Opposition Brief — United States, Petitioner v. Saleem Hakim
Supreme Court briefJan 17, 2023
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No. 22-464
IN THE
Supreme Court of the United States
UNITED STATES,
Petitioner,
v.
SALEEM HAKIM,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
BRIEF IN OPPOSITION
BRIAN C. LEA
JONES DAY
1221 Peachtree Street, NE
Suite 400
Atlanta, GA 30361
JAMES R. SAYWELL
JONES DAY
901 Lakeside Avenue
Cleveland, OH 44114
TRACI L. LOVITT
Counsel of Record
JONES DAY
250 Vesey Street
New York, NY 10281
(212) 326-3939
tlovitt@jonesday.com
Counsel for Respondent
i
QUESTION PRESENTED
Whether the total deprivation of the Sixth
Amendment right to counsel at all pretrial stages can
be a structural error.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED..........................................i
TABLE OF AUTHORITIES ..................................... iii
INTRODUCTION ....................................................... 1
CONSTITUTIONAL PROVISION INVOLVED ....... 2
STATEMENT ............................................................. 2
REASONS FOR DENYING THE PETITION ........... 8
I.
THE DECISION BELOW DOES NOT
WARRANT REVIEW ................................................. 8
A. The Government Misreads the
Eleventh Circuit’s Holding and
Precedent ....................................................... 9
B. Properly Read, the Decision
Below Does Not Split From
Any Other Circuit ........................................ 14
C. Properly Read, the Decision Below
Aligns with this Court’s Precedent ............. 18
D. Properly Read, the Decision Below
Is Not Sufficiently Important To
Justify Review ............................................. 23
II. EVEN THE GOVERNMENT’S MISFRAMED
QUESTION PRESENTED DOES NOT
WARRANT REVIEW ............................................... 25
CONCLUSION ......................................................... 29
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Argersinger v. Hamlin,
407 U.S. 25 (1972) ................................................ 22
Blanco v. Singletary,
943 F.2d 1477 (11th Cir. 1991) ............................ 12
Coleman v. Alabama,
399 U.S. 1 (1970) .......................... 11, 18, 22, 25, 27
Delguidice v. Singletary,
84 F.3d 1359 (11th Cir. 1996) ............ 11, 15, 19, 25
Ditch v. Grace,
479 F.3d 249 (3d Cir. 2007) ................................. 17
Eyman v. Alford,
448 F.2d 306 (9th Cir. 1969) ................................ 17
Faretta v. California,
422 U.S. 806 (1975) .......................... 2–3, 12, 24, 27
Fresh Results, LLC v. ASF Holland, B.V.,
921 F.3d 1043 (11th Cir. 2019) ............................ 10
Gideon v. Wainwright,
372 U.S. 335 (1963) .............................................. 12
Gilbert v. California,
388 U.S. 263 (1967) .............................................. 19
Haier v. United States,
357 F.2d 336 (10th Cir. 1966) .............................. 17
Hamilton v. Alabama,
368 U.S. 52 (1961) .................................... 20, 27–28
iv
Hammonds v. Newsome,
816 F.2d 611 (11th Cir. 1987)
(per curiam) ............................ 11, 13, 15–18, 23, 25
Holloway v. Arkansas,
435 U.S. 475 (1978) .............................................. 13
McClinton v. United States,
817 A.2d 844 (D.C. 2003) ..................................... 17
McCoy v. Louisiana,
138 S. Ct. 1500 (2018) .................................... 12, 24
McKaskle v. Wiggins,
465 U.S. 168 (1984) .............................................. 12
Milton v. Wainwright,
407 U.S. 371 (1972) .............................................. 19
Missouri v. Frye,
566 U.S. 134 (2012) .................................... 4, 21–23
Moore v. Illinois,
434 U.S. 220 (1977) .............................................. 19
Neder v. United States,
527 U.S. 1 (1999)) ................................................. 26
Penson v. Ohio,
488 U.S. 75 (1988) .......................................... 12, 20
People v. Murphy,
750 N.W.2d 582 (Mich. 2008) .............................. 16
Powell v. Alabama,
287 U.S. 45 (1932) ................................................ 20
Sam’s Club v. NLRB,
173 F.3d 233 (4th Cir. 1999) ................................ 15
Satterwhite v. Texas,
486 U.S. 249 (1988) ...................... 11, 19, 22–23, 25
v
Sweeney v. United States,
766 F.3d 857 (8th Cir. 2014) ................................ 16
Thomas v. Kemp,
796 F.2d 1322 (11th Cir. 1986) ............................ 11
U.S. ex rel. Cooper v. Reincke,
333 F.2d 608 (2d Cir. 1964) ................................. 17
U.S. ex rel. Thomas v. O’Leary,
856 F.2d 1011 (7th Cir. 1988) .............................. 26
Underwood v. Bomar,
335 F.2d 783 (6th Cir. 1964) ................................ 17
United States v. Cronic,
466 U.S. 648 (1984) .............................................. 12
United States v. Garey,
540 F.3d 1253 (11th Cir. 2008)
(en banc) ........................................................... 3, 24
United States v. Gonzalez-Lopez,
548 U.S. 140 (2006) .................................. 12, 20–23
United States v. Gutierrez-Arias,
299 F. App’x 593 (7th Cir. 2008) ......................... 17
United States v. Margarita Garcia,
906 F.3d 1255 (11th Cir. 2018) ............................ 11
United States v. Nunez,
1 F.4th 976 (11th Cir. 2021) ................................ 13
United States v. Owen,
407 F.3d 222 (2005)........................................ 14–15
United States v. Roy,
855 F.3d 1133 (11th Cir. 2017)
(en banc) ............................................. 11–12, 16–18
vi
United States v. Stanley,
739 F.3d 633 (11th Cir. 2014) ................................ 7
United States v. Truley,
No. 21-14352, 2022 WL 16848489
(11th Cir. Nov. 10, 2022) (per curiam) ................ 12
United States v. Wade,
388 U.S. 218 (1967) .............................................. 19
Vines v. United States,
28 F.3d 1123 (11th Cir. 1994) ........................ 16, 25
Weaver v. Massachusetts,
137 S. Ct. 1899 (2017) .................................... 21–22
White v. Maryland,
373 U.S. 59 (1963) ...................... 7, 9, 12, 20, 27–29
White v. State,
177 A.2d 877 (Md. 1962) ...................................... 29
STATUTES
26 U.S.C. § 7203 .......................................................... 3
OTHER AUTHORITIES
B. Garner et al., The Law of Judicial
Precedent (2016) ............................................. 10, 13
14 Mertens Law of Fed. Income Tax’n
§ 50:135 (Sept. 2022 update) ............................... 10
S. Ct. R. 10 ................................................................. 26
S. Shapiro et al., Supreme Court
Practice (11th ed. 2019) ....................................... 26
1
INTRODUCTION
Respondent, Mr. Hakim, was unconstitutionally
deprived of the assistance of counsel for four months,
the entire pretrial period until a week before trial—a
Sixth Amendment violation the Government
concedes.
Pet. 14 (“accept[ing]” a constitutional
violation “[f]or purposes of further review”). In light
of the total “deprivation of [Mr.] Hakim’s right to
counsel at all pretrial stages of the proceedings
against him,” the Eleventh Circuit concluded that the
constitutional violation was “a structural error.”
App.28a–29a. That holding is correct, faithfully
following decades of this Court’s precedent. The
holding is also consistent with Eleventh Circuit
precedent and the decisions of other circuit courts.
And the decision is fact-bound, applicable in only a
narrow and rare circumstance.
The Government argues otherwise only by
misstating the Eleventh Circuit’s holding and
advancing a contorted reading that is both facially
wrong and artificially overbroad. The appellate court
three times identified the narrow issue before it as
whether the total deprivation of counsel at “all stages
of the pretrial process” is structural error. App.27a
(emphasis added); see App.1a, 9a, 28a–29a. But, to
create an error and a circuit split, the Government
rewrites the Eleventh Circuit’s narrow holding into a
“broad” and “inflexible” rule—one in which “any
deprivation of the right to counsel” at any “critical
pretrial proceedings automatically requires reversal.”
Pet. 8, 10 (emphasis added); see id. at 17. That is not
what the Eleventh Circuit held and is most certainly
not the rule in the Eleventh Circuit. As a result, the
2
Government’s Petition chases ghosts: the question it
purports to present is not at issue in this case.
Correctly reading the decision below eliminates
all grounds for certiorari. The Government’s claimed
circuit split disappears.
The Eleventh Circuit’s
decision aligns perfectly with this Court’s structuralerror precedent. And the issue becomes so fact-bound
and one-off that whatever importance it might have
vanishes. But even on the Government’s incorrect
reading of the Eleventh Circuit’s decision, this case is
not worthy of review and is riddled with vehicle
problems.
The Government concedes away
fundamental issues, and the question presented is not
outcome determinative.
Accordingly, this Court should deny certiorari.
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment to the Constitution of the
United States provides in relevant part:
In all criminal prosecutions, the accused shall
enjoy the right to … have the Assistance of
Counsel for his defence.
STATEMENT
This case is about the unconstitutional
deprivation of counsel in all the critical pretrial stages
of the criminal proceedings against Mr. Hakim.
1. The Sixth Amendment violation originated at
Mr. Hakim’s initial appearance and arraignment.
Dkt. 13 at 3–7. There, after Mr. Hakim expressed a
desire to represent himself, the magistrate judge
attempted to engage him in the colloquy required by
Faretta v. California, 422 U.S. 806 (1975). When that
failed, the judge administered a “Faretta-like
3
monologue” approved by the Eleventh Circuit for
uncooperative defendants. See United States v. Garey,
540 F.3d 1253, 1268 (11th Cir. 2008) (en banc). To
ensure that any waiver of the constitutional right to
counsel is knowing and voluntary, this Faretta-like
monologue requires the court to inform the defendant
of “the challenges he is likely to confront as a pro se
litigant” and “the penalties he faces if convicted.” Id.
at 1267.
In administering this monologue, however, the
magistrate judge misinformed Mr. Hakim of “the
penalties he face[d] if convicted.” Id. The Government
charged Mr. Hakim with three misdemeanor counts of
failure to file a tax return (26 U.S.C. § 7203), carrying
a maximum sentence of three years. App.18a. But
the magistrate judge twice told Mr. Hakim that he
faced a maximum sentence of only 12 months. App.3a
(“[I]t is a criminal case, a Class A misdemeanor,
meaning that it’s punishable by a potential term of
imprisonment by up to one year.”); id. (“[T]his is again
a Class A misdemeanor, so we’re not talking about a
felony involving imprisonment beyond one year.”); see
Dkt. 13 at 9, 13.
The Government failed to correct these material
misstatements and added a misstatement of its own.
It stated that, “[f]or an individual, the maximum fine
is $25,000,” id. at 9, whereas the actual maximum was
$75,000 ($25,00 per count, 26 U.S.C. § 7203).
After being misinformed about his possible
sentence, Mr. Hakim said he would waive his right to
counsel, and the magistrate judge accepted Mr.
Hakim’s waiver. But the material misstatements
rendered Mr. Hakim’s waiver unknowing and
4
involuntary and thus invalid—a point the
Government now concedes. App.26a; see Pet. 14. The
magistrate judge announced that he would enter a
plea of not guilty on behalf of uncounseled Mr. Hakim.
Dkt. 13 at 24; Dkt. 8.
2. The resulting unconstitutional deprivation of
counsel extended through the entire pretrial process.
First, Mr. Hakim was unconstitutionally deprived
of counsel for motions practice, which included several
motions to dismiss (Dkts. 14, 17, 18) and oppositions
to the Government’s motions in limine (Dkt. 32). Mr.
Hakim “filed and argued [these] motions without a
lawyer’s assistance.” Dkt. 21 at 4 n.2.
Second, the constitutional violation continued to
an early pretrial conference, at which those motions
were argued and the parties made decisions about
trial, including whether to have expert witnesses.
Dkt. 20.
Third, Mr. Hakim remained without counsel when
the Government tried to engage in plea-bargaining
discussions—“a critical phase of litigation for
purposes of the Sixth Amendment.” Missouri v. Frye,
566 U.S. 134, 141 (2012). The Government confirmed
that it made a plea offer to Mr. Hakim, but that he did
not respond. Dkt. 81 at 12–13. When advised by the
district court of the possible benefits of pleading
guilty, however, Mr. Hakim stated that he “would like
to seek counsel and decide … that I should enter a
plea or something,” adding that he wished to seek
advice from a non-lawyer. Id. at 21–22; see id. at 10
(“I would like the opportunity to seek counsel of my
own choosing.”). But the district court denied Mr.
5
Hakim’s request for a continuance to seek that advice.
Dkt. 37.
Fourth, the now-conceded constitutional violation
continued at another pretrial conference, during
which the court made decisions that affected the trial,
such as ruling on the Government’s motions in limine.
Id. At this conference, standby counsel explained that
Mr. Hakim had “not taken any” assistance and had
“basically zero communication” with him. Dkt. 81 at
9–10. The court agreed that Mr. Hakim “does not
understand what the trial will be,” id. at 10, but forged
ahead toward trial.
Fifth, for months of discovery and trial
preparation, Mr. Hakim was unconstitutionally
uncounseled. The Government provided discovery
material, but Mr. Hakim “stated that he ha[d] not
reviewed it.” Dkt. 21 at 29. The court nevertheless
certified the case as ready for trial. Id.; see Dkt. 25.
Mr. Hakim did not file a trial brief or proposed jury
questions, even though the Government did. E.g.,
Dkt. 42. And he admitted that he did not have enough
time “to mount an effective defense.” Dkt. 81 at 21.
Sixth, just days before trial began, the court held
a change-of-plea hearing—when Mr. Hakim
attempted to plead guilty while deprived of the
assistance of counsel. See Dkts. 48, 51. In writing,
Mr. Hakim notified the court that he would like to
plead guilty in order to reduce his sentence under
Sentencing
Guideline
3E1.1
(acceptance
of
responsibility). Dkt. 45 at 3. At the change-of-plea
hearing, Mr. Hakim confirmed that he had not
discussed his change of plea with any counsel, and
that his desire to plead guilty was not based on a plea
6
agreement. Dkt. 82 at 4. But the district court
ultimately declined to accept Mr. Hakim’s guilty plea
based on Mr. Hakim’s apparent belief that he would
not go to jail if he pleaded guilty. Id. at 23–26, 34.
After the court’s ruling, Mr. Hakim again asked for
“the opportunity” to call “two law firms that [he had]
been looking at” to provide “counsel of [his] own
choosing,” but the court refused to postpone trial,
which was set to begin two business days later. Id. at
37.
3. Mr. Hakim’s trial began the next week—with
Mr. Hakim still without counsel. Dkt. 52. Following
voir dire, Mr. Hakim requested that the public
defender, who had been serving as standby counsel, be
appointed as his counsel. App.8a; see Dkt. 52. The
district court granted a one-week continuance so that
standby counsel could prepare for trial. It then
selected a second jury and held a two-day trial.
App.8a–9a. The jury found Mr. Hakim guilty on all
three counts, and the district court imposed a
sentence of 21 months’ imprisonment followed by one
year of supervised release. App.9a; Dkt. 95 at 2–3.
4. On appeal, the Eleventh Circuit (Pryor, C.J.)
vacated Mr. Hakim’s convictions. App.29a.
At the Eleventh Circuit, the parties extensively
briefed and argued the Government’s sole question
presented before that court: “Whether the [trial] court
properly determined that defendant’s waiver of his
right to counsel was voluntary, knowing, and
intelligent.” Appellee’s Br. 1, No. 19-11970 (11th Cir.
Dec. 9, 2020). The Eleventh Circuit held that the trial
court had erred and that Mr. Hakim had not
knowingly and voluntarily waived his right. App.26a.
7
Accordingly, Mr. Hakim was unconstitutionally
deprived of counsel “during the pretrial process.”
App.1a–2a. This holding is not challenged by the
Government here. The lack of a knowing-andvoluntary waiver and the existence of a constitutional
violation must be assumed.
The Eleventh Circuit then held that, in light of all
the motions, discovery, plea-bargain negotiations, and
proceedings that had occurred in the pretrial process,
the deprivation of Mr. Hakim’s right to counsel on the
facts presented required vacatur, without any
requirement that Mr. Hakim show prejudice. The
court explained that this Court’s decision in “White v.
Maryland establishe[d] that a plea hearing is a
critical stage, and that ‘[a court] do[es] not stop to
determine whether prejudice resulted’ because ‘[o]nly
the presence of counsel could have enabled this
accused to know all the defenses available to him and
to plead intelligently.’” App.28a (quoting 373 U.S. 59,
60 (1963)). It noted that, on the facts of this case, Mr.
Hakim was deprived of counsel not just at a plea
hearing but also at “all pretrial stages of the
proceedings
against
him,”
including
“his
arraignment … at which a plea was entered”; “the
period during which the government extended to him
‘a plea offer’”; and other hearings at which he
attempted to plead guilty. App.27a–29a. The court
also cited its own precedent (App.28a), which holds
that an invalid waiver of the right to counsel can be
structural error when the defendant is left without
counsel at trial. See, e.g., United States v. Stanley, 739
F.3d 633, 644 (11th Cir. 2014). In short, the court held
that “the deprivation of [Mr.] Hakim’s right to counsel
at all pretrial stages of the proceedings against him
8
was a structural error” requiring automatic vacatur.
App.29a.
Judge Grant dissented on grounds entirely
unrelated to the issue presented here. App.30a–43a.
She took no position on the structural-error question,
but instead addressed an antecedent question that the
Government has now conceded—whether Mr. Hakim
had preserved his Sixth Amendment claim (and thus
whether de novo or plain-error review was required to
resolve the constitutional claim).
REASONS FOR DENYING THE PETITION
I.
THE DECISION BELOW DOES NOT WARRANT
REVIEW.
The Eleventh Circuit correctly and consistently
with all other circuits held that when a defendant is
deprived of the right to counsel “at all pretrial stages
of the proceedings against him”—including “his
arraignment … at which a plea was entered,” “the
period during which the government extended to him
‘a plea offer,’” and other hearings at which he
attempted to plead guilty—the resulting Sixth
Amendment violation can be structural error.
App.27a–29a (emphasis added). That narrow, factbound holding does not depart from the decisions of
any other circuit court and aligns with decades of this
Court’s precedent, making it unworthy of this Court’s
review.
Apparently unhappy with that reality, the
Government advances an incorrect and unfair reading
of the Eleventh Circuit’s opinion in an attempt to
manufacture error and a split. Ignoring the actual
language of the decision, the Government claims that
the Eleventh Circuit adopted a “broad” and “inflexible”
9
rule—that any “pretrial deprivation of counsel is
structural error,” Pet. 10, 17, 23; see id. at (I)—and
then points to supposed conflict arising from the
Government-invented rule. But no conflict can exist,
because the purported broad and inflexible rule from
which the Government argues is illusory; it is not the
court’s holding. The Government never grapples,
moreover, with the Eleventh Circuit’s actual, narrow
decision.
A. The Government Misreads the Eleventh
Circuit’s Holding and Precedent.
At the outset, the Government’s Petition is not
faithful to the Eleventh Circuit’s decision.
1. Contrary to the Government’s claim (Pet. 8),
the Eleventh Circuit did not hold—and has no general
rule—that “a district court’s acceptance of an invalid
waiver of counsel at a pretrial stage categorically
constitutes structural error.” Writing for the majority,
Chief Judge Pryor repeatedly defined the court’s
holding narrowly: structural error was compelled by
the fact that Mr. Hakim’s invalid waiver of counsel
lasted for “the entire pretrial phase of the proceedings
against him” and encompassed “all pretrial stages of
the proceedings,” including all critical stages such as
the plea-bargaining and plea-hearing stages. App.9a,
27a–29a. The court did not adopt a “broad” and
“inflexible” rule that “any deprivation of the right to
counsel” at any “critical pretrial proceedings
automatically requires reversal.” Pet. 8, 10 (emphasis
added); see id. at 17. Rather, the court held that the
deprivation of counsel in this case lasted for “all
pretrial stages,” including all critical stages.
App.28a–29a (emphasis added) (citing, e.g., White,
10
373 U.S. at 60 (plea hearing)). And that is exactly how
the Eleventh Circuit’s decision is being interpreted by
third parties. See 14 Mertens Law of Fed. Income
Tax’n § 50:135 (Sept. 2022 update) (explaining the
relevant holding from this decision: “Deprivation of
the assistance of counsel at all stages of the pretrial
process as a result [of] the invalid waiver was a
structural error.”).
2. Even if the decision below could be read more
broadly (and it cannot), any overly broad language
would be non-binding dicta that no future court would
have to follow. A holding is limited to “a point
necessarily decided,” which depends on the facts.
B. Garner et al., The Law of Judicial Precedent § 4, at
44 (2016). The facts here were a deprivation of
counsel through the entire pretrial process and all of
its critical stages—not at just any “pretrial stage,”
Pet. 8. Thus, even if the Eleventh Circuit’s decision
could be (wrongly) read to apply structural-error
analysis to any deprivation of counsel at any pretrial
stage, lower courts and future Eleventh Circuit panels
would not be bound by this purported rule because it
would be dicta, not compelled by the facts. And a
“decision can hold nothing beyond the facts of that
case.” Fresh Results, LLC v. ASF Holland, B.V., 921
F.3d 1043, 1049 (11th Cir. 2019) (Pryor, C.J.).
For this reason, even if the Government’s reading
were plausible (and it is not), the Court’s review would
not be warranted. It is equally plausible to read the
decision as narrow and fact-bound. Thus, other courts
and the Eleventh Circuit, itself, might interpret the
decision below narrowly and fact-bound going forward.
Only time, and further percolation, will tell. There is
no need for this Court’s involvement now.
11
3. In all events, the Eleventh Circuit’s larger body
of precedent forecloses the Government’s broad
interpretation and further disproves the need for this
Court’s involvement.
The Eleventh Circuit’s approach to constitutional
error is clear. To it, this Court has effectively “dr[iven]
home th[e] point” that “harmless error analysis is the
rule, not the exception,” and that “the general rule [is]
that a constitutional error does not automatically
require reversal of a conviction.” E.g., United States
v. Roy, 855 F.3d 1133, 1143 (11th Cir. 2017) (en banc).
The Eleventh Circuit thus applies harmless error
“broadly” and “to all types of constitutional errors,”
including Sixth Amendment violations. Id. It “rarely
treat[s] an error as structural.” United States v.
Margarita Garcia, 906 F.3d 1255, 1264 (11th Cir.
2018).
Specifically, the Eleventh Circuit applies the
harmless-error rule to “pretrial deprivation[s] of
counsel,” unless a “fine-grained analysis” of the facts
of a particular case compels structural error. Contra
Pet. 17. The court has applied harmless error at many
stages in the pretrial process, such as denial of counsel
“at a preliminary hearing.” Hammonds v. Newsome,
816 F.2d 611, 613 (11th Cir. 1987) (per curiam); see,
e.g., Thomas v. Kemp, 796 F.2d 1322, 1326–27 (11th
Cir. 1986) (relying heavily on Coleman v. Alabama,
399 U.S. 1 (1970), cited by the Petition at 12, 13, 14,
16, and 17). Indeed, the Eleventh Circuit uses
harmless-error analysis even for pretrial Sixth
Amendment violations that occur at a “critical stage.”
E.g., Delguidice v. Singletary, 84 F.3d 1359, 1361–64
(11th Cir. 1996) (citing Satterwhite v. Texas, 486 U.S.
249 (1988), cited by the Petition at 10, 12, 13, 14, 16,
12
17, and 20); accord United States v. Truley, No. 2114352, 2022 WL 16848489, at *3–4 & n.4 (11th Cir.
Nov. 10, 2022) (per curiam) (holding, after the decision
below, that a constitutional violation at a pretrial
hearing to withdraw a guilty plea was subject to
harmless-error review).
And it eschews any
categorical rule that a “fail[ure] to conduct an inquiry
under Faretta” is always structural error, even at trial
itself. Blanco v. Singletary, 943 F.2d 1477, 1497 (11th
Cir. 1991). Contra Pet. 17.
The decision below did not change any of these
background rules because it implicated none. Instead,
the court engaged in the “fine-grained analysis”
(Pet. 17) the Government advocates.
And the
Eleventh Circuit respected this Court’s admonition
that “there is an exception or two” to the general,
harmless-error rule, Roy, 855 F.3d at 1144 (en banc)—
for example, where the defendant is deprived of
counsel at a pretrial plea hearing, White, 373 U.S. at
60; or is denied the right to self-representation under
Faretta, McKaskle v. Wiggins, 465 U.S. 168, 177 n.8
(1984); or is entirely deprived of the right to counsel,
Gideon v. Wainwright, 372 U.S. 335, 345 (1963); see
also, e.g., Penson v. Ohio, 488 U.S. 75, 84 (1988)
(denial of counsel on appeal). Indeed, this Court has
recognized all sorts of Sixth Amendment violations as
structural errors. See, e.g., McCoy v. Louisiana, 138
S. Ct. 1500, 1511 (2018) (“counsel’s admission of a
client’s guilt over the client’s express objection”);
United States v. Gonzalez-Lopez, 548 U.S. 140, 148–
51 (2006) (denial of counsel of choice); see also United
States v. Cronic, 466 U.S. 648, 659 n.25 (1984) (“The
Court has uniformly found constitutional error
without any showing of prejudice when counsel was
13
either totally absent, or prevented from assisting the
accused during a critical stage of the proceeding.”
(collecting cases)); Holloway v. Arkansas, 435 U.S. 475,
489 (1978) (similar).
Thus, contrary to the Government’s insistence,
the Eleventh Circuit did not, with this decision, create
a “categorical” rule that “pretrial deprivation of
counsel is structural error.” Pet. 23. It recognized a
narrow, fact-bound exception to its general
application of harmless-error analysis where, as here,
there is a complete pretrial deprivation through all
critical pretrial stages.
The Eleventh Circuit could not have created a
categorical rule because, as the Government
acknowledged in its en banc petition, doing so would
have required it to overrule decades of Eleventh
Circuit precedent holding that a pretrial deprivation
of the right to counsel is subject to harmless-error
review. See U.S. En Banc Pet. 14, No. 19-11970 (11th
Cir. June 6, 2022) (citing, e.g., Hammonds, 816 F.2d
at 613); see also supra at 11–12. Because the Eleventh
Circuit is not prone to silently overrule decades of its
precedent, the larger body of Eleventh Circuit
precedent is further proof that the Government is
overreading the decision below. At the very least, the
Eleventh Circuit’s strong precedent on harmless error,
including in the pretrial context, militates the need for
this Court’s review, because the earlier decisions will
control any later conflicting precedent. See United
States v. Nunez, 1 F.4th 976, 991 (11th Cir. 2021)
(Pryor, C.J.); see also The Law of Judicial Precedent
§ 36, at 303–05.
14
The general harmless-error rule—including for
pretrial Sixth Amendment violations—thus remains
alive and well in the Eleventh Circuit. There is no
need for this Court “to ensure that structural error
continues to be a very limited and highly exceptional
category.” Pet. 21 (internal quotation marks omitted).
It already is.
*
*
*
The upshot is that this case does not implicate the
question presented in the Government’s Petition. The
Eleventh Circuit did not hold that an erroneous
pretrial deprivation of counsel “categorically
constitutes structural error.” Pet. (I). Its holding and
its precedents generally are far different and
narrower. To the extent this Court is inclined to take
up the Government’s question presented, it should
await a case that actually presents it.
B. Properly Read, the Decision Below Does
Not Split From Any Other Circuit.
Accurately reading the decision below eliminates
the Government’s asserted split.
None of the
Government’s cited cases held that the deprivation of
the right to counsel “at all pretrial stages of the
proceedings” was subject to harmless-error review.
App.29a.
1. The Government first insists that the “decision
below cannot be reconciled with the decision of the
Fourth Circuit in United States v. Owen, 407 F.3d 222
(2005), cert. denied, 546 U.S. 1098 (2006).” Pet. 18.
But the two decisions are easily reconciled. In Owen,
the defendant was deprived of counsel for a discrete
stage of the pretrial process. He had counsel for the
bulk of the pretrial proceedings; counsel filed pretrial
15
motions on his behalf; and counsel had months to
negotiate a plea bargain and prepare for trial. 407
F.3d at 224, 229. Here, Mr. Hakim was deprived of
counsel “at all pretrial stages of the proceedings
against him.” App.29a. The first violation, in Owen,
can be subject to the harmless-error rule without
sweeping in the second. Indeed, those two rules
coexist in the Eleventh Circuit itself, which has
applied “harmless error analysis” to discrete denials
of counsel, even at “critical stages,” as in Owen (see,
e.g., Delguidice, 84 F.3d at 1361–64; Hammonds, 816
F.2d at 613), and has applied the structural-error
exception to the denial of counsel at all pretrial stages
as here (App.29a).
Owen’s harmless-error analysis is also dicta: It
arose only after the court held that the defendant had
“effectively waived any right to counsel” and thus
“cannot now complain of a constitutional violation.”
407 F.3d at 226. Under Fourth Circuit precedent,
therefore, a future Fourth Circuit panel would be free
to disagree with Owen’s harmless-error analysis, even
if that reasoning is couched as an “alternative holding.”
Sam’s Club v. NLRB, 173 F.3d 233, 246 n.13 (4th Cir.
1999).
Given
these
differences—different-in-kind
pretrial deprivations (one discrete and the other
complete), and different waivers (one valid and the
other not)—it is just not true that “had respondent’s
claim of error arisen in the Fourth Circuit, it would
have been amenable to harmless-error review.”
Pet. 19.
2. None of the other cases the Government cites
toward the end of its Petition, which apply harmless
16
error in discrete “critical” pretrial stages, creates a
split. See Pet. 19–20. To the contrary, “[t]he Supreme
Court, [the Eleventh Circuit], and other circuits have
used harmless error analysis for absence of counsel
during pretrial critical stages.” Vines v. United States,
28 F.3d 1123, 1142 (11th Cir. 1994) (Birch, J.,
dissenting on separate grounds); see also People v.
Murphy, 750 N.W.2d 582, 586 (Mich. 2008) (Markman,
J., concurring) (collecting cases that “every federal
circuit court of appeals” holds that “an absence of
counsel at a critical stage may, under some
circumstances, be reviewed for harmless error”). And
indeed, the en banc Eleventh Circuit has expressly
adopted the Governments’ cases’ reasoning.
As the Government’s string-cite treatment of
these cases should suggest, none of them is on point.
They stand only for what the Government admits is a
“broad[er]” proposition—namely, that “an erroneous
pretrial denial of the right to counsel” is not always
structural error.
Pet. 19.
But again, that
unremarkable rule obtains everywhere, including in
the Eleventh Circuit. See, e.g., Roy, 855 F.3d at 1188
(en banc) (“counsel’s brief absence” even from trial
does not constitute structural error); Hammonds, 816
F.2d at 613 (pretrial deprivation of counsel at a
“critical stage in the proceedings” does not constitute
structural error). And because of the different facts of
this case, nothing in the decision below changed, or
even could change, this uniform and general
harmless-error rule. Supra at 13.
Perhaps the best evidence of the lack of a split is
that the en banc Eleventh Circuit expressly adopted
one of the Government’s supposedly contrary cases—
the Eighth Circuit’s in Sweeney v. United States, 766
17
F.3d 857 (2014)—calling it “the best reasoned out-ofcircuit decision” on the Government’s cited harmlesserror point. Roy, 855 F.3d at 1155 (en banc).
Examining the rest of the Government’s stringcited cases more closely only bolsters this conclusion.
In many, the court held there was a valid waiver or
otherwise not a constitutional violation. * And even
when there was a Sixth Amendment violation, in no
case did the deprivation of counsel last for “all pretrial
stages of the proceedings.” App.29a; see, e.g., United
States v. Gutierrez-Arias, 299 F. App’x 593, 595 (7th
Cir. 2008) (counsel absent from only two pretrial
hearings focused on how defendant would obtain
counsel; everything else happened with counsel);
Ditch v. Grace, 479 F.3d 249, 255–56 (3d Cir. 2007)
(following this Court’s well-established precedent—
and citing precedent from the Eleventh Circuit—in
holding “that the ultimate admission of evidence of an
identification made at a pretrial proceeding without
counsel is subject to a harmless error standard”);
McClinton v. United States, 817 A.2d 844, 859 (D.C.
2003) (defendant “was represented by counsel during
the pretrial proceedings” and had “functional[]
counsel” at all times).
Far from conflicting with the decision in this case,
the Government’s cases thus actually align with it.
Uniformly across the country, courts hold that a
partial pretrial deprivation of the right to counsel may
not be structural error, see, e.g., Hammonds, 816 F.2d
* See, e.g., Eyman v. Alford, 448 F.2d 306, 312 (9th Cir. 1969);
Haier v. United States, 357 F.2d 336, 337 (10th Cir. 1966); U.S.
ex rel. Cooper v. Reincke, 333 F.2d 608 (2d Cir. 1964); Underwood
v. Bomar, 335 F.2d 783, 787 (6th Cir. 1964).
18
at 613, but the complete deprivation at all critical
pretrial stages may be, App.29a; accord Roy, 855 F.3d
at 1145 (en banc) (stressing that the structural-error
rule applies rarely, and only upon complete
deprivation of counsel). The Government’s attempt to
manufacture a split thus fails.
C. Properly Read, the Decision Below
Aligns with this Court’s Precedent.
This Court has likewise never held nor even
suggested that the complete deprivation of counsel at
all critical pretrial stages, including plea hearings and
plea bargaining, must be harmless error. To the
contrary, this Court’s precedent confirms the
correctness of the decision below.
1. In the Government’s best harmless-error
case—Coleman v. Alabama, 399 U.S. 1, 8–10 (1970)—
the defendants were not deprived of counsel “at all
pretrial stages of the proceedings” as here, App.29a.
Instead, they were deprived of counsel only at a preindictment “preliminary hearing,” Coleman, 399 U.S.
at 3, which was “not a required step” in the
prosecution; at which no pleas were taken; and during
which no substantive rights were at issue. Id. at 8–9.
And on those facts—a discrete rather than complete
denial of counsel before trial, for one rather than all
pretrial stages—the Eleventh Circuit also applies
“harmless error analysis.” Hammonds, 816 F.2d at
613. But nothing about those facts extends to the
facts here—where the deprivation lasts not just for a
single preliminary hearing, but for “all pretrial stages
of the proceedings.” App.29a; see Pet. 10 (arguing for
a “case-by-case” analysis).
19
The Government also relies on a smattering of
other cases in which “the absence of counsel” at a
discrete part of the pretrial process—such as a
“pretrial psychiatric examination”—“was not a
structural error” because the only real risk was that
trial evidence would be “obtained” when the defendant
was “outside the presence of counsel.” Pet. 12–13
(citing Satterwhite, 486 U.S. at 257–58); see, e.g.,
Moore v. Illinois, 434 U.S. 220, 232 (1977); Milton v.
Wainwright, 407 U.S. 371, 372–73 (1972); United
States v. Wade, 388 U.S. 218, 219–20, 235, 242 (1967);
Gilbert v. California, 388 U.S. 263, 273–74 (1967).
Again, though, in all of these “trial error” cases, unlike
here, the defendant had counsel for the remainder of
the pretrial process, with the problem measurable by
evidence at trial. And again, the Eleventh Circuit
carefully follows this rule, too, which is not at issue
here. See, e.g., Delguidice, 84 F.3d at 1361–64
(applying harmless-error analysis to admission of
psychologist’s testimony that was obtained when the
defendant was deprived of counsel during a “critical
stage” before trial).
This Court has never faced the situation here—
where a defendant was deprived of the right to counsel
“at all pretrial stages of the proceedings.” App.28a–
29a. Once the court’s holding below is properly
characterized, therefore, the claimed conflict with this
Court’s authority disappears. And to say the least, the
decision below does not “contravene[] … this Court’s
precedents.” Pet. 17.
2. This Court’s precedents in fact show that the
decision below, properly read, is correct. On the facts
of this case, when the defendant was deprived of the
right to counsel “at all pretrial stages of the
20
proceedings
against
him”—including
“his
arraignment … at which a plea was entered”; “the
period during which the government extended to him
‘a plea offer’”; and other hearings at which he
attempted to plead guilty—the resulting Sixth
Amendment violation is structural error. App.27a–
29a; see, e.g., White, 373 U.S. at 60 (deprivation of the
right to counsel at pretrial hearing in which defendant
“entered a plea” was structural); accord Hamilton v.
Alabama, 368 U.S. 52, 54–55 (1961) (similar); Penson,
488 U.S. at 88 (denial of counsel on appeal is
structural error); see also infra at 28–29.
This case is an example of the “class of
constitutional error[s]” that “defy analysis by
harmless-error standards because they affect the
framework within which the trial proceeds,” or indeed
“whether it proceeds at all.” Gonzalez-Lopez, 548 U.S.
at 148–50 (internal quotation marks and alterations
omitted) (collecting cases and listing the “denial of
counsel” as such an error). When a defendant lacks
counsel’s “guiding hand” at all pretrial stages, Powell
v. Alabama, 287 U.S. 45, 69 (1932), there is no telling
the prejudice that could result. See White, 373 U.S. at
60. “It is impossible to know what different choices
the [appointed] counsel would have made”—different
strategies, investigations, plea bargains, and more—
“and then to quantify the impact of those different
choices on the outcome of the proceedings.” GonzalezLopez, 548 U.S. at 150. The “myriad aspects of
representation,” from the earliest pretrial stages on,
mean that “the erroneous denial of counsel” for all
pretrial proceedings “bears directly on the framework
within which the trial proceeds—or indeed on
21
whether it proceeds at all.” Id. (citation and internal
quotation marks omitted).
This conclusion is particularly true for plea
bargains. For better or worse, “plea bargains have
become so central to the administration of the
criminal justice system that defense counsel have
responsibilities in the plea bargain process,
responsibilities that must be met to render the
adequate assistance of counsel that the Sixth
Amendment requires in the criminal process at
critical stages.” Frye, 566 U.S. at 143. When a
defendant is entirely deprived of the right to counsel
for all pretrial proceedings, as here, that “will affect
whether and on what terms the defendant cooperates
with the prosecution, plea bargains, or decides instead
to go to trial.” Gonzalez-Lopez, 548 U.S. at 150.
“Many counseled decisions, including those involving
plea bargains and cooperation with the government,
do not even concern the conduct of the trial at all.
Harmless-error analysis in such a context would be a
speculative inquiry into what might have occurred in
an alternate universe.” Id. That rule thus does not
apply.
The unconstitutional deprivation of counsel at all
pretrial stages also fits not just one, but all “three
broad rationales” for structural error. Weaver v.
Massachusetts, 137 S. Ct. 1899, 1908 (2017).
One, erroneously depriving a defendant of counsel
for all pretrial stages “always results in fundamental
unfairness.” Id. If the Government could deny
counsel through all those stages, as here, and simply
spring counsel on a defendant as voir dire begins, the
“well settled” rule that the Sixth Amendment applies
22
before trial would have little meaning, and the
resulting trial could not be fair. Frye, 566 U.S. at 140;
see Argersinger v. Hamlin, 407 U.S. 25, 31 (1972).
Two, while this unfairness should be easy to see,
the practical “effects of the error are simply too hard
to measure.” Weaver, 137 S. Ct. at 1908. The inquiry
would necessarily be speculative, involving
impossible-to-answer questions such as whether
counsel would have negotiated a plea, how effective
counsel would have been in doing so, whether a
counseled defendant would have taken it, and other
questions unrelated to plea bargaining, such as how a
counseled defendant might have prepared differently
for trial. See Gonzalez-Lopez, 548 U.S. at 150.
Three, the right at issue is not solely “designed to
protect the defendant from erroneous conviction but
instead [also] protects some other interest.” Weaver,
137 S. Ct. at 1908. The specific right at issue here—
relating to the “right to conduct [one’s] own defense”
but being misinformed about the risks, id.—ensures
that the defendant may properly exercise his selfrepresentation right. See App.28a. And it protects the
same kind of interest as the Sixth Amendment right
to counsel-of-choice—“not that a trial be fair, but that
a particular guarantee of fairness be provided,” here,
that the accused have a reasonable opportunity to
consult with counsel including to determine whether
to go to trial at all. Gonzalez-Lopez, 548 U.S. at 146;
see id. at 150.
The Government asserts otherwise (Pet. 16) only
because it defines the “right” at issue too broadly—as
the same as “Coleman, Satterwhite, and the other[]
[cases]” in which “the evil caused by a Sixth
23
Amendment violation is limited to the erroneous
admission of particular evidence at trial.”
Satterwhite, 486 U.S. at 257 (emphasis added); accord
Hammonds, 816 F.2d at 613. The evil here had
nothing to do with any “trial error.” It was structural.
The Government also insists that a defendant
unfairly deprived of counsel all the way to trial can
still
“receive[]
an
undisputedly
fair
and
constitutionally sound trial while represented by
counsel.” Pet. 16. But “it is insufficient simply to
point to the guarantee of a fair trial as a backstop that
inoculates any errors in the pretrial process.” Frye,
566 U.S. at 143–44.
The Sixth Amendment
guarantees not a fair trial generally, but that “a
particular guarantee of fairness be provided”—
starting in the pretrial process. Gonzalez-Lopez, 548
U.S. at 146.
D. Properly Read, the Decision Below Is
Not Sufficiently Important To Justify
Review.
Finally, once the Eleventh Circuit’s holding is
properly characterized, the issue presented is very
narrow and not important enough to warrant review.
The decision below will not spawn the negative
consequences the Government asserts.
The
Government claims that the Eleventh Circuit’s
decision “can lead to unjust windfalls and senseless
results.” Pet. 21. But the Government’s argument
begs the question: if structural error applies, reversal
is not unjust; it is compelled by this Court’s precedents
and the Constitution.
In any event, the Eleventh Circuit’s holding in
depends on a constitutional violation that will almost
24
never, if ever, recur—it is like “a rare plant that
blooms every decade or so.” McCoy, 138 S. Ct. at 1514
(Alito, J., dissenting). It took a “freakish confluence of
factors” for the violation to arise in this case. Id. at
1512. Mr. Hakim had to request to represent himself
in his unique way.
The judge then had to
affirmatively (and repeatedly) misstate the maximum
punishment so as to give rise to what the Government
concedes—for purposes of this case at this Court
only—was an involuntary and unknowing waiver of
counsel. Pet. 21. The Government also had to fail to
correct the trial court’s error. And then the resulting
constitutional violation had to last for all pretrial
stages, including plea hearings and plea bargaining,
but not all of trial (where all would agree the error
would be structural).
Changing any one of these steps could have
changed the outcome. And they are all easy to change.
Take the root of this constitutional violation—the
judge’s inaccurate statement about the punishment
Mr. Hakim faced. Fixing that is as easy as reading
from a sheet of paper. The Eleventh Circuit has
established, for use with uncooperative defendants, a
“Faretta-like monologue” under which a district court
need only inform the defendant of “the challenges he
is likely to confront as a pro se litigant” and “the
penalties he faces if convicted.” Garey, 540 F.3d at
1267–68. The Government has no response; a script
can eliminate the constitutional violation here—and
with it any “unjust windfalls and senseless results.”
Pet. 21.
Nor, for similar reasons, does this case raise any
concerns that “obstreperous or contumacious
defendants” might “muddy the record such that a
25
decision either way on a request to waive counsel
could plausibly be attacked on appeal without having
to consider prejudice.” Id. at 22–23. That concern
speaks directly to a merits question not presented in
this case: whether a valid waiver was made at all. On
the issue of whether a waiver was knowing, the
Eleventh Circuit has again developed the
unchallenged, easily followed protocol, which the
court here failed to follow and which solves for the
Government’s fear. The issue of structural error
applies to uncooperative and cooperative defendants
alike, and this Court should not grant review to
address indirectly an issue concerning how to identify
constitutional violations when the Government has
declined to press any such issue.
II. EVEN
THE
GOVERNMENT’S
MISFRAMED
QUESTION PRESENTED DOES NOT WARRANT
REVIEW.
While the question presented in the Government’s
Petition is not implicated here, even if it were, it
would not warrant this Court’s review for five reasons.
First, at most, the Government has identified an
intra-circuit conflict that the Eleventh Circuit should
resolve. The Eleventh Circuit has definitively, for
decades, held that denials of the right to counsel for
discrete pretrial stages, even if “critical,” are subject
to harmless-error review. Supra at 11–14; see, e.g.,
Hammonds, 816 F.2d at 613 (following Coleman);
Delguidice, 84 F.3d at 1361–64 (following Satterwhite);
see also Vines, 28 F.3d at 1142 (Birch, J., dissenting)
(collecting Eleventh Circuit cases holding that
harmless error can apply to the “absence of counsel
during pretrial critical stages”). If the Government
26
were correct that the panel in this case deviated from
that rule, the panel would have misapplied the
Eleventh Circuit’s longstanding and binding
precedent—and the Government would be asking this
Court to correct a one-off, intra-circuit error. Contra
S. Ct. R. 10; S. Shapiro et al., Supreme Court Practice
§§ 4.17, 5.12(C)(3) (11th ed. 2019).
Second, this case is a bad vehicle because the
Government’s concessions would interfere with this
Court’s review of the Government’s question
presented. The Government concedes that plain-error
review does not apply and that there was a Sixth
Amendment violation, which were the two primary
contentions below. Thus, the Court has no ability to
frame (or question) the constitutional violation or to
consider the issue raised in Judge Grant’s dissent
(App.30a–43a) regarding plain-error review. The
Government’s concessions would fundamentally limit
the Court’s analysis and preclude the Court from
considering issues that could obviate the question
presented.
This vehicle issue is problematic because “the
distinctive character of th[e] constitutional violation”
would be difficult to define in light of the
Government’s concession. See Neder v. United States,
527 U.S. 1, 32 (1999) (Scalia, J., concurring in part
and dissenting in part). And “the ability to identify
readily the scope of a constitutional error … is
essential before a court can properly invoke a
harmless error analysis.” U.S. ex rel. Thomas v.
O’Leary, 856 F.2d 1011, 1017 (7th Cir. 1988). For
example, the Court would have to determine whether
structural or harmless error applied without
considering whether the district court’s failure to
27
inform Mr. Hakim of the maximum sentence
established the Sixth Amendment violation, or
whether the violation turned on an affirmative
misstatement of the penalty. App.18a. It would have
no opportunity to define which pretrial stages were
“critical” or to determine whether “Faretta Error”
requires special consideration.
See Pet. 22
(acknowledging constitutional violations related to
Faretta have been held structural in some contexts);
see also App.28a (citing cases involving invalid
waivers in the Faretta context). These aspects of the
constitutional violation could be relevant to the
Court’s analysis, but the Government’s concessions
put them out of the Court’s reach.
Third, whatever the question presented, it is not
a frequently recurring one. The Government’s key
cases are over 50 years old. See Pet. 10–12 (surveying,
e.g., Hamilton (1961), White (1963), and Coleman
(1970)). But the Government claims that a “split” first
arose with this case, in 2022. Courts have for decades
performed
the
“fine-grained
analysis”
the
Government desires, Pet. 17, and there has not been
a conflict of authority.
Fourth, the Court’s answer to the Government’s
question presented would not be outcome
determinative.
This Court could hold that “a
defendant’s erroneous pretrial self-representation
[does not] categorically constitute[] structural error,”
Pet. (I), and Mr. Hakim could still prevail. Erroneous
pretrial denial of counsel might not categorically
constitute structural error, as the Government argues.
But it could constitute structural error on these facts—
where Mr. Hakim was deprived of the “right to
counsel at all pretrial stages of the proceedings
28
against him,” including during plea bargaining and
hearings at which pleas were taken. Pet. 28a–29a
(emphasis added); see supra at 19–23.
In addition, even if harmless-error analysis
applied, Mr. Hakim could still demonstrate prejudice;
he raised prejudice below, but the Eleventh Circuit
did not resolve the issue. See Appellant’s Br. 48–52,
No. 19-11970 (11th Cir. Oct. 9, 2020). For example,
counsel could have negotiated and obtained a
favorable plea agreement that would have been
accepted by Mr. Hakim; a plea offer was even made,
but uncounseled Mr. Hakim did not respond. See Dkt.
47 at 12:25–13:2; Dkt. 82 at 4:1–5, 4:24–25. In
addition, without counsel, Mr. Hakim said he did not
contest the facts against him, Dkt. 82 at 35:2–8—a
concession that diminished the likelihood of further
favorable plea offers and tied appointed counsel’s
hands in seeking a plea agreement. And, by the time
counsel was appointed, the Government had already
expended considerable resources, making favorable
plea negotiations unlikely.
Finally, to the extent the Eleventh Circuit held
that denial of counsel at critical pretrial stages in
which a plea is taken is structural error, its holding
would be correct. When a defendant is deprived of the
right to counsel during a critical pretrial stage in
which he “entered a plea,” courts “do not stop to
determine whether prejudice resulted,” even when the
defendant later has counsel. White, 373 U.S. at 60.
That is what this Court held in Hamilton, 368 U.S. at
54–55, and made clear again in White after some
lower courts had tried to confine Hamilton to cases in
which uncounseled pleas result in “[a]vailable
defenses”
being
“irretrievably
lost”—the
29
Government’s argument here (Pet. 11). See White,
373 U.S. at 60 (applying structural error even though
defenses were not “irretrievably lost,” White v. State,
177 A.2d 877, 881 (Md. 1962)). This Court has never
overruled White. Nor does the Government ask the
Court to do so in this case. As a result, the Eleventh
Circuit’s decision was correct even if, as the
Government urges, this Court focuses only on the
individual pretrial stages in which Mr. Hakim was
deprived counsel. App.28a–29a.
CONCLUSION
The Court should deny the petition for writ of
certiorari.
JANUARY 17, 2023
Respectfully submitted,
BRIAN C. LEA
JONES DAY
1221 Peachtree Street, NE
Suite 400
Atlanta, GA 30361
TRACI L. LOVITT
Counsel of Record
JONES DAY
250 Vesey Street
New York, NY 10281
(212) 326-3939
tlovitt@jonesday.com
JAMES R. SAYWELL
JONES DAY
901 Lakeside Avenue
Cleveland, OH 44114
Counsel for Respondent
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