Tenth Circuit Grants Sua Sponte, Initial En Banc Hearing in Direct Federal Criminal Appeal, Prompting A “Dissental” by Two Judges

In an order published today, United States v. Hohn, No. 22-3009 (10th Cir. Jan. 31, 2024), a majority of the active judges of the Tenth Circuit order an en banc initial hearing in a direct federal criminal appeal, raising the prospect of overruling a 1995 panel decision. Two judges, in a separate opinion, express concern about this procedure.

In the order, the full court orders supplemental briefs from both sides on these issues:

“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?”

The parties are also directed that the “court anticipates setting this matter for hearing on the May 2024 oral argument calendar” and “[t]herefore, motions for extension of time” for filing the briefs “are strongly discouraged.”

Notably, the panel had already heard oral argument on this appeal in September of 2023, but not had issued an opinion, so it is very likely that the case was taken from the panel with the purpose of reconsidering and possibly overruling Shillinger (and note that none of the judges on the 1995 panel are active Tenth Circuit judges today).

Two judges recused themselves: Judges Moritz and Federico. Two other judges, Judges Bacharach and Rossman, filed an opinion styled as a “dissental” in the court order. (See Alex Kozinski, I Say Dissental, You Say Concurral, 121 YALE L. J. 601 (2012).): “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.”