(Slip Opinion) OCTOBER TERM, 2005 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. GONZALEZ-LOPEZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 05–352. Argued April 18, 2006—Decided June 26, 2006
Respondent hired attorney Low to represent him on a federal drug
charge. The District Court denied Low’s application for admission
pro hac vice on the ground that he had violated a professional con
duct rule and then, with one exception, prevented respondent from
meeting or consulting with Low throughout the trial. The jury found
respondent guilty. Reversing, the Eighth Circuit held that the Dis
trict Court erred in interpreting the disciplinary rule, that the court’s
refusal to admit Low therefore violated respondent’s Sixth Amend
ment right to paid counsel of his choosing, and that this violation was
not subject to harmless-error review.
Held: A trial court’s erroneous deprivation of a criminal defendant’s
choice of counsel entitles him to reversal of his conviction. Pp. 3–12.
(a) In light of the Government’s concession of erroneous depriva
tion, the trial court’s error violated respondent’s Sixth Amendment
right to counsel of choice. The Court rejects the Government’s conten
tion that the violation is not “complete” unless the defendant can
show that substitute counsel was ineffective within the meaning of
Strickland v. Washington, 466 U. S. 668, 691–696—i.e., that his per
formance was deficient and the defendant was prejudiced by it—or
the defendant can demonstrate that substitute counsel’s perform
ance, while not deficient, was not as good as what his counsel of
choice would have provided, creating a “reasonable probability that
. . . the result . . . would have been different,” id., at 694. To support
these propositions, the Government emphasizes that the right to
counsel is accorded to ensure that the accused receive a fair trial,
Mickens v. Taylor, 535 U. S. 162, 166, and asserts that a trial is not
unfair unless a defendant has been prejudiced. The right to counsel
2 UNITED STATES v. GONZALEZ-LOPEZ
Syllabus
of choice, however, commands not that a trial be fair, but that a par
ticular guarantee of fairness be provided—to wit, that the accused be
defended by the counsel he believes to be best. Cf. Crawford v. Wash
ington, 541 U. S. 36, 61. That right was violated here; no additional
showing of prejudice is required to make the violation “complete.”
Pp. 3–7.
(b) The Sixth Amendment violation is not subject to harmless-error
analysis. Erroneous deprivation of the right to counsel of choice,
“with consequences that are necessarily unquantifiable and indeter
minate, unquestionably qualifies as ‘structural error.’ ” Sullivan v.
Louisiana, 508 U. S. 275, 282. It “def[ies] analysis by ‘harmless error’
standards” because it “affec[ts] the framework within which the trial
proceeds” and is not “simply an error in the trial process itself.” Ari
zona v. Fulminante, 499 U. S. 279, 309–310. Different attorneys will
pursue different strategies with regard to myriad trial matters, and
the choice of attorney will affect whether and on what terms the de
fendant cooperates with the prosecution, plea bargains, or decides to
go to trial. It is impossible to know what different choices the re
jected counsel would have made, and then to quantify the impact of
those different choices on the outcome of the proceedings. This in
quiry is not comparable to that required to show that a counsel’s defi
cient performance prejudiced a defendant. Pp. 8–11.
(c) Nothing in the Court’s opinion casts any doubt or places any
qualification upon its previous holdings limiting the right to counsel
of choice and recognizing trial courts’ authority to establish criteria
for admitting lawyers to argue before them. However broad a trial
court’s discretion may be, this Court accepts the Government’s con
cession that the District Court erred. Pp. 11–12.
399 F. 3d 924, affirmed and remanded.
SCALIA, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. ALITO, J., filed a dissenting
opinion, in which ROBERTS, C. J., and KENNEDY and THOMAS, JJ., joined.
Cite as: 548 U. S. ____ (2006) 1
Opinion of the Court
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ington, D. C. 20543, of any typographical or other formal errors, in order
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SUPREME COURT OF THE UNITED STATES
_________________
No. 05–352
_________________
UNITED STATES, PETITIONER v. CUAUHTEMOC
GONZALEZ-LOPEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2006]
JUSTICE SCALIA delivered the opinion of the Court.
We must decide whether a trial court’s erroneous depri
vation of a criminal defendant’s choice of counsel entitles
him to a reversal of his conviction.
I
Respondent Cuauhtemoc Gonzalez-Lopez was charged
in the Eastern District of Missouri with conspiracy to
distribute more than 100 kilograms of marijuana. His
family hired attorney John Fahle to represent him. After
the arraignment, respondent called a California attorney,
Joseph Low, to discuss whether Low would represent him,
either in addition to or instead of Fahle. Low flew from
California to meet with respondent, who hired him.
Some time later, Low and Fahle represented respondent
at an evidentiary hearing before a Magistrate Judge. The
Magistrate Judge accepted Low’s provisional entry of
appearance and permitted Low to participate in the hear
ing on the condition that he immediately file a motion for
admission pro hac vice. During the hearing, however, the
Magistrate Judge revoked the provisional acceptance on
the ground that, by passing notes to Fahle, Low had vio
2 UNITED STATES v. GONZALEZ-LOPEZ
Opinion of the Court
lated a court rule restricting the cross-examination of a
witness to one counsel.
The following week, respondent informed Fahle that he
wanted Low to be his only attorney. Low then filed an
application for admission pro hac vice. The District Court
denied his application without comment. A month later,
Low filed a second application, which the District Court
again denied without explanation. Low’s appeal, in the
form of an application for a writ of mandamus, was dis
missed by the United States Court of Appeals for the
Eighth Circuit.
Fahle filed a motion to withdraw as counsel and for a
show-cause hearing to consider sanctions against Low.
Fahle asserted that, by contacting respondent while re
spondent was represented by Fahle, Low violated Mo.
Rule of Professional Conduct 4–4.2 (1993), which prohibits
a lawyer “[i]n representing a client” from “communi
cat[ing] about the subject of the representation with a
party . . . represented by another lawyer” without that
lawyer’s consent. Low filed a motion to strike Fahle’s
motion. The District Court granted Fahle’s motion to
withdraw and granted a continuance so that respondent
could find new representation. Respondent retained a
local attorney, Karl Dickhaus, for the trial. The District
Court then denied Low’s motion to strike and, for the first
time, explained that it had denied Low’s motions for ad
mission pro hac vice primarily because, in a separate case
before it, Low had violated Rule 4–4.2 by communicating
with a represented party.
The case proceeded to trial, and Dickhaus represented
respondent. Low again moved for admission and was
again denied. The Court also denied Dickhaus’s request to
have Low at counsel table with him and ordered Low to sit
in the audience and to have no contact with Dickhaus
during the proceedings. To enforce the Court’s order, a
United States Marshal sat between Low and Dickhaus at
Cite as: 548 U. S. ____ (2006) 3
Opinion of the Court
trial. Respondent was unable to meet with Low through
out the trial, except for once on the last night. The jury
found respondent guilty.
After trial, the District Court granted Fahle’s motion for
sanctions against Low. It read Rule 4–4.2 to forbid Low’s
contact with respondent without Fahle’s permission. It
also reiterated that it had denied Low’s motions for admis
sion on the ground that Low had violated the same Rule in
a separate matter.
Respondent appealed, and the Eighth Circuit vacated
the conviction. 399 F. 3d 924 (2005). The Court first held
that the District Court erred in interpreting Rule 4–4.2 to
prohibit Low’s conduct both in this case and in the sepa
rate matter on which the District Court based its denials
of his admission motions. The District Court’s denials of
these motions were therefore erroneous and violated
respondent’s Sixth Amendment right to paid counsel of his
choosing. See id., at 928–932. The Court then concluded
that this Sixth Amendment violation was not subject to
harmless-error review. See id., at 932–935. We granted
certiorari. 546 U. S. ___ (2006).
II
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” We have previ
ously held that an element of this right is the right of a
defendant who does not require appointed counsel to
choose who will represent him. See Wheat v. United
States, 486 U. S. 153, 159 (1988). Cf. Powell v. Alabama,
287 U. S. 45, 53 (1932) (“It is hardly necessary to say that,
the right to counsel being conceded, a defendant should be
afforded a fair opportunity to secure counsel of his own
choice”). The Government here agrees, as it has previously,
that “the Sixth Amendment guarantees the defendant the
right to be represented by an otherwise qualified attorney
4 UNITED STATES v. GONZALEZ-LOPEZ
Opinion of the Court
whom that defendant can afford to hire, or who is willing
to represent the defendant even though he is without
funds.” Caplin & Drysdale, Chartered v. United States, 491
U. S. 617, 624–625 (1989). To be sure, the right to counsel
of choice “is circumscribed in several important respects.”
Wheat, supra, at 159. But the Government does not dispute
the Eighth Circuit’s conclusion in this case that the District
Court erroneously deprived respondent of his counsel of
choice.
The Government contends, however, that the Sixth
Amendment violation is not “complete” unless the defen
dant can show that substitute counsel was ineffective
within the meaning of Strickland v. Washington, 466 U. S.
668, 691–696 (1984)—i.e., that substitute counsel’s per
formance was deficient and the defendant was prejudiced
by it. In the alternative, the Government contends that
the defendant must at least demonstrate that his counsel
of choice would have pursued a different strategy that
would have created a “reasonable probability that . . . the
result of the proceedings would have been different,” id.,
at 694—in other words, that he was prejudiced within the
meaning of Strickland by the denial of his counsel of
choice even if substitute counsel’s performance was not
constitutionally deficient.1 To support these propositions,
the Government points to our prior cases, which note that
the right to counsel “has been accorded . . . not for its own
——————
1 Thedissent proposes yet a third standard—viz., that the defendant
must show “ ‘an identifiable difference in the quality of representation
between the disqualified counsel and the attorney who represents the
defendant at trial.’ ” Post, at 4 (opinion of ALITO, J.). That proposal
suffers from the same infirmities (outlined later in text) that beset the
Government’s positions. In addition, however, it greatly impairs the
clarity of the law. How is a lower-court judge to know what an “identi
fiable difference” consists of? Whereas the Government at least appeals
to Strickland and the case law under it, the most the dissent can claim
by way of precedential support for its rule is that it is “consistent with”
cases that never discussed the issue of prejudice. Id.
Cite as: 548 U. S. ____ (2006) 5
Opinion of the Court
sake, but for the effect it has on the ability of the accused
to receive a fair trial.” Mickens v. Taylor, 535 U. S. 162,
166 (2002) (internal quotation marks omitted). A trial is
not unfair and thus the Sixth Amendment is not violated,
the Government reasons, unless a defendant has been
prejudiced.
Stated as broadly as this, the Government’s argument in
effect reads the Sixth Amendment as a more detailed
version of the Due Process Clause—and then proceeds to
give no effect to the details. It is true enough that the
purpose of the rights set forth in that Amendment is to
ensure a fair trial; but it does not follow that the rights
can be disregarded so long as the trial is, on the whole,
fair. What the Government urges upon us here is what
was urged upon us (successfully, at one time, see Ohio v.
Roberts, 448 U. S. 56 (1980)) with regard to the Sixth
Amendment’s right of confrontation—a line of reasoning
that “abstracts from the right to its purposes, and then
eliminates the right.” Maryland v. Craig, 497 U. S. 836,
862 (1990) (SCALIA, J., dissenting). Since, it was argued,
the purpose of the Confrontation Clause was to ensure the
reliability of evidence, so long as the testimonial hearsay
bore “indicia of reliability,” the Confrontation Clause was
not violated. See Roberts, supra, at 65–66. We rejected
that argument (and our prior cases that had accepted it) in
Crawford v. Washington, 541 U. S. 36 (2004), saying that
the Confrontation Clause “commands, not that evidence be
reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination.”
Id., at 61.
So also with the Sixth Amendment right to counsel of
choice. It commands, not that a trial be fair, but that a
particular guarantee of fairness be provided—to wit, that
the accused be defended by the counsel he believes to be
best. “The Constitution guarantees a fair trial through
the Due Process Clauses, but it defines the basic elements
6 UNITED STATES v. GONZALEZ-LOPEZ
Opinion of the Court
of a fair trial largely through the several provisions of the
Sixth Amendment, including the Counsel Clause.” Strick
land, supra, at 684–685. In sum, the right at stake here is
the right to counsel of choice, not the right to a fair trial;
and that right was violated because the deprivation of
counsel was erroneous. No additional showing of preju
dice is required to make the violation “complete.”2
The cases the Government relies on involve the right to
the effective assistance of counsel, the violation of which
generally requires a defendant to establish prejudice. See,
e.g., Strickland, supra, at 694; Mickens, supra, at 166;
United States v. Cronic, 466 U. S. 648 (1984). The earliest
case generally cited for the proposition that “the right to
counsel is the right to the effective assistance of counsel,”
McMann v. Richardson, 397 U. S. 759, 771, n. 14 (1970),
was based on the Due Process Clause rather than on the
Sixth Amendment, see Powell, 287 U. S., at 57 (cited in
e.g., McMann, supra, at 771, n. 14). And even our recogni
tion of the right to effective counsel within the Sixth
Amendment was a consequence of our perception that
representation by counsel “is critical to the ability of the
adversarial system to produce just results.” Strickland,
supra, at 685. Having derived the right to effective repre
sentation from the purpose of ensuring a fair trial, we
have, logically enough, also derived the limits of that right
from that same purpose. See Mickens, supra, at 166. The
——————
2 Thedissent resists giving effect to our cases’ recognition, and the
Government’s concession, that a defendant has a right to be defended
by counsel of his choosing. It argues that because the Sixth Amend
ment guarantees the right to the “assistance of counsel,” it is not
violated unless “the erroneous disqualification of a defendant’s counsel
of choice . . . impair[s] the assistance that a defendant receives at trial.”
Post, at 1–2 (opinion of ALITO, J.). But if our cases (and the Govern
ment’s concession) mean anything, it is that the Sixth Amendment is
violated when the erroneous disqualification of counsel “impair[s] the
assistance that a defendant receives at trial [from the counsel that he
chose].”
Cite as: 548 U. S. ____ (2006) 7
Opinion of the Court
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. Counsel cannot
be “ineffective” unless his mistakes have harmed the
defense (or, at least, unless it is reasonably likely that
they have). Thus, a violation of the Sixth Amendment
right to effective representation is not “complete” until the
defendant is prejudiced. See Strickland, supra, at 685.
The right to select counsel of one’s choice, by contrast,
has never been derived from the Sixth Amendment’s
purpose of ensuring a fair trial.3 It has been regarded as
the root meaning of the constitutional guarantee. See
Wheat, 486 U. S., at 159; Andersen v. Treat, 172 U. S. 24
(1898). See generally W. Beaney, The Right to Counsel in
American Courts 18–24, 27–33 (1955). Cf. Powell, supra,
at 53. Where the right to be assisted by counsel of one’s
choice is wrongly denied, therefore, it is unnecessary to
conduct an ineffectiveness or prejudice inquiry to establish
a Sixth Amendment violation. Deprivation of the right is
“complete” when the defendant is erroneously prevented
from being represented by the lawyer he wants, regardless
of the quality of the representation he received. To argue
otherwise is to confuse the right to counsel of choice—
which is the right to a particular lawyer regardless of
comparative effectiveness—with the right to effective
counsel—which imposes a baseline requirement of compe
tence on whatever lawyer is chosen or appointed.
——————
3 In Wheat v. United States, 486 U. S. 153 (1988), where we formu
lated the right to counsel of choice and discussed some of the limita
tions upon it, we took note of the overarching purpose of fair trial in
holding that the trial court has discretion to disallow a first choice of
counsel that would create serious risk of conflict of interest. Id., at 159.
It is one thing to conclude that the right to counsel of choice may be
limited by the need for fair trial, but quite another to say that the right
does not exist unless its denial renders the trial unfair.
8 UNITED STATES v. GONZALEZ-LOPEZ
Opinion of the Court
III
Having concluded, in light of the Government’s conces
sion of erroneous deprivation, that the trial court violated
respondent’s Sixth Amendment right to counsel of choice,
we must consider whether this error is subject to review
for harmlessness. In Arizona v. Fulminante, 499 U. S. 279
(1991), we divided constitutional errors into two classes.
The first we called “trial error,” because the errors “oc
curred during presentation of the case to the jury” and
their effect may “be quantitatively assessed in the context
of other evidence presented in order to determine whether
[they were] harmless beyond a reasonable doubt.” Id., at
307–308 (internal quotation marks omitted). These in
clude “most constitutional errors.” Id., at 306. The second
class of constitutional error we called “structural defects.”
These “defy analysis by ‘harmless-error’ standards” be
cause they “affec[t] the framework within which the trial
proceeds,” and are not “simply an error in the trial process
itself.” Id., at 309–310.4 See also Neder v. United States,
——————
The dissent criticizes us for our trial error/structural defect dichot
4
omy, asserting that Fulminante never said that “trial errors are the
only sorts of errors amenable to harmless-error review, or that all
errors affecting the framework within which the trial proceeds are
structural,” post, at 8 (opinion of ALITO, J.) (internal quotation marks
and citation omitted). Although it is hard to read that case as doing
anything other than dividing constitutional error into two comprehen
sive categories, our ensuing analysis in fact relies neither upon such
comprehensiveness nor upon trial error as the touchstone for the
availability of harmless-error review. Rather, here, as we have done in
the past, we rest our conclusion of structural error upon the difficulty of
assessing the effect of the error. See Waller v. Georgia, 467 U. S. 39,
49, n. 9 (1984) (violation of the public-trial guarantee is not subject to
harmlessness review because “the benefits of a public trial are fre
quently intangible, difficult to prove, or a matter of chance”); Vasquez v.
Hillery, 474 U. S. 254, 263 (1986) (“[W]hen a petit jury has been selected
upon improper criteria or has been exposed to prejudicial publicity, we
Cite as: 548 U. S. ____ (2006) 9
Opinion of the Court
527 U. S. 1, 7–9 (1999). Such errors include the denial of
counsel, see Gideon v. Wainwright, 372 U. S. 335 (1963),
the denial of the right of self-representation, see McKaskle
v. Wiggins, 465 U. S. 168, 177–178, n. 8 (1984), the denial of
the right to public trial, see Waller v. Georgia, 467 U. S. 39,
49, n. 9 (1984), and the denial of the right to trial by jury by
the giving of a defective reasonable-doubt instruction, see
Sullivan v. Louisiana, 508 U. S. 275 (1993).
We have little trouble concluding that erroneous depri
vation of the right to counsel of choice, “with consequences
that are necessarily unquantifiable and indeterminate,
unquestionably qualifies as ‘structural error.’ ” Id., at 282.
Different attorneys will pursue different 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. And the choice of attorney will affect whether
and on what terms the defendant cooperates with the
prosecution, plea bargains, or decides instead to go to trial.
In light of these myriad aspects of representation, the
erroneous denial of counsel bears directly on the “frame
work within which the trial proceeds,” Fulminante, supra,
——————
have required reversal of the conviction because the effect of the viola
tion cannot be ascertained”). The dissent would use “fundamental
unfairness” as the sole criterion of structural error, and cites a case in
which that was the determining factor, see Neder v. United States, 527
U. S. 1, 9 (1999) (quoted by the dissent, post, at 6). But this has not
been the only criterion we have used. In addition to the above cases
using difficulty of assessment as the test, we have also relied on the
irrelevance of harmlessness, see McKaskle v. Wiggins, 465 U. S. 168, 177,
n. 8 (1984) (“Since the right to self-representation is a right that when
exercised usually increases the likelihood of a trial outcome unfavor
able to the defendant, its denial is not amenable to ‘harmless error’
analysis”). Thus, it is the dissent that creates a single, inflexible
criterion, inconsistent with the reasoning of our precedents, when it
asserts that only those errors that always or necessarily render a trial
fundamentally unfair and unreliable are structural, post, at 8.
10 UNITED STATES v. GONZALEZ-LOPEZ
Opinion of the Court
at 310—or indeed on whether it proceeds at all. It is
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 proceed
ings. Many counseled decisions, including those involving
plea bargains and cooperation with the government, do
not even concern the conduct of the trial at all. Harmless-
error analysis in such a context would be a speculative
inquiry into what might have occurred in an alternate
universe.
The Government acknowledges that the deprivation of
choice of counsel pervades the entire trial, but points out
that counsel’s ineffectiveness may also do so and yet we do
not allow reversal of a conviction for that reason without a
showing of prejudice. But the requirement of showing
prejudice in ineffectiveness claims stems from the very
definition of the right at issue; it is not a matter of show
ing that the violation was harmless, but of showing that a
violation of the right to effective representation occurred.
A choice-of-counsel violation occurs whenever the defen
dant’s choice is wrongfully denied. Moreover, if and when
counsel’s ineffectiveness “pervades” a trial, it does so (to
the extent we can detect it) through identifiable mistakes.
We can assess how those mistakes affected the outcome.
To determine the effect of wrongful denial of choice of
counsel, however, we would not be looking for mistakes
committed by the actual counsel, but for differences in the
defense that would have been made by the rejected coun
sel—in matters ranging from questions asked on voir dire
and cross-examination to such intangibles as argument
style and relationship with the prosecutors. We would
have to speculate upon what matters the rejected counsel
would have handled differently—or indeed, would have
handled the same but with the benefit of a more jury-
pleasing courtroom style or a longstanding relationship of
trust with the prosecutors. And then we would have to
Cite as: 548 U. S. ____ (2006) 11
Opinion of the Court
speculate upon what effect those different choices or dif
ferent intangibles might have had. The difficulties of
conducting the two assessments of prejudice are not re
motely comparable.5
IV
Nothing we have said today casts any doubt or places
any qualification upon our previous holdings that limit the
right to counsel of choice and recognize the authority of
trial courts to establish criteria for admitting lawyers to
argue before them. As the dissent too discusses, post, at 3,
the right to counsel of choice does not extend to defendants
who require counsel to be appointed for them. See Wheat,
486 U. S., at 159; Caplin & Drysdale, 491 U. S., at 624,
626. Nor may a defendant insist on representation by a
person who is not a member of the bar, or demand that a
court honor his waiver of conflict-free representation. See
Wheat, 486 U. S., at 159–160. We have recognized a trial
court’s wide latitude in balancing the right to counsel of
choice against the needs of fairness, id., at 163–164, and
against the demands of its calendar, Morris v. Slappy, 461
U. S. 1, 11–12 (1983). The court has, moreover, an “inde
pendent interest in ensuring that criminal trials are con
ducted within the ethical standards of the profession and
——————
5 In its discussion of the analysis that would be required to conduct
harmless-error review, the dissent focuses on which counsel was
“better.” See post, at 7–8 (opinion of ALITO, J.). This focus has the
effect of making the analysis look achievable, but it is fundamentally
inconsistent with the principle (which the dissent purports to accept for
the sake of argument) that the Sixth Amendment can be violated
without a showing of harm to the quality of representation. Cf.
McKaskle, supra, at 177, n. 8. By framing its inquiry in these terms
and expressing indignation at the thought that a defendant may receive
a new trial when his actual counsel was at least as effective as the one
he wanted, the dissent betrays its misunderstanding of the nature of
the right to counsel of choice and its confusion of this right with the
right to effective assistance of counsel.
12 UNITED STATES v. GONZALEZ-LOPEZ
Opinion of the Court
that legal proceedings appear fair to all who observe
them.” Wheat, supra, at 160. None of these limitations on
the right to choose one’s counsel is relevant here. This is
not a case about a court’s power to enforce rules or adhere
to practices that determine which attorneys may appear
before it, or to make scheduling and other decisions that
effectively exclude a defendant’s first choice of counsel.
However broad a court’s discretion may be, the Govern
ment has conceded that the District Court here erred
when it denied respondent his choice of counsel. Accept
ing that premise, we hold that the error violated respon
dent’s Sixth Amendment right to counsel of choice and
that this violation is not subject to harmless-error
analysis.
* * *
The judgment of the Court of Appeals is affirmed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 548 U. S. ____ (2006) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–352
_________________
UNITED STATES, PETITIONER v. CUAUHTEMOC
GONZALEZ-LOPEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2006]
JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE
KENNEDY, and JUSTICE THOMAS join, dissenting.
I disagree with the Court’s conclusion that a criminal
conviction must automatically be reversed whenever a
trial court errs in applying its rules regarding pro hac vice
admissions and as a result prevents a defendant from
being represented at trial by the defendant’s first-choice
attorney. Instead, a defendant should be required to make
at least some showing that the trial court’s erroneous
ruling adversely affected the quality of assistance that the
defendant received. In my view, the majority’s contrary
holding is based on an incorrect interpretation of the Sixth
Amendment and a misapplication of harmless-error prin
ciples. I respectfully dissent.
I
The majority makes a subtle but important mistake at
the outset in its characterization of what the Sixth
Amendment guarantees. The majority states that the
Sixth Amendment protects “the right of a defendant who
does not require appointed counsel to choose who will
represent him.” Ante, at 3. What the Sixth Amendment
actually protects, however, is the right to have the assis
tance that the defendant’s counsel of choice is able to
provide. It follows that if the erroneous disqualification of
2 UNITED STATES v. GONZALEZ-LOPEZ
ALITO, J., dissenting
a defendant’s counsel of choice does not impair the assis
tance that a defendant receives at trial, there is no viola
tion of the Sixth Amendment.1
The language of the Sixth Amendment supports this
interpretation. The Assistance of Counsel Clause focuses
on what a defendant is entitled to receive (“Assistance”),
rather than on the identity of the provider. The back
ground of the adoption of the Sixth Amendment points in
the same direction. The specific evil against which the
Assistance of Counsel Clause was aimed was the English
common-law rule severely limiting a felony defendant’s
ability to be assisted by counsel. United States v. Ash, 413
U. S. 300, 306 (1973). “[T]he core purpose of the counsel
guarantee was to assure ‘Assistance’ at trial,” id., at 309,
and thereby “to assure fairness in the adversary criminal
process,” United States v. Morrison, 449 U. S. 361, 364
(1981). It was not “the essential aim of the Amendment
. . . to ensure that a defendant will inexorably be repre
sented by the lawyer whom he prefers.” Wheat v. United
States, 486 U. S. 153, 159 (1988); cf. Morris v. Slappy, 461
U. S. 1, 14 (1983) (“[W]e reject the claim that the Sixth
Amendment guarantees a ‘meaningful relationship’ be
tween an accused and his counsel”).
There is no doubt, of course, that the right “to have the
Assistance of Counsel” carries with it a limited right to be
represented by counsel of choice. At the time of the adop
tion of the Bill of Rights, when the availability of ap
pointed counsel was generally limited,2 that is how the
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1 This
view is consistent with the Government’s concession that “[t]he
Sixth Amendment . . . encompasses a non-indigent defendant’s right to
select counsel who will represent him in a criminal prosecution,” Brief
for United States 11, though this right is “circumscribed in several
important respects,” id., at 12 (citation and internal quotation marks
omitted).
2 See Act of Apr. 30, 1790, ch. 9, §29, 1 Stat. 118 (providing for ap
pointment of counsel in capital cases); Betts v. Brady, 316 U. S. 455,
Cite as: 548 U. S. ____ (2006) 3
ALITO, J., dissenting
right inevitably played out: A defendant’s right to have the
assistance of counsel necessarily meant the right to have
the assistance of whatever counsel the defendant was able
to secure. But from the beginning, the right to counsel of
choice has been circumscribed.
For one thing, a defendant’s choice of counsel has al
ways been restricted by the rules governing admission to
practice before the court in question. The Judiciary Act of
1789 made this clear, providing that parties “in all the
courts of the United States” had the right to “the assis
tance of such counsel or attorneys at law as by the rules of
the said courts respectively shall be permitted to manage
and conduct cases therein.” Ch. 20, §35, 1 Stat. 92.
Therefore, if a defendant’s first-choice attorney was not
eligible to appear under the rules of a particular court, the
defendant had no right to be represented by that attorney.
Indeed, if a defendant’s top 10 or top 25 choices were all
attorneys who were not eligible to appear in the court in
question, the defendant had no right to be represented by
any of them. Today, rules governing admission to practice
before particular courts continue to limit the ability of a
criminal defendant to be represented by counsel of choice.
See Wheat, 486 U. S., at 159.
The right to counsel of choice is also limited by conflict-
of-interest rules. Even if a defendant is aware that his or
her attorney of choice has a conflict, and even if the defen
dant is eager to waive any objection, the defendant has no
constitutional right to be represented by that attorney.
See id., at 159–160.
Similarly, the right to be represented by counsel of
choice can be limited by mundane case-management
considerations. If a trial judge schedules a trial to begin
on a particular date and defendant’s counsel of choice is
already committed for other trials until some time thereaf
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467, n. 20 (1942) (surveying state statutes).
4 UNITED STATES v. GONZALEZ-LOPEZ
ALITO, J., dissenting
ter, the trial judge has discretion under appropriate cir
cumstances to refuse to postpone the trial date and
thereby, in effect, to force the defendant to forgo counsel of
choice. See, e.g., Slappy, supra; United States v. Hughey,
147 F. 3d 423, 428–431 (CA5 1998).
These limitations on the right to counsel of choice are
tolerable because the focus of the right is the quality of the
representation that the defendant receives, not the iden
tity of the attorney who provides the representation.
Limiting a defendant to those attorneys who are willing,
available, and eligible to represent the defendant still
leaves a defendant with a pool of attorneys to choose
from—and, in most jurisdictions today, a large and diverse
pool. Thus, these restrictions generally have no adverse
effect on a defendant’s ability to secure the best assistance
that the defendant’s circumstances permit.
Because the Sixth Amendment focuses on the quality of
the assistance that counsel of choice would have provided,
I would hold that the erroneous disqualification of counsel
does not violate the Sixth Amendment unless the ruling
diminishes the quality of assistance that the defendant
would have otherwise received. This would not require a
defendant to show that the second-choice attorney was
constitutionally ineffective within the meaning of Strick
land v. Washington, 466 U. S. 668 (1984). Rather, the
defendant would be entitled to a new trial if the defendant
could show “an identifiable difference in the quality of
representation between the disqualified counsel and the
attorney who represents the defendant at trial.” Rodri
guez v. Chandler, 382 F. 3d 670, 675 (CA7 2004), cert.
denied, 543 U. S. 1156 (2005).
This approach is fully consistent with our prior deci
sions. We have never held that the erroneous disqualifica
tion of counsel violates the Sixth Amendment when there
is no prejudice, and while we have stated in several cases
that the Sixth Amendment protects a defendant’s right to
Cite as: 548 U. S. ____ (2006) 5
ALITO, J., dissenting
counsel of choice, see Caplin & Drysdale, Chartered v.
United States, 491 U. S. 617, 624–625 (1989); Wheat,
supra, at 159; Powell v. Alabama, 287 U. S. 45, 53 (1932),
we had no occasion in those cases to consider whether a
violation of this right can be shown where there is no
prejudice. Nor do our opinions in those cases refer to that
question. It is therefore unreasonable to read our general
statements regarding counsel of choice as addressing the
issue of prejudice.3
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3 Powell is the case generally cited as first noting a defendant’s right
to counsel of choice. Powell involved an infamous trial in which the
defendants were prevented from obtaining any counsel of their choice
and were instead constrained to proceed with court-appointed counsel
of dubious effectiveness. We held that this denied them due process
and that “a fair opportunity to secure counsel of [one’s] own choice” is a
necessary concomitant of the right to counsel. 287 U. S., at 53; cf. id.,
at 71 (“[T]he failure of the trial court to give [petitioners] reasonable
time and opportunity to secure counsel was a clear denial of due proc
ess”). It is clear from the facts of the case that we were referring to the
denial of the opportunity to choose any counsel, and we certainly said
nothing to suggest that a violation of the right to counsel of choice could
be established without any showing of prejudice.
In Wheat, we held that the trial judge had not erred in declining the
defendant’s waiver of his right to conflict-free counsel, and therefore we
had no need to consider whether an incorrect ruling would have re
quired reversal of the defendant’s conviction in the absence of a show
ing of prejudice. We noted that “the right to select and be represented
by one’s preferred attorney is comprehended by the Sixth Amendment,”
486 U. S., at l59, but we went on to stress that this right “is circum
scribed in several important respects,” ibid., including by the require
ment of bar membership and rules against conflicts of interest. Wheat
did not suggest that a violation of the limited Sixth Amendment right
to counsel of choice can be established without showing prejudice, and
our statements about the Sixth Amendment’s “purpose” and “essential
aim”—providing effective advocacy and a fair trial, ibid.—suggest the
opposite.
Finally, in Caplin & Drysdale, we held that the challenged action of
the trial judge—entering an order forfeiting funds that the defendant
had earmarked for use in paying his attorneys—had been proper, and,
accordingly, we had no occasion to address the issue of prejudice. We
recognized that “the Sixth Amendment guarantees a defendant the
6 UNITED STATES v. GONZALEZ-LOPEZ
ALITO, J., dissenting
II
But even accepting, as the majority holds, that the
erroneous disqualification of counsel of choice always
violates the Sixth Amendment, it still would not follow
that reversal is required in all cases. The Constitution, by
its terms, does not mandate any particular remedy for
violations of its own provisions. Instead, we are bound in
this case by Federal Rule of Criminal Procedure 52(a),
which instructs federal courts to “disregar[d]” “[a]ny error
. . . which does not affect substantial rights.” See also 28
U. S. C. §2111; Chapman v. California, 386 U. S. 18, 22
(1967). The only exceptions we have recognized to this
rule have been for “a limited class of fundamental consti
tutional errors that ‘defy analysis by “harmless error”
standards.’ ” Neder v. United States, 527 U. S. 1, 7 (1999)
(quoting Arizona v. Fulminante, 499 U. S. 279, 309
(1991)); see also Chapman, supra, at 23. “Such errors . . .
‘necessarily render a trial fundamentally unfair’ [and]
deprive defendants of ‘basic protections’ without which ‘a
criminal trial cannot reliably serve its function as a vehi
cle for determination of guilt or innocence . . . and no
criminal punishment may be regarded as fundamentally
fair.’ ” Neder, supra, at 8–9 (quoting Rose v. Clark, 478
U. S. 570, 577–578 (1986) (second omission in original));
see also ante, at 9 (listing such errors).
Thus, in Neder, we rejected the argument that the omis
sion of an element of a crime in a jury instruction “neces
sarily render[s] a criminal trial fundamentally unfair or
——————
right to be represented by an otherwise qualified attorney whom that
defendant can afford to hire, or who is willing to represent the defen
dant even though he is without funds,” 491 U. S., at 624–625, but we
added that “[w]hatever the full extent of the Sixth Amendment’s
protection of one’s right to retain counsel of his choosing, that protec
tion does not go beyond ‘the individual’s right to spend his own money
to obtain the advice and assistance of . . . counsel,’ ” id., at 626 (omission
in original).
Cite as: 548 U. S. ____ (2006) 7
ALITO, J., dissenting
an unreliable vehicle for determining guilt or innocence.”
527 U. S., at 9. In fact, in that case, “quite the opposite
[was] true: Neder was tried before an impartial judge,
under the correct standard of proof and with the assis
tance of counsel; a fairly selected, impartial jury was
instructed to consider all of the evidence and argument in
respect to Neder’s defense . . . .” Ibid.
Neder’s situation—with an impartial judge, the correct
standard of proof, assistance of counsel, and a fair jury—is
much like respondent’s. Fundamental unfairness does not
inexorably follow from the denial of first-choice counsel.
The “decision to retain a particular lawyer” is “often unin
formed,” Cuyler v. Sullivan, 446 U. S. 335, 344 (1980); a
defendant’s second-choice lawyer may thus turn out to be
better than the defendant’s first-choice lawyer. More
often, a defendant’s first- and second-choice lawyers may
be simply indistinguishable. These possibilities would not
justify violating the right to choice of counsel, but they do
make me hard put to characterize the violation as “always
render[ing] a trial unfair,” Neder, supra, at 9. Fairness
may not limit the right, see ante, at 5, but it does inform
the remedy.
Nor is it always or nearly always impossible to deter
mine whether the first choice would have provided better
representation than the second choice. There are un
doubtedly cases in which the prosecution would have little
difficulty showing that the second-choice attorney was
better qualified than or at least as qualified as the defen
dant’s initial choice, and there are other cases in which it
will be evident to the trial judge that any difference in
ability or strategy could not have possibly affected the
outcome of the trial.
Requiring a defendant to fall back on a second-choice
attorney is not comparable to denying a defendant the
right to be represented by counsel at all. Refusing to
permit a defendant to receive the assistance of any counsel
8 UNITED STATES v. GONZALEZ-LOPEZ
ALITO, J., dissenting
is the epitome of fundamental unfairness, and as far as
the effect on the outcome is concerned, it is much more
difficult to assess the effect of a complete denial of counsel
than it is to assess the effect of merely preventing repre
sentation by the defendant’s first-choice attorney. To be
sure, when the effect of an erroneous disqualification is
hard to gauge, the prosecution will be unable to meet its
burden of showing that the error was harmless beyond a
reasonable doubt. But that does not justify eliminating
the possibility of showing harmless error in all cases.
The majority’s focus on the “trial error”/“structural
defect” dichotomy is misleading. In Fulminante, we used
these terms to denote two poles of constitutional error that
had appeared in prior cases; trial errors always lead to
harmless-error review, while structural defects always
lead to automatic reversal. See 499 U. S., at 306–310. We
did not suggest that trial errors are the only sorts of errors
amenable to harmless-error review, or that all errors
“affecting the framework within which the trial proceeds,”
id., at 310, are structural. The touchstone of structural
error is fundamental unfairness and unreliability. Auto
matic reversal is strong medicine that should be reserved
for constitutional errors that “always” or “necessarily,”
Neder, supra, at 9 (emphasis in original), produce such
unfairness.
III
Either of the two courses outlined above—requiring at
least some showing of prejudice, or engaging in harmless-
error review—would avoid the anomalous and unjustifi
able consequences that follow from the majority’s two-part
rule of error without prejudice followed by automatic
reversal.
Under the majority’s holding, a defendant who is erro
neously required to go to trial with a second-choice attor
ney is automatically entitled to a new trial even if this
Cite as: 548 U. S. ____ (2006) 9
ALITO, J., dissenting
attorney performed brilliantly. By contrast, a defendant
whose attorney was ineffective in the constitutional sense
(i.e., “made errors so serious that counsel was not func
tioning as the ‘counsel’ guaranteed . . . by the Sixth
Amendment,” Strickland, 466 U. S., at 687) cannot obtain
relief without showing prejudice.
Under the majority’s holding, a trial court may adopt
rules severely restricting pro hac vice admissions, cf. Leis
v. Flynt, 439 U. S. 438, 443 (1979) (per curiam), but if it
adopts a generous rule and then errs in interpreting or
applying it, the error automatically requires reversal of
any conviction, regardless of whether the erroneous ruling
had any effect on the defendant.
Under the majority’s holding, some defendants will be
awarded new trials even though it is clear that the errone
ous disqualification of their first-choice counsel did not
prejudice them in the least. Suppose, for example, that a
defendant is initially represented by an attorney who
previously represented the defendant in civil matters and
who has little criminal experience. Suppose that this
attorney is erroneously disqualified and that the defen
dant is then able to secure the services of a nationally
acclaimed and highly experienced criminal defense attor
ney who secures a surprisingly favorable result at trial—
for instance, acquittal on most but not all counts. Under
the majority’s holding, the trial court’s erroneous ruling
automatically means that the Sixth Amendment was
violated—even if the defendant makes no attempt to argue
that the disqualified attorney would have done a better
job. In fact, the defendant would still be entitled to a new
trial on the counts of conviction even if the defendant
publicly proclaimed after the verdict that the second at
torney had provided better representation than any other
attorney in the country could have possibly done.
Cases as stark as the above hypothetical are unlikely,
but there are certainly cases in which the erroneous dis
10 UNITED STATES v. GONZALEZ-LOPEZ
ALITO, J., dissenting
qualification of a defendant’s first-choice counsel neither
seriously upsets the defendant’s preferences nor impairs
the defendant’s representation at trial. As noted above, a
defendant’s second-choice lawyer may sometimes be better
than the defendant’s first-choice lawyer. Defendants who
retain counsel are frequently forced to choose among
attorneys whom they do not know and about whom they
have limited information, and thus a defendant may not
have a strong preference for any one of the candidates. In
addition, if all of the attorneys considered charge roughly
comparable fees, they may also be roughly comparable in
experience and ability. Under these circumstances, the
erroneous disqualification of a defendant’s first-choice
attorney may simply mean that the defendant will be
represented by an attorney whom the defendant very
nearly chose initially and who is able to provide represen
tation that is just as good as that which would have been
furnished by the disqualified attorney. In light of these
realities, mandating reversal without even a minimal
showing of prejudice on the part of the defendant is
unwarranted.
The consequences of the majority’s holding are particu
larly severe in the federal system and in other court sys
tems that do not allow a defendant to take an interlocu
tory appeal when counsel is disqualified. See Flanagan v.
United States, 465 U. S. 259, 260 (1984). Under such
systems, appellate review typically occurs after the defen
dant has been tried and convicted. At that point, if an
appellate court concludes that the trial judge made a
marginally incorrect ruling in applying its own pro hac
vice rules, the appellate court has no alternative but to
order a new trial—even if there is not even any claim of
prejudice. The Sixth Amendment does not require such
results.
Because I believe that some showing of prejudice is
required to establish a violation of the Sixth Amendment,
Cite as: 548 U. S. ____ (2006) 11
ALITO, J., dissenting
I would vacate and remand to let the Court of Appeals
determine whether there was prejudice. However, assum
ing for the sake of argument that no prejudice is required,
I believe that such a violation, like most constitutional
violations, is amenable to harmless-error review. Our
statutes demand it, and our precedents do not bar it. I
would then vacate and remand to let the Court of Appeals
determine whether the error was harmless in this case.