# Respondents Brief — United States v. Gouveia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 180

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0131%3A09. Public record. Not legal advice.