*2 Before HOLMES , Chief Judge, HARTZ , TYMKOVICH , MATHESON , BACHARACH , PHILLIPS , McHUGH , EID , CARSON , and ROSSMAN , Circuit Judges. [*]
_________________________________
PHILLIPS , Circuit Judge, joined by HOLMES , Chief Judge, HARTZ , TYMKOVICH , MATHESON , McHUGH (except as to Part II(C)(2)), EID , and CARSON, Circuit Judges.*
_________________________________
Stеven M. Hohn appeals the denial of a 28 U.S.C. § 2255 petition to vacate his judgment and discharge his case with prejudice or, alternatively, to reduce his sentence by half. CCA Recordings 2255 Litigation v. United States , ____________________
* The Honorable Nancy L. Moritz and the Honorable Richard E. N. Federico are recused in this matter.
Nos. 19-CV-2491, 12-CR-20003-03, 19-CV-2082,
Yet Hohn’s case is different because it implicates one of this court’s
precedents,
Shillinger v. Haworth
, particularly
Shillinger
’s structural-error rule
that presumes prejudice to a defendant when the government intentionally
intrudes into the attorney-client relationship without a legitimate law -
enforcement purpose.
Without
Shillinger
, Hohn’s argument collapses. Hohn concedes that he
suffered no prejudice by the prosecution’s obtaining and listening to his six-
minute call with his attorney—the communication at the heart of this case— and
so he relies solely on
Shillinger
’s structural- error rule to sustain a Sixth
Amendment violation. But
Shillinger
is a twenty -nine-year-old case, and we
conclude that
Shillinger
is out of step with the Supreme Court’s cases on
structural error and the “very limited class of cases” to which structural error
extends.
Greer v. United States
,
After reconsidering en banc, we conclude that the case—and its structural- error rule—is untenable under Supreme Court law. So for the reasons below, we now overrule Shillinger and hold instead that a Sixth Amendment violation of the right to confidential communication with an attorney requires the defendant to show prejudice. Here, Hohn concedes that he suffered no prejudice, so his claim automatically fails. On that ground, we exercise our jurisdiction under 28 U.S.C. §§ 1291 and 2253 to affirm the district court’s decision denying Hohn’s § 2255 petition.
BACKGROUND
I. Hohn’s Prosecution
In January 2012, Hohn and several codefendants were indicted on one count of conspiring to possess with the intent to distribute and to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § § 846, 841(a)(1), (b)(1)(A) (Count 1), as well as two counts of possession of a firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2) (Counts 13 and 14). [2] Months later, Hohn was charged in a multi-defendant second superseding indictment that raised additional gun- and-drug related charges. [3]
The lead prosecutor in Hohn’s case was Kansas Assistant United States Attorney (AUSA) Terra Morehead. The primary investigators were Deputy Perry Williams of the Johnson County Sheriff’s Office, and Drug Enforcement Administration (DEA) Task Force Officer Christopher Farkes. The prosecution team offered plea deals to Hohn’s codefendants, many of whom accepted and *6 agreed to testify against Hohn. [4] At trial, these cooperating codefendants and several law-enforcement agents testified to Hohn’s participation in the alleged conspiracy; to his possession, use, and distribution of methamphetamine; and to his possession of the charged firearms. The government also introduced as evidence the illegally possessed firearms seized during a lawful search of Hohn’s truck.
After a twelve-day trial, the jury found Hohn guilty of all counts charged
in the second superseding indictment, and the district court later sentenced
Hohn to 360 months’ imprisonment to be followed by five years of supervised
release.
[5]
Hohn appealed his judgment and sentence directly to this court, and
we affirmed.
United States v. Hohn
,
II. Hohn’s Attorney-Client Call
While he awaited trial, Hohn was detained at CoreCivic. He remained there from January 27, 2012, to March 28, 2014. During this time— the district *7 court would later come to discover— the Kansas USAO had been obtaining and listening to recorded attorney-client jail calls between CoreCivic detainees and their attorneys for “a wide variety of criminal cases,” Carter , 429 F. Supp. 3d at 847, including a large-scale drug investigation (the Black Investigation), id. at 798, 801, 848. [6] When the government charged the indictment in the Black Investigation, its practice of obtaining recorded attorney-client calls and meetings at CoreCivic came to light. Concerned about the constitutional ramifications of this practice, the district court ordered a Special Master to investigate the extent of the government’s intrusions into CoreCivic detainees’ attorney-client communications. As part of that investigation, in January 2019, the government produced some of the improperly obtained recordings to the Federal Public Defender (FPD), including the April 23, 2012 call that Hohn placed from CoreCivic to his newly appointed attorney. [7]
Hohn’s call with his new attorney lasted six minutes.
[8]
During this
introductory call, they discussed legal advice and trial strategy, “including:
Hohn’s desire to have a trial in the matter, his criminal history, what he
believed the evidence against him to be and problems with that evidence,
concern about his truck being impounded, and the general way that they would
proceed to meet and discuss the case going forward.”
CCA Recordings 2255
Litigation
,
The government subpoenaed three batches of Hohn’s calls during his detention at CoreCivic. The April 23, 2012 call was extracted from the second batch, which the government had subpoenaed in connection with an investigation into the death of Gregory Price. The government issued that subpoena after one of Hohn’s codefendants informed Deputy Williams that Hohn had stuffed Price’s body into a refrigerator and transported the body to a property in De Soto, Kansas, where it was buried and later recovered by investigators. The government subpoenaed Hohn’s calls from CoreCivic placed between April 19, 2012, and April 23, 2012. Of the four total calls Hohn made during that time, one was recorded—the one to Hohn’s newly appointed attorney. The other three calls (to the FPD’s Office) were not recorded because *9 the toll-free numbers to that office had been privatized, according to CoreCivic’s procedures.
CoreCivic maintained procedures that allowed detainees to privatize their attorney-client calls from the prison. [9] Hohn signed a CoreCivic handbook, issued to him upon his arrival, which detailed the process for requesting to remove attorney calls from the prison’s recording system. The handbook advised Hohn that if he failed to abide this process, then his calls would be monitored and recorded for security purposes. Hohn admitted that he knew how to privatize attorney-client calls, yet he did not follow that protocol for the call he placed to his new attorney on April 23, 2012. In addition to the handbook, Hohn signed a “Monitoring of Inmate/Detainee Telephone Calls form,” which alerted him that CoreCivic retained the right to monitor his phone calls from the facility, that use of CoreCivic phones constituted consent to such monitoring, and that certain steps must be taken to exclude phone calls from CoreCivic’s recording system, including and especially calls to attorneys. Id. at *9. The area next to the phones at CoreCivic displayed signs that read, “ALL CALLS MAY BE RECORDED/MONITORED,” and/or “CALLS ARE SUBJECT TO MONITORING AND RECORDING.” From all this, the *10 district court made a finding that Hohn understood his attorney calls would be recorded, but that Hohn did not understand those recordings could be procured by the prosecution. Sure enough, AUSA Morehead later obtained Hohn’s calls, and the district court found that she had “possessed” and “listened to” Hohn’s six-minute attorney call from April 23, 2012, despite the AUSA’s sworn denials that she had never heard them. at *22–23.
III. Hohn’s Postconviction Proceedings
In early 2019, upon learning that the government had obtained a confidential call with his attorney, Hohn sought habeas relief under § 2255. [10] In his § 2255 petition, Hohn argued that the government’s interception of the six- minute attorney-client call violated his Sixth Amendment right to communicate in confidence with his attorney and therefore warranted either a vacation of his judgment with prejudice or a fifty-percent reduction of his sentence.
The district court granted Hohn an evidentiary hearing on his § 2255 petition because the record did not conclusively show that Hohn was not *11 entitled to relief. Before the hearing, Hohn stipulated that the six -minute attorney-client call was not introduced at trial, did not affect his trial, and did not affect his sentencing. After holding an evidentiary hearing, the district court denied Hohn’s motion to supplement his § 2255 petition. The court then issued its order resolving a handful of motions from the government and , most relevant here, denying Hohn’s § 2255 petition and his request for a certificate of appealability (COA).
The district court denied Hohn’s § 2255 petition largely based on its
interpretation of the attorney-client privilege.
See CCA Recordings 2255
Litigation
,
After the district court’s denial, Hohn timely appealed and applied to this court for a COA, which we granted on two questions:
(1) Whether the district court erred in ruling that Mr. Hohn failed to prove the elements of his Sixth Amendment claim.
(2) Whether the district court erred in ruling that the government proved Mr. Hohn waived his Sixth Amendment right.
Order Granting Certificate of Appealability, United States v. Hohn , No. 22- 3009 (10th Cir. Oct. 25, 2022), ECF No. 54.
A panel of this court heard oral argument on these questions in September 2023. [12] After argument, the panel called sua sponte for an en banc poll, [13] asking the full court to reconsider our holding in Shillinger based on *13 Supreme Court precedent that the panel asserted casts ’s structural- error rule in doubt. The poll carried, and this court agreed to hear Hohn’s case en banc. With our en banc order, we directed the parties to file supplemental briefs on two questions:
(1) Did Shillinger v. Haworth , 70 F.3d 1132 (10th Cir. 1995) correctly hold that it is structural error for the government to purposefully intrude without legitimate justification into the attorney-client relationship and that prejudice must be presumed?
(2) When, if ever, does the government unjustifiably intrude into the attorney-client relationship by intentionally obtaining attorney-client communications that are not privileged?
United States v. Hohn
,
An en banc court heard oral arguments in May 2024. Having received the parties’ supplemental briefs and heard their arguments, we issue this decision.
LEGAL BACKGROUND
The Sixth Amendment guarantees a right to the effective assistance of
counsel.
Strickland v. Washington
,
Yet the Supreme Court has never held that the Sixth Amendment right to
attorney-client confidentiality “subsumes a right to be free from intrusion” by
government agents into the attorney -client relationship.
Weatherford
, 429 U.S.
at 553 (discussing
Hoffa v. United States
,
DISCUSSION
Hohn argues that the district court erred in denying his § 2255 petition
because his petition advances a per se Sixth Amendment violation that entitles
him to relief. Hohn asserts that because “[t]he Sixth Amendment’s
constitutional protection is not limited by the scope of the attorney-client
privilege,” the district court mistakenly required Hohn to have premised his
Sixth Amendment claim on a
privileged
attorney-client communication. Suppl.
Br. at 24. Hohn also insists that he was not required to show prejudice from
AUSA Morehead’s intrusion because ’s structural-error rule presumes
prejudice in his situation: where the government intruded into an attorney-
client conversation purposefully and absent any law-enforcement interest. In
*16
considering these claims, we accept the district court’s factual findings unless
they are clearly erroneous and review its legal conclusions de novo.
United
States v. Orange
,
We begin with the district court’s interpretation of Shillinger — specifically, whether the district court misread Shillinger as requiring that attorney-client communications protected by the Sixth Amendment also be covered by the attorney-client privilege. We then consider the prejudice component of Hohn’s Sixth Amendment claim. In doing so, we reviеw, reverse, and replace Shillinger ’s structural- error rule.
I. Attorney-Client Privilege
The district court began its analysis by stating the four elements of a per se Sixth Amendment violation, as set by : (1) a protected attorney- client communication; (2) purposeful intrusion into the attorney- client relationship; (3) the prosecutor’s becoming privy to the attorney-client communication due to the intrusion; and (4) no legitimate law-enforcement justification for the intrusion. CCA Recordings 2255 Litigation , 2021 WL 5833911, at *14. The first element—a protected attorney-client communication—led the district court to consider the attorney-client privilege. It noted that, though “the attorney-client privilege is not a right guarante ed by the Sixth Amendment,” id. at *16, the privilege nevertheless “relate[s] to” the constitutional right “to speak candidly and confidentially with counsel, ” id. at *15 . So in the court’s view, the privilege provides “an appropriate framework *17 for showing that the recordings between [Hohn] and counsel [were] protected communications under the Sixth Amendment.” Id. at *16.
The district court concluded that “to establish the protected- communication element” of a Sixth Amendment violation, Hohn had to “show that he had a reasonable expectation of confidentiality in his attorney-client call and that he did not otherwise waive the attorney-client privilege.” As to the former, the district court found that Hohn’s calling his attorney on a phone that Hohn knew was monitored and recorded by CoreCivic was “inconsistent with an objectively reasonable expectation of confidentiality.” Id. at *17. As to the latter, the district court found that Hohn waived the attorney-client privilege by calling his attorney from CoreCivic despite his knowledge and understanding that the communication would be exposed to third parties. Taking these findings together, the district court reasoned that Sixth Amendment protections never attached to Hohn’s attorney-client call because the call was nonprivileged. The court thus declined to reach Sixth Amendment waiver.
By conditioning Hohn’s Sixth Amendment claim on a showing that the attorney-client privilege had attached, the district court equated confidential communications protected by with those covered by the privilege. See id. at *18 (“[T]he attorney-client privilege [was] a necessary underpinning of Hohn’s Sixth Amendment right.”). This determination premised Hohn’s initial appeal and COA application to this court, in which he argued that the *18 district court had erroneously injected the evidentiary privilege into ’s elemental test.
In granting an en banc hearing, we asked the parties to consider “[w]hen,
if ever, does the government unjustifiably intrude into the attorney-client
relationship by intentionally obtaining attorney-client communications that are
not privileged?”
Hohn
,
Hohn is correct to the extent he argues that the Sixth Amendment right to
attorney-client confidentiality and the attorney-client privilege furnish separate
protections over the attorney-client relationship—one flowing from the
Constitution’s text and the other flowing from evidentiary principles that
*19
predate the Constitution.
See
U.S. Const. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.”); 1 McCormick on Evidence § 87 (8th ed. July 2022
update) (describing the attorney-client privilege’s beginnings in Roman law);
cf. Howell v. Trammell
,
We agree that Sixth Amendment attorney-client confidentiality is distinct from and broader than the attorney-client privilege. [14] See Weatherford , 429 U.S. at 554 (disagreeing that “the defendant assumes the risk” and relinquishes the right to “complain if [a] third party turns out to be an informer” any time the “defendant converses with his counsel in the presence of a third party thought to be a confederate and ally”). Because the Sixth Amendment is *20 broader, it is at least conсeivable that Hohn’s six-minute call from CoreCivic was constitutionally protected, even if nonprivileged. Under that heuristic, we assume without deciding that Sixth Amendment protections attached to Hohn’s attorney-client call from April 23, 2012. Meaning, we assume that Hohn has satisfied the first component of his Sixth Amendment claim: an intentional intrusion into the attorney-client relationship.
II. Prejudice
Even when the government intentionally intrudes into the defense camp,
the Sixth Amendment is not violated unless the intrusion prejudiced the
defendant during the criminal proceedings.
See Weatherford
,
But there are exceptions to this general rule. The prejudice component of
a Sixth Amendment violation is presumed when “the cost of litigating [its]
effect in a particular case is unjustified.” ;
accord Strickland
, 466 U.S. at
692. This type of violation amounts to structural error— an error so egregious it
“def[ies] analysis” under our typical harmless-error rubric.
United States v.
*21
Gonzalez-Lopez
,
In this appeal, we must decide whether intentional, unjustified intrusions
into the attorney-client relationship belong among the “limited class of cases”
that presumes prejudice under the Sixth Amendment or whether, like
ineffective- assistance-of-counsel claims, the defendant must show prejudice.
Johnson v. United States
,
The Supreme Court generally classifies an error as structural (1) “if the
right at issue is not designed to protect the defendant from erroneous conviction
but instead protects some other interest”; (2) “if the effects of the error are
simply too hard to measure”; and (3) “if the error always results in fundamental
unfairness.”
Weaver v. Massachusetts
,
[16]
Spaeth
differs from Hohn’s case in material ways. A jury convicted
Hohn, but Spaeth entered an unconditional guilty plea. So Spaeth was left to
pursue a § 2255 petition alleging
in
effective assistance of counsel—deficient
performance and prejudice—under
Strickland
. We rejected Hohn’s reliance on
the line of cases that instead applied “lack-of-effective- assistance” principles—
that is, mostly cases involving judicially placed impediments to counsel’s
effectiveness. We rejected Hohn’s doing so, characterizing his effort as one
trying to “shoehorn ” outside
Strickland
’s ineffective- assistance-of-
counsel realm.
Spaeth
,
defendant’s right to counsel of his choice,
Gonzalez-Lopez
,
Shillinger
established a structural-error rule for certain kinds of Sixth
Amendment intrusion claims. The court held that when the
government intentionally intrudes into the attorney-client relationship “absent a
countervailing state interest,” prejudice becomes “so likely” that it must be
presumed, and therefore the intrusion causes a structural error in the trial’s
framework.
A. Weatherford and its Progeny
Weatherford
was a 42 U.S.C. § 1983 case.
Later, Bursey brought a civil action under § 1983 against Weatherford,
claiming in part that Weatherford’s presence during pretrial defense- strategy
meetings infringed on Bursey’s Sixth Amendment right to effective assistance
of counsel.
Id.
Reviewing a judgment for the defendants on appeal, the Fourth
Circuit reversed in Bursey’s favor.
Id.
The Fourth Circuit held that a per se
Sixth Amendment violation occurs “whenever the prosecution knowingly
arranges and permits intrusion into the attorney-client relationship.”
Id.
(quoting
Bursey v. Weatherford
,
The Supreme Court disapproved of the Fourth Circuit’s strict approach,
which assumed a constitutional violation regardless of “the purpose of the
agent in attending the meeting,” regardless of “whether or not [the agent]
reported on the meeting to [the prosecution],” and regardless of “whether or not
any specific prejudice to the defendant’s preparation for or conduct of the trial
[wa]s demonstrated or otherwise threatened.”
Id.
The Court concluded that the
Fourth Circuit’s rule “cut[] much too broadly.” at 557;
see id.
at 558
(imagining various scenarios that would violate the Fourth Circuit’s per se rule
and yet cause no prejudice to Bursey, for example, if “the entire conversation
had consisted of [defense counsel’s] questions and Weatherford’s answers
*26
about Weatherford’s own defense plans”). And the Court rejected the Fourth
Circuit’s conclusion that the holdings in
Black v. United States
,
From Black and O’Brien —two cases involving the government’s illegal electronic surveillance of defendants’ conversations with counsel before trial— the Court extrapolated that the constitutionality of the government’s overhearing confidential attorney-client conversations “depends on whether the . . . conversations have produced, directly or indirectly, any of the evidence offered at trial.” Id. at 551–52. The Court noted that, even though the Black and O’Brien Courts both ordered new trials, neither Court did so because the government’s intrusion was per se prejudicial. See id. Rather, the Black Court determined that a new trial was appropriate based on the “particular facts” of the case, and the O’Brien Court merely cited the Black per curiam decision with no additional reasoning, giving Weatherford (and us) little to draw from. Contrasting these two cases with Weatherford , the Supreme Court criticized the Fourth Circuit’s rule for leveraging its precedents to render “trial prejudice . . . irrelevant.” Id. at 552.
The Court next addressed its decision in Hoffa , which the Court also said did not countenance the Fourth Circuit’s strict rule. Weatherford rejected that Hoffa supported per se Sixth Amendment intrusion rules because the Hoffa Court had merely “assumed without deciding” that the prosecution’s becoming privy to attorney- client communications in a separate case would have violated the Sixth Amendment. Id. at 553. But even so, the Court determined such violation would not have impacted Hoffa’s rights in a different criminal trial for jury tampering—the conviction under review. Id. Because Hoffa had merely assumed without deciding a Sixth Amendment violation for the particular (and unique) factual circumstances of that case, the Weatherford Court was unconvinced that Hoffa justified the Fourth Circuit’s sweeping conclusion that a per se Sixth Amendment violation occurs whenever the government intentionally intrudes into the attorney-client relationship. See id. at 554.
Next, the Weatherford Court posited that a Sixth Amendment violation might have occurred if Weatherford had testified to the conversations that took place during the pretrial meetings, if the state’s evidence had originated from Weatherford’s inside information, if the state had “used in any other way” the substance of the conversations against Bursey, or if the state had “learned from Weatherford” the trial- preparation details of the attorney-client conversаtions. Id. But even then, the Court continued, Bursey would have had only “a much stronger case” in proving a Sixth Amendment violation, so obviously not a guaranteed one. For even in the worst cases, where the informant *28 purposefully intrudes into confidential attorney-client conversations or where the informant relates those conversations to the prosecution, Weatherford still advises against assuming that the confidential information “has the potential for detriment to the defendant or benefit to the prosecutor’s case.” Id. at 557. So we should not presume that the information intercepted from an attorney -client conversation is prejudicial. See id. And if prejudice is not to be presumed, then it follows that it must be shown. Weatherford thus established a prejudice requirement for intrusion-based Sixth Amendment claims.
Other Supreme Court decisions reinforce Weatherford ’s prejudice requirement. In Morrison —another case decided pre- — the Supreme Court assumed without deciding that the two DEA agents visiting the defendant in jail and advising her to seek different defense counsel had intruded into her attorney-client relationship and so violated her Sixth Amendment rights. 449 U.S. at 364. Having assumed without deciding that a Sixth Amendment intrusion occurred, the Court proceeded to consider the Third Circuit’s remedy of dismissal with prejudice. See id. The remedy, the Court surmised, “should be tailored to the injury suffered from the constitutional violation.” Id.
But the defendant never alleged that the DEA agents’ interference
“prejudiced the quality or effectiveness of [her] legal representation,” “induced
her to plead guilty,” “resulted in the prosecution having a stronger case against
her,” or “had any other adverse impact on her legal position.” at 363. That
is, the defendant made no showing or even an allegation of prejudice.
Id.
at
*29
366. Without a showing or allegation of prejudice, the Court found there was
“no effect of a constitutional dimension” that “need[ed] to be purged” and
therefore “no justification for interfering with the criminal proceedings . . .
much less the [dismissal of the indictment] granted by the [circuit court]. ”
[17]
Id.
at 366–67. The Court considered that, once a “constitutional infringement [has
been] identified,” there must be some “threat[]” of an “adverse effect upon the
effectiveness of counsel’s representation” or “some other prejudice to the
defense” to have a remediable Sixth Amendment claim.
Id.
at 365. An
evidentiary hearing would give the defendant an opportunity to tease out the
effects of such a “threat,” to prove that the government’s interference had
indeed been prejudicial.
Id.
(explaining that a threat of prejudice may “impact
. . . the criminal proceeding” and create a “basis for imposing a remedy”). Yet
without threatened or demonstrable prejudice, the Court found no reason to
impose any remedy, including an evidentiary hearing. at 366. The
Morrison
Court was unequivocal that, even assuming the government has infringed a
defendant’s Sixth Amendment right to counsel, no relief should inure absent
some demonstration or threat of prejudice.
See id.
at 365. Even in
Cronic
, the
Court declared that the “Sixth Amendment guarantee is generally not
implicated” “[a]bsent some effect of the challenged conduct on the reliability
*30
of the trial process.”
Weatherford
and the decisions that followed formed the backdrop for
’s structural-error rule. And since
Shillinger
, the Supreme Court has
only entrenched its view that a “very limited class of cases” warrant structural
error.
Greer
,
B. Shillinger held that the government’s intentional,
1. unjustified intrusion into the attorney-client relationship is structural error.
In , this court fаced a habeas petition under § 2254 from
Wyoming state prisoner Steven Haworth—a man convicted of aggravated
assault and battery for wielding a pocketknife against another man outside a
bar.
Before his state trial, Haworth’s defense counsel arranged to bring Haworth into the courtroom on weekends to prepare for his testimony. Id. at 1134. Because Haworth was being detained pretrial, a deputy sheriff accompanied him and his defense counsel during these preparatory sessions. Somewhat unconventionally, the defense counsel invited the deputy sheriff into the defense camp by paying him overtime wages and instructing him to *32 “consider himself an employee of defense counsel,” with the understanding that nothing the deputy heard should leave the courtroom. [18] Id. The deputy sheriff acceded to this odd arrangement. Id. But as it turned out, the prosecutor got wind of it and questioned the deputy about what he heard and observed during the defense’s preparatory sessions: defense counsel advising Haworth to use attenuating terms during his testimony to describe his criminal conduct (i.e., to say that Haworth “cut” rather than “stabbed” the victim) and advising Haworth about courtroom deportment, such as sitting up straight during testimony and looking at the jury. Id. at 1134–35, 1137 .
During an in-chambers conference on Haworth’s motion to suppress
evidence of these preparatory sessions, it became evident that the prosecution
had become privy to the substance of the sessions.
Id.
at 1134–35. In another
in-chambers conference, the defense counsel emphasized his concern that the
prosecutor’s knowledge about the defense’s preparatory sessions violated the
attorney-client privilege and therefore that the court should disallow the
prosecution from using any of this information in cross-examining Haworth at
trial.
Id.
at 1135. The court agreed with the defense counsel’s concerns, but
nevertheless gave the prosecution some room to cross-examine Haworth using
information that it had gathered from the preparatory sessions. Haworth was
*33
convicted.
Id.
at 1136. On direct appeal, the Wyoming Supreme Court upheld
Haworth’s conviction because the court determined that his right to effective
assistance of counsel had not been violated by the prosecutor’s conduct.
Haworth v. State
,
Haworth then proceeded to federal court, filing a petition for habeas
relief under 28 U.S.C. § 2254.
Haworth v. Shillinger
,
But in affirming Haworth’s § 2254 petition, this court went beyond the
district court’s ruling, which concluded that the prosecution’s conduct violated
the Sixth Amendment because the prosecutor had intentionally acquired
information about the defense’s strategy and then “
used
the information that it
learned at trial” against Haworth.
Haworth
,
[W]hen the state becomes privy to confidential communications because of its purposeful intrusion into the attorney-client relationship and lacks a legitimate justification for doing so, a prejudicial effect on the reliability of the trial process must be presumed.
overheard conversations and other information were used in any way to the substantial detriment of the petitioner.” at 965.
At least two other circuits have applied these
Weatherford
“factors” in
determining whether a criminal defendant “has shown the prejudice necessary
to make out a sixth amendment violation.”
United States v. Kelly
,
2. misinterpreted binding Supreme Court law.
We disagree with Shillinger ’s interpretation of Weatherford and its prejudice requirement, along with Shillinger ’s misapplication of other Supreme Court precedents that preclude the type of per se rule Shillinger announced.
Shillinger
began its Sixth Amendment analysis with
Weatherford
, as the
seminal case governing intrusions into the attorney-client relationship, but then
proceeded to veer away from
Weatherford
’s “prejudice requirement. ”
Shillinger
,
Moreover, this is not a situation where the State’s purpose was to learn what it could about the defendant’s defense plans and the informant was instructed to intrude on the lawyer- client relationship or where the informant has assumed for him that task and acted accordingly . . . .
. . . .
We may disapprove an investigatory practice only if it violates the Constitution; and judged in this light, the Court of Appeals’ per se rule cuts much too broadly . . . . [U]nless Weatherford communicated the substance of the . . . conversations and thereby created at least a realistic possibility of injury to Bursey or benefit to the State, there can be no Sixth Amendment violation . . . .
There being no tainted evidence in this case, no communication of
defense strategy to the prosecution, and no purposeful intrusion by
Weatherford, there was no violation of the Sixth Amendment . . . .
Id.
(quoting
Weatherford
,
The
Shillinger
court misconstrued this language as grounds to distinguish
Weatherford
and to circumvent
Weatherford
’s holding that denounced per se
Sixth Amendment rules against government intrusions. First, plucked
the above-quoted passage from
Weatherford
out of context. In that section of
the
Weatherford
opinion, the Supreme Court was elaborating on additional
reasons the Fourth Circuit’s rule was too extreme and why Weatherford’s
undercover work didn’t contravene the Sixth Amendment.
See
The Court in Weatherford suggested that Bursey might have presented a valid Sixth Amendment claim with proof that Bursey had been “an informer for the government who ha[d] reported on the conversations to the prosecution and who testifie[d] about them at the defendant’s trial.” The Court further clarified that “Bursey would have a much stronger case” for a Sixth Amendment violation (which we read to say that even then his case might not *37 have been strong enough) had “Weatherford testified at Bursey’s trial as to the conversation between Bursey and [his counsel]; had any of the State’s evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford, an undercover agent, the details of the [attorney-client] conversations about trial preparations. . . .” Id. at 554 (emphasis added).
As seen, the thrust of the Court’s analysis focused on whether Bursey could show substantial detriment from the use of the confidential information at trial. See id. And because the information hadn’t been used, the Court deduced that there had been no potential for substantial detriment to Bursey and therefore no prejudice. See id. at 558 (“[U]nless Weatherford communicated the substance of the [attorney-client] conversations and thereby created at least a realistic possibility of injury to Bursey or benefit to the State, there can be no Sixth Amendment violation.”). The Court ruled that Bursey’s § 1983 claim failed for lack of a Sixth Amendment violation, because Bursey had failed to show “tainted evidence,” any “communication of defense strategy to the prosecution,” and “purposeful intrusion by Weatherford.”
Second,
Shillinger
misunderstood
Weatherford
’s prejudice requirement
as being conditioned on two facts that were part of that case: an unintentional
intrusion by an informant that was justified by “the requirements of ‘effective
law enforcement.’” ,
Third,
Shillinger
’s conclusion that
Weatherford
might allow a structural-
error rule for certain types of governmental intrusions contradicts
Weatherford
’s general repudiation of per se rules to protect attorney-client
confidentiality. The Suprеme Court rejected the Fourth Circuit’s per se rule
because the court had “deemed” “trial prejudice . . . irrelevant.”
Id.
at 553. The
references to “prejudice” and “detriment” to the defendant peppered throughout
the
Weatherford
opinion impress upon us that a Sixth Amendment claim cannot
be “made out” without prejudice. at 556;
see id.
at 550, 552, 556–57, 561.
Despite these repeated references,
Shillinger
deduced that a structural-error
rule is needed to vindicate a defendant’s Sixth Amendment rights when the
government intrudes intentionally and unjustifiably into the attorney-client
relationship.
affected by the government’s intrusion during trial. So for all these reasons, Shillinger ’s interpretation of Weatherford misses the mark.
Shillinger
also misconstrues
Morrison
. The issue in
Morrison
was
whether dismissal of the defendant’s indictment was an appropriate remedy for
the government’s intentional, unjustified intrusion into her relationship with
her attorney, despite the fact that she “ha[d] demonstrated no prejudice” from
the intrusion “of any kind.”
Shillinger
surmised from this analysis that
Morrison
“declined to reach
the issue” of whether “there could be [a] Sixth Amendment violation absent
proof that the intrusion prejudiced the defendant.”
Shillinger
,
Further, Morrison (like Shillinger ) dealt with an intentional and unjustified intrusion into the defense camp, and yet the Court didn’t presume the defendant’s entitlement to any remedy. [22] See id. (stating that a deliberate intrusion did not justify dismissal of the indictment). The Court explained that a remedy “should be tailored to the injury suffered.” Id. at 364. By directing us to calibrate the appropriate remedy from a defendant’s injury, Morrison presupposes that by the remedies stage some demonstration of prejudice has already occurred. See id. at 365 (presuming under the remedy analysis that “the constitutional infringement identified . . . had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced some other prejudice to the defense”). Because without “some . . . prejudice,” the Court said, “there is no basis for imposing a remedy.” Id. In so stating, Morrison clarifies that the injury sustained from a Sixth Amendment attorney-client- confidentiality violation is not the government’s intrusion itself. See id. The injury is the “adverse effect” on defense counsel’s “ability . . . to provide adequate representation in the[] criminal proceedings” because this injury jeopardizes the fairness of the defendant’s trial, and so it “needs to be purged to *44 make certain that [the defendant] has . . . not [been] unfairly convicted.” Id. at 365–66.
Shillinger
wrongly interpreted
Morrison
as further proof that
“
Weatherford
—and the prejudice requirement articulated in that case—does not
necessarily govern intentional intrusions by the prosecution that lack a
legitimate purpose.”
Shillinger
, 70 F.3d at 1140. We disagree that
Morrison
supports that reading of
Weatherford
. Rather,
Morrison
bolsters
Weatherford
’s
prejudice requirement by reiterating that a “constitutional infringement” under
the Sixth Amendment requires “some adverse effect” to the defendant, whether
it be to the effectiveness of counsel or “some other” “impact on the criminal
proceeding.”
Morrison
,
Shillinger
also fails to grapple with
Cronic
’s limited categories for
recognizing structural error in Sixth Amendment right-to-counsel claims.
See
Cronic
,
Finally,
Shillinger
cites several other Supreme Court cases that recognize
the government’s interference into the attorney-client relationship as per se
prejudicial, intimating that
Shillinger
’s structural- error rule is simply the latest
addition to a well-established body of law.
What disregards is that almost all the cases it relies on address
instances of judicial interference with either the defendant’s or the attorney’s
*46
fundamental ability to conduct a full-throated defense at trial.
[24]
Because the
judicial interference in those cases jeopardized the integrity and fairness of the
trial itself, the prejudicial impact was tangible.
See Ferguson
,
The impact on fundamental fairness from a
Shillinger
-type intrusion is
more inchoate.
Shillinger
doesn’t explain how the government’s obtaining
confidential communications would so obviously prejudice a defendant absent
any proof that the overheard information was actually used against the
defendant at trial.
Shillinger
baldly concludes that the “sort of purposeful
intrusion,”
In sum, Supreme Court precedents predating
Shillinger
establish that the
right to communicate confidentially with an attorney is not one that exists “for
its own sake,”
Cronic
,
3. None of Hohn’s other arguments convince us to uphold Shillinger ’s structural- error rule.
Hohn makes several arguments in defense of
Shillinger
’s structural-error
rule. First, Hohn contends
Shillinger
correctly held that purposeful, unjustified
intrusions into the attorney-client relationship are “never harmless because they
necessarily render a trial fundamentally unfair.”
Second, Hohn argues that
Shillinger
’s structural-error rule is sound
because the narrow class of intrusions to which the rule applies make prejudice
“so likely” that evaluating prejudice for each individual defendant is not “worth
the cost.” Suppl. Br. at 19 (quoting
Shillinger
,
We also disagree that a defendant need not show prejudice or that
prejudice becomes immeasurable when attorney-client communications contain
trial strategy.
See Hari
,
Third, Hohn asserts that ’s structural- error rule falls within one
of the Supreme Court’s designated structural- error rationales— “if the right at
issue is not designed to protect the defendant from erroneous conviction but
instead protects some
other interest
.”
McCoy
,
The right to communicate confidentially with an attorney originates from
the Sixth Amendment’s promise of effective assistance of counsel.
See
Weatherford
,
Fourth, Hohn suggests that the Supreme Court’s earlier precedents
addressing Sixth Amendment attorney-client confidentiality—
Black
,
O’Brien
,
Weatherford
, and
Hoffa
—“impl[y]” that the government’s purposefully
obtaining and becoming privy to confidential attorney- client communications
without law-enforcement justification constitutes structural error. Suppl. Br. at
22. But the
Weatherford
Court’s interpretation of
Black
,
O’Brien
, and
Hoffa
defeats this argument.
See
Discussion II.A,
supra
.
Weatherford
clarified that
Black
,
O’Brien
, and
Hoffa
do not condone per se Sixth Amendment intrusion
rules but rather emphasized that those cases support the defendant’s need to
tether governmental intrusion to a realistic possibility of injury from the
use
of
confidential communications at trial.
See id.
Other circuits have faced
arguments identical to Hohn’s and accordingly rejected them under
Weatherford
.
See, e.g.
,
Kelly
,
Fifth and finally, Hohn presses that, because
Shillinger
’s holding is
appropriately narrowed to “only the most egregious . . . prosecutorial
intrusions,” its structural- error rule is justified. Suppl. Br. at 23. But
Morrison
also dealt with facts alleging the “most egregious” behavior—an intentional,
unjustified governmental intrusion—and yet the Supreme Court still tied the
defendant’s remedy to the injury she suffered.
C. Federal Circuit Caselaw
1. A majority of circuits either support or are consistent with our view that constitutional claims like Hohn’s require the defendant to show prejudice.
A majority of the circuit courts support our revised view that Sixth
Amendment claims concerning purposeful, unjustified intrusions into the
attorney-client relationship require the defendant to show prejudice and that
such prejudice acсrues “only if the intercepted communications are somehow
used
against the defendant . . . in connection with the underlying proceeding.”
ACLU Found. of S. Cal. v. Barr
,
Hohn attempts to distinguish some of this caselaw by alleging that these cases do not invoke the same “discrete, trial-specific harm” as the one in Shillinger . Suppl. Reply Br. at 6. But this approach assumes that the prejudice component of a Sixth Amendment claim depends on the nature of the inciting intrusion, a theory we already refuted. See Discussion II.B.2, supra . Regardless, w e view these cases as (at best) supportive and (at worst) consistent with our decision to reverse Shillinger ’s structural-error rule.
To start, Hohn asserts that the Fourth and Seventh Circuit cases do not
undermine because those cases were missing “the
Shillinger
requirement that the prosecutor become privy to strategic communications.”
Suppl. Reply Br. at 6. Hohn’s assessment is incomplete. In the Fourth Circuit
case,
United States v. Allen
, the court rejected the defendant’s Sixth
Amendment claim based on the district court’s allowing the government to
view a document related to the defense’s cross-examination, in part because the
court took care to screen off the appropriate AUSA, but also because the
defendant “d[id] not allege any prejudice” “nor [was] prejudice clear from the
record.”
So too with the Seventh Circuit case,
United States v. Castor
, in which
the court denied the Sixth Amendment claim because the defendant “admit[ted]
he cannot show prejudice,” and “[w]ithout any proof of . . . actual prejudice,
the defendant cannot assert that . . . the case violates his constitutional right to
counsel.”
Similarly, in attacking the Sixth, Eighth, and Ninth Circuit cases, Hohn emphasizes that all of them lack two “ requirement[s]”: the prosecutor’s becoming privy to privileged communications and an intentional intrusion from the government. Suppl. Reply Br. at 6. But once again, Hohn ignores that these factual differences regarding the nature of the government’s *61 intrusion (the first component of a Sixth Amendment claim) existed separately from the circuit courts’ analysis of prejudice (the second component of a Sixth Amendment claim) as it applies generally.
True, in
United States v. Steele
, the Sixth Circuit dealt with an
unintentional-government-intrusion claim, but in establishing the standard for
Sixth Amendment right-to-counsel violations the court remarked broadly that
“
[e]ven where there is an intentional intrusion
by the government . . . prejudice
to the defendant must be shown.”
In
Ginsberg
, the Second Circuit reviewed the district court’s decision to
deny the defendant’s motion for an evidentiary hearing based on his claim that
the government intruded into the defense camp by allowing one of its
cooperating witnesses to “‘mingle’ with the other defendants prior to trial,” “to
sit at the defense table during pre- trial court conferences,” and to “eat lunch
with the defendants,” all before the defendant knew that this person would be
called as the prosecution’s witness.
All of these examples focus on the use of the overheard communications
against the defendant at trial. For this reason, Hohn’s distinguishing
Ginsberg
because the case involved an “unintentional” and “justified” intrusion is
unavailing. Suppl. Reply Br. at 6. Yes, the intrusion in
Ginsberg
was justified
to protect the witness’s safety, but that difference had no effect on the court’s
ultimate reasoning that the Sixth Amendment prejudice inquiry requires the
defendant to show privileged communications were used “to [his] substantial
detriment.”
Likewise, Hohn writes off the Eleventh Circuit case,
United States v.
Esformes
, as one that dealt solely with determining the remedy for a
governmental intrusion, not the structural-error question. But
Esformes
did
touch on structural error when the Eleventh Circuit rejected the defendant’s
argument that the court “should
presume
prejudice” under the Ninth Circuit’s
burden- shifting approach.
For his part, Hohn contends that D.C. Circuit caselaw favors his position
because the D.C. Circuit recognized a “‘facially adequate’ Sixth Amendment
claim when the prosecution intentionally intruded and became privy to strategic
defense information.” Suppl. Reply Br. at 6 (quoting
Kelly
,
At best,
Kelly
exemplifies when a minimal showing of prejudice might
entitle the defendant to an evidentiary hearing on the prejudice inquiry.
See,
e.g.
,
id.
at 137 (“While we cannot specify with certainty the quantum of
prejudice Kelly must establish under
Weatherford
. . . , we are confident that he
has made enough of a factual showing to merit further evidentiary
development.”);
Ginsberg
,
The only circuit authority in concert with Hohn’s argument and
Shillinger
’s structural-error rule is
United States v. Levy
,
But the Third Circuit has since rolled back
Levy
’s interpretation of
Weatherford
in light of the Supreme Court’s later decision in
Morrison
—issued
three years after
Levy
.
See United States v. Mitan
,
Contrary to Hohn’s assertions, most of the federal circuit caselaw that discusses Sixth Amendment intrusion claims bolsters our conclusion that, regardless of the circumstances underlying the government’s intrusion— intentional or unintentional, justified or unjustified, communicated or uncommunicated—the defendant cannot escape the second component of a Sixth Amendment intrusion violation: prejudice.
2. We disagree with the minority of circuits that construe prejudice as a rebuttable presumption in the defendant’s favor.
The First and Ninth Circuits agree that
Weatherford
holds “mere
government intrusion into the attorney-client relationship . . . is not itself
violative of the Sixth Amendment right to counsel,” unless “the intrusion
substantially prejudices the defendant.”
United States v. Irwin
,
The First and Ninth Circuits hold that prejudice should be assessed under
a rebuttable presumption in the defendant’s favor, thus putting the onus on the
*70
government to disprove any prejudicial effect from its actions.
See
Mastroianni
,
We decline to join this school because we find the rebuttable-
presumption framework incompatible with binding Supreme Court precedent. In
Weatherford
, the Supreme Court openly envisioned Bursey as the one who
would bear the burden of showing prejudice when it stated that, even if
Weatherford had communicated what he learned from the pretrial meetings to
the prosecution, “
Bursey
would have a much stronger case,”
CONCLUSION
Hohn’s appeal puts Shillinger squarely under the microscope and, upon closer examination, we cannot help but see its flaws. A more exacting review throws Shillinger ’s misreading of Supreme Court precedents into stark relief. And given that Hohn’s claim rests entirely on the presumption of prejudice permitted by Shillinger ’s structural-error rule, we cannot faithfully resolve his appeal without considering whether still stands on solid footing. We believe it does not, and so we hold that a Sixth Amendment violation of the right to confidential communication with an attorney requires the defendant to show prejudice.
We affirm the district court’s denial of Hohn’s § 2255 petition on that alternate ground.
No. 22-3009, United States of America v. Steven M. Hohn BACHARACH , joined by McHUGH and ROSSMAN , Circuit Judges, dissenting only as to Part II(C)(2).
This case grew out of a prosecutor’s intentional and unjustified
intrusion into attorney- client communications about legal strategy. We
earlier held that this kind of intrusion creates a conclusive presumption of
prejudice.
Shillinger v. Haworth
,
The First and Ninth Circuits have zeroed in on these unique factors, creating a rebuttable presumption of prejudice when the defendant proves an intentional, unjustified intrusion by the prosecution into attorney-client communications аbout legal strategy. United States v. Mastroianni , 749 F.2d 900, 907– 08 (1st Cir. 1984); United States v. Danielson , 325 F.3d 1054, 1073– 74 (9th Cir. 2003), as amended (May 19, 2003). This approach enhances fairness because the prosecution’s misconduct typically yields superior access to information about potential prejudice.
1. The defendant should bear the threshold burden to show a prima
facie case.
The defendant should bear the burden to show an intentional, unjustified intrusion into attorney-client communications about legal strategy.
We have applied the Sixth Amendment to protect the defendant from
“a prosecutor’s intentional intrusion into the attorney-client
relationship . . . absent a countervailing state interest.”
Shillinger v.
Haworth
,
Like these circuits, we should recognize the defendant’s threshold burden to show a prima facie case. See Maj. Op. at 14–15. That showing requires the defendant to prove two elements:
1. The prosecution’s intrusion was intentional and unjustified. 2. This intrusion resulted in the prosecution’s interception of attorney-client communications about the defendant’s legal strategy.
Mr. Hohn made that showing. The district court concluded that the prosecution had intentionally intruded into the attorney-client relationship by listening to Mr. Hohn’s phone call with his attorney. No issue of justification existed , for the government didn’t argue that the prosecution had a legitimate reason to listen to the call. And the attorney-client communication itself had related to legal strategy, including
• Mr. Hohn’s desire to proceed to trial, • his criminal history, • the evidence he expected to face,
• the flaws in the evidence, and
• how he and his attorney would meet and discuss the case moving forward. [1]
*76 Maj. Op. at 7–8. So Mr. Hohn satisfied his prima facie burden to show the prosecution’s intentional, unjustified interception of attorney-client communications about legal strategy.
2. The burden should shift to the prosecution .
Given Mr. Hohn’s showing, the prosecution should bear the burden of negating the potential prejudice.
“The burden- shifting principle is not new or novel, ”
Keyes v. Sch.
Dist. No. 1, Denver
,
1. The prosecution typically knows whether and how the communications affected the trial, while the defendant can only speculate.
2. It’s fair to place the burden on the prosecution when it acted wrongfully by intruding into attorney-client communications. a. The burden may shift based on access to information and
principles of fairness.
The Sixth Amendment is violated only when the intrusion is
prejudicial. Maj. Op. at 2 0. A violation is prejudicial only when it creates
“a ‘realistic possibility of injury’ to [the] defendants or ‘benefit to the
*77
State.’”
United States v. Mastroianni
,
The question is who should bear the burden of proving that
possibility. We have flexibility in answering because “[t]here are no hard-
and-fast standards governing the allocation of the burden of proof in every
situation.”
Keyes v. Sch. Dist. No. 1, Denver
,
• relative access to “peculiar means of knowledge,” Alaska Dep’t of Env’t Conservation ,540 U.S. at 494 n.17 (internal quotation marks omitted), and
• “question[s] of policy and fairness,” Keyes ,413 U.S. at 209 (internal quotation marks omitted).
We consider these factors against the backdrop of our own “experience.”
Denning Warehouse Co. v. Widener
,
b. The prosecution is typically the only party that knows whether
and how the communications affected the trial.
The information is generally asymmetrical because the prosecution
typically knows what it decided, when it made the decision, and why it
made that decision. Unlike the prosecution, “[t]he defendant can only
guess.”
United States v. Danielson
,
Similar circumstances exist in cases of securities fraud, where
shareholders are not privy to the same information as corporate insiders.
So when a publicly traded corporation makes material misstatements, the
*79
Supreme Court presumes prejudice to shareholders.
Goldman Sachs Grp.,
Inc. v. Ark. Tchr. Ret. Sys.
,
The Supreme Court explained that this allocation of the burden
makes sense because we can’t ordinarily expect a shareholder to have proof
of prejudice.
Id.
at 245. The same problem exists for someone like
Mr. Hohn, whose attorney-client communications have been intercepted
without any way to know how the prosecution may have used the
information.
See, e.g.
,
United States v. Danielson
,
The informational advantage is magnified when the prosecution learns about the legal strategy of a criminal defendant. For example, consider how the defendant could show prejudice when the prosecution improperly intercepts attorney-client communications about whether to call the defendant as a witness. The intrusion could prejudice the defendant in plea bargaining, jury selection, or the prosecution’s case-in-chief. But how *80 could the defendant know if the prosecution had used the information for these purposes? The defendant has no way of knowing.
The majority says that Mr. Hohn “stipulated” that the prosecution hadn’t used the intercepted information. Maj. Op. at 11, 67 . The majority is mistaken: Mr. Hohn never stipulated or admitted that the prosecution hadn’t used the intercepted information. [2] The only pertinent stipulation was this: “Mr. Hohn does not assert that he can prove that he suffered any actual–as opposed to presumptive–prejudice due to the prosecution’s becoming privy to the one attorney-client call listed in his privilege log.” Supp. R. vol. 2 , at 143. There Mr. Hohn admitted only that he couldn’t prove prejudice.
Mr. Hohn presumably couldn’t prove prejudice because the pipeline for intercepted information about legal strategy had flowed only one way: The prosecution knew Mr. Hohn’s legal strategy, including what he believed would be the incriminating evidence and how to attack that *81 evidence. Maj. Op. at 7–8. But Mr. Hohn had no way of knowing whether the prosecution had previously
• planned to use that evidence or • known how Mr. Hohn was going to attack that evidence. The one-way pipeline for information made it virtually impossible for Mr. Hohn to know whether the prosecution had used the improperly intercepted information.
We use a burden-shifting test in many similar situations.
See, e.g.
,
Int’l Bhd. of Teamsters v. United States
,
For example, consider cases involving employment discrimination
through disparate impact or disparate treatment . In these cases, the
plaintiff must make a prima facie showing that creates an inference of
employment discrimination. The burden then shifts to the defendant to
show a business necessity or a legitimate, nondiscriminatory reason for the
employment decision.
See Thomas v. Metroflight, Inc.
,
We also shift the burden in criminal cases. For example, the burden
shifts to the prosecution when a defendant alleges a racial motivation for
peremptory challenges.
Batson v. Kentucky
,
A shift in the burden is equally sensible here. Our inquiry turns on the existence of prejudice, and the prosecution is typically the only party that could possibly know whether it made decisions based on the intercepted information.
c. It’s fair to place the burden on the prosecution when the
asymmetry of information resulted from prosecutorial misconduct.
When the asymmetry of information results from prosecutorial misconduct, a shift in the burden is particularly appropriate. Here we are addressing allocation of the burden only when the prosecution’s intrusion is intentional and unjustified. So the issue arises only when the prosecution
• created the problem ,
• could have prevented the problem, and
• could have redressed the problem earlier.
See United States v. Danielson
,
Our facts illustrate the fairness of putting the burden on the prosecution. The district court learned that the prosecution had “harbored multiple copies of [the] recorded calls” and ordered their disclosure. R. vol. 2, at 1757. But the prosecution refused to comply. at 1756. Given this refusal, the district court explained not only how the prosecution had possessed and listened to Mr. Hohn’s attorney-client call, but also how the prosecution had taken “steps to conceal that tactical advantage,” “minimiz[ing], deflect[ ing] and obfuscat[ing the *84 prosecution’s] role.” Id. at 1776– 77; see id. at 1777– 79. The district court thus disbelieved the prosecution’s contrary testimony. Id. at 1777– 79.
The prosecution’s misconduct “raise[s] a substantial and serious
question about the fundamental fairness of the process.”
Bank of Nova
Scotia v. United States
,
3. The competing interests are properly balanced through a shift in
the burden.
Allocation of the burden should “best account[] for the competing
interests at stake.”
Shillinger v. Haworth
,
On one hand, a Sixth Amendment violation is not complete until
there is prejudice. Maj. Op. at 20;
see Weatherford v. Bursey
, 429 U.S.
545, 558 (1977). On the other hand, the prosecution’s intrusion into the
*85
defendant’s attorney-client relationship and communications about legal
strategy “threaten[] to subvert the adversary system of criminal justice.”
Id.
at 556;
see United States v. Levy
,
We can properly balance these interests through a rebuttable presumption of prejudice. To see this balance, consider what happens when the prosecution intercepts a defendant’s phone call with attorneys about their plans to impeach a government witness. Interception of the call might or might not prejudice the defendant. For example, if the prosecution had already decided not to call the witness, the interception might not be prejudicial. But other times, the interception might be prejudicial. For example, knowledge of the defense strategy might lead the prosecution to elicit testimony about impeachment material to soften the sting of later cross-examination. Or a brief call might disclose information about the attorneys’ tone or approach. In each circumstance, however, the prosecution is the only party that knows whether it used the improperly intercepted information against an unknowing defendant.
Other courts have taken various approaches. On one end of the
spectrum, the Third Circuit has held that the defendant’s prima facie case
triggers a conclusive presumption of prejudice.
United States v. Levy
, 577
F.2d 200, 210 (3d Cir. 1978). On the other end, the Fifth Circuit has
suggested that the defendant must show prejudice stemming from the
intrusion.
United States v. Melvin
,
Mastroianni
,
unjustified interception of the defendant’s discussion with counsel about legal strategy.
The Sixth Amendment may be implicated in other circumstances, including when the intrusions don’t uncover legal strategy or involve intentional eavesdropping of communications between defendants and their attorneys. For example, the majority points to cases in other circuits involving
• no showing of intentional eavesdropping,
United States v.
Collins
,
1. The government is the party seeking a departure from the statu s quo because a deliberate, unjustified intrusion is a constitutional violation. Neary-West, supra , at 1161– 62. 2. “Violation of procedural safeguards specifically designed to protect against trial prejudice renders the claim of no prejudice more unusual than a claim of prejudice.” Id. at 1162.
3. Only the government has “knowledge of the relеvant facts.” Id. at 1163.
4. Without access to the relevant facts, the defendant can’t
typically prove prejudice, facilitating—rather than deterring—
prosecutorial intrusions into the Sixth Amendment.
I d.
at 1164.
5. Placing the burden on the government best balances the
defendant’s constitutional right with society’s interest in the
effective administration of criminal justice. at 1164 –67.
*88
intrusion,
United States v. Steele
,
• intercepted conversations that had been suppressed before trial, United States v. Esformes ,60 F.4th 621 , 629, 633 (11th Cir. 2023);
• accidental receipt of attorney-client information, which hadn’t been seen by the prosecution, United States v. Hari , 67 F.4th 903, 911– 13 (8th Cir. 2023); and
• court-ordered disclosure of the defense attorney’s cross- examination plans, with a stipulation that the plans not be shared with the cross- examining prosecutor, United States v. Allen ,491 F.3d 178 , 192 (4th Cir. 2007).
These intrusions don’t involve intentional, unjustified eavesdropping into legal strategy. [4] As a result, these intrusions don’t involve the government’s ability to benefit from its wrongdoing or an asymmetry of information. So these intrusions might not require a court to put the burden of persuasion on the government. But here, allocation of the burden is justified by an asymmetry of information resulting from prosecutorial misconduct.
For example, the majority points out that the Seventh Circuit has
stated that the defendant must “show prejudice.” Maj. Op. at 60 (quoting
United States v. Castor
,
We need not explore allocation of the burden in that case or the others discussed in the majority opinion. None involve allocation of the burden for an intentional, unjustified intrusion into communications between a defendant and counsel about legal strategy. And it’s this unique context that triggers the need to shift the burden because of the prosecution’s superior access to information acquired through improper conduct. See Part 1, above.
In this context, the only circuits to address the allocation of the
burden are the First and Ninth Circuits. Both adopt a rebuttable
presumption of prejudice.
United States v. Mastroianni
,
5. Recognition of a rebuttable presumption wouldn’t violate United
States v. Morrison or Weatherford v. Bursey .
The Supreme Court hasn’t said anything inconsistent with a rebuttable presumption.
a. United States v. Morrison didn’t involve interception of legal
strategy or eavesdropping on attorney-client communications.
The majority says that the Supreme Court’s opinion in
United States
v. Morrison
,
In
Morrison
, a criminal defendant hired counsel to defend against an
indictment for heroin distribution.
• disparaged defense counsel,
• suggested that the defendant seek representation by the public defender, and
• discussed the benefits and drawbacks of cooperation. Id. The defendant declined and notified her attorney. Id. “[A]t no time did [she] agree to cooperate with them, incriminate herself, or supply any information pertinent to her case.” Id. at 362– 63.
Morrison didn’t involve an intrusion into attorney-client communications or an asymmetry of information from prosecutorial misconduct. To the contrary, the defendant knew what the federal agents had said and how the conversations would affect her decision -making. So she was on equal footing with the government in the ability to prove prejudice.
The majority points out that Morrison put the burden on the defendant. Maj. Op. at 71. But Morrison didn’t address allocation of the burden when the Sixth Amendment violation comes from prosecutorial misconduct or asymmetry of information bearing on prejudice.
b. Weatherford v. Bursey didn’t discuss the burden of proof for Sixth
Amendment violations.
The majority also says that the Supreme Court’s opinion in
Weatherford v. Bursey
,
In
Weatherford
, the defendant communicated with his attorney in the
presence of a codefendant.
This assumption is questionable, for the term
case
typically means
“[a] civil or criminal proceeding, action, suit, or controversy at law or in
equity”—not a burden to prove prejudice or any other element.
Case
,
*93
B LACK ’ S L AW D ICTIONARY (12th ed. 2024). Suppose, for example, that a
court said that a civil plaintiff would have a stronger
case
if it weren’t
barred by the statute of limitations. Would you think that the court
regarded the statute of limitations as part of the plaintiff’s burden rather
than an affirmative defense?
See
Fed. R. Civ. P. 8(c)(1) (treating the
statute of limitations as an affirmative defense). Even if you would,
Weatherford
contained no suggestion— in either the briefing or the opinion
itself— that allocation of the burden was at issue. And the Supreme Court
doesn’t typically hide important legal propositions in mousehole s—like
word choices in opinions involving different issues.
See In re Permian
Basin Area Rate Cases
,
Nor has the Supreme Court ever addressed allocation of the burden
on prejudice when the prosecution intentionally and unjustifiably intrudes
into attorney- client communications about legal strategy. Only two circuits
have addressed the issue, and both have adopted a presumption of
prejudice that gives the government an opportunity for rebuttal.
United
States v. Mastroianni
,
6. The government should be required to show that the intercepted
legal strategy didn’t prejudice the defendant.
What should the government’s rebuttal entail? To answer, we can
draw guidance from the Supreme Court’s treatment of the burden when a
defendant claims that the prosecution compelled testimony in violation of
the Fifth Amendment. In these cases, the U.S. Supreme Court shifts the
burden to the government.
Kastigar v. United States
,
But what if the government then indicts the witness on charges related to the compelled testimony? How do we assess whether the government had improperly based the indictment on the compelled testimony? After all, the witness would lack any way of showing compulsion of the testimony.
The Supreme Court has resolved this dilemma by shifting the burden
to the government.
Id.
at 460– 61. Through this allocation of the burden,
witnesses must demonstrate that they testified under a grant of immunity
on matters related to the prosecution.
Id.
That demonstration shifts the
burden to the government to show an independent, legitimate source for the
evidence. That showing must do more than negate the taint; the
*95
government must prove that its evidence “derived from a legitimate source
wholly independent of the compelled testimony.”
Id.
at 460;
see United
States v. Lacey
,
A similar approach is appropriate here, for the prosecution • created the problem through misconduct and • thereby gained superior access to the relevant information bearing on prejudice.
If the prosecution could discharge its burden just by presenting some evidence, the defendant would generally have no way to show an effect on the trial. The presumption is meaningful only if the prosecution bears the ultimate burden to disprove prejudice from the intrusion into intercepted communications about legal strategy.
Application of this burden “will vary from case to case.”
United
States v. Danielson
,
of prejudice here. In district court, the parties were bound by our precedent recognizing a conclusive presumption of prejudice. See Shillinger v. Haworth , 70 F.3d 1132, 1142 (10th Cir. 1995). But the majority abrogates that precedent. In the absence of a conclusive presumption, we must decide whether to foist *97 an impossible burden on the defendant when the prosecution wrongfully gains a monopoly of the pertinent information on prejudice.
I wouldn’t do that. Instead, I think we should shift the burden to the
government because Mr. Hohn has demonstrated an intentional, unjustified
intrusion into attorney- client communications about legal strategy.
[7]
The
burden should then shift to the government for rebuttal of that
[7]
The majority notes that Mr. Hohn urged us to continue applying a
conclusive presumption rather than to make the presumption rebuttable.
Maj. Op. at 72. The majority addresses allocation of the burden anyway,
presumably because the issue arises from the parties’ disagreement on who
must prove prejudice.
Id.
at 69–71. And “when an issue or claim is
properly before the court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the independent power
to identify and apply the proper construction of governing law.”
U.S. Nat’l
Bank of Or. v. Indep. Ins. Agents of Am., Inc.
,
United States v. Cortez-Nieto
,
presumption. Until now, however, the government hasn’t had a chance to make that showing. A remand to district court is thus appropriate.
United States v. Hohn , No. 22-3009
ROSSMAN , joined by BACHARACH , Circuit Judges, dissenting.
For nearly three decades, it has been the law of this circuit that when
the prosecution unjustifiably and intentionally becomes privy to confidential
attorney-client communications, the Sixth Amendment is violated, and this
rarely occurring constitutional error is so fundamental and pervasive that we
will deem it prejudicial in every case.
Shillinger
v.
Haworth
,
First , I address some of the unusual aspects of this appeal. Second , I discuss why Shillinger was correctly decided and why we should have reaffirmed its conclusive presumption of prejudice. Third , I explain why the majority’s new rule is unworkable. Fourth , I reach the confidential- communications issue presented by the parties, conclude Shillinger did not *100 include a privilege element, and hold Sixth Amendment protections attached to Mr. Hohn’s confidential attorney-client call.
Mr. Hohn’s § 2255 motion should have been granted because a Sixth Amendment violation occurred when the prosecution purposefully and without justification became privy to his confidential legal communications with defense counsel. I would reverse the district court’s contrary conclusion and remand for a determination of the appropriate remedy. Because the majority decides otherwise, I respectfully dissent.
I
We must acknowledge at the outset this appeal is unusual. First, it stems
from unprecedented transgressions by federal prosecutors into the defense
function. “There is no template for this case,” the district court observed,
“where the fairness of the adversary system is called into question by systemic
prosecutorial misconduct of the type alleged here.”
United States
v.
Carter
, 429
F. Supp. 3d 788, 903 (D. Kan. 2019),
order vacated in part
, No. 16-20032-02-
JAR,
A [1]
1
For an unknown number of years, the United States Attorney’s Office for
the District of Kansas (USAO) undertook an undisclosed “systematic practice
of purposeful collection, retention, and exploitation” of confidential attorney-
client communications,
Carter
,
Public confidence in the fairness of the criminal process demands
scrutiny of the prosecutor, whose “role transcends that of an adversary,”
United States
v.
Bagley
, 473 U.S. 667, 675 n.6 (1985), and “whose
*102
interest . . . in a criminal prosecution is not that it shall win a case, but that
justice shall be done,”
Berger
v.
United States
,
The majority opinion says the “scandal” underlying this appeal is “the Kansas USAO’s mishandling of attorney-client communications.” Op. at 51, 3 (emphasis added). That puts it mildly. My colleagues appropriately “condemn” this misconduct. Op. at 50. But condemnation demands more elaboration. [2] Offutt v. United States , 348 U.S. 11, 14 (1954) (“[J]ustice must satisfy the appearance of justice.”).
In this appeal, we must decide whether “basic, constitutional guarantees
that should define the framework of any criminal trial”—guarantees protected
*103
by the structural-error doctrine—are fundamentally disrupted when the
prosecution intentionally and unjustifiably learns what is said between lawyer
and client.
Weaver
v.
Massachusetts
,
2
At the heart of this case is something ordinary—a defense lawyer talking on the phone to his incarcerated client—and something extraordinary—the prosecutor listening. [3] The Kansas USAO maintained a routine practice of requesting and receiving recordings of phone calls that defendants placed from the Corrections Corporation of America (CCA). The district court found this practice was motivated by the USAO’s belief that the recorded calls would be useful to it for investigative purposes and to prepare for trial and other *104 hearings. [4] With those objectives, the court concluded, “[f]or years, prosecutors in the Kansas City division had received, or knew others had received, attorney-client calls when they made a general request for all of a detainee’s calls from CCA.” Carter , 429 F. Supp. 3d at 854. This practice was “neither infrequent nor uncommon.” Id. “Every time the USAO made a general request for all recorded calls,” in fact, “there was a 27.96% chance that the calls would include attorney-client calls.” Id. at 856. And while the precise scope of the USAO’s practice is unclear, in part because “the USAO failed to preserve and produce electronic and paper records,” one analysis suggests prosecutors “accessed [an estimated] 1,429.21 attorney-client calls.” The prosecutors did not merely possess those recordings; “[t]he record is clear,” the district court found, “that upon receiving recordings, prosecutors and their agents reviewed the calls.” Id. at 848.
After this intrusive practice came to light, the USAO “denied that its practices implicated the Sixth Amendment or the attorney-client privilege.” at 799. The district court appointed a Special Master to examine the USAO’s conduct and the cases potentially affected. The Special Master led an almost three-year investigation. Throughout this process, the Kansas USAO “did not cooperate with [the Special Master’s] investigation.” Id. “The Government’s wholesale strategy to delay, diffuse, and deflect,” the district court explained, “succeeded in denying the individual litigants their day in court for almost three years.” Id. at 800. The district court considered this conduct relevant “[a]s part of the Sixth Amendment analysis” because “the Government’s lack of meaningful cooperation in the Special Master’s investigation” had implications for its “credibility.” Id. at 799.
Mr. Hohn was detained at CCA from 2012 to 2014. During litigation of another case arising from the Kansas USAO’s misconduct, United States v. Black , Mr. Hohn discovered the prosecution team had obtained a recording of a call he placed from CCA to his then-newly appointed defense lawyer on April 23, 2012. There is no question that call was recorded by CCA and contained “discussion relating to legal advice or strategy.” RII.1754.
The evidence before the district court established how the prosecution team purposefully obtained and listened to the call between Mr. Hohn and his defense lawyer. The court determined the prosecution gained “access to the *106 audio recordings [at CCA] under circumstances where they knew or should have known the material would include attorney-client communications, with no precautions to exclude or avoid learning the content of these recordings [by] use of a filter or taint team.” RII.1772. The court continued, “[t]he government has never asserted, nor is there evidence to suggest, that any prosecution team member started listening tо the April 23, 2012 call, heard [Mr. Hohn’s attorney] Campbell’s voice and the nature of the conversation, and immediately stopped listening to the call.” RII.1779. In fact, there was evidence to the contrary. Assistant United States Attorney (AUSA) Morehead “retained her own copy” of N-8, a CD containing nothing but the recording of Mr. Hohn’s call. RII.1774. And another member of the prosecution team emailed “referenc[ing] those same materials in connection with Hohn,” suggesting the prosecution team knew the content of the recording. RII.1774.
Then, after obtaining and listening to the recording of the call between Mr. Hohn and his attorney, AUSA Morehead “took steps to conceal th[e] tactical advantage” she had gained in doing so. RII.1776. The district court explained “Morehead did not disclose N-8 to Campbell in discovery, . . . admitting this fact to government counsel in a February 13, 2019 email.” RII.1776. The court concluded “[b]y declining to do for Campbell what she represented she normally does, [AUSA] Morehead made it less likely that anyone would discover that she was in possession of N-8.” RII.1776.
AUSA Morehead’s misconduct continued during litigation of Mr. Hohn’s habeas petition. “When the USAO began the process of disgorging calls to the Court, she resisted.” RII.1777. Although she “had every opportunity to explain how, when, and why she obtained access and became privy to Hohn’s attorney- client call, . . . she continued to minimize, deflect, and obfuscate her role in Hohn’s Sixth Amendment claim.” RII.1777. The district court observed, for example, although “she stated in her May 29, 2020 affidavit that she did provide Hohn’s April 23, 2012 call to Campbell,” “she reversed her position once again” in August 2021, “testifying that she was never aware that the prosecution team had obtained the April 2012 calls and therefore did not produce those calls to Campbell in discovery.” RII.1777. During that testimony, she also
equivocated about whether she subpoenaed Hohn’s and [co- defendant] Redifer’s calls; attempted to minimize her role in requesting and obtaining CCA calls; attempted to minimize her knowledge of the USAO’s call-collection procedures between 2012 and 2015; equivocated about a specific defendant’s case; equivocated about discovery procedures; equivocated about what calls she did and did not produce in discovery; equivocated about threats to government witnesses; and denied any involvement with ‘the second batch’ of calls, despite keeping a copy of N-8 in Hohn’s case file.
RII.1777–78.
“[E]ven after turning over scores of attorney-client calls that ha[d] been in its possession for years, including the call at issue in this case,” the *108 government nevertheless “steadfastly refused to acknowledge the problem before the [district] [c]ourt” and instead “disclaim[ed] any responsibility for fixing that problem.” RII.1781. [5] And “despite evidence of her conduct in both this and other criminal cases, the government has confirmed that it has not imposed internal sanctions or discipline against AUSA Morehead on the basis of untruthfulness.” RII.1782.
B
Premised on this prosecutorial interference with his right to counsel, Mr. Hohn filed a timely habeas motion raising a Sixth Amendment claim under Shillinger . [6] I generally agree with the majority opinion’s recitation of ’s facts, but it bears emphasizing just how narrow is Shillinger ’s rule.
In
Shillinger
, we held “when the state becomes privy to confidential
communications because of its purposeful intrusion into the attorney-client
relationship and lacks a legitimate justification for doing so, a prejudicial effect
on the reliability of the trial process must be presumed.”
It does not take much to remove a case from
Shillinger
’s slim ambit. Did
the prosecution intrude, but by accident? No
Shillinger
claim. Did the
prosecution intrude intentionally, but with a legitimate justification? No
Shillinger
claim. Did the prosecution intrude, even intentionally and without
justification, but without learning the substance of the attorney-client
communications? No
Shillinger
claim. Are all other preconditions satisfied, but
the communications cannot reasonably be described as attorney-client
confidences? Again, no
Shillinger
claim. And we have recently limited
’s application to pretrial intrusions.
See Orduno-Ramirez
, 61 F.4th
at 1273 (concluding “[a] post-plea intrusion is less likely to cause prejudice
*110
than a pretrial intrusion because the latter can taint any part of a criminal
prosecution—trial, sentencing, or both—and greatly expand the task of
ascertaining prejudice as compared to a post-plea intrusion”);
United States
v.
Spaeth
,
Fortunately, the circumstances giving rise to a Sixth Amendment
violation under
Shillinger
will not come up often. “[T]radition and experience
justify our belief that the great majority of prosecutors will be faithful to their
duty.”
[7]
United States
v.
Mezzanatto
,
C
Finally, while my main disagreement is with the outcome, I am also concerned about the path taken to achieve it. Mr. Hohn requested and received a certificate of appealability on two issues: (1) did the district court err in ruling that Mr. Hohn failed to prove the elements of his Sixth Amendment claim? And (2) did the district court err in ruling that the government proved Mr. Hohn waived his Sixth Amendment right? The parties briefed those issues and argued the appeal in September 2023 before a three-judge panel. No panel opinion issued.
In January 2024, over dissent, this court ordered initial
en banc
review
sua sponte
and posed two new questions.
Hohn
,
II
I now explain why
Shillinger
should not be disturbed. The majority
“conclude[s] that the case—and its structural-error rule—is untenable under
Supreme Court law” and therefore “overrule[s]
Shillinger
.” Op. at 4. To be
attorney-client communications that are not privileged[.]”
United States
v.
Hohn
,
[10] The majority observes “[i]n the panel briefing, the government did argue that the district court erred by relying on” the structural-error rule in Shillinger because it supposedly “runs contrary to the rule and rationale of” multiple “Supreme Court cases.” Op. at 12 n.13 (quoting Ans. Br. at 24). But nowhere did the government ask this court to overrule Shillinger formally, and as the majority admits, that “the decision bound the panel” is “[o]bvious[].” Op. at 12 n.13.
clear, our circuit has not done away entirely with Shillinger. The majority acknowledges, as it must, “a Sixth Amendment violation of the right to confidential communication with an attorney” could exist in some cases, namely where the defendant shows prejudice. Op. at 72; see also Op. at 21 (recognizing a Sixth Amendment claim still exists for some “intentional, unjustified intrusions into the attorney-client relationship”); Op. at 67 (ruling district court shall determine when “other § 2255 litigants might be entitled to an evidentiary hearing” to examine possibility of prejudice).
Though purporting to overrule Shillinger , the majority opinion interrogates only one aspect of its holding: “whether we should retain Shillinger’ s structural-error rule or reverse it.” Op. at 4. The majority picks the latter and holds “a Sixth Amendment violation of the right to confidential communication with an attorney requires the defendant to show prejudice.” [11] Op. at 4; see also Op. at 14 (“[T]o establish a Sixth Amendment violation, the defendant must show (1) that the government intentionally intruded into the defense camp and (2) that the intrusion caused prejudice.”). While acknowledging the elements of a Sixth Amendment prosecutorial-intrusion claim, the majority departs from Shillinger by holding “the violation is not *115 complete until the defendant establishes prejudice.” Op. at 15. Accordingly, I focus only on the portion of Shillinger the majority has “review[ed], reverse[d], and replace[d]”—its conclusive presumption of prejudice. Op. at 16.
The decision to abrogate Shillinger’ s conclusive presumption does not withstand scrutiny.
First , the majority’s comprehensive reliance on Strickland ’s prejudice prong—which applies to Sixth Amendment claims based on defense counsel’s performance—is misplaced. Unlike the ineffective-assistance-of-counsel claims controlled by Strickland , the Sixth Amendment violation at issue here is based on “direct governmental interference with the right to counsel,” which the Supreme Court has “expressly noted . . . is a different matter.” Perry v. Leeke , 488 U.S. 272, 279 (1989). Supreme Court precedent confirms the error recognized in Shillinger is structural, meaning prejudice must be presumed. Requiring the defendant to show prejudice here, because Strickland did, shows how the majority misunderstands the nature of the Sixth Amendment right at issue.
Second , Shillinger was correct at inception, and its per se prejudice rule does not, as the majority claims, conflict with the Supreme Court’s jurisprudence on government intrusions into attorney-client communications.
Third , traditional stare decisis factors, unaddressed by the majority, uniformly support retaining in full.
A
The foundational assumption underlying the majority opinion is that Strickland prejudice applies to the prosecutorial intrusion claim recognized in Shillinger . This is wrong. The majority recognizes that many Supreme Court cases, like Shillinger , adopt a conclusive presumption of prejudice when the government interferes with the right to counsel. Op. at 45. Attempting to distinguish these precedents, the majоrity reasons “the prejudicial impact was tangible” in each of those cases “[b]ecause the judicial interference . . . jeopardized the integrity and fairness of the trial itself.” Op. at 46. But the majority’s reasoning fails to account for the different ways the Supreme Court analyzes ineffective-assistance violations based on who causes them.
A defense counsel’s Sixth Amendment violations, at issue in Strickland , look very different from the government’s Sixth Amendment violations, at issue in Shillinger . And this fundamental difference has led the Supreme Court to treat them differently. Relying so centrally on Strickland —without regard to the critical differences in how different actors can violate the Sixth Amendment—is misguided. This section explains why. I first show the majority makes an incorrect doctrinal assumption—all ineffective-assistance- of-counsel claims are alike and all are subject to Strickland ’s prejudice requirement. I then show why a better reading of Supreme Court caselaw supports ’s structural-error rule.
1
a
The majority begins by stating “[t]he Sixth Amendment guarantees a
right to the effective assistance of counsel.” Op. at 13 (citing
Strickland
v.
Washington
,
“[B]ecause we derive ‘the right to effective representation from the purpose of ensuring a fair trial,’” the majority reasons, “we should ‘also derive[] the limits of that right from that same purpose.’” Op. at 55 (second alteration in original) (quoting United States v. Gonzalez-Lopez , 548 U.S. 140, 147 (2006)). This limit, the majority suggests, is the requirement that a defendant must show prejudice. Because “[t]he right to communicate confidentially with an attorney originates from the Sixth Amendment’s promise of effective assistance of counsel,” the majority concludes incursions on confidentiality do not violate the constitution unless they too involve prejudice—that is, “unless [they] call[] into question the basic justice of a defendant’s conviction or *118 sentence.” Op. at 54–55 (quoting Lafler v. Cooper , 1082 566 U.S. 156, 178 (2012) (Scalia, J., dissenting)).
The majority thus collapses two distinct guarantees under the Sixth Amendment—to be free of prosecutorial intrusion into attorney-client confidences and to have effective performance by defense counsel. Baked into the majority’s reasoning is a tacit premise that “a fair trial,” Op. at 56, is at risk, and thus prejudice is present, only in the way Strickland recognized when the claim is defense counsel performed ineffectively. See Strickland , 466 U.S. at 686. There is, the majority suggests, only one kind of ineffective-assistance violation. [12] This reasoning does not withstand scrutiny, as I will explain.
b
At root, the Sixth Amendment guarantees, in relevant part, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Th[is] right to
counsel is the right to the
effective
assistance of counsel.”
Strickland
, 466 U.S.
at 686 (emphasis added) (quoting
McMann
, 397 U.S. at 771 n.14). Put
*119
differently, the word “effective” is implied before the word “Assistance” in the
Sixth Amendment. As the majority acknowledges,
see
Op. at 13, “[t]he purpose”
of this effective-assistance guarantee “is simply to ensure that criminal
defendants receive a fair trial.”
Strickland
,
It is true the Court has framed government interference as implicating
the “right to the effective assistance of counsel,”
Weatherford
,
Multiple parties can render assistance ineffective. Typically, as in Strickland , counsel’s performance implicates the Sixth Amendment guarantee. See id. But the government can also interfere with the right to counsel. And the Court has “expressly noted that direct governmental interference with the right to counsel is a different matter.” Perry , 488 U.S. at 279. Such direct interference “is a different matter” in a particular way. The Court has frequently found a Sixth Amendment violation “ without any showing of prejudice when counsel was . . . prevented ”—including by the government— *120 “from assisting the accused during a critical stage of the proceeding.” United States v. Cronic , 466 U.S. 648, 659 n.25 (1984) (emphasis added) (collecting cases).
This difference goes to the central fair-trial right animating the Sixth
Amendment’s effective-assistance guarantee.
See Strickland
,
This sort of defense-counsel-caused “breakdown in the adversary
process,”
id.
at 687, is something a defendant must show based on the
particular facts of the case. Only in limited cases has the Court found
defense
counsel
to violate the Sixth Amendment’s guarantees without an
individualized showing of prejudice.
See Cuyler
v.
Sullivan
,
But the Court has recognized that the government can undermine the fairness of trial, and thus violate the Sixth Amendment, in ways that do not require the defendant to prove prejudice. For instance, the Court has held the government always violates the Sixth Amendment when it:
• disallows direct examination of the defendant, Ferguson v. Georgia ,365 U.S. 570 , 596 (1961);
• holds certain proceedings without the opportunity to access counsel, Williams v. Kaiser , 323 U.S. 471, 475–76 (1945); Hamilton v. Alabama ,368 U.S. 52 , 55 (1961); White v. Maryland ,373 U.S. 59 , 60 (1963); Gideon v. Wainwright ,372 U.S. 335 , 344–45 (1963); • disallows closing arguments, Herring v. New York ,422 U.S. 853 , 863 (1975);
• prevents attorney-client consultations in the evening during the defendant’s testimony, Geders v. United States , 425 U.S. 80, 91 (1976);
• denies a defendant’s request to proceed pro se , McKaskle v. Wiggins ,465 U.S. 168 , 177 & n.8 (1984);
• denies a public trial or hearing, Waller v. Georgia ,467 U.S. 39 , 49 & n.9 (1984);
• discriminates unconstitutionally in grand jury selection,
Vasquez
v.
Hillery
,
• fails to provide a reasonable-doubt jury instruction, Sullivan v. Louisiana ,508 U.S. 275 , 279–80 (1993);
• rejects a defendant’s choice of counsel, Gonzalez-Lopez , 548 U.S. at 147–50; or
• fails to recuse when the Constitution so requires, Williams v. Pennsylvania ,579 U.S. 1 , 14–15 (2016).
While certainly not all, or even most, trial errors render criminal
proceedings fundamentally unfair, the Supreme Court has not hesitated to
recognize that especially unfair conduct can do so—including when the
government interferes with a defendant’s Sixth Amendment right to effective
representation.
See, e.g.
,
Kaiser
,
Strickland itself
recognized “various kinds of state interference with
counsel’s assistance” involve a presumption of prejudice.
c
This Supreme Court-recognized distinction makes sense. Practically speaking, a Sixth Amendment violation looks very different when a defendant’s counsel causes it through ineffective performance versus when the government causes it through intentional and unjustified intrusion. These differences are at least threefold.
For counsel-caused errors, first , because “[r]epresentation is an art, . . . an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Strickland , 466 U.S. at 693. A set of precise rules for lawyering, without looking at the impact of counsel’s errors in an individual case, would be unmanageable, as “[a]ttorney errors come in an infinite variety.” Id. Second , “[t]he government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence.” Id. Third , in a world where ineffectiveness claims were easy to prove, “[c]riminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial” on the question of the first counsel’s ineffective performance. at 690. As a result, the Supreme Court worried that a low bar for establishing ineffective assistance would deter lawyers from cases cannot be subject to the same analytical framework as Strickland . And as I will explain, Weatherford and Morrison present situations wholly unlike that presented in or this case. See infra section II.B.2.a.–b. *126 representing criminal defendants. Largely because of the weight of these concerns, the Strickland Court adopted a test that, while often asserted, has been extremely difficult to satisfy.
None of these rationales applies to the kind of government-caused
violation in
Shillinger
—and in this case.
First
, prosecutorial intrusions into a
defendant’s attorney-client relationship do not admit of nearly as much nuance
as attorney errors in representing a defendant.
Shillinger
recognized a few
different variations—for instance, based on whether thе intrusions are
intentional or justified,
d
Shillinger properly understood the violation at issue as analytically distinct from counsel-caused violations recognized in Strickland , and as more analogous to the government-caused violations recognized in the cases described above. The majority now unjustifiably elides this distinction.
Shillinger
, unlike the majority opinion, recognized how intentional,
unjustified intrusions implicate the overriding structural concern about
“render[ing] a trial fundamentally unfair.” 70 F.3d at 1142 (quoting
Rose
v.
Clark
,
recognized the Supreme Court’s explicit rejection of collapsing government-
and counsel-caused violations.
See Shillinger
, 70 F.3d at 1141 (“‘[I]n certain
Sixth Amendment contexts, prejudice is presumed.’ This is particularly true
with regard to ‘various kinds of state interference with counsel’s assistance.’”
(quoting
Strickland
, 466 U.S. at 692));
see also id.
(citing
Perry
, 488 U.S. at
279–80, and
Cronic
,
And this distinct understanding could not be otherwise. The
governmental interference at issue in
Shillinger
and in this case
fundamentally “affec[ts] the framework within which the trial proceeds.”
[17]
Gonzalez-Lopez
,
First
, if prosecutors may effectively listen in without consequence (as
here), that is all but certain to affect defense attorneys’ “strategies with regard
to investigation and discovery, development of the theory of defense, selection
of the jury, presentation of the witnesses, and style of witness examination and
jury argument.”
Gonzalez-Lopez
,
As
Shillinger
recognized, the Court has not hesitated to find a Sixth
Amendment violation “without any showing of prejudice when counsel was . . .
prevented from assisting the accused during a critical stage of the proceeding.”
Cronic
,
Second
, and relatedly, defendants themselves may behave differently—
less candidly, say—when the adversary may be intruding on their attorney-
*130
client conversations. “And then we would have to speculate upon what effect
those different choices or different intangibles might have had.”
[18]
Gonzalez-
Lopez
,
I understand the right at stake here as safeguarding the capacity of the adversarial system to produce just results—which requires both effective performance by counsel and fair adversarial conditions systemically. The majority focuses only on the former, but correctly accounted for the latter.
2
The particular error here, like those in many of the government-
interference cases described above, is structural.
Shillinger
gave three reasons
for finding purposeful and unjustified prosecutorial intrusions into confidential
attorney-client communications “structural”: (1) “no other standard can
adequately deter” the type of Sixth Amendment violations at issue; (2)
“[p]rejudice in these circumstances is so likely that case-by-case inquiry into
prejudice is not worth the cost”; and (3) “such intentional and groundless
prosecutorial intrusions are never harmless because they ‘necessarily render a
trial fundamentally unfair.’” 70 F.3d at 1142 (alteration in original) (first
quoting
Strickland
,
These rationales map cleanly onto the Supreme Court’s most recent
comprehensive statement of what makes an error “structural” in
Weaver
v.
Massachusetts
,
[t]he Supreme Court generally classifies an error as structural (1) “if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other *132 interest”; (2) “if the effects of the error are simply too hard to measure”; and (3) “if the error always results in fundamental unfairness.”
Op. at 22 (quoting Weaver , 582 U.S. at 295–96). The Weaver Court stressed “one point is critical: An error can count as structural even if the error does not lead to fundamental unfairness in every case.” 582 U.S. at 296 (citing Gonzalez–Lopez , 548 U.S. at 149 n.4). As Justice Alito observed, these rationales place “state interference with counsel’s assistance” among the “very narrow set of cases” in which “[t]he Court has relieved defendants of the obligation” to show prejudice on an individualized basis. at 308 (Alito, J., concurring in the judgment). The conclusive presumption of prejudice in Shillinger comports fully with each of these three rationales. The majority deems none apply, but it is mistaken.
a
The first
Weaver
rationale—that “the right at issue is not designed to
protect the defendant from erroneous conviction but instead protects some
other interest,”
Weaver
describes the “other interest” as one in which “harm is irrelevant
to the basis underlying the right.”
The majority extrapolates a great deal from this example of one “other interest”—autonomy—that can underlie structural error. It summarizes Mr. Hohn’s invocation of the “other interest” rationale, then pivots to calling the rights the Court recognized under this prong “autonomy rights.” Op. at 53. Thus, the majority suggests, because Mr. Hohn did not claim his autonomy was impaired but instead asserted “effective-assistance rights,” this other- interest justification fails. Op. at 54.
Yet the idea that one articulated “other interest” is the only cognizable
“other interest” does not follow. True, the Court has recognized several errors
*134
as structural in service of preserving defendants’ autonomy.
See McCoy
, 584
U.S. at 427–28 (when a defense attorney admits his client’s guilt over the
client’s objection);
McKaskle
,
As one of our
amici
helpfully explains, the Court has also suggested
(albeit before it coined the phrase “structural error”) that deterrence of
prosecutorial misconduct is another interest supporting treatment of the error
as structural.
See
Nat’l Ass’n of Crim. Def. Laws. Amicus Br. at 14–15 (quoting
Vasquez
, 474 U.S. 254).
[19]
Failing to deter misconduct that undermines “the
structural integrity of the criminal tribunal”
itself
undermines the structural
integrity of the criminal tribunal.
Vasquez
,
Even if autonomy were the main concern, I cannot see how the specter of consequence-free prosecutorial intrusions on confidential attorney-client communications could avoid impinging on “the defendant’s power to steer the ship of his own defense.” Op. at 53. Full and candid conversations with one’s *136 attorney—possible only when the adversary does not unjustifiably listen in— are necessary to ensure a fully informed and freely chosen defense strategy.
b
The second
Weaver
rationale—that the effects of the error “are simply
too hard to measure,”
As Mr. Hohn explains, “[h]armless-error analysis in [this] context would
be a speculative inquiry into what might have occurred in an alternate
universe.” Aplt. Supp. Br. at 19 (alterations in original) (quoting
Gonzalez-
Lopez
, 548 U.S. at 150). In support, Mr. Hohn refers to the Third Circuit’s
analysis in
United States
v.
Levy
,
it is highly unlikely that a court can . . . arrive at a certain conclusion as to how the government’s knowledge of any part of the defense strategy might benefit the government in its further investigation of the case, in the subtle process of pretrial discussion with potential witnesses, in the selection of jurors, or in the dynamics of trial itself.
Levy
,
The Supreme Court has likewise observed the many insidious ways that
potential Sixth Amendment violations can affect the course of a trial. In
Herring
, for example, the Court justified a presumption of prejudice for
denying defense counsel the opportunity to give a closing argument in part by
noting the difficulty of showing prejudice in that context.
See
Similarly, Justice Sotomayor described in her statement respecting the
denial of certiorari in
Kaur
several examples “of the many ways in which the
prosecutors’ possession of Kaur’s privileged information could have subtly but
indelibly affected the course of her trial.”
The prosecutors, either intentionally or subconsciously, may have selected a different mix of jurors. They may have changed their pretrial preparation, perhaps by emphasizing different parts of the State’s case or focusing on different weaknesses in the defense. Or they may have considered different lines of questioning, brainstormed different objections, or anticipated different arguments. Because of the infinite permutations of strategic decisions resulting from
an adversarial disclosure, “[i]t would be an impossible task for any court, no *139 matter how diligent, to identify and assess all potential sources of prejudice simply by comparing the records of two trials.” This reasoning echoes the Court’s understanding in seminal state-interference cases.
As
Weaver
affirms, this rationale remains viable.
See
582 U.S. at 295
(“[A]n error has been deemed structural if the effects of the error are simply
too hard to measure.”). The Court recently held in
Gonzalez-Lopez
that denying
a defendant’s choice of counsel was appropriately considered structural error
in part because “[i]t [wa]s impossible to know what different choices the
rejected counsel would have made, and then to quantify the impact of those
different choices on the outcome of the proceedings.”
When the prosecution becomes privy to confidential defense
communications revealing trial strategy and preparations, that information
almost certainly affects a range of the prosecution’s decisions. These decisions
could, as the Third Circuit described, include jury selection, its own case
preparation, its lines of witness questioning, or its anticipation of the defense’s
counterarguments.
See Levy
, 577 F.2d at 208. They could also affect the
government’s plea offer and ultimately the defendant’s decision to proceed to
trial. None of these effects would necessarily be measurable; indeed, the
prosecution itself might not even be aware its violation had affected the trial.
Cf. Herring
,
c
Finally,
Shillinger
’s conclusive presumption of prejudice finds support in
the third
Weaver
rationale: the error “cause[s] fundamental unfairness, either
to the defendant in the specific case or by pervasive undermining of the
systemic requirements of a fair and open judicial process.”
Weaver
, 582 U.S. at
301. We relied on this same rationale in .
See
According to the majority opinion, that Mr. Hohn “never argue[d] that
the prosecutor” actually “had an ‘upper hand’ at his trial . . . takes the wind
out of his sails.” Op. at 53. But whether Mr. Hohn made such an argument is
beside the point. The Court’s state-interference cases make clear the focus is
on systemic fairness, not individualized unfairness.
[23]
And the third
Weaver
rationale calls for a consideration of the systemic effects of the intrusion on the
fairness and integrity of the judicial process for
all
defendants.
See Weaver
,
with other detainees or with witnesses.
Carter
,
[23] For example, in Ferguson , the Court struck down a state statute prohibiting defense counsel from eliciting the defendant’s testimony through direct examination. 365 U.S. at 596. Under such conditions, the Court concluded, “it will not be surprising if [a defendant’s] explanation is incoherent, or if it overlooks important circumstances” if he must give it without guiding questions from his counsel. In doing so, the Court relied on the extent to which such a rule would create unfair conditions for the testimony of that defendant and others, without reference to any individualized allegation or showing by Mr. Ferguson that it had harmed him particularly.
1822 (2017) (explaining the “eclectic normative objectives of criminal
procedure” include ensuring “that the administration of justice should
reasonably appear to be disinterested” (quoting
Pub. Utilities Comm’n of D.C.
v.
Pollak
,
We therefore correctly considered the intentional prosecutorial misconduct in Shillinger an error that would inherently undermine the “fairness, honesty and morality” of the justice system. 70 F.3d at 1142. The third Weaver rationale provides another basis for the Shillinger rule.
B
I now turn to the majority’s conclusion that binding Supreme Court
precedent foreclosed
Shillinger
’s
per se
rule at its inception. Contrary to the
majority opinion’s understanding, the Supreme Court has never required an
additional showing of discrete, trial-specific harm to establish the narrow Sixth
Amendment claim at issue in
Shillinger
and here. I will first briefly describe
the Supreme Court decisions addressing violations of the Sixth Amendment
right to counsel based on governmental intrusion into attorney-client
communications in
Black
v.
United States
, 385 U.S. 26 (1966),
O’Brien
v.
United States
,
1
a. Black
In
Black
, the Court considered a petition for rehearing, which was filed
after the Solicitor General voluntarily advised the Court that the prosecution
had become privy to pre-trial attorney-client conversations.
See
Following the Solicitor General’s revelation, he “suggest[ed] that the judgment be vacated and remanded to the District Court in which the relevant materials would be produced and the court would determine, upon an *144 adversary hearing, whether petitioner’s conviction should stand.” Id. (internal quotations omitted). The Court instead ordered a new trial to “afford the petitioner an opportunity to protect himself from the use of evidence that might be otherwise inadmissible.” Id. at 29. In dissent, Justice Harlan emphasized, “the Court today orders a totally new trial in spite of the fact that the disclosure commendably made by the Solicitor General reveal no use of ‘bugged’ material in Black’s prosecution.” Id. at 30–31. That is, Mr. Black showed no prejudice.
b. O’Brien The following year, the Court in O’Brien considered a petition for a writ of certiorari seeking to challenge Mr. O’Brien’s convictions on several counts of removing merchandise from a bonded area. 386 U.S. at 345 (Harlan, J., dissenting). The Court granted the petition, summarily vacated the convictions, and remanded for a new trial, citing Black . Id. at 345 (majority opinion). The dissent provided additional factual context. As in Black , the Solicitor General “commеndably notified the Court that pursuant to a general review of the use of ‘electronic eavesdropping or wiretapping,’ he discovered that a microphone had been installed in a commercial establishment owned by an acquaintance of petitioner O’Brien.” at 346 (Harlan, J., dissenting). A pre-trial conversation between Mr. O’Brien and his attorney was recorded. Id. Although the conversation was “overheard by the monitoring agents and summarized in their logs,” it was neither “mentioned in any F.B.I. report” nor *145 conveyed to the attorneys who prosecuted the case. Id. (internal quotations omitted).
The Solicitor General “indicated that he would ‘not oppose’ a remand of the case for an adversary hearing as to the effect of this activity on the validity of petitioners’ convictions.” Id. at 346. The Court instead remanded for a new trial, relying on its decision in Black . Id. at 345 (majority opinion). Justice Harlan reprised his dissent from Black , repeating that “a new trial is not an appropriate vehicle for sorting out the eavesdropping issue because until it is determined that such occurrence vitiated the original conviction”—that is, until prejudice is shown—“no basis for a retrial exists.” Id. at 347 (Harlan, J., dissenting). He concluded that, in his view, “this Court’s action put[] the cart before the horse.”
c. Hoffa
In
Hoffa
, the Court considered a challenge to Mr. Hoffa’s conviction for
attempting to bribe members of the jury in an earlier trial in which he was
charged with violating the Taft-Hartley Act.
The Court assumed without deciding “the proposition that a surreptitious invasion by a government agent into the legal camp of the defense may violate the protection of the Sixth Amendment.” Id. at 307. “Consequently,” the Court continued, “if the [earlier] trial had resulted in a conviction instead of a hung jury, the conviction would presumptively have been set aside as constitutionally defective.” Id. at 307 (citing Black , 385 U.S. 26). But the Court concluded the conviction in the later trial, which was at issue, needed not be reversed because the fruits of the intrusion were unrelated in “time and subject matter” to that conviction. Id. at 309. The Court reasoned even if a situation existed in which “previous activities in undermining a defendant’s Sixth Amendment rights at one trial would make evidence obtained thereby inadmissible in a different trial on other charges,” this case “d[id] not remotely approach such a situation.” at 308.
d. Weatherford The Court in Weatherford reviewed a Fourth Circuit rule establishing that “ whenever the prosecution knowingly arranges and permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial.” 429 U.S. at 549 – 50 (emphasis added) (internal quotation omitted). There, an undercover government informant was present during pre-trial attorney-client meetings. Id. at 547. The district court made an “express finding,” left undisturbed in the Court of Appeals, “that [the *147 informant] communicated nothing at all to his superiors or to the prosecution about [the defendant] Bursey’s trial plans or about the upcoming trial.” Id. at 556; see also id. at 548.
The Court emphasized the agent “went, not to spy, but because he was asked and because the State was interested in retaining his undercover services on other matters.” Id. at 557. Thus, the agent’s presence in the meeting was “necessary to avoid raising the suspicion that he was in fact the informant whose existence Bursey and [his attorney] Wise already suspected.” Id. The Court considered this interest a legitimate justification for the intrusion. See id. (reasoning the Court’s “cases have recognized the unfortunate necessity of undercover work and the value it often is to effective law enforcement”).
The Court reversed the Court of Appeals’ rule that a new trial was per se required under those circumstances. Id. at 558. It reasoned, “[t]here being no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford, there was no violation of the Sixth Amendment.” But, it also explained,
[h]ad Weatherford testified at Bursey’s trial as to the conversation between Bursey and [his attorney] Wise; had any of the State’s evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford, an undercover agent, the details of the Bursey-Wise *148 conversations about trial preparations , Bursey would have a much stronger case.
Id. at 554 (emphasis added).
e. Morrison In Morrison , the Court reviewed a Third Circuit order dismissing with prejudice the indictment charging Ms. Morrison with drug distribution. 449 U.S. at 362–64. When Ms. Morrison was indicted, she had retained private counsel. Id. at 362. “Two agents of the Drug Enforcement Agency, aware that [Ms. Morrison] had been indicted and had retained counsel, sought to obtain her cooperation in a related investigation.” Id. The agents “met and conversed with her without the knowledge or permission of her counsel.” Id. In that conversation, the agents “disparaged [her] counsel” and “indicated that [she] would gain various benefits if she cooperated but would face a stiff jail term if she did not.” Id.
Ms. Morrison “moved to dismiss the indictment with prejudice on the ground that the conduct of the agents had violated her Sixth Amendment right to counsel.” at 363. Her motion to dismiss
contained no allegation that the claimed violation had prejudiced the quality or effectiveness of [her] legal representation; nor did it assert that the behavior of the agents had induced her to plead guilty, had resulted in the prosecution having a stronger case against her, or had any other adverse impact on her legal position. *149 Id. Instead, it alleged the “egregious behavior of the agents . . . ha[d] ‘interfered’” with her right to counsel. Id.
The district court denied her motion to dismiss. Id. The Third Circuit reversed, holding Ms. Morrison’s “Sixth Amendment right to counsel had been violated and that whether or not any tangible effect upon [her] representation had been demonstrated or alleged, the appropriate remedy was dismissal of the indictment with prejudice.” Id. The Supreme Court granted certiorari “to consider whether this extraordinary relief was appropriate in the absence of some adverse consequence to the representation respondent received or to the fairness of the proceedings leading to her conviction.” Id. at 363–64.
Ultimately, the Court assumed without deciding a Sixth Amendment violation had occurred, id. at 364, but held, “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate” to remedy the violation, id. at 365. It explained cases involving “Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” Id. at 364. Therefore, “the solution provided by the Court of Appeals [was] inappropriate” as Ms. Morrison had not demonstrated the Sixth Amendment violation that she alleged had an “adverse impact upon the criminal proceedings.” at 367.
2
I now describe why the majority’s understanding of Weatherford , Morrison , and the three predecessor cases is infirm.
a. The Majority Opinion’s Understanding of Weatherford One of the majority’s central misunderstandings, underlying the entire thesis of its disposition, is Weatherford prefigured the outcome in . The majority believes “ Weatherford . . . established a prejudice requirement for intrusion-based Sixth Amendment claims.” Op. at 28. It did no such thing.
While Weatherford did require an individualized prejudice showing, see 429 U.S. at 558, it clearly limited the reach of its holding, and that requirement, to the particular intrusion in that case . The Court reasoned,
[h]ad Weatherford testified at Bursey’s trial as to the conversation between Bursey and [his attorney] Wise; had any of the State’s evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford, an undercover agent, the details of the Bursey-Wise conversations about trial preparations, Bursey would have a much stronger case.
Id. at 554 (emphasis added). The conduct in Weatherford did not present “a situation where the State’s purpose was to learn what it could about the defendant’s defense plans.” Id. at 557. And the intrusion in Weatherford was justified by the “unfortunate necessity of undercover work,” which provides “value . . . to effective law enforcement.” The Court also drew a distinction *151 between government intrusion “by an undercover agent” and accomplished through “electronic eavesdropping,” finding the former causes less “inhibition [to] free exchanges between defendant and counsel.” Id. at 554 n.4.
Another way to put these myriad limitations is the Weatherford Court required the defendant to show prejudice when Shillinger’s elements are absent . Recall, Shillinger applies only when the prosecution becomes privy to confidential attorney-client communications through intentional, unjustified intrusions. 70 F.3d at 1142. In Weatherford , the prosecution never became privy to the communications, and the intrusion was unintentional and justified. 429 U.S. at 556–58. And the intrusion into Mr. Hohn’s communications did not involve “an undercover agent,” but involved surreptitious overhearing, which the Weatherford Court explicitly called out as more concerning. at 554 n.4. Nothing indicates Weatherford intended the defendant to show prejudice under the circumstances present in .
In arguing otherwise, the majority seizes on
Weatherford
’s particular
language that, if certain other facts were present, defendant “Bursey would
have had only ‘a much stronger case’ in proving a Sixth Amendment violation.”
Op. at 27 (quoting
Weatherford
, 429 U.S. at 554). As an initial matter, the
critical word “only” does not appear in the
Weatherford
passage, meaning the
majority seems to have assumed its own conclusion that
Weatherford
placed
an upper limit on how much stronger the case would be. And, more
*152
fundamentally, the majority opinion later clarifies that “stronger case” means
“even then his case might not have been strong enough.” Op. at 36–37. But
that does not follow. The phrase appears in a section in
Weatherford
disputing
the Fourth Circuit’s logic and illustrating the unclear “contours of” “the Sixth
Amendment right to counsel.”
The majority then insists,
even in the worst cases, where the informant purposefully intrudes into confidential attorney-client conversations or where the informant relates those conversations to the prosecution, Weatherford still advises against assuming that the confidential information “has the potential for detriment to the defendant or benefit to the prosecutor’s case.”
Op. at 27–28 (quoting
Weatherford
,
Finally,
the majority
suggests
Weatherford
“general[ly]
repudiat[ed] . . . per se rules to protect attorney-client confidentiality.” Op. at
40;
see also
Op. at 36 (referring to “
Weatherford
’s holding that denounced per
se Sixth Amendment rules against government intrusions”). This suggestion
is similarly unpersuasive. At issue in
Weatherford
was a
per se
rule totally
unlike the one in . The Fourth Circuit’s rule mandated reversal and
a new trial
whenever
the prosecution “arranges and permits” an informant to
be present during the defense’s attorney-client communications.
See
*154
Weatherford
,
b. The Majority Opinion’s Understanding of Morrison Next, the majority insists Morrison “reinforce[d] Weatherford ’s prejudice requirement” in assessing Sixth Amendment violations. Op. at 28. Again, I am unconvinced Morrison even applies to Shillinger or to this case. In Morrison , as in Weatherford , Shillinger ’s elements simply were not met. The Sixth Amendment violation assumed by the Court in Morrison involved no attorney- client confidences and no prosecutors becoming privy to surreptitiously obtained information between a lawyer and a client. See Morrison , 449 U.S. at 362–63. It is, once again, a different set of facts. That there was “no effect of a constitutional dimension which need[ed] to be purged” in that case, id. at 366, says nothing about whether that sort of “effect” existed in Shillinger or exists in Mr. Hohn’s case. Morrison necessarily left that question open. The majority’s understanding that Morrison “reinforce[d] Weatherford ’s” supposed “prejudice requirement” in cases like , Op. at 28, is thus incorrect. The Sixth *155 Amendment violation assumed in Morrison does not conflict with Shillinger ’s heavily cabined rule and does not control this case.
In arguing otherwise, the majority summarizes, “[t]he [
Morrison
] Court
considered that, once a ‘constitutional infringement [has been] identified,’
there must be some ‘threat[]’ of an ‘adverse effect upon the effectiveness of
counsel’s representation’ or ‘some other prejudice to the defense’ to have a
remediable Sixth Amendment claim.” Op. at 29 (third and fourth alterations
in original) (quoting
Morrison
,
Further, the majority acknowledges the
Morrison
Court expressly
“assume[d], without deciding, that
the Sixth Amendment was violated
.” Op. at
42 (alteration in original) (emphasis added) (quoting
Morrison
, 449 U.S. at
364). But the majority believes “the only sensible way to read” that statement
is the Court meant it assumed an “intrusion,” not that it assumed a “violation.”
*156
Op. at 42. I would instead believe the Court in
Morrison
meant what it said.
[25]
Thus, an essential difference remains: At issue in
Shillinger
and this case is whether a Sixth Amendment violation occurred and whether that violation
merits a conclusive presumption of prejudice. At issue in
Morrison
was what remedy, if any, would be appropriate
assuming a Sixth Amendment violation occurred
.
See
The majority asks, “How could
Morrison
have presumed prejudice and
then gone on to deny the defendant relief because she ‘demonstrated no
prejudice’?” Op. at 42 (quoting
Morrison
, 449 U.S. at 366). That rhetorical
question, though, is answerable. I see no reason the Court could not have
presumed the prosecution’s misconduct was “inherently detrimental to [the
*157
defendant] . . . and threatened to subvert the adversary system of criminal
justice,”
Weatherford
, 429 U.S. at 556, for purposes of establishing a Sixth
Amendment violation, then subsequently inquired into the impact of the
violation for purposes of appropriately tailoring the remedy. As Mr. Hohn
correctly points out, “[w]hile structural error justifies a remedy regardless of
harm to the defendant,
what
remedy is a separate question.”
See
Aplt. Supp.
Br. at 14 n.1 (citing
Waller,
The majority further posits, “[b]y directing us to calibrate the
appropriate remedy from a defendant’s injury,
Morrison
presupposes that by
the remedies stage some demonstration of prejudice has already occurred.” Op.
at 43 (citing
Morrison
,
Finally, the majority contends, “
Morrison
bolsters
Weatherford
’s
prejudice requirement by reiterating that a ‘constitutional infringement’ under
the Sixth Amendment requires ‘some adverse effect’ to the defendant . . . .” Op.
at 44 (quoting
Morrison
, 449 U.S at 365). But, as I explained,
Morrison
“simply
conclude[d] that the solution provided by the Court of Appeals”—
dismissal of
the indictment with prejudice
—“is inappropriate where the violation, which
[the Court] assume[d] ha[d] occurred, has had no adverse impact upon the
criminal proceedings.”
c. The Majority Opinion’s Understanding of Black, O’Brien, and Hoffa ’s conclusive presumption also does not defy Black , O’Brien , or
Hoffa . [27] The majority acknowledges those cases but concludes they suggest a defendant must “tether governmental intrusion to a realistic possibility of injury from the use of confidential communications at trial.” Op. at 56. I understand them differently.
In
Black
and
O’Brien
, the Court remanded for a new trial without finding
(or even discussing) prejudice.
Justice Harlan, dissenting in
Black
, explained the only justification he
could imagine for the Court’s decision was “that any governmental activity of
the kind here in question
automatically vitiates
, so as at least to require a new
trial, any conviction occurring during the span of such activity.”
And, contrary to the majority’s reasoning,
Weatherford
’s reading of
Black
and
O’Brien
is consistent with a suggestion that prejudice need not be shown
*161
to establish a Sixth Amendment violation in this context.
Contra
Op. at 56.
The
Weatherford
Court stated it “c[ould] not agree that these cases,
individually or together, either require or suggest the rule announced by the
Court of Appeals.”
Finally, the majority, citing
Weatherford
’s discussion of
Hoffa
, asserts
“the Supreme Court has
never held
that the Sixth Amendment right to
attorney-client confidentiality ‘subsumes a right to be free from intrusion’ by
government agents into the attorney-client relationship.” Op. at 14 (emphasis
added) (quoting
Weatherford
,
3
The majority says “
Shillinger
’s holding contradicts those pronounced in
Weatherford
and its progeny”—
i.e.
,
Morrison
—“because those cases affirm
that, even when the prosecution becomes privy to attorney-client
communications without a legitimate law-enforcement purpose, the defendant
still must demonstrate a prejudicial use of the overheard information at trial.”
Op. at 24 (citing
Weatherford
,
a. Shillinger’s Understanding of Weatherford Shillinger
properly understood
Weatherford
. As Mr. Hohn correctly
observes, “discussed” the holding in
Weatherford
“at length.” Reply
*163
Br. at 31. There, we observed the district court in
Weatherford
had made an
“express finding that Weatherford communicated nothing at all to his
superiors or to the prosecution about Bursey’s trial plans or about the
upcoming trial” and that the Court had emphasized “the absence of
purposefulness in the prosecutor’s intrusion and the legitimate law
enforcement interests at stake.”
Shillinger
, 70 F.3d at 1139 (quoting
Weatherford
,
But the majority insists
Shillinger
“misconstrued [
Weatherford
’s]
language . . . to circumvent [its] holding.” Op. at 36. Unlike in , the
majority argues, “the thrust of the [
Weatherford
] Court’s analysis focused on whether Bursey could show substantial detriment from
the use
of the
confidential information at trial.” Op. at 37. But, as outlined above,
Weatherford
did not require
use
of the attorney-client communications to
*164
establish a Sixth Amendment violation, much less use
at trial
specifically
(versus, for example, to preрare for trial).
Shillinger
understood this
distinction.
See
The majority then says
Shillinger
noted some distinctions I have
described, then “inferred that when these conditions are flipped—when the
government intrudes
intentionally
and
without
a legitimate law-enforcement
purpose—prejudice must be presumed.” Op. at 38. True, but not without
reason. Though it establishes mere intrusion by government agents does not
constitute a Sixth Amendment violation,
Weatherford
does not reveal what is
required in addition.
Shillinger
thus did not base its “infer[ence]” on
Weatherford
alone; it simply observed
Weatherford
did not control, then—for
legitimate reasons described throughout and this dissent—filled
that gap by conclusively presuming prejudice.
See
b. Shillinger’s Understanding of Morrison Shillinger
also correctly understood
Morrison.
Under
Shillinger
, the
prejudice element of the constitutional
violation
is satisfied presumptively, 70
F.3d at 1142; then, under
Morrison
, the
remedy
is tailored to address the
nature and extent of the intrusion’s impact,
Shillinger
acknowledged
Morrison
had “left open the question of whether
intentional and unjustified intrusions upon the attorney-client relationship
may violate the Sixth Amendment even absent proof of prejudice,” and
acknowledged its holding “that even if the defendant’s Sixth Amendment
rights were violated, dismissal of the indictment was an inappropriate remedy
in that case.” 70 F.3d at 1140. Once the panel determined the
prosecution had violated the Sixth Amendment by intentionally intruding on
Mr. Haworth’s attorney-client communications,
it then turned to
“ascertain[ing] the appropriate remedy,” applying
Morrison
. at 1142
(acknowledging the remedy inquiry requires the court to “identify and then
neutralize the taint [of the violation] by tailoring relief appropriate in the
circumstances to assure the defendant the effective assistance of counsel and
*166
a fair trial” (quoting
Morrison
,
The majority insists “ Shillinger wrongly interpreted Morrison as further proof that ‘ Weatherford . . . does not necessarily govern intentional intrusions by the prosecution that lack a legitimate purpose.’” Op. at 44 (quoting Shillinger , 70 F.3d at 1140). “Rather,” the majority contends, “ Morrison bolsters Weatherford ’s prejudice requirement by reiterating that a ‘constitutional infringement’ under the Sixth Amendment requires ‘some adverse effect’ to the defendant . . . .” Op. at 44 (quoting Morrison , 449 U.S at 365). But, as I explained, the kind of Sixth Amendment violation assumed in Morrison simply did not control Shillinger , whose per se rule applies only when all of its elements are met. And Morrison was about remedies, in any event.
***
For these reasons, I submit Shillinger correctly understood and applied existing Supreme Court precedent when holding that intentional and unjustified prosecutorial intrusions into confidential pre-trial attorney-client *167 communications constitute a per se Sixth Amendment violation. , 70 F.3d at 1142.
C
Finally, before overturning longstanding precedent, especially in the face
of egregious misconduct, I would apply
stare decisis
. The Supreme Court has
called this doctrine “a foundation stone of the rule of law.”
Michigan
v.
Bay
Mills Indian Cmty.
,
A decision to upend settled precedent “demands special justification.”
Arizona
v.
Rumsey
, 467 U.S. 203, 212 (1984).
[30]
Such “special justification”
might be the precedent was “poorly reasoned,” has “led to practical problems
and abuse,” is “inconsistent with other . . . cases,” or is not sufficiently justified
by “reliance interests.”
Janus
v.
Am. Fed’n of State, Cnty., & Mun. Emps.,
Council 31
,
I cannot conclude the majority’s marked departure from our binding
precedent is justified. As I have explained, was not “poorly
reasoned.”
Janus
,
Nor has the conclusive presumption in Shillinger led to practical problems. A Sixth Amendment claim under Shillinger will be exceptionally rare—unless, as here, the prosecutorial misconduct affects over one hundred cases. The narrow decision in Shillinger is not to blame for the scope of misconduct; that blame lies solely with the prosecutors. And the potential *170 availability of relief to defendants cannot be understood as an administrability problem.
Moreover, substantial reliance interests are necessarily at stake. Why would defense counsel and their cliеnts ever have to think the adversary was listening without justification? The norms protected by Shillinger ’s prophylactic rule meant the government should not, and in the normal course would not, intentionally and without justification become privy to confidential attorney-client communications. See generally Fed. Pub. Defs. Amicus Br. At the outset of the proceedings against Mr. Hohn, the conclusive presumption of prejudice in Shillinger applied to his case. And Mr. Hohn invoked it. See RI.2661. This helps explain why Mr. Hohn did not attempt to show prejudice in the district court—it was not a concession (as the majority mistakenly assumes) but reasonable reliance on long-settled precedent. [33]
Apart from the reliance interests at stake, there are other important reasons to interrogate the wisdom of abrogating Shillinger in the context of the Kansas misconduct. As Mr. Hohn points out, “[o]verruling ’s structural-error rule would also condone the pattern of prosecutorial misconduct involved here.” Aplt. Supp. Br. at 18 (citing Weaver , 582 U.S. at 301). The majority’s “condemn[ation]” of “the Kansas USAO’s practice,” Op. at *171 50, while undoubtedly significant, is cold comfort to the defendants who may have suffered worse legal outcomes, through subtle and unmeasurable differences in the proceedings, because of the misconduct.
This misconduct occurred while
Shillinger
’s deterrence-focused rule was
the law, so the need for deterrence is reinforced, not abated. And, of course, the
government holds the power to ensure no defendant ever enjoys relief under
Shillinger
again. “If [intentional and unjustified prosecutorial intrusion into
confidential attorney-client communications] becomes a thing of the past, no
conviction will ever again be lost on account of it.”
Vasquez
,
Finally, the Supreme Court has not overruled
Shillinger
or its
structural-error rule. I have already shown is consistent with the
Supreme Court’s precedents. But as the district court recognized, there is a
widely acknowledged circuit split over whether defendants must show
prejudice to establish a Sixth Amendment violation when prosecutors
wrongfully invade the attorney-client relationship.
See
RI.2878–79 (citing
*172
Cutillo
v.
Cinelli
,
Perhaps the Court should weigh in to resolve the matter, but it has not
yet.
[34]
The majority opinion speculates how the Supreme Court
would
rule. But
*173
intercepted communications are somehow
used
against the defendant . . . in
connection with the underlying proceeding.’” Op. at 57 (alteration in original)
(emphasis in original) (quoting
ACLU Found. of S. Cal.
v.
Barr
,
Without commenting on the majority opinion’s characterization of each case, I make four observations. First , as Judge Bacharach correctly explains, “the only circuits to address the allocation of the burden are the First and Ninth Circuits,” both of which “adopt a rebuttable presumption of prejudice.” Judge Bacharach’s Partial Dissent at 17. The majority’s claim that these cases “require the defendant to show prejudice,” Op. at 57 (emphasis added), is therefore not accurate.
Second
, the majority omits from its list cases that conclusively presume
prejudice, including those from the Third and Tenth Circuits.
See Shillinger
,
Third
, the majority opinion also overlooks that one additional circuit has
suggested a
per se
prejudice rule might apply when the intrusion is “manifestly
and avowedly corrupt,” but it has not yet encountered such a case.
See United
States
v.
Gartner
, 518 F.2d 633, 637 (2d Cir. 1975);
accord United States
v.
Ginsberg
,
Fourth , the majority opinion also does not discuss state courts’ stances, including one that takes the very position in . See State v. Quattlebaum , 527 S.E.2d 105, 109 (S.C. 2000) (“Deliberate prosecutorial misconduct raises an irrebuttable presumption of prejudice.”).
we should “decline to read its tea leaves” for what the Court might say and instead “await word from the Court itself.” United States v. Wilson , 98 F.4th 1204, 1231 n.5 (10th Cir. 2024).
Under the circumstances, the majority’s decision sua sponte to abrogate Shillinger ’s structural-error rule proactively is profoundly destabilizing. Under traditional notions of stare decisis , I would refuse to abandon the well-reasoned position our circuit has maintained for thirty years, unless and until the Supreme Court speaks to the contrary.
III
The majority’s new rule has serious problems. Judge Bacharach’s partial dissent ably identifies many, as I will highlight here. I will then show why his sound logic justifies a conclusive presumption of prejudice, not just a rebuttable one. [35]
Thus, contrary to the majority’s view that “any decision from this court rejecting Shillinger ’s structural-error rule would find good company among our fellow circuits,” Op. at 58, I would emphasize the circuit split identified above remains alive and well—as to both whether prejudice must be shown and who must show it.
[35] To clarify, I read Judge Bacharach’s partial dissent as suggesting what rule this circuit should adopt on the assumption that ’s conclusive presumption is to be abrogated. I therefore read it as taking no stance on whether Shillinger should, in fact, be abrogated—the focus of this dissent.
A
I begin my analysis by endorsing much of what Judge Bacharach writes in his well-stated partial dissent. My colleague persuasively shows “[t]he [kind of] intrusion [at issue in ] could prejudice the defendant in plea bargaining, jury selection, or the prosecution’s case-in-chief.” Judge Bacharach’s Partial Dissent at 7. He then asks, “But how could the defendant know if the prosecution had used the information for these purposes? The defendant has no way of knowing.” Judge Bacharach’s Partial Dissent at 7–8. Indeed, the information flows as a “one-way pipeline”: the prosecution gains information about the defense, but it gives none back. Judge Bacharach’s Partial Dissent at 9. Thus, it is “virtually impossible for Mr. Hohn to know whether the prosecution had used the improperly intercepted information.” Judge Bacharach’s Partial Dissent at 9.
Judge Bacharach also presents a helpful example of the subtle ways a trial may proceed differently because of intentional and unjustified prosecutorial intrusions on defendants’ confidential attorney-client communications:
[C]onsider what happens when the prosecution intercepts a defendant’s phone call with attorneys about their plans to impeach a government witness. . . . For example, knowledge of the defense strategy might lead the prosecution to elicit testimony about impeachment material to soften the sting of later cross- examination. Or a brief call might disclose information about the attorneys’ tone or approach.
Judge Bacharach’s Partial Dissent at 13. I therefore agree “it’s hardly fair to require the defendant to show why the prosecution made its strategic decisions.” Judge Bacharach’s Partial Dissent at 12.
B
The sound logic of Judge Bacharach’s partial dissent necessarily extends further. It is “virtually impossible for Mr. Hohn to know whether the prosecution had used the improperly intercepted information.” Judge Bacharach’s Partial Dissent at 9. I would add that it is virtually impossible for anyone —even the prosecution itself—to know how that information actually shaped the trial.
When the government intentionally and unjustifiably becomes privy to a defendant’s confidential attorney-client communications, some effects on a trial are knowable in some cases. For instance, as Judge Bacharach correctly observes, listening to a conversation about impeaching a prosecutor’s witness “might lead the prosecution to elicit testimony about impeachment material to soften the sting of later cross-examination.” Judge Bacharach’s Partial Dissent at 13. The evidence that establishes that effect could be direct, such as contemporaneous notes or a recorded conversation about the government’s strategy, or circumstantial, such as an unusual amount of direct examination about the impeachment material.
If, however, that evidence establishes “the prosecution had already decided not to call the witness,” Judge Bacharach reasons “the interception might not be prejudicial.” Judge Bacharach’s Partial Dissent at 13. The key word is “ might .” Returning to the witness example, even if the prosecutor had already decided not to call the witness, she may still learn the defense team’s overall approach to impeachment, as well as those attorneys’ overall demeanor, their apparent level of knowledge or competence, or even their rapport with the defendant. And it takes little more imagination to see how that information might shape the course of a trial, even in ways the prosecution might not consciously appreсiate. Under traditional understandings of our adversarial system of criminal justice, the defendant should not assume the risk of that possibility. Because of the virtually infinite ways each criminal proceeding can progress, “[i]t is impossible to know what different choices the [prosecutor] would have made” were she not intruding, “and then to quantify the impact of those different choices on the outcome of the proceedings.” Gonzalez-Lopez , 548 U.S. at 150.
A rebuttable presumption of prejudice cannot address the fundamental issue that these effects are practically unmeasurable and unknowable. Even the government cannot know exactly how its decisions, tone, questions, writing, objections, and so on might have differed in the counterfactual world with no intrusion. And no one can know how those differences might have influenced *178 the course of the proceedings. Even if a rebuttable presumption would be a defensible alternative on the assumption Shillinger had to be overruled, the truth remains that the only standard that comports with this fundamental unknowability in a meaningful way is a conclusive presumption of prejudice, consistent with Shillinger .
IV
I would reaffirm the conclusive presumption in and conclude the district court correctly found itself bound by it. Under these circumstances, I now reach the district court’s only reason for denying Mr. Hohn’s habeas petition. Notwithstanding its otherwise thorough analysis, the district court believed—mistakenly—that Mr. Hohn’s voluntary disclosure of his attorney- client communications to a third party (by consenting to recording or monitoring by CCA) meant the communication was not protected by the Sixth Amendment, or alternatively that Mr. Hohn waived his Sixth Amendment protections. See RII.1745–48; RII.1762–69. I agree with the majority that “Sixth Amendment attorney-client confidentiality is distinct from and broader than the attorney-client privilege.” Op. at 19. But the majority needed only “assume without deciding” that Mr. Hohn demonstrated confidentiality, because it found the absence of a showing of prejudice dispositive. Op. at 20. I would reverse because the district court added a privilege element not contemplated by the Sixth Amendment.
A
Recall, under , a per se Sixth Amendment violation occurs when (1) there is a “confidential” attorney-client communication; (2) the government becomes “privy to” the communication; (3) it becomes privy because of a purposeful intrusion; and (4) the intrusion was not justified by any legitimate interest. See 70 F.3d at 1142. The parties do not appear to dispute the district court’s findings that the government became privy to the content of Mr. Hohn’s call with his attorney because of a purposeful intrusion that was not justified by any legitimate law enforcement interest. The dispositive inquiry was (and should still be) whether Mr. Hohn’s call with his lawyer was a “confidential” communication under the Sixth Amendment.
The district court understood “principles relating to the attorney-client privilege” to be “an appropriate framework for showing that the recordings between petitioner and counsel [were] protected communications under the Sixth Amendment.” RII.1763–64. Applying attorney-client-privilege principles, the court held the call was not a “confidential communication” because Mr. Hohn voluntarily disclosed it to a third party by consenting to recording or monitoring by CCA. See RII.1745–48 (making findings of fact regarding voluntary disclosure); RII.1765–66 (concluding Mr. Hohn did not have a “reasonable expectation of confidentiality” in the attorney-client call).
To support its conclusion that the attorney-client privilege did not protect the call, the district court highlighted these facts: (1) after Mr. Hohn “had studied and understood the Inmate Handbook and phone monitoring consent forms he signed, Hohn placed the call to Campbell from a CCA phone that he believed and understood was monitored and recorded”; (2) Mr. Hohn “testified that he believed and understood that his attorney-client calls were subject to recording by Securus and CCA”; (3) Mr. Hohn acknowledged he “consented to the monitoring and/or recording of his attorney-client calls”; and (4) Mr. Hohn acknowledged “he understood the procedure to except attorney- client calls from monitoring” but “never followed the procedure to make an unmonitored call.” RII.1765–66. The court concluded “this conduct [wa]s inconsistent with an objectively reasonable expectation of confidentiality in the attorney-client communications, and thus the attorney-client privilege and the Sixth Amendment right to confidential attorney-client communications did not attach to the April 23 call.” RII.1766.
B
I agree with the majority it is not appropriate to interpret the Sixth
Amendment right to communicate with one’s counsel as limited by the
attorney-client privilege.
See
Op. at 19. The government suggests we should
extrapolate from a reference to the attorney-client privilege in a footnote in
Weatherford
to conclude “the Sixth Amendment’s protection of confidential
*181
attorney-client communications goes hand-in-hand with the attorney-client
privilege.” Ans. Br. at 32 (citing
Weatherford
,
The footnote explained “one threat to the effective assistance of counsel”
posed by government intrusion in communications is the “inhibition of free
exchanges” between defendant and counsel—a threat similarly addressed by
the attorney-client privilege.
Weatherford
,
Moreover, the facts of
Shillinger
foreclose the reading of “confidential
communication” the government urges and the district court accepted. It
cannot be true
Shillinger
created a rule limiting the Sixth Amendment’s
protections to privileged communications yet granted relief in a case involving
unprivileged communications.
See
70 F.3d at 1134 (explaining trial
preparation sessions took place in the presence of a deputy sheriff). Even if it
were possible the communications in
Shillinger
were privileged (for example,
if Mr. Haworth reasonably believed the third party was a member of the
defense team or took reasonable steps to keep the communications private), we
could not have affirmatively held Mr. Haworth carried his burden of proving a
Sixth Amendment violation without addressing one of the elements.
See
Reply
Br. at 9 (making this point). Therefore, it follows privilege is not an element of
a Sixth Amendment claim under
Shillinger
.
Contra
Ans. Br. at 28 (arguing the
court should decline to give persuasive value to
Shillinger’s
“silence” on
whether attorney-client privilege principles govern, because that question
merely “lurk[ed] in the record” and was not ruled upon (quoting
Webster
v.
Fall
,
The absence of a privilege element is not a “lurking” question; it is a necessary corollary of the holding. Thus, the district court mistakenly grafted an additional attorney-client-privilege requirement onto the elements of a claim under .
C
So what did
Shillinger
mean by “confidential communications?”
The government proposes “confidential communications” are privileged
communications, or at least communications as to which the defense has a
“reasonable expectation of confidentiality,” where confidentiality is defined by
attorney-client-privilege law.
See
Aplee. Supp. Br. at 19 (“The Sixth
Amendment’s protection against government intrusion into attorney-client
communications generally applies only to privileged communications, and
certainly does not protect communications in which a defendant has no
reasonable expectation of confidentiality.”); Ans. Br. at 31 (arguing privilege
principles “should be the starting point for determining whether a defendant
has satisfied the confidential communications element of a Sixth Amendment
intentional-intrusion claim”). In the government’s view, “
Weatherford
provides
a blueprint for this approach.” Aplee. Supp. Br. at 21. For this proposition, the
government relies on (1) the already-addressed reference in footnote 4 of
Weatherford
to
Fisher
, a case about attorney-client privilege, and (2) a sentence
in the same footnote describing that defendants might be able to “exclude[e]
third parties from defense meetings or refrain[] from divulging defense
strategy when third parties are present at those meetings.” Aplee. Supp. Br. at
21 (citing
Weatherford
,
I am unpersuaded. Weatherford likely forecloses the government’s argument. The Court specifically rejected the notion that for Sixth Amendment purposes,
whenever a defendant converses with his counsel in the presence of a third party thought to be a confederate and ally, the defendant assumes the risk and cannot complain if the third party turns out to be an informer for the government who has reported on the conversations to the prosecution . . . .
Mr. Hohn’s suggested definition also does not sеem quite right. Mr. Hohn believes “confidential communications” means any “substantive attorney- client communications”—that is, communications concerning “legal advice or strategy.” Op. Br. at 37, 47. He derives this definition from the facts of Shillinger , arguing, “after all, ‘substantive’ is one thing that the communications in actually were.” Op. Br. at 47 (citing Shillinger , 70 F.3d at 1137). He also proposes communications can be considered “inherently” confidential in a constitutional sense even if they are not confidential in an “evidentiary” sense. Op. Br. at 47.
Under this definition, how far this constitutional confidentiality should stretch is an important question. Drawing the line too broadly could sweep in conversations with no legitimate reason for constitutional protection. But drawing the line too narrowly risks not protecting attorney-client conversations that could provide useful—though perhaps quite subtle—clues to the prosecution. And this lack of clarity may make defendants and attorneys hesitant to speak openly.
This court has never decided whether ’s rule sweeps in seemingly mundane conversations, as when “all the attorney says to the defendant is, ‘Hello, how are you? When are you available to meet?’” Op. at 48. Contrary to the majority’s suggestion, though, I do not see intruding on such conversations as clearly innocuous. With the specter of the adversary eavesdropping, a defendant who may wish to respond, “I am worried about what I have done and must meet immediately,” may instead respond, “I am fine and can meet anytime.” Prosecutors may pick up on subtler hints from these conversations. What if the prosecutor believes any competent defense attorney would ask a certain question during a call, but the defense attorney instead simply says “Hello, how are you?”, with no attention to that question? It would be unsurprising if the prosecution’s strategy shifts in light of its impressions of the defense lawyer. Or the prosecution can pick up clues from tones of voice. “And then we would have to speculate upon what effect those *186 different choices or different intangibles might have had.” Gonzalez-Lopez , 548 U.S. at 151. [36]
But drawing that line precisely is unnecessary to resolving this appeal. Given how closely the facts here hew to those in Shillinger , we need not define “confidential” in this case. The district court “confirmed that the communication” between Mr. Hohn and his attorney “involved legal advice or strategy.” RII.1760. Shillinger undeniably reached at least that far.
V
There was no reason to revisit Shillinger . But, having done so sua sponte , we should have reaffirmed its conclusive presumption of prejudice. The district court correctly understood and applied that conclusive presumption and erred only by adding a privilege element to the Sixth Amendment violation recognized in Shillinger . Under a proper reading of Shillinger , Mr. Hohn’s § 2255 motion should be granted. I would reverse the district court’s contrary conclusion and remand for a determination of the appropriate remedy.
Notes
[1] The opinion in
United States v. Carter
establishes the district court’s
factual findings on the Kansas USAO’s practice of intercepting and listening to
attorney-client communications between CoreCivic detainees and their counsel.
See generally
[2] In June 2022 Congress amended 18 U.S.C. § 924(a) by striking § 922(g) violations from paragraph (2) and moving them to a new paragraph (8). Bipartisan Safer Communities Act, Pub. L. No. 117-159, 136 Stat. 1313 (2022). So though § 922(g) violations are now found under § 924(a)(8), we reference the statutes as listed in the indictment.
[3] The second superseding indictment charged two additional counts: one count of possession of a firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3) (Count 15); and one count of possession of an unregistered short-barreled shotgun, in violation of 26 U.S.C. § 5861(d) (Count 16).
[4] Hohn was tried alongside a codefendant, Michael Redifer. Redifer
separately appealed his conviction to this court, which we affirmed.
United
States v. Redifer
,
[5] Hohn’s case was originally assigned to Judge Carlos Murguia, who presided over all pre- and post-trial proceedings; the case was later reassigned to Chief Judge Julie Robinson on February 21, 2020 , who issued the order denying Hohn’s § 2255 petition, which we review in this appeal. Chief Judge Robinson authored the opinion in United States v. Carter and is presiding over the consolidated CoreCivic § 2255 litigation, see infra n.10.
[6] The
Black
Investigation began in 2016 under the government’s
suspicion that CoreCivic employees and detainees were working together to
smuggle drugs into the facility.
Carter
,
[7] James Campbell was appointed as Hohn’s counsel on April 23, 2012; Hohn’s previous appointed counsel, Assistant Federal Public Defender Tim Burdick, withdrew as counsel the next day.
[8] These facts draw from the district court’s findings after reviewing the audio recording of the phone call in camera . Hohn has not included the six- minute call in the record, and the district court denied the government access to the recorded call, so the government could not include it in the record. We operate solely from the findings of the district court as to its contents.
[9] CoreCivic used a third-party сompany, Securus Technologies, to record all outgoing telephone calls from the prison. Any outgoing phone call to a successfully privatized number should have been excluded from Securus’s automatic recording system. But the record shows that, even when attorneys had correctly followed the procedures to privatize their numbers, Securus sometimes inexplicably recorded their client calls anyway.
[10] Hohn’s petition was part of an expansive effort by the FPD’s office to
seek habeas relief under § 2255 for over 100 petitioners affected by the Kansas
USAO’s “routine and systematic collection of all recorded phone calls from
[CoreCivic] with no exception for attorney-client calls or any other
precautionary measures.”
Carter
,
[11] The court then discussed the Sixth Amendment’s parameters for two
elements of Hohn’s claimed violation under
Shillinger
: (1) the purposeful
intrusion into the attorney-client relationship and (2) the legitimate law-
enforcement purpose for the government’s intrusion.
CCA Recordings 2255
Litigation
,
[12] Hohn’s pending motion to file an oversized reply brief not to exceed 7,500 words is granted.
[13] In the panel briefing, the government did argue that the district court erred by relying on “ Shillinger ’s presumption of prejudice, because applying that presumption runs contrary to the rule and rationale of Weatherford [,] . . . and . . . Morrison . . . , and other Supreme Court cases.” Appellee’s Br. at 24. Obviously, the decision bound the panel.
[14] The Supreme Court’s interpretation of the attorney-client privilege and
the Sixth Amendment right to counsel support that the privilege has a shorter
runway than its constitutional counterpart.
Compare United States v. Zolin
, 491
U.S. 554, 562 (1989) (caveating that because “the privilege has the effect of
withholding relevant information from the factfinder, it applies only” so far as
it is “necessary to achieve its purpose” of enabling open discussions between
clients and counsel (quoting
United States v. Fisher
,
[15] Judge Rossman’s dissent asserts that the majority opinion errs by its
“comprehensive reliance on
Strickland
’s prejudice prong—which applies to
Sixth Amendment claims based on defense counsel’s performance. . . .”
Rossman, J., dissenting, at 17. The dissent contends that “the Sixth Amendment
violation at issue here is based on ‘direct governmental interference with the
right to counsel,’ which the Supreme Court has ‘expressly noted . . . is a
different matter. ’”
Id.
(quoting
Perry v. Leeke
,
[17] We understand
Morrison
’s reference to “interfering with the criminal
proceedings” as including the court’s granting the defendant an evidentiary
hearing to demonstrate prejudice.
[18] The state trial judge stated that, “had [defense counsel] called [him]” to
ask about this unconventional arrangement, he would have ordered “the deputy
to step outside.”
Haworth v. State
,
[19] The district court opined that “[i]t is clear from Weatherford that an intrusion, standing alone, is insufficient as a matter of law to constitute a violation and that an ‘intrusion plus’ standard is appropriate.” Haworth , 852 F. Supp. at 966. As to what this “plus” might include, the district court referenced “the four factors set out in Weatherford ” derived from “what the petitioner in Weatherford had failed to show.” at 965–66 (emphasis omitted). These factors are: “(1) whether evidence used at trial was produced directly or indirectly by the intrusion; (2) whether the intrusion by the government was intentional; (3) whether the prosecution received otherwise confidential information about trial preparations or ( footnote continued )
[20] The authorities that
Shillinger
relies on to reach its contrary conclusion
don’t support the proposition that
Weatherford
obviates the prejudice
requirement for intentional, unjustified governmental intrusions.
Shillinger
leans on two cases for its “suggest[ion]” that
Weatherford
’s holding didn ’t
govern.
[21] The Fifth and Sixth Circuits have suggested this same interpretation of
Morrison
.
See United States v. Melvin
,
[22] In his supplemental brief, Hohn attempts to distinguish
Morrison
from
Shillinger
on the ground that “
Morrison
involved an attempt to interfere with
the overall attorney-client relationship,” rather than “attorney -client
communications.” Suppl. Reply Br. at 5. specifically used the term
“attorney-client relationship” in its holding,
see
[23] We have recently affirmed the three
Cronic
categories of structural
error as such: “(1) the defendant suffers ‘the complete denial of counsel . . . at
a critical stage’ of the criminal justice process; (2) ‘counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing’; and (3) when
‘the likelihood that any lawyer, even a fully competent one, could provide
effective assistance is so small that a presumption of prejudice is appropriate.’”
Orduno-Ramirez
,
[24] Hohn does cite a prosecutorial-intrusion case,
Maine v. Moulton
, 474
U.S. 159 (1985), for the proposition that the government must honor the Sixth
Amendment right to counsel once it has attached and that it thus has an
“affirmative obligation not to act in a manner that circumvents” the right.
Suppl. Br. at 8 (quoting
Moulton
,
[25] Hohn insists that
Shillinger
’s rule wouldn’t capture such mundane
conversations because confidential attorney-client communications, for
purposes of the Sixth Amendment, are limited to those that pertain to “legal
advice or strategy that the defendant has not disclosed to the prosecution.”
Suppl. Br. at. 1. This assertion, which Hohn supports with one of our cases
discussing the attorney-client privilege (not Sixth Amendment confidentiality),
see United States v. Johnston
,
[26] The government leverages this statement from
Shillinger
to argue that
“[t]he rest of the opinion” was “not ‘essential to the determination of the
case,’” and therefore
Shillinger
’s structural- error rule was dictum. Suppl. Resp.
Br. at 18 (quoting
United States v. Moore
,
[27] In his original opening brief to this court, Hohn styled his claim as an “effective-assistance claim,” Op. Br. at 13, 25, and likewise ’s structural-error rule as an “effective assistance test,” id. at 37. Indeed, throughout Hohn’s opening brief, he seems to presuppose that effective- assistance-of-counsel principles inform his Sixth Amendment confidentiality right vis-à-vis the attorney-client privilege. But his position shifts in the supplemental briefing, in which he suggests that this court ought to treat effective-assistance and intrusion-based Sixth Amendment claims differently. See Suppl. Br. at 12–13 (“It is only if the defendant raises a Sixth Amendment claim that is rooted in defense counsel’s deficient performance that the defendant must prove prejudice . . . .”).
[28] The government also cites favorably
Melvin
,
[1] The attorneys in the appeal haven’t heard the recorded phone call, and it isn’t in our record. But the district court made a factual finding about the contents of the call. Given the unavailability of the recording, I would rely on the district court’s findings about the call.
[2] If Mr. Hohn had stipulated that there wasn’t any prejudice, he
presumably would have waived the Sixth Amendment claim with or without
a conclusive presumption.
See United States v. Kieffer
,
[3] Scholars similarly conclude that the burden should fall on the government, not the defendant. See, e.g. , Loretta A. Neary -West, Right to Counsel: Balancing the Burden of Persuasion on the Adversarial Scales of Criminal Justice , 26 S AN D IEGO L. R EV . 1145, 1160– 67 (1989) (urging a theory of allocating the burden on the prosecution (citing C. M C C ORMICK , M C C ORMICK ON E VIDENCE 952 (E. Cleary 3d ed. 1984))); Blake R. Hills, Unsettled Weather: The Need for Clear Rules Governing Intrusion Into Attorney-Client Communications , 50 N.M. L. R EV . 135, 160– 61 (2020) (contending that an intentional, unjustified intrusion should trigger a rebuttable presumption, requiring the government “to prove that it has not used the confidential information to prejudice the defendant or benefit
[4] The case law contains two exceptions.
The first appears in
United States v. Kelly
,
[5] Perhaps in part for this reason, some of the cited cases decline to state who bears the burden to show prejudice, relying on the passive voice
[6] Although the Ninth Circuit acknowledged the necessity of a case- by-
case analysis, the court also provided a detailed description of the
government’s burden:
[T]he government must introduce evidence and show by a
preponderance of that evidence that it did not use this privileged
information. Specifically, it must show that all of the evidence
it introduced at trial was derived from independent sources, and
that all of its pre- trial and trial strategy was based on
independent sources. Strategy in this context is a broad term that
includes, but is not limited to, such things as decisions about the
scope and nature of the investigation, about what witnesses to
call (and in what order), about what questions to ask (and in what
order), about what lines of defense to anticipate in presenting
the case in chief, and about what to save for possible rebuttal.
Danielson
,
[1] These facts are derived from the district court’s memorandum and
order denying Mr. Hohn’s habeas petition,
see
RII.1729, and from the district
court’s factual findings and conclusions of law in
Carter
,
United States
v.
Carter
,
[2] This factual background was comprehensively recited by the district
court in
Carter
,
[3] Defense lawyers routinely make calls to incarcerated clients, and the defense function depends on adversarial confidentiality. As amici Federal Public Defenders summarize, defendants’ “trial lawyers must often communicate with incarcerated clients by phone, and there is no way to be sure the calls are private”—making integrity by prosecutors and other government officials critical. Fed. Pub. Defs. Amicus Br. at 2 (heading capitalization omitted).
[4] The court explained, “[i]t was typical for the USAO to obtain audio
recordings placed by CCA detainees in a wide variety of criminal cases.”
RI.2815. Prosecutors testified they obtained these recordings for a variety of
reasons:
(1) for voice comparisons to aid in identifying voices on wiretaps or
consensual recordings; (2) to see if the defendant had made any
inculpatory statements, particularly if the case was going to trial;
(3) to investigate whether a detainee is continuing to engage in
conspiratorial or otherwise criminal conduct; or (4) to investigate
whether a detainee was violating a court-imposed no-contact order
with other detainees or with witnesses.
Carter
,
[5] In the district court, AUSA Morehead “denied [she] had any idea that the prosecution team was in possession of such calls or that they listened to the recordings.” RII.1772; see also Carter , 429 F. Supp. 3d at 898 (“[T]he AUSAs and their agents deny watching or listening to the recordings.”). The government now appears to concede it did obtain and listen to the recording. See Aplee. Supp. Br. at 4 (discussing several of the district court’s findings in the memorandum and order on Mr. Hohn’s habeas petition without disputing the finding that “the prosecution had copies of the recording, knew the call contained attorney-client communications, and nevertheless intentionally listened to it before Mr. Hohn’s trial” (RII.1775–79)).
[6] Throughout the habeas litigation, the district court observed, the government “continue[d] to trivialize the circumstances precipitating Hohn’s Sixth Amendment claim, . . . referring to his claim for relief as a ‘windfall.’” RII.1781 (quoting ECF No. 1028 at 1).
[7] The district court reasonably observed “[t]here is not much precedent for the [c]ourt to draw from [in ruling on a claim] for obvious reasons; such governmental intrusions into defendants’ attorney-client relationships are easily prevented by the use of a taint team or other precautions.” RII.1781.
[8] In
United States
v.
Kennedy
, 225 F.3d 1187 (10th Cir. 2000), we
observed in a footnote the case was “distinguishable from
Shillinger
in that”
the claim concerned “prosecutorial misconduct flowing from invasion of [the
defendant’s] relationship with his attorney during the investigative stage of
the prosecution,” whereas
Shillinger
involved the pre-trial phase.
Id.
at 1195
n.5. We also “agree[d] with the district court’s ultimate conclusion” that the
alleged invasion into the attorney-client relationship at issue did not violate
the Sixth Amendment.
Id.
In
Reali
v.
Abbot
, 90 F. App’x 319 (10th Cir. 2004) (unpublished), we
discussed
Shillinger
in outlining when a defendant claiming a Sixth
Amendment violation need not show prejudice.
Id.
at 323 & n.3. We held,
because the defendant “fail[ed] to show the prosecution purposefully intruded
upon her attorney-client relationship, she is not entitled to a presumption of
prejudice.”
Id.
at 323 (citing
Shillinger
v.
Haworth
,
[9] The other is “[w]hen, if ever, . . . the government unjustifiably intrude[s] into the attorney-client relationship by intentionally obtaining
[11] It is correct to say the conclusive presumption of prejudice in has been “abrogated.” See Judge Bacharach’s Partial Dissent at 1 (“We earlier held that this kind of intrusion creates a conclusive presumption of prejudice. The majority abrogates this holding.” (emphasis added) (citation omitted)).
[12] Notably, in a case arising from the same prosecutorial intrusions that
affected Mr. Hohn, this court recognized as an unjustified analytical
“shortcut[]” a defendant’s attempt to “equate[] lack of effective assistance of
counsel” in the sense required by “with ‘ineffective assistance of
counsel’ as required by”
Strickland
and similar cases.
United States
v.
Spaeth
,
[13] And even in
Cuyler
, the “presumption of prejudice” the Court
recognized was “more limited” than in government-interference cases.
Strickland
v.
Washington
,
[14] The majority is correct that “the government’s intrusion into the
attorney-client relationship ‘inhibit[s] [the] free exchanges between defendant
and counsel’ and therefore constrains an attorney’s ability to effectively
represent a defendant.” Op. at 14 (alterations in original) (quoting
Weatherford
v.
Bursey
,
[15] The majority argues I “err[] by” using “the overbroad term
‘governmental interference.’” Op. at 21 n.15. Using that term, the majority
says, “merges
prosecutorial
interference with
judicial
interference.” Op. at 22
n.15. I am not persuaded.
First
, the terms
the Supreme Court
uses to describe
this class of cases are, tellingly, “governmental interference,” or “state
interference,” not a more limited term.
E.g.
,
Perry
v.
Leeke
,
[16] According to the majority opinion, per se rules like Shillinger ’s “‘cut[] much too broadly’ to safeguard the Amendment’s guarantees” because they “indiscriminately recognize constitutional violations” without a showing of prejudice. Op. at 40 (alteration in original) (quoting Weatherford , 429 U.S. at 557). I disagree. Shillinger established a per se rule only as to a specific type of intrusion (intentional, unjustified), in a specific context (pre-trial), regarding a specific type of communication (confidential and between a defendant and his attorney). Again, since we decided , we have never again granted relief on that basis. And, in a reality in which “nine out of ten [criminal charges] are resolved by plea and the remaining trials favor conviction . . . fairness, honesty, and morality are not an undue burden on accomplished justice.”
[17] As I will discuss more infra section II.A.2.c., this rationale is one reason was correct to deem the error at issue “structural.”
[18] There is no need to speculate, claims the majority, because “Hohn concedes that he suffered no prejudice.” Op. at 4. I would not read nearly as much into that supposed “conce[ssion]” as the majority does. As I will explain, with on the books, Mr. Hohn’s defense counsel had no obligation to show prejudice on an individualized basis.
[19] In Vasquez v. Hillery , the Court reversed the defendant’s conviction based on the state’s intentional racial discrimination in the selection of the grand jury, refusing the state’s invitation to hold the violation “amounted to harmless error” because it had affected only the indictment process rather than the trial. 474 U.S. 254, 260–62 (1986). The Court stated it has “rejected all arguments that a conviction may stand despite racial discrimination in the selection of the grand jury,” highlighting this error is “possible only under color of state authority” and is thus “wholly within the power of the State to prevent.” Id. at 261, 262. “If grand jury discrimination becomes a thing of the past,” the Court concluded, “no conviction will ever again be lost on account of it.” at 262.
[20] Likewise, the Supreme Court has recognized “dignity” is an interest
separate from autonomy.
McKaskle
v.
Wiggins
,
[21] The majority attempts to downplay
Levy
by discussing a subsequent
unpublished case,
United States
v.
Mitan
. Op. at 68 (citing
United States
v.
Mitan
, 499 F. App’x 187 (3d Cir. 2012) (unpublished)). Through
Mitan
, the
majority reasons, “the Third Circuit has . . . rolled back
Levy
’s interpretation
of
Weatherford
in light of . . .
Morrison
.” Op. at 68. But
Mitan
changes nothing.
First
, as the majority acknowledges,
Mitan
“did not overturn
Levy
.” Op.
at 68;
see Mitan
,
[22] As noted, the prosecutors clearly believed they would, and did, gain a “tactical advantage” from these intrusions. RII.1775. Recall, also, the district court’s description of the ways in which the USAO used the recordings for their benefit, including (1) for voice comparisons to aid in identifying voices on wiretaps or consensual recordings; (2) to see if the defendant had made any inculpatory statements, particularly if the case was going to trial; (3) to investigate whether a detainee is continuing to engage in conspiratorial or otherwise criminal conduct; or (4) to investigate
[24] More specifically, the Court said,
Nor do we believe that federal or state prosecutors will be so prone
to lie or the difficulties of proof will be so great that we must
always assume not only that an informant communicates what he
learns from an encounter with the defendant and his counsel but
also that what he communicates has the potential for detriment to
the defendant or benefit to the prosecutor’s case.
Weatherford
,
[25] After all, the Court later discussed the remedy available given “[t]he
Sixth Amendment violation
, if any,”
United States
v.
Morrison
,
[26] Notably, this statement in Morrison suggests the showing at the remedies stage is not “a showing of actual prejudice,” see Op. at 38, but rather a showing that the intrusion “has had or threatens some adverse effect.” 449 U.S. at 365 (emphasis added). Thus, even if the majority were referring only to the remedies stage, its assertion that the Court requires “demonstration of prejudice” is incorrect. Op. at 43. As noted above, prejudice could be “threaten[ed].”
[27] The majority asserts Mr. Hohn has waived his argument that
Black
,
O’Brien
, and
Hoffa
implied “a prosecutor who purposefully learns about the
contents of confidential attorney-client communications commits a structural
constitutional violation” by inadequately briefing it. Aplt. Supp. Br. at 22;
see
Op. at 56–57. Because Mr. Hohn “doesn’t address
Weatherford
’s unfavorable
discussions of” those cases, the majority believes the argument was
“inadequately presented” and thus “waived.” Op. at 56–57 (quoting
United
States
v.
Walker
,
[28] What is more, perhaps
nothing at all
is “to be inferred from these two
cases with respect to the right to counsel”; perhaps they were decided on
“Fourth Amendment grounds,” not Sixth Amendment grounds.
Weatherford
,
[29] We ultimately “remand[ed] the case to the district court for factfinding
procedures to determine the extent of the intrusion as well as the proper
remedy.” ,
[30] As I have outlined, the Supreme Court follows these principles when
deciding whether to set aside its own precedents. And at least some of our sister
circuits have followed these same principles in deciding whether to set aside
their precedents.
See, e.g.
,
Riccio
v.
Sentry Credit, Inc.
,
[31] In that case, the Court relied on all of those “strong reasons” combined
to overrule precedent in the First Amendment context.
See Janus
v.
Am. Fed’n
of State, Cnty., & Mun. Emps., Council 31
,
[32] As I described, this type of prosecutorial intrusion is within the
“limited class” of cases the Court has recognized as structural errors based on
state interference with the right to counsel.
See supra
section II.A. ,
contrary to the majority’s assertion,
did
“grapple with
Cronic
’s limited
categories for recognizing structural error in Sixth Amendment right-to-
counsel claims,” Op. at 44, when it discussed
Ferguson
,
Brooks
,
Herring
, and
Geders
as “cases in which state interference with the right to counsel has been
held to violate the defendant’s Sixth Amendment rights
per se
,” and when it
considered factors later described in
Weaver
.
[33] I would at least not hold this litigation choice against Mr. Hohn and would thus not apply today’s ruling retroactively to pending cases.
[34] “A majority of circuits either support or are consistent with our view,” the majority opinion says, “that constitutional claims like Hohn’s require the defendant to show prejudice,” and such “prejudice accrues ‘only if the
[36] In any event, as the majority recognizes, this case does not provide an occasion to decide whether would reach these purportedly “harmless subjects.” Op. at 48.