Reply Brief — United States, Petitioner v. Saleem Hakim

No. 22-464

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

SALEEM HAKIM

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

A. The court of appeals held that error at any pretrial

stage is structural error.................................................... 1

B. The lower court’s rule of automatic reversal is an

erroneous outlier ............................................................... 5

1. An all-pretrial-stages rule is incorrect ..................... 6

2. The court of appeals’ decision is at odds with

decisions of other appellate courts ............................ 9

C. This Court’s review is warranted .................................. 10

TABLE OF AUTHORITIES

Cases:

Arizona v. Fulminante, 499 U.S. 279 (1991) ........................ 6

Blanco v. Singletary, 943 F.2d 1477

(11th Cir. 1991), cert. denied, 504 U.S. 943,

and 504 U.S. 946 (1992) ........................................................ 4

Coleman v. Alabama, 399 U.S. 1 (1970) ................................ 8

Delguidice v. Singletary, 84 F.3d 1359

(11th Cir. 1996) ...................................................................... 4

Hammonds v. Newsome, 816 F.2d 611

(11th Cir. 1987) ...................................................................... 5

McClinton v. United States, 817 A.2d 844

(D.C. 2003), cert. denied, 540 U.S. 1185 (2004) .................. 9

Missouri v. Frye, 566 U.S. 134 (2012) ................................... 7

Satterwhite v. Texas, 486 U.S. 249 (1988) ............................. 6

Strickland v. Washington, 466 U.S. 668 (1984) .................... 8

Thomas v. Kemp, 796 F.2d 1322 (11th Cir.),

cert. denied, 479 U.S. 996 (1986) ......................................... 5

United States v. Margarita Garcia, 906 F.3d 1255

(11th Cir. 2018), cert. denied, 139 S. Ct. 2027 (2019) ......... 4

(I)

II

Cases—Continued:

Page

United States v. Owen, 407 F.3d 222

(4th Cir. 2005), cert. denied,

546 U.S. 1098 (2006)........................................................ 9, 10

United States v. Roy, 855 F.3d 1133

(11th Cir. 2017), cert. denied,

138 S. Ct. 1279 (2018) ........................................................... 4

United States v. Truley, No. 21-14352,

2022 WL 16848489 (Nov. 10, 2022)...................................... 4

Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) ................. 7

Constitution, statute, and rule:

U.S. Const. Amend. VI............................................................ 6

18 U.S.C. 3060(e) ..................................................................... 5

Fed. R. Crim P. 5.1(a)(2)-(4) ................................................... 5

In the Supreme Court of the United States

No. 22-464

UNITED STATES OF AMERICA, PETITIONER

v.

SALEEM HAKIM

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

Respondent makes little attempt to defend the court

of appeals’ actual holding in this case: that denial of

counsel at any critical pretrial stage is structural error

no matter whether the defendant has irretrievably lost

any rights or defenses. Instead, almost the entire brief

in opposition is devoted to recharacterizing the court’s

holding as merely “recogniz[ing] 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.” Br. in

Opp. 13; see id. at 9-25. That recharacterization is inaccurate. And even if it were accurate, the case would still

warrant this Court’s review.

A. The Court Of Appeals Held That Error At Any Pretrial

Stage Is Structural Error

Nowhere did the court of appeals acknowledge a

“general application of harmless-error analysis” or an(1)

2

nounce a “narrow, fact-bound exception” applicable

only to the denial of counsel during every critical stage

of the pretrial proceeding. Br. in Opp. 13. To the contrary, the court made clear that such an error at a single

critical stage requires reversal.

1. The court of appeals began its three-paragraph

structural-error section by explaining that “[b]ecause

[respondent’s] purported waiver of his Sixth Amendment right was invalid, we must decide whether [respondent] was deprived of ‘the assistance of counsel

during any critical stage of the criminal justice process.’ ” Pet. App. 27a (emphasis added; brackets and citation omitted). The court then emphasized that the

right “applies to certain steps before trial,” and that

“[c]ritical stages include arraignments, postindictment

interrogations, postindictment lineups, and the entry of

a guilty plea.” Ibid. (emphases added; citations omitted).

The court of appeals’ analysis in the next paragraph

accordingly focused only on a subset of the proceedings,

viewing a denial of counsel at any of the identified critical stages to be independently sufficient to justify reversal. Although the court stated that respondent was

denied the right to counsel “at all stages of the pretrial

process,” it did so simply to establish that the denial

“included his arraignment before the magistrate judge

at which a plea was entered in his behalf; it included the

period during which the government extended to him ‘a

plea offer’; and it included another hearing at which he

attempted ‘to enter a change of plea’ based on a decision

at which he arrived ‘on his own,’ without help from his

standby counsel.” Pet. App. 27a-28a (emphases added;

brackets omitted). The court emphasized that “both the

initial arraignment and the hearing at which [respond-

3

ent] attempted (without success) to plead guilty” were

critical because each had resulted in uncounseled pleas.

Id. at 28a (emphasis added).

In the final paragraph, the court of appeals declared

that “[t]he constitutional error was structural.” Pet.

App. 28a. The entirety of the support for that conclusion (sans citations) was as follows:

White v. Maryland establishes both that a plea hearing is a critical stage, and that “we do not stop to determine whether prejudice resulted” because “only

the presence of counsel could have enabled this accused to know all the defenses available to him and

to plead intelligently.” And our precedents hold that

“if the Government cannot meet its burden to prove

a valid waiver, the defendant need not show prejudice to obtain a reversal.” [Citations.] It follows that

the deprivation of [respondent’s] right to counsel at

all pretrial stages of the proceedings against him was

a structural error. “The fact that the evidence

against [respondent] was overwhelming plays no

part in the analysis, because the denial of a right to

counsel cannot be harmless error.”

Id. at 28a-29a (emphasis added; brackets and citations

omitted). Just like in the preceding paragraph, the

court’s stated view that counsel was denied “at all pretrial stages” was relevant only because it meant that at

least one critical stage—here, at least one plea-entry

stage—was “included,” id. at 27a.

To the extent that any doubt remained, the three

parenthetical quotations included in the citations attached to the italicized sentence eliminates it:

● “Because a trial court’s acceptance of an invalid

waiver of the Sixth Amendment right to counsel

4

is not subject to harmless error analysis, we do

not inquire into whether a different result would

have obtained had Appellant been represented by

counsel at trial.” Pet. App. 28a (citation omitted).

● “The importance of ensuring that a waiver is

made knowingly, intelligently, and voluntarily is

underscored by the fact that a violation of the

right to counsel is not subject to harmless error

analysis.” Ibid. (brackets and citation omitted).

● “The nature of the right to defend pro se renders

the traditional harmless error doctrine peculiarly

inapposite.” Ibid. (citation omitted).

Those quotations make clear that the court deemed the

deprivation of counsel during any critical pretrial stage

to be structural error, irrespective of whether any

rights or defenses were irretrievably lost.

2. Respondent’s own citations of Eleventh Circuit

precedent (Br. in Opp. 11-12) do not support his

cramped reading of the decision below. Most of the

cited cases involve a claim of trial, not pretrial, error.

See United States v. Margarita Garcia, 906 F.3d 1255,

1260 (2018), cert. denied, 139 S. Ct. 2027 (2019); United

States v. Roy, 855 F.3d 1133, 1135 (2017) (en banc), cert.

denied, 138 S. Ct. 1279 (2018); Delguidice v. Singletary,

84 F.3d 1359, 1361-1364 (1996) (per curiam); Blanco v.

Singletary, 943 F.2d 1477, 1497 (1991), cert. denied, 504

U.S. 943, and 504 U.S. 946 (1992). Another involves not

the deprivation of counsel, but the defendant’s own absence while his attorney argued a motion. United

States v. Truley, No. 21-14352, 2022 WL 16848489, at

*3-*4 & n.4 (Nov. 10, 2022) (per curiam).

The remaining two are state habeas cases involving

claims that counsel was denied during a preliminary

5

hearing at which trial witnesses testified. See Hammonds v. Newsome, 816 F.2d 611, 613 (11th Cir. 1987)

(per curiam); Thomas v. Kemp, 796 F.2d 1322, 1327

(11th Cir.), cert. denied, 479 U.S. 996 (1986). The government identified them in seeking rehearing en banc,

see U.S. C.A. En Banc Pet. i, 14, but the full court of

appeals apparently did not view those collateral-review

decisions to be inconsistent with the panel’s focus on an

arraignment and a change-of-plea hearing as independently sufficient bases for finding structural error

on direct appeal. Indeed, in federal court, a defendant

charged by indictment or information, as respondent

was, would generally have no right to a preliminary

hearing at all. See 18 U.S.C. 3060(e); Fed. R. Crim. P.

5.1(a)(2)-(4); see also Information 1-2.

3. Finally, the holding below cannot be cabined to

situations in which erroneous self-representation persists throughout the entire pretrial process, because

this case itself does not present that fact pattern. As

the court of appeals observed (Pet. App. 8a), standby

counsel was activated a week before the jury was selected. That was enough time for counsel, already familiar with the case, to file motions—and counsel in fact

did file a motion in limine on respondent’s behalf. See

D. Ct. Doc. 58 (Dec. 7, 2018). The court thus could not

have adopted an all-pretrial-stages rule here.

B. The Lower Court’s Rule Of Automatic Reversal Is An

Erroneous Outlier

Respondent does not seriously dispute that an “any

pretrial stage” rule of structural error constitutes an erroneous outlier from decisions in other circuits. And

even if respondent could succeed in recharacterizing

the court of appeals’ decision as having adopted an “all

6

pretrial stages” rule, such a rule would be unsound and

unprecedented.

1. An all-pretrial-stages rule is incorrect

An all-pretrial-stages rule would itself conflict with

this Court’s precedents. Respondent does not dispute

that the Court’s “general rule” of reversing based on

constitutional error only when it has prejudiced the defendant, Arizona v. Fulminante, 499 U.S. 279, 306

(1991), applies to claims alleging a deprivation of counsel in violation of the Sixth Amendment, e.g., Satterwhite v. Texas, 486 U.S. 249, 257-258 (1988). See Pet. 814; Br. in Opp. 18-23. But respondent would fashion a

new exception to that rule that would deem the erroneous “deprivation of counsel at all critical pretrial stages”

to be structural error. Br. in Opp. 18. Such an exception would be unfounded.

a. As the government has explained (Pet. 10-14), the

Court has found the deprivation of counsel, including

the erroneous grant of self-representation, at a critical

pretrial stage to be structural error only where rights

or defenses are irretrievably lost at that stage. See, e.g.,

Satterwhite, 486 U.S. at 256 (rejecting structural error

and distinguishing cases in which “defenses not asserted were irretrievably lost”). Respondent provides

no sound basis to conclude that this Court’s holdings

would have been different had the defendants been nonprejudicially denied counsel at multiple pretrial stages.

The inquiry turns not on the number of stages, but on

what transpired at each stage. Multiple stages at which

no rights or defenses are irretrievably lost provide no

greater support for a categorical structural-error rule

than one such stage does.

Here, respondent does not identify any rights or defenses that he irretrievably lost while representing him-

7

self. The only motions in limine that were granted during that time, see Br. in Opp. 4, were pro forma ones on

matters such as allowing summary witness testimony,

demonstrative or visual aids, and the like. See D. Ct.

Doc. 38, at 2-3 (Nov. 19, 2018); D. Ct. Doc. 31, at 2-14

(Oct. 23, 2018). The government’s two more substantive

motions, to limit the introduction of tax-defier material

and to bar any narrative testimony by respondent, were

denied. See ibid. And respondent’s counsel, once taken

off standby status, was able to engage in motions practice of his own. See D. Ct. Doc. 58.

Respondent also repeatedly emphasizes plea bargains, suggesting that the erroneous grant of selfrepresentation “for all pretrial proceedings” could “ ‘affect whether and on what terms the defendant’ ” strikes

a plea deal. Br. in Opp. 21 (citation omitted); see id. at

4-5, 9, 18, 21. But in Missouri v. Frye, 566 U.S. 134

(2012), this Court declined to “define the duties of defense counsel” with respect to plea bargaining, instead

holding only that “counsel has the duty to communicate

formal offers from the prosecution to accept a plea on

terms and conditions that may be favorable.” Id. at 145.

Here, respondent does not allege that any formal offers

were made that he did not receive.

b. The petition explains (Pet. 15-16) that none of the

“three broad rationales” for structural error, Weaver v.

Massachusetts, 137 S. Ct. 1899, 1908 (2017)—an interest other than preventing erroneous conviction, an impossibility of assessing prejudice, and an inherent effect

on the fairness of a conviction—applies to an erroneous

grant of pretrial self-representation where no rights or

defenses are irretrievably lost. Respondent’s contrary

arguments (Br. in Opp. 21-22), including with respect to

8

cases in which a defendant is erroneously permitted to

represent himself at “all pretrial stages,” lack merit.

As to the first rationale, respondent attempts to categorize this case as one involving “the ‘right to conduct

one’s own defense.’ ” Br. in Opp. 22 (brackets and citation omitted). But the actual error was erroneously permitting respondent to conduct his own defense, see Pet.

App. 16a-26a, which implicates only the interest in the

fairness of the ultimate outcome, see, e.g., Coleman v.

Alabama, 399 U.S. 1, 7 (1970).

As to the second rationale, respondent suggests (Br.

in Opp. 22) that it is impossible to know whether or how

“counsel would have negotiated a plea” or “how a counseled defendant might have prepared differently.” But

respondent has failed to show a right to either counseled negotiation of a plea, see p. 7, supra, or more time

for pretrial preparation than his standby counsel requested and received. And given that, had respondent

been counseled, any ineffective-assistance claim (including with respect to plea agreements) would itself be

subject to prejudice analysis, Strickland v. Washington, 466 U.S. 668, 688 (1984), it would be particularly

anomalous to elide that inquiry here.

As to the third rationale, respondent errs in contending that “depriving a defendant of counsel for all pretrial stages ‘always results in fundamental unfairness’ ”

because “the resulting trial could not be fair.” Br. in

Opp. 21-22 (citation omitted). Again, respondent was

represented by former standby counsel throughout trial

and for a week before trial as well, and has not identified

anything about the trial that was “fundamentally” unfair. At least where the defendant has not irretrievably

lost any rights or defenses, the pretrial denial of counsel

9

cannot be said to “always” result in fundamental unfairness at trial.

c. Respondent’s all-pretrial-stages rule also would

not be administrable. If the period of counseled representation before the trial in this case—which included

motions practice—does not suffice to remove the

structural-error label, it is unclear where any logically

coherent line could be drawn. Respondent’s rule would

invite needless and abstruse litigation over the meaning

of “all” instead of focusing attention on what this Court

has said is relevant: whether the defendant irretrievably lost any rights or defenses. Perhaps for that reason,

no court has adopted the rule respondent proposes.

And if the court of appeals in this case actually had

adopted that rule (as respondent mistakenly contends),

it would only underscore the need for this Court’s review.

2. The court of appeals’ decision is at odds with decisions of other appellate courts

As the petition makes clear (Pet. 17-20), the decision

below is at odds with decisions of other appellate courts,

including United States v. Owen, 407 F.3d 222 (4th Cir.

2005), cert. denied, 546 U.S. 1098 (2006), and McClinton

v. United States, 817 A.2d 844 (D.C. 2003), cert. denied,

540 U.S. 1185 (2004).

Respondent attempts (Br. in Opp. 14-15) to distinguish Owen on the ground that the defendant there

“had counsel for the bulk of the pretrial proceedings;

counsel filed pretrial motions on his behalf; and counsel

had months to negotiate a plea bargain and prepare for

trial.” But Owen expressly stated that an unconstitutional pretrial denial of counsel is “not ‘structural error’

and is subject to harmless-error analysis” when, as in

that case, a defendant “merely enter[s] a plea of not

10

guilty and assert[s] his right to a jury trial” without “irrevocably waiv[ing] any defenses or mak[ing] any irreversible admissions of guilt.” 407 F.3d at 227. The

decision below, in contrast, deemed erroneous selfrepresentation at a proceeding involving the entry of

such a plea to be structural error. See Pet. App. 27a28a.

As to McClinton, respondent states that it did

not involve “the deprivation of counsel * * * for ‘all

pretrial stages’ ” and characterizes it as a case in which

the defendant “had ‘functional counsel’ at all times.”

Br. in Opp. 17 (brackets and citations omitted). But

the defendant there was erroneously granted selfrepresentation during trial, and the “functional counsel” the court referred to was his standby counsel during that period. This is an a fortiori case, given that the

erroneous grant of self-representation—likewise with

standby counsel—occurred before, not during, trial.

C. This Court’s Review Is Warranted

As the petition demonstrates (Pet. 20-23), the question presented is important and recurring; this Court

often grants review to address expansions of the

structural-error rule; and the concerns are amplified in

cases, like this one, involving the push-and-pull of the

reciprocal constitutional rights to counsel and of selfrepresentation. Respondent offers no sound reason

why this Court should decline review.

1. Respondent claims that the constitutional violation in this case resulted from a “ ‘freakish confluence of

factors’ ” and “will almost never, if ever recur.” Br. in

Opp. 23-24 (citation omitted); see id. at 27. But even

irrespective of the broader implications of the rationale

of the decision below, the error here—resulting from

the magistrate judge’s inadvertent use of the singular

11

rather than the plural, see 8/1/18 Tr. 8-9—reflects the

sort of imprecision in speech that is bound to occur with

some frequency, given the sheer number of criminal

proceedings that district and magistrate judges oversee

every day.

Respondent’s suggestion (Br. in Opp. 24) that judges

can avoid such errors by woodenly “reading from a

sheet of paper” is unrealistic and unsound. It may be

difficult or impossible to stick to the script when an uncooperative defendant repeatedly makes nonsensical

assertions, as is common in “sovereign citizen” cases

like this one. And respondent’s stick-to-the-script approach would discourage judges from taking account of

the particular defendants before them and attempting

to explain matters in a personalized way. Nor does respondent have any solution for the significant and needless practical problems that would result (see Pet. 2223) from finding structural error in both the erroneous

denial and (as the decision below holds) the erroneous

grant of self-representation.

2. Respondent suggests (Br. in Opp. 26) that this

case is an unsuitable vehicle for further review because

the government is not pressing the arguments that

there was no constitutional error to begin with and that

even if there were, plain-error (rather than harmlesserror) review applies. But the elimination of those factbound issues from the case makes this a cleaner, and

thus better, vehicle for further review.

Contrary to respondent’s suggestion (Br. in Opp. 2627), the nature of the uncontested error is clear: the

improper grant of self-representation during a critical

stage (or even multiple critical stages) of the pretrial

process. This Court’s case-specific approach to such

commonplace errors, under which reviewing courts look

12

to whether the defendant irretrievably lost any rights

or defenses, has a solid legal basis, a longstanding pedigree, and the general adherence of the lower courts.

The Court should grant review and harmonize that analytically sound and practical approach across all of the

federal circuits.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

JANUARY 2023