Respondents Brief — United States v. Gouveia

Office Supreme Court, US

FILED

FEB 8 1984

No. 83-128 ALEXANDER L STEVAS.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1983

UNITED STATES OF AMERICA,

Petitioner,

V.

WILLIAM GOUVEL, et al.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF FOR RESPONDENT

WILLIAM GOUVEIA

MICHAEL J. TREMAN

105 E. De La Guerra #5

Santa Barbara, CA 93101

(805) 963-3569, 962-6544

Court-appointed Counsel for Respondent

WILLIAM GOUVEIA

— cnr ARR

PRESS OF BYRON S. ADAMS PRINTING, INC, WASHINGTON, D.C, (202) 347-8203

i

QUESTIONS PRESENTED

I. DOES THE SIXTH AMENDMENT ESTABLISH A

BASIS FOR GRANTING AN INDIGENT PRISON IN-

MATE THE RIGHT TO COUNSEL WHEN HE IS BEING

HELD IN ADMINISTRATIVE DETENTION PENDING

INVESTIGATION AND TRIAL FOR HAVING COMMIT-

TED A FELONY?

II. DOES THE DEPRIVATION OF THE SIXTH AMEND-

MENT RIGHT TO COUNSEL FOR A PRISON INMATE

NECESSARILY LEAD TO THE DISMISSAL OF THE

INDICTMENT?

ij

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS s 1

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I. Dos THE SIXTH AMENDMENT ESTABLISH A BASIS FOR

GRANTING AN INDIGENT PRISON INMATE THE RIGHT

To CouNSEL WHEN HE Is BEING HELD IN ADMINIS-

TRATIVE DETENTION PENDING INVESTIGATION AND

TRIAL FOR HAVING COMMITTED A FELONY? ....... 12

A. The Granting Of Counsel To A Prison Inmate In

These Circumstances Is Required Under The

Sixth Amendment As Necessary To Preserve

Equality In Our Adversary System ........ 12

B. The Providing Of Counsel Under The Circum-

stances Set Out By The Court Of Appeals Is

Reasonable In Relation To The N Of The

Bureau Of Prisons And The Inmate Suspect . 17

II. Does THE DEPRIVATION OF THE SIXTH AMENDMENT

RIGHT To COUNSEL FOR A PRISON INMATE NECESSARI-

LY LEAD TO THE DISMISSAL OF THE INDICTMENT? .. 20

A. Dismissal Of The Indictment Is The Only Rem-

edy Available To Neutralize The Prejudice Suf-

fered By Respondents .............0e0005: 20

B. There Is Sufficient Evidence Of The Potential

For Substantial Prejudice In The Record To

Support The Dismissal Of The Indictment .. 23

ms v1. fekentaae? 25

TABLE OF CITATIONS

CASES: Page

Coleman v. Alabama, 399 U.S. 1 (1970) ............. 17

Hewitt v. Helms, 108 S.Ct. 864 (1983) 12

Johnson v. Zerbst, 304 U.S. 458 (1988) .............. 15

United States v. Ash, 413 U.S. 300 (1973) .......... 14, 17

United States v. Morrison, 449 U.S. 361 (1981) ..... 10, 20

United States v. Wade, 388 U.S. 218 (1967) .......... 17

Wolff v. McDonnell, 418 U.S. 589 (1974) ........... 12, 13

CONSTITUTION, AND STATUTES AND RULES:

U.S. Cometitution Amnomd. VI ow... ccccccccccccccse’s 00

BP as e 12

OPINION BELOW

The Opinion of the United States Court of Appeals for

the Ninth Circuit is reported at 704 F.2d 1116 (9th Cir.

1983).

JURISDICTION

The judgment of the Court of Appeals was entered on

April 26, 1983. The petition for writ of certiorari was filed

by the Government on July 25, 1983 and was granted on

October 17, 1983. The jurisdiction of the court rests on 28

USC § 1254(1).

CONSTITUTIONAL PROVISION

The Sixth Amendment provides, in pertinent part: In

all criminal prosecution, the accused shall enjoy the right

. to have the assistance of counsel for his defense.

STATEMENT

A. William Gouveia was sentenced on April 23, 1981

to life imprisonment on Count II and to ninety-nine (99)

years with a thirty-three (33) year minimum on Count I of

a six count Indictment filed June 17, 1980 in the United

States District Court for the Central District of Califor-

nia. His sentence followed two trials, the first of which

begain September 9, 1980. The first trial resulted in a

mistrial due to the jury’s inability to reach a unanimous

verdict.

Mr. Gouveia was charged in two of the six counts. In

Count I he was charged with conspiracy to murder Thom-

as Trejo and to convey from place to place within the

institution knives to kill him. It was specifically alleged in

the first count that Mr. Gouveia and Steven Kinard con-

spired to and did dispose of the knives used to murder

2

Thomas Trejo. In Count II he was charged with aiding

and abetting others in the actual murder.

B. The Brief for the United States makes several

factual misstatements concerning what transpired in the

relevant history of the case as to Mr. Gouveia. The most

significant error is in the allegation that Mr. Gouveia was

removed from ADU and returned to the general prison

population (Brief, p. 3). Mr. Gouveia’s declaration in sup-

port of the motion to dismiss in the district court estab-

lishes that he did not return to the general prison popula-

tion until March of 1979 and then it was a different institu-

tion. (J.A. 44). The Incident Report of December 13, 1978

confirms these facts where it states “Inmate Gouveia was

placed in I-Unit on November 11, 1978 pending investiga-

tion by both the FBI and the Investigative Supervisor.

Investigation completed this date (13 Dec 78) and now

referred to the unit team for disposition.” (J.A. 49). [See

Argument in trial court at J. A. 89].

The Brief also states that following the murder the

Federal Bureau of Investigation and prison officials be-

gan “independent” investigations. In their response to a

Request for Administrative Remedy filed by Mr. Gouveia

on December 29, 1978 the Bureau of Prisons, in the per-

son of Regional Director Toft, states, “On 11/11/78 an

incident report for codes 002, Assault code 202, posses-

sion of a Sharpened Instrument and code 801, Aiding and

Abetting in the Commission of (A)ny of the (A)bove

(O)ffenses was written on you for your suspected involve-

ment in the death of another inmate at FCI, Lompoc. The

incident was referred to the F. B. I. for investigation and

possible criminal prosecutioin. After completion of F. B. I.

interviews ... you were given the incident report

referencing the above charges on 12/13/78.” (Copies of

this document are part of U.S. Bureau of Prisons central

3 7

file for Mr. Gouveia). Similarly, the Brief implies that the

United States Attorney’s Office was not involved in the

case until March of 1979 (p.4), while in fact they were

advised of the fact that Mr. Gouveia was suspected as a

murderer of Mr. Trejo on November 29, 1978. At that

time they opened a file and an assistant was assigned for

the investigation. (J.A. 50). The United States Attor-

ney’s Office began receiving written material on January

2, 1979. (J. A. 51).

C. On Saturday, November 11, 1978, Thomas Hop-

po“ Trejo was killed as a result of forty-five (45) stab

wounds. (R. T. 149). The murder took place in Cell A-18

of M Unit at the Federal Correctional Institution at Lom-

poc, California. (R. T. 318-319).

Steven Kinard, an inmate of the Lompoc institution at

the time of the murder, was the main witness at both

trials. Kinard had originally been indicted along with the

other defendants for the murder of Thomas Trejo. In

September of 1980, after the indictment was handed

down, Kinard offered to testify for the Government. As

part of the subsequent plea bargain, the Government

dropped the conspiracy and murder counts and allowed

Kinard to plead to the lessor charge of conveying a weap-

on within the prison. (R.T. 569-580, 562-563).

Kinard testified to conversations among the defend-

ants and other inmates in which they conspired to murder

Thomas Trejo. (R.T. 488-533). He also testified to the

arrangements that were made to obtain three knives and

to his own assistance in the transportation of these knives

both before and after the murder.

R. T.“ signifies the reporter's transcript of the retrial in the case

of the Gouveia respondents.

4

According to Kinard’s testimony, sometime after 11:00

a.m. on the day of the murder, the defendants and other

inmates met in the gym corridor. The knives were re-

trieved from their hiding places and defendant Ramirez

was sent to bring Trejo to M Unit where they planned to

kill him. Kinard then went to his cell to wait. (R.T.

516-533). Approximately twenty (20) minutes later, de-

fendant Gouveia called Kinard from his cell to help dis-

pose of the knives, (R.T. 533-535). Kinard testified that

he cleaned the knives and then gave them to Gouveia and

Willard “B.T.” Taylor, another inmate who also testified

for the Government. (R.T. 536-558).

Willard “B.T.” Taylor also testified to the disposal of

the knives. His testimony differed from Kinard’s in that

Taylor alleged that Kinard, not Gouveia, asked him to get

rid of the knives. (R.T. 874-875 ). Taylor testified to

hiding the knives in the restroom of the second floor of E

Unit. (R.T. 879).

Another inmate, Gene Newby, testified to seeing the

defendants enter the cell of a friend, “Chavetes,” around

noon on November 11. Newby remembered seeing

“Champ” Reynoso and “Black” Segura tear a bundle of

clothes into strips and flush them down the toilet. (R.T.

1011-1017).

Other testimony established that a piece of writing

paper was found at the scene of the murder and that

defendant Gouveia’s palmprint and a fingerprint were

found on the paper. (R.T. 443-449).

Defendant Gouveia denied any involvement in the Tre-

jo murder. (R.T. 2362-2363). He testified that on the

morning of November 11, 1978, he worked out by himself

at the weight pile in the yard until around 9:30 a.m. and

then went to brunch. (R.T. 2370-2371). He then walked

5

around the track along with approximately fifty (50) other

inmates. (R.T. 2372). Afterwards, he looked around the

gym and returned to his unit for about an hour. He then

went to the one o’clock movie for approximately twenty

(20) minutes, went to the gym for a short time and then

returned to his unit. (R. T. 2372-2372; 2375, 2378-2379).

Respondent tried to produce several inmate witnesses to

corroborate his testimony. (R.T. 1548-1549, 1844-1845,

1652, 1679, 1681, 2118-2121).

Inmate Tony Estrada also testified to seeing an ex-

change of knives between Michael “Flappers” Thompson

and B.T. Taylor in K Unit shortly before 1:00 p.m. on

November 11, 1978. (R.T. 1854-1860). This was the same

time frame to which B.T. Taylor testified that the ex-

change of knives between Kinard and Taylor took place.

(R.T. 874-875).

D. Respondent Gouveia arrived at the Federal Correc-

tional Institute at Lompoc in October 1978. In the even-

ing of November 11, 1978 he was locked down and placed

in isolation pending the investigation of the murder of

Thomas Trejo. (R.T. 2380). Mr. Gouveia never again

returned to the general prisoner population at Lompoc.

He remained in isolation throughout remainder of his stay

at Lompoc and thereafter at other institutions until

March 1979. (J.A. 44). During his isolation at Lompoc he

was interviewed once by the F. B. I. on Demceber 6, 1978.

He was read his rights as if he were an accused in a

criminal case, and then was interviewed concerning his

knowledge of the Trejo murder. (J.A. 54, 54). Although

he requested assistance of counsel at the administrative

hearing, no counsel was provided preindictment.

During the preindictment period the Government, in

the form of the F.B.I., interviewed over 100 inmates at

6

least once, several inmates more than once. [R.T. (first

trial), Vol. B, 127]. The Government even took the time to

interview some inmates away from the prison environ-

ment so that they might speak more freely. [R.T. (first

trial), Vol. B, 128]. In addition, the information obtained

from these interviews was memorialized in reports

systematically made by the F. B. I. agents. (R. T. 2251-

2522).

Prior to the first trial in this case, respondent Gouveia

filed a motion to dismiss the indictment based on Sixth

Amendment right to counsel and speedy trial arguments,

and Fifth Amendment denial of due process. (Clerk’s

Transcript, p. 67). This motion was renewed prior to the

second trial. (Clerk’s Transcript, p. 118). In both in-

stances, the motion was denied.

At trial the prejudicial effects of defendant Gouveia’s

inability to interview witnesses and memorialize their

testimony during the lengthy preindictment delay be-

came apparent with each witness’ testimony. The trans-

cript is replete with examples of witnesses who were

forced to rely on habit evidence in order to answer coun-

sel’s questions as opposed to being able to remember the

specific events of November 11, 1978. [Some examples:

R.T. 1654:2-25; 1655:2-17, 1729, 1733, 1737:16-23, 1864-

1866, 1969, 2127:11-17, 2136-2244]. Other witnesses simp-

ly could not remember specific facts of any kind. [Some

examples from the First Trial: testimony of Tony Estra-

da, J.A. 114; Raymond Olvera, J.A. 98; William Gouveia,

J.A. 108; Stephen Broughton, J.A. 102, Paul L. Allen,

J.A. 106, Antonio Palacios, J.A. 98. From the Second

Trial: R. T. 2122, 1654:2-25, 1655:2-17, 2379:6-15).

The erosive effect of the extensive delay was ex-

acerbated by the fact that tie murder took place within a

relatively short period of time, approximately twenty

7

minutes. (R.T. 533-534). Even evidence of the conspiracy

consisted of conversations that took place intermittently

during the morning hours of November 11th, and a few

sporadic conversations that took place prior to that date.

The faded memories of witnesses contacted by the de-

fense counsel over two years after the happening of the

event were only of limited assistance in accounting for the

whereabouts of respondent Gouveia at specific periods of

time.

In addition to the prejudicial effects of the loss of

memory of witnesses, the defense also lost two important

witnesses entirely. By the time defendant Gouveia and

his codefendants were indicted in June of 1980, and de-

fense counsel was finally appointed, Richard Recendez,

one of the alleged participants in the murder conspiracy

according to the testimony of government witness

Kinard, had died. (R.T. 739). Also, Michael “Flappers”

Thompson had died before the indictment was handed

down. Mr. Thompson was an important character in the

defense version of the Trejo murder. (R.T. 2228). The

defense tried to show that Kinard and Thompson had

actually committed the murder with help from B.T.

Taylor and then told other inmates that a group of Mex-

icans had been charged with the murder they committed.

The defense faced a wide variety of other problems due

to the lengthy preindictment delay. For instance, the

murder took place in a cell in M Unit. The front door of

this cell consisted of bars which could be seen through by

any of the inhabitants of M Unit. (R.T. 2339). It is con-

ceivable that somebody in M Unit may have seen or heard

something related to the actual murder. Yet when de-

fense counsel tried to locate those people who were pris-

oners in M Unit on November 11, 1978, they discovered

that 62 of the 67 prisoners who were there on that date

8

were no longer in Lompoc in 1980. (J.A. 90). While the

Government had had almost two years to track down

these prisoners and may in fact have interviewed them

within a few days of the murder, defense counsel had only

a matter of a few weeks to track down these prisoners and

cut through the Bureau of Prisons’ red tape. (J.A. 90).

There was no substitute for the defense being able to

interview these prisoners themselves. A defense attor-

ney would have a different viewpoint than a prison official

or F. B. I. investigator. He might have uncovered evi-

dence that could assist in the presention of the defense.

Yet this source of witnesses had for all practical purposes

disappeared by the time defense counsel were appointed.

SUMMARY OF ARGUMENT

The issue as framed by the court of appeals was

“whether the isolation of appellants (respondents herein)

in administrative detention pending investigation and

trial obligated prison officials to provide counsel at any

time prior to appellants’ indictment.” In rendering its

opinion that court noted that for prison crimes the gov-

ernmental interests that dictate the isolation of suspects

do not lead to an arrest, nor prompt the early initiation of

formal judicial proceedings, but rather cause the isolation

of suspected inmates in administrative detention for what

can be an indeterminate period. Furthermore, the posi-

tion of an inmate being held in administrative segregation

pending investigation of his crimes is more akin to that of

a suspect outside prison who has been arrested than that

of a suspect outside prison who has not yet been arrested.

In the case of the former, the arrest forces the intitiation

of formal judicial proceedings or the release of the de-

tainee, while there are no comparable rules in the prison

setting. Therefore, in some circumstances the act of ad-

ministrative detention will constitute sufficient “accusa-

tion” to give rise to the right to appointed counsel. The

9

appeals court then went on to establish rules and guide-

lines under which an inmate can establish that he is being

held in segregation for investigation of a felony. Once the

inmate has established these points at a prima facia level,

it is up to the Government to refute them, provide counsel

or cease the segregation.

1. Respondent Gouveia was placed in administrative

segregation on November 11, 1978 because he was sus-

pected of being involved in the death of another inmate in

the Lompoc institution. The matter was referred to the

F. B. I. for investigation. Their report was referred to the

institution on December 13, 1978. On the same date the

Government first provided Mr. Gouveia with copies of the

Incident Report thereby advising him of the charges.

(J.A. 48). Respondent then appeared before the Unit

Discipline Committee which in turn referred the matter

to the Institution Discipline Committee. On December

21, 1978 respondent Gouveia appeared before the I. D. C.,

was found “guilty” of assault (code 002), and aiding and

abetting in the commission of the offense (code 801). He

was disciplined by the loss of good time. He remained in

segregation until he was released to the general prison

population in Leavenworth, Kansas in March of 1979.

The court of appeals held that in the case of an indigent

prison inmate who is placed in administrative segregation

pending investigation of a crime, that there was a limit as

to how long that inmate could be held for that purpose

without providing him counsel pursuant to his request.

Their decision properly recognized that under the system

as it existed in 1978 the Government, both in the form of

the prosecutors, their investigative agents and the Bu-

reau of Prisons, had the unabridged ability to prevent a

suspected felon from taking steps to secure the means of

his defense by locating and preserving witnesses. The

10

requirement to provide counsel, as fashioned by the court

of appeals, struck a balance between the needs of the

Bureau of Prisons to be able to protect inmates and con-

trol the prison population, while providing the inmate

suspect with real means to effect the constitutionally

guaranteed right to defend himself.

2. The arguments asserted by the Government in its

brief in seeking a reversal of the Ninth Circuit opinion

resolve themselves into two basic points on the subject of

an appropriate remedy. The first concerns what standard

is to be applied in determining an appropriate remedy,

where there is a finding of a denial of a Sixth Amendment

right to counsel, for a prison inmate who has been placed

in administrative segregation pending investigation for

criminal charges. The second argument is that the record

in this case does not establish “demonstrable prejudice or

substantial threat thereof,” which is the standard they

suggest should be applied based upon United States v.

Morrison, 449 U.S. 361 (1981).

The court of appeals took the position that in a case,

where their standards for the right to counsel are met,

the Government conduct has rendered counsel’s assist-

ance to respondents ineffective and the resulting harm is

not capable of after the fact remedy. (Pet. App. 21a).

Going further, the court considered that for inmates, such

as respondent, it will ordinarily be impossible to ade-

quately prove or disprove the existence of prejudice. In

addition, the record disclosed that “substantial preju-

dice” may have occurred. (Pet. App. 22a).

In the case of respondent Gouveia, the record discloses

that the Governemnt’s case against him consisted of testi-

mony which sought to place him in the presence of the

co-defendants during conversations which were to con-

stitute the conspiracy and he was directly involved in the

Soe ee

11

disposal of knives after the murder. In order to refute this

type of case it would be necessary to produce witnesses to

establish that he was at locations other than as contended

by the Government during the time those conversations

took place. Where counsel is provided some twenty (20)

months after the event, it would require going back to the

records in order to try and establish who should have

been there. Thereafter, those people would have to be

located and interviewed. It would also necessitate that

those people, once located, would have had some reason

to remember who they did, or for that matter did not, see

at a particular time and place in circumstances which at

the time would have had no particular significance to

them. In the setting of a prison system, it is doubtful that

anyone would seriously suggest that this type of defense

could be accomplished given the length of the delay. The

trial transcript demonstrates that to the extent that de-

fense counsel was able to find any witnesses at all, they

were weak even in their ability to recall their own actions

on the day in question, let alone those of someone else.

Furthermore, in some cases, obviously critical informa-

tion was just unavailable, as were certain witnesses.

Therefore, it becomes unrealistic to expect that either

party can prove or refute the existence of actual prejudice

and fairness requires that the Government bear the bur-

den of its conduct and the only available remedy is dis-

missal of the Indictment.

12

ARGUMENT

I

DOES THE SIXTH AMENDMENT ESTABLISH A BASIS

FOR GRANTING AN INDIGENT PRISON INMATE THE

RIGHT TO COUNSEL WHEN HE IS BEING HELD IN

ADMINISTRATIVE DETENTION PENDING

INVESTIGATION AND TRIAL FOR HAVING COMMITTED

A FELONY?

A. The Granting Of Counsel To A Prison Inmate In These

Circumstances Is Required Under The Sixth Amendment

As Necessary To Preserve Equality In Our Adversary

System.

The position of the Government in its brief before this

court and that of the court of appeals as stated in its

opinion are very similar in their recognition that adminis-

trative detention by prison officials is a legitimate activ-

ity, which is necessary for the safe and proper administra-

tion of the Federal Prison System.“ milarly, there is no

issue as to the fact that as a “substantial deprivation of

liberty” there are certain limitations upon its use and

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

(Doughlas, J. dissenting); Hewitt v. Helms 103 S.Ct. 864

(1983). Therefore, Government arguments notwithstand-

ing, the issue in this case is not whether such detentions

are appropriate or authorized or even whether they con-

stitute an “adversary judicial proceeding.” Rather, it is a

question of how to even up the respective adversary

positions between the suspect and the prosecuting

Government, when administrative segregation is being

used to isolate an inmate “pending investigation or trial

for criminal act.” 28 C. F. R. 541.20(a)(8) (1982).

* Appellants in the court of appeals (respondents herein) did not

challenge the legitimacy of administrative detention in general, nor

do they do so before this court.

13

In the case of respondent Gouveia, he was isolated from

the prison population at approximately 8:00 p.m. on

November 11, 1978. He received a memo stating that this

action was done pending investigation or trial for crimes

committed in the institution. It was not until December

13, 1978, that a formal Incident Report was delivered to

him. At that time he was advised of the charges against

him.“ Thereafter, the Government refused his requests

for the assistance of counsel on the grounds that he did not

have a right to one. [Wolff v. McDonnell, supra, 418 U.S.

at 570). After adjudging respondent “guilty” at a proceed-

ing in which he was not apprised of the identity of his

accusers due to the “confidential” nature of the informa-

tion, the Government continued to hold him in segrega-

tion, and in the process moved him from one institution to

another. He eventually surfaced in the federal prison

population in Leavenworth, Kansas in March 1979. (J.A.

44-47). During the period of his administrative segrega-

tion, respondent had no legitimate access‘ to the general

prison population at Lompoc, his access to the outside

world was curtailed, (during the period of time he was in

transit it was eliminated), and his life was placed in

jeopardy as a potential government informer. (J.A. 45-

46).

, Gouveia was interviewed by the F. B. I. on December 6, 1978 at

which time he was advised of his Miranda rights, in the same manner

as if he was undergoing a “custodial interrogation.” (J.A. 53). This

was apparently the first time that he had any opportunity to do

anything about his detention. (J.A. 45).

‘The Government suggests in its Brief that an inmate in segrega-

tion can conduct his own investigation through the “grapevine,”

windows, vents or while exercising his limited visitation with family.

(Brief, p. 39). Assuming that such a suggestion has any practical

that

governing

inmates in segregation should be circumvented by a suspect to try

and preserve a defense.

14

In contrast, the Government had more than three

trained investigators in the form of F. B. I. agents under-

taking to interview over 100 inmates beginning Nuvem-

ber 11, 1978. The United States Attorney’s Office had a

file open and an assistant assigned to the investigation by

November 29, 1978.“ (J. A. 50). The initial F. B. I. in-

vestigative report aceusing respondent was returned to

the institution on December 13, 1978. However, respon-

dent had no ability to begin his own investigation, even in

the form of memorializing the testimony of favorable

witnesses, until he was released from segregation and of

course at that time he was at a different institution.“ It

was not until some 20 months after his initial lock down

that he had counsel.

Speaking for the majority of this court, Mr. Justice

Blackmun had the occasion to discuss the application of

the Sixth Amendment right to counsel in the context of

witness interviews in the case of United States v. Ash,

413 U.S. 300. Therein he indicated that this court would

be unwilling to extend the right to counsel to a portion of

the prosecutor’s trial-preparation interviews with wit-

»The assistant assigned, Bert H. Deixler, handled the case

through to and including the first trial.

There is nothing in the record to suggest that the Government

made any attempt to interview the witnesses whose names they

received from respondent in his F. B. I. interview. The assertion by

the Government that a prisoner can use such a procedure to identify

and memoralize witnesses and evidence, assumes that the suspect is

given information in sufficient detail about the factual basis for the

charges to enable him to specifically designate what should be done

on his behalf. In this case, that information was withheld in the

interests of confidentiality. Respondent was therefore limited to

trying to recall, almost a month after lock down, who he saw and what

he did over the period of an entire day. His difficulty in this regard

A ee te

15

nesses. He recognized that in England in the 16th and

17th centuries counsel regularly interviewed witnesses

before trial and that “The traditional counterbalance in

the American adversary system for these interviews

arises from the equal ability of defense counsel to seek

and interview witnesses himself.” (At p. 318) [Emphasis

added]. This “equal ability,” or in the case of the prison

inmate in segregation, the lack of it, is the cornerstone of

the court of appeals’ opinion. The application of the Sixth

Amendment right in this circumstance is directly to mini-

mize the imbalance in the adversary system that results

in these cases when the Government is free to pursue its

investigation and the development of a case against a

suspect who is prevented by the same government from

doing so on his own behalf. [See also Johnson v. Zerbst,

304 U.S. 458 (1938)].

In a portion of its brief the Government has argued that

a court that evaluates prejudice from the lack of ap-

pointed counsel during administrative detention should

consider several factors, including the opportunities for

the preservation of evidence afforded by the prison dis-

ciplinary proceedings, the amount of time that a defend-

ant spends in the general prison population after the

offense occurs, and the information the defendant’s coun-

sel receives in the form of inmate rosters and other in-

mate identification information. Respondent contends

that consideration of these factors in his case demon-

strates the need for counsel in order to “even up” the

opportunity to defend himself at the time of trial.

In respondent’s circumstances, he was locked down on

the evening of November 11th and remained in that sta-

tus until removed from the institution. (J.A. 44-47). He

did not have the opportunity to preserve evidence or

memorialize testimony at the disciplinary proceedings

because they did not take place until more than 30 days

16

after his lock down and then he was not provided with the

specifics of the accusations because they were “confiden-

tial.” (J.A. 45). In the meantime the Government had

three F. B. I. agents interviewing more than 100 witnes-

ses at least once and in some cases more than once. (J.A.

50). Once respondent was removed from the institution

he remained in isolation until March of 1979, when he was

relased to the general population in Leavenworth. (J.A.

46). In his absence, the Government was able to continue

its investigative process uninhibited. Respondent was

unable to being preparation of his defense post indictment

when counsel was appointed.

Counsel for respondent was provided with a list of

inmates for various units in the facility, but the process of

turning that into usable information was cumbersome and

inaccurate. In order to find the present location of in-

mates it was necessary to send written requests to the

Bureau of Prisons locator who in turn responded in writ-

ing. Thereafter, it was necessary to telephone various

institutions or parole offices in order to establish a final

location for various individuals. In the course of following

this process it became apparent that the information on

the lists provided by the Government was inaccurate.

Rickey Resendez, who was identified by respondent in

his F. B. I. interview, was not locatable using this method.

(It turned out that Mr. Resendez died prior to the time of

the indictment.) A “Macias” appeared on the M Unit

housing lists (J.A. 70-75), but not on the M roster (J.A.

76-77). Mr. Trejo’s name did not appear anywhere and the

prison locator had respondent Gouveia as being released

from Leavenworth, Kansas on September 24, 1979. (J.A.

63-69). Under these circumstances it is hard to conclude

that counsel for respondent, once he was appointed, was

in any way in a comparable position to government coun-

17

sel, Mr. Deixler, once he was assigned to the investiga-

tion on November 29, 1978.

At least for these respondents, it appears that the

traditional counterbalance in the American adversary

system which comes from an accused having counsel who

has an equal ability to seek and interview witnesses was

missing. Absent such an ability in prison inmate cases,

then it is hard to support the position that the subsequent

appointment of counsel after indictment will result in

effective representation and a fair trial.

B. The Providing Of Counsel Under The Circumstances Set

Out By The Court Of Appeals Is Reasonable In Relation

To The Needs Of The Bureau Of Prisons And The Inmate

Suspect.

A portion of the Government’s argument before this

court is based upon an analysis of the Sixth Amendment

in the context of a specific event, i.e., the initiation of

adversary judicial proceedings through formal charge.

(Brief, p. 21). Clearly, even the Government i

that it is the circumstances which bring the right to bear,

not the formalism of an event. These circumstances have

been called a “critical stage” in such cases as United

States v. Ash, supra, 413 U.S. 300; Coleman v. Alabama,

399 U.S. 1 (1970) (plurality opinion); United States v.

Wade, 388 U.S. 218 (1967).

The court of appeals established in this case a fairly

rigid set of circumstances as evidencing that a “critical

stage” had been reached in the case of a prison inmate.

First, the inmate must be held for more than the ninety

(90) day isolation period permitted under the Bureau of

Prisons’ regulations. Second, the inmate must ask for an

attorney. Third, the inmate must establish indigency.

Fourth, the inmate must make a prima facia showing that

one of the reasons for his continued detention is the

18

investigation of a felony. Furthermore, even if these facts

are established, there is no automatic right to counsel.

Rather, the Government has several choices, only one of

which is to provide counsel. Significantly, if the Govern-

ment can establish that the detention is not for the in-

vestigation of a felony, then there is no need for it to do

anything. Similarly, if the inmate is being held in connec-

tion with the investigation of a felony, he can be released

back to the general prison population. It is only when the

Government seeks to keep a suspect in isolation while it

continues its investigation that it must provide counsel to

the indigent inmate who requests it.

The remedy fashioned by the appellate court directly

and rationally meets the needs of both the Government

and the suspect. In the case of respondent Gouveia, the

appointment of counsel would have enabled him to have

witnesses located and evidence memorialized against

possible loss, without disrupting the Government’s deci-

sion to move him physically to another institution. At this

juncture the burden upon the Government would have

been slight. Presumably, their investigation would be

substantially completed, their witnesses located, state-

ments taken and the physical evidence analyzed. A sus-

pect’s investigation through counsel would minimize the

risk of coercion or harm to inmate witnesses.’

It would also be expected that an investigation by

counsel would be guided by a knowledge of the legal

The Government has suggested in its Brief that one reason not to

appoint counsel is because of the risk of coercion and retribution.

(Brief, p. 28). This argument assumes that the kind of general in-

vestigation to locate witnesses and memoralize testimony, which

respondent was prevented from doing in this case, would somehow

generate these evils which the Government seeks to prevent. Furth-

19

issues and evidentiary requirements attendant upon a

criminal trial. An inmate who attempts to conduct his own

investigation from within the confines of segregation does

not have access to the prison library or other sources from

which he can gain an understanding of the legal ramifica-

tions of the steps involved in locating and preserving

evidence, including statements. Under the alternatives

set out by the appellate court, the inmate returned to the

general «-. ulation could acquire that technical knowl-

edge froi:. sources within the institution, or, if not re-

turned, the appointed counsel would be provided the

requisite knowledge. While it is true that one might say it

would be to the inmate’s advantage to remain in segrega-

tion and have counsel appointed, factually, the inmate’s

situation under the court of appeals decision would be

analogous to that of an indigent suspect who had not yet

been arrested. Until the time of his arrest, a suspect is

left to his own resources, but without Government re-

striction. Once the arrest occurs (i.e., when the Govern-

ment begins to restrict his movement) he must be

brought before a magistrate and at that time counsel is

appointed to provide the necessary legal expertise.

The significance of the presence of counsel to preserve

evidence and witnesses for submission during trial should

not be minimized in cases such as these involving prison

inmates. One of the witnesses respondent brought forth

at the first trial was barely able to testify because of the

objections of Government counsel Deixler based upon the

ermore, it ignores the fact that a trial is supposed to be a search for

the truth and that it is not uncommon for Government inmate witnes-

Sr

sentence. Finally, it is noteworthy that in respondent's case

was no effort by the Government to justify the twenty (20) month

delay on any basis related to the protection of witnesses.

20

witness’ inability, almost two years later, to recall exactly

when certain information came to his attention. The wit-

ness Tony Estrada was called because of conversations he

had with “Flappers” concerning disposal of some knives.

In upholding the Government’s objections, the trial judge

said: “. . but I think that Mr. Deixler has put his finger

on it; that we don’t know when he received the informa-

tion. If you can establish that the information he received

was on the day of the murder, then I think you have laid

your foundation, but at the present time, I don’t believe

you have laid that foundation.” (J.A. 115). If counsel had

been able to interview this witness closer to the time of

the events in question, then a memorandum of that in-

terview could have been used to refresh the witness’

memory of dates and times, information which counsel

would know was necessary to lay the foundation for the

testimony. Significantly, during the course of the trial the

Government was able to use that same evidentiary tool

for its witnesses and to impeach defense witnesses. (J.A.

100).

DOES THE DEPRIVATION OF THE SIXTH AMENDMENT

RIGHT TO COUNSEL FOR A PRISON INMATE

NECESSARILY LEAD TO THE DISMISSAL OF THE

INDICTMENT?

A. Dismissal Of The Indictment Is The Only Remedy Avail-

+ sac Neutralize The Prejudice Suffered By Respon-

This court has indicated that the correct approach to

fashion a remedy for Sixth Amendment deprivations is to

identify the taint and devise a remedy to neutralize the

prejudice so suffered so that the defendant is assured of a

fair trial. U.S. v. Morrison, supra, at p. 365. In this case,

by definition, the respondents were being held in admin-

21

istrative segregation in excess of ninety (90) days for the

purpose of investigation of a felony. They were indigent

and although they requested the assistance of counsel,

counsel was denied them. The taint recognized by the

court of appeals was that without the assistance of coun-

sel their ability to defend themselves at trial was handi-

capped. (Pet. App. 20a). Under these circumstances,

what remedy could neutralize a twenty (20) month delay?

The pretrial discovery disclosed that in the cell where

the murder took place there was a brown paper bag

containing the name “Sanchez.” The bag also had two

palm prints which were analyzed by the F. B. I., but could

not be correlated to the respondents nor the then in-

habitant of the cell, Mr. Macias. (R.T. 461-465). Part of

the Government’s case against respondent Gouveia in-

cluded the introduction of finger print and palm print

evidence which was located on a piece of paper found in

the cell. The trial testimony established that the prints

were placed on the paper prior to the murder, but the

inmate to whom the cell was assigned denied any knowl-

edge of it. (R.T. 830). There was also evidence of numer-

ous other prints on a Playboy magazine located in the cell,

which did not correlate to any of the respondents. (Macias

denied any knowledge of the magazine, as well.) (R.T.

836) It was obviously to respondents’ advantage to show

that prints on movable items in the cell, such as the bag,

the paper, and the magazine, did not necessarily indicate

involvement in the murder, or placement at the time of

the murder.“ Presumably this could be accomplished by

In respondent Gouveia’s case, he was able to establish the place-

ment of the prints as a pre-murder because the paper contained blood

drops which were on top of the prints and were undisturbed. If the

prints had been placed on the pa per during or after the murder, the

prints would have made an impression in the blood (R.T. 465-466).

locating and interviewing other inmates, such as “San-

chez,” and inquiring as to the explanation for the presence

of the brown paper bag in the cell where the body was

found. However, this inquiry is easier said than done. In

the case of the M Unit inmates there were only five (5)

remaining out of the 67 names on the roster provided to

defense counsel in September of 1980. (J.A. 90).

The Government, in its brief, has failed to suggest what

remedy could neutralize the loss of so many potential

witnesses on such a critical issue. Instead, it couches its

position in the argument that it is the burden of the

respondent to show that he has suffered substantial prej-

udice. Unfortunately, the Government does not suggest

how respondent, while in segregation and while in transit

from one location to another, could possibly have acquired

sufficient information to make a showing as to what any of

these 62 inmates might have said about the activities in

and about M Unit on the date of Mr. Trejo’s death.

Similarly, it is possible that one or more of these in-

dividuals might have seen Michael Thompson (“Flap-

pers”) in the unit on the day of the murder.’

This is precisely the point recognized by the court of

appeals. The presumption of prejudice is appropriately

applied in these cases because it is impossible to prove or

disprove prejudice because of the delay imposed by the

Government and the failure to honor the request for

counsel. The delay in seeking the indictment coupled with

8 F

to inquire of the inmates in M Unit about the presence of

Flappers and respondent could not. The information was not de-

veloped until counsel began to contact other inmates in respondent’s

unit in order to see if they remembered his being there on the day in

question.) (R.T. 1878).

maintaining the respondents in segregation were acts

totally within the control of the Government and cannot

be attributed to the acts of the respondents.”

B. There Is Sufficient Evidence Of The Potential For Sub-

stantial Prejudice In The Record To Support The Dis-

missal Of The Indictment.

The Government questions whether the appellate

court should have conducted an in depth review of the

trial record in order to determine the presence or absence

of evidence of demonstrative actual prejudice (Brief, p.

47) and they further assert that the trial evidence shows

that in fact there was none. (Brief, p. 56). In support of

the latter position they rely upon the number of witnesses

produced, but ignore the quality of their testimony and

the extent to which the Government prosecutor was able

to impeach them on their lack of memory. Several of the

witnesses produced by respondent testified in both trials

and in many cases the transcripts of the first trial provide

vivid evidence of the nature and extent of their failure of

recollection. The Joint Appendix contains excerpts from

some of the first trial testimony by Antonio Palacios,

” The Government has suggested that one way in which a suspect

in segregation can preserve evidence in his favor is to “provide full

information about his activities to F. B. I. investigators.” (Brief, p.

36). In the case of respondent Gouveia, he did provide information

about his activities to the F. B. I. One of the persons named was

Steven Broughton. During the first trial Mr. Broughton was called as

a witness. He was extensively cross-examined by the Government on

his failure to precisely recall details of the events of November 11th.

At one point he was asked, “Did you have any reason to believe or

suspect that your account of these activities might be questioned two

years down the road? His answer was, “No, I didn’t.” It appears that

the Government did not seek to confirm or deny the information

given by respondent about this witness. (J. A. 105).

24

Raymond Olvera, Stephen Broughton and Paul Leroy

Allen.

It is particularly telling to consider the testimony of

two of these witnesses. On cross-examination, Mr.

Broughton was asked about the first time he saw respon-

dent Reynoso on November 1ith. He responded as fol-

lows: “Between 10:00 and 11:00. You keep asking me

certain times, and how can I remember certain times over

two ago?” Mr. Deixler replied, “I can’t imagine,”

and the witness responded, “I can’t either.” (J.A. 104).

During his testimony Mr. Allen testified to seeing respon-

dent Gouveia in K Unit and having a conversation with

him, but the best he could do for à time frame was be-

tween the hours of 11:00 a.m. and 1:00 p.m. While the

Government has characterized this witness and others as

“alibi” witnesses, it is apparent that they were not very

helpful because they could not recall with specificity

either events or times. While it is true that the Govern-

ment can argue that had these witnesses been in-

terviewed at or near the time of the events they would

have had clearer memories which might have eliminated

them entirely as potential defense witnesses, it is also

true that they may have been better witnesses and led the

defense to more corroboration for their testimony. In

either case, such arguments are based upon speculation

born out of a lack of knowledge and this is exactly the

point of the appellate court’s conclusion that in these

circumstances neither side can ordinarily prove or refute

the existence of prejudice and therefore the court must

decide in whose favor to “tip the scales.” (Pet. App. p.

22a).

It is clear that the an for substantial prejudice

exists in these cases and that its existence is directly

attributable to the conduct of the Government; therefore,

25

it seems only fair that the Government be the one who

must establish an appropriate remedy to remove the

taint, and they have not done so. Accordingly, dismissal

of the indictment is the only remaining remedy.

CONCLUSION

Based upon the foregoing, respondent urges the court

to affirm the decision of the court of appeals, thereby

reversing the convictions and ordering the indictment

Respectfully submitted,

Michael J. Treman

MICHAEL J. TREMAN

Attorney for Respondent

WILLIAM GOUVEIA