Petition — United States v. Gouveia

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ade Supreme Conrt. D.

Oleg FIL E D

Ne. 128 J. JM 25 1982

ALEXANDER . STEVAS.

In the Supreme Court of the United! ers

OCTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

WILLIAM GOUVEIA, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REX E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

CAROLYN F. CORWIN

Assistant to the Solicitor General

JOHN F. DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

NR RENE EER 8 — — ———— — —

QUESTIONS PRESENTED

1. Whether the Sixth Amendment requires appoint-

ment of counsel for an indigent prison inmate under

criminal investigation during the time he is being held in

administrative detention following the alleged offense but

before the institution of adversary judicial proceedings.

2. Whether, in the absence of a specific showing of

prejudice, dismissal of the indictment is the appropriate

remedy for failure to appoint counsel once an indigent

prison inmate is held in administrative detention more

than 90 days because of a pending criminal investigation.

PARTIES TO THE PROCEEDING

In addition to the parties shown by the caption of this

case, Robert Ramirez, Philip Segura, Adolpho Reynoso,

Robert Eugene Mills, and Richard Raymond Pierce were

appellants below and are respondents here.

(1)

TABLE OF CONTENTS

Relevant constitutional provision

ä . *

Reasons for granting the petitio oon

ä aiasseetlecasniion

TABLE OF AUTHORITIES

Avery v. Alabama, 308 U.S. 4444

Barter v. Palmigiano, 425 U.S. 3089

Estelle v. Smith, 451 U.S. 454

Hewitt v. Helms, No. 81-868 (Feb. 22, 1983)

Howe v. Smith, 452 U.S. 478

Kirby v. Illinois, 406 U.S. 68ũù ecco

Meachum v. Fano, 427 U.S. 21.

Montanye v. Haymes, 427 U.S. 286 ........................

Moore v. [Uinois, 484 U.S. 220

Olim v. Wakinekona, No. 81-1581 (Apr. 26, 1983)

United States v. Abel, 707 F.2d 1018

United States v. Ash, 418 U.S. 300 —......................

United States v. Blevins, 598 F.2d 64

United States v. Blue, 384 U.S. 251 aes

United States v. Castillo, 615 F.2d 878888

United States v. Clardy, 540 F.2d 439, cert. denied,

429 U.S. 963

United States v. Duke, 527 F.2d 386, cert. denied,

426 U.S. 952

(m)

Page

gaa

Cases—Continued Page

United States v. MacDonald, 456 U.S. 1 .................- 19

United States v. Marion, 404 U.S. 807 ................ 19, 21, 23

United States v. Mills, 704 F.2d 15588. 19

United States v. Morrison, 449 U.S. 361 18, 15, 22

United States v. Valenzuela-Bernal, No. 81-450

(July 2, 1982) 23

Wolff v. McDonnell, 418 U.S. 539 ai 18

Constitution, statutes and regulations:

U.S. Const.:

Amend. V (Due Process Clause) 4, 18, 24

% (( passim

Speedy Trial Clause. 9

Compulsory Process Clause ........................ 24

Amend. VIII 13

Criminal Justice Act of 1964, 18 U.S.C. 3006A

r ; 27

18 U.S.C. 118(c) .. 7

18 U.S.C. 1111 .. 2,7

18 U.S.C. 1117 2

18 U.S.C. 1792 4,7

28 C. F. R.:

Section 540.50 (o)) 3

Section 540.101 3

Section 540.102 ; 3

Section 540 105 8

Section 541 11 20

Section 541.14(b) 7

Section 541.15 24

Section 541.15(b) 29

Section 541.19 8

Section 541.19(a) 16

Section 541.20 3, 15-16

Section 541.20(a) 4, 16, 20

Section 541.20(d) 16

Section 543.11(j) 3

Section 543.13 8

Miscellaneous:

Wall St. J., May 11, 1988 29

In the Supreme Court of the United States

OCTOBER TERM, 1983

No.

UNITED STATES OF AMERICA, PETITIONER

WILLIAM GOUVEI, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Ninth

Circuit in this case.

OPINIONS BELOW

The opinion of the en banc court of appeals (App. A,

infra, la-29a) is reported at 704 F.2d 1116. An earlier

opinion of the court of appeals in the case of respond-

ents Mills and Pierce (App. B, infra, 30a-40a) is re-

(App. C, infra, 41a-50a) is unreported.

JURISDICTION

The judgment of the en banc court of appeals was

entered on April 26, 1983. On June 17, 1983, Justice

Rehnquist extended the time within which to file a pe-

tition for a writ of certiorari to and including July 25,

1983. The jurisdiction of this Court is invoked under

28 U.S.C. 1254 (1).

(1)

RELEVANT CONSTITUTIONAL PROVISION

The Sixth Amendment provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right * * * to have the assistance of counsel for

his defence.

STATEMENT

This case raises the question whether the Sixth Amend-

ment requires that counsel be appointed for an indigent

prison inmate under criminal investigation during the

time he is held in administrative detention following the

alleged offense, but before the institution of adversary

judicial proceedings. The court of appeals consolidated

appeals from two separate sets of district court convic-

tions involving prison inmate murders, both of which

raised this issue.

1. Respondents Gouveia, Ramirez, Segura and Reynoso

Following a jury retrial in the United States District

Court for the Central District of California, the four

respondents were convicted of murder and conspiracy to

commit murder, in violation of 18 U.S.C. 1111 and 1117

respectively. Each was sentenced to consecutive terins of

imprisonment for life and 99 years. App. A, infra, 3a.

a. On November 11, 1978, inmate Thomas Trejo was

stabbed to death at the Federal Correctional Institution

at Lompoc, California. An autopsy revealed that Trejo

had suffered 45 stab wounds, most of which were in the

area of his heart (Tr. 149).

Following the murder, the Federal Bureau of Investi-

gation and prison officials began independent investiga-

tions to determine the identity of the murderers. Respond-

ents Gouveia and Reynoso and inmate Pedro Flores were

immediately placed in the Administrative Detention Unit

(“ADU”) at Lompoc (C. R. No. 40, Reynoso Declaration

1 Tr.“ signifies the transcript in the case of the Gouveia

respondents.

at 1; C.R. No. 62 at 15).2 While in ADU, the two re-

spondents were separated from the remainder of the

prison population, and their participation in various

prison programs was curtailed. However, they were not

deprived of regular visitation rights, exercise periods,

access to legal materials, and telephones from which they

could make unmonitored calls to attorneys. See App. A,

infra, Za, 6a; 28 C. F. R. 540.50(c), 540.101, 540.102,

540.105, 541.19, 541.20, 543.11 (j), 543.13; C.R. No. 62

at 21; Tr. 2411.

On November 22, 1978, Gouveia, Reynoso, and Flores

were removed from ADU and returned to the general

prison population (C.R. No. 40, Reynoso Declaration at

1; C. R. No. 62 at 15). However, on December 4, 1978,

all four respondents, as well as Flores and inmate Steven

Kinard, were placed in ADU pending further investiga-

tion after prison officials obtained further information

that implicated the six in the murder (see C.R. No. 40,

Reynoso Declaration at 1; C.R. No. 38, Exh. C; C.R. No.

42 at 19; C.R. No. 62 at 15). Later in December, prison

authorities conducted disciplinary hearings. Respondents

requested appointment of counsel at the hearings, but the

requests were denied (e. g., C. R. No. 40, Reynoso Declara-

tion at 1-2; C.R. No. 42 at 19; C.R. No. 60 at 2-3).

Prison officials determined that the four respondents each

had participated in the murder of Trejo and ordered that

they be returned to ADU (App. A, infra, 2a)“ There-

2“C.R.” signifies the district court Clerk’s Record in the case

of the Gouveia respondents. The number following the abbrevia-

tion corresponds with the entry number on the district court docket

sheet. |

The reasons for the decision to return respondents to ADU are

not set forth clearly in the record. However, a prison form dated

December 1978, submitted as an exhibit to co-defendant Flores’

motion to dismiss, indicates that he was placed in ADU pending

investigation for violations of prison rules and crimes committed

in the prison and because his “[c)ontinued presence * in general |

population pose[d] a serious threat” to other inmates and to the

security of the institution (C. R. No. 83, Exh. C). Respondents

after, prison authorities directed that Gouveia and Ra-

mirez be transferred to the control unit of the United

States Penitentiary in Marion, Illinois, based on a find-

ing that they were too dangerous to be maintained in

the general prison population at Lompoc (C.R. No. 43

at 5; C.R. No. 60 at 4).

In March 1979, after the FBI notified the United

States Attorney of the results of its investigation, the

matter was presented to a grand jury, which, on June

17, 1980, indicted respondents, Flores, and Kinard for

murder and conspiracy to commit murder. In addition,

Reynoso, Kinard, and Flores were charged with convey-

ance of a weapon in a penal institution, in violation of

8 U.S.C. 1792. On July 14, 1980, respondents were ar-

igned in federal court, at which time they were ap-

inted counsel (App. A, infra, 3a).

. Prior to trial, respondents and Flores moved to

iss the indictment on the ground that the 19-month

iod between their removal to ADU and their indict-

ment violated the Sixth Amendment right to a speedy

trial or, alternatively, constituted unreasonable preindict-

ment delay in violation of the Due Process Clause of the

Fifth Amendment. They also argued that the failure of

prison authorities to appoint counsel to represent them

during the period they were in administrative detention,

coupled with their own inability to begin preparation of

a defense because of their segregation from the general

inmate population, violated their Sixth Amendment right

to effective assistance of counsel.

Respondents made various factual representations to

support their claims. For example, Gouveia acknowledged

that he had obtained some information from the tran-

script of an FBI interview, and his counsel stated that

he had learned from inmate rosters furnished by the

apparently were returned to ADU for similar reasons (see C.R.

No. 60 at 1-2); Gouveia and Ramirez presumably were returned

to ADU for the additional reason that they were pending transfer

to another penal institution. See 28 C.F.R. 641.20 (a).

Bureau of Prisons the whereabouts of four potential de-

fense witnesses; however, Gouveia’s counsel asserted that

he was unable to obtain information about two other

potential witnesses (C. R. No. 60 at 5; C. R. No. 69

at 3-7). Ramirez claimed that because of his segregation

from the general prison population he had been unable to

contact potential witnesses who could verify his where-

abouts on the day of Trejo’s death; that he knew several

of these inmates only by nicknames and thus was unable

to establish their identities or determine their where-

abouts; and that a potential witness had died since the

murder (C.R. No. 43 at 5-6). Following argument, the

district court denied respondents’ motions to dismiss

without opinion (C.R. No. 72).

c. Trial began on September 16, 1980. The jury ac-

quitted Flores on all counts and acquitted Reynoso on

the weapon conveyance count. However, the jury was

unable to reach a verdict on the murder and conspiracy

charges against respondents, and a mistrial was declared

on those counts.

Retrial began on February 17, 1981. Kinard, who was

the government’s principal witness,‘ testified about the

plans to murder Trejo. According to Kinard’s testimony,

Reynoso had told Kinard in early November 1978 that

Trejo “had to go” by Christmas because he had made a

“bad move against la cliqua” while incarcerated at Ter-

minal] Island (Tr. 488-489); Ramirez had arranged for

another inmate to make several knives with which the

murder would be committed (Tr. 489-500); and on the

morning of the murder Reynoso stated that “the fool had

to be sent home today” (Tr. 512-513). Kinard described

the four respondents’ actions in preparing for the murder

and disposing of the weapons and blood-stained clothing

and related their later descriptions of the stabbing (Tr.

515-559). The prosecution introduced evidence that

Gouveia’s fingerprints and palm print and Segura’s palm

print were discovered in the cell where the murder oc-

curred (Tr. 327-328, 443-444).

Respondents called 34 witnesses, including 14 alibi wit-

nesses, to testify on their behalf (see App. A, infra, 28a).

Each respondent sought to establish that he was els~-

where at the time of the murder. In addition, the re-

spondents presented evidence that the crime had been

committed by others, including Kinard. For example, five

witnesses corroborated Segura’s testimony that he was

playing handball in the morning and that at the time the

murder was committed he was pla; ing pool and watching

a football game on television (¢.g., Tr. 1568-1569, 1579-

1590, 1596-1597, 1610-1612, 1764-1767, 2141-2148). An-

other witness verified Ramirez’ testimony that he was

lifting weights at the gymnasium at the time of the mur-

der (Tr. 1939, 2245-2247). Three witnesses testified in

support of Gouveia’s story that on the morning of the

murders he was eating in the dining hall and thereafter

went to the gymnasium (Tr. 1549-1550, 1680-1681, 2114-

2119, 2370-2378). Two witnesses testified that they were

watching a football game with Reynoso at the time of the

murders (Tr. 1418-1420, 1442, 1520-1525). In addition,

the inmates identified by government witnesses as those

who fabricated the knives and brought them into the

prison denied any involvement in the scheme (Tr. 1795

1796, 2424). Other witnesses testified that Kinard had

told them that he and another prisoner, who had since

died, had murdered Trejo following a dispute over pay-

ment for drugs (Tr. 1855-1864, 1894-1897, 2064).

2. Respondents Mills and Pierce

Following a jury trial in the United States District

Court for the Central District of California, respondents

Mills and Pierce were convicted of murder, in violation

of 18 U.S.C. (Supp. V) 1111, and of conveying a weapon

in prison, in violation of 18 U.S.C. 1792. Pierce also was

18 U.S.C. 113 (e). Each was sentenced to life imprison-

ment on the murder charge and to a concurrent three-

year term on the weapon conveyance charge. App. A,

infra, 4a-5a. Pierce received an additional concurrent

three-year term on the assault charge (Mills Tr. 1783).

a. On August 22, 1979, Thomas Hall, an inmate at

Lompoc, died after being stabbed 10 times in the “E”

unit of the prison (Mills Tr. 445, 482-483). Shortly after

the murder, Mills and Pierce were taken into custody

and examined by an FBI agent and a prison doctor,

who observed that Mills’ face was flushed and that he

had two puncture wounds on his left arm and a spot

of blood on his thumbnail. Pierce’s upper arm bore

bruises that appeared to be finger impressions (Mills

Tr. 461, 484, 619-621, 628). The following morning,

Mills and Pierce were placed in ADU on the ground

conditions of their confinement in ADU were identical to

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officials concluded that Mills and Pierce had murdered

Hall and returned them to ADU. The two were ordered

to forfeit their accumulated good time (App. A, infra,

4a). In addition, prison officials informed Mills that he

would be transferred to the control unit at Marion

Penitentiary (Mills C.R. No. 59 at 28).

On March 27, 1980, after Mills and Pierce had been

in administrative detention for approximately seven

months, they were indicted by a grand jury. At the time

of their arraignment on April 21, 1980, respondents were

appointed counsel. App. A, infra, 4a.

b. Mills and Pierce moved to dismiss the indictment on

the grounds that their administrative detention for seven

months prior to return of the indictment violated their

Sixth Amendment right to a speedy trial or, alternatively,

constituted unreasonable preindictment delay. They also

contended that the failure of prison authorities to appoint

counsel to represent them when they were placed in ad-

ministrative detention violated their Sixth Amendment

right to counsel.

the period in which they were confined in ADU “se-

verely undermined” their ability to prepare a defense;

August 22, 1979, “as clearly as they had * * * last

fall,” and that, in many cases, “defense witnesses are

unable, to remember

claimed that the time lapse made it impossible to analyze

blood stains found on clothing; that evidence relating to

the case had been lost or destroyed; and that their own

physical wounds, which might have had some probative

value for their defense, had healed (id. No. 49 at 9;

No. 73 at 7-8).

On August 14, 1980, the district court granted the

motion to dismiss the indictment (App. C, infra, 41a-50a).

The court first concluded that respondents stood accused of

the murder at the time they were committed to ADU and

that, because the government failed to justify the ensuing

10-month delay in bringing them to trial, they were

denied their Sixth Amendment right to a speedy trial.

Alternatively, the court found that respondents were

denied due process because their continued administrative

detention after the government had substantially com-

pleted its investigation irreparably prejudiced their ability

to prepare for trial. Finally, the court found that the

government’s failure to appoint counsel to represent re-

spondents promptly after their placement in ADU de-

prived them of the Sixth Amendment right to counsel, as

well as their due process right to prepare a defense The

court reasoned ‘nat respondents “were denied any effective

opportunity to have an investigation conducted on their

behalf while events were still recent and recollections in-

tact” and that the passage of time “resulted in the ir-

revocable loss of exculpatory testimony and evidence * * *”

(App. C, infra, 49a, 50a).

e. The court of appeals reversed (App. B, infra, 30a).

March 1980 (ibid.). Finally, the court of appeals noted

respondents’ claims of prejudice, but dismissed them as

speculative (id. at 36a-37a) .*

d. At trial, the government presented eyewitness testi-

mony linking Mills and Pierce to the murder of Hall. The

evidence showed tat prior to the murder Mills told an-

other inmate that he knew who was responsible for pro-

viding information that caused Mills to be placed tempo-

rarily in administrative detention and that Mills was

going to “take care of it” upon his release from deten-

tion (Mills Tr. 344-345); in fact, it was Hall who had

provided the information to prison authorities (id. at

474-476). The day before the murder Hall confronted

Mills and demanded repayment of a debt (id. at 289). On

the day of the murder there were several confrontations

between Hall and Mills and Pierce (id. at 76-77, 291-292).

After dinner, inmate Mellen, who was Hall’s friend, heard

Hall scream for help; he then saw Mills hold Hall from

behind while Pierce stabbed Hall in the abdomen (id. at

88-96, 109). Other witnesses corroborated Mellen’s testi-

mony. For example, inmate Ehle testified that before the

murder he had overheard Mills tell inmate John Able,

identified as the leader of a prison gang known as the

Aryan Brotherhood, that Mills was going to “move on”

an inmate who owed him money; Mills asked Able

whether the murder would make him eligible for member-

ship in the Brotherhood (id. at 561-563). Ehle also

testified that he overheard Mills discussing the murder

with Able after it occurred (id. at 591-593). A sub-

stantial amount of physical evidence, including blood-

stained clothing and wounds on the arms of both Mills

* Judge Nelson issued a concurring opinion in which she stated

that respondents’ due process claims could properly be raised at

trial (App. B, infra, 40a).

Following the court of appeals’ reversal of the order dismissing

the indictment, both respondents filed petitions for writs of cer-

tiorari, which were denied by this Court. 454 U.S. 902 (1981).

and Pierce, linked respondents to the murder (id. at

189-190, 418-425, 508-510, 618-621).

Mills and Pierce presented 42 witnesses, ineluding six

alibi witnesses. Three inmates testified that they were

watching the entrance to the E“ unit during the period

when the murder occurred but did not observe respondents

enter or leave (Mills Tr. 682, 708-709, 728). Six wit-

nesses corroborated Pierce’s testimony (id. at 1401-1402)

that he and Mills were eating a meal at the time of the

crime and were locked in the dining hall with other

prisoners immediately after its discovery (id. at 756-758,

777-779, 801-804, 819-824, 849-851, 1135-1137). Three

inmates testified that they witnessed the crime and

that, contrary to Mellen’s testimony, the assailants were

masked at all times, so that their identities could not be

determined (id. at 985-992, 1028-1030, 1048-1050).

Other witnesses testified that Hall was an informant and

had many enemies in the prison population (id. at 1106-

1109) and that bruises and cuts observed by investigators

on the respondents’ bodies shortly after the murders re-

sulted from athletic injuries (id. at 1223-1225, 1325-

1328). Several expert witnesses called by the defense

challenged the accuracy of opinion testimony by govern-

ment witnesses or testified based on the physical evidence

that it was unlikely that respondents committed the

murder (¢.g., id. at 902-908, 1278-1290, 1312-1318).

3. The Decision of the Court of Appeals

The en banc court of appeals consolidated the Gouveia

and Mills cases. By a vote of six to five, it reversed the

convictions and remanded for dismissal of the indict-

ments. The majority held that when an inmate is sepa-

rated from the general prison population for more than

90 days pending a criminal investigation, the Sixth

Amendment requires that he be appointed counsel (App.

A, infra, 17a).

The majority recognized that under this Court’s deci-

sions the right to counsel attaches only when formal

judicial proceedings are initiated. It reasoned, however,

that “[t]he point of ‘accusation’ may be different for the

prosecution of prison crimes, where the subject is already

incarcerated and subject to the discretion and discipline

of federal authorities” (App. A, infra, 7a). Proceeding

from this premise, the majority concluded that, although

separation of inmates from the general prison popula-

tion properly serves disciplinary and security functions

(id. at 10a), such detention becomes “accusatory” when

one of the purposes is to isolate the prisoner pending

investigation and trial (id. at lla).

The majority acknowledged (App. A, infra, 11a) that

administrative detention is necessary to further impor-

tant governmental investigative interests, such as the

protection of potential witnesses in the prison population.

However, it observed that such detention deprives the

prisoner of the opportunity to prepare a defense or even

to keep track of the location of other inmate-witnesses

in a transient prisoner population. This inability, the

majority reasoned, “distinguishes [respondents] from

suspects outside of prison who have not yet been ar-

rested or indicted;” the position of such detainees “more

resembles that of a suspect outside of prison who has

been arrested and detained than that of an outside sus-

pect who has been neither arrested nor detained” (id. at

12a). The majority noted that a suspect outside prison

who is arrested and detained normally is arraigned with-

out delay, at which time the right to counsel attaches; it

concluded by analogy that “the administrative detention

of an indigent inmate who is suspected of a crime does,

under certain circumstances, give rise to the right to

appointed counsel” (id. at 13a, 15a).

The majority then considered the circumstances under

which administrative detention would trigger the right

to counsel. Purporting to interpret applicable Bureau of

Prisons regulations, the majority concluded that the maxi-

mum stay in segregation for purely disciplinary reasons

is 90 days, and that any segregation for a period exceed-

ing 90 days must be for investigative purposes. The

majority stated that “[i]f an inmate is held after the

maximum disciplinary period has expired, he should be

allowed to show that his detention, at least in part, is due

to pending investigation or trial for a criminal act.” If

‘the inmate establishes indigency and requests counsel,

“prison officials must either refute the inmate’s showing,

appoint counsel, or release the inmate back into the gen-

eral prison population” (App. A, infra, 17a). The ma-

jority concluded that prison authorities had violated the

90-day rule it had fashioned and that respondents thus

had been denied the right to counsel.’

The majority then held that dismissal of the indict-

ments was the appropriate remedy (App. A, infra, 20a-

28a). It acknowledged (id. at 20a) that under United

States v. Morrison, 449 U.S. 361, 364-365 (1981), the

remedy for Sixth Amendment deprivations must be

tailored to the injury suffered. It rejected the govern-

ment’s argument that none of the respondents had demon-

strated actual and specific prejudice. The majority con-

cluded that the belated appointment of counsel, coupled

with respondents’ prolonged administrative detention fol-

lowing the murders, handicapped the ability of respond-

ents’ attorneys to defend them at trial, citing the re-

spondents’ allegations of prejudice and the statements of

the district court that had dismissed the indictments in

the Mills case at the pretrial stage (App. A, infra, 20a-

23a). The majority concluded that in any event it was

appropriate to presume prejudice because ordinarily it

would be difficult to prove or refute its existence (id. at

22a-23a).

Judge Wright dissented in an opinion joined by Judges

Choy, Kennedy, Anderson, and Poole (App. A, infra,

247-29 a). The dissenters pointed out that the majority

had confused right to counsel principles with speedy trial

principles when it applied a de facto accusation concept.

7 The majority found it unnecessary to reach respondents’ claims

based on the Fifth and Eighth Amendments (App. A, infra, 5a).

They concluded that extension of the right to counsel to

the preindictment investigative period contravenes deci-

sions in which this Court has stated that the right to

counsel attaches only at the time adversary judicial pro-

ceedings are initiated. The dissenters also noted that the

majority’s presumption of prejudice and dismissal] of the

indictment were inconsistent with United States v. Morri-

son, supra. The dissenters pointed out that the potential

prejudice referred to by the majority resulted primarily

from the passage of time, rather than ineffective assist-

ance of counsel (App. A, infra, 28a), and that there are

adequate remedies, short of dismissal of the indictment,

for prejudice resulting from any governmental] interfer-

ence with access to witnesses (id. at 28a-29a). The dis-

senters concluded that the majority had departed sub-

stantially from Supreme Court precedent and that “re-

view by that Court is indicated” (id. at 29a)“

REASONS FOR GRANTING THE PETITION

The court of appeals’ holding that the Sixth Amend-

ment requires appointment of counsel for indigent in-

mates held in administrative detention pending criminal

investigation represents a radical departure from this

Court’s decisions defining the right to counsel. Under

those decisions, it is well established that the right to

counsel attaches only at the initiation of adversary ju-

dicial proceedings. The court of appeals nevertheless con-

cluded that in the prison setting the right to counsel arises

wholly independent of the filing of any formal judicial

charges against an inmate.“

On May 16, 1983, the court of appeals stayed the issuance of

the mandate for a 90-day period commencing May 9, 1983.

This case involves only the issue of the right to appointment

of counsel for indigent inmates. The respondents were not denied

the opportunity to retain their ow. counsel during the time they

were in administrative detention (App. A, infra, 8a, 6a). Nor

was there any claim that respondents’ counsel rendered ineffective

In addition, the court of appeals’ conclusion that dis-

missal of the indictment normally will be the appropriate

remedy for the failure to appoint counsel at an early

stage, despite the absence of any specific showing of sub-

stantial prejudice, conflicts with this Court’s decision in

United States v. Morrison, 449 U.S. 361 (1981), which

requires that the remedy for a violation of the right to

counsel be tailored to the injury suffered. The court’s

virtually irrebuttable presumption that in such circum-

stances there will be irreparable prejudice to prison in-

mates, resulting in denial of a fair trial, is not well

founded.

The court of appeals’ “unprecedented expansion of the

right to counsel” (App. A, infra, 24a) will have a sig-

nificant effect on the administration of federal and state

prisons and on the criminal justice system in the Ninth

Circuit. The decision below threatens to interfere with

important security measures taken by prison authorities

in connection with prison crimes. In addition, the court’s

conclusion that dismissal of the indictment is the proper

remedy means that not only these respondents, but also

many other individuals who have committed serious in-

stitution crimes, will escape criminal penalties entirely.

In view of the court of appeals’ radical departure from

the decisions of this Court and the significant impact

of the decision below, review by this Court is warranted.

1. Each respondent was placed in the administrative

detention unit at Lompoc after being identified as a sus-

pect in a prison murder, and each remained there until

after he was indicted. Bureau of Prisons regulations de-

fine administrative detention as “the status of confine-

ment of an inmate in a special housing unit in a cell

either by himself or with other inmates which serves

to remove the inmate from the general population.” 28

assistance apart from the contention that failure to appoint counsel

at an earlier stage impeded the ability to mount a fully effective

defense.

C.F.R. 541.20. An administrative detainee normally is

confined to his cell except for regular exercise, shower,

and visitation periods, and he is deprived of the usual

interaction with his fellow prisoners that is provided by

shared meals, work and recreation. However, adminis-

trative detainees generally are affsrded the same priv-

ileges as are made available to general population in-

mates (e. g., commissary, visitation, and correspondence

privileges). 28 C. F. R. 541.20 (d).

Bureau of Prisons regulations provide that inmates may

be placed in administrative detention in a variety of cir-

cumstances. 28 C.F.R. 541.20(a). In particular, prison

officials may place an inmate in administrative deten-

tion “when his continued presence in the general popula-

tion poses a serious threat to life, property, self, staff,

other inmates or to the security or orderly running of the

institution and when the inmate * * * [i]s pending in-

vestigation or trial for a criminal act.” Ibid.“ Separation

of inmate-suspects from the general prison population

during the course of a criminal investigation serves im-

portant security purposes, including protection of poten-

tial inmate-witnesses from intimidation and prevention

of subornation of perjury.” The federal concerns under-

10 Bureau of Prisons regulations distinguish between “adminis-

trative detention” and “disciplinary segregation.” Under the regu-

lations, [i lnmates housed in disciplinary segregation have sig-

nificantly fewer privileges than those housed in administrative

detention.” 28 C.F.R. 541.19(a). The record appears to indicate

that respondents were in administrative detention, as opposed to

disciplinary segregation, during the entire period of their separa-

tion from the general prison population.

11 Under the regulations, an inmate may also be placed in admin-

istrative detention if he is pending hearing or investigation in

connection with a violation of prison regulations, is pending

transfer to another institution, needs protection, or is terminating

confinement in disciplinary segregation and placement in the gen-

eral prison population is not prudent. 28 C.F.R. 541.20(a).

% For instance, there is. evidence the: members of the Aryan

Brotherhood, to which respondent Mills sought admission (Mills

lying such detention are similar to state interests in de-

tention of inmates pending investigation, recognized by

this Court in Hewitt v. Helms, No. 81-638 (Feb. 22,

1983), slip op. 14-15: “[The state] must protect possible

witnesses—whose confinement leaves them particularly

vulnerable—from retribution by the suspected wrong-

doer, and, in addition, has an interest in preventing at-

tempts to persuade such witnesses not to testify at dis-

ciplinary hearings.” See also id. at 16 n.9 (noting that

pendency of a state criminal investigation was a factor

properly taken into account in continuing administrative

detention). These are the concerns that underlay the

placement of respondents in administrative detention dur-

ing the time the FBI and prosecutors conducted investi-

gations of the murders.

2. The decisions of this Court make clear that the

Sixth Amendment right to counsel attaches only at the

initiation of adversary judicial proceedings:

In a line of constitutional cases in this Court stem-

ming back to the Court’s landmark opinion in Powell

v. Alabama, 287 U.S. 45, it has been firmly estab-

lished that a person’s Sixth and Fourteenth Amend-

ment right to counsel attaches only at or after the

time that adversary judicial proceedings have been

initiated against him. See Powell v. Alabama, supra;

Johnson v. Zerbst, 304 U.S. 458; Hamilton v. Ala-

bama, 368 U.S. 52; Gideon v. Wainwright, 372 U.S.

335; White v. Maryland, 373 U.S. 59; Massiah v.

United States, 377 U.S. 201; United States v. Wade,

388 U.S. 218; Gilbert v. California, 388 U.S. 263;

Coleman v. Alabama, 399 U.S. 1

Kirby v. Illinois, 406 U.S. 682, 688 (1972) (plurality

opinion). Accord, Estelle v. Smith, 451 U.S. 454, 469-470

Tr. 562-563), have sworn to perjure themselves on behalf of fellow

members who may be prosecuted. See United States v. Abel, 707

F.2d 1013, 1016 (9th Cir. 1983).

(1981) ; Moore v. Illinois, 434 U.S. 220, 226-227 (1977).

Of course, the Sixth Amendinent by its terms refers to

rights in connection with “criminal prosecutions.” More-

over, practical considerations support the conclusion that

the right to counsel does not attach until the commence-

ment of adversary judicial proceedings:

The initiation of judicial criminal proceedings is

far from a mere formalism. It is the starting point

of our whole system of adversary criminal justice.

For it is only then that the government has com-

mitted itself to prosecute, and only then that the ad-

verse positions of government and defendant have

solidified. It is then that a defendant finds himself

faced with the prosecutorial forces of organized so-

ciety, and immersed in the intricacies of substantive

and procedural criminal law. It is this point, there-

fore, that marks the commencement of the “criminal

prosecutions” to which alone the explicit guarantees

of the Sixth Amendment are applicable. See Powell

v. Alabama, 287 U.S. at 66-71; Massiah v. United

States, 377 U.S. 201; Spano v. New York, 360 U.S.

315, 324 (Douglas, J., concurring).

Kirby v. Illinois, supra, 406 U.S. at 689-690 (footnote

omitted). Accord, Moore v. Illinois, supra, 434 U.S. at

227, 228.

The court of appeals disregarded these well-established

principles in concluding that respondents’ right, to ap-

pointed counsel attached 90 days after they had been

placed in administrative detention following commission

of a criminal offense—at which point the government was

still conducting its investigation and had not yet de-

termined whether prosecution was warranted. The court

18 The initiation of adversary judicial proceedings may occur at

the time of formal charge, preliminary hearing, indictment, in-

formation, or arraignment. See Estelle v. Smith, supra, 451 U.S.

at 469-470; Moore v. Illinois, supra, 434 U.S. at 226-229; Kirby v.

IUinois, supra, 406 U.S. at 689.

14 The court of appeals acknowledged (App. A, infra, 10a) that

there is no right to counsel in connection with prison disciplinary

proceedings. See Bazter v. Palmigiano, 425 U.S. 308 (1976);

Wolff v. McDonnell, 418 U.S. 589, 569-570 (1974).

j | |

of appeals attempted to avoid the apparent inconsistency

between its holding and this Court’s right to counsel cases

by announcing that an inmate becomes an “accused”

after 90 days of administrative detention (App. A,

infra, 18a, 16a-17a). This analysis is plainly wrong. To

begin with, even if continuation of administrative deten-

tion were equivalent to some sort of “accusation”, it

would not trigger the right to counsel, which attaches

only at the initiation of adversary judicial proceedings.

Moreover, assuming for the sake of argument that a

speedy trial analysis could be applied to the right to

counsel (see id. at 24a-25a), the court’s reasoning would

still be incorrect. It is not detention alone that triggers

the right to a speedy trial under the Sixth Amendment;

rather, both arrest and “holding to answer a criminal

charge” are necessary to engage the speedy trial pro-

vision. United States v. Marion, 404 U.S. 307, 520

(1971). See also id. at 321 (referring to a defendant

who “has been arrested and held to answer’); United

States v. MacDonald, 456 U.S. 1, 7 (1982) (“no Sixth

Amendment right to a speedy trial arises until charges

are pending); id. at 8-9 (speedy trial guarantee inap-

plicable once charges are dismissed). An inmate in ad-

ministrative detention is not held to answer a criminal

charge until such a charge is made, e.g., at the time of

indictment.”

15 The court of appeals acknowledged (App. A, infra, 14a) that,

under its own case law and that of other circuits, segregation of an

inmate from the general prison population does not constitute an

“arrest” or “accusation” for speedy trial purposes. See United

States v. Clardy, 540 F.2d 489, 441 (9th Cir.), cert. denied, 429

U.S. 963 (1976); United States v. Blevins, 593 F.2d 646 (5th Cir.

1979); United States v. Duke, 527 F.2d 386, 389-390 (5th Cir.),

cert. denied, 426 U.S. 952 (1976). See also United States v. Mills,

704 F.2d 1553, 1556-1557 (11th Cir. 1983). It is thus especially

ironic that it should attempt to justify its decision by reference

to speedy trial criteria heretofore deemed irrelevant to the less

elastic right to counsel.

It is simply incorrect to view administrative detention

as in any way accusatory. It is prison officials, not prose-

cutors, who make the decision to place or retain an in-

mate in administrative detention. The purpose of such

detention is not to accuse or to initiate judicial pro-

ceedings. Rather, separation of an inmate from the gen-

eral prison population serves security purposes, includ-

ing protection of other inmates, prison staff, and the in-

stitution as a whole. As the court of appeals itself recog-

nized (App. A, infra, 10a), administrative detention “is

perhaps the princip[al] remedy available to prison officials

when crime or other disturbances threaten the prison en-

vironment.” In particular, as we described above (pages

15-17), administrative detention pending a criminal in-

vestigation or trial serves significant security purposes,

such as preventing suspects from intimidating or injur-

ing potential witnesses. Detention for these purposes does

not amount to an “accusation.” *

1% Disciplinary segregation (as opposed to administrative de-

tention, see note 10, supra) may be imposed as punishment fol-

lowing a prison disciplinary hearing. Such segregation does not

constitute an “accusation” or initiation of a criminal prosecution

to which Sixth Amendment rights attach any more than does

administrative detention. In any event, as noted above (note 10),

it does not appear that respondents were held in disciplinary segre-

gation at any time; rather, they were in administrative detention.

We note that in developing its theory of when separation from

the general prison population would become “accusatory,” the court

of appeals appears to have misread Bureau of Prisons regulations.

The court concluded (App. A, infra, 17a) that the maximum

period of segregation for disciplinary reasons would be 90 days.

However, under 28 C.F.R. 541.11 the maximum period of disci-

plinary segregation following a disciplinary hearing is 60 days

(assuming only one offense is involved), while under 28 C. F. R.

541.20(a) an inmate may be held in post-disciplinary detention

for up to 90 days. Thus, contrary to the court of appeals’ calcula-

tion, an inmate could spend a total of 150 days away from the

general prison population after disciplinary segregation had been

imposed (or perhaps more if more than one offense is involved).

No such specific time limits are imposed in connection with admin-

istrative detention, although prison staff conduct periodic reviews

The court of appeals concluded (App. A, infra, 1la-

12a) that a right to counsel at the preindictment stage

would be appropriate because it is difficult for an inmate

in administrative detention to conduct an investigation

and prepare a defense to criminal charges that might

eventually be filed against him. But this Court has never

suggested that a constitutional right to counsel attaches

prior to indictment whenever a potential defendant lacks

investigative resources.“ Indeed, if this were the case, the

government would be required to provide counsel for

many suspects, both inside and outside prisons.““

In any event, the court of appeals’ concerns about the

ability of respondents to investigate and prepare a de-

fense are properly addressed under due process standards,

not under a Sixth Amendment right to counsel analysis.

The sort of prejudice alleged by respondents—faded mem-

ories and inability to locate witnesses or examine physical

evidence—is quite similar to that alleged in United States

v. Marion, 404 U.S. 307 (1971), and United States v.

to determine whether continued detention is appropriate. 28 C. F. R.

541.20.

* Cf. Avery v. Alabama, 308 U.S. 444, 446 (1940) (noting that

the Constitution “nowhere specifies any period which must inter-

vene between the required appointment of counsel and trial“);

United States v. Ash, 413 U.S. 300 (1978) (right to counsel applies

to trial-like confrontations, not to prosecutor’s investigations or

interviews with witnesses).

18 As the dissenters noted (App. A, infra, 26a), obstacles similar

to those respondents faced may confront an individual who is con-

victed and imprisoned for one crime while investigation for other

offenses is underway or an individual whose probation or parole is

revoked for renewed criminal activity. Moreover,

le ven free suspects often lack the investigatory advantages

the majority attributes to them. Many law enforcement in-

vestigations are confidential and continue for months or years.

Like [respondents], the targets in such cases have limited

knowledge or none about the investigations.

Ibid.

Lovasco, 431 U.S. 783 (1977), in which the Court con-

cluded that allegations of prejudice resulting from pre-

indictment delay are properly addressed under a due

process standard, rather than a Sixth Amendment speedy

trial analysis. If respondents have any constitutional

claim that they were deprived of a fair trial as a result

of their administrative detention, that claim should be

evaluated under due process criteria, rather than under a

right to counsel analysis that is so clearly inconsistent

with this Court’s decisions.

3. The court of appeals also erred in concluding that

dismissal of the indictments was the appropriate remedy

in the absence of any specific showing of prejudice re-

sulting from the failure to appoint counsel during re-

spondents’ stay in administrative detention. Dismissal of

the indictment is a drastic remedy that is rarely appro-

priate, even in the case of constitutional violations. See,

e.g., United States v. Blue, 384 U.S. 251, 255 (1966).

This Court stressed in United States v. Morrison, supra,

449 U.S. at 364-365 (footnote omitted), that “remedies

should be tailored to the injury suffered” and that “ab-

sent demonstrable prejudice, or substantial threat there-

of, dismissal of the indictment is plainly inappropriate,

even though the violation [of the right to counsel] may

have been deliberate.” The Court pointed out in Morri-

son that in right to counsel cases the proper approach is

to identify and neutralize any taint “by tailoring relief

appropriate in the circumstances to assure the defendant

the effective assistance of counsel and a fair trial.” Id.

at 365.

Here the court of appeals made little effort to de-

termine whether respondents had suffered actual and sig-

nificant prejudice as a result of the failure to appoint

counsel during the period of administrative detention. To

the extent the court attempted to identify prejudice, it

relied on respondents’ allegations and on the pretrial con-

clusions of the district court that had dismissed the in-

dictment in the Mills case—conclusions that a panel of

the court of appeals subsequently had found to be with-

out foundation (see App. B, infra, 30a-40a). The court

of appeals made no attempt to analyze whether these

predictions of prejudice had been borne out by events

at trial. In fact, the court concluded that in the case of

inmate-suspects who are held in administrative detention

during the preindictment period it is proper to “presume

prejudice because ordinarily it will be impossible ade-

quately either to prove or refute its existence” (App.

A, infra, 22a). The court of appeals suggested that its

holding was in line with Morrison because, in the court’s

view, the “potential for substantial prejudice” resulting

from the failure to appoint counsel during administrative

detention could not be cured by an after the fact remedy

(App. A, infra, 21a, 22a). But Morrison surely requires

more than the potential for prejudice as a prerequisite to

dismissa] of the indictment.

This Court has made clear that courts must make case

by case evaluations to determine whether constitutional vio-

lations have resulted in actual prejudice and whether

such prejudice is so great that dismissal of the indict-

ment is warranted, even when this is not an easy task.

In United States v. Marion, supra, 404 U.S. at 325-326,

the Court stressed that the possibility of prejudice in the

form of dimmed memories, inaccessible witnesses, and

lost evidence resulting from preindictment delay is not

alone sufficient to establish that a defendant will be

deprived of a fair trial and to justify the drastic remedy

of barring the prosecution. See also United States v.

Lovasco, supra, 431 U.S. at 796-797. This requirement

of a concrete showing of prejudice applies even where the

prosecutor has deliberately and unfairly delayed indict-

ment in an effort to secure a tactical advantage at trial.

Id. at 790. Respondents’ allegations of prejudice are

1 More recently, in United States v. Valenzuela-Bernal, No. 81-

450 (July 2, 1982), the Court required some showing of prejudice

even in a case in which (unlike this case) the government had

acted to remove from the reach of process individuals it knew to

be percipient witnesses. The Court held that, under either the

quite similar to the kind that courts regularly evaluate

in passing upon claims of improper preindictment delay,

and we find it impossible to understand why the court of

appeals deemed it necessary to dispense with such an in-

quiry in this context.

We also take issue with the court of appeals’ conclusion

(App. A, infra, 22a) that the circumstances of prison

cases normally make it impossible to determine whether

prejudice has resulted from the failure to appoint counsel

during administrative detention. In fact, in view of the

controlled conditions of prison life (resulting in a limited

number of potential witnesses and availability of inmate

rosters, photographs, and other records), it should usually

be less difficult than in other cases to determine whether

preparation of an inmate’s defense has been impaired.

Moreover, at least in federal prison cases, a court should

consider the fact that those wrongly suspected of crime

are not without recourse. The Bureau of Prisons provides

staff representatives to help inmates investigate and

present evidence in connection with prison disciplinary

hearings. Under 28 C.F.R. 541.15, the staff representative

“shall be available to assist the inmate if the inmate de-

sires by speaking to witnesses and by presenting favor-

able evidence to the [institution discipline committee]

on the merits of the charge(s) or in extenuation or miti-

gation of the charge(s).” Thus, inmates normally will

have had access to the sort of assistance with which the

Compulsory Process Clause of the Sixth Amendment or the Due

Process Clause of the Fifth Amendment, a defendant cannot

establish that the government’s deportation of witnesses has re-

sulted in deprivation of a fair trial “unless there is some explana-

tion of how their testimony would have been favorable and ma-

terial” (slip op. 14). The Court stressed in Valenzuela-Bernal

that determinations of the materiality of a missing witness's testi-

mony often would be best made in light of all the evidence adduced

at trial (id. at 15). See also United States v. MacDonald, 435 U.S.

850, 858-859 (1978) (noting that a claim of prejudice from vio-

lation of the right to a speedy trial is “best considered only after

the relevant facts have been developed at trial“).

court of appeals was concerned.” Moreover, as in any

case, the absence of some potential witnesses may or

may not make a difference, depending on the defense

theory and on the ability to locate other witnesses, as

well as on the strength of the prosecution’s case. If the

testimony of allegedly missing witnesses would have been

cumulative to that of witnesses who have been located,

the absence of the former does not warrant the drastic

remedy of barring prosecution altogether. “ Finally, in

evaluating prejudice in cases like this one, a court should

take into account the fact that the prosecution also faces

significant investigative hurdles in the case of prison

crime (see App. A, infra, 1la), including difficulty in

obtaining cooperation from inmate-witnesses and a short-

age of witnesses whom a jury is likely to find credible.

Moreover, every defendant has the ultimate protection of

the prosecution’s burden of proving guilt beyond a rea-

sonable doubt.

Here, no substantial basis exists for concluding that

the failure to appoint counsel during adminisirative de-

tention deprived respondents of a fair trial. Respondents’

appointed counsel conducted extensive investigation and

‘presented “defenses of uncommon quality and vigor”

(App. A, infra, 28a). At trial, the Gouveia respondents

presented 34 witnesses, including 14 alibi witnesses, while

the Mills respondents presented 42 witnesses, including

2 The record in this case indicates (Mills C. R. No. 59, Mills

Declaration at 28) that respondent Mills refused the offer of

assistance of a staff representative; it is unclear whether the other

respondents took advantage of such assistance.

21 Other factors also might indicate that a defendant has not

been deprived of a fair trial as a result of the failure to appoint

counsel during administrative detention. The most obvious would

be acquittal; here, the Gouveia respondents’ co-defendant Flores

was acquitted, although he had been in administrative detention

or at another institution during most of the preindictment period

and made claims of prejudice similar to those made by respondents

(see pages 2-8, 5, supra; C.R. No. 38 at 15, 16, 18-19).

six alibi witnesses. See pages 6, 11, supra. Although the

Mills respondents complained that they were prejudiced

by deterioration of physical evidence, they presented sev-

eral expert witnesses who testified concerning that evi-

dence. See page 11, supra. Several of the Gouveia re-

spondents were not placed in administrative detention un-

til approximately three weeks after the murder occurred;

thus, they had some opportunity to investigate and prepare

defenses during the weeks immediately following the of-

fense—presumably the most important time for purposes

of investigation. In such circumstances, the court of

appeals should have analyzed the respondents’ allegations

of prejudice in light of the evidence presented at trial,

rather than simply presuming that there would be preju-

dice in virtually every case involving the failure to ap-

point counsel during administrative detention.”

4. The decision below will have significant practical

consequences for the administration of federal and state

prisons and for the criminal justice process in the Ninth

Circuit. Under the decision, after an indigent inmate

has been in administrative detention for 90 days follow-

ing commission of a criminal offense, prison officials must

choose between providing counsel for the inmate and re-

turning him to the general prison population. As a prac-

tical matter, appointment of counsel would require prison

officials and the court to set up new administrative pro-

= Respondents Ramirez and Segura were not placed in adminis-

trative detention until December 4, 1978—three weeks after the

murder of Trejo; respondents Gouveia and Reynoso were released

from detention and returned to the general prison population in

the period between November 22 and December 4, 1978. See pages

2-8, supra. The record contains no evidence that the respondents

took advantage of these periods to conduct investigations.

23 In addition, as the dissenters pointed out below (App. A, infra,

28a-29a), there are remedies short of dismissal of the indictment

(including cross-examination, argument to the jury, and instruc-

tions concerning missing evidence) that can mitigate prejudice

in cases like this one.

cedures. In addition, prison officials would have to make

arrangements to ensure that preindictment investigation

of the type envisioned by the court of appeals could be

conducted consistently with the maintenance of order in

the institution and with the need to avoid interference

with ongoing FBI investigations.

The alternative of releasing inmate-suspects into the

general prison population after 90 days of administrative

detention would be unacceptable in many instances. As

noted above, prison officials have responsibilities to pre-

serve order and to protect the integrity of ongoing in-

vestigations. These responsibilities normally will require

continued administrative detention of inmates pending

investigation of serious crimes. While there may occa-

sionally. be useful investigation that an inmate could

conduct to vindicate his innocence, prison officials would

be derelict in their duties if they failed to take into

account the fact that often such “investigations” are

likely to consist of intimidating prospective witnesses and

suborning perjury. See, e.g., United States v. Castillo,

615 F.2d 878, 885 (9th Cir. 1980).

The decision below is of particular concern if it is

read to prohibit transfer of an inmate-suspect to a

higher security institution following commission of a

criminal offense.* Transfer is an important administra-

The court of appeals spoke in terms of prison officials appoint-

ing counsel for indigent inmates (App. A, infra, 17a). In fact,

however, the Bureau of Prisons itself has neither statutory author-

tive tool for prison officials who are responsible for in-

mates who cannot safely be returned to the general pop-

ulation. See, e.g., Olim v. Wakinekona, No. 81-1581 (Apr.

26, 1983) ; Howe v. Smith, 452 U.S. 473 (1981) ; Meachum

v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427

U.S. 236 (1976). The Bureau of Prisons has informed

us that during a recent 12-month period approximately

400 inmates in detention following suspected commission

of an indictable offense were transferred before being

returned to the general prison population. Of the 400,

over 70 were transferred from prisons located within the

Ninth Circuit. If as a result of the decision below prison

authorities may not transfer inmates found to have par-

ticipated in a prison murder, there would be a significant

threat to the security of federal prisons.

Moreover, it is not at all clear that appointment of coun-

sel during administrative detention would contribute as

significantly to an inmate’s investigation or preparation

of a defense as the court of appeals presumed. Bureau

of Prisons officials have informed us that they are un-

aware of any instances in which retained counsel have

sought access to a prison to conduct an investigation prior

to indictment. Of course, security concerns would make

it virtually impossible to allow counsel unsupervised ac-

cess to the premises of a prison or free rein to seek out

possible witnesses from among the inmates. Moreover,

inmates may obtain the assistance of a staff representa-

tive in connection with disciplinary proceedings. See

pages 24-25, supra. Thus, an inmate who is sincerely in-

terested in exonerating himself already has access to an

individual who is responsible for investigation, interview-

court of appeals’ decision would permit a transfer (¢.g., from

California to the Marion Penitentiary in Illinois), since the result

ing witnesses, and presenting a defense on behalf of the

inmate. See 28 C.F.R. 541.15(b).

There are also significant practical concerns arising

from the court of appeals’ conclusion, without analysis

of actual prejudice or alternative remedies, that the ap-

propriate remedy in cases like this one is dismissal of the

indictment. The two brutal murders in this case are

typical of the violent prison crimes that have become a

serious threat to the security of both federal and state

institutions in recent years. See, e.g., App. B, infra, 3la

(noting information that Lompoc inmates committed at

least 14 homicides in 1980); Brothers in Blood: Prison

Gangs Formed by Racial Groups Pose Big Problem in

West, Wall St. J., May 11, 1983, § 1, at 1, col. 1.

If the decision below stands, the result will be that

many especially dangerous individuals who have com-

mitted serious institution crimes will escape criminal

penalties entirely. On a nationwide basis, the Bureau of

Prisons has identified over 200 pending prosecutions for

serious institution crimes (including 66 in the Ninth

Circuit). The Bureau believes that many of the defend-

ants in these prosecutions were held in disciplinary segre-

gation and/or administrative detention for more than 90

days following the offense and prior to indictment; thus,

indictments against them would apparently have to be

dismissed if the decision below is correct. And, of course,

the Ninth Circuit’s novel rule casts a pall over the vi-

ability of innumerable state prosecutions for prison

crimes. In view of these consequences, and in light of the

practical problems federal and state prison officials will

face as a result of the decision below, it would be unduly

burdensome if resolution of the questions raised by the

decision below were postponed. Thus, review of the deci-

sion below is plainly warranted.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

REX E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

CAROLYN F. CORWIN

Assistant to the Solicitor General

JOHN F. DE PUE

Attorney

JULY 1983

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 81-1271, 81-1272, 81-1273,

81-1274, 82-1206, 82-1278

DC Nos. CR 80-535-3-MML, CR 80-535-2-MML,

CR 80-535-5-MML, CR 80-535-1-MML,

CR 80-278-1-WPG, CR 80-278-2-WPG

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v8.

WILLIAM GOUVEIA, ROBERT RAMIREZ, PHILIP SEGURA,

ADOLPHO REYNOSO, ROBERT EUGENE MILLS,

RICHARD RAYMOND PIERCE, DEFENDANTS-APPELLANTS

Appeal from the United States District Court

for the Central District of California

Malcolm M. Lucas, District Judge, Presiding

William P. Gray, District Judge, Presiding

Argued and Submitted December 15, 1982

Before: BROWNING, Chief Judge, WRIGHT, CHOY,

SNEED, KENNEDY, ANDERSON, HUG, SCHROE-

DER, POOLE, FERGUSON, and NELSON, Cir-

cuit Judges

SNEED, Circuit Judge:

[Filed Apr. 26, 1983]

Appellants Reynoso, Segura, Ramirez, and Gouveia

have been convicted of murdering a fellow inmate at

the Federal Correctional Institution in Lompoc, Cali-

fornia (FCI-Lompoc). Appellants Mills and Pierce,

also inmates at FCI-Lompoc, were convicted of a later

murder at the same institution. Each appellant was

isolated in administrative detention without the bene-

fit of counsel for an extended period prior to being

indicted. We consolidated these cases for en banc con-

sideration of whether, under any circumstances, a

federal prisoner suspected of committing a crime

while in prison and placed in administrative deten-

tion is constitutionally entitled to an attorney prior

to indictment.

FACTS

A. Appellants Reynoso, Segura, Ramirez, and

Gouveia

Thomas Trejo, an inmate at FCI-Lompoc, was

stabbed to death on November 11, 1978. The Bureau

of Prisons instituted an administrative investigation

and on December 4, 1978, the Unit Disciplinary Com-

mittee and the Institutional Disciplinary Committee

at FCI-Lompoc conducted administrative hearings to

consider appellants’ involvement in the killing. Ap-

pellants Ramirez and Reynoso requested appointment

of counsel at the hearings, but their requests were

denied. Prison officials found that appellants had

killed Trejo and appellants were placed in isolation

in the administrative detention unit (ADU) at FCI-

Lompoc.

Appellants remained in ADU continuously until

July of 1980, a period of more than 19 months.

While in ADU appellants were confined in individual

cells except for short daily exercise periods; they

were denied access to the general prison population

and their participation in various prison programs

was curtailed. Appellants did have access to legal

materials, they had visitation rights, and they could

make unmonitored phone calls. During this period

appellants were not appointed counsel though their

opportunity to hire private counsel was not restricted.

The Federal Bureau of Investigation conducted its

own investigation into Trejo’s murder, concurrent

with the Bureau of Prison’s internal investigation.

In January 1979, the United States Attorney’s Office

was officially informed of the FBI investigation and

a prosecutive file was opened. In March 1979, a

grand jury investigation commenced. Appellants

Reynoso, Ramirez, and Segura appeared before the

grand jury to provide fingerprint examplars and they

were appointed counsel for purposes of that

appearance.

On June 17, 1980, the grand jury indicted appel-

lants on charges of first degree murder and conspir-

acy to commit murder in violation of 18 U.S.C.

§§ 1111, 1117. On July 14, 1980, appellants were

arraigned in federal court and the magistrate ap-

pointed counsel. Appellants’ first trial commenced on

September 16, 1980, but it resulted in a mistrial when

the jury was unable to reach a verdict. A second trial

began on February 17, 1981, and all four appellants

were convicted on both counts. They were each sen-

tenced to consecutive life and ninety-nine year terms

of imprisonment.

B. Appellants Mills and Pierce

Thomas Hall, an inmate at FCI-Lompoc, was

stabbed to death on August 22, 1979. Appellants

Mills and Pierce were questioned and given physical

examinations by FBI agents and prison officials.

They were placed in ADU on the day following the

murder. An internal prison investigation culminated

in a hearing before the Institutional Disciplinary

Committee on September 13, 1979. Appellants were

adjudged guilty of killing inmate Hall and, in accord-

ance with prison regulations, were ordered to forfeit

all accumulated “good time.”

Mills and Pierce remained isolated in ADU for

eight months. They were not permitted to communi-

cate with inmates in the general population or other

potential witnesses, to discuss their case with anyone

other than prison officials, or to be examined by their

own physicians or experts. During this time appel-

lants repeatedly asked to speak with counsel but their

requests were denied. On March 27, 1980, Mills and

Pierce were indicted under 18 U.S.C. §§ 1111, 1792,

for first degree murder of a federal inmate and for

conveyance of a weapon in prison. Pierce was in-

dicted also for assault under 18 U.S.C. §113(c).

On April 21, 1980, appellants were arraigned, ap-

pointed counsel, and released from ADU.

The district court dismissed the indictments on the

grounds that appellants had been denied their con-

stitutional rights to speedy trial and assistance of

counsel. It concluded that the government failed to

justify its delay in seeking the indictments or in

bringing defendants to irial, or to explain why Mills

and Pierce remained in isolation for eight months

without assistance of counsel. It found that they had

been irreparably prejudiced because of the dimming

of memories of exonerating witnesses, the loss of wit-

nesses, and the deterioration of physical evidence.

On appeal this court reversed the dismissal, holding

that the Sixth Amendment right to counsel and a

speedy trial did not attach until appellants were in-

dicted. United States v. Mills, 641 F.2d 785 (9th

Cir.), cert. denied, 454 U.S. 902 (1981). We further

held that the preindictment delay did not deny appel-

lants due process because appellants could not demon-

strate actual prejudice resulting from the delay. In

January 1982, appellants were brought to trial, con-

victed on all counts, and sentenced to life imprison-

ment. On appellants’ petition, we consolidated appel-

lants’ post-conviction appeal with United States v.

Gouveia for reconsideration by the court sitting en

bane of whether appellants were denied their con-

stitutional right to counsel during the preindictment

period in which they were isolated in ADU.

II.

THE SIXTH AMENDMENT RIGHT

TO COUNSEL

Appellants claim, inter alia, that lengthy preindict-

ment isolation without assistance of counsel irrevo-

cably prejudiced their ability to prepare an effective

defense, and thus unconstitutionally deprived them

of their right to counsel and to a fair trial in contra-

vention of the Fifth, Sixth, and Eighth Amendments.

Because we conclude that appellants were denied

their Sixth Amendment right to counsel, we do not

reach the Fifth and Eighth Amendment claims.

The Sixth Amendment guarantees that: “In all

criminal prosecutions, the accused shall enjoy the

right .. to have the Assistance of Counsel for his

defence.” This guarantee is meant to assure fairness

in the adversary criminal process. United States v.

Morrison, 449 U.S. 361, 364 (1981). The right to

counsel is primarily a trial right. It has been held to

attach at any point in the prosecution where an attor-

ney is necessary to preserve the accused’s right to a

fair trial or to ensure that the accused will receive

effective assistance of counsel at the trial itself. See

id. at 364; United States v. Wade, 388 U.S. 218, 225-

27 (1967).

There is no dispute that Sixth Amendment guaran-

tees are as applicable to the prosecution of prison

crimes as to any other criminal prosecution. See, e.g.,

United States v. Clardy, 540 F.2d 439 (9th Cir.),

cert. denied, 429 U.S. 963 (1976); United States v.

Blevins, 593 F.2d 646 (5th Cir. 1979). Thus appel-

lants were appointed counsel in their arraignments.

See Powell v. Alabama, 287 U.S. 45 (1932). The is-

sue before us is a narrower one though; it is a ques-

tion of first impression that is unique to prison crime.

We must decide whether the isolation of appellants

in administrative detention pending investigation and

trial obligated prison officials to provide counsel at

any time prior to appellants’ indictments.

Each appellant has established that while being

held in administrative detention he lacked the means

necessary to hire an attorney. This is significant

because inmates held in administrative detention are

not denied access to counsel. Though isolated from

the general prison population, they have the oppor-

tunity to make unmonitored phone calls if they wish

to talk to an attorney and they have visitation rights.

28 C.F.R. 58 541.19 (e) (10), 541.20(d) (1982).

Thus, it is only indigent inmates, those who are with-

out the means to retain counsel on their own, whose

constitutional right to the assistance of counsel is

before us today.

The government first argues that the appointment

of counsel at arraignment fully satisfied appellants’

constitutional rights to assistance of counsel. This

position is based on Kirby v. Illinois, 406 U.S. 682

(1972), where the Supreme Court held that the Sixth

Amendment right to counsel attaches when formal

judicial proceedings are initiated by way of indict-

ment, information, arraignment, or preliminary hear-

ing. See also United States v. Bagley, 641 F. 2d 1235

(9th Cir.), cert. denied, 454 U.S. 942 (1981) ; United

States v. Zazzara, 626 F.2d 135 (9th Cir. 1980).

The Court in Kirby reasoned that until adversary

proceedings are initiated the suspect is not “accused”

and no criminal prosecution is underway. Thus, by

its own terms, the Sixth Amendment does not require

that counsel be present at a preindictment identifica-

tion proceeding. 406 U.S. at 689-90.

We, of course, are bound by the Supreme Court’s

decision in Kirby. However, Kirby is not a prison

case. The point of “accusation” may be different for

the prosecution of prison crimes, where the suspect is

already incarcerated and subject to the discretion and

discipline of federal authorities. The Supreme Court

itself has recognized that the point of “accusation”

for one purpose of the Sixth Amendment can vary

from that of another. Thus, an arrest will trigger

the Sixth Amendment right to a speedy trial even if

no formal indictment has been brought. United

States v. Marion, 404 U.S. 307, 320 (1971). That is

because the arrest is a public act that seriously inter-

feres with the suspect’s liberty in a way that the

speedy trial provision is designed to mitigate. See id.

at 320.

No Supreme Court case limiting the right to an

attorney to post-indictment proceedings confronts the

unique situation of a prisoner held in administrative

detention. Kirby and cases interpreting it are based

on the following assumption: “The initiation of

judicial criminal proceedings is far from a mere for-

malism. It is the starting point of our whole system

of adversary criminal justice.” 406 U.S. at 689. And

so it is, at least when non-inmates are accused of

crime. But appellants were detained in solitary con-

finement for up to twenty months while the govern-

ment prepared to prosecute them. Thus, the assump-

tion in Kirby—that the indictment is the tool by

which the suspect first is brought face-to-face with

government prosecutorial forces—is not present in

this case in precisely the same manner. Prior to in-

. dictment appellants have confronted the prison dis-

ciplinary processes with the result that each was

found to be a murderer for which each was subjected

to prison discipline.

The Supreme Court’s opinion in Marion provides

a guide to follow in determining whether a particular

governmental act constitutes a criminal accusation

for the Sixth Amendment purposes. It shows that an

accusation depends in part on whether the govern-

ment’s conduct in question has the particular con-

sequences for a suspect that the Sixth Amendment

guarantee is designed to prevent. Or, stated another

way, whether a person stands accused can only be

determined from the totality of circumstances. See

Escobedo v. Illinois, 738 U.S. 478, 485-86 (1964).

It is true that a person outside prison is usually not

accused until an indictment has been issued. But see

United States ex rel. Robinson v. Zelker, 468 F.2d

159 (2d Cir. 1972), cert. denied, 411 U.S. 939 (1973)

(holding that arrest warrant initiated state prosecu-

tion for Kirby purposes because New York law

equates the issuance of an arrest warrant on probable

cause with the filing of an indictment); Common-

wealth v. Richman, 458 Pa. 167, 320 A.2d 351

(1974) (same). But appellants were subject to the

discretion of government officials in a way that in-

dividuals outside prison are not. To determine

whether prison disciplinary proceedings which cul-

minate in administrative detention can in any cir-

cumstances constitute a criminal accusation, it is nec-

essary that we examine its function and its impact

on detainees suspected of a crime.

We note at the beginning that administrative

detention is a “substantial deprivation of liberty.”

Wolff v. McDonnell, 418 U.S. 539, 594 (1974)

(Douglas, J., dissenting). As such, certain proce-

dural guarantees—established both by judicial appli-

cation of the Due Process Clause and by prison regu-

lations—govern its use. See Hewitt v. Helms, 103 S.

Ct. 864 (1983). Appellants do not challenge the

legitimacy of administrative detention in general or

its appropriateness in the instant case. Rather, they

contend that the removal of a prisoner to administra-

tive detention because he is suspected of a crime is an

accusation for the purpose of entitling him to ap-

pointed counsel provided at government expense. The

government of course disagrees.

Administrative detention is imposed primarily in

two situations. The first involves internal prison dis-

ciplinary proceedings. An inmate suspected of com-

mitting a crime in a Federal Correctional Institution

first faces disciplinary action by prison officials. Vir-

tually any state or federal crime is also a violation

of prison regulations. See 28 C.F.R. § 541.11 (1982).

And an inmate who is adjudged guilty of breaching

prison regulations is subject to disciplinary penalties

that range from temporary loss of privileges, or loss

of built up “good time,” to isolation in disciplinary

segregation for up to sixty days.

10a

It is well established that prison disciplinary pro-

ceedings are not “criminal prosecutions” as that term

is used in the Sixth Amendment. Baxter v. Palmi-

giano, 425 U.S. 308 (1976); Wolff v. McDonnell, 418

U.S. 539 (1974). Inmates suspected of breaking

prison rules must be given a hearing before the In-

stitutional Disciplinary Committee but the full

panoply of rights due a defendant in a criminal trial

does not apply in disciplinary hearings. Wolff v.

McDonnell, 418 U.S. at 556. Specifically, an inmate

has no right to have retained or appointed counsel

present at a disciplinary hearing. Jd. at 570. Like-

wise, there is no right to counsel by reason of pre-

hearing detention or detention imposed as a dis-

ciplinary measure.

Besides its disciplinary function isolation is im-

posed when necessary for security purposes. Prison

regulations authorize the Warden to order temporary

isolation in certain specified situations when an in-

mate’s continued presence in the general prison popu-

lation poses a serious threat to safety, security, or

order. See 28 C.F.R. § 541.20 (1982). It is perhaps

the principle remedy available to prison officials when

crime or other disturbances threaten the prison

environment.

Importantly, appellants do not contend that tem-

porary isolation carries with it a right to appointed

counsel when the detention is imposed for security

reasons. Nor could they. Prison officials are charged

with maintaining order and ensuring the safety of in-

mates and prison employees. Serious crimes com-

pound the difficulty of this responsibility in what is

necessarily a volatile environment. Temporary isola-

tion, imposed to defuse a potentially explosive con-

frontation and to protect inmates from harm, is part

lla

of the correctional process. It is unrelated to any

subsequent criminal prosecution.

Administrative detention at times serves an ac-

cusatory function, however. The Warden can isolate

inmates “‘pending investigation or trial for a criminal

act.” 28 C.F.R. § 451.20 (a) (3) (1982). In this

situation detention is related to a subsequent prosecu-

tion. It furthers many of the same governmental in-

terests served by an arrest outside the prison walls.

The Supreme Court has recently recognized that con-

fining inmates to administrative detention pending

completion of the investigation of disciplinary

charges serves the important need of investigative

officers to protect witnesses and evidence, to facilitate

an effective investigation, and to prevent further

criminal activity by the suspect. Hewitt v. Helms,

103 S. Ct. 864 (1983). These interests are important

for nonprison crimes and in that situation they lead

to an arrest at the earliest possible point. But they

are important also for serious prison crimes where

the insular character of the inmate population creates

unique investigatory and evidentiary hurdles for the

prosecution and leaves potential witnesses partic-

ularly vulnerable to retribution and coercion. The

critical fact is that for prison crimes the govern-

mental interests that dictate the isolation of suspects

do not lead to an arrest, nor prompt the early initia-

tion of formal judicial proceedings, but rather cause

the isolation of suspected inmates in administrative

detention for what can be an indeterminate period.

The characterization of administrative detention

pending trial as an “accusation” is buttressed when

we consider the effect of isolation on the inmate’s

ability to defend the criminal charges. We note first

that an inmate suspected of crime must overcome in-

vestigatory obstacles even greater than those facing

12a

the prosecution. The transient nature of the federal

prison population makes difficult even the identifica-

tion of potential witnesses. Combined with a hesita-

tion on the part of potential inmate witnesses to co-

operate this imposes a serious impediment to the

preparation of an inmate’s defense.

Thus early access to the general prison population

is critical to the suspect’s ability to prepare and pre-

serve a defense. Yet during the time that appellants

were in ADU only the government was free to con-

duct an investigation, contact witnesses, and preserve

evidence. Isolated in solitary confinement appellants

were unable to confer with potential defense wit-

nesses, or even to keep track of their whereabouts.

Cf. Smith v. Hooey, 393 U.S. 374, 378-83 (1969)

(speedy trial right protects prisoners who are subject

to criminal prosecution in another jurisdiction).

Appellants were powerless to exert their own efforts

to mitigate the erosive effects of the passage of time.

The effect of administrative detention in cases such

as these is to deny an inmate the opportunity to take

steps to preserve his or her own defense. This distin-

guishes appellants from suspects outside of prison

who have not yet been arrested or indicted. The posi-

tion of appellants while being held in administrative

detention pending investigation of their crimes more

resembles that of a suspect outside of prison who has

been arrested and detained than that of an outside

suspect who has been neither arrested nor detained.

Unconvicted suspects confined within prison walls

suffer a serious disability.

The government correctly points out that outside

of prison it is not an arrest that triggers the right to

counsel but rather the initiation of adversary judicial

proceedings. Kirby v. Illinois, 406 U.S. at 689;

United States v. Coades, 468 F.2d 1061 (3d Cir.

1972). This fact merely illustrates the need for a

13a

rule designed for prison crimes, however. Upon ar-

rest a defendant must be arraigned “without un-

necessary delay.” Fed. R. Crim. P. 5(a). At that

point the accused is guaranteed the assistance of

counsel. No such procedural guarantees operate in

prison, where the suspect may be isolated throughout

the pendency of the government’s investigation.

The Supreme Court long ago recognized the impor-

tance of counsel during the “critical period of thc

proceedings. . when consultation, thoroughgoing

investigation and preparation [are] vitally impor-

tant.” Powell v. Alabama, 287 U.S. 45, 57 (1932).

In Powell, the deprivation occurred during the one

day that passed between the defendant’s arraignment

and his trial. In the instant case, by contrast, the

government was able to delay appellants’ arraign-

ments for up to twenty months, thereby effectively

suspending the right to counsel until its case was

built. This comparison serves to illustrate that an

inmate who is suspected of a prison crime is in a

unique position viz-a-viz the prosecution. Formal

charges need not be brought until the government is

ready for trial because the suspect can be isolated

without being arrested. To insist that an inmate is

not “accused” until formal charges are initiated is

to ignore reality.

The government, nonetheless, denies that isolation

pending trial can ever be an accusation. First, it

cites a line of circuit cases which holds that adminis-

trative detention is not an arrest for purposes of the

Sixth Amendment speedy trial right. Second, it em-

phasizes the administrative barriers that exist be-

tween prison administrators and the prosecutorial

arm of the federal government, arguing that deten-

tion is entirely within the province of prison officials.

We find neither argument to be persuasive.

14a

This court has held that administrative detention

is not an “arrest” for speedy trial purposes. United

States v. Clardy, 540 F.2d 439, 441 (9th Cir.), cert.

denied, 429 U.S. 963 (1976); accord, United States

v. Blevins, 593 F.2d 646 (5th Cir. 1979); United

States v. Duke, 527 F.2d 886 (5th Cir.), cert. denied,

426 U.S. 952 (1976). In Clardy we based our deci-

sion on the conclusion that administrative detention

does not implicate the major evils identified in United

States v. Marion as those protected against by the

speedy trial guarantee. 540 F.2d at 441. The evil

that Marion attributed to an arrest was that it seri-

ously interferes with defendant’s liberty and there-

fore “may disrupt his employment, drain his finan-

cial resources, curtail his associations, subject him to

public obloquy, and create anxiety in him, his family

and his friends.” 404 U.S. at 320. We held in Clardy

only that administrative detention does not cause

these consequences to the extent that an arrest does

and therefore an inmate’s detention does not start

the speedy trial clock.

We do not question today that Clardy was correctly

decided. It is simply inapposite to the question before

us. Unlike the speedy trial right the assistance of

counsel is constitutionally guaranteed not to niinimize

pretrial interference with defendant’s liberty but be-

cause of the belief that without it, there can be no

assurance that defendant will receive a fair trial.

“The plain wording of.. . [the assistance of coun-

sel guarantee] encompasses counsel’s assistance

whenever necessary to assure a meaningful ‘de-

fence.’” United States v. Wade, 388 U.S. at 225.

The government also asserts that administrative

detention cannot be accusatory because prison offi-

cials act on their own accord, and not as an arm of

the prosecution, when inmates are placed in adminis-

15a

trative detention. We need not inquire into the extent

of cooperation between prison officials, the FBI, and

the United States Attorney, however, because the

relationship is of little consequence. Administrative

detention is a “public act.” See United States v.

Marion, 404 U.S. at 320. When detention is ordered

as a disciplinary measure or to prevent disorder it is

indeed a matter of internal prison administration.

But when used to isolate an inmate pending trial both

its purpose and effect is accusatory. It is not which

arm of government orders detention but for what

purpose and to what effect.

It is, therefore, clear that the administrative deten-

tion of an indigent inmate who is suspected of a

crime does, under certain circumstances, give rise to

the right to appointed counsel. The question is what

are those circumstances. In prison there is no auto-

matic device that triggers the right. It should not

arise immediately when detention begins because

there are substantial administrative and disciplinary

concerns that justify detention but are unrelated to

a criminal prosecution. And, as already pointed out,

it should not be automatically postponed until indict-

ment. The duty to appoint counsel “is not discharged

by an assignment at such time or under such circum-

stances as to preclude the giving of effective aid in

the preparation and trial of the case.” Powell v. Ala-

bama, 287 U.S. at 71. By necessity then we must

fashion a rule which preserves the right to effective

assistance of counsel without impairing the authority

of prison officials to carry out their administrative

responsibilities.

16a

III.

APPELLANTS WERE DENIED THEIR CON-

STITUTIONAL RIGHT TO ASSISTANCE OF

COUNSEL

Therefore, we must determine, first, at what point

administrative detention gives an indigent federal in-

mate a right to appointed counsel and, second,

whether appellants were held beyond that point.

Inasmuch as the detention of an inmate suspect

serves a variety of goals the reasons for placing an

inmate in detention will vary depending on the cir-

cumstances. Indeed, appellants no doubt were de-

tained for a number of legitimate reasons.

However, prison regulations specify that adminis-

trative detention is “to be used only for a short period

of time except where an inmate needs long-term pro-

tection.” 28 C. F. R. § 541.20 (e) (1982). Even when

imposed for an inmate's protection, detention is lim-

ited to ninety days in all but the rarest of circum-

stances. Id. §541.21(c). Therefore, the longer an

-, inmate is isolated following the commission of a

Verime the more the detention takes the form of an

“accusation” and the less it resembles either deten-

tion for protection of the inmate or for other

purposes.

Likewise, the longer the inmate is held the greater

the need for counsel. That is because the right to

counsel is primarily a trial right. It does not attach

until necessary to assure that the accused will receive

effective assistance of counsel at the trial itself.

United States v. Wade, 388 U.S. at 225-27. Counsel

can effectively ameliorate the adverse consequences of

detention so long as the appointment comes within

a reasonable time following the institution of admin-

17a

istrative detention. This is the principle upon which

we base our holding. Guided by it we hold that a

prisoner, who is being held in isolation because of

an impending investigation and indictment related to

a serious crime, must be provided counsel, subject to

the same conditions as are applicable to an indigent

following indictment, after a reasonable time. If

counsel is not so provided he must be released into

the general prison population.

Current prison regulations provide a standard

against which to measure a “reasonable time.” The

maximum stay in isolation for purposes of discipline

even for serious crimes is ninety days. This period

consists of thirty days pending a disciplinary hearing

and sixty days of disciplinary segregation which does

not exceed this length even for serious crimes. 28

C.F.R. § 541.11 (1982).

Isolation for more than ninety days, then, is neces-

sarily for some purpose other than discipline. If an

inmate is held after the maximum disciplinary period

has, expired he should be allowed to show that his

detgntion, at least in part, is due to a pending investi-

gation or trial for a criminal act. The inmate must

ask for an attorney, establish indigency, and make a

prima facie showing that one of the reasons for con-

tinued detention is the investigation of a felony. At

that point prison officials must either refute the in-

mate’s showing, appoint counsel, or release the in-

mate back into the general prison population.

The Supreme Court’s decision in Hewitt v. Helms,

supra, is compatible with this structure. That case

holds that the state created a liberty interest, pro-

tected by the due process clause, by promulgating

mandatory regulations that establish specific substan-

tive predicates to administrative detention. 103 S.

18a

Ct. at 871. Since regulations mandate that detention

can be ordered only in specific circumstances, then

the inmate has a concurrent due process right to en-

sure that the mandatory requisites in fact exist. Our

case, while not governed by Hewitt, also utilizes regu-

lations to provide specificity to a constitutional right.

Federal prison regulations specify that administra-

tive detention can only continue indefinitely where

the detention is in contemplation of a criminal prose-

cution. In this way the prison regulations create a

condition of confinement that embodies an accusation

which generates a Sixth Amendment right to the

assistance of counsel.

This structure achieves a proper balance of the in-

terests of both prison officials and inmates suspected

of crime. It does not require the government im-

nediately to appoint counsel at the earliest stages of

an investigation, before the adverse positions of gov-

ernment and inmate have solidified. See Kirby v. Illi-

nois, 406 U.S. at 689. Nor does it involve counsel in

disciplinary proceedings, thus reducing their utility

as a means to further correctional goals. See Wolff v.

McDonnell, 418 U.S. at 570. And it assures inmates

who are suspected of crime, and who are ultimately

prosecuted for that crime, that they will not be denied

the effective assistance of counsel because of in-

digency. In this manner, equality with non-indigent

inmates is preserved.

The rule also has the advantage of certainty.

Whether an inmate is detained past ninety days in

part as a pre-trial detainee can be determined from

objective criteria. Prison regulations require the

Warden to prepare a memorandum detailing the

reasons for placing an inmate in administrative

detention, with a copy given to the inmate.” 28

19a

C.F.R. § 541.20 (b) (1982). Moreover, the existence

of an ongoing FBI investigation or a United States

Attorney prosecutive file provides ample evidence

that prosecution is pending. Once an inmate requests

the assistance of an attorney and makes the neces-

sary prima facie showing, the government bears the

burden of establishing that prosecution is not a sig-

nificant possibility. If unable or unwilling to make

this showing the inmate must either be furnished

counsel or be returned to the general prison popula-

tion.

Turning finally to the facts of the instant case we

find that appellants were denied their constitutional

right to assistance of counsel. Each appellant re-

mained in administrative detention long past the

ninety days which we have held to constitute a rea-

sonable period of administrative detention without

counsel. The record shows numerous instances where

one or more of appellants requested and was denied

the assistance of counsel. And, lastly, the record com-

pels the conclusion that each appellant was held in

ADU at least in part as a result of pending criminal

charges. The district court in the Mills case found

that pre-trial detention was the only reason for the

Mills’ defendants prolonged stay in ADU. And the

record shows that the Gouveia defendants were sub-

ject to a continuing FBI investigation throughout

their stay in detention. Since appellants were held

in detention for more than ninety days and one of the

reasons for detention was to isolate appellants pend-

ing a criminal investigation and trial, they should

have been appointed counsel.

20a

IV.

THE PROPER REMEDY IS TO DISMISS

THE INDICTMENTS

In fashioning an appropriate remedy for appellants

we are guided by the Supreme Court’s recent decision

in United States v. Morrison, 449 U.S. at 361, 364

(1981). There the Court stated that the remedy for

Sixth Amendment deprivations “should be tailored to

the injury suffered . . . and should not unnecessarily

infringe on competing interest.” Id. at 364. The cor-

rect approach is to identify the taint and devise a

remedy that neutralizes the prejudice suffered so that

the defendant is assured the effective assistance of

counsel and a fair trial. Id. at 365.

The “taint” in the present case is that lengthy pre-

indictment isolation without the assistance of counsel

handicapped appellants’ ability to defend themselves

at trial. Prison crimes present suspects with unique

investigatory and evidentiary obstacles. And, to re-

peat, the passage of time greatly exacerbates these

difficulties. The length of delay in appointing counsel

for appellants who were likewise denied the opportu-

nity to take measures to preserve their own defense

means that the critical initial stage of investigation

was forever lost to appellants.

The district court in dismissing the indictments

against appellants Mills and Pierce accurately char-

acterized the prejudice suffered.

Specifically, defendants have been prejudiced by

the dimming of memories of witnesses who could

have substantiated their alibi; by the irrevocable

loss of inmate witnesses known to the defendants

only by prison “nicknames” now long-since

transferred to other institutions or released from

2la

custody altogether; and by the deterioration of

physical evidence essential to corroborate the de-

fendants’ testimony and to rebut the evidence

against them.

Mills’ Excerpt of Record at 188. As the Supreme

Court has put it, we must be “responsive to proved

claims that governmental conduct has rendered coun-

sel’s assistance to the defendant ineffective.” United

States v. Morrison, 449 U.S. at 364. The district

court was correct when it held that due to the belated

appointment of counsel, ranging from 8 to 20 months

after the murders were committed, and the transitory

nature of the prison population, the opportunity for

counsel to prepare the defense that is constitutionally

guaranteed all persons accused of crime did not exist.

This case then is qualitatively different from the

right to counsel cases in which the question is the

right to counsel’s presence at a pretrial confrontation

between government and accused. When, for exam-

ple, the government subjects a suspect to a custodial

interrogation or a post-indictment lineup without the

presence of counsel the prejudice suffered is both

specific and curable. Suppression of the confession or

evidence that is obtained or derived from the pro-

hibited confrontation protects the right. E. g., United

States v. Wade, 388 U.S. 218 (1967); Cahill v.

Rushen, 678 F.2d 791 (9th Cir. 1982). Here, how-

ever, government conduct has rendered counsel’s as-

sistance to appellants ineffective and the resulting

harm is not capable of after the fact remedy. With

respect to remedies appellants are in a position simi-

lar to suspects who are denied a speedy trial. See

Strunk v. United States, 412 U.S. 484, 439 (1973);

Barker v. Wingo, 407 U.S. 514, 522 (1972). Here,

as there, the only certain remedy is to dismiss the

indictments against them.

22a

The government strenuously argues that appellants

must demonstrate that they were prejudiced and that

they have failed to present convincing evidence of

specific prejudice. Even if this were true, it should

not be dispositive. We, of course, do require definite,

nonspeculative proof of actual prejudice before find-

ing a due process violation from preindictment delay.

See United States v. Stone, 633 F.2d 1272, 1274 (9th

Cir. 1979) ; United States v. Swacker, 628 F.2d 1250,

1254 (9th Cir. 1979). The situation in these cases,

however, is fundamentally different. Those accused

in these cases were not free men as are usually those

who complain about preindictment delay. They were

not even a part of the general population of the

prison. They were isolated in administrative deten-

tion. Under these circumstances we presume preju-

dice because ordinarily it will be impossible ade-

quately either to prove or refute its existence. We

must tip the scales in favor of the locked away ac-

cused in order to provide substance to the Sixth

Amendment right to counsel. Dismissal of the indict-

ments is appropriate where denial of assistance of

counsel creates the potential of substantial prejudice.

See United States v. Morrison, 449 U.S. at 365;

Coleman v. Alabama, 399 U.S. 1, 7 (1970); White v.

Maryland, 373 U.S. 59 (1963); Hamilton v. Ala-

bama, 368 U.S. 52 (1961).

Even without the presumption there is evidence

that “substantial prejudice” may have occurred in

the instant case. Each appellant asserts the loss of

critical alibi witnesses either by their death, or by

the transfer or release of witnesses known to appel-

lants only by their nicknames. Moreover, it is sig-

nificant that the government is unable to rebut con-

vincingly appellants’ showing of potential prejudice.

23a

In essence the government argues that since appel-

lants were able to produce a large number of “alibi”

witnesses then no prejudice could have occurred.

This contention is flawed for at least two reasons.

First, it assumes that the quantity of witnesses al-

ways can overcome the absence of any particular de-

fense witness. This is not true. Second, it ignores

other prejudicial factors such as the dimming

memories of witnesses whose testimony the defense

had no opportunity to record at a time when events

were fresh and the deterioration of physical evidence.

We do not preclude the possibility that under cir-

cumstances not presently foreseeable the government

will be able to rebut convincingly the presumption of

prejudice. But it has not done so here. The record

convinces us that preindictment isolation without the

assistance of counsel unconstitutionally obstructed

the ability of appellants to defend themselves at trial.

Thus we must overturn the convictions entered

against each appellant.

Accordingly, we reverse the judgments of the

courts below and remand with instructions to dismiss

the indictments.

REVERSED AND REMANDED.

24a

Nos. 81-1271/1272/1273/1274

UNITED STATES

GOUVEIA, et al.

Nos. 81-1206/1278

UNITED STATES

MILLS, et al.

[Filed Apr. 26, 1983]

WRIGHT, Circuit Judge, dissenting, joined by Judges

CHoy, KENNEDY, ANDERSON and POOLE

I respectfully dissent. Although I adhere to my

position in United States v. Mills, 641 F.2d 785 (9th

Cir. 1981), the majority’s unprecedented expansion

of the right to counsel requires that I comment

further.

The Supreme Court has spoken with a clear ana

25a

of a prison crime. Although Marion concerned the

speedy trial right, the majority concludes that the

right to counsel attaches when an inmate is so de-

tained, though formal proceedings have not begun.

The reasons for the majority’s intertwining of

these different Sixth Amendment rights are obvious.

In United States v. Clardy, 540 F.2d 439, 441 (9th

Cir.), cert. denied, 429 U.S. 963 (1976), we ruled

that administrative detention did not bear the char-

acteristics of a de facto arrest outside prison walls,

and we refused to extend the speedy trial right to

prisoners detained pending investigation of prison

crimes.

Because Clardy forecloses a ruling that the speedy

trial right applies to appellants, the majority has

focused instead on the right to counsel. It insists that

the assistance of counsel is necessary to combat the

unique investigatory disadvantages faced by those in

administrative detention. It points out that these ap-

the historic expansion of

26a

have been isolated from the government’s investiga-

tions. Until indicted, however, they faced no con-

frontations for which the right to counsel was

designed.

Just as the majority’s interpretation of the right

to counsel does not conform to precedent, its emphasis

on the appellants’ investigatory disadvantages does

not conform to reality. I can readily envision situa-

tions in which suspects face similar obstacles. One

convicted and imprisoned for a single crime may be

under continuing investigation for other offenses.

Another may have probation or parole revoked for re-

newed criminal activity. The government may in-

carcerate these suspects while it investigates criminal

activities outside prison, for which they have not been

arraigned or indicted. They are equally as “power-

less” as appellants to interview witnesses or other-

wise mitigate the effects of the passage of time.

Even free suspects often lack the investigatory ad-

vantages the majority attributes to them. Many law

enforcement investigations are confidential and con-

tinue for months or years. Like appellants, the tar-

gets in such cases have limited knowledge or none

about the investigations.

In any of these situations, indigent suspects might

benefit from the assistance of counsel before indict-

ment. As the Court noted in Ash, abuse or subversion

of an investigation may occur at any point, but the

extraordinary safeguard of the right to counsel is un-

necessary to protect against such abuse. Suspects are

amply protected by the “ethical responsibility” of the

and due process standards. United States

v. Ash, 413 U.S. at 320-321.

The Court’s rulings on administrative detention

cannot buttress the majority’s departure from the ac-

cepted view of the right to counsel. Although the ma-

28a

Any presumption of prejudice is unwarranted and

conflicts with the Court’s holding in Morrison. The

Court there noted that even the total denial of counsel

might not warrant the presumption of prejudice and

the drastic remedy of indictment dismissal. Id. at

364-365.

The appellants here were afforded defenses of un-

common quality and vigor. The Gouveia appellants

alone presented 14 alibi witnesses. The majority’s

presumption of prejudice neglects the Court’s teach-

ing that the courts will dismiss indictments in re-

sponse to claims that government conduct has ren-

dered the assistance of counsel ineffective only if

there is “demonstrable prejudice, or substantial

threat thereof.” Jd. at 364-365.

The majority then declares that the appellants have

proved prejudice. To show the effects of detention on

appellants’ defenses, the majority notes the absence

of witnesses, dimming of memories, and deteriora-

tion of physical evidence.

These are factors commonly noted by those who

complain of pre-indictment delay. They result from

the passage of time rather than from ineffective ad-

vocacy. The applicable statutes of limitations and

the Due Process Clause protect accused persons from

the effects of any delay. Marion, 404 U.S. at 322-325.

To the extent that appellants argue that the gov-

ernment interfered actively with their access to wit-

nesses, they have adequate remedies without resorting

to the right to counsel. On a showing that the gov-

ernment has deliberately procured the absence of a

material witness favorable to the defense, the indict-

ment can be dismissed. United States v. Valenzuela-

Bernal, 103 S. Ct. 34 (1982). On a showing that a

witness peculiarly within the government’s control

27a

jority suggests that prosecutorial confrontations

began at appellants’ prison disciplinary hearings, the

Court has ruled that such hearings do not implicate

the right to counsel. Wolff v. McDonnell, 418 U.S.

539, 570 (1974).

The majority’s reliance on the Court’s recent deci-

sion in Hewitt v. Helms, 103 S. Ct. 864 (1983), is

misplaced. There the Court recognized that strong

governmental interests supported the isolation of sus-

pects in prison crimes. It pointed out that the deci-

sion to isolate suspects was peculiarly within the ex-

pertise of prison officials and might be necessary to

protect witnesses during the investigations. Jd. at

872-873. Although the Court ruled that state regula-

tions could create a liberty interest in remaining in

the general prison population, it decided that prison-

ers did not need the right to counsel to protect that

interest. Id. at 871, 874.

Hewitt reaffirmed the notion that lawful incarcera-

tion of criminals is likely to restrict rather than ex-

pand their constitutional liberties. By its decision

today, the majority has given suspects in prison

crimes a right to counsel during government investi-

gations, a right not available to suspects outside of

prison. Rather than limiting the rights of prisoners,

the majority has expanded them.

The inconsistencies in the majority’s position are

revealed further by its presumption of prejudice to

appellants. The right to counsel is meant to ensure

fairness in the adversary criminal process. United

States v. Morrison, 449 U.S. 361, 364 (1981). Even

if we assume that appellants were improperly denied

counsel at an earlier stage, we must ask: were they

given a fair trial?

Rather than focus on this question, the majority

presumes prejudice and dismisses the indictments.

29a

has not been produced, the defendants may request

a missing witness instruction. If given, the instruc-

tion allows the inference that the witness would have

testified unfavorably to the prosecution. See United

States v. Bramble, 680 F.2d 590 (9th Cir. 1982).

Finally, the likelihood of exonerating testimony

from absent witnesses is preeminently a factual mat-

ter for the jury’s determination if the defendant

chooses to advance the theory as part of his defense.

Such contentions are legitimate parts of the defense

case that guilt has not been proven beyond a reason-

able doubt. All such defenses are fully adequate to

meet the arguments presented by the appellants here

without straining to grant relief by a new application

of the right to counsel under the Sixth Amendment.

Appellants suffered no prejudice from the absence

of counsel. By creating a right to counsel here, the

majority has departed substantially from Supreme

Court precedent. That departure compels me to sug-

gest that review by that Court is indicated.

I would affirm the judgments.

80a

APPENDIX B

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 80-1540

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

ROBERT EUGENE MILLS and

RICHARD RAYMOND PIERCE, DEFENDANTS-APPELLEES

Argued and Submitted Feb. 5, 1981

Decided April 6, 1981

Rehearing and Rehearing En Banc

Denied June 25, 1981

As Amended July 7, 1981

Appeals from United States District Court

for the Central District of California

Before WRIGHT and NELSON, Circuit Judges,

and EAST, Senior United States District Judge.*

EUGENE A. WRIGHT, Circuit Judge:

On the government’s appeal, two issues are pre-

sented: (1) was it error to dismiss two murder in-

dictments for Fifth and Sixth Amendment violations,

and (2) if so, should we direct the district court to

vacate its order which compelled the government to

produce statements of witnesses which it would not

call at trial? We conclude: the dismissal of the in-

* Of the District of Oregon.

31a

dictments is reversed and the district court is directed

to vacate the discovery order.

I. FACTS

At oral argument we were told that inmates at the

Federal Corrections Institution at Lompoc, Califor-

nia, committed at least 14 homicides in 1980. Thomas

Hall, an inmate, was stabbed to death on August 22,

1979 and the appellees, Mills and Pierce, were be-

lieved to be implicated. Along with other inmates,

they were questioned and given physical examinations

by prison officials and FBI personnel.

On August 23, 1979, prison officials committed

Mills and Pierce to the Administrative Detention

Unit (ADU). Normal prison policy would have had

them returned to the general inmate population or

transferred to another institution within a few

months. This was not done and they remained in

segregation until they were arraigned on April 21,

1980.

During the eight months Mills and Pierce were in

ADU, their activities were curtailed. They were not

permitted to communicate with inmates not confined

in ADU or potential non-inmate witnesses, to discuss

their case with anyone other than prison officials, or

to be examined by their own physicians or experts.

Mills and Pierce had opportunities for exercise, ed-

ucation, and employment, albeit at a reduced level.

In the course of disciplinary hearings conducted by

the Bureau of Prisons in the first few weeks after

Hall’s death, Mills and Pierce said they wished to

consult with an attorney. This was denied.

The government indicted Mills and Pierce for mur-

der on March 27, 1980. Trial was originally set for

June 30, 1980, but was continued to July 29, 1980 at

Mills’ and Pierce’s request.

The trial court dismissed the indictments. It con-

cluded the government failed to justify its delay in

seeking the indictments or in bringing defendants to

trial, or to explain why Mills and Pierce remained in

isolation for eight months without assistance of coun-

sel. It found that they had been irreparably preju-

diced because of the dimming of memories of exoner-

ating witnesses, the loss of witnesses and the deterio-

ration of physical evidence.

II. DISCUSSION

A. Siæth Amendment Right to a Speedy Trial

We review the dismissal of an indictment for viola-

tion of the Sixth Amendment right to a speedy trial

for abuse of discretion. See United States v. Sim-

mons, 536 F.2d 827, 832 (9th Cir.), cert. denied, 429

U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 130 (1976).

The Sixth Amendment speedy trial provision ap-

plies when a defendant is “accused.” United States v.

Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2047-

48, 52 L.Ed. 752 (1977); United States v. Marion,

404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468

(1971). That occurs with the filing of either a for-

mal indictment or information “or else the actual

restraints imposed by arrest or holding to answer a

criminal charge.. Marion, supra, 404 U.S. at

320, 92 S.Ct. at 463.

The trial court held Mills’ and Pierce’s Sixth

Amendment rights were violated by the ten month

delay between their detention in the ADU and the

trial date. We disagree.

83a

Administrative segregation by the prison board is

not an “arrest” or “accusal” for speedy trial pur-

poses. United Statesv. Blevins, 593 F.2d 646, 647

(5th Cir. 1979); United States v. Clardy, 540 F.2d

439, 441 (9th Cir.), cert. denied, 429 U.S. 963, 97

S.Ct. 391, 50 L.Ed.2d 331 (1976). In Clardy, this,

court held the identifying indicia of an arrest are

absent in the prison setting.

The prison discipline did not focus public obloquy

upon appellants, did not disrupt their “employ-

ment” or drain appellants’ financial resources.

In short, it was not a public act with public

ramifications, but a private act. Actual physical

restraint may have increased and free associa-

tion diminished, but unless we were to say that

imprisonment ipso facto is a continuing arrest,

these criteria bear little weight in the peculiar

context of a penal institution where the curtail-

ment of liberty is the general rule, not the

exception.

Id.

In Clardy, two inmates were confined in segrega-

tion after the stabbing of an inmate. Jd. They were

indicted and arraigned five months later, and their

trial commenced seven months after segregation. Id.

The court rejected their argument that such disci-

pline was an “arrest” for speedy trial purposes. Id.

We find nothing in the present case that warrants

a different result. The detention in the ADU was at

the request of the Bureau of Prisons. The detention

orders stated that Mills and Pierce were awaiting in-

vestigation of a violation of institutional regulations

and investigation or trial for a criminal act, and that

their continued presence in the general prison popula-

tion “pose[d] a serious threat to life, property, self,

84a

staff, other inmates, or to the security of the institu-

tion.” There was no arrest or accusation until the

grand jury indicted them on March 27, 1980. We

agree with the Fifth Circuit that the ad hoc balanc-

ing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct.

2182, 38 L.Ed.2d 101 (1972) does not apply.

Blevins, supra.

B. Sixth Amendment Right to Counsel

The trial court also dismissed the indictment on

the ground that Mills and Pierce were deprived of the

Sixth Amendment right to counsel during the pre-

indictment period.

The right to counsel attaches once adversary pro-

ceedings have commenced against a person. Massiah

v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12

L.Ed.2d at 246 (1964) ; United States v. Bagley, 641

F.2d 1235 at 1238 (th Cir. 1981). Initiation of

adversary proceedings occurs by way of formal

charge, preliminary hearing, indictment, information,

or arraignment. Kirby v. Illinois, 406 U.S. 682, 689,

92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). There-

fore, unless a defendant is an “accused,” the right

to counsel is inapplicable. United States v. Zazzara,

626 F.2d 135, 138 (9th Cir. 1980).

Mills and Pierce were not arrested or accused until

indicted in March 1980. Their Sixth Amendment

claim to counsel during the pre-indictment period

fails.

C. Right to Prepare a Defense

Mills and Pierce further support the dismissal of

the indictment on the ground that the government

denied their right to prepare a defense during the

pre-indictment period.

85a

We agree that the ability of an accused to prepare

his defense is a fundamental aspect of our adversary

system, see Kinney v. Lenon, 425 F.2d 209, 210 (9th

Cir. 1970), but do not find that there was a depriva-

tion here. This right, like the right to counsel, be-

longs to an accused. Mills and Pierce were not ac-

cused until indicted. They were then given the assist-

ance of counsel and prepared their defense.

D. Pre-Indictment Delay

Seven months elapsed from the time Mills and

Pierce were placed in the ADU until their indictment.

The trial court found this pre-indictment delay de-

prived them of due process.

Pre-indictment delay may result in a denial in due

process. Lovasco, supra, 431 U.S. 783, 97 S.Ct. 2044,

52 L.Ed.2d 752, United States v. Swacker, 628 F.2d

1250, 1254 (9th Cir. 1980). To block a prosecution

on this basis, a defendant must initially show actual

prejudice resulting from the delay. Swacker, supra;

United States v. Stone, 633 F.2d 1272, 1274 (9th Cir.

1979). The proof must be definite, not speculative.

Swacker, supra; United States v. Tousant, 619 F.2d

810, 814 (9th Cir. 1980).

Prejudice is a necessary but not sufficient element

of a due process claim.’ Lovasco, supra; United

2 This required showing of prejudice is the most crucial

difference between the Sixth Amendment and the Due

Process tests. The Supreme Court has held that an affirm-

ative demonstration of prejudice is not necessary to

prove a denial of the constitutional right to a speedy trial,

dut is only one of the factors to be considered. (citations

omitted).

United States v. Henry, 615 F.2d 1228, 1282 n.12 (9th Cir.

1980).

86a

States v. Henry, 615 F.2d 1223, 1232 (9th Cir.

1980). Once it is shown, the court must consider the

reasons for and the length of the delay. Swacker,

supra, 628 F. ad at 1254 n.4.

The trial court found Mills and Pierce were preju-

diced by the din ming of memories of witnesses who

allegedly could have supported their alibi, by the loss

of witnesses known only by prison nicknames and

now transferred to other facilities or released, and by

the deterioration of physical evidence. It also con-

cluded the delay was unreasonably long and unjusti-

fied since the government substantially concluded its

investigation by October 1979.

Showing that witnesses have been lost or that evi-

dence has become unavailable due to the delay sug-

gests actual prejudice. Tousant, supra. But it is not

enough to assert that potential witnesses have been

lost. A defendant must identify the witnesses, relate

the substance of their testimony, and efforts made to

locate them. Id.

Mills and Pierce allege that identifying potential

witnesses by prison nicknames, asserting that they

have been unable to locate them, and that the wit-

nesses’ testimony would exonerate them is a sufficient

showing. We disagree.

Prison nicknames do not erase the element of

speculation. There was no showing that these nick-

names were recorded and actual identities or the

existence of the witnesses could not be associated with

any certainty.

Even assuming nicknames are sufficient identifica-

tion, the substance of the witnesses’ testimony is no

more than mere speculation. Mills alleges they would

support his alibi that he was in the mess hall at the

time of the murder. Pierce indicated they “might”

37a

have information that would be of assistance in

formulating a defense.

There is no evidence to support Mills’ contentions

other than his self-serving affidavit. The lack of the

actual content of the witnesses’ testimony prevents

accurate evaluation of its benefit or detriment to him.

See United States v. Mays, 549 F.2d 670, 679-80 (9th

Cir. 1977).

As it stands now, a trier of fact might as well

assume that the [witnesses] would have placed

all of the blame on the defendants, as to assume

that they would have exonerated them.

Id. at 680 (emphasis in original).

Pierce’s claim that the missing witnesses might

have been useful does not show actual prejudice.

United States v. West, 607 F.2d 300, 304 (9th Cir.

1979).

Nor does the claim that the witnesses’ memories

have dimmed without proof of impairment constitute

actual prejudice. United States v. Rogers, 639 F.2d

438 (8th Cir. 1981) ; Mays, supra.

Mills and Pierce also argue they were prejudiced

by the destruction of evidence. They claim useful

documents were discarded routinely or lost by the

government. Blood stains on clothes taken from Mills

could not be typed to prove their origin. Finger im-

pressions on Pierce’s arm and a wound on Mills’ arm

had healed.

There is no evidence about the deterioration rate of

the blood stains, when Mills’ and Pierce’s wounds

healed, or when the documents were destroyed or lost.

They could have become unavailable for defendants’

purposes even if the government had indicted defend-

ants one month after the murder. Consequently, it

cannot be said that the unavailability of this evidence

88a

was related to a pre-indictment delay. See United

States v. Walker, 601 F.2d 1051, 1057 (9th Cir.

1979).

We also note that this is not the appropriate time

to determine whether the government had any obliga-

tion to preserve certain evidence. Id.

We find that there was insufficient evidence to es-

tablish actual prejudice. The district court abused its

discretion in dismissing the indictment. It is unneces-

sary to consider the length of or the reason for the

delay.“ West, swpra, 607 F.2d at 305.

E. Discovery

By petition for writ of mandamus, the government

appeals the trial court’s order requiring production of

2 Our decision would be no different if we consider these

factors. Mills and Pierce argue the delay of eight months was

inexcusable because the government had interviewed most

witnesses and evaluated the tangible evidence by mid-

November 1979. However,

it is not enough to show that the prosecution could have

proceeded more rapidly or that there were some months

during the period of delay in which no additional investi-

gation was taking place. The prosecution is not expected

to account meticulously for each month that is taken in

carrying out the appropriate prosecutorial functions.

United States v. Walker, 601 F.2d 1051, 1056 (9th Cir. 1979).

There must be some culpable conduct by intentionally or reck-

lessly delaying indictment to gain a tactical advantage. See

United States v. Swacker, 628 F.2d 1250, 1254 n.5 (9th Cir.

1980) ; Walker, supra.

There was no evidence of intentional government delay.

The investigation was ongoing until defendants were indicted.

We also note that eight months is not an inordinate delay.

See, e.g., Walker, supra, at 1054 (thirteen-month delay);

United States v. Mays, 549 F.2d 670 (9th Cir. 1977) (four-

and-one-half year delay).

39a

statements of inmates the government had inter-

viewed but did not intend to call as witnesses.

The production of witness statements is governed

by the Jencks Act. Palermo v. United States, 360 U.S.

343, 351, 79 S.Ct. 236, 3 L.Ed.2d 227 (1959) ; United

States v. Walk, 533 F.2d 417, 419 (9th Cir, 1975).

The Act provides that no statement of a government

witness is discoverable until the witness has testified

fon direct examination. 18 U.S.C. § 3500 (a); United

States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979),

cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d

242 (1980).

Federal Rule of Criminal Procedure 16 (a) (2) ex-

cludes from pretrial discovery “statements made by

government witnesses or prospective government wit-

nesses, except as provided in 18 U.S.C. § 3500

[Jencks Act].” For the purposes of Rule 16, state-

ments made by persons who were prospective wit-

nesses when interviewed do not lose that character by

a subsequent decision not to call them at trial.

Consequently, Mills’ and Pierce’s contention that

the statements are discoverable as documents under

Federal Rule of Criminal Procedures 16 (a) (1) (C)

fails. The trial court exceeded its authority by order-

ing the production of these statements over the gov-

ernment’s objection. United States v. Percevault, 490

F.2d 126, 129 (2d Cir. 1974).

Our result is consistent with the policies under-

lying these discovery rules. Rule 16(a)(1)(A) au-

thorizes broad pretrial discovery of defendant’s state-

ments because they are deemed vital to the defense.

Percevault, supra. But this reasoning is not perti-

nent to statements made by prospective government

witnesses. Protection of their statements is necessary

to protect the witnesses from threats, bribery, and

perjury. Walk, supra; Percevault, supra. The need

40a

to protect those who cooperate with the government

is especially compelling here where the witnesses are

prison inmates who live in fear of retaliation for pro-

viding evidence against fellow inmates. Depriving

them of that protection also jeopardizes the likelihood

of future cooperation by prison inmates.

The writ is granted.

REVERSED and REMANDED for further

proceedings.

NELSON, Circuit Judge, concurring specially:

I concur in the majority opinion. I must add that

the facts of this case are unquestionably troubling.

The conduct here creates a visceral reaction that this

must be some kind of constitutional violation. The

trial court’s decision is thus understandable, and

I regret that the law requires reversal.

Today’s result must not be read, however, as sug-

gesting that due process stops at the jailhouse door.

The government cannot brazenly disregard prisoners’

constitutional rights when preparing a criminal case

against an inmate.

It is important to note that the instant appeal in-

volves dismissal of the indictment by the lower court.

In my view, defendants’ strongest arguments are

those alleging that their isolation wrongfully pre-

cluded them from engaging in the activities necessary

to prepare an effective defense. Such a due process

claim goes to the heart of a defendant’s constitution-

ally protected right to defend himself at trial. The

defendants’ claims would thus be appropriately raised

at trial. Our decision today, which reviews only the

dismissal of the indictment, does not foreclose defend-

ants from doing so.

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CR 80-278-WPG

UNITED STATES OF AMERICA, PLAINTIFF

v8.

ROBERT EUGENE MILLS and

RICHARD RAYMOND FIERCE, DEFENDANTS

[Filed Aug. 14, 1980]

ORDER DISMISSING INDICTMENT

The defendants having moved this Court for an

order dismissing the indictment against them; and

the motion having come on for hearing on July 21,

1980; and the Court having considered fully the mem-

orandum and declarations submitted in support of,

and in opposition to, the mot‘on as well as the argu-

ment of counsel, the Court rules as follows:

SUMMARY OF RULINGS

1. By virtue of the government’s ten-month delay

in bringing this matter to trial, defendants were

denied their Sixth Amendment right to a speedy trial;

2. By virtue of the government’s seven-month de-

lay in bringing this matter to indictment, defendants

were denied their Fifth Amendment right to due

process; and

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8. By virtue of the government’s conduct in hold-

ing the defendants incommunicado for a period of

eight months and in refusing to appoint attorneys

for them or otherwise to permit them to interview

witnesses and preserve evidence during this period,

the defendants were denied their Fifth Amendment

right to prepare a defense and their Sixth Amend-

ment right to counsel.

FACTUAL BACKGROUND

The Court’s ruling in these regards are based on

the following:

1. On the evening of August 22, 1979, Thomas

Hall, an inmate of FCI, Lompoc, was murdered.

Within hours of the murder, the defendants, who

were also inmates, were detained, interrogated and

subjected to physical examinations by the FBI and

prison authorities. Throughout the interrogation and

examinations, the defendants stated that they did not

want to be questioned or examined further without

being permitted to consult with an attorney. The

government consistently denied the defendants’ re-

quest for counsel, and it continued the interrogation

and examination. At one point, the defendants were

asked to sign waivers of counsel, which they refused

to do.

2. At the conclusion of the interrogation and ex-

amination, the defendants’ clothing and personal prop-

erty were confiscated, and the defendants were sent

to solitary confinement in “strip cells” located in the

basement of the prison’s Administrative Detention

Unit (“ADU”). As prison records indicate, on the

morning following the murder, the defendants were

committed to semi-solitary confinement in the ADU

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“pending investigation or trial for a criminal act.”

This characterization of defendants’ ADU commit-

ment is not disputed by the government. Although

Bureau of Prisons’ policy would have required the

defendants’ release back into the general prison pop-

ulation or their transfer to a more secure facility

within the first few months after their ADU commit-

ment, the defendants remained in segregation until

they were transferred to the Los Angeles County

Jail for their post-indictment arraignments on April

21, 1980. 4

3. During their ſirst two weeks in solitary con-

finement in ADU, defendant Mills was reminded by

prison employees that he and Pierce were under sus-

picion for the murder of Thomas Hall, although they

were not questioned again about the murder until

approximately two weeks after their commitment. At

that time, defendants were summoned to a hearing

before the Unit Disciplinary Committee (“UDC’”),.

consisting of their counselor and their case managers.

During the hearing, the defendants were informed

that, based on confidential sources, the government

had concluded that they were responsible for the

murder of Thomas Hall. As prison records confirm,

the defendants again denied involvement in the Hall

murder, and renewed their request that counsel be

appointed on their behalf. The government again de-

nied their requests for counsel.

4. Shortly after the UDC hearing, on or about

September 13, 1979, the defendants were called to a

second hearing before the Institutional Disciplinary

Committee (“IDC”). Senior officials from the prison

administration conducted this hearing, during which

the defendants reiterated their innocence and re-

quested the appointment of counsel. The defendants

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were told they had no right to an attorney. During

his hearing, defendant Mills was encouraged by the

hearing officer to “talk to him in private” about the

Hall murder, and to disclose the names of inmates

who might be favorable witnesses to defendants. De-

fendant Mills refused, and his request for an attor-

ney or some other neutral (non-prison staff) party to

contact such inmates was refused. At the conclusion

of the IDC hearing, the defendants were told they

were guilty of the Hall murder, and that they were

to be sent to the Control Unit of FCI, Marion, Illinois,

the federal prison system’s highest security facility.

Subsequently, defendant Mills was interviewed by a

Federal Bureau of Prisons official for potential place-

ment at Marion, and told that the government was

preparing an indictment against him for the murder

of Thomas Hall. That indictment was returned by

the grand jury on March 27, 1980.

5. During the eight months the defendants were

held in solitary confinement, they were not permitted

to contact other inmates in the prison (except those

also confined in ADU), to contact potential non-

inmate witnesses, to discuss their case with anyone

other than prison officials, or to be examined by their

own doctors and experts. Nor were the defendants

provided an attorney or other neutral person to as-

sist them in contacting witnesses, preserving evidence

or advising them generally with respect to the mur-

der charges for which they were then being detained.

6. The defendants’ commitment to ADU in this

case resulted in a dramatic change from the condi-

tions under which they previously had lived in prison.

Relative to inmates in the general prison population,

defendants’ freedom of movement was severely cur-

tailed. Their contact with fellow inmates was vir-

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tually eliminated, as were their opportunities for rec-

reation, education and employment. In addition, as a

result of their commitment to ADU, the defendants

understandably concluded that some of the inmates

in the general population assumed that the defendants

had been placed in ADU for their own safety for

having informed on other inmates; and that other

inmates concluded that because prison authorities had

committed the defendants to ADU, the defendants

were in fact responsible for the Hall murder. Con-

sequently, the defendants felt threatened by two

groups of inmates, those who would avenge Hall’s

death and those who would seek to punish the de-

fendants for their apparent violation of the inmate

prohibition against informing.

7. Defendants’ eight-month isolation in ADU,

coupled with the government’s refusal to provide

them with counsel during the period of their ADU

commitment, resulted in acute emotional and mental

strains being placed on the defendants. Moreover, the

defendants were deprived of even the meager freedom

of movement and association and recreational, edu-

cational and employment opportunities enjoyed by in-

mates in the general prison population. Further, iso-

lated in ADU without the assistance of counsel or

some other representative, defendants were made to

suffer the frustration of being wholly unable to begin

preparing a defense to the murder charges they had

been informed would be forthcoming.

8. Mil pam Breage tee Phonan

in seeking indictments or in bringing the def

to trial, or to explain why for eight months 5

fendants remained in isolation without the assistance

of counsel while the government acted to tie together

its own case against them. By the evening of August

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22, 1979, when the defendants were placed in segrega-

tion, the finger of suspicion had already pointed toward

them. As government counsel conceded during argu-

ment, had the defendants been at-large on the evening

of the murder, under the circumstances of this case

they would have been promptly arrested, taken be-

fore a magistrate and provided with counsel.

9. It is manifest that the government could have

moved this case to indictment and trial with far

greater dispatch than it did. By September 20, 1979,

the government had interviewed all of the prison em-

ployees on whose testimony it could have relied at

trial. With one exception, all of the inmate witnesses’

testimony on which the government intended to rely

at trial had been obtained through witness interviews

which were completed by October 1979. By the end of

October 1979, the government had concluded over

131 inmate witness interviews, but it conducted only

16 inmate witness interviews from the beginning of

November through the date on which an indictment

was sought, March 27, 1980. With respect to tan-

gible evidence, of the 30 items of physical evidence

pertaining to this case, the FBI had analyzed 21 of

these items by November 15, 1979. Additional an-

alyses were postponed pending receipt of samples of

the defendants’ hair and blood. Yet, the government

declined to request a grand jury subpoena for these

samples when the grand jury was first convened in

October 1979. Instead, it deferred until after an in-

dictment was returned.

10. Defendants’ eight-month detention in ADU,

their total segregation from the general prison popu-

lation and the government’s refusal to appoint coun-

sel or some other neutral investigator on their be-

half combined to prejudice irreparably the defend-

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ants’ ability to prepare for trial and to contest the

charges against them. Specifically, defendants have

been prejudiced by the dimming of memories of wit-

nesses who could have substantiated their alibi; by the

irrevocable loss of inmate witnesses known to the de-

fendants only by prison “nicknames” now long-since

transferred to other institutions or released from

custody altogether; and by the deterioration of phys-

ical evidence essential to corroborate the defendants’

testimony and to rebut the evidence against them. In

short, because of their belated appointment, and be-

cause of the transitory nature of the prison popula-

tion, defense counsel simply did not have the oppor-

tunity to make the kind of investigation that the

government made. The handicaps under which the

defense must now operate cannot be remedied at this

late date.

LEGAL CONCLUSIONS

Based on the foregoing, the Court holds as follows:

1. For purposes of the Sixth Amendment guaran-

tee of a speedy trial, defendants stood “accused” of

the murder of Thomas Hall when on the evening of

August 22, 1979, they were committed to ADU. The

circumstances of this case differ markedly from those

in United States v. Clardy, 540 F.2d 439 (9th Cir.),

cert. denied, 429 U.S. 963 (1976), which held that on

the facts there sub judice, segregation of a prisoner

for purposes of imposing prison discipline did not con-

stitute an “accusation.” Here, defendants’ commit-

ment to ADU was neither a form of prison discipline

nor an attempt to ensure prison security. Rather, de-

fendants were detained in ADU “pending investiga-

tion or trial for a criminal act.” The commitment

therefore bears all of the indicia of a criminal arrest

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and must be viewed as part and parcel of a sequence

of prosecutive acts integrally related to the applica-

tion of criminal sanctions. Further, on the facts of

this case, the consequences of the defendants’ com-

mitment to ADU—depriving them of all contact with

fellow inmates, stigmatizing them in the eyes of the

prison population, subjecting them to the possibility of

inmate reprisals, creating in them and their fam-

ilies and friends justifiable anxiety, and precluding

them from preparing a defense—are indistinguishable

from the constitutionally significant consequences of

“arrest” identified by the Supreme Court in United

States v. Marion, 404 U.S. 307, 331 (1971).

2. Because the defendants stood accused of the

murder of Thomas Hall for some ten months prior to

the date initially set for trial, and because the govern-

ment has failed to justify its delay in bringing the de-

fendants to trial, the Court finds that defendants

were denied their Sixth Amendment right to a speedy

trial.

3. Viewing this case as one solely of pre-indictment

delay, the Court is persuaded that defendants were

denied due process by the government’s seven-month

delay in seeking an indictment against them. Al-

though by October 1979 the government had sub-

stantially completed its investigation and had un-

covered virtually all the evidence it intended to use

against the defendants, an indictment was not sought

for an additional five months. In view of the defend-

ants’ segregated confinement and lack of representa-

tion while the government conducted its pre-indictment

investigation, the government had an obligation to

seek an indictment with all deliberate speed. As the

defendants have demonstrated with the requisite

specificity, the government’s failure to discharge this

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obligation severely and irreparably prejudiced the de-

fendants’ ability to prepare for trial and to contest

the charges on the merits.

4. As an independent basis for this order, the

Court determines that defendants were deprived of

their Sixth Amendment right to counsel. Viewing

their ADU detention as an arrest for Sixth Amend-

ment purposes, defendants were entitled to the prompt

commencement of adversarial proceedings which

would have triggered their right to counsel. However,

through the process of “administrative” detention, the

government delayed for eight months the commence-

ment of adversarial proceedings and effectively frus-

trated the defendants’ right to counsel. As a result,

defendants were denied any effective opportunity to

have an investigation conducted on their behalf while

events were still recent and recollections intact. When

attorneys were appointed eight months later, they

were precluded by the passage of time from conduct-

ing an investigation anywhere near as thorough as

that made by the government.

5. Moreover, even if the Sixth Amendment right

to counsel is not viewed as attaching at or near the

time of defendants’ commitment to ADU, the Court is

persuaded that defendants nonetheless enjoyed a right

under the due process clause of the Fifth Amendment

to prepare a defense. Under the circumstances of

this case, that right, too, was denied them. For a

period of eight months, defendants remained sub-

stantially incommunicado, isolated from potential wit-

nesses, precluded from preserving favorable testi-

mony and evidence, and unable to prepare a rebuttal

to the evidence against them. To the extent that the

government was not obligated to appoint counsel on

their behalf prior to their arraignment, and chose

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not to honor the defendants’ requests for counsel at

an earlier date, the goverment was obligated to relax

the conditions of the defendants’ custody so as to

provide them with a meaningful opportunity to pre-

pare a defense to the charges that were forthcoming.

Because the passage of time has resulted in the ir-

revocable loss of exculpatory testimony and evidence,

the gover! it's failure to take steps to preserve

the defendaiics’ right to prepare a defense cannot be

remedied other than by dismissing the indictment.

ACCORDINGLY, IT IS HEREBY ORDERED that

the indictment is dismissed with prejudice.

DATED: August 14, 1980

/s/ William P. Gray

WILLIAM P. GRAY

United States District Judge

Presented by:

/s/ Charles P. Diamond

CHARLES P. DIAMOND

Attorney for Defendant Robert E. Mills

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