Opposition Brief — Eduardo Lopez, Petitioner v. United States

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No. 20-1356

In the Supreme Court of the United States

EDUARDO LOPEZ, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Acting Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

CHRISTOPHER J. SMITH

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner is entitled to challenge on appeal the district court’s pre-plea order disqualifying

defense counsel based on conflicts of interest, notwithstanding petitioner’s unconditional guilty plea.

2. Whether, if petitioner’s disqualification-of-counsel

challenge was preserved for appeal, the district court

abused its discretion in disqualifying defense counsel.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 8

Conclusion ................................................................................... 21

TABLE OF AUTHORITIES

Cases:

Blackledge v. Perry, 417 U.S. 21 (1974) .............................. 10

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

Haynes v. United States, 390 U.S. 85 (1968) ........................ 9

Holloway v. Arkansas, 435 U.S. 475 (1978) ............ 16, 17, 18

Menna v. New York, 423 U.S. 61 (1975) ........................ 10, 12

Tollett v. Henderson, 411 U.S. 258 (1973) ................... 8, 9, 12

United States v. Broce, 488 U.S. 563 (1989) .................... 9, 13

United States v. Chavez-Diaz,

949 F.3d 1202 (9th Cir. 2020) ............................................. 14

United States v. Gonzalez-Lopez:

399 F.3d 924 (8th Cir. 2005), aff ’d and

remanded, 548 U.S. 140 (2006) ................................. 11

548 U.S. 140 (2006) .......................................................... 12

United States v. Gonzalez-Mercado,

808 F.2d 796 (11th Cir. 1987) ............................................... 8

United States v. Lozano,

962 F.3d 773 (4th Cir. 2020) ............................................... 14

United States v. Sanchez Guerrero,

546 F.3d 328 (5th Cir. 2008), cert. denied,

556 U.S. 1172 (2009)............................................................ 14

United States v. Smith,

618 F.3d 657 (7th Cir. 2010) ......................................... 11, 15

(III)

Cases—Continued:

Page

United States v. Yunis, 723 F.2d 795 (11th Cir. 1984)......... 7

Vasquez v. Hillery, 474 U.S. 254 (1986) .............................. 12

Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) ............. 12

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

Constitution, statutes, and rules:

U.S. Const.:

Amend. IV ........................................................................ 11

Amend. VI ........................................................................ 16

21 U.S.C. 841(b)(1)(A) ......................................................... 2, 3

21 U.S.C. 846 ........................................................................ 2, 3

Fed. R. Crim. P.:

Rule 11 ................................................................................ 6

Rule 11(a)(2) ........................................................... 8, 13, 14

Rule 44 ................................................................................ 3

Rule 44(c)(2) ............................................3, 6, 17, 18, 19, 20

In the Supreme Court of the United States

No. 20-1356

EDUARDO LOPEZ, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-4) is

not published in the Federal Reporter but is reprinted

at 829 Fed. Appx. 949. The order of the district court

(Pet. App. 5-7) is not published in the Federal Supplement but is available at 2019 WL 1724048. The order of

the magistrate judge (Pet. App. 8-17) is reported at 374

F. Supp. 3d 1326.

JURISDICTION

The judgment of the court of appeals was entered on

November 19, 2020. The petition for a writ of certiorari

was filed on March 22, 2021. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the Northern District of Georgia, petitioner

(1)

was convicted of conspiring to possess with the intent to

distribute at least 500 grams of methamphetamine, in

violation of 21 U.S.C. 841(b)(1)(A) and 846. Judgment

1. He was sentenced to 156 months of imprisonment, to

be followed by five years of supervised release. Judgment 2-3. The court of appeals affirmed. Pet. App. 1-4.

1. In September 2018, a Drug Enforcement Administration task force began investigating a Mexico-based

drug-trafficking and money-laundering organization

operating in the Atlanta area. D. Ct. Doc. 1, at 7 (Feb.

13, 2019) (Complaint). As part of the investigation,

agents obtained a state-court warrant and intercepted

phone calls of petitioner, as well as Fredrico PachecoRomero and Carlos Martinez, indicating that the three

of them were trafficking and distributing methamphetamine. Complaint 2, 7-17. In particular, the investigation revealed that petitioner received a shipment of liquid methamphetamine on February 2, 2019, which others then manufactured into crystal methamphetamine.

Complaint 12-13. The investigation also revealed that

petitioner received an additional delivery of liquid

methamphetamine on February 8, 2019, about 15 kilograms of which was “cooked” into crystal methamphetamine. Complaint 16-17.

On February 9, 2019, law-enforcement officers executed search warrants at the residences of petitioner,

Pacheco-Romero, Martinez, and others. Complaint

17-21. At Pacheco-Romero’s residence, agents found

between $150,000 and $250,000 in cash, as well as firearms and methamphetamine residue on the master

bathroom toilet. Complaint 18-19. At Martinez’s residence, agents similarly found a large amount of currency, and Martinez’s phone contained pictures of

methamphetamine that matched photos intercepted

over the wiretap. Complaint 18. At petitioner’s home,

agents located “scattered cash,” surveillance cameras,

and a money counter. Complaint 20. And at another

address associated with petitioner and his confederates,

agents located approximately 100 pounds of a substance

that field-tested positive as methamphetamine, as well

as numerous boxes of one-gallon Ziploc bags containing

suspected methamphetamine. Complaint 19-20. On the

same property, agents also located a “shutdown methamphetamine conversion lab.” Complaint 20.

2. A federal grand jury indicted petitioner and five

codefendants on a single count of conspiring to possess

with the intent to distribute at least 500 grams of methamphetamine, in violation of 21 U.S.C. 841(b)(1)(A) and

846. Indictment 1-2.

The case was referred to a magistrate judge, and a

single pair of defense attorneys indicated their intention to represent all six codefendants. See D. Ct. Doc.

60 (Feb. 28, 2019). The magistrate judge scheduled a

hearing pursuant to Federal Rule of Criminal Procedure 44 to inquire about the propriety of the proposed

joint representation, in light of any potential conflicts of

interest that it might generate. See D. Ct. Doc. 74 (Mar.

8, 2019). Rule 44 provides that:

The court must promptly inquire about the propriety

of joint representation and must personally advise

each defendant of the right to the effective assistance of counsel, including separate representation.

Unless 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).

The government thereafter moved to disqualify the

two defense attorneys from representing any of the defendants, on the ground that their representation would

likely produce conflicts of interest. D. Ct. Doc. 70 (Mar.

12, 2019). The magistrate judge conducted an ex parte

conference with defense counsel and each defendant to

explore the propriety of a joint representation, and each

defendant executed a written waiver affirming that he

wanted to be represented by the two identified lawyers.

See Pet. App. 10.

The magistrate judge then granted the government’s motion to disqualify that pair of defense attorneys. Pet. App. 8-17. The magistrate judge explained

that, “[a]lthough a defendant has a presumptive right to

be represented by the attorney of his choice, this right

is not absolute, but is qualified by the judiciary’s independent interest in ensuring that the integrity of the

judicial system is preserved and that trials are conducted within ethical standards.” Id. at 10 (citation and

internal quotation marks omitted). The magistrate

judge observed that, under this Court’s precedent,

“counsel may be disqualified from representing a defendant where an actual, or even potential, conflict of

interest is present.” Ibid. (citing, inter alia, Wheat v.

United States, 486 U.S. 153, 164 (1988)).

Here, the magistrate judge determined that “disqualification of [the two attorneys] and their firm as

counsel for all defendants [was] required” because of a

“serious potential, if not actual, conflict of interest in

their joint representation of all six defendants.” Pet.

App. 11. The magistrate judge explained that the criminal complaint described differing roles for each defendant in the conspiracy, “which create[d] a significant

potential conflict of interest from joint representation

because each defendant does not stand on equal footing

with respect to their potential culpability and opportunity to negotiate a resolution of the pending charges

against them,” especially in exchange for testimony

against their codefendants. Ibid. The magistrate judge

additionally found that “[i]f the defendants choose to go

to trial,” another “serious potential conflict of interest”

would likely arise, especially if any defendant elected to

give testify in his own defense that could inculpate other

codefendants. Id. at 13. In that circumstance, the defense attorneys “would be faced with the prospect of

examining or cross-examining a witness whom [they]

represent[ ] and whose interest lies in direct conflict

with [their] other client[s].” Ibid. (citation omitted); see

id. at 13-14. Against those potential or actual conflicts,

the magistrate judge perceived no strategic advantage

for the defendants from the proposed joint representation. See id. at 12, 16 n.6.

The magistrate judge further found that disqualification was appropriate, because both attorneys were

presumed to have received confidential communication

from the defendants during their representation up to

that point, such that they could “have ‘divided loyalties

that prevent [them] from effectively representing the

defendant[s].’ ” Pet. App. 13 (citation omitted; brackets

in original). And the magistrate judge found that, in

light of the “very obvious” actual or potential conflicts

of interest from the proposed joint representation, the

defendants’ willingness to waive the conflict could not

“ ‘ensure the adequacy of representation, * * * protect

the integrity of the court, [or] avoid future attacks over

adequacy of waiver and fairness of trial.’ ” Id. at 15-16

(citation omitted); see Wheat, 486 U.S. at 163 (holding

that “court[s] must be allowed substantial latitude in

refusing waivers of conflicts of interest”).

The district court subsequently overruled the defendants’ objections to the magistrate judge’s disqualification order. Pet. App. 5-7. The court explained that

the magistrate judge’s order adheres to this Court’s

precedent and “the text of ” Rule 44(c)(2), both of which

require an inquiry into “whether the conflict is ‘likely’

or whether there is a ‘serious potential’ for conflict, not

whether the conflict is actual or provable at the time of

disqualification.” Id. at 6 (quoting Fed. R. Crim. P.

44(c)(2) and Wheat, 486 U.S. at 164). The court found it

“evident from the record that there are at least serious

potential conflicts—if not actual ones”—from a joint

representation in this case, and that the magistrate

judge had “correctly considered the conflict potentials

* * * and determined that waivers were not an appropriate remedy.” Ibid.

3. Petitioner pleaded guilty to the sole count charged

against him. See D. Ct. Doc. 218 (Dec. 11, 2019). Before

accepting the guilty plea, the district court engaged in

an extensive colloquy pursuant to Federal Rule of Criminal Procedure 11. See Pet. App. 21-48. The court ensured that petitioner understood that he had the right

to plead not guilty and to have a trial. Id. at 26-29. During the colloquy, petitioner acknowledged that, although the government had offered him at least two potential plea agreements, he had decided to plead guilty

without an agreement. Id. at 43-45. Petitioner also confirmed that, if he wished to go to trial and “had some

falling out with” his current lawyer, he could hire his

own lawyer, or the court would appoint one at no cost.

Id. at 28. Petitioner agreed that he was satisfied with

the services that his attorney had provided. Id. at 42.

The district court informed petitioner during the

plea colloquy that “the only rights” that he would “keep

after a plea of guilty” are the right to have a lawyer advise and represent him at sentencing, and “to appeal

any legal defect in [his] plea or sentence.” Pet. App. 2930. Petitioner stated that he understood those limitations on his rights. Id. at 30. He affirmed that he was

“pleading guilty because [he was] in fact guilty,” id. at

42, and that he was entering the plea “voluntarily and

of [his] own free will,” id. at 46.

The district court accepted petitioner’s guilty plea.

Pet. App. 46. The court found that the “plea of guilty is

knowingly, voluntarily and intelligently made,” and “is

on the advice of competent counsel and has a basis of

fact that comprehends each and every element of the

offense charged to which [petitioner was] pleading

guilty.” Ibid. The court then sentenced petitioner to

156 months of imprisonment, to be followed by five

years of supervised release. Judgment 2-3.

4. Petitioner appealed his conviction and sentence,

arguing (inter alia) that the district court had erred by

disqualifying his original counsel. See Pet. App. 1-2.

The court of appeals summarily affirmed. Id. at 1-4.

The court observed that it had “long held that ‘[a]

defendant’s plea of guilty, made knowingly, voluntarily,

and with [the] benefit of competent counsel, waives all

nonjurisdictional defects in that defendant’s court proceedings.’ ” Pet. App. 2 (quoting United States v. Yunis,

723 F.2d 795, 796 (11th Cir. 1984)) (first set of brackets

in original). And the court of appeals cited this Court’s

own recent observation in Class v. United States, 138

S. Ct. 798 (2018), that “[a] valid guilty plea * * * renders irrelevant—and thereby prevents the defendant

from appealing—the constitutionality of case-related

government conduct that takes place before the plea is

entered.” Pet. App. 2 (quoting 138 S. Ct. at 805); see id.

at 2-3 (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense

with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the

guilty plea.”) (quoting Tollett v. Henderson, 411 U.S.

258, 267 (1973)).

“In light of that authority,” the court of appeals

found “no substantial question that [petitioner] pleaded

guilty knowingly and voluntarily and as a result waived

the claims he presents on appeal.” Pet. App. 3. The

court observed that petitioner had “confirmed at his

plea colloquy that he understood that he was under

oath, that he was waiving his constitutional rights, and

the consequences of pleading guilty,” and the court

emphasized the “ ‘strong presumption’ that a defendant

who enters a plea after proceedings that follow the

requirements of Fed. R. Crim. P. 11 does so knowingly

and voluntarily.” Ibid. (quoting United States v.

Gonzalez-Mercado, 808 F.2d 796, 800 & n.8 (11th Cir.

1987)). The court further observed that, although petitioner could have preserved appellate review of his nonjurisdictional objection to the disqualification of his

counsel by entering a conditional guilty plea pursuant

to Rule 11(a)(2), he did not do so. Ibid.

ARGUMENT

Petitioner contends (Pet. 9-17) that the court of appeals erred in finding that his unconditional guilty plea

precluded his appellate challenge to the district court’s

pre-plea order disqualifying his original counsel. The

decision below is correct, and while two other courts of

appeals reached contrary conclusions prior to this Court’s

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

those decisions have been superseded by Class and they

do not present any conflict among the courts of appeals

that currently warrants this Court’s review. Petitioner

additionally contends (Pet. 17-36) that the district court

abused its discretion in disqualifying his counsel. But

even if petitioner’s claim were not waived, his factbound

argument lacks merit and does not warrant this Court’s

review. The petition for a writ of certiorari should be

denied.

1. Petitioner first contends (Pet. 9-17) that the court

of appeals erred by determining that his guilty plea relinquished his objection to the district court’s disqualification of his original counsel. Petitioner is incorrect.

a. This Court has held that “a valid guilty plea ‘forgoes not only a fair trial, but also other accompanying

constitutional guarantees.’ ” Class, 138 S. Ct. at 805 (citation omitted). The plea “renders irrelevant—and

thereby prevents the defendant from appealing—the

constitutionality of case-related government conduct

that takes place before the plea is entered.” Ibid.; see

Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“[A]

guilty plea represents a break in the chain of events

which has preceded it in the criminal process.”). The

Court in Class explained that generally only a narrow

category of claims are not relinquished by an unconditional guilty plea: those that “would extinguish the government’s power to ‘constitutionally prosecute’ the defendant if the claim were successful.” Class, 138 S. Ct.

at 806 (quoting United States v. Broce, 488 U.S. 563, 575

(1989)); see id. at 804-806. Examples of that narrow category include (1) a claim that the statute of conviction

was unconstitutional, id. at 803 (discussing Haynes v.

United States, 390 U.S. 85 (1968)), (2) a vindictive-

prosecution claim, ibid. (discussing Blackledge v. Perry,

417 U.S. 21 (1974)), and (3) a double-jeopardy claim, id.

at 803-804 (discussing Menna v. New York, 423 U.S. 61

(1975) (per curiam)).

The court of appeals correctly applied those principles here in finding that petitioner’s guilty plea relinquished an appeal of the district court’s order disqualifying his original counsel. The district court’s thorough

plea colloquy makes clear that petitioner “knowingly,

voluntarily, and intelligently” entered that plea. Pet.

App. 46. And unlike the narrow category of claims that

Class identified as surviving a valid guilty plea, a claim

alleging that the district court abused its discretion in

disqualifying counsel would not “extinguish the government’s power to ‘constitutionally prosecute’ the defendant if the claim were successful.” 138 S. Ct. at 806

(citation omitted). Regardless of whether a district

court erred at an earlier stage of the proceedings by disqualifying counsel, such “case-related constitutional defects” are made “ ‘irrelevant to the constitutional validity of the conviction’ ” by a guilty plea “[b]ecause the

defendant has admitted the charges against him” in the

plea and waived his right to a fair trial. Id. at 804-805

(citation omitted).

b. Petitioner’s arguments to the contrary (Pet. 9-17)

lack merit. He asserts that “the right to counsel of

choice” is not necessarily relinquished by a guilty plea

because it is a “ ‘privilege[ ] which exist[s] beyond the

confines of the trial.’ ” Pet. 9 (quoting Class, 138 S. Ct.

at 805). Petitioner is incorrect. While the right to counsel of choice extends beyond the trial itself, nothing

about that entitlement suggests that a defendant cannot

waive that right by conceding his guilt and forgoing a

trial, just as a knowing and intelligent guilty plea “relinquishe[s] * * * the privilege against compulsory selfincrimination, the jury trial right, and the right to confront accusers.” Class, 138 S. Ct. at 805.

Petitioner acknowledges that a valid guilty plea precludes the defendant from appealing “the constitutionality of case-related government conduct that takes

place before the plea is entered,” Pet. 9-10 (quoting

Class, 138 S. Ct. at 805), but he contends that Class limited such preclusion “ ‘to the admissibility of evidence

obtained in violation of the Fourth Amendment’ ” and

“some procedural issues, such as the grand jury selection process.” Pet. 10-11 (citation omitted). That is not

an accurate description of Class. While the Court in

Class identified asserted Fourth Amendment and

grand-jury errors as among the types of pre-plea issues

that are relinquished by a guilty plea, the Court did not

hold that only those pre-plea issues are relinquished.

Instead, as described above (see pp. 9-10, supra), the

Court recognized that a valid guilty plea generally relinquishes all objections to matters that occurred before

the plea, except those few claims that “call into question

the Government’s power to ‘constitutionally prosecute’ ”

the defendant altogether. Class, 138 S. Ct. at 805 (citation omitted). *

* Petitioner “submits” (Pet. 11 n.5) that his disqualification-ofcounsel claim would, if successful, extinguish the government’s

power to prosecute him. Petitioner is incorrect. Even if his claim

succeeded, he would be entitled at most to vacatur of his guilty

plea and remand for new proceedings. See, e.g., United States v.

Gonzalez-Lopez, 399 F.3d 924, 935 (8th Cir. 2005) (“remand[ing] the

case for a new trial” upon finding a violation of defendant’s right to

counsel of choice), aff ’d and remanded, 548 U.S. 140 (2006); United

States v. Smith, 618 F.3d 657, 667 (7th Cir. 2010) (similar). Petitioner’s claim would not establish that “the charge [against him] is

Petitioner next asserts (Pet. 11) that his objection to

the disqualification of counsel survives his valid guilty

plea because an erroneous deprivation of the right to

counsel of choice qualifies as a structural error. See

United States v. Gonzalez-Lopez, 548 U.S. 140, 150

(2006). But “the term ‘structural error’ carries with it

no talismanic significance as a doctrinal matter.”

Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017).

“It means only that the government is not entitled to

deprive the defendant of a new trial by showing that the

error was ‘harmless beyond a reasonable doubt.’ ” Ibid.

(citation omitted). It does not mean that the error is

unwaivable or that it categorically invalidates a subsequent plea. In Tollett v. Henderson, for example, this

Court held that “a criminal defendant [who] pleads

guilty, on the advice of counsel, * * * is not automatically entitled to federal collateral relief on proof that the

indicting grand jury was unconstitutionally selected,”

411 U.S. at 266, even though racial discrimination in the

selection of a grand jury is a structural error, see

Vasquez v. Hillery, 474 U.S. 254, 263-264 (1986).

Petitioner also asserts (Pet. 14-15) that he did not

knowingly and voluntarily waive his appellate rights,

because the district court failed to instruct him that the

entry of a guilty plea would limit those rights. That assertion is misplaced. The principle that a valid guilty

plea relinquishes most pre-plea issues applies even

one which the [Government] may not constitutionally prosecute” at

all. Class, 138 S. Ct. at 804 (quoting Menna, 423 U.S. at 63 n.2). His

argument that “the government engaged in a pattern of intentional

and deliberate interference with [p]etitioner’s Sixth Amendment

rights” that requires dismissal of the indictment with prejudice, Pet.

33; see Pet. 32-36, is unsupported by the record and was not addressed by the lower courts.

without a “conscious waiver * * * with respect to each

potential defense relinquished by [the] plea of guilty.”

Broce, 488 U.S. at 573. “Relinquishment,” this Court

has explained, “derives not from any inquiry into a defendant’s subjective understanding of the range of potential defenses, but from the admissions necessarily

made upon entry of a voluntary plea.” Id. at 573-574.

Furthermore, to the extent petitioner suggests that

the district court affirmatively misled him, that factbound suggestion is incorrect. Petitioner expressly

acknowledged at his plea colloquy that he understood

that his plea waived his right to the assistance of counsel for his defense, Pet. App. 28, and that, as a consequence of pleading guilty, he would be precluded from

appealing any claims except those asserting a “legal

defect in [his] plea or sentence,” id. at 30. Petitioner’s

disqualification-of-counsel claim, which arose before his

plea, does not assert any defect in his plea or sentence.

Petitioner was thus on notice at the time of his plea that

he was relinquishing an appeal of the disqualification of

his former counsel.

Finally, contrary to petitioner’s contention (Pet.

16-17), the court of appeals did not hold that Federal

Rule of Criminal Procedure 11(a)(2) establishes “the

exclusive procedure for a defendant to preserve a constitutional claim following a guilty plea.” Pet. 16 (quoting Class, 138 S. Ct. at 806). The court instead correctly

identified the principle recognized in Class: a guilty

plea waives nonjurisdictional defects that occurred

“before the plea is entered”—like the right-to-counsel

error that petitioner asserts here—unless the defendant uses the procedure in Rule 11(a)(2) to enter a conditional guilty plea. Pet. App. 2 (quoting Class, 138 S. Ct.

at 805); see id. at 3 (explaining that “a defendant who

pleads guilty can preserve appellate review of a nonjurisdictional defect” by entering a conditional plea under Rule 11(a)(2)).

c. Petitioner asserts (Pet. 12-13) that this Court

should grant a writ of certiorari because the decision

below conflicts with decisions of other federal courts of

appeals, emphasizing in particular the Fifth Circuit’s

decision in United States v. Sanchez Guerrero, 546 F.3d

328, 331-332 (2008), cert. denied, 556 U.S. 1172 (2009).

There is no conflict that warrants this Court’s review.

In the first place, with the exception of Sanchez

Guerrero, none of the decisions cited by petitioner involved the disqualification of counsel or suggested that

a claim like petitioner’s here could be raised on appeal

following a valid guilty plea. Moreover, each of the decisions cited by petitioner pre-dates this Court’s decision in Class, which clarified that a guilty plea waives all

but a narrow category of claims. See 138 S. Ct. at 804805. Other courts of appeals, like the Eleventh Circuit

here, have recognized that, after Class, “the ‘fundamental distinction’ between claims that survive a guilty

plea” and claims that do not survive because they “challenge case-related constitutional defects that occurred

prior to the entry of the guilty plea” is “whether [the]

claim challenges” “the government’s power to prosecute [the defendant] in the first instance.” United

States v. Lozano, 962 F.3d 773, 779 (4th Cir. 2020) (citation omitted); see United States v. Chavez-Diaz, 949

F.3d 1202, 1206-1207 (9th Cir. 2020).

In Sanchez Guerrero, the Fifth Circuit relied on the

“structural” characterization of the asserted counsel-ofchoice error to conclude that the defendant’s guilty plea

did not relinquish his right to appeal the district court’s

order disqualifying his counsel. See 546 F.3d at 331-332

(citation omitted). And the Seventh Circuit indicated

similarly in United States v. Smith, 618 F.3d 657 (2010),

although the government had not pressed the preclusion point in that case. See id. at 663-664 (stating that,

if the government had pressed preclusion, the court

would not have found that the defendant’s challenge to

the district court’s denial of his motion to substitute

counsel had been waived by his guilty plea). But neither

court has revisited the issue in light of Class’s clarification that a guilty plea relinquishes asserted errors that

occurred before entry of the plea and do not implicate

the government’s power to prosecute the defendant.

See 138 S. Ct. at 805-806.

This Court’s review is accordingly unwarranted

here—particularly in light of the infrequency with which

the issue of preclusion of a counsel-disqualification claim

appears to arise. And in any event, this case would be

an unsuitable vehicle for addressing that issue because

it would not change the outcome of this case. As discussed below, petitioner has not identified any error in

the district court’s decision to disqualify his counsel in

light of the obvious and significant conflicts of interest

that likely would have arisen from the proposed joint

representation here.

2. Petitioner’s renewed contention (Pet. 17-36) that

the district court erred by disqualifying his counsel was

not addressed on the merits by the court of appeals, so

the decision below does not conflict with any decision of

another court of appeals. Even aside from that, the district court did not abuse its discretion in disqualifying

petitioner’s counsel, and his factbound assertion of

error does not warrant this Court’s review.

a. While the Sixth Amendment includes a qualified

right to counsel of the defendant’s choice, “the essential

aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by

the lawyer whom he prefers.” Wheat v. United States,

486 U.S. 153, 159 (1988). Thus, when a defendant

chooses to be represented by counsel, he does so subject

to reasonable standards governing the qualifications

and conduct of counsel, including ethical standards necessary to preserve the fairness and integrity of the administration of justice and the appearance of such fairness and integrity. Id. at 160. As this Court observed

in Wheat v. United States, “[f ]ederal courts have an independent interest in ensuring that criminal trials are

conducted within the ethical standards of the profession

and that legal proceedings appear fair to all who observe them.” Ibid. Accordingly, the presumption in favor of a defendant’s counsel of choice “may be overcome

not only by a demonstration of actual conflict but by a

showing of a serious potential for conflict.” Id. at 164.

In Wheat, this Court explained “that multiple representation of criminal defendants engenders special dangers of which a court must be aware.” 486 U.S. at 159.

While “ ‘permitting a single attorney to represent codefendants . . . is not per se violative of constitutional

guarantees of effective assistance of counsel,’ a court

confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether

the conflicts warrant separate counsel.” Id. at 159-160

(quoting Holloway v. Arkansas, 435 U.S. 475, 482

(1978)). The Court identified several dangers inherent

in a single counsel representing multiple codefendants,

including disincentives for counsel to challenge the admission of evidence prejudicial to one client but favorable to another, or to make arguments at sentencing

based on the relative involvement and culpability of

other clients. Id. at 160. Such conflicts may also prevent defense counsel from “exploring possible plea

negotiations and the possibility of an agreement to testify for the prosecution.” Holloway, 435 U.S. at 490.

In addition, “trial courts confronted with multiple

representations face the prospect of being ‘whip-sawed’

by assertions of error no matter which way they rule.”

Wheat, 486 U.S. at 161. “If a district court agrees to the

multiple representation, and the advocacy of counsel is

thereafter impaired as a result, the defendant may well

claim that he did not receive effective assistance.” Ibid.

Accordingly, in light of courts’ independent interest in

fair and sustainable outcomes, and the overall concerns

that multiple representations present, Federal Rule of

Criminal Procedure 44(c)(2) directs a district court to

“promptly inquire about the propriety of joint representation,” to “personally advise each defendant of the

right to the effective assistance of counsel, including

separate representation,” and to “take appropriate

measures to protect each defendant’s right to counsel”

“[u]nless there is good cause to believe that no conflict

of interest is likely to arise.” See p. 3, supra.

This Court has observed that “[t]he evaluation of the

facts and circumstances of each case under this standard must be left primarily to the informed judgment of

the trial court,” Wheat, 486 U.S. at 164, and a district

court’s judgment on the point is subject to review only

for abuse of discretion, id. at 157-158. Furthermore, because a district court often must assess a potential multiple representation pretrial, before all facts are known,

this Court has instructed that “the district court must

be allowed substantial latitude in refusing waivers of

conflicts of interest not only in those rare cases where

an actual conflict may be demonstrated before trial, but

in the more common cases where a potential for conflict

exists which may or may not burgeon into an actual conflict as the trial progresses.” Id. at 163.

The district court correctly applied those principles

here, and it acted well within its “substantial latitude”

in disqualifying petitioner’s original counsel. Wheat,

486 U.S. at 163. The court adopted, as “evident from

the record,” Pet. App. 6, the magistrate judge’s determination that the facts and circumstances here did not

give rise to “good cause to believe that no conflict of

interest is likely to arise.” Fed. R. Crim. P. 44(c)(2); see

Pet. App. 11. On the contrary, the magistrate judge explained why defense counsels’ proposal to represent all

six codefendants in this charged drug-trafficking conspiracy was likely to produce “a serious potential, if not

actual, conflict of interest.” Pet. App. 11. The criminal

complaint made clear that the defendants did “not stand

on equal footing with respect to their potential culpability,” which would likely have affected their “opportunity

to negotiate a resolution of the pending charges against

them.” Ibid.; see Holloway, 435 U.S. at 490 (observing

that multiple representation may prevent defense counsel from “exploring possible plea negotiations and the

possibility of an agreement to testify for the prosecution”). In addition, if the defendants were to go to trial,

another “serious potential conflict of interest” was

likely to arise in the event that any defendant elected to

testify in his own defense in a way that could be harmful

to other defendants. Pet. App. 13; see also Wheat, 486

U.S. at 160 (noting the potential for similar conflicts).

Those well-founded concerns about conflicts of

interest—conflicts that the magistrate judge found to

be incapable of resolution by waiver, in light of the

court’s independent obligation to ensure the adequacy

of representation of all defendants, Pet. App. 15-16—

amply justified the district court’s decision to deny the

proposed joint representation. And the magistrate

judge further determined that disqualification was the

necessary remedy in light of counsels’ presumed awareness of confidential information pertaining to all six

defendants, which called into question counsels’ ability

to represent any defendant adequately. See id. at 16

n.7.

b. Petitioner offers no sound basis for further review

of the district court’s factbound disqualification order.

Petitioner asserts (Pet. 20-22) that the district court

misapplied Rule 44(c)(2) by finding that disqualification

was justified by “hypothetical potential conflicts.” Pet.

21. But this Court recognized in Wheat that district

courts commonly confront cases “where a potential for

conflict exists which may or may not burgeon into an

actual conflict as the trial progresses,” and that trial

courts are given “substantial latitude in refusing waivers of conflicts of interests” even when no actual conflict

yet exists. 486 U.S. at 163. The magistrate judge here

explained why the multiple conflicts likely to arise from

the proposed joint representation were highly plausible, not merely hypothetical. See p. 18, supra. Petitioner’s suggestion (Pet. 28-31) that Wheat’s holding is

limited to a situation where a defense 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” is belied by the Court’s lengthy discussion of the “special dangers” of the “multiple representation” of codefendants and “potential conflicts” in

addition to actual ones. See Wheat, 486 U.S. at 159-163.

Petitioner also asserts (Pet. 21) that the magistrate

judge’s decision here “evince[s] an intent to frustrate

Petitioner’s chosen strategy of employing pretrial motions.” That argument cannot be squared with the decision itself, which describes how defense counsel were

unable at the Rule 44(c)(2) hearing to explain any way

in which their joint representation would offer a tactical

advantage to the defendants, including with respect to

pretrial motion practice. See Pet. App. 16 n.6. The

magistrate judge also explained that the decision

whether to pursue pretrial motions as opposed to a plea

agreement could have consequences for the defendants’

ability to secure favorable plea terms, and that it was

necessary for the defendants to make their judgments

individually given that they were not similarly situated

with respect to their culpability in the conspiracy and

the volume of the evidence against them. See id. at

12-13 & n.4.

Finally, petitioner errs in suggesting (Pet. 25-28)

that the district court was required to accept the defendants’ waiver of the conflicts of interest identified by

the magistrate judge. The magistrate judge examined

those waivers and explained why they were “suspect to

the extent they relied on” defense counsels’ “dubious

representations” about their “ ‘unique’ ” ability to represent these defendants jointly, especially in light of the

defendants’ “limited education” and lack of “prior experience with the United States criminal justice system.”

Pet. App. 16 n.6 (citation omitted).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.