Petition for Writ of Certiorari — Eduardo Lopez, Petitioner v. United States

Supreme Court briefMar 22, 2021

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No. 20-________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------EDUARDO LOPEZ,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------JEROME D. LEE, ESQ.

TAYLOR, LEE & ASSOCIATES, LLC

6855 Jimmy Carter Boulevard

Building 2100, Suite 2150

Norcross, Georgia 30071

Telephone: (770) 650-7200

Facsimile: (678) 735-4512

Email: criminal@htlweb.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

Following Class v. United States, 138 S. Ct. 798

(2018), does a criminal defendant’s guilty plea result in the automatic waiver of his right to appeal

a structural defect in the underlying proceedings,

to wit, an order disqualifying his retained counsel

on Sixth Amendment grounds?

Where a law ﬁrm endeavors to jointly represent

co-defendants, does Wheat v. United States, 486

U.S. 153 (1988), authorize a district court to override a criminal defendant’s waiver of conﬂict-free

representation, for the speciﬁcally limited purposes of discovery and motions, and disqualify the

law ﬁrm where no cooperation agreement has

been offered to any defendant and no trial has

been scheduled?

PARTIES

Eduardo Lopez is the Petitioner in this action

and was the Appellant in the proceedings below. The

United States of America is the Respondent in this action and was Appellee in the proceedings below.

CORPORATE DISCLOSURE STATEMENT

No publicly traded company or corporation has an

interest in the outcome of the case or appeal.

RELATED PROCEEDINGS

United States District Court (N.D. Ga.):

Mendoza, et al. v. Dhillon, No. Case No. 1:19-cv0722-MLB (Voluntarily dismissed February 13,

2019).

United States v. Eduardo Lopez, No. 1:19-cr-00077

(Judgment entered March 2, 2020).

United States v. Fredrico Pacheco-Romero, No.

1:19-cr-00077 (Judgment entered February 24, 2020).

United States v. Carlos Martinez, No. 1:19-cr00077 (Judgment entered February 25, 2020).

United States v. Jorge Mendoza-Perez, No. 1:19-cr00077 (Judgment entered February 3, 2020).

United States v. Victor Sanchez, No. 1:19-cr-00077

(Judgment entered January 27, 2020).

United States v. Santana Cardenas, No. 1:19-cr00077 (Judgment entered June 4, 2020).

iii

RELATED PROCEEDINGS – Continued

United States Court of Appeals (11th Cir.):

United States v. Jerome Lee, et al., No. 19-14446

(Pending, oral arguments scheduled for March 22,

2021).

United States v. Jorge Mendoza-Perez, No. 2010685 (Pending).

United States v. Fredrico Pacheco-Romero, No. 2010965 (Pending).

United States v. Carlos Martinez, No. 20-10970

(Pending).

TABLE OF CONTENTS

Page

OPINIONS BELOW ...............................................

JURISDICTION .....................................................

CONSTITUTIONAL PROVISION INVOLVED ....

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

STATEMENT OF FACTS AND PROCEDURAL

HISTORY ............................................................

REASONS FOR GRANTING THE PETITION AS

TO THE FIRST QUESTION PRESENTED ......

Only Three Categories Of Constitutional

Claims Are Automatically Waived By A

Guilty Plea .................................................

II. In The Half-Century Since The Tollett Decision Federal Courts Have Routinely Held

That Appellate Claims Are Not Automatically Waived By A Guilty Plea ..................... 12

III.

Petitioner Did Not Knowingly And Voluntarily Waive His Right To Review Of The

Constitutional Issues Raised In This Appeal ... 14

IV.

Rule 11(a)(2) Of The Federal Rules Of Criminal Procedure Does Not Provide The Exclusive Means By Which A Criminal Defendant

Can Appeal After Pleading Guilty ............... 16

REASONS FOR GRANTING THE PETITION AS

TO THE SECOND QUESTION PRESENTED..... 17

I. The Lower Courts Improperly Disqualiﬁed

Petitioner’s Counsel To Help The Government Avoid Pretrial Litigation And Induce

A Guilty Plea .............................................. 17

TABLE OF CONTENTS – Continued

Page

A. The Lower Courts Misapplied Rule 44(c)

Of The Federal Rules Of Criminal Procedure To Justify Disqualification............. 20

B. The Lower Courts Improperly Rejected

Petitioner’s Knowing, Intelligent, And

Voluntary Assent To Joint Representation ....................................................... 25

C. The District Court’s Order Overruling

Petitioner’s Objections Misapprehends

And Expands The Holding Of Wheat v.

United States ........................................ 28

II.

The Proper Remedy For The Government’s

Intentional Interference With Petitioner’s

Fifth And Sixth Amendment Rights Is

Dismissal Of The Indictment .................... 32

CONCLUSION..................................................... 36

APPENDIX

Appendix A:

Court of Appeals opinion ................................. App. 1

Appendix B:

District Court order overruling Petitioner’s

objections to Magistrate Court disqualiﬁcation order .......................................................... App. 5

Appendix C:

Magistrate Court disqualiﬁcation order ......... App. 8

TABLE OF CONTENTS – Continued

Page

Appendix D:

District Court order overruling Petitioner’s

objections to Magistrate Court detention order ................................................................... App. 18

Appendix E:

Change of plea hearing transcript ................ App. 21

Appendix F:

Constitutional and federal rules provisions .... App. 49

vii

TABLE OF AUTHORITIES

Page

SUPREME COURT OF THE UNITED STATES CASES:

Blackledge v. Perry, 417 U.S. 21 (1974) ......................12

Boykin v. Alabama, 395 U.S. 238 (1969) ......................9

Caplin & Drysdale, Chartered v. United States,

491 U.S. 617 (1989) .................................................18

Class v. United States, 138 S. Ct. 798 (2018) ..... passim

County of Riverside v. McLaughlin, 500 U.S. 44

(1991) ................................................................. 33, 34

Flanagan v. United States, 465 U.S. 259 (1984) ........26

Holloway v. Arkansas, 435 U.S. 475 (1978) .......... 25, 26

Luis v. United States, 136 S. Ct. 1083 (2016) ....... 30, 33

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) .......................................................................17

Martinez v. Court of Appeals of Cal., 528 U.S. 152

(2000) .......................................................................26

McCoy v. Louisiana, 138 S. Ct. 1500 (2018) ......... 11, 18

Menna v. New York, 423 U.S. 61 (1975) ......................12

Mickens v. Taylor, 535 U.S. 162 (2002) .......................21

Nix v. Whiteside, 475 U.S. 157 (1986) .........................23

Stack v. Boyle, 342 U.S. 1 (1951) .................................35

Sullivan v. Louisiana, 508 U.S. 275 (1993) ................11

Tollett v. Henderson, 411 U.S. 258 (1973) ...................12

United States v. Gonzalez-Lopez, 548 U.S. 140

(2006) ............................................................... passim

viii

TABLE OF AUTHORITIES – Continued

Page

United States v. Morrison, 449 U.S. 361 (1981) ..... 32, 36

Wheat v. United States, 486 U.S. 153 (1988) ...... passim

1ST CIRCUIT COURT OF APPEALS CASES:

In Re Grand Jury Proceedings, 859 F.2d 1021

(1st Cir. 1988) ..........................................................24

United States v. Lopez-Andino, 831 F.2d 1164

(1st Cir. 1987) ..........................................................25

2ND CIRCUIT COURT OF APPEALS CASES:

United States v. Brinkworth, 68 F.3d 633 (2nd

Cir. 1995) .................................................................12

United States v. Carmichael, 216 F.3d 224 (2nd

Cir. 2000) ........................................................... 32, 34

United States v. Curcio, 692 F.2d 14 (2nd Cir.

1982) ........................................................................26

United States v. Perez, 325 F.3d 115 (2nd Cir.

2003) ........................................................................20

United States v. Stein, 541 F.3d 130 (2nd Cir.

2008) ............................................................ 11, 32, 36

United States v. Sturgis, 869 F.2d 54 (2nd Cir.

1989) ........................................................................12

4TH CIRCUIT COURT OF APPEALS CASES:

United States v. Ramsey, 661 F.2d 1013 (4th Cir.

1981) ........................................................................23

TABLE OF AUTHORITIES – Continued

Page

5TH CIRCUIT COURT OF APPEALS CASES:

United States v. Sanchez-Guerrero, 546 F.3d 328

(5th Cir. 2008).................................................. 3, 4, 13

United States v. Trejo, 610 F.3d 308 (5th Cir.

2010) ........................................................................12

7TH CIRCUIT COURT OF APPEALS CASES:

Owen v. Wangerin, 985 F.2d 312 (7th Cir. 1993) ........19

United States v. Bradshaw, 719 F.2d 907 (7th

Cir. 1983) .................................................................23

United States v. Gaertner, 583 F.2d 308 (7th Cir.

1978) ........................................................................12

United States v. Gearhart, 576 F.3d 459 (7th Cir.

2009) .................................................................. 19, 24

9TH CIRCUIT COURT OF APPEALS CASES:

United States v. Garcia-Valenzuela, 232 F.3d

1003 (9th Cir. 2000) .................................................12

United States v. Washington, 797 F.2d 1461 (9th

Cir. 1986) .................................................................19

10TH CIRCUIT COURT OF APPEALS CASES:

United States v. Avila, 733 F.3d 1258 (10th Cir.

2013) .................................................................. 14, 15

United States v. Broce, 753 F.2d 811 (10th Cir.

1985) ........................................................................15

TABLE OF AUTHORITIES – Continued

Page

11TH CIRCUIT COURT OF APPEALS CASES:

Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir.

1987) ........................................................................21

United States v. Garcia, 447 F.3d 1327 (11th Cir.

2006) ........................................................................25

United States v. Mers, 701 F.2d 1321 (11th Cir.

1983) ........................................................................23

United States v. Montemayor, Fed. Appx., 2020

WL 2787600 (11th Cir. 2020) ..................................10

SOUTHERN DISTRICT OF ALABAMA CASE:

United States v. Hastie, 2015 WL 13310083 (S.D.

Ala. 2015).................................................................28

SOUTHERN DISTRICT OF FLORIDA CASE:

United States v. Abbell, 939 F.Supp. 860 (S.D.

Fla. 1996) .................................................................28

DISTRICT OF MASSACHUSETTS CASE:

United States v. Gorski, 36 F.Supp.3d 256 (D.

Mass. 2014) ..............................................................19

EASTERN DISTRICT OF NEW YORK CASE:

United States v. Gotti, 782 F.Supp. 737 (E.D.N.Y.

1992) ........................................................................20

TABLE OF AUTHORITIES – Continued

Page

SOUTHERN DISTRICT OF NEW YORK CASE:

United States v. Castellano, 610 F.Supp. 1151

(S.D.N.Y. 1985) ........................................................28

SOUTHERN DISTRICT OF WEST VIRGINIA CASE:

United States v. White Buck Coal Co., 2007 WL

130322 (S.D.W. Va. Jan. 16, 2007)...........................21

CONSTITUTIONAL PROVISIONS:

U.S. Const. amend. IV ..................................... 10, 15, 16

U.S. Const. amend. V .......................................... 2, 3, 31

U.S. Const. amend. VI ......................................... passim

FEDERAL STATUTES:

21 U.S.C. § 841 ..............................................................6

21 U.S.C. § 846 ..............................................................6

28 U.S.C. § 1254 ............................................................1

FEDERAL RULES OF CRIMINAL PROCEDURE:

Fed. R. Crim. P. 11 .............................................. passim

Fed. R. Crim. P. 44 .............................................. passim

xii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES:

Sir William Blackstone, Commentaries on the

Laws of England in Four Volumes (J.P.

Lipincott Co., 1893) ...................................................4

United States Sentencing Commission Statistical Information Packet, Fiscal Year 2019,

Northern District of Georgia, available at:

https://www.ussc.gov/sites/default/files/pdf/

research-and-publications/federal-sentencingstatistics/state-district-circuit/2019/gan19.pdf

(last accessed August 10, 2020) ..............................17

PETITION FOR A WRIT OF CERTIORARI

Eduardo Lopez (“Petitioner”), an inmate currently

incarcerated at Manchester Federal Correctional Institution (“FCI”) in Manchester, Kentucky, by and

through undersigned counsel, respectfully petitions

this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the

Eleventh Circuit.

---------------------------------♦---------------------------------

OPINIONS BELOW

The unpublished opinion of the United States

Court of Appeals for the Eleventh Circuit granting

the government’s motion for summary afﬁrmance is

attached to this petition as Appendix A (“App. A”). The

order of the District Court for the Northern District of

Georgia overruling Petitioner’s objections to the magistrate judge’s order disqualifying counsel is attached

as Appendix B (“App. B”). The magistrate judge’s order

is attached as Appendix C. (“App. C”).

---------------------------------♦---------------------------------

JURISDICTION

The judgment of the United States Court of Appeals

for the Eleventh Circuit was entered on November 19,

2020. Petitioner invokes this Court’s jurisdiction under

28 U.S.C. § 1254(1).

---------------------------------♦---------------------------------

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides, in relevant part: “In all criminal

prosecutions, the accused shall . . . have the assistance

of counsel for his defense.” The Fifth Amendment to the

United States Constitution provides, in relevant part:

“No person shall be . . . deprived of life, liberty, or property, without due process of law . . . ”

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Following a wiretap investigation into an alleged

methamphetamine trafﬁcking ring, Petitioner was arrested and indicted on one count of criminal conspiracy

in the United States District Court for the Northern

District of Georgia. Shortly after entering an appearance, Petitioner’s retained law ﬁrm was disqualiﬁed for

endeavoring to jointly represent all six individuals

charged in the alleged conspiracy. With the assistance

of court-appointed counsel, Petitioner rejected the government’s offered plea agreement (which included a

waiver of appellate rights), entered a plea of guilty, and

was sentenced to one-hundred and ﬁfty-six months in

prison. During the plea colloquy, the district court

stated that Petitioner retained the right to appeal “any

defect” in the proceedings.

Petitioner ﬁled a direct appeal of his conviction,

arguing that (i) the disqualiﬁcation was premature

and based on hypothetical conﬂicts of interest, violating his Sixth Amendment right to counsel of choice and

Fifth Amendment due process right to decide the parameters of his own legal defense; (ii) the disqualiﬁcation order advocated for defense counsel who would

decline to ﬁle pretrial motions and instead seek cooperation agreements to help the government “divide and

conquer” the six co-defendants; and (iii) the government illegally detained Petitioner for ninety-six hours

before a judicial determination of probable cause was

made and denied Petitioner access to his counsel for

approximately forty-eight hours, further evincing its

intent to separate Petitioner from his chosen counsel

and inﬂuence the outcome of the proceedings. The

United States Court of Appeals for the Eleventh Circuit refused to consider Petitioner’s constitutional

claims and summarily afﬁrmed his conviction, holding

that by pleading guilty Petitioner waived “all non-jurisdictional defects” in the proceedings that resulted in

his conviction. The Eleventh Circuit also held that invoking Rule 11(a)(2) of the Federal Rules of Criminal

Procedure, and seeking permission from the government, is the exclusive means by which a constitutional

claim may be raised on appeal following a guilty plea.

The Eleventh Circuit’s opinion contravenes this

Court’s decision in Class v. United States, which held

that only three discrete categories of constitutional

claims are impliedly waived by a plea of guilty. 138

S. Ct. 798 (2018). The Eleventh Circuit’s opinion also

directly conﬂicts with the United States Court of Appeals for the Fifth Circuit’s decision in United States v.

Sanchez-Guerrero, which held that a district court’s order disqualifying defense counsel could be challenged

after a guilty plea without ﬁrst reserving appeal under

Rule 11(a)(2). 546 F.3d 328 (5th Cir. 2008). The holding

of Sanchez-Guerrero was based on United States v.

Gonzalez-Lopez, which held the erroneous denial of a

criminal defendant’s Sixth Amendment right to counsel of choice a structural error that undermines the

very legitimacy of the judicial proceedings themselves.

548 U.S. 140 (2006).

It is axiomatic that our criminal justice system

prefers “that ten guilty persons escape than one innocent suffer.” Sir William Blackstone, Commentaries

on the Laws of England in Four Volumes, at 358 (J.P.

Lipincott Co., 1893). With this fundamental principle

in mind, the rights enshrined in the Constitution of the

United States protect both the innocent and the guilty

from government overreach. The Eleventh Circuit’s

waiver rule appears to be an extreme outlier in the

Federal criminal justice system that carries dangerous

implications for the rights of defendants. The overwhelming majority of Federal criminal cases end in

guilty pleas, and a defendant cannot be precluded from

challenging a structural error as signiﬁcant as denial

of the right to counsel of choice simply because he or

she chose to accept culpability.

This case would also serve as a vehicle for the

Court to clarify its holding in Wheat v. United States

and further deﬁne “serious potential conﬂict of interest” in the context of joint representations. 486 U.S. 153

(1988). Here, the lower courts disqualiﬁed Petitioner’s

retained law ﬁrm without a single shred of evidence

that the joint representation would render the ﬁrm’s

representation of Petitioner constitutionally ineffective. The disqualiﬁcation order logically implies that

joint representation is never allowed, although this

Court and various Federal appellate courts have repeatedly held that joint representation is not only allowed but often works to the strategic advantage of the

defense. By summarily disqualifying Petitioner’s retained law ﬁrm and appointing counsel, the lower

courts usurped Petitioner’s role in deciding the parameters of his own legal defense and made the strategic

beneﬁts of joint representation permanently unavailable to him. While this case is a clear example of the

lower courts abusing their discretion to disqualify

counsel and improperly inﬂuence the outcome of the

proceedings, striking the proper balance between the

Sixth Amendment right to counsel of choice and the

Sixth Amendment right to effective assistance of counsel can be a difﬁcult task, and the Federal criminal justice system will beneﬁt from additional guidance from

this Court.

---------------------------------♦---------------------------------

STATEMENT OF FACTS AND

PROCEDURAL HISTORY

Petitioner was arrested at his home on February

9, 2019. Later that day, Taylor, Lee & Associates, LLC

(hereinafter “TLA”) was engaged to represent him.

TLA was also retained by several other individuals arrested in locations across metropolitan Atlanta on that

day. After an attorney from TLA spoke with Petitioner

at a local municipal jail, he was transferred to a

neighboring municipal jail and interrogated by law enforcement agents for more than forty-eight hours while

being denied access to counsel.1 TLA filed a habeas

corpus action against the Drug Enforcement Administration (“DEA”) on Petitioner’s behalf, and he was

presented to a Federal magistrate on February 13,

2019, more than ninety-six hours after his warrantless

arrest. On February 26, 2019, an indictment was returned against the Petitioner, and he was arraigned on

March 6, 2019.2 All six co-defendants charged in the

alleged conspiracy had retained TLA shortly after

their arrests. Petitioner and his co-defendants were

given “conﬂict advisories” each time they appeared in

court, on February 13, February 15, March 6, and

March 14, 2019. At each court appearance, all codefendants (including Petitioner) maintained their

desire to be represented by TLA.

On March 8, 2019, acting sua sponte, the presiding

magistrate scheduled a hearing pursuant to Rule 44 of

the Federal Rules of Criminal Procedure. Two days

later, the government ﬁled a motion seeking TLA’s disqualiﬁcation. On March 5, 2019, Petitioner ﬁled a motion to vacate the magistrate’s detention order

pursuant to Rule 59 of the Federal Rules of Criminal

Procedure: the motion was tabled until the disqualiﬁcation issue was decided. At the Rule 44 hearing, no

See Mendoza, et al. v. Dhillon, Case No. 1:19-cv-0722-MLB.

The indictment charged Petitioner and his five co-defendants with one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(A).

(App. E. 52).

evidence or testimony was presented to justify disqualiﬁcation. Instead, the magistrate relied on the allegations in the criminal complaint, the government’s brief,

TLA’s response brief, sworn testimony of each of the six

co-defendants, the conﬂict waivers executed by the codefendants, and legal fee agreements provided by TLA

under seal. The government also claimed that a superseding indictment “where there are separate substantive counts applying to different people” would be

sought against all six co-defendants, but no superseding indictment was ever returned.

On March 22, 2019, the magistrate disqualiﬁed

TLA from representing Petitioner or any of his codefendants, asserting that a “serious potential, if not

actual, conﬂict of interest” existed. (App. C.). On April

4, 2019, Petitioner objected to the magistrate’s disqualiﬁcation order pursuant to Rule 59 of the Federal Rules

of Criminal Procedure, and an order denying the objections was entered shortly thereafter. (App. B.).3 Petitioner was appointed indigent defense counsel, and the

district court ultimately also denied Petitioner’s motion to review the order detaining Petitioner, noting

that Petitioner’s appointed counsel “failed to ﬁle a supplement” to the motion to “speciﬁcally outline the reasons the Court should release [Petitioner], including

After disqualifying TLA from the case, the magistrate initiated an extra-jurisdictional “fee inquiry” that culminated in the

surrender of $15,000 into the court’s treasury under the threat of

civil and criminal contempt. The lower courts’ orders regarding

these funds are the subject of a parallel appeal currently pending

in the Eleventh Circuit. See United States of America v. Jerome

Lee, et al., Docket No. 19-14446.

what speciﬁc steps will be taken to minimize [Petitioner’s] risk of ﬂight and danger to the community.”

(App. D.). Newly retained defense counsel entered her

appearance on the next day.

Petitioner’s motion to suppress wiretap evidence

and statements was ﬁled on July 26, 2019. At the July

30, 2019 pretrial conference, the magistrate gave Petitioner’s counsel only two days to “perfect” the motion

to suppress with an afﬁdavit “to establish standing”

and set a deadline of Friday, August 2, 2019. The deadline was not met, and the motion to suppress was

deemed abandoned and denied on standing grounds.

Following the summary denial of the motion to suppress, Petitioner dismissed his retained counsel and

indigent defense counsel was re-appointed to his case.

Less than two weeks after appointed counsel re-entered the case, a change of plea hearing was scheduled.

On December 11, 2019, Petitioner was sworn, advised

of rights, and a guilty plea was entered as to count one

of the indictment. On March 2, 2020, the district court

sentenced Petitioner to one hundred ﬁfty-six months of

imprisonment. The case was appealed to the United

States Court of Appeals for the Eleventh Circuit. The

Eleventh Circuit summarily afﬁrmed Petitioner’s conviction and held that pleading guilty waives appeal of

all non-jurisdictional defects in the underlying proceedings. The Eleventh Circuit also held that reserving

appeal pursuant to Rule 11(a)(2) of the Federal Rules

of Criminal Procedure is the exclusive means by which

a criminal defendant who pled guilty can raise constitutional claims in the Federal appellate courts.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

AS TO THE FIRST QUESTION PRESENTED

Only Three Categories Of Constitutional

Appellate Claims Are Automatically Waived

By A Guilty Plea.

First, a “valid guilty plea forgoes not only a fair

trial, but also other accompanying constitutional guarantees,” such as the privilege against compulsory selfincrimination and the right to confront accusers. Class,

138 S. Ct. at 805; see also Boykin v. Alabama, 395 U.S.

238 (1969) (holding that a guilty plea results in a

waiver of the constitutional rights associated with the

Sixth Amendment right to a jury trial). Other constitutional “privileges which exist beyond the conﬁnes of

the trial,” such as the right to counsel of choice, the due

process right to challenge the admissibility of evidence

through pretrial motions, and the due process right to

a prompt determination of probable cause are not necessarily waived by a guilty plea. Class, at 805. In other

words, appellate claims concerning trial rights are

waived by a guilty plea because the defendant knowingly and voluntarily declined to exercise his or her

right to a trial.

Second, this Court held in Class that “[a] valid guilty

plea also renders irrelevant – and thereby prevents

the defendant from appealing – the constitutionality of

case-related government conduct that takes place before the plea is entered.” Class, at 805. This category

concerns appellate challenges “to the admissibility of

evidence obtained in violation of the Fourth Amendment” but may also include some procedural issues,

such as the grand jury selection process. Id. Again, if

there was no trial, the admissibility of evidence in a

trial that did not occur is rendered irrelevant, as is law

enforcement’s arguably illegal conduct in obtaining

that evidence. Here, Petitioner did not challenge the

denial of his motion to suppress wiretap evidence on

the merits. Indeed, due to his chosen counsel’s disqualiﬁcation, the merits were never even addressed by the

lower courts. Rather, Petitioner appealed to the Eleventh Circuit to review the circumstances under which

his chosen counsel was disqualiﬁed and argued that

those circumstances resulted in a deprivation of his

right to due process of law.

Instead of addressing the merits of Petitioner’s argument, the Eleventh Circuit cited the above quote

from Class drastically out-of-context to justify summary afﬁrmance.4 If the quote is read parsimoniously

with the rest of the Class opinion, it becomes obvious

that this Court did not intend for all appellate claims

to be subsumed in this category. By “government conduct,” this Court was referring primarily to law enforcement conduct that arguably violates the Fourth

The Eleventh Circuit has also misquoted this language to

summarily afﬁrm at least one similar case. See United States v.

Montemayor, Fed. Appx., 2020 WL 2787600 at *2 (11th Cir. 2020)

(unpublished).

Amendment. Finally, this Court held that “a valid

guilty plea relinquishes any claim that would contradict the admissions necessarily made upon entry of a

voluntary plea of guilty.” Id., at 805. Here, the constitutional claims raised by Petitioner are not inconsistent with his admission that “he engaged in the

conduct alleged in the indictment.” As this Court held

in United States v. Gonzalez-Lopez, “[t]he erroneous

deprivation of the right to counsel of choice, with consequences that are necessarily unquantiﬁable and indeterminate, unquestionably qualiﬁes as structural

error” and entitles the criminal defendant to an automatic reversal of his or her conviction. 548 U.S. 140,

140-41 (2006); (citing Sullivan v. Louisiana, 508 U.S.

275, 282 (1993)); see also McCoy v. Louisiana, 138 S. Ct.

1500, 1505 (2018) (“Violation of the defendant’s Sixth

Amendment-secured autonomy ranks as error of the

kind that our decisions have called ‘structural’ ”). Indeed, such “structural” error brings into question the

voluntary and intelligent character of the guilty plea

itself and renders all judicial proceedings that occurred after the error suspect. Therefore, Petitioner’s

admission of guilt is consistent with his argument on

appeal that his Sixth Amendment right to counsel of

choice was violated by the disqualiﬁcation of his chosen counsel.5

Petitioner further submits that his constitutional claim

“would extinguish the government’s power to constitutionally

prosecute [him] if the claim were successful.” Class, at 806 (internal quotations omitted); see also United States v. Stein, 541 F.3d

130, 142 (2nd Cir. 2008) (“no remedy other than dismissal of the

indictment would put [Petitioner] in the position [he] would have

II.

In The Half-Century Since The Tollett Decision Federal Courts Have Routinely Held

That Appellate Claims Are Not Automatically Waived By A Guilty Plea.

The principal Supreme Court case underlying the

Eleventh Circuit’s opinion was decided forty-seven

years ago. Tollett v. Henderson, 411 U.S. 258 (1973). In

the half-century since the Tollett decision, the Federal

appellate courts have held that a diverse array of constitutional claims are not automatically waived by a

guilty plea. United States v. Brinkworth, 68 F.3d 633

(2nd Cir. 1995) (claim that district court judge erred by

denying motion to recuse); United States v. GarciaValenzuela, 232 F.3d 1003 (9th Cir. 2000) (challenge to

district court’s refusal to dismiss count of indictment

on government’s motion); United States v. Trejo, 610

F.3d 308 (5th Cir. 2010) (claim that factual basis for

guilty plea failed to establish essential elements of

crime of conviction); United States v. Sturgis, 869 F.2d

54 (2nd Cir. 1989) (constitutional challenge to sentencing statute); United States v. Gaertner, 583 F.2d 308

(7th Cir. 1978) (challenge to statute based on unconstitutional vagueness); Menna v. New York, 423 U.S. 61

(1975) (constitutional double jeopardy claim); Blackledge v. Perry, 417 U.S. 21 (1974) (appellate claim of

vindictive prosecution). Petitioner’s interpretation of

this Court’s decision in Class is consistent with these

well-reasoned opinions, while the Eleventh Circuit’s

occupied absent the [denial of his Sixth Amendment right to counsel of choice]”).

opinion is an extraordinary departure that ignores

forty-seven years of precedent.

Moreover, the Eleventh Circuit’s opinion creates a

circuit split: in United States v. Sanchez-Guerrero, the

United States Court of Appeals for the Fifth Circuit

correctly held that a Sixth Amendment claim concerning defense counsel’s disqualiﬁcation was not waived

by the defendant’s “unconditional” plea of guilty. 546

F.3d 328, 331-32 (5th Cir. 2008). Citing this Court’s decision in United States v. Gonzalez-Lopez, the Fifth Circuit reasoned “it is obvious that the choice of counsel

may seriously impact a defendant’s decision to plead

guilty. If a defendant is erroneously denied the counsel

of his choice, it is a structural error . . . that brings into

question the voluntary and intelligent character of the

guilty plea itself.” Sanchez-Guerrero, 546 F.3d at 332.

Therefore, “even in cases where a defendant has pled

guilty, [the appellate court] must consider whether the

district court erroneously denied a defendant the right

to his counsel of choice, and waiver will not apply.”

Sanchez-Guerrero, at 332. Petitioner respectfully suggests that this Court should adopt the reasoning applied in Sanchez-Guerrero to correct the circuit split

and remedy the Eleventh Circuit’s dangerous misapplication of Class.

III. Petitioner Did Not Knowingly And Voluntarily Waive His Right To Review Of The

Constitutional Issues Raised In This Appeal.

On December 11, 2019, Petitioner entered a nonnegotiated plea of guilty to one count of conspiracy to

possess a controlled substance with the intent to distribute. During the plea colloquy, the district court advised Petitioner that his guilty plea would result in the

waiver of his right to proof of guilt beyond a reasonable

doubt, right to confrontation of witnesses, right to call

witnesses on his own behalf, right to the assistance of

counsel during trial, right to testify and present evidence, right to remain silent and avoid self-incrimination, and right to a unanimous jury verdict. (App. F. 5,

L. 18-8, L. 4). The district court also advised Petitioner

that he would retain the right “to appeal any legal defect in [his] plea or sentencing” following the entry of

his guilty plea. (App. F. 8, L. 5-11) (emphasis added).

Moreover, the Petitioner expressly rejected the plea

agreements offered by the government on the record,

both of which included an express written waiver of the

right to appeal his conviction and sentence. (App. F. 16,

L. 20-17, L. 3).

In Class, even a statement from the district court

that the defendant “was giving up his right to appeal

his conviction” did not result in a waiver, and the defendant’s “acquiescence neither expressly nor implicitly waived his right to appeal his constitutional

claims.” Class, at 807. Here, the district court expressly

advised Petitioner that he was not waiving his right to

appeal. (App. F. 8, L. 5-11). In United States v. Avila,

the defendant attempted to raise Fourth Amendment

claims in an appellate proceeding following the entry

of an unconditional guilty plea. 733 F.3d 1258, 1262

(10th Cir. 2013). The United States Court of Appeals

for the Tenth Circuit held that “when a [district] court

chooses to instruct a defendant that he has a right to

appeal following the entry of an unconditional guilty

plea, the court materially misinforms the defendant regarding the consequences of his plea when it fails to

further advise him that the plea may limit that right.”

Id., at 1259. Therefore, “[u]nder such circumstances, if

the court tells the defendant without qualiﬁcation that

he has a right to appeal, a defendant’s plea is not knowing and voluntary.” Id. Further, for an appellate waiver

to be effective, the government must demonstrate that

the criminal defendant “made an informed and intentional relinquishment of his rights” under the speciﬁc

constitutional provision he is raising on appeal. United

States v. Broce, 753 F.2d 811, 822 (10th Cir. 1985). This

is true even where the defendant signed a plea agreement that included an express written waiver of appellate rights. The rule enacted by the Eleventh Circuit is

exactly backwards: Petitioner must knowingly and voluntarily waive his right to directly appeal his conviction. He is not required to seek the government’s and

the court’s permission to reserve his right to appeal

violations of his constitutional rights, especially structural violations.

IV. Rule 11(a)(2) Of The Federal Rules Of

Criminal Procedure Does Not Provide The

Exclusive Means By Which A Criminal Defendant Can Appeal After Pleading Guilty.

Under Rule 11(a)(2) of the Federal Rules of Criminal Procedure, a defendant can plead guilty, reserve

the right to appeal an adverse ruling on a speciﬁed pretrial motion, and then withdraw the guilty plea if the

appeal is successful. Fed. R. Crim. P. 11(a)(2). Contrary

to the Eleventh Circuit’s opinion, Rule 11(a)(2) is not

“the exclusive procedure for a defendant to preserve a

constitutional claim following a guilty plea.” Class, 135

S. Ct. at 806. Instead, Rule 11(a)(2) was crafted to provide a mechanism by which a criminal defendant can

appeal the denial of “unlawful search-and-seizure

claims” after pleading guilty, and its drafters acknowledged that “certain [other] kinds of constitutional objections may be raised after a plea of guilty”

irrespective of whether the rule is invoked. Id. Rule

11(a)(2) carves out an exception to the general rule, articulated in Class, that “the admissibility of evidence

obtained in violation of the Fourth Amendment” becomes irrelevant after a guilty plea. Id., at 805.

Further, to properly reserve appeal under Rule

11(a)(2), Petitioner was required to ﬁrst obtain “the

consent of the [district] court and the government.”

Fed. R. Crim. P. 11(a)(2). In other words, Petitioner

would have to obtain the consent of the parties that violated his constitutional rights to address those same

violations in a higher court. The Eleventh Circuit’s rule

would effectively bar appellate review in ninety-seven

percent of criminal proceedings unless the United

States Attorney’s ofﬁce and the lower courts choose to

allow such review.6 This ridiculous position is contrary

to fundamental notions of due process. “The government of the United States has been emphatically

termed a government of laws, and not of men. It will

certainly cease to deserve this high appellation, if the

laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,

163 (1803).

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

AS TO THE SECOND QUESTION PRESENTED

The Lower Courts Improperly Disqualiﬁed

Petitioner’s Counsel To Help The Government Avoid Pretrial Litigation And Induce

A Guilty Plea.

“The right to counsel of choice 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.” United States v.

Gonzalez-Lopez, 548 U.S. 140 (2006). “The right to select counsel of one’s choice has been regarded as the

root meaning of the [Sixth Amendment] constitutional

guarantee.” Id., at 147-48; see also Wheat v. United

See United States Sentencing Commission Statistical Information Packet, Fiscal Year 2019, Northern District of Georgia,

available at: https://www.ussc.gov/sites/default/files/pdf/researchand-publications/federal-sentencing-statistics/state-district-circuit/

2019/gan19.pdf (last accessed August 10, 2020).

States, 486 U.S. 153, 165-66 (1988) (Marshall, J., dissenting) (a related “primary purpose” of the Sixth

Amendment right to counsel of choice is “to grant a

criminal defendant effective control over the conduct

of his defense” as a means of respecting the constitutional values of individual dignity, autonomy, and free

will); Caplin & Drysdale, Chartered v. United States,

491 U.S. 617, 646 (1989) (Blackmun, J., dissenting)

(counsel of choice ensures “equality between the government and those it chooses to prosecute”). Further,

“[t]he erroneous deprivation of the right to counsel of

choice, with consequences that are necessarily unquantiﬁable and indeterminate, unquestionably qualiﬁes as structural error” and entitles the criminal

defendant to an automatic reversal of his or her conviction. Gonzalez-Lopez, at 140-41; see also McCoy v.

Louisiana, 138 S. Ct. 1500, 1505 (2018) (“Violation of

the defendant’s Sixth Amendment-secured autonomy

ranks as error of the kind that our decisions have

called ‘structural’ ”).

This Court has observed that “[d]ifferent 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 [or litigate pretrial motions]. In light of these myriad aspects of representation, the erroneous denial of

counsel bears directly on the framework within which

the trial [or pretrial litigation] proceeds – or indeed,

whether it proceeds at all.” Gonzalez-Lopez, at 150 (internal quotations omitted). Moreover, “[i]t 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 proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the

government, do not even concern the conduct of the

trial at all.” Id.

The question of disqualiﬁcation directly implicates a criminal defendant’s Sixth Amendment rights:

therefore, “disqualiﬁcation of defense counsel should

be a measure of last resort, and ‘the government bears

a heavy burden of establishing that disqualiﬁcation is

justiﬁed.’ ” United States v. Gearhart, 576 F.3d 459, 464

(7th Cir. 2009) (internal quotation omitted); United

States v. Washington, 797 F.2d 1461, 1465 (9th Cir.

1986) (“In seeking to disqualify a defendant’s chosen

counsel, the government bears a heavy burden of establishing that concerns about the integrity of the judicial process justify the disqualiﬁcation”). “Attorney

disqualiﬁcation is ‘a drastic measure which courts

should hesitate to impose except when absolutely necessary.’ ” Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir.

1993) (internal citations omitted); United States v. Gorski, 36 F.Supp.3d 256 (D. Mass. 2014) (“Disqualiﬁcation

of counsel is a remedy of last resort, and [t]he government bears a heavy burden in demonstrating that disqualiﬁcation is justiﬁed . . . ”) (internal quotation

omitted).

Further, the “trial court must recognize a presumption in favor of defendant’s counsel of choice. This

presumption means that a trial court may not reject a

defendant’s chosen counsel on the ground of a potential

conﬂict of interest absent a showing that both the likelihood and dimensions of the feared conﬂict are substantial. Unsupported or dubious speculation as to a

conﬂict will not sufﬁce. The Government must show a

substantial potential for the kind of conﬂict that would

undermine the fairness of the trial process.” Wheat,

486 U.S. at 166; United States v. Perez, 325 F.3d 115,

125 (2nd Cir. 2003) (“[T]he choice as to which right [the

right to conﬂict free counsel or the right to counsel of

choice] is to take precedence must generally be left to

the defendant and not dictated by the government”);

United States v. Gotti, 782 F.Supp. 737, 742 (E.D.N.Y.

1992) (“This court is keenly aware of its obligation to

balance [the defendant’s] right to counsel against the

integrity of the trial process, to consider alternatives

less drastic than disqualiﬁcation, and to make speciﬁc

ﬁndings where disqualiﬁcation is compelled by potential conﬂict”).

A. The Lower Courts Misapplied Rule 44(c)

Of The Federal Rules Of Criminal Procedure To Justify Disqualiﬁcation.

The purpose of Rule 44(c) of the Federal Rules of

Criminal Procedure is to safeguard a criminal defendant’s Sixth Amendment right to effective assistance

of counsel. The rule states, “[u]nless there is good cause

to believe that no conﬂict of interest is likely to arise,

the court must take appropriate measures to protect

each defendant’s right to counsel.” Fed. R. Crim. P.

44(c)(2) (emphasis added). To determine whether the

extraordinary remedy of disqualiﬁcation is an appropriate measure, “[t]he court must ascertain whether

the conﬂict will interfere with the proper functioning

of the adversarial process, namely, whether counsel’s

ethical dilemma robs the client of a constitutionally effective advocate.” United States v. White Buck Coal Co.,

No. 2:06-00114, 2007 WL 130322, at * 13 (S.D.W. Va.

Jan. 16, 2007) (emphasis added); see also Mickens v.

Taylor, 535 U.S. 162, 173 (2002) (to demonstrate ineffective assistance based on a conﬂict of interest, a defendant must show (1) a plausible alternative strategy

that counsel might have pursued; (2) that the alternative strategy was reasonable; (3) some link between the

conﬂict and the decision to forgo that strategy); Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987)

(a merely speculative conﬂict is not sufﬁcient: rather,

to show ineffective assistance, a defendant must show

that his counsel actively represented conﬂicting interests).

Here, the magistrate court prematurely held that

because hypothetical potential conﬂicts could be foreseen, the only “appropriate measure” under Rule 44

was disqualiﬁcation. Further, the hypothetical conﬂicts proposed by the magistrate evince an intent to

frustrate Petitioner’s chosen strategy of employing

pretrial motions. The magistrate found multiple “serious” potential conﬂicts of interest based on the assumption that “the government may be willing to offer

a favorable plea deal to one or more defendants in return for their cooperation and testimony against codefendants, and [TLA] could not fulfill [its] duty to

effectively represent all of the defendants by advising

one defendant to take a plea deal that would be detrimental to [its] other clients.” (App. C. 4). Indeed, the

order puts forward the possibility of a “favorable plea

deal” creating a potential conﬂict ﬁve times. (App. C. 45). Blindly seeking a plea bargain before having received a shred of discovery is not a reasonable “defense

strategy,” and no “favorable” plea agreement had been

offered to Petitioner or any of his co-defendants at

the time the magistrate disqualiﬁed TLA. Moreover,

according to the magistrate, “the very decision of

whether to ﬁle pretrial motions or pursue a potential

plea agreement has very real consequences in this

district as the United States Attorney’s ofﬁce [for the

Northern District of Georgia] regularly reserves the

most favorable plea terms for those defendants who do

not ﬁle pretrial motions.” (App. C. 5). If this policy were

a legitimate basis for disqualiﬁcation, any defense attorney practicing in the Northern District of Georgia

who ﬁled pretrial motions and did not immediately

seek a plea bargain with the government would necessarily be constitutionally ineffective.

The order goes on to state that, “because there is

an irrebutable presumption that [TLA] received conﬁdential communications from [the defendants] during

the course of [their] representation,” TLA has “divided

loyalties that prevent [them] from effectively representing the [defendants].” (App. C. 6). This is a non

sequitur, because there is no irrebutable presumption

that receiving conﬁdential communications from codefendants prevents effective representation. If this

were the case, then representing co-defendants would

always present an actual conﬂict of interest and result

in constitutionally ineffective assistance. See Nix v.

Whiteside, 475 U.S. 157, 176 (1986) (This Court has

never suggested “that all multiple representations

necessarily result in an active conﬂict rendering the

representation constitutionally inﬁrm”). In fact, the

opposite is true: sharing conﬁdential communications

between co-defendants often results in a strategic advantage by reducing the asymmetry of information between the government and the defense.

In a nutshell, the magistrate’s disqualiﬁcation order was erroneous because there was no showing that

TLA’s constitutional effectiveness would be jeopardized

by the joint representation. See United States v. Mers,

701 F.2d 1321 (11th Cir. 1983) (no actual conﬂict of interest shown to have arisen from joint representation

of multiple defendants, some of whom claimed entrapment and some of whom claimed nonparticipation, the

defenses being neither antagonistic nor mutually exclusive); United States v. Bradshaw, 719 F.2d 907 (7th

Cir. 1983) (defendant and co-defendant’s joint strategy

was agreed to by both, no defense theory was foreclosed

as a result of joint representation, and defendants

were therefore not deprived of effective assistance);

United States v. Ramsey, 661 F.2d 1013 (4th Cir. 1981)

(in drug case, one defendant introduced alibi evidence,

another attempted to convince jury of an elaborate

hoax, and another rested his case on unequivocal denial of any involvement with illegal drugs: there was

no conﬂict of interest precluding joint representation

nor any apparent possibility of conﬂict requiring investigation under Rule 44(c)); In Re Grand Jury Proceedings, 859 F.2d 1021, 1026 (1st Cir. 1988) (in

disqualifying counsel from representing grand jury

witness, district court “did not identify any speciﬁc conﬂict, actual or potential” and improperly made Wheat

ﬁnding “solely on tenuous inferential relationships”).

Furthermore, no evidence or testimony was taken

during the perfunctory Rule 44 proceedings conducted

by the magistrate. The government therefore necessarily failed to meet its “heavy burden of establishing

that disqualiﬁcation [was] justiﬁed.” United States v.

Gearhart, 576 F.3d at 464. As a result, the magistrate

court was unable to explain how Petitioner’s defense

would necessarily be antagonistic or mutually exclusive to those of his co-defendants. Instead, to justify

disqualiﬁcation, the magistrate proposed hypothetical

conﬂicts based on the unfounded assumption that one

or more of the defendants would necessarily enter into

a plea agreement with the government and testify at

trial. (App. C. 4-6). Although the magistrate’s hypotheticals were certainly consistent with his desired outcome for the case, the fact that Petitioner and his codefendants employed the same law ﬁrm in a joint defense strategy did not authorize the lower courts to

interfere with Petitioner’s right to counsel of choice.

B. The Lower Courts Improperly Rejected

Petitioner’s Knowing, Intelligent, and Voluntary Assent To Joint Representation.

It is well-established that criminal defendants

can waive their right to conﬂict-free representation,

even where an actual or serious potential conflict of

interest exists. Holloway v. Arkansas, 435 U.S. 475, 482

(1978) (“permitting a single attorney to represent codefendants . . . is not per se violative of constitutional

guarantees of effective assistance of counsel”); United

States v. Garcia, 447 F.3d 1327 (11th Cir. 2006) (written waivers sufﬁcient to overcome concerns arising

from joint representation of three co-defendants);

United States v. Lopez-Andino, 831 F.2d 1164 (1st Cir.

1987) (although cautionary steps must be taken to

protect a criminal defendant’s right to counsel, courts

must allow defendants to choose joint representation

when they know the risks involved and insist on it).

The magistrate court failed to give proper deference to Petitioner’s knowing, intelligent, and voluntary

assent to the representation, explicitly afﬁrmed in

writing for the court’s ediﬁcation. Although “there can

be no doubt that [a court] may decline a proffer of

waiver” where “a court justiﬁably ﬁnds an actual conﬂict of interest,” the magistrate’s order relied entirely

upon hypothetical potential conﬂicts in rejecting Petitioner’s waiver, each premised on the unfounded assumption that some or all of his co-defendants were

guilty as charged and would enter into plea and cooperation agreements. Wheat, 486 U.S. at 159; (App. C.

4-5). Further, the magistrate’s order suggested that

Petitioner has “limited education and no prior experience with the United States criminal justice system”

and his waiver was therefore “suspect” to the extent it

relied on TLA’s “dubious representations” regarding

the tactical advantages of joint representation. (App.

C. 9, fn. 6). However, “[o]ur system of laws generally

presumes that the criminal defendant, after being fully

informed, knows his own best interests and does not

need them dictated by the State. Any other approach

is unworthy of a free people.” Martinez v. Court of Appeals of Cal., 528 U.S. 152, 165 (2000) (Scalia, J., concurring); see also United States v. Curcio, 692 F.2d 14,

25 (2nd Cir. 1982) (Friendly, J.) (“[T]he defendants’

choice is to be honored out of respect for them as free

and rational beings, responsible for their own fates”)

(disapproved on other grounds by Flanagan v. United

States, 465 U.S. 259, 263 (1984)). Although the magistrate was apparently “not persuaded” that there is any

“distinct tactical advantage” to joint representation,

this was neither the court’s decision to make nor sufﬁcient grounds for disqualification. (App. C. 9, fn. 6);

Holloway, 435 U.S. at 483, fn. 5 (“[I]n some cases multiple defendants can be appropriately represented by

one attorney; indeed, in some cases, certain advantages might accrue from joint representation. In

Justice Frankfurter’s view: ‘joint representation is a

means of insuring against reciprocal recrimination.

A common defense often gives strength against a common attack.’ ”) (internal quotation omitted). Again,

while the magistrate’s order was clear that Petitioner

was expected to “negotiate a favorable plea agreement,” his desire to jointly litigate his case did not

provide a basis for disqualiﬁcation. Indeed, joint representation for the purpose of pretrial motions can avoid

issues of standing that arise when one co-defendant

has an expectation of privacy that other co-defendants

do not. For example, if the co-defendant with the privacy expectation does not raise the issue, then others

“downstream” from the illegal search will be unable to

challenge evidence obtained from them as fruit of the

poisonous tree. As expected, the magistrate ultimately

denied all suppression motions in this case on standing

grounds, effectively thwarting the intended joint defense strategy.7

This Court should also consider the fact that conﬂict warnings were given by the presiding magistrate

at every stage of the proceedings leading up to TLA’s

disqualiﬁcation.8 Despite these repetitive (and arguably coercive after a certain point) warnings, Petitioner

consistently maintained his desire to be represented

by TLA. Finally, the lower courts failed to properly consider the far less restrictive measure of partial disqualiﬁcation for the purposes of trial only. (App. C. 7).

Where a serious potential conﬂict could occur at a trial,

Attorneys from TLA have defended dozens of clients investigated and charged with controlled substance offenses by this

speciﬁc DEA task force in both State and Federal courts. These

cases have presented many of the same Fourth Amendment issues, including the extra-jurisdictional tracking of cell phone devices using State-level search warrants.

Petitioner submits that these conﬂict advisories constitute

“appropriate measures” as contemplated by Rule 44(c)(2) and

were more than sufﬁcient “to protect each defendant’s right to

counsel” in this case.

partial disqualiﬁcation is both appropriate and respected in Federal courts across the country. United

States v. Hastie, No. 14-00291, 2015 WL 13310083 (S.D.

Ala. 2015) (afﬁrming order disqualifying defense counsel from representing defendant at jury trial only);

United States v. Abbell, 939 F.Supp. 860, 861-64 (S.D.

Fla. 1996) (“[defense counsel] shall be disqualiﬁed only

from participating as trial counsel, and may continue

to represent [the defendant] until the time of trial”);

see also United States v. Castellano, 610 F.Supp. 1151,

1163-67 (S.D.N.Y. 1985) (“[defense counsel] . . . is disqualiﬁed only from participating at the trial of this action. [Counsel] may continue to participate fully in the

pretrial stage of this case . . . ”). It appears that the

magistrate court only considered total disqualiﬁcation,

disregarding Petitioner’s numerous indications that

the concurrent representation was for the purpose of

pretrial litigation and motions only.

C. The District Court’s Order Overruling

Petitioner’s Objections Misapprehends

The Holding Of Wheat v. United States.

The district court’s order characterized Petitioner’s “main argument” as “an apparent misunderstanding regarding the types of conﬂicts the Court may

consider in assessing whether ‘there is good cause to

believe that no conﬂict of interest is likely to arise.’ ”

(App. B. 1). The order also asserted that because “it is

evident from the record that there are at least serious

potential conﬂicts – if not actual ones” the magistrate

“correctly considered the conﬂict potentials in this case

and determined that waivers were not an appropriate

remedy.” (App. B. 2). The district court’s order relied on

Wheat v. United States, which held that a “showing of

a serious potential for conﬂict” may overcome the presumption that a criminal defendant is constitutionally

entitled to his choice of legal counsel. 468 U.S. 153, 164

(1988). However, because Wheat does not explicitly deﬁne “serious potential for conﬂict,” granting the petition for writ of certiorari would give this Court an

opportunity to clarify the holding.

Mark Wheat retained defense attorney Eugene

Iredale shortly before his jury trial was scheduled to

begin. Id., at 153. Iredale also represented two other

co-defendants in the “far-ﬂung [marijuana] distribution conspiracy” Wheat was accused of participating in.

Id., at 155. One of the co-defendants represented by

Iredale, Javier Bravo, was scheduled to appear as a witness for the Government in Wheat’s trial. Id., at 156.

Iredale announced to the district court that he would

be representing Wheat at Bravo’s change of plea hearing, only “two court days” before Wheat’s trial was

scheduled to commence. Id., at 153. In the majority

opinion, this Court reafﬁrmed that the purpose of Rule

44(c) of the Federal Rules of Criminal Procedure is “to

ensure that criminal defendants receive a trial that is

fair and does not contravene the Sixth Amendment.”

Id., at 161. Due to the probability that Iredale would

be required to conduct “vigorous cross-examination” of

Bravo and be “unable ethically to provide that crossexamination,” Wheat’s Sixth Amendment right to effective assistance of counsel was jeopardized by the

joint representation. Id., at 164. While the dissent

pointed out that the joint representation with Bravo

was “no cause for concern” because Bravo “did not

know and could not identify [Wheat],” the majority

held that the scenario was nevertheless a serious potential conﬂict of interest. Id., at 170. The serious potential conﬂict also justiﬁed the district court’s

exercise of its discretion to disqualify Iredale despite

waivers from the co-defendants. Id.

Therefore, according to Wheat, a serious potential

for conﬂict exists where an attorney endeavors to represent a criminal defendant in a jury trial during

which another of the attorney’s clients will testify as

an adverse witness.9 See also Luis v. United States, 136

S. Ct. 1083, 1089 (2016) (interpreting Wheat to mean

that a criminal defendant has no right to choice of

counsel “who has a conﬂict of interest due to a relationship with an opposing party”) (emphasis added). At the

time Iredale entered the case, Wheat’s jury trial was

imminent, and Bravo was certain to be called as a

The other co-defendant represented by Iredale, Gomez-Barajas, had been acquitted at trial, and the Government subsequently agreed to signiﬁcantly reduced charges in his case.

Wheat, at 164. The majority found that “if [Gomez-Barajas’ plea]

agreement were rejected, [Wheat’s] probably testimony at the resulting trial of Gomez-Barajas would create an ethical dilemma

for Iredale . . . ” Id. The dissent pointed out that “[t]his argument

rests on speculation of the most dubious kind,” as two highly unlikely scenarios would both have to occur for a conﬂict to result.

It is also unclear whether this Court would have ruled the same

way had Iredale represented only Gomez-Barajas, and not Bravo:

the potential conﬂict with Bravo was clearly the more serious of

the two.

witness for the government. No such plea and cooperation agreement had even been offered to Petitioner or

his co-defendants prior to TLA’s disqualiﬁcation, and a

jury trial was months if not years away. Moreover, the

joint defense agreement between Petitioner and his codefendants was for the purpose of pretrial litigation

and motions only: potential conﬂicts would have been

ripe for evaluation only if the motions were ultimately

denied and jury trial was imminent. Even then, without evidence that the co-defendants’ trial defenses

would be mutually exclusive to the point of TLA’s constitutional ineffectiveness, disqualiﬁcation would not

have been an appropriate remedy. The district court’s

assertion that “it is evident from the record that there

are at least serious potential conﬂicts – if not actual

ones” is also belied by a cursory examination of the

Rule 44 proceedings. The only evidence of “potential

conﬂicts” was the criminal complaint, and no evidence

or testimony on the issue was taken at any point. The

district court abused its discretion by adopting the

magistrate’s premature decision without any meaningful consideration of the record and by failing to hold

the government to its heavy burden of establishing

that disqualiﬁcation of defense counsel was justiﬁed.

As a result, Petitioner’s Sixth Amendment right to

counsel of choice was irreparably violated.10

The erroneous disqualiﬁcation also violated Petitioner’s

Fifth Amendment due process right to present a common defense

through joint representation with his co-defendants.

II.

The Proper Remedy For the Government’s

Intentional Interference With Petitioner’s

Fifth And Sixth Amendment Rights Is Dismissal Of The Indictment.

When the government’s violation of a criminal defendant’s Sixth Amendment right to counsel interferes

with his or her ability to mount a defense, dismissal of

the indictment is the appropriate remedy. See, e.g.,

United States v. Stein, 541 F.3d 130 (2nd Cir. 2008) (afﬁrming dismissal of criminal indictment against employees of accounting ﬁrm where United States

Attorney’s ofﬁce pressured the ﬁrm to stop paying legal

fees for employees as a condition of the ﬁrm’s “cooperation” with its investigation); United States v. Carmichael, 216 F.3d 224, 227 (2nd Cir. 2000) (although

dismissal of an indictment is a remedy of last resort, it

is appropriate where necessary to “restore the defendant to the circumstances that would have existed had

there been no constitutional error”); United States v.

Morrison, 449 U.S. 361, 365 (1981) (where the government’s actions violate a defendant’s Sixth Amendment

right to counsel, the defendant must show an “adverse

consequence” to his representation before dismissal of

the indictment is appropriate). Although a Sixth

Amendment violation may be remediable, interference

with the Sixth Amendment right to counsel of choice

qualiﬁes as structural error and unquestionably affects the entire course of the proceedings. See Gonzalez-Lopez, 548 U.S. at 144 (“The right at stake here is

the right to counsel of choice . . . and that right was

violated because the deprivation of counsel was

erroneous. No additional showing of prejudice is required to make the violation ‘complete’ ”); Luis v.

United States, 136 S. Ct. 1083, 1089 (2016) (“Given the

necessarily close working relationship between lawyer

and client, the need for conﬁdence, and the critical importance of trust,” this Court has repeatedly held that

the Sixth Amendment right to counsel of choice is “fundamental”).

Here, the government engaged in a pattern of intentional and deliberate interference with Petitioner’s

Sixth Amendment rights. The government illegally detained Petitioner for approximately ninety-six hours:

he was unnecessarily transferred from the Doraville

municipal jail to the Atlanta municipal jail, denied access to his attorneys, and interrogated by government

agents. See County of Riverside v. McLaughlin, 500

U.S. 44 (1991) (Holding that a person arrested without

a warrant has a Fourth Amendment right to have the

probable cause for his or her continued detention reviewed by a neutral and detached magistrate as soon

as reasonably feasible but, in any event, no later than

forty-eight hours after the arrest). After indictment,

the interference became even more drastic and prejudicial to Petitioner’s defense.11 Upon learning that

The government’s treatment of co-defendant PachecoRomero is further evidence of the Sixth Amendment violations in

this case. The government intentionally held Pacheco-Romero’s

ﬁrst appearance separately from his co-defendants and without

his retained counsel present. Pacheco-Romero notiﬁed his courtappointed lawyer and the magistrate that he had retained TLA,

he was advised by the magistrate to either retain different counsel or continue with appointed counsel.

Petitioner intended to pursue a joint defense strategy

with his co-defendants and ﬁle pretrial motions, the

magistrate scheduled a Rule 44 hearing where no

evidence or testimony was presented and removed Petitioner’s counsel from the case. In its order, the magistrate proposed hypothetical potential conﬂicts and

advocated for defense counsel that would “negotiate”

cooperation agreements to help the government prove

its case, which was based almost entirely on wiretap

intercepts, and the order was summarily adopted by

the district court. At a minimum, Petitioner’s guilty

plea and sentence must be vacated because the erroneous disqualiﬁcation of counsel constitutes structural

error and prejudice is presumed. Gonzalez-Lopez, 548

U.S. at 144.

However, because it is impossible to restore Petitioner to the “circumstances he was in had there been

no constitutional error,” the proper remedy is dismissal

of the indictment with prejudice. Carmichael, 216 F.3d

at 227. Prior to disqualiﬁcation, TLA ﬁled a motion to

vacate the magistrate’s detention order on Petitioner’s

behalf, raised the government’s Riverside violations as

grounds for release, and provided evidence of his gainful employment and ties to the community. Following

disqualiﬁcation, the district court denied the objections

because appointed counsel “failed to ﬁle a supplement”

and “speciﬁcally outline the reasons the Court should

release [Petitioner], including what speciﬁc steps will

be taken to minimize [Petitioner’s] risk of ﬂight and

danger to the community.” (App. E.). As a result, Petitioner was faced with incarceration during the

pendency of his case, hampering his ability to assist in

the preparation of his defense. Stack v. Boyle, 342 U.S.

1, 4 (1951) (the traditional “right to freedom before conviction permits the unhampered preparation of a defense”). The merits of Petitioner’s objections were

never addressed due to the disqualiﬁcation order, and

his defense was therefore adversely affected.

The disqualiﬁcation also prevented Petitioner

from utilizing pretrial motions to challenge the legality

of the wiretap warrants and search warrants in this

matter. A preliminary motion to suppress wiretap evidence and statements was ﬁled on Petitioner’s behalf.

At the pretrial conference, the magistrate gave Petitioner’s counsel only two days to “perfect” the motion

to suppress with an afﬁdavit “to establish standing.”

The deadline was not met, and the motion to suppress

was deemed abandoned and denied on standing

grounds. The magistrate also denied the motion on the

grounds that Petitioner failed to properly adopt his codefendant’s motion to suppress pursuant to the local

rules of the Northern District of Georgia. Had Petitioner and his co-defendants maintained their joint defense agreement with chosen counsel, this unfavorable

outcome would have been avoided. Following the summary denial of the pretrial motions in this matter, ﬁve

of the six co-defendants executed plea agreements with

the government and all six co-defendants entered

guilty pleas. Indeed, unless all six co-defendants’ guilty

pleas and sentences are vacated, Petitioner cannot be

restored to the status quo ante because the beneﬁts of

a joint defense are now unavailable to him. The

disqualiﬁcation of Petitioner’s chosen counsel clearly

had an “adverse” effect on the legal representation he

received. Morrison, 449 U.S. at 365. Therefore, “no remedy other than dismissal of the indictment would put

[Petitioner] in the position [he] would have occupied

absent the government’s misconduct.” Stein, 541 F.3d

at 142.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that this Honorable Court GRANT the petition for a writ of certiorari.

Respectfully submitted this 22nd day of March,

2021.

JEROME D. LEE, ESQ.

Georgia Bar No. 443455

6855 Jimmy Carter Boulevard

Building 2100, Suite 2150

Norcross, Georgia 30071

Telephone: (770) 650-7200

Facsimile: (678) 735-4512

Email: criminal@htlweb.com

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.