 97 S.

Ct. 1197, 51 L. Ed. 2d 393 (1977); Mempa v. Rhay, 389 U.S. 128, 134-35,

88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); see Marshall v. Rodgers, 569 U.S.

58, 61, 133 S. Ct. 1446; 185 L. Ed. 2d 540 (2013)(assuming without

holding that preappeal motion for new trial is critical stage). Indeed,

these proceedings may be some of those most important to the criminal

defendant. Having been convicted, a defendant has limited options

remaining in the criminal process and being represented by counsel of

choice at post-trial critical stages is just as important as at earlier ones.

Finally, the harm stemming from the deprivation of the Sixth

Amendment right to counsel of choice at a critical post-trial proceeding

is as difficult to assess as the deprivation of counsel of choice in relation

to trial and pretrial proceedings. It is no easier to evaluate whether a

defendant was harmed by deprivation of his right to counsel of choice at

sentencing or in connection with a motion for new trial than during

pretrial or trial proceedings. This factor strongly supports the

conclusion that the deprivation of the Sixth Amendment right to

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counsel of choice, regardless when it occurred, constitutes structural

error. Gonzalez-Lopez, 548 U.S. at 150.

The Ninth Circuit’s decision, treating the denial of counsel of

choice at proceedings other than trial as harmless, is inconsistent with

this Court’s decision in Gonzalez-Lopez.

IV. CONCLUSION

Based on the foregoing arguments, petitioner respectfully requests

this Court to grant certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

Dated: November 18, 2019

Respectfully submitted,

/s/Karen L. Landau

KAREN L. LANDAU

Attorney for Petitioner

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