Opposition Brief — Omar Francisco Orduno-Ramirez, Petitioner v. United States
Supreme Court briefOct 5, 2023
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No. 23-5034
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
OMAR FRANCISCO ORDUNO-RAMIREZ, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
AMANDA L. MUNDELL
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTION PRESENTED
Whether petitioner is entitled to a conclusive presumption of
prejudice and a Sixth Amendment violation in his sentencing, based
on the government’s acquisition of soundless videos of attorneyclient meetings following his guilty plea, where no prosecutor
involved in the sentencing was aware of the contents of the
recordings, they provided no strategic value to the prosecution,
and the record reveals no irregularity in the sentencing.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 23-5034
OMAR FRANCISCO ORDUNO-RAMIREZ, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-26a) is
reported at 61 F.4th 1263.
The order of the district court (Pet.
App. 51a-65a) is unreported but is available at 2022 WL 23792.
A
prior order of the district court (Pet. App. 27a-50a) is unreported
but is available at 2021 WL 5868517.
JURISDICTION
The judgment of the court of appeals was entered on March 10,
2023.
A petition for rehearing was denied on April 3, 2023 (Pet.
App. 66a).
The petition for a writ of certiorari was filed on
2
June 30, 2023.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATEMENT
Following a guilty plea in the United States District Court
for the District of Kansas, petitioner was convicted of conspiring
to distribute and possess with intent to distribute more than 50
grams of methamphetamine, in violation of 21 U.S.C. 841(a)(1) and
(b)(1)(A)(viii).
Pet. App. 13a.
He was sentenced to 144 months
of
to
by
imprisonment,
release.
Appx.
be
Id. at 53a.
830
(10th
followed
five
years
The court of appeals affirmed.
Cir.
2017).
Petitioner
postconviction relief under 28 U.S.C. 2255.
The district court denied the motion.
of appeals affirmed.
1.
Petitioner
of
later
supervised
719 Fed.
moved
for
Pet. App. 14a-15a.
Id. at 51a-65a.
The court
Id. at 1a-26a.
was
a
participant
in
a
drug-trafficking
operation that transported and distributed methamphetamine across
state lines.
See 719 Fed. Appx. at 830; 2 C.A. App. 84-86.
Petitioner served as a drug courier, “recruit[ed] a new courier,”
“aided and managed that courier,” smuggled noncitizen workers, and
“enjoyed
the
organizers.”
trust
of,
and
interacted
with,
the
top
drug
719 Fed. Appx. at 834; see 2 C.A. App. 102, 107,
263-265.
In 2014, petitioner was indicted for conspiring to distribute
and possess with intent to distribute more than 50 grams of
3
methamphetamine,
in
841(b)(1)(A)(viii).
violation
of
Pet. App. 13a.
21
U.S.C.
841(a)(1)
and
Petitioner was detained at
Corrections Corporation of America (CCA), a detention facility in
Leavenworth, Kansas.
Id. at 3a, 13a.
In 2016, petitioner pleaded guilty to the charged offenses.
Pet. App. 13a.
The district court sentenced him to 144 months of
imprisonment, a 44-month downward variance from the bottom of the
applicable Sentencing Guidelines range. Id. at 14a-15a. The court
of appeals affirmed petitioner’s sentence.
2.
While
petitioner
was
719 Fed. Appx. at 830.
detained
at
CCA,
the
U.S.
Attorney’s Office for the District of Kansas was investigating
certain other inmates’ involvement in a drug-smuggling conspiracy
at that facility, in a case that became known as United States v.
Carter, 429 F. Supp. 3d 788 (D. Kan. 2019).
Pet. App. 3a.
investigation
indictment
ultimately
culminated
in
an
The
charging
certain inmates, not including petitioner, with conspiring to
distribute controlled substances in the prison.
Ibid.
Through a grand jury subpoena in the Carter investigation,
the government obtained soundless video footage from all CCA
surveillance cameras, which included footage capturing attorneyvisitation rooms.
Pet. App. 3a.
The footage depicted many CCA
detainees who were not directly implicated in the Carter case.
See ibid.
The Federal Public Defender for the District of Kansas
was permitted to intervene in the Carter case on behalf of its
4
clients detained at CCA, seeking to divest the government of the
attorney-client communications that it had obtained.
Id. at 4a.
The U.S. Attorney’s Office promptly and voluntarily turned
over the soundless videos for the court to review.
See Pet. App.
63a. After appointing a special master, ibid., “the district court
found that the [U.S. Attorney’s Office] intruded into a large
number of defendants’ communications with their attorneys, with no
legitimate law-enforcement purpose, and later tried to conceal
these actions,” id. at 5a.
The Carter litigation has “led to
important reforms within the entire District of Kansas,” designed
to better protect attorney-client communications.
Id. at 48a; see
id. at 55a.
3.
In
2019,
petitioner
(like
more
than
100
other
CCA
inmates) moved for postconviction relief under 28 U.S.C. 2255,
contending that the government had violated the Sixth Amendment by
intruding on his attorney-client communications.
see id. at 58a.
Pet. App. 15a;
According to evidence from the Carter litigation,
after petitioner had pleaded guilty but before his sentencing, the
government
obtained
soundless
video
between petitioner and his attorney.
footage
of
five
meetings
Id. at 13a-14a.
“In each
recording, [petitioner and his lawyer] appear to speak, make
gestures, and examine documents and legal materials.”
The
video
“recordings
reveal
little
about
Id. at 14a.
[petitioner’s]
interactions with [his lawyer] because they contain no sound.”
5
Pet. App. 14a.
And the government submitted an affidavit from the
prosecutor who handled petitioner’s sentencing stating that “[a]t
no time during my involvement in this case did I view or was [I]
privy to any video recordings of [petitioner] at CCA” and “[a]t no
time prior to [petitioner’s] sentencing
. . .
was I aware that
video recordings existed of [petitioner’s] meetings at CCA with
his defense counsel.”
Id. at 15a (citation omitted; first and
second set of backets in original).
“Thus, the only prosecutor
involved in [petitioner’s] sentencing did not view the soundless
recordings.”
Id. at 15a-16a.
The district court denied petitioner’s Section 2255 motion.
Pet. App. 51a-65a; see id. at 29a-50a.
The court noted that under
the Tenth Circuit’s previous decision in Shillinger v. Haworth, 70
F.3d 1132 (1995), when “pretrial” the “government becomes privy to
protected
attorney-client
purposeful,
unjustified
communications
intrusion
into
because
the
of
its
attorney-client
relationship,” that court deems a “per se Sixth Amendment violation
that is not subject to harmless-error analysis” to have occurred.
Pet. App. 30a; see Shillinger, 70 F.3d at 1142.
The district court
reasoned, however, that the per se rule “d[id] not extend to
alleged violations” -- like the one in petitioner’s case -- “that
occurred post-plea or conviction but prior to sentencing.”
App. 42a.
of
the
Pet.
The court observed that in such cases, “the integrity
petitioner’s
conviction
and
trial
process
is
not
in
6
question,” so “[t]he only tainted proceeding could be sentencing.”
Id. at 44a.
And it explained that “at sentencing,” the “potential
for prejudice” is mitigated by “the checks and balances inherent
to the sentencing process and the discretion of the court to impose
a reasonable sentence.”
Ibid.
Having rejected a per se rule, the district court determined
that petitioner “cannot show any realistic probability that he was
prejudiced as a result of the government’s alleged intrusion” into
his attorney-client communications.
Pet. App. 64a.
The court
observed that the government “did not have possession of and access
to the video recordings” of those communications until after
“[p]etitioner [had] entered his [guilty] plea.”
court
further
found
that
“[p]etitioner’s
Id. at 63a.
sentencing
bears
The
no
indicia of a tainted proceeding,” particularly given that he
“benefitted from a downward variance of 44 months.”
Id. at 64a.
And, finding “nothing in the record suggests any threat to the
reliability or fairness of [p]etitioner’s sentencing proceedings,”
the court reasoned that “he cannot succeed on his Sixth Amendment
claim.”
4.
Id. at 64a-65a.
The
court
of
appeals
granted
a
certificate
of
appealability and affirmed. Pet. App. 1a-26a. The court explained
that “to prove a Sixth Amendment violation, a defendant must
normally demonstrate ‘some effect of [the] challenged conduct on
the reliability of the trial process.’”
Id. at 6a (citation
7
omitted; brackets in original).
The court emphasized that this
“Court’s caution about per se [prejudice] rules” includes “cases
where
the
defendant
alleges
government
interference
in
an
attorney-client relationship.”
Id. at 7a (citing Weatherford v.
Bursey, 429 U.S. 545 (1977)).
And, like the district court, the
court of appeals declined to extend a “per se prejudice rule” for
“pretrial
government
intrusion[s]
into
attorney-defendant
communications” to also encompass “post-plea intrusions.”
Id. at
18a.
The court of appeals explained that “[a] post-plea intrusion
is less likely to cause prejudice than a pretrial intrusion because
the latter can taint any part of a criminal prosecution,” whereas
the former could only potentially affect “sentencing.”
19a.
The
prosecutor
court
also
observed
that
to
use
information
Pet. App.
“the
opportunity
for
a
from
attorney-defendant
communications is narrower” at sentencing, where “the judge finds
facts and imposes punishment, largely in reliance on the Probation
Office’s
presentence
investigation
stipulations in the plea agreement.”
report”
and
“factual
Id. at 19a-20a (footnote
omitted).
The court of appeals also found that “[t]he facts in this
case” -- which involved only “soundless video recordings” from
which no “usable information” could be derived -- provided a
“further
consideration
cut[ting]
against
creating
a
per
se
8
prejudice rule.”
Pet. App. 21a, 25a & n.22.
“Indeed,” the court
observed, “all” of the many defendants seeking post-Carter “relief
based on post-plea/pre-sentencing intrusions[] ‘acknowledge that
they cannot demonstrate the possibility of prejudice on their Sixth
Amendment claims,’” which “shows that creating a per se prejudice
rule
would
omitted).
be
‘overinclusive.’”
Accordingly,
the
Id.
court
at
22a
n.20
(citation
determined
that
petitioner
“ha[d] not shown why [it] should disregard [this] Court’s caution
against Sixth Amendment per se prejudice rules.”
Id. at 22a.
Finally, the court of appeals explained that “[w]ithout a
conclusive presumption,” petitioner could obtain relief only if he
suffered
“[a]ctual
omitted).
The court observed that petitioner did not “contend he
was prejudiced.”
[p]rejudice.”
Id. at 26a.
Pet.
App.
24a
(emphasis
And it found that “no prosecutor
involved in the sentencing was aware of the contents of the
recordings,” id. at 25a; “nothing in the record suggests that the
Government could gain usable information from the videos in this
case,” id. at 25a n.22; and “[t]he record reveals no irregularity
in [petitioner’s] sentencing,” id. at 26a.
ARGUMENT
Petitioner renews his contention (Pet. 12-15) that a Sixth
Amendment
obtains
violation
soundless
automatically
videos
of
a
occurs
when
defendant’s
the
meetings
government
with
his
attorney following the defendant’s guilty plea but before his
9
sentencing.
The court of appeals correctly declined “to create”
a “conclusive presumption” of prejudice in that context, Pet. App.
18a, and its decision does not conflict with any decision of this
Court or another court of appeals. No further review is warranted.
1.
* * *
As petitioner acknowledges, “most constitutional errors
will
defendant.”
(1967)).
not
justify
Pet. 15.
a
remedy
unless
they
prejudiced
the
(citing Chapman v. California, 386 U.S. 18
That is equally true of alleged violations of the Sixth
Amendment.
“Absent some effect of challenged conduct on the
reliability of the trial process, the Sixth Amendment guarantee is
generally not implicated.”
658 (1984).
United States v. Cronic, 466 U.S. 648,
Although “[i]n certain Sixth Amendment contexts,
prejudice is presumed,” Strickland v. Washington, 466 U.S. 668,
692 (1984), those contexts are limited, see, e.g., Florida v.
Nixon, 543 U.S. 175, 190 (2004), and do not include circumstances
like petitioner’s.
a.
In Weatherford v. Bursey, 429 U.S. 545 (1977), for
example, this Court rejected a “per se” rule that a Sixth Amendment
violation occurs “‘whenever the prosecution knowingly arranges or
permits intrusion into the attorney-client relationship.’”
549-550 (citation and emphasis omitted).
a
“per
se
rule
[would]
cut[]
much
Id. at
The Court explained that
too
broadly”
and
require
invalidating a conviction even where prejudice was clearly absent
--
for
instance,
where
the
agent
had
merely
participated
in
10
attorney-client conversations about “the weather or other harmless
subjects.”
Id.
accordingly
held
at
557-558
that
an
(emphasis
omitted).
The
Court
undercover
agent’s
presence
at
confidential attorney-client meetings did not violate the Sixth
Amendment unless the agent “communicated the substance of the
[attorney-client] conversations and thereby created at least a
realistic possibility of injury to [the defendant] or benefit to
the State.”
Id. at 558.
Similarly, in United States v. Morrison, 449 U.S. 361 (1981),
the Court rejected a per se rule requiring automatic dismissal of
an indictment where law-enforcement agents met with a criminal
defendant “without the knowledge or permission of her counsel,”
“disparaged” that counsel, and sought to coerce the defendant into
cooperating in a related investigation.
explained
threat
that
“absent
thereof,
inappropriate,
deliberate.”
demonstrable
dismissal
even
though
Id. at 365.
of
the
Id. at 362.
prejudice,
the
or
indictment
violation
may
The Court
substantial
is
plainly
have
been
And because the defendant in Morrison
had “demonstrated no prejudice of any kind, either transitory or
permanent, to the ability of her counsel to provide adequate
representation,” the Court found that the government’s conduct
“provide[d] no justification for interfering with the criminal
proceedings.”
Id. at 366.
11
b.
The court of appeals correctly applied the foregoing
principles and determined that no “conclusive presumption” of
prejudice was triggered here.
Pet. App. 18a.
This Court has never
recognized a presumption of prejudice where, after conviction but
before
sentencing,
the
government
obtains
soundless
audible) recordings of attorney-client communications.
(or
even
Petitioner
thus asked the court of appeals “to create” a new “presumption.”
Ibid.
But such a new presumption could be justified only if there
were “a high likelihood of prejudice” across the relevant category
of cases, ibid., thus rendering a “case-by-case inquiry into
prejudice” not “worth the cost,” Strickland, 466 U.S. at 692.
And
no such likelihood of prejudice exists in this context.
As
the
court
of
appeals
recognized,
when
“the
alleged
intrusion” into attorney-client communications “occurs after the
[defendant] entered a guilty plea or was convicted at trial,” any
risk of prejudice could relate exclusively to sentencing.
Pet.
App. 19a. At sentencing, however, a prosecutor has only “narrow[]”
opportunities
“to
use
information
from
attorney-defendant
communications.”
Ibid.
That is because the sentencing court will
generally
base
its
factfinding
representations,
but
“on
the
report”
and
“factual
investigation
agreement.”
not
Probation
on
the
prosecutor’s
Office’s
presentence
stipulations
in
the
Id. at 20a; see Fed. R. Crim. P. 32(c)(1)(A).
plea
And it
12
is well equipped to “screen” any “improperly gained information”
that the prosecution seeks to rely upon.
Pet. App. 21a.
This case, like other post-Carter cases involving claims of
Sixth Amendment violations at sentencing, is a prime illustration
of why a per se prejudice rule is unwarranted in this context.
“The soundless video recordings” at issue “provided no strategic
value to the prosecution.”
Pet. App. 25a.
They simply showed
petitioner and his lawyer “speak[ing], mak[ing] gestures, and
examin[ing] documents and legal materials.”
Id. at 14a.
And
petitioner received a favorable sentence that was 44 months below
the bottom of his Guidelines range.
Id. at 14a-15a.
Indeed, not
a single person who sought relief based on a post-plea intrusion
following
the
Carter
litigation
asserted
that
he
could
“demonstrate the possibility of prejudice on [his] Sixth Amendment
claim[].”
Id. at 22a n.20.
The fact that nobody in petitioner’s
position has even attempted to show actual prejudice confirms that
a
per
se
prejudice
rule
would
“cut[]
much
too
broadly.”
Weatherford, 429 U.S. at 557.
c.
Petitioner’s contrary arguments (Pet. 12-25) lack merit.
Petitioner contends (Pet. 12) that a per se prejudice rule is
necessary to address what he calls “particularly egregious” and
“repeated” prosecutorial “misconduct.”
To the extent that he is
seeking a one-off rule based on the unique backdrop of the Carter
litigation, such a rule is unwarranted.
Even assuming that it
13
would be appropriate to focus on that small set of cases, neither
petitioner nor any of the more than 100 other claimants from CCA
have alleged that they could demonstrate prejudice. Pet. App. 22a
& n.20.
In petitioner’s particular case, for example, “the only
prosecutor involved in [petitioner’s] sentencing did not view the
soundless video recordings,” id. at 15a-16a, and “bore all the
hallmarks of a reasoned advocate for the government and not an
antagonist
leveraging
inside
information,”
id.
at
64a.
The
district court’s findings about other governmental conduct in
different cases does not justify blanket relief for a group of
claimants whose own proceedings were unaffected.
To the extent that petitioner seeks a broader rule that would
grant automatic relief whenever the government has any recording
of post-plea or post-trial attorney-client communications, such a
broad
rule
is
unsupported.
He
does
not
suggest
that,
notwithstanding the absence of any asserted prejudice for him or
inmates with similar claims, prejudice in this circumstance is
common, let alone so common that it should be presumed.
Nor can
he show that any such rule is necessary for deterrence.
The U.S.
Attorney’s Office here, for example, has implemented new policies
designed
to
safeguard
the
communications going forward.
privacy
of
attorney-client
See 1 C.A. App. 500-501 (stating
that the U.S. Attorney’s Office’s “mandatory comprehensive policy”
issued in May 2017 was “largely curative of many of the issues
14
that [had come] to light”); Pet. App. 48a (noting the “important
reforms within the entire District of Kansas”).
Although it did
so following both sentencing-related claims and other claims,
petitioner provides no reason to conclude that the government will
take corrective measures only if unaffected claimants receive
relief.
Petitioner’s cited authorities (Pet. 12) do not support a per
se prejudice rule here.
In Morrison, the Court noted in dicta
that “a pattern of recurring violations by investigative officers
* * *
might warrant the imposition of a more extreme remedy.”
449 U.S. at 365 n.2.
But the Court found no such pattern and
imposed no such remedy there; petitioner identifies no case in
which the Court has done so; and neither lower court here found
that the circumstances of the Carter case warranted such a remedy.
Petitioner’s remaining cited cases did not even involve Sixth
Amendment violations -- much less establish per se prejudice rules
for such violations. ∗
Petitioner also asserts (Pet. 20) that the court of appeals
“undervalue[d]” the “critical nature of sentencing proceedings.”
But in fact, the court emphasized that “post-plea government
intrusions into attorney-defendant communications
* * *
should
See Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993)
(alleged due process violation); Bank of Nova Scotia v. United
States, 487 U.S. 250, 259 (1988) (alleged prosecutorial misconduct
before grand jury); United States v. Russell, 411 U.S. 423, 43233 (1973) (alleged due process violation).
∗
15
be taken seriously.”
Pet. App. 23a.
It simply determined that a
“per se prejudice rule” would be “overinclusive.”
“prosecutors
have
many
opportunities
at
Ibid.
sentencing
Even if
to
take
strategic advantage of the content of a defendant’s confidential
communications with counsel,” Pet. 23, the circumstances here
illustrate that such prejudice is rare.
2.
Petitioner identifies no other factor that would justify
this Court’s review.
Petitioner asserts (Pet. 15) that courts
generally “have struggled to identify which errors” should be
exempt from “harmless-error analysis.”
But he cites no circuit
conflict on that issue, let alone a conflict over whether the type
of error here is subject to harmless-error analysis.
And it is
far from clear that consideration of the particularized issue of
presumptions of error when the government obtains a soundless
recording
of
a
post-plea,
pre-sentencing
attorney-client
communication would provide meaningful guidance for the variety of
other
situations
in
which
defendants
seek
presumptions
of
prejudice.
Petitioner also emphasizes (Pet. 19) that the Court “has
previously granted certiorari to review and correct erroneous
adoptions of structural-error rules.”
But that trend presumably
stems from the Court’s recognition that structural errors are
“‘highly exceptional’” and arise “[o]nly in a ‘very limited class
of cases.’”
Greer v. United States, 141 S. Ct. 2090, 2099-2100
16
(2021) (citations omitted).
When a lower court seeks to expand
that limited category, this Court may understandably intervene to
ensure that the expansion is warranted.
That practice does not
counsel in favor review where, as here, the court of appeals
applies the “general rule” rather than the exception.
Id. at 2099
(citation omitted).
Finally, petitioner suggests (Pet. 24-25) that a presumption
of prejudice is necessary to deter future instances of misconduct.
But
petitioner
government
identifies
intrusions
no
into
widespread
problem
attorney-defendant
of
post-plea
communications.
Instead, he focuses solely on the U.S. Attorney’s Office’s conduct
here -- but as noted above, the district court found that the
Office’s
2017
“mandatory
comprehensive
policy”
was
“largely
curative of many of the issues that came to light in the [Carter]
case.”
1 C.A. App. 500.
this Court’s intervention.
There is accordingly no sound basis for
17
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
AMANDA L. MUNDELL
Attorney
OCTOBER 2023
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