United States v. Hohn

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 31, 2024
• Docket: 22-3009
• Status: Published

Opinion

Appellate Case: 22-3009 Document: 010110992761 Date Filed: 01/31/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 31, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 22-3009 v. (D.C. No. 2:19-CV-02082-JAR-JPO 2:12-CR-20003-JAR-3 and STEVEN M. HOHN, 2:19-CV-02491-JAR-JPO) (D. Kan.) Defendant - Appellant. _________________________________

ORDER _________________________________

Before HOLMES, Chief Judge, HARTZ, TYMKOVICH, MATHESON, BACHARACH, PHILLIPS, MCHUGH, EID, CARSON and ROSSMAN, Circuit Judges.* _________________________________

Following the September 18, 2023 oral argument in this matter, a poll was called

to consider whether this matter should be heard and decided by the en banc court in the

first instance. A majority of the active judges of the court voted in favor of initial hearing

en banc, and the poll carried.

Judge Rossman has written separately in dissent. Judge Rossman’s dissental is

joined by Judge Bacharach.

* The Honorable Nancy L. Moritz and the Honorable Richard E. N. Federico are recused in this matter. Appellate Case: 22-3009 Document: 010110992761 Date Filed: 01/31/2024 Page: 2

Although this entire case will be heard en banc, the parties shall address the

following questions in supplemental briefs:

A. Did Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995) correctly hold that it is structural error for the government to purposefully intrude without legitimate justification into the attorney-client relationship and that prejudice must be presumed?

B. When, if ever, does the government unjustifiably intrude into the attorney- client relationship by intentionally obtaining attorney-client communications that are not privileged?

Appellant’s supplemental brief shall be filed within 30 days of the date of this

order, and shall be limited to 25 pages in length in a 13- or 14-point font. Within three

business days of the electronic filing of Appellant’s supplemental brief, 16 hard copies

must be received in the Office of the Clerk. Within 30 days of the filing of Appellant’s

supplemental brief, Appellee shall file a supplemental response brief subject to the same

limitations. Sixteen hard copies of Appellee’s supplemental brief must be received in the

Clerk’s Office within three business days of the brief’s electronic filing. Within 14 days

of the electronic filing of Appellee’s supplemental response brief, Appellant may file a

supplemental reply brief. The supplemental reply brief shall be limited to 10 pages in

length in a 13- or 14-point font. Like the primary supplemental briefs, 16 hard copies of

the supplemental reply brief must be received in the Clerk’s Office within three business

days of the brief’s electronic filing.

The court anticipates setting this matter for hearing on the May 2024 oral

argument calendar. Therefore, motions for extension of time are strongly discouraged.

2 Appellate Case: 22-3009 Document: 010110992761 Date Filed: 01/31/2024 Page: 3

The parties will be advised of the date and time of oral argument when the court’s May

2024 calendar is set.

Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk

3 Appellate Case: 22-3009 Document: 010110992761 Date Filed: 01/31/2024 Page: 4

United States v. Hohn, No. 22-3009

ROSSMAN, Circuit Judge, joined by BACHARACH, Circuit Judge, dissenting from the grant of sua sponte initial en banc review.

This appeal was briefed, argued before a panel of this court, and

submitted for decision in September 2023. Now, without the benefit of a

panel decision and with no request from the parties, the majority has

ordered this appeal to be “heard and decided by the en banc court in the

first instance.” En banc review is “an extraordinary procedure.” 10th Cir.

R. 35.1(A); see also Fed. R. App. P. 35(a) (en banc review “is not favored”).

Initial en banc is rarer still, let alone sua sponte initial en banc

consideration. The court is taking a highly unusual step.

In my view, it is a mistake to bypass the norms of our appellate

process. A panel opinion in this matter, particularly here after briefing and

oral argument, would aid the dispositional process and help all stakeholders

assess the suitability of en banc consideration. Moreover, no party

requested initial en banc consideration or had reason yet to seek en banc

review. A litigation choice of such consequence belongs to litigants, not

courts. Adherence to the well-settled “principle of party presentation”

counsels strongly against the majority’s sua sponte decision. Greenlaw v.

United States, 554 U.S. 237, 243 (2008). I respectfully dissent.