Opposition Brief — United States v. Gonzalez-Lopez

ie, ~=--_- —

¢ a Supreme Court, U.S.

FILED

NOV 18 20%

No. 05-352

IN THE

Supreme Court of the United States

United States of America

Petitioner,

v.

Cuauhtemoc Gonzalez-Lopez.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF IN OPPOSITION

Pamela S. Karlan Jeffrey L. Fisher

STANFORD SUPREME COURT (Counsel of Record)

LITIGATION CLINIC DAVIS WRIGHT TREMAINE LLP

559 Nathan Abbott Way 2600 Century Square

Stanford, CA 94305 1501 Fourth Avenue

Seattle, WA 98101

Thomas C. Goldstein (206) 622-3150

Amy Howe

Kevin K. Russell Karl W. Dickhaus

GOLDSTEIN & Howe, P.C. J. Richard McEachern

4607 Asbury Pl., NW MCEACHERN & DICKHAUS, LC

Washington, DC 20016 1750 S. Brentwood Blvd.

St. Louis, MO 63144

November 18, 2005

WILSON-EPES PRINTING CO, INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether a district court’s denial of a criminal

' defendant’s qualified right to be represented by

counsel of choice requires automatic reversal of his

conviction.

il

TABLE OF CONTENTS

CER FRRPRSIUY 0 PRINT BOP sccesctctnnicncscimiosonciitsenssibitebtenseetvosinnis i

RO ee SITE iid icncdcceeciiidacinncicttiiieinniiceniiibincininn il

A Se FT TRIO OD os tensicccicscnnipsentvinineniegpenrtociesinein ill

EPCOT vicnceninnsieerieipunsimnabienngeinemeepagrnnnnninnngienten I

REASONS FOR DENYING THE WRIT ............cccceseseseesenees 4

I. THERE IS NO CONFLICT OF AUTHORITY ON THE

PS Fe ei seristeticintierinlisanennnsinviniennmicvidinns 5

A. There is No Disagreement in the Lower Courts

Concerning How to Remedy a Complete Denial of

Counsel of Choice on Direct Review. ..............:0::00000 6

B. Even if the Seventh Circuit’s “Difference in the

Quality of Representation” Test Applied on Direct

Review of Federal Convictions, Respondent Still

Would Be Entitled to Reversal. ..............:scccesseeeeeeees 9

I]. THE GOVERNMENT FAILED PROPERLY TO RAISE

THE QUESTION PRESENTED IN THE COURT

SERRRIT & witinnicisensidiavviereaninipiiviecnrainumamiiovneniniieineianitl 1]

lil. THE QUESTION PRESENTED DOES NOT ARISE

WITH SUFFICIENT REGULARITY TO MERIT THIS

SE Fete SOE OF eo ciciescvvcnnieenvenivintpiniinnatpianninniegbiiions 12

IV.THE EIGHTH CIRCUIT’S '¥ DECISION IS

CONSISTENT WITH THIS COURT’S

PR HT pinto tirtncscanidiskervvsinnnbigsebaniiisinansoetiian 15

A. The Sixth Amendment Right to Counsel of Choice Is

Distinct from the Sixth Amendment Right to the

Effective Assistance of Counsel Once Chosen or

Appointed. sepsuccsobooscansvevensgswenebedesenesvedsessorooucnnbeseosenens : 16

B. The Government’s Proposed Strickland Standard Is

Incompatible with the Nature of the Independent Right

IEE Gr GS siteiietenricicrinitiestsecticistiernsiwicipepeaiai 19

C. Important Practical Considerations Favor the Eighth

EO IEE, scscsippnschdasinhidttaminnnsicntctintiiibieniseniins 20

SR csescisinnsnnsdeennsctsnsectenstesuintsibapemnanietcheintnaieiianel 21

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TABLE OF AUTHORITIES

Cases

Arizona Vv. Fulminante, 499 U.S. 279 (1991).........ccccceeeees 6, 15

Baldwin v. Reese, 541 U.S. 27 (2004) ..........ccsccesseeceeseeesereees 12

Brecht v. Abrahamson, 507 U.S. 619 (1993)......ccccccccseseseeeeees 7

Chandler v. Fretag, 348 U.S. 3 (1954)........cccccccseceeesseseeeeees 17

Chapman v. California, 386 U.S. 18 (1967) ...........cccc0e 6, 15

Davis v. Alaska, 415 U.S. 308 (1974) .....ccccsceessse: POST CROE 18

Faretta v. California, 422 U.S. 806 (1975) ......cceeccceeeseeees 17

Flanagan v. United States, 465 U.S. 259 (1984).............0008 19

Glasser v. United States, 315 U.S. 60 (1942)..............60 17, 20

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33

CUTIE iisiccaitichandibeinenceedibsnPesiciampicdetaiesaditeesaudioiaiesntnsnanaisdnesuiisid 12

Holloway v. Arkansas, 435 U.S. 475 (1978) .......cccccececeeeeeees 20

Lainfiesta v. Artuz, 253 F.3d 151 (CA2 2001), cert.

SE Bae Si EF CN atrrciiciccenisccincissinnitionimniovevveests 9

Linton v. Perini, 656 F.2d 207 (CA6 1981), cert. .

Se Say Be CR hectitninintccnnscscasenesscbsictsccsasocsints 9

McKaskle v. Wiggins, 465 U.S. 168 (1984)................06. 19, 20

Mickens v. Taylor, 535 U.S. 162 (2002).............::ccecceeees 6, 20

Morris v. Slappy, 461 U.S. 1 (1983)........ccccccesseseseesssesenenees 13

Neder v. United States, 527 U.S. 1 (1999) ...ccceeccceeeeeeeees 6, 15

Powell v. Alabama, 287 U.S. 45 (1932) .........ccccceeeee 17, 18

Rodriguez v. Chandler, 382 F.3d 670 (CA7 2004),

cert. denied, 125 S.Ct. 1303 (2005) ....... cece eeeeeeees passim

Rompilla v. Beard, 125 S.Ct. 2456 (2005) .........ccccecseseeseeeees 18

Ross v. Reda, 510 F.2d 1172 (CA6), cert. denied,

ee ee Caritas beset iticitiinhalenishis ees iiiestidieniiepini tenis 13

Sampley v. Attorney General, 786 F.2d 610 (CA4),

cert. denied, 478 U.S. 1008 (1986). 0.0.0.0... ccececeeeeteeeeees 13

Strickland v. Washington, 466 U.S. 668 (1984).............000 19

United States v. Addonizio, 442 U.S. 178 (1979)...............0006 7

iV

United States v. Alvarez-Sanchez, 511 U.S. 350

UTI Ne iiisicsiinsis ves hssinnppcsictaebicniiietinbialedaiiguaiidesteeniteiadenioaintéaiieiads 12

United States v. Barnett, 376 U.S. 681 (1964) ............ eee 17

United States v. Castro, 972 F.2d 1107 (CA9 1992)............ 13

United States v. Childress, 58 F.3d 693 (CADC

1995), cert. denied, 516 U.S. 1098 (1996).......... sapeeenbi 6, 13

United States v. Collins, 920 F.2d 619 (CA10 1990),

cert. denied, 500 U.S. 920 (1991). 0.0... cceecseseceeeeeeeeseeeees 12

United States v. Cronic, 466 U.S. 648 (1984) ............c eee 18

United States v. Dinitz, 538 F.2d 1214 (CAS 1976),

cert. denied, 429 U.S. 1104 (1977) ...c..c cece eceeeeeeteeeeeeeees 13

United States v. Diozzi, 807 F.2d 10 (CAI 1986)................ 13

United States v. Horton, 845 F.2d 1414 (CA7 1988)........... 13

United States v. Jamieson, 427 F.3d 394 (CA6 2005) ........... 9

United States v. Mastroianni, 749 F.2d 900 (CAI

SITU ssiciciotiicstuieciendslieiinechisitpndiibeiniededsbsensdiiiaathddinbisbianidaaabinien 13

United States v. Mendoza-Salgado, 964 F.2d 993

IIT STUER cccsaschasiajsenscidaiicninisdanibesdidaidentaihiasaiianniudiadiitoyens 6

United States v. O'Malley, 786 F.2d 786 (CA7 1986)......... 13

v. Panzardi Alvarez, 816 F.2d 813

United States v. Spears, -2d 262 (CA7), cert.

denied, 506 U.S. 989 (1992)...........00ecscscsscecesescsssesserees 13

United States v. Stites, 56 F.3d 1020 (CA9 1995),

cert. denied, 516 U.S. 1138 (1996).........0.. eiestiiicsiinians 13

United States v. Voigt, 89 F.3d 1050 (CA3 1996)..........00000+ 6

Wheat v. United States, 486 U.S. 153 (1988)......... .13, 17, 18

Yee v. City of Escondido, 503 U.S. 519 (1992)... Ay ee 12

Other Authorities

James Alexander, A Brief Narrative of the Case and \

Trial of John Peter Zenger, Printer of the New \

York Weekly Journal (Stanley N. Katz ed. 1972)..........1. 17

Vv

Junk Fax Attorney Reference,

http://www.junkfax.org/fax/basic_info/

The Law Offices of Joseph H. Low IV, Curriculum

Vitae, http://www.aggressivecriminaldefense

lawyers.com/resume. Html ..............cccccceseeceseeecesseeseeeeeeees

Robert L. Stern et al., Supreme Court Practice (8th

ST AIA ihacentuitcihhdetaiesteeiisdinnahateiignsjutatabiieminabimesternensen

United States Department of Justice, Bureau of

Justice Statistics, Indigent Defense Statistics

(2001),

http://www.ojp.usdoj.gov/bjs/id.htm#defendants.............

STATEMENT

The government seeks review to press an argument that

no court of appeals has ever accepted and that it did not even

raise on the merits below: that a defendant who was denied

his Sixth Amendment right to be represented at trial by the

counsel of his choice is entitled to a new trial only if he can

prove that the lawyer he was forced to use was

constitutionally ineffective. Particularly in light of

subsequent developments in this case, which show that

respondent would have been entitled to reversal of his

conviction under the existing law in every circuit, certiorari

should be denied.

1. On January 7, 2003, the government charged

respondent in the Eastern District of Missouri with conspiring

to distribute marijuana. Immediately after the arrest, his

family hired John Fahle — a Texas attorney who had never

previously met respondent — to serve as respondent’s counsel.

The next day, Fahle appeared at respondent’s detention

hearing and arraignment. Pet. App. 2a.

Shortly thereafter, respondent telephoned Joseph Low, an

attorney in California with a successful track record

representing defendants in the Eastern District of Missouri.

Pet. App. 2a. Low — a seasoned criminal defense lawyer and

a Senior Instructor at Gerry Spence’s Trial Lawyers College —

has received several national awards for his excellence in the

courtroom, including Trial Advocate of the Year from the

American Board of Trial Advocates. See The Law Offices of

Joseph H. Low IV, Curriculum Vitae,

http://www.aggressivecriminaldefenselawyers.com/resume.

html (last visited Nov. 16, 2005).

At respondent’s request, Low promptly flew to Missouri

to discuss the possibility of representing respondent, and ten

days later was hired. On March 4, 2003, Low attended an

evidentiary hearing on respondent’s behalf. Although Low

had not yet entered an appearance, the Magistrate Judge

accepted Low’s provisional entry on the understanding that he

2

would file a motion for admission pro hac vice. On March

11, 2003, respondent informed Fahle that he wanted Low to

be his sole attorney and asked Fahle to withdraw from the

case. Pet. App. 2a-3a.

On March 17, 2003, Low filed the first of three

applications for admission pro hac vice. The district court

denied the application the next day, without explanation. Pet.

App. 3a, 8a. Low filed his second pro hac vice application on

April 14, 2003, but it was similarly denied without

explanation. As a result, Low filed an application for a writ

of mandamus in the court of appeals on April 30, 2003,

seeking to compel the district court to grant the pro hac vice

motion, but that application, too, was denied. Additionally,

Low filed a general application for admission to the Eastern

District of Missouri. The district court tabled the application,

and did not rule on it until several months after submission,

well after respondent’s trial. /d. at 3a.

On April 25, 2003, Fahle moved to withdraw as

respondent’s counsel and to continue respondent’s trial. The —

district court indicated that it would permit a continuance to

be granted only if another attorney entered an appearance on

behalf of respondent by May 5, 2003. Accordingly, Karl

Dickhaus, whom Low had recruited to serve as his local

counsel, entered an appearance on behalf of respondent. Pet.

App. 3a-4a. Dickhaus is primarily a consumer protection

attorney specializing in “junk fax” law, prosecuting claims

under the Telephone Consumer Protection Act. See Junk Fax

Attorney Reference, http://www.junkfax.org/fax/basic_info/

attorneys.htm (last visited Nov. 16, 2005). Before this case,

Dickhaus had never tried a federal criminal case. Despite

Dickhaus’s lack of relevant experience, Pet. App. 5a, Low

chose him to serve as local counsel because Dickhaus was the

sole active graduate of Gerry Spence’s Trial Lawyers College

in the St. Louis area, and Low was confident that his own

motion for admission pro hac vice ultimately would be

3

granted. On July 7, 2003, however, the district court denied

Low’s third motion for admission pro hac vice. /bid.

2. Respondent’s trial began that day. Despite

Dickhaus’s plea that Low at least be allowed to sit at counsel

table to assist him, the court limited Low to the audience

section of the courtroom and forbade contact between Low

and Dickhaus during trial proceedings. The court even placed

a United States Marshal between Dickhaus and Low. The

district court did not permit respondent to meet with Low in

the morning before the start of trial, during breaks, during

lunch, or after the trial concluded for the day. Low was even

denied access to the detention facility where respondent was

housed in the evenings. Not until the last night of the trial

was respondent permitted to meet with Low, even outside the

courtroom. Pet. App. 5a.

All of respondent’s alleged co-conspirators entered into

plea agreements prior to his trial, and several testified against

him in return for sentencing recommendations or other

consideration from the government. The government’s star

witness, Jorge Guillen, tied respondent to the conspiracy by

testifying that he persuaded respondent to meet him at a mini-

mart with money needed for his role in the drug deal.

Although Guillen was wired during the interaction, the

government claimed at trial that it had lost the tape, making

Guillen’s testimony critical. Dickhaus was unable to impeach

this testimony during cross-examination. Indeed, the trial

transcript reveals that Dickhaus’s inexperience in federal

criminal trials also limited his ability to challenge the

government’s case in even more fundamental respects. At

one point, the court suggested that Dickhaus “[rjead” the

Federal Rules of Evidence after he had difficulty

understanding the government’s objection and _ court’s

evidentiary ruling. Trial Tr. vol. II, 183:2, July 8, 2003.

On July 11, 2003, the jury found respondent guilty of the

sole count of the indictment. Pet. App. 5a. The district court

sentenced him to 292 months in prison.

4

3. On appeal, the Eighth Circuit vacated respondent’s

conviction and remanded for a new trial. Pet. App. 20a. It

held that the district court’s refusal to allow Low to represent

respondent violated respondent’s Sixth Amendment right to

proceed with the counsel of his choice. /d. at 13a. Having

found this constitutional violation, the Eighth Circuit held that

reversal was required. The court explained that conducting a

harmless error analysis would effectively “obliterate” the

Sixth Amendment right to be represented by counsel of

choice by collapsing it into the right to receive effective

assistance of counsel. /d. at 19a-20a.

4. After the Eighth Circuit issued this opinion, the

government sought rehearing en banc, arguing for the first

time that when the district court has violated a defendant’s

Sixth Amendment right to counsel of his choice, the

defendant must show prejudice to obtain a reversal of his

conviction. The Eighth Circuit unanimously denied rehearing

without elaboration. Pet. App. 21a.

5. After the Eighth Circuit issued its mandate on

March 8, 2005, the parties began preparing for a new trial.

Low, now representing respondent, deposed Jorge Guillen,

the government’s key witness. Under intense questioning

from Low, Guillen admitted under oath that he lied numerous

times during the trial about respondent’s involvement in the

conspiracy. See, eg., Guillen Dep. 348:1-7, May 25-26,

2005. In addition to admitting outright lies, Guillen admitted

that respondent met him with money on the night of the arrest

not to fund a drug deal, but rather in response to Guillen’s

plea for money to support a sick relative. Jd. at 301:20-304:4.

Shortly thereafter, the government filed this petition for

certiorari and convinced the trial court to stay remand

proceedings pending this Court’s disposition.

REASONS FOR DENYING THE WRIT

Having unanimously lost the primary argument it raised

below — that the denial of counsel in this case did not violate

the Sixth Amendment — and having recognized that that fact-

5

bound issue is hardly worthy of this Court’s review, the

government now seeks, in the absence of any actual split

among the circuits, to persuade this Court to adopt an

unprecedented rule respecting the proper remedy for this

constitutional violation. That rule would require defendants,

even after they have established one constitutional violation,

also to prove another — namely that their trial attorneys

provided ineffective assistance of counsel. The government

provides no real reason why these two distinct constitutional

rights should be collapsed into one. Nor has it provided any

real reason why its novel argument is important enough to

warrant this Court’s attention. While the government may

understandably wish to avoid a retrial at which respondent

will be represented by expert counsel who has already

demonstrated his ability to effectively cross-examine key

government witnesses, that is hardly a legitimate reason to

invoke this Court’s certiorari power.

I. THERE IS NO CONFLICT OF AUTHORITY ON

THE FACTS OF THIS CASE.

No disagreement among the circuits exists that would

justify granting certiorari in this case. Every court of appeals

that has addressed the question on direct appeal has held that

a complete denial of the Sixth Amendment right to choose

one’s own counsel requires reversal. Although the

government claims that the Eighth Circuit’s opinion conflicts

with the Seventh Circuit’s decision in Rodriguez v. Chandler,

382 F.3d 670 (CA7 2004), cert. denied, 125 S.Ct. 1303

(2005), that is simply inaccurate. Not only did Rodriguez

involve a different factual scenario arising in a different

procedural posture, but respondent would have been entitled

to a new tnal even under the approach taken by the Seventh

Circuit. Thus, there is no genuine conflict.

6

A. There is No Disagreement in the Lower Courts

Concerning How to Remedy a Complete Denial

of Counsel of Choice on Direct Review.

1. The First, Third, Eighth, Tenth, and D.C. Circuits — all

the courts of appeals that have addressed this issue on direct

appeal — have concluded that the erroneous denial of a

criminal defendant’s right to counsel of choice warrants

automatic reversal of the defendant’s conviction.’ See United

States v. Panzardi Alvarez, 816 F.2d 813, 818 (CAl 1987)

(holding that “(t]he right to choose one’s counsel is an end in

itself’ and therefore “its deprivation cannot be harmless’’);

United States v. Voigt, 89 F.3d 1050, 1074 (CA3 1996)

(stating that, although the particular defendant had not been

denied his right to counsel of choice, “arbitrary denials of the

right to counsel of choice mandate per se reversal’’); United

States v. Mendoza-Salgado, 964 F.2d 993, 1016 (CA10 1992)

(stating that the court would apply an automatic reversal

standard when a “trial court unreasonably or arbitrarily

interferes with a defendant’s right to counsel of choice”)

(emphasis omitted); United States v. Childress, 58 F.3d 693,

736 (CADC 1995) (remanding the case to the district court to

determine whether the defendant was denied his counsel of

choice, and directing that “the deprivation of his counsel of

choice would entitle [defendant] to a reversal of his

' The government admits this point, but attempts to discredit

these decisions because they predate this Court’s opinions in Neder

v. United States, 527 U.S. 1 (1999), and Mickens v. Taylor, 535

U.S. 162 (2002). See Pet. Cert. 16 n.6. But neither case in any way

supports the government’s proposal that criminal defendants whose

constitutional rights have been violated be required to prove that

the violation prejudiced them. To the extent that Neder reiterated

the distinction between structural and trial errors, that distinction

was well established by the time this Court announced its decision

in Arizona v. Fulminante, 499 U.S. 279 (1991), which predates

most of these decisions, and has been implicit since Chapman v.

California, 386 U.S. 18 (1967), which predates them all.

7

conviction as a matter of constitutional right”), cert. denied,

516 U.S. 1098 (1996).

2. While fully five circuits would apply automatic

reversal in these circumstances, not a single circuit has

squarely rejected that position. Petitioner argues that the

Seventh Circuit’s decision in Rodriguez creates a circuit

conflict, Pet. Cert. 16, but Rodriguez is distinguishable on

both legal and factual grounds.

As a legal matter, Rodriguez arose in a procedural

posture in which courts are much less likely to require new

trials. Rodriguez arose on a habeas appeal challenging a state

court determination, whereas the Eighth Circuit’s ruling here

stems from direct review of a federal district court judgment.

“The principle that collateral review is different from direct

review resounds throughout [this Court’s] habeas

jurisprudence.” Brecht v. Abrahamson, 507 U.S. 619, 633

(1993). Indeed, it should “hardly bear[] repeating that ‘an

error that may justify reversal on direct appeal will not

necessarily support a collateral attack on a final judgment.’”

Id. at 634 (quoting United States v. Addonizio, 442 U.S. 178,

184 (1979)). This is especially so where, as in Rodriguez, a

petitioner is asking a federal court to upset a state court

conviction.

Thus, when the Seventh Circuit in Rodriguez applied a

test for assessing wrongful deprivations of a defendant’s nght

to counsel of choice that required proof of some potential

prejudice, the court expressly grounded that test in this

Court’s approach in Brecht, a case that has no bearing on a

direct appeal in a federal criminal proceeding. See

Rodriguez, 382 F.3d at 674. Nothing about Rodriguez shows

that the Seventh Circuit would have imposed such a

requirement on a federal defendant before the court on direct

appeal. Especially given that the approach of every other

circuit to have addressed the issue would support a rule of

automatic reversal in cases on direct appeal, the Seventh

Circuit’s ruling should fairly be confined to the context in

8

which it arose. Unless and until a court squarely rejects the

rule of automatic reversal already applied by five circuit

courts, no circuit split exists on this issue.

As a factual matter, substantial differences between

Rodriguez and this case belie the government’s suggestion

that the two decisions actually conflict. The district court in

this case completely prevented respondent from using his

chosen counsel, and ordered him instead to proceed to trial

with an attorney whom respondent never chose to represent

him — an attorney who was supposed to perform simply the

ministerial role of local counsel. The court further refused to

allow respondent’s counsel of choice to sit at counsel table to

assist the local counsel, who had never tried a federal criminal

case; and it even forbade respondent’s counsel of choice from

visiting respondent at his detention facility until the last night

of the trial. Pet. App. Sa. The Eighth Circuit emphasized in

its opinion that completely denying respondent the

opportunity to be represented by Low rose to the level of a

structural error that “‘affect[s] the framework within which the

trial proceeds, rather than simply an error in the trial process

itself.” Jd. at 14a. Such a complete denial of one’s Sixth

Amendment right “infects the entire trial process from

beginning to end,” id. at 18a (internal quotation marks

omitted), and thus warrants automatic reversal of conviction.

The injury suffered by the defendant in Rodriguez, by

contrast, was quite limited. There, the defendant had retained

two lawyers, and the district court erroneously denied the

defendant use of only one of them, based on an alleged

conflict of interest. Rodriguez, 382 F.3d at 673. Despite this

erroneous denial, the Seventh Circuit repeatedly emphasized

that defendant was “represented at trial by at least one lawyer

of his own choosing.” /d. at 674; see also ibid. (noting that

defendant went to trial “with another lawyer of his own

choice”). This constitutional error thus had far less impact on

“the entire trial process from beginning to end,” cf Pet. App.

18a, because the defendant there was not completely denied

9

representation by his chosen counsel in the same way

respondent was.”

B. Even if the Seventh Circuit’s “Difference in the

Quality of Representation” Test Applied on

Direct Review of Federal Convictions,

Respondent Still Would Be Entitled to Reversal.

Even if a reviewing court were to apply the Seventh

Circuit’s potential prejudice inquiry test — which asks whether

there is “an identifiable difference in the quality of

representation between the disqualified counsel and the

attorney who represents the defendant at trial,” Rodriguez,

382 F.3d at 675 — to the facts of this case, respondent would

? Nor does the Second Circuit’s decision in Lainfiesta v. Artuz,

253 F.3d 151 (CA2 2001), cert. denied, 535 U.S. 1019 (2002),

conflict with the Eighth Circuit’s holding here. There, too, the case

was on collateral review of a state-court conviction and the

defendant was not completely denied his right to choice of counsel.

~ See 253 F.3d at 157-58 (confining its analysis to only the question

of whether a “temporary, arbitrary deprivation of a second attorney

of choice” required automatic reversal) (emphasis added).

The Sixth Circuit’s recent opinion in United States v.

Jamieson, 427 F.3d 394 (CA6 2005), in which the court found no

violation of the right to choice of counsel, but suggested that it

would have considered the effects of the denial if it had occurred,

does not create a split of authority either. There is no evidence that

the Sixth Circuit would decide the facts of this case any differently

than the Eighth Circuit, especially since Sixth Circuit precedent

requires reversal when a defendant is erroneously denied his Sixth

Amendment right to retain the counsel of his own choosing. See

Linton v. Perini, 656 F.2d 207, 211-12 (CA6 1981) (“Evidence that

a defendant was denied this right [to counsel of choice] arbitrarily

and without adequate reason is sufficient to mandate reversal

without a showing of prejudice.”), cert. denied 454 U.S. 1162

(1982). The dicta in Jamieson regarding prejudice does not

overrule that longstanding circuit precedent.

10

still be entitled to a new trial. Accordingly, there is no actual

conflict presented that requires this Court’s intervention.

“A genuine conflict, as opposed to a mere conflict in

principle, arises when it may be said with confidence that two

courts have decided the same legal issue in opposite ways,

based on their holdings in different cases with very similar

facts.” Robert L. Stern et al., Supreme Court Practice 226

(8th ed. 2002) (emphasis added). The conflict the

government alleges does not meet this standard. The Seventh

Circuit itself has indicated that “an identifiable difference in

the quality of representation” exists when the defendant’s

chosen lawyer “had expertise that [the defendant’s] other

lawyer lacked,” or if the chosen lawyer “had planned a line of

defense that [the other lawyer] was unable to sustain on his

own.” Rodriguez, 382 F.3d at 675. Both criteria — either one

of which would be sufficient to meet the Seventh Circuit’s

test — are present here.

1. Respondent would be entitled to a new trial in the

Seventh Circuit because Low, respondent’s disqualified

counsel, undeniably “had expertise that [respondent’s] other

lawyer lacked.” Rodriguez, 382 F.3d at 675. Low is an

experienced, nationally recognized criminal defense attorney

with proven success representing defendants in federal drug

conspiracy cases within the Eastern District of Missouri. See

Pet. App. 2a; supra at 1. Dickhaus, in contrast, is a civil

consumer protection litigator “who was much less

experienced with criminal trials” than was Low. Pet. App.

5a; see supra at 2. In fact, prior to representing respondent in

this case, Mr. Dickhaus had never tried a federal criminal

case. [bid. Even without considering what actually happened

at trial, the obvious differences in expertise between

respondent’s chosen lawyer and the lawyer forced upon him

by the district court’s erroneous refusal to admit his chosen

lawyer pro hac vice are enough to satisfy the Seventh

Circuit’s requirement that there be “an identifiable difference

11

in the quality of representation” provided by the two lawyers.

See Rodriguez, 382 F.3d at 675.

2. Low clearly would have advanced “a line of defense

that [Dickhaus] was unable to sustain on his own.” See

Rodriguez, 382 F.3d at 675. Since the Eighth Circuit reversed

respondent’s conviction and remanded the case for a new

trial, Low has been representing respondent in preparation for

the retrial. In that time, Low has deposed the prosecution’s

main witness in the first trial, and extracted from him

repeated admissions that he had perjured himself on the stand.

In particular, he elicited an admission that the witness had

lied about respondent's role in the alleged conspiracy. See

supra at 4. Whereas Dickhaus’s trial cross-examination was

unable to shake the witness’s story and was replete with

examples of Dickhaus’s inexperience in the criminal trial

setting, see supra at 3, Low’s deposition has so completely

discredited the witness that he likely would no longer be a

valuable witness for the prosecution.

Il. THE GOVERNMENT FAILED PROPERLY TO

RAISE THE QUESTION PRESENTED IN THE

COURT BELOW.

Certiorari also is inappropriate here for the additional

reason that the government failed to raise the argument t*at it

seeks to advance before this Court in a timely manner below.

Before the Court of Appeals, respondent expressly argued

that the trial court had erred in denying him the right to be

represented by Low and that this error required automatic

reversal. See Appellant’s Br. 24. In its responsive brief on

the merits, the government argued primarily that this case

involved no Sixth Amendment error. See Appellee’s Brief at

13-31. Buried in the middle of a paragraph was a single

sentence suggesting that “any error was harmless because

defendant was represented by able counse/l throughout all of

the proceedings.” Jd. at 28.

Through its petition for certiorari, the government now

advances an entirely different position. It argues that

12

defendants who have been denied the right to counsel of

choice must show prejudice. This is simply too late in the

day. Absent “exceptional circumstances” that do not exist

here, it is inappropriate for a party to ask this Court to

consider the legitimacy of a legal rule that it did not propose

below. United States v. Alvarez-Sanchez, 511 U.S. 350, 360

n.5 (1994); see also Baldwin v. Reese, 541 U.S. 27, 34 (2004)

(deeming argument waived when, inter alia, party “did not

*** seek consideration of the argument in thfe] court

{below]”); Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 38

(1989) (refusing to hear an argument that, inter alia, the party

had “failed to raise * * * below”). Prudence “dictates '

awaiting a case in which the issue was fully litigated below,

so that [this Court] will have the benefit of developed

arguments on both sides and lower court opinions squarely

addressing the question.” Yee v. City of Escondido, 503 U.S.

519, 538 (1992).

Ill. THE QUESTION PRESENTED DOES NOT ARISE

WITH SUFFICIENT REGULARITY TO MERIT

THIS COURT’S REVIEW.

The government concedes that there are but “few

instances” of the problem that has arisen in this case: the

complete, erroneous denial of counsel of choice. Pet. Cert.

15. The government, which is of course a party in every

criminal prosecution in federal court, can identify only a half-

dozen published cases over a twenty-year period that have

addressed the question on which it seeks review. /d. at 16

n.6.

The rarity of such cases is hardly surprising. “A

defendant’s right to secure counsel of his choice is cognizable

only insofar as defendant is able to retain counsel with private

funds.” United States v. Collins, 920 F.2d 619, 625 n.8

(CA10 1990), cert. denied, 500 U.S. 920 (1991). As this

Court has made clear, “a defendant may not insist on

representation by an attorney he cannot afford.” Wheat v.

13

United States, 486 U.S. 153, 159 (1988). Because the vast

majority of federal defendants are unable to afford privately

retained counsel, and thus are represented by appointed

counsel, see United States Department of Justice, Bureau of

Justice Statistics, Indigent Defense Statistics (2001),

http://www.ojp.usdoj.gov/bjs/id.htm#defendants (last visited

Nov. 17, 2005), the right at issue in this case is entirely

irrelevant to most criminal cases. Cf. Morris v. Slappy, 461

U.S. 1 (1983) (holding that a defendant represented by

appointed counsel was not entitled to a continuance that

would have enabled him to be represented by the particular

attorney within the public defender’s office whom he

preferred).

Even within the small fraction of criminal cases in which

defendants are able choose their lawyers, the question of

remedy arises only in the rare instances when a trial judge

erroneously denies a defendant his right to counsel of choice.

Trial courts enjoy substantial “discretion to limit the exercise

of the right to counsel of choice when insistence upon it

would disproportionately disadvantage the government or

interfere with the ethical and orderly administration of

justice.” United States v. Diozzi, 807 F.2d 10, 12 (CAI

1986). Furthermore, the district court’s decision to deny the

defendant counsel of choice is afforded “substantial latitude.”

United States v. Stites, 56 F.3d 1020, 1024 (CA9 1995)

(quoting Wheat, 486 U.S. at 163), cert. denied, 516 U.S. 1138

(1996); see also United States v. Spears, 965 F.2d 262, 275

(CA7) (“Our review of the district court's decision to remove

* * * counsel [of choice] is * * * deferential * * *.”), cert.

denied, 506 U.S. 989 (1992). As a result, the vast majority of

claims alleging erroneous denial of counsel of choice are

rejected on the merits.”

* See, e.g., United States v. Childress, 58 F.3d at 734-35

(affirming denial of counsel of choice to avoid the potential for

conflict); United States v. Mastroianni, 749 F.2d 900, 913-14 (CAI

1984) (finding district court acted within discretion by denying

14

Finally, even in the few instances in which courts of

appeals have required new trials to remedy denials of the

Sixth Amendment right to counsel of choice, the government

provides no support whatsoever for its assertion that these

new trials have unduly burdened the justice system or

“creat[ed] an unjustified risk that guilty defendants will

escape punishment.” Pet. Cert. 8. It is hard to understand

why being required to re-try one defendant once every several

years unduly burdens the government’s resources. Nor is it

apparent why being required to do so creates a serious risk

that the guilty will escape punishment. On the other hand, the

proceedings on remand in this case sharply demonstrate why

the government’s proposed rule would create an unacceptable

risk of punishing innocent people. See supra at 3-4.

choice of counsel when it would result in delay); Sampley v.

Attorney General, 786 F.2d 610, 613-16 (CA4) (same), cert.

denied, 478 U.S. 1008 (1986); United States v. Silva, 611 F.2d 78,

79 (CAS 1980) (same); United States v. Dinitz, 538 F.2d 1214,

1219-24 (CAS 1976) (finding district court acted within discretion

by denying choice of counsel because counsel acted improperly),

cert. denied, 429 U.S. 1104 (1977); Ross v. Reda, 510 F.2d 1172

(CA6), (same), cert. denied, 423 U.S. 892 (1975); United States v.

Horton, 845 F.2d 1414, 1418 (CA7 1988) (holding that magistrate

did not abuse his discretion in denying defendant’s motion to

substitute counsel when communication barrier that existed

between defendant and counsel was primarily result of defendant's

refusal to cooperate and his “stonewalling” effort to select counsel

of his choice); United States v. O'Malley, 786 F.2d 786, 789-93

(CA7 1986) (affirming district court’s decision to deny choice of

counsel when it would endanger attorney-client privilege); United

States v. Castro, 972 F.2d 1107, 1109 (CA9 1992) (holding that

district court properly denied motion to replace counsel when the

motion was made only three days before commencement of trial),

overruled on other grounds by United States v. Jimenez Recio, 537

U.S. 270 (2003).

15

IV. THE EIGHTH CIRCUIT’S DECISION IS

’ CONSISTENT WITH THIS COURT'S

JURISPRUDENCE.

The Eighth Circuit held, and the government assumes in

its petition, that the trial court violated respondent’s Sixth

Amendment right to representation by counsel of his choice

in wrongfully denying counsel’s application for admission

pro hac vice. The government now seeks to impose a dual

burden upon respondent like none found anywhere else in

constitutional law. This new burden would require

respondent to prove, in addition to the violation of his Sixth

Amendment right to counsel of choice, that the violation

prejudiced him by causing another constitutional violation:

the delivery of ineffective assistance of counsel.

The government’s proposed rule finds no support in this

Court’s precedents. This Court has held that courts reviewing

constitutional errors in criminal trials on direct review should

apply one of two approaches. First, “structural errors,” which

“infect the entire trial process” and distort “the framework

within which the trial proceeds,” require automatic reversal.

Neder v. United States, 527 U.S. 1, 8 (1999) (citations

omitted).

Second, “trial errors,” which “occur{] during the

presentation of the case to the jury, and which may therefore

be quantitatively assessed” in the context of the entire record,

Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991), warrant

reversal when the “harmless error” test announced in

Chapman v. California, 386 U.S. 18 (1967), is not met.

Under Chapman, a constitutional error requires reversal of a

defendant’s conviction unless “it appears ‘beyond a

reasonable doubt that the error complained of did not

contribute to the verdict obtained.’” Neder, 527 U.S. at 15

(quoting Chapman, 386 U.S. at 24).

The government’s petition for certiorari abandons this

existing jurisprudence. It does not argue simply that the

Eighth Circuit erred by treating denials of the right to counsel

16

of choice as structural — rather than trial — error. Even

persuading this Court to treat denials of the constitutional

right to counsel of choice as trial errors would not help the

government in this case. The proceedings already conducted

on remand demonstrate unequivocally what a properly

conducted harmless-error analysis would have concluded: the

district court’s wrongful exclusion of Low contributed to the

verdict obtained. See supra at 4, 10-11.

And so the government demands that this Court go even

further. Put simply, the government proposes that this Court

abandon Chapman and this Court’s longstanding commitment

to harmless-error review and shift the inquiry from whether

the government can show that a constitutional error was

harmless beyond a reasonable doubt to whether the defendant

can prove not only that constitutional error occurred, but that

the constitutional error was harmful. That has never been the

law — with respect to any type of constitutional error — and the

government provides no reason why it should be. The only

rationale the government offers for this radical transformation

of constitutional doctrine is that in an area of Sixth

Amendment law distinct from that at issue in this case —

effective assistance of counsel — this Court has required a

defendant, as part of establishing a constitutional error in the

first place, to show prejudice. The fact that prejudice may be

an element of a quite distinct Sixth Amendment violation,

however, says absolutely nothing about whether proof of

prejudice should be required for a defendant who establishes

a Sixth Amendment violation that does not itself require proof

of prejudice to receive a remedy.

A. The Sixth Amendment Right to Counsel of

Choice Is Distinct from the Sixth Amendment

Right to the Effective Assistance of Counsel Once

Chosen or Appointed.

This Court has long recognized that the Sixth

Amendment protects a non-indigent criminal defendant’s

17

right to choose his own counsel. See Powell v. Alabama, 287

U.S. 45, 53 (1932) (“It is hardly necessary to say that, the

right to counsel being conceded, a defendant should be

afforded a fair opportunity to secure counsel of his own

choice.”); Glasser v. United States, 315 U.S. 60, 70, 75

(1942); Chandler v. Fretag, 348 U.S. 3, 9 (1954); Wheat v.

United States, 486 U.S. 153, 159 (1988).

That right, like the right of self-representation, is more

than simply a sub-element of the defendant’s interest in

receiving competent representation. The framers of the Sixth

Amendment understood “the inestimable worth of free

choice.” Faretta v. California, 422 U.S. 806, 834 (1975).

Among other things, they were well aware that in the

notorious 1735 trial of John Peter Zenger, Zenger’s original

attorneys were disbarred by the court for vigorous advocacy,

see United States v. Barnett, 376 U.S. 681, 715 (1964), and

that the court had initially tried to force him to trial with an

inferior lawyer. See James Alexander, A Brief Narrative of

the Case and Trial of John Peter Zenger, Printer of the New

York Weekly Journal 21 (Stanley N. Katz ed. 1972). Forcing

upon a paying defendant a lawyer other than his legitimate

first choice “can only lead [the defendant] to believe that the

law contrives against him.” Faretta, 422 U.S. at 834.

The right to counsel of choice thus differs from the nght

to effective assistance in two critical respects. First, the

former protects a defendant’s autonomy and dignity interests

in making a fundamental threshold decision as to who will

represent him and how his defense will be presented. The

right to effective assistance, by contrast, does not address

these concerns. It applies regardless of whether the defendant

wishes to secure the representation of any given lawyer.

Second, the choice of trial counsel affects the entire

framework within which a defendant’s trial occurs. An

attorney is responsible, either in consultation with his client or

pursuant to his own judgment, for a host of strategic and

tactical choices that are impossible to discern after the fact.

18

An error at this threshold stage is simply not amenable to the

type of fine-grained parsing of the trial transcript associated

with reviewing claims of ineffective assistance. See, e.g.,

Rompilla v. Beard, 125 S.Ct. 2456 (2005).*

Contrary to the government’s suggestions, nothing this

Court said in Wheat v. United States suggests that these

separate Sixth Amendment rights are cut from the same cloth.

In reaffirming that “the right to select and be represented by

one’s preferred attorney is comprehended by the Sixth

Amendment,” this Court in Wheat also reaffirmed the

distinction between that right and the right to effective

assistance. 486 U.S. at 159. True, as the government notes,

Wheat adverted to the requirement of effective assistance in

explaining why the defendant had not improperly been denied

access to his counsel of choice. But that reference does not

support the government’s argument in this case. Wheat

simply held that a defendant’s choice of counsel cannot

override the government’s “independent” interest in ensuring

that a defendant’s choice will not undercut the requirement of

effective representation. See id. at 160, 162. Thus, under

Wheat a defendant’s interest in choosing his counsel may

have to give way when that choice poses a danger of

precipitating a later ineffectiveness claim. Of course, the

government does not, and cannot, suggest that any such

danger exisied in this case, since no one has ever suggested a

risk that Low would have been ineffective.

* Of course, in some rare circumstances a deficiency in

counsel can be so pervasive as to make it likely that “counsel failed

to function in any meaningful sense as the Government’s

adversary.” United States v. Cronic, 466 U.S. 648, 666 (1984). In

these rare cases, the Court also has presumed prejudice without

inquiry into actual performance at trial. /d. at 659-61 (citing Davis

v. Alaska, 415 U.S. 308 (1974), and Powell v. Alabama, 287 U.S.

45 (1932)).

19

B. The Government’s Proposed Strickland Standard

Is Incompatible with the Nature of the

Independent Right to Counsel of Choice.

Although it is plain that a defendant’s right to counsel of

choice is distinct and independent from his right to effective

assistance of counsel, the government proposes here to

collapse the two rights together. The Eighth Circuit properly

recognized that no good reason exists to subordinate the right

to counsel of choice in this manner.

This Court in Strickland required defendants to prove

both deficient performance by counsel and prejudice because

it included both as elements necessary to show a violation of

the constitutional right to effective assistance. See Strickland

v. Washington, 466 U.S. 668, 692 (1984) (“any deficiencies

in counsel’s performance must be prejudicial to the defense in

order to constitute ineffective assistance under the

constitution”) (emphasis added). This followed from the

Court’s conclusion that the right to effective assistance has

been violated only where a conviction “resulted from a

breakdown in the adversary process that renders the result

unreliable.” Jd. at 687.

Here, however, there is no dispute that the Sixth

Amendment was violated. The government has not sought

review of the Eighth Circuit’s determination that respondent’s

Sixth Amendment right to choice of counsel was violated

when the district court improperly denied Low’s application

for admission pro hoc vice.

That being so, inquiring into prejudice would be

inconsistent with the understanding that the right to counsel

of choice, like the right to self-representation, “reflects

constitutional protection of the defendant’s free choice

independent of concern for the objective fairness of the

proceeding.” Flanagan v. United States, 465 U.S. 259, 268

(1984); see also McKaskle v. Wiggins, 465 U.S. 168, 198 n.6

(1984) (White, J., dissenting). The right to choose one’s

20

counsel “is either respected or denied; its deprivation cannot

be harmless.” McKaskle, 465 U.S. at 177 n.8.

Indeed, in the only other remotely analogous field of

Sixth Amendment law — the conflict-of-interest doctrine — this

Court also has found violations to constitute structural error.

In Holloway v. Arkansas, 435 U.S. 475, 488 (1978), this

Court required automatic reversal where codefendants were

forced to accept joint representation over a timely objection

on grounds of conflict of interest. See also Mickens v. Taylor,

535 U.S. 162, 168 (2002). Such cases, like those involving

the selection of counsel of choice, also involve defendants

who must make an important threshold decision — namely,

whether to pursue a coordinated defense or a conflicting

defense vis-a-vis their codefendants. “To determine the

precise degree of prejudice sustained [when a defendant is

denied his choice to pursue a conflicting defense] is at once

difficult and unnecessary. The right to have the assistance of

counsel is too fundamental and absolute to allow courts to

indulge in nice calculations as to the amount of prejudice

arising from its denial.” Holloway, 435 U.S. at 488 (quoting

Glasser v. United States, 315 U.S. 60, 75-76 (1942)).

Requiring a defendant, in short, to prove that an error that

pervaded his entire trial “prejudiced him in some specific

fashion would not be susceptible of intelligent, evenhanded

application.” Holloway, 435 U.S. at 490.

C. Important Practical Considerations Fav.r the

Eighth Circuit’s Approach.

Lest there be any remaining doubt concerning the

legitimacy of the Eighth Circuit’s decision, the balance of

burdens on the criminal defendant and government favors

reversing in cases like this. If defendants such as respondent

could remain convicted of federal crimes for which their

counsel of choice would have been able to obtain an acquittal,

the defendants would have to serve years in federal prisons.

This punishment would be especially hard to bear in light of

21

the fact that the government would admittedly have deprived

these defendants of their fundamental right to choose their

attorneys. In this case, for example, respondent would serve

his prison sentence knowing that his counsel of choice would

have been able to expose the lies of the government’s key

witness in a way that his other lawyer was unable to do.

By contrast, the burden imposed on the government by

automatic reversal of a conviction in the rare case where a

defendant was erroneously denied counsel of his choice is

comparatively light. In the “few instances” where a court

improperly denies a defendant his counsel of choice, Pet.

Cert. 15, the government will simply be required to retry him.

If the defendant’s first trial was in fact not affected by the

denial, then the government is likely to secure an outcome

identical to the original one, except that its legitimacy will not

be stained by the fundamental unfairness inherent in denying

the defendant his counsel of choice.

CONCLUSION

For the foregoing reasons, the petition for a wnt of

certiorari should be denied.

Pamela S. Karlan

STANFORD SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Thomas C. Goldstein

Amy Howe

Kevin K. Russell

GOLDSTEIN & Howe, P.C.

4607 Asbury PI., NW

Washington, DC 20016

November 18, 2005

22

Respectfully submitted,

Jeffrey L. Fisher

(Counsel of Record)

DAVIS WRIGHT TREMAINE LLP

2600 Century Square

1501 Fourth Avenue

Seattle, WA 98101

Karl W. Dickhaus

J. Richard McEachern

MCEACHERN & DICKHAUS, LC

1750 S. Brentwood Blvd.

St. Louis, MO 63144