# Opposition Brief — United States v. Gonzalez-Lopez

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0217%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 140

## Text

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

lil

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0217%3A03. Public record. Not legal advice.