Amicus Curiae Brief — Vilasini Ganesh, Petitioner v. United States

No. 21-6156

IN THE

Supreme Court of the United States

————

VILASINI GANESH,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF AMICUS CURIAE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS

IN SUPPORT OF PETITIONER

————

ANDREW L. SCHLAFLY

939 Old Chester Road

Far Hills, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

November 29, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

i

QUESTIONS PRESENTED

A. Do Sixth Amendment safeguards require trial

courts to inquire into existing conflicts between

counsel and the defendant before a trial court may

deny substitution on the basis of calendar

management alone?

B. What criteria are circuit courts required to

examine to determine the adequacy of conflict

inquiries which serve to protect defendants?

C. Does the “needs of fairness” factor permit trial

courts to consider the lack of adverse effects upon

the defendant, contrary to United States v.

Gonzalez-Lopez?

D. Are trial court decisions “unreasonable and

arbitrary” when they disregard the unequivocal

and uncontradicted assurances of readiness by

retained counsel in a criminal case?

ii

TABLE OF CONTENTS

Pages

Questions Presented .............................................. i

Table of Contents ................................................. ii

Table of Authorities ............................................ iii

Interests of Amicus Curiae ................................... 1

Summary of Argument ......................................... 2

Argument .............................................................. 3

I. Calendar Efficiency Must Yield to the

Sixth Amendment Right to Counsel, a

Basic Right Compelling Review Here ........... 4

II. Manifest Injustice Resulted Here from

the Unconstitutional Breakdown in the

Adversarial Process........................................ 8

Conclusion ........................................................... 10

iii

TABLE OF AUTHORITIES

Pages

Cases

Alleyne v. United States, 570 U.S. 99 (2013) ....... 8

Apprendi v. New Jersey, 530 U.S. 466 (2000) .. 8, 9

Ass’n of Am. Physicians & Surgs. v. Clinton,

997 F.2d 898 (D.C. Cir. 1993) ........................... 2

Ass’n of Am. Physicians & Surgs. v.

Mathews, 423 U.S. 975 (1975) .......................... 1

Ass’n of Am. Physicians & Surgs. v. Tex. Med.

Bd., 627 F.3d 547 (5th Cir. 2010) ..................... 2

Blakely v. Washington, 542 U.S. 296 (2004) ........ 8

Crawford v. Washington, 541 U.S. 36 (2004) ...... 9

District of Columbia v. Heller, 554 U.S. 570

(2008) ................................................................. 2

Genzler v. Longanbach,

410 F.3d 630 (9th Cir. 2005) ............................. 9

Jones v. United States, 574 U.S. 948 (2014) ........ 6

Kaur v. Maryland, 141 S. Ct. 5 (2020) ................. 5

People v. Rodgers, 119 Mich. App. 767,

327 N.W.2d 353 (1982) ...................................... 8

Rothgery v. Gillespie County,

554 U.S. 191 (2008) ........................................... 6

Springer v. Henry, 435 F.3d 268 (3d Cir.

2006) .................................................................. 2

Stenberg v. Carhart, 530 U.S. 914 (2000) ............ 2

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

140 (2006) ........................................................... i

United States v. Haymond, 139 S. Ct. 2369

(2019) ......................................................... 5, 6, 8

iv

United States v. Natale, 719 F.3d 719 (7th

Cir. 2013) ........................................................... 2

Weems v. United States, 217 U.S. 349 (1910) ...... 4

Other Authorities

3 W. Blackstone, Commentaries on the Laws

of England (1768) .............................................. 9

Letter from Clarendon to W. Pym

(Jan. 27, 1766), in 1 Papers of John

Adams 169 (R. Taylor ed. 1977) ....................... 5

Robert W. Pratt, “The Implications of Padilla

v. Kentucky on Practice in the United

States District Courts,” 31 ST. LOUIS U.

PUB. L. REV. 169 (2011) .................................... 7

No. 21-6156

IN THE

Supreme Court of the United States

VILASINI GANESH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

INTERESTS OF AMICUS CURIAE1

Amicus Association of American Physicians and

Surgeons (“AAPS”) is a national association of

physicians. Founded in 1943, AAPS is dedicated to the

highest ethical standards of the Oath of Hippocrates

and to preserving the sanctity of the patient-physician

relationship. AAPS has been a litigant in this Court

and in other appellate courts. See, e.g., Ass’n of Am.

Physicians & Surgs. v. Mathews, 423 U.S. 975 (1975);

1 Amicus files this brief after providing the requisite ten days’

prior written notice and receiving written consent by all the

parties. Pursuant to Rule 37.6, counsel for amicus curiae

authored this brief in whole, no counsel for a party authored this

brief in whole or in part, and no such counsel or a party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person or entity – other than amicus,

its members, and its counsel – contributed monetarily to the

preparation or submission of this brief.

2

Ass’n of Am. Physicians & Surgs. v. Tex. Med. Bd., 627

F.3d 547 (5th Cir. 2010); Ass’n of Am. Physicians &

Surgs. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993).

This Court has expressly made use of amicus briefs

submitted by AAPS. See, e.g., Stenberg v. Carhart, 530

U.S. 914, 933 (2000); id. at 959, 963 (Kennedy, J.,

dissenting); District of Columbia v. Heller, 554 U.S.

570, 704 (2008) (Breyer, J., dissenting). The Third and

Seventh Circuits have also cited amicus briefs by

AAPS. See United States v. Natale, 719 F.3d 719, 739

(7th Cir. 2013); Springer v. Henry, 435 F.3d 268, 271

(3d Cir. 2006).

AAPS supports protection of the right to counsel as

enshrined in the Sixth Amendment, and thus has a

strong interest in this Petition for a Writ of Certiorari.

SUMMARY OF ARGUMENT

In this prosecution over a private billing dispute,

unrelated to any federal programs such as Medicare or

Medicaid or the quality of any medical care, solicitude

for a defendant’s constitutional right to counsel should

not be too much to ask. Few constitutional rights are

as important and fundamental as one’s right to

counsel in a criminal prosecution, and if this matter

had been handled as civil litigation that right would

not have been infringed. The integrity of the process

and the validity of judicial outcomes depend heavily on

respect for the right to counsel. Yet in the name of

calendar efficiency the Ninth Circuit steamrolled that

right without a meaningful inquiry. The unjust result

was more than 5 years imprisonment over a mere

private billing disagreement, based on a conviction

obtained against a defendant after denial of her

request to be represented by the counsel of her choice.

3

The constitutional right to counsel should not be

eviscerated. Petitioner Vilasini Ganesh (“Ganesh”)

was justifiably unsatisfied with the misguided

approach by her unwanted counsel, and Petitioner

Ganesh had a clear constitutional right to substitute

different counsel. There was no urgency for a trial

concerning billing issues that did not even involve any

federal programs. Expediency should not be used to

erode constitutional rights, and the Ninth Circuit has

made a wrong turn that compels review by this Court.

The Petition should be granted to restore the full

constitutional right to counsel in the courts within the

Ninth Circuit, as respected by other Circuits. See

Petition at 13-14, 18.

ARGUMENT

The right to counsel is sacrosanct, and not

sacrificed on the altar of managing a court docket. The

standard-of-convenience implicitly adopted by the

Ninth Circuit is contrary to the Constitution in

allowing perceived calendaring goals to override a

defendant’s Sixth Amendment right to counsel,

without even an adequate inquiry into the nature of

the conflict between a criminal defendant and her

disfavored counsel.

The constitutional right to counsel has heightened

significance where, as here, the case consists of a

disagreement about billings which should have been

more appropriately handled on the civil side. See

Petition App. B. The insurance companies could have

brought their own civil action and proceeded as

expeditiously as they liked. Instead, a prosecution was

pursued by the government based on the interests of

private insurance companies.

The underlying

4

assertion of billing fraud was by the insurance

companies, and the resulting sentence of more than 5

years in prison for a mere private billing dispute was

excessive. A vigorous requested defense should have

been allowed to avert the resulting injustice.

I.

Calendar Efficiency Must Yield to the

Sixth Amendment Right to Counsel, a

Basic Right Compelling Review Here.

The Constitution enhances efficiency, but is not a

slave to it. Some constitutional rights may, at times,

cause occasional inefficiencies. The right against selfincrimination, for example, can frustrate efficient

ways to ferret out the truth. England once used

torture to expeditiously obtain a confession. See

Weems v. United States, 217 U.S. 349, 406 (1910)

(“In England there was a time when punishment was

by torture, by loading him with weights to make him

confess.”) (White and Holmes, JJ., dissenting).

Though efficient and arguably effective, the

Constitution fortunately prohibits that.

The right to counsel enshrined in the Sixth

Amendment may cause delays just as the Fifth

Amendment protection against self-incrimination

might. Cases would be resolved more quickly if

defendants and other litigants never changed counsel,

or were forced to confess. The Sixth Amendment could

have limited the right to counsel to prevent changes

midstream when conflicts arise.

Instead, this

fundamental right in the Sixth Amendment is

expressly absolute and unlimited.

No “balancing” of interests is proper where, as here,

a criminal defendant has irreconcilable differences

with her counsel. The Sixth Amendment right to

5

effective counsel is absolute. There is no effective

representation by counsel amid an irreconcilable

conflict between the attorney and the defendant. A

proper jury trial cannot proceed under such a conflict.

A full inquiry into the nature of the conflict between

the defendant and the appointed counsel is essential

before a trial can properly ensue with counsel that a

criminal defendant does not want. Otherwise, the trial

falls short of a genuine, adversarial adjudication that

is the hallmark of the American legal system.

As Justice Sotomayor explained last term, there

are “many insidious ways that potential Sixth

Amendment violations can affect the course of a trial.”

Kaur v. Maryland, 141 S. Ct. 5, 6 (2020) (concurring in

the denial of a petition for writ of certiorari). Once

prosecutors realized that Petitioner Ganesh had a

conflict with her counsel and that the court would not

allow her to rectify that conflict with new counsel, then

the prosecution had endless possibilities for exploiting

that conflict. For example, analogous to the Kaur case

where there was a breach in confidentiality of the

attorney-client communications, prosecutors aware of

an unresolved conflict between a defendant and her

counsel can “either intentionally or subconsciously”

engage in a voir dire strategy to “select[] a different

mix of jurors.” Id. at 7.

“[T]he right to trial by jury [is] ‘the heart and lungs,

the mainspring and the center wheel’ of our liberties,

without which ‘the body must die; the watch must run

down; the government must become arbitrary.’”

United States v. Haymond, 139 S. Ct. 2369, 2375

(2019) (plurality opinion) (quoting Letter from

Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of

John Adams 169 (R. Taylor ed. 1977)). Erosion of that

6

right by undermining the right to change counsel amid

an irreconcilable conflict, as presented here, is

inconsistent with the Constitution and the teachings

of this Court.

Haymond concerned merely a

sentencing enhancement for an already convicted

defendant, while this case concerns a core right central

to the right to the jury trial itself. The concurrence in

Haymond was likewise vigilant in recognizing the full

Sixth Amendment rights inherent in a jury trial at

issue here. Haymond, 139 S. Ct. at 2392 (Alito, J.,

concurring) (emphasizing that the Sixth Amendment

does apply “in all criminal prosecutions”) (quoting

Rothgery v. Gillespie County, 554 U.S. 191, 214

(2008) (Alito, J., concurring)).

Less than a decade ago Justice Scalia expressed his

strong dissent to the denial of another petition for writ

of certiorari in a Sixth Amendment case. “We should

grant certiorari to put an end to the unbroken string

of cases disregarding the Sixth Amendment—or to

eliminate the Sixth Amendment difficulty by

acknowledging that all sentences below the statutory

maximum are substantively reasonable.” Jones v.

United States, 574 U.S. 948, 950 (2014). The confusion

by lower courts as to the contour of the Sixth

Amendment right to counsel remains an unresolved

problem, which this Court can address by granting

certioriari here.

Rewriting the Sixth Amendment cannot be

justified by a misperception about the administrative

burden of federal jury trials. To the contrary, jury

trials have become the exception rather than the rule

in federal criminal prosecutions, in an erosion of the

American tradition. Chief Judge Robert W. Pratt of

the Southern District of Iowa observed that:

7

There has been significant discussion in legal

literature about “vanishing trials,” with much

commentary and speculation about why the rate of

jury determinations is declining. … Since 1980,

the percentage of people going to trial has

decreased almost two-thirds, while the percentage

of cases resolved by plea has been increased

proportionately.

From

1980

to

1999,

the frequency of federal jury trials fell from nearly

16 percent of all adjudications to just a bit more

than 4 percent. In 1980, one defendant went to trial

for every four who pled guilty. By 1999, that ratio

fell to one in twenty.

Robert W. Pratt, “The Implications of Padilla v.

Kentucky on Practice in the United States District

Courts,” 31 ST. LOUIS U. PUB. L. REV. 169, 170 (2011)

(citations omitted).

Jury trials may be a model of inefficiency and few

would doubt that changing counsel for a jury trial can

disrupt a court schedule. But this core constitutional

right should be respected regardless of any

inefficiencies attendant to it. State supreme courts

recognize this, like the Michigan Supreme Court in

overturning a conviction obtained without a robust

jury trial:

We believe the interests of justice demand that

defendant be given a new trial. We cannot accept

the prosecution’s argument that the case against

defendant was so strong so as to have made the

error harmless. The right to trial by jury is among

the most fundamental rights provided by our

judicial system. The coerced waiver of that right is

one we view as so offensive to the maintenance of a

sound judicial system that it may not be regarded

8

as harmless.

People v. Rodgers, 119 Mich. App. 767, 771, 327

N.W.2d 353, 355 (1982).

In light of the paramount importance given to the

Sixth Amendment in connection with the right to a

jury trial, the right to effective counsel merits granting

the Petition for a Writ of Certiorari.

II.

Manifest Injustice Resulted Here from

the Unconstitutional Breakdown in the

Adversarial Process.

In the last quarter-century this Court has corrected

multiple violations of the Sixth Amendment, and

granting the Petition would enable a straightforward

extension of this jurisprudence. See, e.g., Apprendi v

New Jersey, 530 U.S. 466, 490 (2000) (restoring the

preeminence of a jury and the need to prove criminal

allegations beyond a reasonable doubt); Blakely v.

Washington, 542 U.S. 296 (2004) (reversing another

violation of the Sixth Amendment); Alleyne v. United

States, 570 U.S. 99, 112 (2013); Haymond, 139 S. Ct.

at 2374 (plurality opinion by Gorsuch, J.) (discussed

above). While these decisions concerned rights in

sentencing, the right to counsel guaranteed by the

Sixth Amendment is at least as important, and the 63month sentence imposed in this case at bar after the

denial of substitution of counsel was indeed excessive.

This case involves a run-of-the-mill billing dispute

that would ordinarily be handled as a civil matter as

other contractual disagreements are. But apparently

at the request or behest of an insurance company,

Respondent United States converted this into an

unusual criminal prosecution and obtained a

draconian prison sentence of more than 5 years over a

9

smattering of billing disputes. This sentence is out of

proportion with the infraction found by the jury,

analogous to the excessive sentences reversed in the

Apprendi line of precedents.

The manifest injustice of the excessive 63-month

prison sentence for a relatively small billing dispute

between private parties underscores the need to grant

the Petition for a Writ of Certiorari here. Injustice

results when there is a breakdown in the adversarial

process. Examples abound of exoneration on retrial

after an appellate court found an improper

infringement on the right to counsel. See, e.g., Genzler

v. Longanbach, 410 F.3d 630, 633-35 (9th Cir. 2005)

(recounting alleged prosecutorial misconduct that

occurred in a state court trial after the defendant’s

preferred counsel was improperly recused by the court,

and the acquittal on the most serious crime in the

subsequent retrial after appellate reversal of the

denial of use of the preferred counsel at the first trial).

A robust adversarial process is the linchpin of the

American judicial system. See, e.g., Crawford v.

Washington, 541 U.S. 36, 43 (2004) (“The common-law

tradition is one of live testimony in court subject to

adversarial testing, while the civil law condones

examination in private by judicial officers.”) (citing 3

W. Blackstone, Commentaries on the Laws of England

373-74 (1768)). Undercurrents to change our tradition

to a less adversarial European style, which does not

incorporate a fully adversarial right to counsel, should

be resisted. The Sixth Amendment has never been

watered down by a subsequent constitutional

amendment, and should not be diluted for calendaring

goals. When a criminal defendant is denied her full

right to counsel in a federal prosecution, then a just

10

result is unlikely to be attained under our adversarial

system. The 63-month prison sentence of Petitioner

Ganesh based on a private billing dispute is the sort of

manifest injustice that results from an infringement

on the Sixth Amendment right to counsel.

CONCLUSION

For the foregoing reasons and those stated in the

Petition, this Court should grant the Petition for a

Writ of Certiorari.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

Dated: November 29, 2021