[00:00:01] Speaker 12:
Now the other business at hand.

[00:00:04] Speaker 12:
We have before us one case, an en banc case before us, 22-3009, United States versus home.

[00:00:14] Speaker 12:
Would counsel for the appellant please make your appearance and then proceed.

[00:00:20] Speaker 12:
And I'm sure you've been informed that you have three minutes and then we will bombard you.

[00:00:27] Speaker 11:
Great.

[00:00:28] Speaker 11:
Thank you, Chief Judge Holmes.

[00:00:30] Speaker 11:
Ken and Shannon McGinn with Paul Weiss for Helen Stephen Howe.

[00:00:34] Speaker 11:
May I please the court?

[00:00:35] Speaker 11:
This case involves a familiar episode of egregious prosecutorial misconduct.

[00:00:40] Speaker 11:
A prosecutor deliberately and unjustifiably listened to a defendant's confidential communications with his attorney.

[00:00:48] Speaker 11:
As this court held in Schillinger, that conduct violates the Sixth Amendment and constitutes structural error that necessitates some form of remedy.

[00:00:57] Speaker 11:
Schillinger is sound, and this court should not overrule it.

[00:01:01] Speaker 11:
Schillinger is consistent with the Supreme Court's cases on the Sixth Amendment right to counsel, which presuppose that a defendant's communications with his attorney will be private and secure from intrusion by the prosecution.

[00:01:14] Speaker 11:
Schillinger is also consistent with the Supreme Court's cases on structural errors.

[00:01:19] Speaker 11:
which made clear that certain types of errors implicate fundamental fairness, are likely to be prejudicial, and are not readily susceptible to harmless error analysis.

[00:01:30] Speaker 11:
This court should reject the government's efforts to water down Schillinger by requiring a defendant to prove that the communication was also protected by the attorney-client privilege in order to invoke the protections of the Sixth Amendment.

[00:01:43] Speaker 11:
The district court erred by determining that no Sixth Amendment violation occurred in this case, and its judgment should be reversed and the case remanded for proceedings on the appropriate remedy.

[00:01:54] Speaker 11:
I welcome the court's questions.

[00:01:58] Speaker 08:
Can you give some examples of why prejudice isn't good enough?

[00:02:04] Speaker 08:
Why the structural error route is correct?

[00:02:07] Speaker 08:
Just give me a flavor of something that you envision.

[00:02:10] Speaker 08:
And I'll come back to the facts of this case, too, as part of your response.

[00:02:14] Speaker 08:
Sure.

[00:02:14] Speaker 11:
Judge Tamkovich, the Supreme Court, in its most recent cases on structural error, has laid out three relevant considerations.

[00:02:23] Speaker 11:
And I've alluded to them already, but let me go into them in more detail.

[00:02:26] Speaker 11:
The first is whether or not the violation at issue inevitably signals fundamental unfairness.

[00:02:33] Speaker 11:
In our view, the answer to that question is yes, because the adversarial system itself necessarily depends on a wall between the defense and the prosecution, who after all are the defendant's adversary at trial.

[00:02:47] Speaker 11:
Second, on the issue of prejudice,

[00:02:50] Speaker 11:
A constitutional violation is structural where it is likely to be prejudicial and not susceptible to harmless error analysis.

[00:02:59] Speaker 11:
Now, what do I mean by that?

[00:03:01] Speaker 11:
What I mean by it is that as this court has recognized in Orduno Ramirez, in the context of a trial, the risk of prejudice is acute.

[00:03:13] Speaker 11:
When the prosecution is privy to the defense strategy, there are any number of ways in which that can affect the prosecution's approach.

[00:03:22] Speaker 11:
Now when I say this sort of error is not susceptible to harmless error analysis, what do I mean by that?

[00:03:27] Speaker 11:
What I mean is that I think it is very difficult for a court to conduct this sort of analysis precisely because when you are dealing with information concerning defense strategy and when we're talking about confidential communications, what we're talking about are communications about legal advice or strategy relevant to trial.

[00:03:48] Speaker 11:
In that circumstance,

[00:03:49] Speaker 11:
Again, it's very difficult to know exactly how the prosecution strategy has been affected.

[00:03:55] Speaker 08:
It's a per se rule.

[00:03:56] Speaker 08:
So in every circumstances, we're presuming that there's some benefit to trial strategy.

[00:04:02] Speaker 08:
And my question is, can't a trial judge sort that out after an appropriate objection and do the harmlessness analysis?

[00:04:10] Speaker 08:
Because we do harmless error for a lot of constitutional violations.

[00:04:14] Speaker 11:
That's correct.

[00:04:15] Speaker 11:
And I think that this type of violation is a little bit different.

[00:04:19] Speaker 11:
And I would point this court in particular to the Ninth Circuit's decision in the Danielson case, which I think does a very good job of explaining why.

[00:04:28] Speaker 11:
And here's the Ninth Circuit's reasoning.

[00:04:29] Speaker 11:
What the Ninth Circuit says there is, where the prosecution obtains particular pieces of evidence as a result of some constitutional violation, placing the burden on the defendant, conducting a harmless error analysis,

[00:04:40] Speaker 11:
makes good sense.

[00:04:42] Speaker 11:
Why?

[00:04:42] Speaker 11:
Because the defendant is in at least as good a position as the government to show why a particular piece of evidence was prejudicial.

[00:04:50] Speaker 11:
And there are all sorts of contexts.

[00:04:52] Speaker 11:
One that came up this morning in one of the panel arguments was the context of a Brady violation.

[00:04:56] Speaker 11:
When you're analyzing materiality, you're just simply weighing all of the evidence in the case.

[00:05:01] Speaker 11:
That's pretty straightforward.

[00:05:02] Speaker 11:
What the Ninth Circuit went on to say is that when a case

[00:05:04] Speaker 11:
In a case where a wrongful intrusion results in the prosecution obtaining the defense's trial strategy, the question of prejudice is more subtle because the prosecution team knows what it did and why, and the defendant can only guess.

[00:05:18] Speaker 07:
Didn't Danielson, though, was that a rebuttable presumption of prejudice, please?

[00:05:22] Speaker 11:
The Ninth Circuit took a somewhat different approach.

[00:05:24] Speaker 11:
It took this burden-shifting approach.

[00:05:26] Speaker 07:
And that is not the approach you would like us to take?

[00:05:27] Speaker 11:
It's not the approach we would like this court to take, though I would note that that approach is not quite as distant as it might seem, Judge Rossman,

[00:05:34] Speaker 11:
because it's relatively easy in the circuits that adopt this approach, the Ninth Circuit and the First Circuit, for a defendant to make out a prima facie case where the defendant can show that the violation was intentional.

[00:05:45] Speaker 11:
And to complete my answer to Judge Timkovich's question, I think a particular reason why the juice is not worth the squeeze and why this court should not require some inquiry into prejudice or harmless error in this context is because the violation itself

[00:06:00] Speaker 11:
presupposes that the prosecution is acting purposefully.

[00:06:04] Speaker 11:
You have a prosecutor who is deliberately intruding into the attorney-client privilege.

[00:06:09] Speaker 11:
And in those circumstances, the prosecutor is the last person you should trust when the prosecutor comes in and says, this is no big deal.

[00:06:18] Speaker 11:
This court will be well aware of the fact that in this case, the prosecutor at issue, Assistant United States Attorney Moorhead, denied even listening to the tapes.

[00:06:28] Speaker 11:
The district court rightly, given all the factual circumstances, determined that that was not credible.

[00:06:33] Speaker 11:
If this case were to be sent back

[00:06:35] Speaker 11:
even for the government to show harmless error, the government would presumably have to somehow show that based on the district court's determination that there was intentional listening, there was nevertheless no prejudice.

[00:06:46] Speaker 11:
Do we have any idea what the content of this conversation was?

[00:06:52] Speaker 11:
We do, Judge Hartz, because the district court made determinations about that.

[00:06:55] Speaker 11:
And to be sure, there were determinations made in camera.

[00:06:58] Speaker 11:
I would point the court.

[00:06:59] Speaker 11:
to page 1754 of the record in volume two, where the district court found that in the conversation at issue, our client Stephen Hone and his then counsel, James Campbell, discussed four things.

[00:07:11] Speaker 11:
First, whether Hone wanted to go to trial.

[00:07:13] Speaker 11:
Second, his criminal history.

[00:07:15] Speaker 11:
Third, the evidence against him.

[00:07:17] Speaker 11:
And fourth, the problems with that evidence.

[00:07:20] Speaker 11:
And the district court made those determinations about what the contents of the tape actually were.

[00:07:26] Speaker 11:
And for a prejudice analysis to occur in this case, the government, assuming for the moment that the government would bear the burden under a harmless error type analysis, would have to show that that had no impact on trial strategy.

[00:07:41] Speaker 11:
And as we explained in the briefs, this is no different from if you were playing poker and the other side knew what your whole cards were.

[00:07:47] Speaker 11:
Of course, that's going to affect the strategy.

[00:07:50] Speaker 03:
Isn't that a decent argument that there was some prejudice?

[00:07:54] Speaker 03:
But you're asking us to always reverse, regardless of the content of that conversation.

[00:08:00] Speaker 03:
This was his first meeting with that attorney, was it not?

[00:08:03] Speaker 03:
Yes, that is correct.

[00:08:04] Speaker 03:
So it could have been the judge found otherwise.

[00:08:08] Speaker 03:
What's your name?

[00:08:09] Speaker 03:
How do I reach you?

[00:08:12] Speaker 03:
Just mundane things like that that would have nothing to do with trial strategy.

[00:08:16] Speaker 03:
Why should we automatically reverse in that circumstance?

[00:08:19] Speaker 11:
Two points in response to that, Judge Hartz.

[00:08:20] Speaker 11:
First, the Schillinger test itself

[00:08:22] Speaker 11:
provide some protection against that hypothetical.

[00:08:25] Speaker 11:
Because you have to have confidential attorney client communications, communications about legal advice and strategy relevant to trial.

[00:08:33] Speaker 11:
And so if you were just having a ministerial conversation, I don't think it would follow.

[00:08:36] Speaker 03:
So that's all you're asking for.

[00:08:38] Speaker 03:
You would maintain that limit.

[00:08:40] Speaker 11:
Yes, correct.

[00:08:41] Speaker 11:
We are not suggesting in any way that the court should ratify that.

[00:08:45] Speaker 11:
But second, as I was saying to Judge Timkovich, I think it's important to keep in mind two things about how the Supreme Court has gone about the taxonomy of errors as structural errors or as ordinary errors.

[00:08:57] Speaker 11:
I think that the court has made clear that, again, the question here is not whether there is never a case that one can imagine where there would be no prejudice.

[00:09:08] Speaker 11:
Instead, the court has taken into account, and I would point to Weaver among other cases, both how likely is it that there is going to be prejudice in this context.

[00:09:16] Speaker 11:
And number two, is this, again, the type of error that is susceptible to harmless error analysis?

[00:09:21] Speaker 11:
Is it so difficult that in that subset of cases where there may be no prejudice, is the juice worth the squeeze?

[00:09:28] Speaker 11:
And our submission is that it isn't, because the violation here, and this is where the other factors come in,

[00:09:34] Speaker 11:
is a violation that implicates fundamental fairness.

[00:09:37] Speaker 11:
And just to put the third of the three considerations on the table, does this protect an interest separate from the right to a fair trial?

[00:09:45] Speaker 11:
This morning, there was the panel argument in the Valdez case, which involved a similar type of violation, but in the sentencing context.

[00:09:53] Speaker 11:
And one of the issues that those members of the court who were on the panel discussed is, is this really like

[00:10:00] Speaker 11:
ineffective assistance of counsel, a Strickland violation.

[00:10:03] Speaker 11:
And I think that the answer is no, this is a different type of Sixth Amendment violation.

[00:10:09] Speaker 11:
Because as the Supreme Court explained in the Gonzalez-Lopez case,

[00:10:14] Speaker 11:
Strickland, ultimately, is a right that is derived, even though it's a Sixth Amendment right, it's a right to effective counsel that is derived from the overarching right to a fair trial.

[00:10:24] Speaker 11:
In that context, it obviously makes sense to analyze prejudice.

[00:10:28] Speaker 08:
Hereby, I'm going to address... Do you have to win on the attorney-client privilege issue?

[00:10:33] Speaker 08:
How does that play into the structural error piece, if we were to conclude there's no

[00:10:38] Speaker 08:
attorney-client invasion was waived?

[00:10:41] Speaker 11:
Sure.

[00:10:41] Speaker 11:
I think in some sense the answer to that question is related to what I was just about to say, which is that this is a little bit different from the attorney-client privilege, and this is also a right that is distinct from the right to a fair trial.

[00:10:53] Speaker 11:
So the right to a fair trial is obviously a very familiar right.

[00:10:58] Speaker 11:
The Sixth Amendment right we're talking about here

[00:11:01] Speaker 11:
is the right to have confidential attorney-client communications free from unwanted interference by the prosecution.

[00:11:08] Speaker 11:
So in other words, the violation is complete when the intentional intrusion takes place.

[00:11:15] Speaker 12:
And the attorney-client privilege... And pardon my ignorance, but what's the support for that?

[00:11:20] Speaker 12:
I mean, why isn't Preg's pardon parcel determining whether there's a Sixth Amendment violation to begin with?

[00:11:26] Speaker 11:
So I think it is because, as the Supreme Court indicated in Gonzalez Lopez, the only context in which prejudice has been required is in the Strickland context.

[00:11:37] Speaker 11:
When you think about all of the other Sixth Amendment rights, including the Sixth Amendment rights that have been said to be structural,

[00:11:45] Speaker 11:
you know, admission of guilt by counsel over a defendant's objection, the choice of counsel, the right to self-representation where, if anything, self-representation is more likely to be prejudicial than the alternative, the complete denial of counsel.

[00:11:58] Speaker 11:
Those are all contexts in which, because of the nature of the Sixth Amendment right being protected, the court has not required prejudice.

[00:12:05] Speaker 11:
The only context in which prejudice is required, and I know that this

[00:12:08] Speaker 12:
It did, and some of the cases you're talking about were those limited class of structural error cases.

[00:12:18] Speaker 12:
And there, prejudice was presumed.

[00:12:20] Speaker 12:
So yes, there was a Sixth Amendment violation.

[00:12:22] Speaker 12:
What I'm talking about is absent the prejudice being conclusively presumed,

[00:12:28] Speaker 12:
Why isn't it prejudice baked in something you have to show in order to establish a violation?

[00:12:35] Speaker 12:
In other words, you're talking about harmless error.

[00:12:37] Speaker 12:
Harmless error presumes there's a violation, which we did talk about.

[00:12:42] Speaker 11:
Yeah, Chief Judge Holmes, I understand your question.

[00:12:44] Speaker 11:
Let me do my best to answer it.

[00:12:46] Speaker 11:
The only Sixth Amendment context in which prejudice is baked into the violation itself is in the context of effective assistance of counsel.

[00:12:55] Speaker 11:
And as you'll be aware, in a case in which you have completely ineffective assistance of counsel, even that's not true.

[00:13:00] Speaker 11:
You have chronic and you have the presumption of prejudice.

[00:13:02] Speaker 11:
Why is presumption required in that context?

[00:13:05] Speaker 11:
It's required, as Justice Scalia explained in Gonzalez-Lopez, and I would urge the Court to read this discussion because it provides a great deal of clarity on this issue,

[00:13:14] Speaker 11:
the right to effective assistance of counsel to be free of ineffective assistance is derived from the right to a fair trial.

[00:13:22] Speaker 11:
That's why you have to look at the impact on the trial itself.

[00:13:26] Speaker 11:
And therefore, you have to establish prejudice just to show a Sixth Amendment violation.

[00:13:30] Speaker 11:
Now, it's clear, first of all, that in Schillinger, the court obviously did not require that.

[00:13:37] Speaker 11:
And I think when you look out across the other circuits,

[00:13:40] Speaker 11:
Some circuits apply the burden-shifting framework to which Judge Rossman alluded.

[00:13:44] Speaker 11:
But I think that it is unusual for circuits in a case in which you have an intentional intrusion.

[00:13:51] Speaker 11:
We're not aware of any cases involving an intentional intrusion where all the requirements of Schillinger are satisfied, where a court of appeals has required prejudice.

[00:14:01] Speaker 02:
Well, what about Weatherford?

[00:14:03] Speaker 02:
Weatherford has all kinds of things to say about prejudice.

[00:14:07] Speaker 02:
Double digits, the number of times it talks about prejudice.

[00:14:10] Speaker 02:
And it says, absent some sort of possibility of an injury, there can be no Sixth Amendment violation.

[00:14:17] Speaker 02:
That's not one of those kind of structural errors where prejudice is baked in.

[00:14:21] Speaker 02:
It's looking at whether there's prejudice in this case.

[00:14:25] Speaker 11:
But I think it's important to keep in mind, Judge Phillips, that in Weatherford you had two important factors that were absent.

[00:14:33] Speaker 11:
First, the purposeful intrusion, and second, the intrusion by the prosecution.

[00:14:37] Speaker 11:
And I don't think that the Supreme Court in Weatherford was suggesting that there could be no context in which there would be

[00:14:44] Speaker 11:
structural error analysis, either where prejudice is presumed or where the error is simply characterized as structural.

[00:14:52] Speaker 11:
Indeed, quite to the contrary, the court unambiguously noted at page 554 that if the prosecution had learned of the overheard conversations, Respondent would have a much stronger case.

[00:15:03] Speaker 02:
A much stronger case, meaning that prejudice still would need to be shown even in that instance in which the prosecution

[00:15:10] Speaker 02:
obtained the information and then used it in some fashion to the defendant's detriment, you'd still have to show prejudice.

[00:15:18] Speaker 02:
It's not structural, in other words.

[00:15:21] Speaker 02:
Schillinger offers much less than that.

[00:15:24] Speaker 02:
And Mr. Hohn's case offers much less than that kind of actual use of information that is purposely derived and communicated to prosecutors.

[00:15:36] Speaker 02:
And it says structural error.

[00:15:38] Speaker 02:
Why is that not inconsistent with the language that you just read?

[00:15:42] Speaker 11:
I don't think it's inconsistent with that because I think that what the court was saying in that portion of the discussion was that it is a much more acute constitutional violation where you have an intentional intrusion by the prosecutor.

[00:15:58] Speaker 11:
And that is for the first reason that I pointed to as to why there should be structural error.

[00:16:03] Speaker 11:
This goes directly to the fundamental fairness of the proceeding and the breakdown of the wall between the prosecution and the defense.

[00:16:12] Speaker 11:
And this is precisely why it doesn't make sense to conflate the requirements of the Sixth Amendment with the requirements of the attorney-client privilege.

[00:16:20] Speaker 06:
Let me ask you this.

[00:16:22] Speaker 06:
Even if we agreed with you under Morrison, isn't it a somewhat hollow victory?

[00:16:27] Speaker 06:
Because before you're entitled to any remedy, you have to show prejudice, don't you?

[00:16:33] Speaker 11:
So I think that the Supreme Court's teaching in Morrison was that based on the type of Sixth Amendment violation that was at issue there, dismissal was too strong of a remedy.

[00:16:43] Speaker 11:
The court made quite clear that prejudice was required for the remedy of dismissal, though the court did note in a footnote that in extreme cases, dismissal could be warranted in order to deter future violations.

[00:16:55] Speaker 06:
That would be an issue for- But it announced a general rule

[00:16:59] Speaker 06:
that you have to tie the remedy to the harm and that there has to be harm before you're entitled to any remedy.

[00:17:09] Speaker 06:
So I'm not sure under Morrison.

[00:17:12] Speaker 06:
that they just presume a violation in Morrison and jumped right to the remedy question.

[00:17:18] Speaker 06:
I mean, why shouldn't we do the same thing?

[00:17:21] Speaker 11:
So Judge McHugh, the issue of the remedy is not before this court.

[00:17:25] Speaker 11:
Judge Robinson obviously did not address the issue of the remedy in light of her determination that there was no violation.

[00:17:33] Speaker 11:
So I think if the case were to go back to Judge Robinson, if we were to prevail before this court,

[00:17:38] Speaker 11:
The question would be teed up whether the appropriate remedy is effectively a dismissal, that is to say a reversal of the conviction with prejudice in light of the fact that our client has served a considerable portion of his sentence.

[00:17:52] Speaker 11:
Under Section 2255B, Judge Robinson would have a great deal of discretion about the appropriate remedy, but the remedy could also simply be a new trial.

[00:18:01] Speaker 11:
And the government presumably would get up here.

[00:18:03] Speaker 11:
My friend Mr. Brown would get up here and say, well, that would be the appropriate remedy if the case gets sent back.

[00:18:09] Speaker 11:
That would be an issue to be litigated below.

[00:18:11] Speaker 11:
And I think you're right, Judge McHugh, that in order to get the more stringent remedy of effective dismissal here, that we would have to show something more.

[00:18:20] Speaker 11:
And that would be to be litigated.

[00:18:22] Speaker 06:
Well, do you read Morrison as saying that you could get a remedy of a new trial?

[00:18:27] Speaker 06:
without showing any prejudice.

[00:18:29] Speaker 11:
Yes, I do read Morrison that way.

[00:18:31] Speaker 11:
I read Morrison as saying that dismissal was too strong of medicine for the violation that took place there.

[00:18:39] Speaker 11:
I do not think that a showing of prejudice is required in order to get any remedy at all.

[00:18:44] Speaker 11:
Now, let me underscore one important additional point with regard to the remedy.

[00:18:48] Speaker 11:
And this actually, I think, goes to the argument as to why structural error is warranted here as well.

[00:18:55] Speaker 11:
If you have, I'll call it a virtuous prosecutor, who realizes that the prosecutor has intruded into the attorney-client relationship.

[00:19:05] Speaker 11:
Say you have a prosecutor who gets tapes of prison recordings, doesn't realize that there's an attorney-client recording, and then in listening to it realizes, oh my goodness, that is an attorney-client recording.

[00:19:18] Speaker 11:
What should that virtuous prosecutor do?

[00:19:20] Speaker 11:
Of course, the virtuous prosecutor should go to the court and go to defense counsel.

[00:19:25] Speaker 11:
And at that point, there are going to be more modest remedies.

[00:19:30] Speaker 11:
If, for instance, it turns out that the tapes concern a particular witness, you could bring in another prosecutor to question that witness.

[00:19:37] Speaker 11:
There are things that can be done in that circumstance.

[00:19:40] Speaker 09:
So why is that?

[00:19:41] Speaker 09:
Why is it a more modest remedy if you invade the attorney-client relationship, but you confess?

[00:19:51] Speaker 11:
Because there are steps that the court can take prophylactically at that point.

[00:19:55] Speaker 09:
It's because there would be less prejudice to you, right?

[00:19:58] Speaker 11:
there are steps that can be taken to cure any violation that could take place at trial.

[00:20:05] Speaker 11:
And this is unquestionably a trial right in the sense that it is a right that attaches, obviously, when a defendant is indicted.

[00:20:14] Speaker 11:
And in light of this court's decisions in Spath and Orduno Ramirez, today we're talking about cases that go to trial, that result in a guilty verdict, and what should be done in those circumstances.

[00:20:26] Speaker 09:
So do you contend that in your client's position, it's basically impossible for you to make a showing of prejudice?

[00:20:33] Speaker 11:
Well, I think that where you have an issue that goes to trial strategy, that is correct.

[00:20:39] Speaker 09:
Now, Schillinger itself was a little bit... I mean, because the definition of prejudice in this type of case, a realistic possibility of injury to the defendant or benefit to the government, if the government has surreptitiously discovered your trial strategy,

[00:20:55] Speaker 09:
Isn't that in and of itself evidence of a realistic possibility of injury to your client or benefit to them?

[00:21:02] Speaker 11:
Well, that is basically our view, which is to say, and when you look at some of the decisions from other circuits, I think that what they say is pretty much that where you have an intentional intrusion by the prosecutor,

[00:21:17] Speaker 11:
that is the prejudice, or that is, at a minimum, a prima facie case of prejudice.

[00:21:23] Speaker 11:
And so if you frame the standard in terms of a realistic possibility, I think what I would say is there is always going to be a realistic possibility in this circumstance.

[00:21:32] Speaker 11:
And that's sort of why I think Judge Carson

[00:21:34] Speaker 11:
When you look at earlier cases like Schillinger, they often talk about structural error in terms of a presumption of prejudice.

[00:21:42] Speaker 11:
I think the basic idea is that prejudice is very likely.

[00:21:45] Speaker 11:
There is a realistic possibility of prejudice, precisely because this is information that, in ways that may be difficult to identify but that are very likely, is going to have an effect on the way that the prosecution can conduct the process.

[00:22:00] Speaker 09:
Right.

[00:22:00] Speaker 09:
And I'm going to give Mr. Brown a chance to address this, too.

[00:22:04] Speaker 09:
It just seems to me that if I'm the prosecutor and you say, would you like to know the defense strategy or not?

[00:22:13] Speaker 09:
If I can know it, I know it's going to be better for me.

[00:22:18] Speaker 09:
So it's going to benefit the government.

[00:22:21] Speaker 09:
I mean, it's almost self-executing.

[00:22:26] Speaker 11:
Well, that's our sort of common sense view here.

[00:22:29] Speaker 11:
And again, keep in mind that the rule that we're advocating today only applies in cases involving purposeful intrusions.

[00:22:38] Speaker 11:
And so again, if you have an inadvertent intrusion, I would think that what a prosecutor is going to do is take some steps to remedy this.

[00:22:45] Speaker 11:
I think every prosecutor knows that they should not be making themselves privy to conversations between a defendant and his or her attorney.

[00:22:53] Speaker 11:
Indeed, the United States Attorney's Office in Kansas, after this scandal occurred, modified its policy and now has a written policy to that effect, as do many other districts around the country.

[00:23:07] Speaker 11:
And so the rule we're advocating here is really a rule of common sense.

[00:23:10] Speaker 12:
Well, was the hypothetical that you described

[00:23:15] Speaker 12:
prosecutor, was that an inadvertent or was that a purposeful intrusion?

[00:23:19] Speaker 11:
I think that would be an inadvertent intrusion.

[00:23:22] Speaker 11:
Now, if that prosecutor, after realizing that it was an attorney-client communication, said, gee, I'd like to keep listening to this, then it could become a purposeful intrusion.

[00:23:33] Speaker 11:
But what we mean by a purposeful intrusion is intentionally listening to an attorney-client communication.

[00:23:39] Speaker 11:
And that is what Judge Robinson at Page

[00:23:41] Speaker 04:
1779 found that... Council, could you focus for a moment on the scope of communications that you argue the Sixth Amendment covers?

[00:23:54] Speaker 04:
In other words, you argue that the attorney-client privilege does not define the scope of the Sixth Amendment, but then go on to say that it covers the contents of non-privileged confidential attorney-client communications.

[00:24:12] Speaker 04:
Can you explain what you mean by that?

[00:24:14] Speaker 04:
In particular, what you mean by confidential?

[00:24:17] Speaker 04:
If it's not the attorney-client privilege, what exactly are the contours that we're dealing with?

[00:24:22] Speaker 11:
I think the principle delta here is that we think, Judge Matheson, that when the attorney-client privilege has been waived, you can still have a communication whose content is confidential for purposes of the Sixth Amendment.

[00:24:38] Speaker 11:
And that's because the attorney-client privilege

[00:24:40] Speaker 11:
ensures confidentiality of communications between attorneys and their clients in a wide range of contexts, whereas the Sixth Amendment is really protecting the adversarial system.

[00:24:49] Speaker 11:
It is protecting the relationship between the defendant and his attorney from intrusions by the attorney's adversary.

[00:24:57] Speaker 11:
So I think as a practical matter, it's similar in the sense of the content of the communication, in that it has to be, as I said earlier, communications about legal advice or strategy relevant

[00:25:07] Speaker 03:
to the trial to which the Sixth Amendment right is attached.

[00:25:19] Speaker 03:
and had a conversation with his attorney, his early attorney, goes back to the cell and tells the cellmate, hey, I had the most interesting conversation with my attorney, and describes it.

[00:25:31] Speaker 03:
The cellmate then reports to a guard and goes to the prosecution.

[00:25:35] Speaker 03:
Is that protected by the 6th of May?

[00:25:36] Speaker 11:
Yeah, Judge Horowitz, I'll answer your question and any others.

[00:25:38] Speaker 11:
I would like Chief Judge Holmes to reserve some time for a rebuttal, but I'm happy to answer as many questions as there are.

[00:25:44] Speaker 11:
And I'll answer that question directly.

[00:25:46] Speaker 11:
I would say first, the question is, were the contents of the communication within our rule?

[00:25:52] Speaker 11:
And I'm assuming from your question that the answer to that is yes, or communications about strategy.

[00:25:58] Speaker 11:
Second, I think the question would be, has there been a waiver of the Sixth Amendment right by virtue of the communication with the settlement?

[00:26:08] Speaker 11:
And that would require the familiar constitutional inquiry into whether or not there was a knowing and intelligent waiver of the right.

[00:26:15] Speaker 11:
I think that would require knowledge that the communication is going to the adversary, the prosecution, and an intelligent waiver.

[00:26:24] Speaker 11:
So if CCA in this case had given a warning that specifically said, this communication is going to be shared with the prosecutor, proceed at your own risk.

[00:26:35] Speaker 11:
We would have a different case because we would have to defend against the claim that that is sufficient if you proceed for a Sixth Amendment waiver.

[00:26:43] Speaker 11:
We don't think what took place here is enough, and I would refer the court to the last section of our panel brief on that issue.

[00:26:51] Speaker 02:
If this went back for another trial, would anything change?

[00:26:54] Speaker 02:
There's no evidence that would be purged.

[00:26:56] Speaker 02:
It would be a meaningless run through with another flip of the coin possibility for Mr. Holm, right?

[00:27:02] Speaker 02:
It might or it might not.

[00:27:03] Speaker 02:
Well, what would?

[00:27:04] Speaker 02:
You say that every case involves a possibility of prejudice and so forth, and that legal strategy was discussed.

[00:27:13] Speaker 02:
We don't have the telephone call.

[00:27:14] Speaker 02:
Why don't we have the telephone call so we can assess that?

[00:27:17] Speaker 11:
The district court reviewed the telephone call in camera.

[00:27:21] Speaker 11:
It was not made part of the record.

[00:27:22] Speaker 11:
But I think on the issue of prejudice, that issue is obviously distinct from, related to, but distinct from the contents of the communication.

[00:27:31] Speaker 11:
Now, part of the reason why I can't tell you whether or not a new trial will be different is precisely because we are not in a position to tell you how this affected the trial strategy.

[00:27:42] Speaker 11:
And if the district court on remand rejects our argument for a more ambitious remedy and just says a new trial, we're obviously content to proceed in that way.

[00:27:51] Speaker 11:
I will note one thing, Judge Phillips, which is that it is a little bit strange that after all of these years of the Kansas US Attorney's Office scandal concerning these recorded conversations, and after the United States Attorney's Office has resolved a number of these cases, it has been unwilling to resolve this case, even though our client has served now more than a decade

[00:28:11] Speaker 11:
Half of his sentence, the US attorney's office has been unwilling to agree to a sentence reduction or any form of relief in this case.

[00:28:19] Speaker 11:
And that is really the reason why we are here.

[00:28:21] Speaker 02:
Well, you haven't identified any prejudice.

[00:28:23] Speaker 02:
You haven't said this evidence came in that wouldn't have.

[00:28:26] Speaker 02:
And that might cause a reassessment.

[00:28:29] Speaker 02:
But there's a six minute call introductory with a new attorney where we do not have the call.

[00:28:39] Speaker 02:
and the notion that there was something prejudicial.

[00:28:42] Speaker 02:
You've heard the call, have you not?

[00:28:44] Speaker 02:
I have not listened to the call.

[00:28:45] Speaker 02:
My co-counsel has.

[00:28:47] Speaker 02:
All right.

[00:28:47] Speaker 02:
And so if there were something in there that was going to cause evidence to be purged, we would have heard about that.

[00:28:55] Speaker 11:
Judge Phillips, what I would say is this.

[00:28:57] Speaker 11:
There are going to be easy cases on prejudice.

[00:29:00] Speaker 11:
Schillinger itself was an easy case on prejudice, because there, you had the prosecutor commenting on the defendant's own testimony in a way

[00:29:09] Speaker 11:
that reflected what the prosecutor had learned about the defendant's choice of words.

[00:29:15] Speaker 11:
There are going to be those easy cases.

[00:29:17] Speaker 11:
The problem here is that there are going to be hard cases, these cases involving trial strategy, where the effects are going to be subtle.

[00:29:26] Speaker 11:
And I think in some sense, what you need to know is that the prosecution, of course, would love to have information about trial strategy in the same way that any litigant in a criminal or a civil case always would.

[00:29:38] Speaker 11:
And so this rule really serves a purpose beyond merely knocking out these cases, regardless of whether there's a showing of prejudice.

[00:29:47] Speaker 11:
The rule serves a foundational interest in protecting the adversary system in the criminal context where a defendant's rights are paramount.

[00:29:56] Speaker 11:
That is how the Supreme Court has analyzed this and pretty much everything that you just said.

[00:30:01] Speaker 11:
You said about any of the Sixth Amendment rights that the Supreme Court has subjected to structural error analysis.

[00:30:08] Speaker 11:
And that is because outside the context of effective assistance of counsel, what you are really doing in all of these contexts is protecting the relationship between the defendant and his counsel.

[00:30:19] Speaker 11:
You will have rebuttal time.

[00:30:20] Speaker 11:
Great.

[00:30:21] Speaker 11:
Thank you, Chief Judge Holmes.

[00:30:50] Speaker 05:
Good afternoon, Your Honors.

[00:30:51] Speaker 05:
James Brown for the United States.

[00:30:53] Speaker 05:
With me at council table is the United States Attorney for the District of Kansas, Kate Brubaker.

[00:30:59] Speaker 05:
May it please the Court, Your Honor, it is time for this Court to overrule Schillinger and discard its presumed prejudice rule.

[00:31:07] Speaker 05:
That rule is contrary to the Supreme Court's precedent and 10 other circuits, which require that prejudice from an intrusion be demonstrated on a case-by-case basis rather than presumed.

[00:31:19] Speaker 05:
The presumed prejudice rule should be discarded for two main reasons.

[00:31:24] Speaker 05:
First, it cuts much too broadly, and it's overinclusive.

[00:31:28] Speaker 05:
That rule applies to cases where prejudice is factually impossible.

[00:31:33] Speaker 05:
It applies where prejudice is readily disprovable.

[00:31:37] Speaker 05:
It applies to cases where the information was obtained from untainted and independent sources.

[00:31:43] Speaker 05:
It cuts much too broadly.

[00:31:45] Speaker 05:
The second reason this court should overrule Schillinger is because there's no basis for treating a groundless prosecutorial intrusion as structural error, which is the basis for Schillinger's presumed prejudice rule.

[00:31:58] Speaker 05:
The Supreme Court has stated that structural errors

[00:32:00] Speaker 05:
always result in unfairness, and their harmfulness is hard to measure.

[00:32:04] Speaker 05:
But even a groundless prosecutorial intrusion is not always unfair, and its harmfulness is not hard to measure.

[00:32:11] Speaker 05:
Indeed, 10 other circuits and the Supreme Court agree that the measurement of harmfulness or unfairness is prejudice, which courts routinely assess and measure in this context and others on a case-by-case basis.

[00:32:27] Speaker 05:
Even if this Court does not overrule Schillinger and reverse Schillinger, it should still affirm on the basis that the Sixth Amendment never attached to Mr. Holm's call, because the call was not confidential.

[00:32:40] Speaker 05:
Mr. Holm knowingly and voluntarily chose to make a non-confidential call, so he lacked a reasonable expectation of confidentiality in the call, which is a requirement for a Sixth Amendment violation.

[00:32:57] Speaker 04:
Mr. Brown, could I just jump in on that point?

[00:33:01] Speaker 04:
You're arguing in your brief that to the extent the Sixth Amendment protects non-privileged communications, that is, communications outside the attorney-client privilege,

[00:33:13] Speaker 04:
It protects only those in which defendants have a reasonable expectation of confidentiality.

[00:33:19] Speaker 04:
Could you explain how that test is different from the attorney-client privilege?

[00:33:25] Speaker 04:
And again, I asked a similar question to opposing counsel.

[00:33:29] Speaker 04:
Sort of sketch out the contours, if we disagree that it's limited to attorney-client privilege.

[00:33:35] Speaker 05:
Well, from a practical point of view, the test is not all that dissimilar to the attorney-client privilege.

[00:33:41] Speaker 05:
As this court knows, the attorney-client privilege has been around since the common law.

[00:33:44] Speaker 05:
And courts routinely deal with its ins and outs every single day in this country.

[00:33:49] Speaker 05:
And there are very well-defined principles and rules that define the attorney-client privilege.

[00:33:54] Speaker 05:
The Supreme Court uses the attorney-client privilege as a framework for analysis for Sixth Amendment violations, as evidenced through footnote four, of the Weatherford opinion.

[00:34:05] Speaker 05:
Now, is there a difference between the attorney-client privilege and a confidential communication?

[00:34:10] Speaker 05:
The way I take the court's question, the court is asking, can communication be not covered by the attorney-client privilege but still confidential?

[00:34:20] Speaker 04:
Still covered by the Sixth Amendment?

[00:34:22] Speaker 05:
Right.

[00:34:23] Speaker 05:
Well, a communication is not covered by the Sixth Amendment unless it's confidential.

[00:34:27] Speaker 05:
So let's talk about when a communication is confidential.

[00:34:31] Speaker 05:
We look at the Melbourne standard, which is the standard that the district court used to determine whether a communication is confidential.

[00:34:38] Speaker 05:
In Melbourne, the Fifth Circuit said that a communication is confidential if it's intended to remain confidential and if it was made under circumstances such that it was reasonably understood and expected to be confidential.

[00:34:52] Speaker 05:
Now, if we compare that standard to the attorney-client privilege, it would be hard to find a real distinction.

[00:34:59] Speaker 05:
So we think that the attorney-client privilege basically is the framework that is used to define a Sixth Amendment violation.

[00:35:08] Speaker 07:
Is there any case other than Weatherford and Footnote 4 that you rely on where the Supreme Court has engaged in a threshold assessment of attorney-client privilege to consider the Sixth Amendment right?

[00:35:26] Speaker 05:
Your Honor, we don't know of another Supreme Court case.

[00:35:28] Speaker 05:
where that has done that.

[00:35:30] Speaker 05:
There are several circuit court cases that have done that.

[00:35:32] Speaker 05:
I would point the court to specifically the Ginsburg case in the Second Circuit, the Melvin case in the Fifth Circuit, the Hari case in the Eighth Circuit, the Daniel case in the Ninth Circuit, and the Asformas case in the Eleventh Circuit.

[00:35:46] Speaker 05:
They all basically defined their Sixth Amendment analysis in terms of whether the communication at issue was privileged.

[00:35:54] Speaker 05:
If you look at the Asformas case, which is the case that the Supreme Court is tonight's

[00:35:58] Speaker 05:
The word privilege is probably there 25 times.

[00:36:03] Speaker 05:
That's how they determine whether there was a Sixth Amendment violation.

[00:36:06] Speaker 05:
Our point is that privilege is just a proxy for confidentiality.

[00:36:10] Speaker 05:
There really can't be much difference between the two, and this court should just stick with the framework that has been around since the common law rather than

[00:36:19] Speaker 05:
doing what the defendant asked the court to do.

[00:36:22] Speaker 01:
How do you square that argument, Mr. Brown, with page 554 of Weatherford?

[00:36:27] Speaker 01:
In Weatherford, it was certainly comparable to our situation, a non-confidential communication, and yet the Supreme Court said on page 554 that we are not agreeing with petitioners that

[00:36:41] Speaker 01:
whatever a third party is present, that the defendant assumes the risk.

[00:36:47] Speaker 01:
And then the court went on to discuss the language that the opposing counsel cited, noting that there may very well be a Sixth Amendment violation, notwithstanding the presence of a non-confidential communication.

[00:37:02] Speaker 05:
Well, Your Honor, we, first of all, we think that that language, by that language, the court might have been

[00:37:09] Speaker 05:
leaving the door open to the hypothetical possibility that a communication could be confidential even though it's not privileged.

[00:37:16] Speaker 05:
We think the court might have left the door open to that possibility.

[00:37:20] Speaker 05:
However, the court said, we need not agree that.

[00:37:23] Speaker 05:
The court didn't say, we don't agree that.

[00:37:27] Speaker 05:
The court didn't need to agree to that proposition that the court read because that proposition was not essential to the determination of its decision.

[00:37:36] Speaker 05:
If you look at the proposition that the court just read, the government argued exactly that, that the defendant takes the risk every time the defendant brings a third party into a meeting.

[00:37:48] Speaker 05:
And the court was just saying, we don't need to agree to that because in that case, in the Weatherford case, nothing from that

[00:37:56] Speaker 05:
third party was communicated to the prosecutor.

[00:37:59] Speaker 01:
So if a federal public defender, for example, interviews a pre-trial detainee in the prison and then there is a guard present, the prosecutor can, without violating the Sixth Amendment, ask the guard what was discussed with the lawyer

[00:38:16] Speaker 01:
because all of those communications are going to be non-confidential because a third party is going to be present.

[00:38:21] Speaker 05:
Well, first of all, if I can just preface the answer, I'll answer the court's question happily so.

[00:38:27] Speaker 05:
But I'd like to preface it by saying one thing.

[00:38:29] Speaker 05:
The government would not condone that conduct in any way.

[00:38:32] Speaker 05:
And as far as the government obtaining attorney-client communications or listening to them, that is not a practice that we condone or defend or even engage in.

[00:38:42] Speaker 05:
So we would not condone that if that happened.

[00:38:45] Speaker 05:
The court asked, would that be a Sixth Amendment violation?

[00:38:48] Speaker 05:
In that case, we think that if the communication would be privileged between the defendant and his attorney, and the information that was conveyed to the prosecutor would have to be suppressed from the case on some basis.

[00:39:02] Speaker 05:
Even though the guard is hurting?

[00:39:06] Speaker 05:
The mere presence of a third party doesn't render the communication not privileged.

[00:39:11] Speaker 01:
Well, isn't that the whole point

[00:39:14] Speaker 01:
of our case at Shillinger, your whole argument in terms of the relationship between the privilege and the Sixth Amendment is that it's a non-confidential communication that destroys the privilege that will also destroy the Sixth Amendment right.

[00:39:31] Speaker 05:
Right.

[00:39:32] Speaker 05:
And Your Honor, if I could explain, in Shillinger, there was a case that that communication was, in fact, privileged.

[00:39:39] Speaker 05:
A communication can remain privileged if a third party is in the room

[00:39:43] Speaker 05:
if the third party is a confidential agent.

[00:39:46] Speaker 05:
If the third party is a confidential agent, then communication is privileged even though the third party is in the room.

[00:39:52] Speaker 05:
Now, that means that the third party has to be reasonably necessary to facilitate the communication, and the defendant has to reasonably believe that the third party will keep the communication confidence.

[00:40:03] Speaker 05:
In the court's hypothetical

[00:40:06] Speaker 05:
was not reasonably necessary to the communication, and the defendant would have had no reason to think that the guard would have kept the communication in confidence.

[00:40:14] Speaker 05:
By contrast in Schillinger, the attorney paid the guard.

[00:40:20] Speaker 05:
The attorney said, none of this goes out of this room.

[00:40:23] Speaker 05:
The attorney told the guard, consider yourself a member of the defense team.

[00:40:27] Speaker 05:
So in that case, the defendant, the guard in Schillinger,

[00:40:31] Speaker 05:
would have been a confidential agent, because that guard was reasonably necessary to facilitate the communication.

[00:40:37] Speaker 05:
And the defendant reasonably would have thought the guard would have maintained the confidence based upon what was going on in the situation.

[00:40:44] Speaker 05:
They're completely different.

[00:40:46] Speaker 05:
Now, the court may be wondering where I get that, and I just want to be clear.

[00:40:50] Speaker 05:
We get that from the third race statement of the law governing lawyers, section 70, footnote 2, the confidential agent.

[00:40:57] Speaker 05:
theory that I just announced.

[00:40:59] Speaker 05:
And this is why I say that the attorney-client privilege basically covers almost every situation.

[00:41:05] Speaker 05:
It's been around since the common law.

[00:41:06] Speaker 05:
There's a restatement on the law governing lawyers that talks about almost every factual permutation that there could be.

[00:41:13] Speaker 05:
So it is a valid and adequate framework to analyze Sixth Amendment claims.

[00:41:18] Speaker 02:
Isn't this case different, though, in this regard?

[00:41:21] Speaker 02:
I see an unfairness.

[00:41:23] Speaker 02:
in that the defendant isn't calling up the attorney on the telephone because nobody wants to drive across the street.

[00:41:33] Speaker 02:
The defendant's been removed miles and miles and miles, oftentimes, away from the attorney where that access isn't available.

[00:41:41] Speaker 02:
And so if the defendant's going to talk to the attorney, it's going to be on that telephone.

[00:41:45] Speaker 02:
And if you say that

[00:41:49] Speaker 02:
jail recording at the start that says this will be monitored, will be recorded, is sufficient to waive the privilege.

[00:41:55] Speaker 02:
Isn't that a time when the Sixth Amendment has to be broader?

[00:41:58] Speaker 02:
Because otherwise, you can just sit and listen to those all day long, can't you?

[00:42:03] Speaker 05:
Well, as we said before, us sitting and listening to those all day long is not something that we would condone.

[00:42:10] Speaker 05:
But getting to the course hypothetical, the defendant has an opportunity to make a confidential call.

[00:42:16] Speaker 05:
All we can do is give him the opportunity that he has to make a confidential call.

[00:42:21] Speaker 05:
He deliberately chose not to make a confidential call.

[00:42:25] Speaker 05:
How is there any unfairness with that?

[00:42:26] Speaker 02:
Is there a line that he can make a confidential call on?

[00:42:30] Speaker 05:
There was a process that CCA told him about that he acknowledged that he knew about, that he was supposed to tell his attorney to fax the attorney's phone number to CCA

[00:42:40] Speaker 05:
And the CCA would not record phone calls going to that number.

[00:42:45] Speaker 02:
What about counsel's suggestion that the recording simply say, and by the way, the prosecutor can have this, the agents can have this, anyone in the world can have this?

[00:42:55] Speaker 02:
Wouldn't that be a stronger case for you?

[00:42:58] Speaker 05:
If the recording said that, it would be a stronger case.

[00:43:01] Speaker 05:
But that's not necessary to make our case.

[00:43:04] Speaker 05:
Under the attorney-client privilege, when you reveal a confidence to a third party, that extends to all third parties.

[00:43:15] Speaker 05:
It was not a surreptitious recording.

[00:43:18] Speaker 05:
He deliberately chose, deliberately chose to make a non-competential call.

[00:43:23] Speaker 07:
Counsel, does your argument require us to understand government here as the prosecution and the facility that's holding Mr. Hohn?

[00:43:35] Speaker 05:
The court, Judge Roskilde, that's a good question.

[00:43:38] Speaker 05:
I appreciate the court answering that.

[00:43:40] Speaker 05:
The answer is no, it doesn't.

[00:43:50] Speaker 05:
matter if the facility was part of the prosecution team.

[00:43:54] Speaker 05:
By waving it to any third party, he waived the privilege to all third parties.

[00:43:57] Speaker 05:
And in waving that privilege, he waived confidentiality.

[00:43:59] Speaker 07:
But you're not contending, at least anymore, as I understand, that the facility holding Mr. Holm should be considered an adversary under Schillinger.

[00:44:09] Speaker 05:
Oh, we don't see why the facility is not an adversary under Schillinger.

[00:44:12] Speaker 05:
We don't think that's necessary to prevail on our case, though.

[00:44:16] Speaker 05:
I mean, obviously, if somebody's being held in federal custody in a facility that is contracted by the federal government and they're notified in four ways, that their calls are being recorded and that they can be reported for public safety,

[00:44:29] Speaker 05:
And the defendant knows.

[00:44:31] Speaker 05:
And in this case, Mr. Hone said he knows that if he talked about a matter affecting public safety, it would be put into discovery and should be put into discovery.

[00:44:39] Speaker 05:
So he knew that he was talking to CCA and to law enforcement authorities because public safety is a quintessential law enforcement.

[00:44:47] Speaker 07:
But did the district court make a factual finding that there was no, that he did not know that the prosecution team would be listening?

[00:44:55] Speaker 05:
I think the district court made a factual finding that he didn't

[00:44:59] Speaker 05:
He didn't believe that the prosecution would be listening, but we maintained that that belief was an assumption that was unreasonable.

[00:45:08] Speaker 05:
Given the many warnings that he received, notifying him that his conversation would be recorded and monitored for safety of the CTA.

[00:45:15] Speaker 06:
If we look at this from the Sixth Amendment perspective, and we don't agree with you that it's co-extensive with attorney-client privilege, that it may be broader, it requires a knowing

[00:45:27] Speaker 06:
and voluntary waiver.

[00:45:30] Speaker 06:
And if you don't look at the government as the government every piece of it, you have specific findings here from the district court that while he understood the prison was going to listen to it, he had no understanding that they would then share it with the prosecution to be used against him in his case.

[00:45:52] Speaker 06:
That doesn't sound like a knowing and voluntary waiver of his Sixth Amendment right to me.

[00:45:57] Speaker 05:
Well, Your Honor, going to the waiver, the waiver, of course, can be effectuated through a course of conduct indicating waiver.

[00:46:05] Speaker 05:
That's what the Bergwee case says, and that's what the North Carolina v. Butler case says.

[00:46:10] Speaker 05:
Now, we maintain that the defendant did have an understanding that his calls could be given to law enforcement.

[00:46:17] Speaker 05:
He acknowledged that at our hearing.

[00:46:20] Speaker 05:
And when he knew that his calls were being recorded for public safety on that form that he signed saying his calls are being monitored for public safety, public safety is a quintessential law enforcement function.

[00:46:32] Speaker 05:
Law enforcement includes prosecuting authorities as well.

[00:46:37] Speaker 01:
Why is it relevant?

[00:46:38] Speaker 01:
Because the petitioner's entire argument is that this was an unjustified intrusion into the attorney class communications.

[00:46:45] Speaker 01:
They acknowledge any number of times in their briefing

[00:46:49] Speaker 01:
that if there was some public safety justification, that's not what they're talking about.

[00:46:56] Speaker 05:
I guess I'm not understanding the court's question completely.

[00:46:59] Speaker 05:
If the court could maybe reframe it a little bit.

[00:47:01] Speaker 01:
Well, you're saying that he understood that there may be some sort of public safety justification to inquire into these attorney client communications, right?

[00:47:12] Speaker 01:
Yes, sir.

[00:47:13] Speaker 00:
Yes, sir.

[00:47:13] Speaker 01:
And I'm saying, why is that relevant?

[00:47:16] Speaker 01:
Because the petitioner's argument is that there was a violation of the Sixth Amendment acknowledging, they concede, that if there was a safety justification, that that would not be within the Sixth Amendment protection that they're urging.

[00:47:33] Speaker 05:
It's relevant for a few reasons, Your Honor.

[00:47:34] Speaker 05:
First of all, it's relevant because it shows that he waived the attorney-client privilege.

[00:47:39] Speaker 05:
When you waive the privileges to one third party, you waive it to all third parties.

[00:47:44] Speaker 05:
And the third parties here included the prosecution.

[00:47:47] Speaker 05:
So it's relevant in that respect.

[00:47:50] Speaker 05:
So it also shows that he waived.

[00:47:54] Speaker 05:
That also constitutes a waiver by a course of conduct.

[00:47:57] Speaker 05:
So it's also relevant for that purpose.

[00:48:02] Speaker 05:
Did I answer?

[00:48:03] Speaker 05:
I hope I answered the court's question.

[00:48:04] Speaker 05:
Sure.

[00:48:04] Speaker 05:
Yeah.

[00:48:05] Speaker ?:
OK.

[00:48:09] Speaker 04:
So Mr. Brown, if we agree with you that the Sixth Amendment does not protect Mr. Holm's phone conversation because he didn't have a reasonable expectation and of confidentiality or he waived it, could we affirm without addressing the Schillinger rule?

[00:48:29] Speaker 05:
Yes, the court could affirm, because a confidential communication is necessary to a Sixth Amendment violation.

[00:48:35] Speaker 05:
If the court finds that the communication was not confidential, then by definition, there can be no Sixth Amendment violation.

[00:48:42] Speaker 05:
Schillinger's rule and rationale only comes into play when the court considers whether or not the defendant has to show prejudice or has shown prejudice, because prejudice is also an element of the Sixth Amendment violation.

[00:48:53] Speaker 05:
But because he's missing the element of confidentiality, this court could affirm

[00:48:57] Speaker 05:
on the district court's finding that the communication was not confidential, even if the court does not have the rules shown here.

[00:49:03] Speaker 01:
How is prejudice an element, say, in McCoy, the autonomy cases, or in Cronick, when there is no counsel provided at all?

[00:49:15] Speaker 01:
There are a number of cases, aren't there, where the Supreme Court has recognized that there is a six-of-event violation, notwithstanding

[00:49:23] Speaker 01:
the fact that you may be not prejudiced at all.

[00:49:27] Speaker 01:
In fact, you may be disadvantaged by exercising your right to pro se representation.

[00:49:37] Speaker 05:
Your Honor, we would answer that question by directing the court to the chronic case, page 658, where the court said there has to be some prejudice.

[00:49:45] Speaker 05:
And here's what I'm quoting the court.

[00:49:47] Speaker 05:
The court said, quote, absent some effect

[00:49:49] Speaker 05:
of the challenge conduct on the reliability of the trial process, the Sixth Amendment guarantees generally not implicated, period."

[00:49:56] Speaker 05:
End quote.

[00:49:57] Speaker 05:
And for that proposition, the court cited Morrison and Weatherford.

[00:50:01] Speaker 05:
So the court is saying that there has to be some effect on the reliability of the trial process, and that effect is prejudice.

[00:50:07] Speaker 05:
And then we'd also ask the court to look at Weatherford.

[00:50:12] Speaker 05:
I think it's page 552, where the court talked about the type of prejudice you can have in this context when conversations are overheard.

[00:50:20] Speaker 05:
And the court said that when it was talking about the Black case and the O'Brien case, which were situations where people overheard conversations, the court said, in a case where a conversation is overheard, the constitutionality of the conviction depends upon whether or not the overheard conversation produced directly or indirectly any of the evidence offered at trial.

[00:50:44] Speaker 05:
So that confirms that there's got to be some prejudicial effect

[00:50:49] Speaker 05:
How can we ever know though?

[00:50:51] Speaker 09:
Because for example, the district court makes a finding that the trial strategy was recorded and listened to by your office.

[00:51:01] Speaker 09:
And what if the prosecutor says, you know what?

[00:51:08] Speaker 09:
Yeah, I heard it.

[00:51:08] Speaker 09:
They talked about their strategy.

[00:51:10] Speaker 09:
It had no effect on me.

[00:51:12] Speaker 09:
It was the same.

[00:51:13] Speaker 09:
I did the same thing I was going to do anyway.

[00:51:17] Speaker 05:
How's that rebutted?

[00:51:20] Speaker 05:
Well, that's rebutted by looking at the facts of the case.

[00:51:23] Speaker 05:
For example, you look at whether or not the information obtained was actually usable or exploitable.

[00:51:29] Speaker 05:
If the information obtained was not usable or exploitable, then there would be no reason to question the prosecutor's statement.

[00:51:35] Speaker 09:
The prosecutor doesn't know it, but Judge Bacharach has a colorful history.

[00:51:40] Speaker 09:
And he did this, and he did that.

[00:51:43] Speaker 09:
And then, miraculously, at

[00:51:47] Speaker 09:
trial, his cross-examination has all of those things.

[00:51:52] Speaker 09:
But the prosecutor denies using them.

[00:51:55] Speaker 05:
Well, then that would be evidence that it was used.

[00:51:58] Speaker 05:
And that's something the court could look at.

[00:51:59] Speaker 05:
The court should look at whether or not the overheard conversation produced evidence directly or indirectly that was offered at trial.

[00:52:10] Speaker 07:
Why isn't use relevant to remedy and really not whether the violation is complete?

[00:52:16] Speaker 07:
Why isn't use relevant just to remedy and not whether the violation is complete?

[00:52:23] Speaker 07:
In other words, the violation is complete without regard to use.

[00:52:28] Speaker 05:
Well, Your Honor, we would go back to what Judge McHugh said, that Morrison tied the remedy to the harm.

[00:52:36] Speaker 05:
And you can't have a remedy without harm.

[00:52:38] Speaker 05:
So that's why you need to consider use, because the use basically lets you determine the harm.

[00:52:43] Speaker 05:
In terms of the remedy.

[00:52:45] Speaker 05:
in terms of the remedy.

[00:52:45] Speaker 05:
In terms of determining the harm.

[00:52:46] Speaker 05:
And Morrison says, and I didn't mean the rest of the court.

[00:52:49] Speaker 07:
Well, what I'm getting at is maybe a better way for me to ask the question is, when does the government think the violation that is at issue here is complete?

[00:52:57] Speaker 05:
Oh, when is the violation established and complete?

[00:53:00] Speaker 05:
Yes.

[00:53:00] Speaker 05:
And after that, you go to the remedies, what the court is asking?

[00:53:03] Speaker 05:
Correct.

[00:53:04] Speaker 05:
OK.

[00:53:04] Speaker 05:
The violation would be complete once the court concludes that there has been some effective challenge conduct on the reliability of the trial process.

[00:53:18] Speaker 05:
That's when the violation would be complete.

[00:53:20] Speaker 12:
So the violation would be complete upon prejudice showing?

[00:53:24] Speaker 12:
Absolutely, yes, Your Honor.

[00:53:25] Speaker 03:
That's correct.

[00:53:27] Speaker 03:
Counsel, see if you can help me on this.

[00:53:31] Speaker 03:
I've been thinking about the waiver issue.

[00:53:33] Speaker 03:
And I think it's inaccurate to say that waiver is only established by knowing and intelligence.

[00:53:46] Speaker 03:
And I'm particularly thinking in terms of confidential communications and the privilege of confidential communications.

[00:53:54] Speaker 03:
And my understanding is, and tell me if it's wrong, is that you waive a privilege as soon as you make the communication not confidential.

[00:54:04] Speaker 03:
And if you make it not confidential with one other person, then you've lost the privilege.

[00:54:13] Speaker 03:
even though you may still think that person won't tell someone who could hurt you worse, hurt you more with that.

[00:54:22] Speaker 03:
Can you think of privileges of confidential communications that aren't waived simply by disclosure to another person?

[00:54:31] Speaker 05:
Yes, Your Honor, and that goes back to the confidential agent doctrine that I was discussing, I think, with Judge Backerack.

[00:54:39] Speaker 03:
It's still confidential when there's a confidential agent.

[00:54:41] Speaker 03:
I'm not talking about that situation.

[00:54:44] Speaker 03:
You might have multiple clients that you're talking to at the same time.

[00:54:47] Speaker 03:
But aside from someone who's within the confidential unit, do you know of circumstances where there's not waiver as soon as it's communicated to someone outside that confidential unit?

[00:55:02] Speaker 05:
Your Honor, none of those circumstances come readily to mind.

[00:55:06] Speaker 05:
That might be because the framework for attorney-client privilege works so well to define a systemic violation.

[00:55:13] Speaker 05:
Like we said, it's been here since the common law.

[00:55:16] Speaker 05:
All the rules are right there.

[00:55:17] Speaker 05:
They're written down.

[00:55:18] Speaker 05:
We don't need to create a new rule.

[00:55:20] Speaker 05:
We just go to the attorney-client privilege.

[00:55:21] Speaker 05:
And to get to the court's question, when the defendant reveals a confidence outside of the circle of the defendant as attorney and the confidential agents,

[00:55:35] Speaker 05:
He's waived the privilege to answer the court's question.

[00:55:37] Speaker 05:
In doing so, he's also waived any confidentiality that goes with the privilege and confidentiality itself.

[00:55:44] Speaker 09:
Can the defendant define who the confidential agents are?

[00:55:51] Speaker 09:
Here's what I'm thinking about, just so you don't have to take a shot in the dark.

[00:55:57] Speaker 09:
We have a situation where I'm talking to my attorney.

[00:56:01] Speaker 09:
I have someone with me, my best friend, who I have trust implicitly, and I want them there to be a second ear to make sure I'm getting the advice right.

[00:56:13] Speaker 09:
Can I make that person a confidential agent?

[00:56:16] Speaker 05:
Well, Your Honor, we just go back to the test of a confidential agent for attorney-client privileges.

[00:56:21] Speaker 05:
That test is whether or not that third person was reasonably necessary to facilitate the communication.

[00:56:27] Speaker 05:
in your Honor's hypothetical, I think it would be.

[00:56:29] Speaker 05:
And the second part of that is whether or not the defendant reasonably believed the third person would keep the communication of confidence.

[00:56:36] Speaker 05:
And I think that would also be met in your Honor's hypothetical.

[00:56:39] Speaker 05:
So the defendant, yes, does have a say in whether somebody is a confidential agent.

[00:56:45] Speaker 05:
Once again, that comes from the third restatement of law governing lawyer, section 70, footnote

[00:56:50] Speaker 09:
What if I'm in prison and I'm calling my lawyer on the phone and I mistakenly believe that the recordings will never be shared with prosecutors, except if I talk about committing a future crime?

[00:57:12] Speaker 05:
The question is not whether the belief is mistaken.

[00:57:14] Speaker 05:
The question is whether the belief is reasonable.

[00:57:17] Speaker 05:
If you're given several warnings that your conversations are subject to monitoring recording, and you sign a statement saying, I agree that CCA can monitor my recordings for public safety and for the safety institution, that mistaken belief is not a reasonable point.

[00:57:34] Speaker 09:
Well, maybe my belief is not mistaken at all in that hypothetical or in that fact pattern, because what was

[00:57:44] Speaker 09:
what they were used for was something entirely different.

[00:57:46] Speaker 09:
So I agree that you could use them for those things, but those weren't even implicated in the conversation.

[00:57:53] Speaker 05:
Well, once again, we don't just go back to this sort of implicates the selective waiver doctrine in the attorney-client privilege context.

[00:58:03] Speaker 05:
And this court recognizes selective waiver, that you can't make a selective waiver to one third person and not to all third persons.

[00:58:12] Speaker 05:
So unless the defendant in the court's hypothetical is told specifically, your conversations will only be given to CCA.

[00:58:21] Speaker 05:
They will not be given to any other party out there in the universe.

[00:58:25] Speaker 05:
You can have every confidence that they will not be given to the prosecution or anybody else, and that would make that belief more reasonable.

[00:58:31] Speaker 05:
And that would basically

[00:58:34] Speaker 05:
It could make CCA a confidential agent in the conversation.

[00:58:37] Speaker 05:
I'm not saying it does.

[00:58:38] Speaker 05:
But getting to these hypotheticals, we think the court should just let the law develop rather than come up with some totalistic rule to figure out when conversations are privileged and when they're not.

[00:58:50] Speaker 05:
This law of privilege is set forth in excruciating detail.

[00:58:54] Speaker 05:
Almost every factual situation has been covered.

[00:58:57] Speaker 05:
The court does not need to create a new constitutional rule of criminal procedure, as the defendant asked this court to do today.

[00:59:03] Speaker 01:
Mr. Brown, let me ask you a question about structural error.

[00:59:07] Speaker 01:
One of the things that kind of struck me in the first 30 seconds of your argument was you never once mentioned the reason that we're here, which is your argument in your panel briefing that Schillinger violates, as contrary to Weatherford and Morris,

[00:59:24] Speaker 01:
Do you withdraw that argument?

[00:59:27] Speaker 01:
Oh, absolutely.

[00:59:29] Speaker 01:
So I haven't seen anything yet where you respond to the petitioner's argument that in Morrissey, as petitioner's counsel alluded to, the court was only talking about prejudice in terms of dismissal of the indictment as a remedy.

[00:59:45] Speaker 01:
And in Weatherford, there was no Sixth Amendment violation because the information was never shared with the prosecutor.

[00:59:51] Speaker 01:
So how do you respond to the petitioner's distinctions of Weatherford and Morrison on structural error?

[00:59:57] Speaker 05:
Well, in Morrison, the court found that the assumed Bluebird intrusion was harmless, right?

[01:00:05] Speaker 05:
And so that is absolutely irreconcilable with any notion of structural error, which basically is premised on the fact that an intrusion of this type cannot be harmless.

[01:00:15] Speaker 05:
So that would be our response.

[01:00:16] Speaker 05:
And we do set out those arguments in our on-bomb response brief.

[01:00:21] Speaker 06:
But in Morrison, the court assumed a violation even though it said that they had demonstrated no prejudice of any kind.

[01:00:32] Speaker 06:
So it separated the violation from the remedy and assumed a violation even without a showing of prejudice, but said you're not entitled to any remedy.

[01:00:43] Speaker 05:
Right.

[01:00:44] Speaker 05:
We need to push back on that a little bit, Your Honor.

[01:00:47] Speaker 05:
We don't agree that.

[01:00:49] Speaker 05:
exactly with the way the court framed what Morrison did.

[01:00:52] Speaker 05:
Morrison assumed a violation for the sake of argument.

[01:00:55] Speaker 05:
But at page 366, the court explicitly held open the possibility that there may not have been a Sixth Amendment violation at all.

[01:01:01] Speaker 05:
The court said the Sixth Amendment violation, if any, provides no justification.

[01:01:07] Speaker 05:
for interfering with criminal proceedings.

[01:01:09] Speaker 05:
And then the court went on to say that the assumed deliberate violation was harmless.

[01:01:15] Speaker 05:
On page 366, the court said, there's no effect of a constitutional dimension which needs to be purged to make certain that the respondent has been effectively represented and not unfairly convicted.

[01:01:26] Speaker 06:
It said, there's no harm, no remedy.

[01:01:30] Speaker 05:
The court said, we're not going to say if there's a violation, but we know that even

[01:01:36] Speaker 05:
because there was no harm.

[01:01:37] Speaker 06:
Right.

[01:01:37] Speaker 06:
Again... Can't we do the same thing here?

[01:01:39] Speaker 06:
Why do we even need to get into this whole other mess?

[01:01:42] Speaker 06:
Can't we say, Mr. Hahn has admitted he can't show prejudice, and so we just go through the exact same analysis as Morrison and say, even if we assume there's a violation, you're not entitled to any remedy because you haven't shown prejudice.

[01:02:00] Speaker 05:
We think that that view is exactly right, Judge McHugh, and we'd ask the court to adopt that view.

[01:02:05] Speaker 05:
Now, I see that my time is up.

[01:02:06] Speaker 05:
I've gone over my time, and I thank the panel for giving me the extra time.

[01:02:09] Speaker 05:
I would retire and ask for a permit at this point unless any member of the panel has any further questions.

[01:02:16] Speaker 05:
No further questions.

[01:02:17] Speaker 12:
Thank you for your consideration.

[01:02:19] Speaker 12:
Please return.

[01:02:19] Speaker 12:
Thank you, counsel.

[01:02:20] Speaker 12:
Three minutes, please.

[01:02:27] Speaker 11:
May it please the court, there are two flaws in the government's position.

[01:02:30] Speaker 11:
The first is this suggestion that part of this constitutional analysis is whether there is a reasonable expectation of confidentiality.

[01:02:37] Speaker 11:
Of course, that was not true on the facts of Schillinger itself, because there was a deputy present in the room.

[01:02:43] Speaker 11:
And so what we're really talking about here is engrafting that as an additional requirement.

[01:02:47] Speaker 12:
Wait a minute.

[01:02:47] Speaker 12:
The deputy was an agent of defense counsel.

[01:02:50] Speaker 12:
The whole point

[01:02:52] Speaker 12:
keep working for the defense.

[01:02:54] Speaker 12:
Why wouldn't he have a reasonable expectation of privacy?

[01:02:56] Speaker 11:
That was hotly disputed in the underlying case.

[01:02:59] Speaker 11:
And this court, in adopting the constitutional standard, did not require that as an independent element.

[01:03:06] Speaker 11:
And I would respectfully submit that it shouldn't be required as a constitutional matter.

[01:03:11] Speaker 11:
does not ordinarily incorporate principles of state law or federal common law into the constitutional standard.

[01:03:19] Speaker 11:
Remember the Supreme Court's decision in Crawford, where the court refused to incorporate the requirements of the hearsay rule.

[01:03:25] Speaker 11:
And I would submit that it would be quite strange to the founding fathers to think that the scope of the Sixth Amendment constitutional right

[01:03:31] Speaker 11:
depended on a footnote in the third restatement on the conduct of lawyers.

[01:03:36] Speaker 11:
Not surprisingly, really only the Fifth Circuit and the Eleventh Circuit applying legacy Fifth Circuit law have unambiguously done that, and we respectfully submit that this court should not do so.

[01:03:46] Speaker 11:
Now, the other argument that the government makes is that the defendant should bear the burden for this type of violation of showing prejudice.

[01:03:55] Speaker 11:
Now, as has been discussed in Morrison itself, the Supreme Court assumed the existence of a Sixth Amendment violation without looking into whether or not there is prejudice.

[01:04:04] Speaker 11:
And our core submission to this court is that outside the context of strict law,

[01:04:09] Speaker 11:
The Sixth Amendment does not require such a showing.

[01:04:11] Speaker 11:
And I would point the court to the Supreme Court's decision in Gonzales Lopez.

[01:04:15] Speaker 11:
At page 147, the requirement that a defendant show prejudice in effective representation cases arises from the very nature of the specific element of the right to counsel at issue there, effective, not mistake-free representation.

[01:04:28] Speaker 11:
In Gonzales Lopez, the court said unambiguously at 146, no additional showing of prejudice is required to make that Sixth Amendment violation complete.

[01:04:37] Speaker 11:
And at footnote 4 on page 149, we rest our conclusion of structural error upon the difficulty of assessing the effect of the error.

[01:04:46] Speaker 11:
So too here.

[01:04:47] Speaker 11:
And we would respectfully submit that in a case involving intentional misconduct by the prosecutors, it would be extraordinarily unfair to require a defendant to show the absence of prejudice from the prosecution becoming privy to trial strategy.

[01:05:03] Speaker 11:
In conclusion,

[01:05:04] Speaker 11:
I would just say that the conduct that took place in this case was a stain.

[01:05:09] Speaker 11:
It was a stain on my home state of Kansas.

[01:05:11] Speaker 11:
It was a stain on the Justice Department.

[01:05:13] Speaker 11:
And it was a stain on the justice system as well.

[01:05:17] Speaker 11:
All we are asking for in this case is the opportunity to seek a remedy before the district court.

[01:05:24] Speaker 11:
Morrison itself involved only the strictest remedy of dismissal.

[01:05:28] Speaker 11:
And if the evidence is as strong, Judge Phillips, as you suggested that it might be,

[01:05:32] Speaker 11:
It may very well be that if a new trial is ordered, the government could obtain a conviction.

[01:05:38] Speaker 11:
But all we are asking for is vindication of the defendant's right here.

[01:05:42] Speaker 11:
And it is a right to have a trial that is free of a prosecutor who is privy to the defendant's trial strategy.

[01:05:51] Speaker 11:
That is all we are asking for here.

[01:05:54] Speaker 11:
And that is why a rule of structural error is appropriate.

[01:05:56] Speaker 11:
Again, leaving the issue of the appropriate remedy to the district court.

[01:06:00] Speaker 11:
And so we would ask respectfully for a reversal of the district court's judgment and a remand to the district court for further proceedings.

[01:06:07] Speaker 11:
Thank you.

[01:06:08] Speaker 11:
Could I just ask one last question?

[01:06:09] Speaker 04:
Council, I'm struck by your closing.

[01:06:14] Speaker 04:
And I was wondering whether the presumption of prejudice and structural error

[01:06:20] Speaker 04:
whether that should apply, should it make a difference whether there has been a systematic pattern of intrusions as opposed to a single one?

[01:06:32] Speaker 11:
So I would respectfully submit that where it probably is most relevant, Judge Matheson, is on the question of a remedy.

[01:06:41] Speaker 11:
That is where I think the consideration of deterrence primarily comes into play.

[01:06:46] Speaker 11:
Now to be sure, I think that this court's opinion in Schillinger itself, and the court I think has picked up on this I believe in the Orduno-Ramirez case as well, referred to deterrence in determining whether or not an error should be characterized as structural in the first place.

[01:07:02] Speaker 11:
And maybe it goes to the fundamental fairness question, which is really, I think, the key.

[01:07:07] Speaker 11:
Is this an error that inevitably implicates fundamental fairness?

[01:07:11] Speaker 11:
But I think at a minimum, and the footnote in Morrison bears this out, where you have systematic misconduct, I think employing a stricter remedy in order to deter further violations would be wholly appropriate.

[01:07:25] Speaker 12:
Thank you, counsel.

[01:07:25] Speaker 12:
The case is submitted.

[01:07:27] Speaker 12:
Thank you for your argument.

[01:07:28] Speaker 12:
Fine argument.