Respondents Brief — United States v. Gouveia

No, 83-128 ALEXANDER L STE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

UNITED STATES OF AMERICA,

Petitioner.

WILLIAM GovuveEIA, ef a/..,

Responde ts.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF OF RESPONDENT ROBERT RAMIREZ

2

JOSEPH F. WALSH

316 West Second Street

Suite 1200

Los Angeles, California 90012

(213) 627-1793; 627-1736

Court-appointed Counsel for Respondent

RokERT RAMIREZ

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C. (202) 347-8208

QUESTIONS PRESENTED

1. Whether, under any circumstances, a federal pris-

oner, suspected of committing a crime while in prison and

placed in administrative detention, is constitutionally en-

titled to an attorney prior to indictment?

2. Whether dismissal of the indictment is the appro-

priate remedy where an indigent federal prisoner is held

in solitary confinement for 19 months as a suspect in a

murder investigation and his requests for appointed

counsel are denied until he is formally indicted 20 months

after the alleged crime?

ii

TABLE OF CONTENTS

eee aS a

I. A Federal Prisoner, Suspected Of Committing A

Crime While In Prison And Placed In Administra-

bh b Has A Sixth Amendment Right To

o RG PCR wise Si a Re a

II. The Dismissal Of The Indictment Was An apres

ate Remedy In This Case For Violation Of The Sixth

Amendment Right To Counsel .................

F ̃ w—2—·ů ²˙ sc Dew

13

TABLE OF AUTHORITIES

CASES: Page

Blue v. State, 558 P. 2d 636 (Alaska 1977) ........... 15

Chambers v. Mississippi, 410 U.S. 284 (1973) 26

Coleman v. Alabama, 399 U.S. 1 (1970) ............. 14

“ae v. Richman, 458 Pa. 167; 320 A.2d 351

Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978)... 29

Escobedo v. Illinois, 378 U.S. 478 (1964) .12, 16, 18, 19, 24

Estelle v. Smith, 451 U.S. 454 (19817777) 20

Geders v. United States, 425 U.S. 80 (1976) ........ 13, 30

Gideon v. Wainwright, 372 U.S. 335 (1963) .... 13, 19, 30

Hamilton v. Alabama, 368 U.S. 52 (1961) ..... 13, 14, 31

Herring v. New York, 422 U.S. 853 (1975) ......... 13, 30

Holloway v. Arkansas, 435 U.S. 475 (1978) 30

Johnson v. New Jersey, 384 U.S. 719 (1966) ......... 20

Johnson v. Zerbst, 304 U.S. 458 (1988) .............. 13

Kirby v. Illinois, 406 U.S. 682 (1972) 12, 14, 15, 20

Massiah v. United States, 377 U.S. 201 (1964) ....... 28

Miranda v. Arizona, 384 U.S. 436 (1966) ...... 18, 24, 26

Moore v. Illinois, 434 U.S. 220 (1977ᷣ᷑ P U 20

People v. Bustamante, 30 Cal. 3d 88; 177 Cal. Rptr. 576;

DZ

People v. Jackson, 391 Mich. 323; 217 N. W. 2d 22 (1974) 15

Powell v. Alabama, 287 U.S. 45

n wieban oe 04 12, 13, 14, 16, 18, 24, 30

Schmerber v. California, 384 U.S. 757 (1966) ........ 5

United States v. Ash, 413 U.S. 300 (1973) .......... 17, 18

United States v. Blue, 384 U.S. 251 (1966) 28

United States v. Dionisio, 410 U.S. 1 (1978) ......... 5

United States v. Gouveia, 704 F.2d 1116 (9th 1 7 e

, wites nes 1, 29, 32

United States v. Greene, 429 F.2d 198 (D.C. Cir. a 15

United States v. Henry, 447 U.S. 264 (1980) ......... 20

iv

Table of Authorities Continued

Page

United States v. Marion, 404 U.S. 307 (1971) ...... 21, 22

United States v. Morrison, 449 U.S. 361 (1981) . 13, 27, 28

United States v. Phillips, 427 F.2d 1035 (9th Cir. 1970) 15

~~, v. Valenzuela-Bernal, No. 81-450 (July 2,

United States v. Wade, 388 U.S. 218 ’

D nnen 5, 12, 14, 16, 17, 28

White v. Maryland, 373 U.S. 59 (1963) ............ 14, 31

Wilson v. Gaffney, 454 F.2d 142 (10th Cir. 1972) ..... 15

CONSTITUTION, STATUTES AND RULES:

United States Constitution, Amendment“

Amendment VI.

R 21

MISCELLANEOUS:

Comment, Kirby v. Illinois: A New Approach to the

Right to S 58 Iowa L. Rev. 404 (1972) 15

Note, The Lineup’s Lament: Kirby v. Illinois, 22 De Paul

, sdaee'esccddesencdsoces 15

Pulaski, Neil v. Biggers: The Supreme Court Dismantles

The Wade Trilogy’s Due Process Protection, 26 Stan.

Aes BOT GOED, 2 Oo oc Adee ie oe Weadeesedeanee 15

1

BRIEF OF RESPONDENT ROBERT RAMIREZ

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

U.S.C., section 12540).

CONSTITUTIONAL PROVISION

The Sixth Amendment provides, in pertinent part:

In all criminal prosecutions, the accused shall en-

joy the right . . . to have the Assistance of Counsel

for his defense.

STATEMENT

On November 11, 1978, Thomas Trejo, an inmate at the

Federal Correctional Institute at Lompoc, California,

was stabbed to death. Mr. Trejo received 43 stab wounds

to the heart. There were no eyewitnesses to the crime. (2

R. 147-150) The autopsy surgeon placed the time of death

between noon and 1:00 p.m. (2 R. 160) The body was

discovered at 3:20 p.m. by Armando Macias, an inmate

who was assigned to the cell in M-Unit where the killing

occurred. (5 R. 818-831) Also, at approximately 3:20 p.m.,

a correctional officer discovered four knives wrapped in

blood-stained toilet paper, lying on the floor of the second

floor latrine in E-Unit. (6 R. 1191-1193)

Within hours of the killing, both Bureau of Prisons and

the Federal Bureau of Investigation began their in-

2

vestigations to discover the perpetrators of the crime.

(J.A. 50) Beginning on November 11, 1978, the F. B. I.

interviewed over 100 witnesses. Many of these witnesses

were interviewed more than once. (J.A. 50)

The Respondents in this case, Adolpho Reynoso,

Robert Ramirez, William Gouveia and Philip Segura, and

two additional co-defendants, Pedro Flores and Steven

Kinard, were all sentenced federal prisoners. On the day

of Thomas Trejo’s death, they were all serving their

sentences at the Federal Correctional Institution at Lom-

poc, California.

On the evening of November 11, 1978, three of the

defendants who were later indicted in this case, Adolpho

Reynoso, Pedro Flores and William Gouveia, were placed

in solitary confinement in the Administrative Detention

Unit (ADU). This decision was made by Federal Correc-

tional Institution officials, who suspected that the

murderers of Thomas Trejo were members of the “Mex-

ican Mafia.” All persons suspected of being members of

this prison gang were immediately placed in the Adminis-

trative Detention Unit. This included Reynoso, Flores

and Gouveia. (J.A. 50)

On November 22, 1978, Reynoso, Flores and Gouveia

were released from the Administrative Detention Unit

and returned to the general prison population. On Decem-

ber 4, 1978, the prison officials placed Adolpho Reynoso,

Pedro Flores, William Gouveia, Robert Ramirez, Philip

Segura and Steven Kinard into the Administrative

Detention Unit. (J.A. 50)

As early as November 29, 1978, as a result of an in-

terview with a prison inmate, the F. B. I. had identified

Reynoso, Ramirez, Flores, Gouveia, Segura and Kinard

as the possible murderers of Thomas Trejo. On Novem-

3

ber 29, 1978, the United States Attorney’s Office in Los

Angeles, California, opened a file with the aim of

eventually prosecuting those six individuals for the mur-

der of Thomas Trejo. This occurred at the request of

F. B. I. agent James R. Wilkins, the agent in charge of the

investigation of the Trejo murder. J. A. 50-51)

However, these six individuals, ineluding the Respon-

dent Robert Ramirez, were not indieted for the murder of

Thomas Trejo until June 17, 1980. The first time that the

defendants were brought into court for an arraignment

was on July 14, 1980. In the case of Robert Ramirez, he

remained in solitary confinement in the Administrative

Detention Unit as a suspect in the murder of Thomas

Trejo for twenty months before being brought to court to

face criminal charges alleging that he was one of the

murderers of Thomas Trejo.

During the F.B.I.’s investigation of the case, Robert

Ramirez was interrogated by the F. B. I. on three occa-

sions. He was questioned twice in November of 1978 and

once on December 4, 1978. On the December 4, 1978

occasion, Robert Ramirez requested that an attorney be

provided to assist him. At that time, no attorney was

provided. (J.A. 32, 37)

The Bureau of Prisons instituted an administrative

investigation and on December 13, 1978, the Unit Dis-

ciplinary Committee and the Institutional Disciplinary

Committee at the Federal Correctional Institution at

Lompoc conducted administrative hearings to consider

Robert Ramirez’ involvement in the killing. At the hear-

ings, Robert Ramirez again requested that an attorney

be provided for him. This request was repeatedly denied.

The prison officials found at these administrative hear-

ings that Robert Ramirez was guilty of murdering Thom-

as Trejo and Mr. Ramirez was placed in solitary confine-

4

ment in the Administrative Detention Unit.' His confine-

ment in the Administrative Detention Unit continued

until after his indictment for murder in the United States

District Court.

Robert Ramirez remained in the Administrative

Detention Unit at the Federal Correctional Institution at

Lompoc continuously for a period of more than 19 months.

While in the Administrative Detention Unit, Robert

Ramirez was confined to his individual cell except for a 30

minute exercise and shower period every day. He was

denied access to the general population and his participa-

tion in various prison programs was curtailed. He had

access to legal materials, he had visitation rights, and he

had some access to a telephone on a very limited basis.

During this period, no attorney was appointed to repre-

sent Mr. Ramirez and since he was indigent, he was

unable to hire his own attorney. (Pet. App. 2a-3a)

On June 17, 1980, a grand jury indictment was filed

against Adolpho Reynoso, Robert Ramirez, William

Gouveia, Pedro Flores, Philip Segura and Steven Kinard.

All six individuals were accused of the crimes of con-

spiracy to commit murder in violation of 18 U. S. C., see-

tion 1117, and the murder of Thomas Trejo at the Federal

The United States Department of Justice Bureau of Prisons In-

cident Report dated December 13, 1978, which was prepared at the

time of the prison administrative hearing which inquired into the

involvement of Robert Ramirez in the killing of Thomas Trejo reads:

did on 11 Nov 18, participate in the fatal stabbing of inmate

on ov in 0

TREJO, THOMAS A., Reg} No. 35025-136. This murder took

— 415 Unit at approximately 12:30 p. m., you were assisted

Y not less than six other inmates, of which two others along

with you did also stab the victim. (Ramirez Excerpt of Record in

5

Correctional Institution at Lompoc, California in viola-

tion of 18 U. S. C., section 1111. J. A. 4)

On July 14, 1980, over 21 months since the death of

Thomas Trejo, Robert Ramirez was brought to court for

the first time to answer the charge of murdering Thomas

Trejo. On that date, counsel was appointed to represent

Mr. Ramirez and a plea of not guilty was entered,’

Prior to trial, Robert Ramirez «nd all of the co-

defendants moved for a dismissal of the indictment for

violations of their right to due process under the Fifth

Amendment and for violations of their right to a speedy

trial and to the assistance of counsel under the Sixth

Amendment. Because of the delay on the part of the

Government in bringing the indictment, almost two years

had elapsed before the case would be brought to trial.

Because of the long delay in bringing formal charges

against Robert Ramirez and the other defendants and the

delay in providing them with counsel, the attorneys

ultimately appointed to represent them were forced to

On September 20, 1979, Robert Ramirez was called as a witness

before the grand jury investigating the murder of Thomas Trejo.

Counsel was appointed prior to his testimony on that date for the

limited purpose of advising Mr. Ramirez of his rights as they related

to his testimony before the grand jury. When he appeared before the

grand jury, Robert Ramirez agreed to furnish fingerprint ex-

emplars, but declined to make any statement concerning the death of

Thomas Trejo. (Ramirez’ Excerpt of Record in Court of Appeals. p.

28-29)

Obviously, counsel must have advised Mr. Ramirez that the Fifth

Amendment allowed him to refuse to make a statement before the

grand jury but that a request to provide fingerprint exemplars could

not be refused on Fifth Amendment grounds because fingerprint

exemplars are non-testimonial evidence. See, Schmerber v. Califor-

nia, 384 U.S. 757 (1966); United States v. Wade, 388 U.S. 218 (1967);

United States v. Dionisio, 410 U.S. 1 (1973).

6

conduct an investigation into the case almost two years

after the death had occurred. (J.A. 78-93)

In support of the motion, Robert Ramirez alleged that

witnesses were difficult to locate and memories of the

events of November 11, 1978 had begun to fade. Several

witnesses listed in Ramirez’ “notice of alibi” did not

appear and testify at trial because they could not be

located. In essence, while the Government was able to

begin their investigation on the very day of the murder

and continue that investigation for two years, Robert

Ramirez and the other defendants were deprived of the

opportunity to conduct a fresh investigation while the

memories of witnesses were still clear, and while those

witnesses could still be found. (J.A. 32-34, 78-93)

Noting that it was “unfortunate that there has been the

delay that has ensued in this prosecution,” the trial judge

denied the motion to dismiss the indictment. On the right

to counsel ground, the trial judge stated that “the right to

counsel did not adhere or did not arise, and did not arise

until the appropriate time after the indictment.” (J. A.

92-93

The first trial commenced on September 16, 1980. The

jury was unable to reach a verdict in the case of the four

Respondents Reynoso, Ramirez, Segura and Gouveia,

and a mistrial was declared. However, Pedro Flores was

acquitted by the jury in the first trial. Steven Kinard, also

charged in the indictment, entered into a plea bargain

prior to the first trial and became a Government witness

against the remaining defendants.’

Steven Kinard was the only Government witness to directly

involve Robert Ramirez in the conspiracy and murder of Thomas

Trejo. Although Steven Kinard was originally charged with con-

spiracy to murder Thomas Trejo, the murder of Thomas Trejo, and

7

A second trial began on February 17, 1981. At the

conclusion of this trial, all four Respondents were con-

victed of both conspiracy and murder. Each was sen-

tenced to consecutive life and ninety-nine year terms of

imprisonment.

The primary Government witness against Robert

Ramirez at the trial was Steven Kinard. There was no

physical evidence connecting Mr. Ramirez to the commis-

sion of the crime.‘ Steven Kinard testified that shortly

after the arrival of Thomas Trejo at the Lompoc prison in

November of 1978, he had a conversation in the yard with

Adolpho Reynoso and Philip Segura. At that time, Adol-

pho Reynoso stated that Trejo had made a bad move

against “la cliqua” and he had to be “sent home by Christ-

mas.” Kinard understood this to mean that Trejo was to

be murdered. (3 R. 484-489)

Kinard testified that during this same first week in

November of 1978, he had a conversation with Robert

Ramirez. According to Kinard, Ramirez stated that he

conveying a knife in prison, Kinard entered into a plea agreement

with the Government. Pursuant to the agreement, Kinard pleaded

guilty to conveying a weapon in a federal correctional institution and

testified at the trial as a Government witness. In exchange, the

Government agreed to dismiss the murder and conspiracy charges. (4

R. 477-478, 508) What actually occurred, however, was that after all

of the Respondents were convicted, Kinard was permitted to with-

draw his guilty plea and all charges were dropped. (14 R. 3093)

A piece of writing paper was found on top of the locker in the cell

where the body was found. The paper contained one latent finger-

print and two latent palmprints. The fingerprint was that of William

Gouveia. One of the palmprints belonged to William Gouveia and the

other palmprint belonged to Philip Segura. (3 R. 440-445) A bloody

shoeprint found on a locker door in the cell corresponded in size and

design with the shoe of Philip Segura. (3 R. 404-415, 397-399)

8

had procured knives from a black inmate in the welding

shop in exchange for marijuana. On the following day,

Kinard observed Robert Ramirez receive the knives from

an inmate in the welding shop. Ramirez then told Kinard

that he would give the knives to an inmate, named Gano,

to smuggle into the main institution building. That same

day, Robert Ramirez handed two knives to Gano’ through

the shop window. (3 R. 490-494)

According to Kinard, two days later, Robert Ramirez

told Steven Kinard to pick up a knife from inmate Stinky

Manuri.“ Kinard met Manuri at the recreation yard where

Manuri handed Kinard a knife. Kinard put the knife in his

pocket and carried it into the institution building. Kinard

gave the knife to Robert Ramirez who, in turn, bid the

knife in the trash, stating that another inmate would pick

it up. (3 R. 494-501)

On November 11, 1978, Steven Kinard went to the

recreation yard after brunch at about 11:00 a.m. Kinard

testified that he joined a group of inmates including

Reynoso Ramirez, Segura, Gouveia, Palacios and Re-

cendez. At that time, Adolpho Reynoso stated that “the

fool had to be sent home today.” The group then walked

the track and when it started to rain, they entered the

gym. Inside of the gym corridor, Reynoso and Ramirez

discussed where Trejo should be killed. After considering

several locations, Reynoso finally decided that it should

occur in M Unit. (3 R. 509-515)

5 James Gano testified that he was at Lompoc in November of 1978.

He denied ever receiving knives from Robert Ramirez. (9 R. 1793-

1797)

Peter Manuri, also known as “Stinky,” testified that he was an

inmate at Lompoc in November of 1978. Mr. Manuri denied ever

giving Steven Kinard a knife while at Lompoc. (11 R. 2419-2426)

9

Steven Kinard testified that Reynoso told Robert

Ramirez to bring Thomas Trejo to M Unit since Ramirez

had been a friend of Trejo’s in the past. The group then

broke up with some members leaving to change clothes

and others leaving to obtain the knives. (3 R. 515-521)

The entire group once again reassembled in the gym. It

was there that Reynoso directed Ramirez to find Trejo. (3

R.T. 322) Kinard testified that Reynoso directed Kinard

to go to his cell and wait. As Kinard was leaving, he saw

Reynoso, Segura, Gouveia, Palacios and Recendez walk-

ing toward M Unit. Steven Kinard then went to his cell in

K Unit. (4 R. 531-534)

After fifteen or twenty minutes, William Gouveia

called Steven Kinard and told him to meet with Tony

Palacios’ and get the knives. Kinard testified that he met

Tony Palacios in front of K Unit and exchanged jackets

with him. The knives were inside of Tony Palacios’ jacket.

Kinard took the knives to his cell, cleaned them and

wrapped them in tissue paper. William Gouveia and Wil-

lard Taylor entered Kinard’s cell. Kinard gave the knives

to Willard Taylor. After discussing where the knives

could be disposed of, it was decided that Taylor would

leave them in E Unit. (4 R. 532-545)

Antonio Palacios was an inmate at Lompoc in November of 1978.

Mr. Palacios testified that he never met Steven Kinard at Lompoc.

He also denied ever exchanging jackets with anyone between noon

and 1:00 p.m. on November 11, 1978 in front of K Unit. (8 R.

1623-1631)

* Willard Taylor, known as “B.T.,” testified that on November 11,

1978, Steven Kinard called Taylor into his cell and asked Taylor to

help him get rid of some bloody knives. Gouveia, who was also

present in Kinard’s cell, likewise asked Taylor to help them get rid of

the knives. (5 R. 870-880)

10

Steven Kinard testified that he thereafter went to the

gym where he met Reynoso, Ramirez, Segura, Palacios,

Recendez and Gouveia. According to Kinard’s testimony,

Kinard asked Adolpho Reynoso if it had gone well.

Reynoso replied that “the fool’s gone” and that he was

“home by Christmas.” Reynoso also stated that when he

got “him” in a choke hold, that was when the brothers

started working on “him.” Reynoso then suggested that

everyone go to a movie and the group left the gym. (4 R.

545-561)°

In the defense case, the Respondents Robert Ramirez

(11 R. 2233-2247), Philip Segura (10 R. 2136-2159), and

William Gouveia (11 R. 2362-2381) all denied participa-

ting in the murder and conspiracy. Each testified and

presented evidence that they were elsewhere at the time

of the murder. Robert Ramirez testified that he was in

the gymnasium at the time of the killing. In addition to his

own testimony, three inmates also testified that they

observed Mr. Ramirez in the gymnasium between noon

and 1:00 p.m. on the day of the killing. (7 R. 1823-1335,

»The Government also offered testimony from other inmate wit-

nesses. Edward Chaparro testified that Reynoso stated that he

would kill again if the only thing that would happen to him was the

loss of good time sentence credits. (6 R. 1209-1222) Richard Villalo-

bos testified that he observed Pedro Flores pass a knife to Robert

Ramirez in the main corridor on the night before the killing. (2 R.

189-192) Gene Newby testified that he observed the four Respon-

dents and Pedro Flores enter the unit across the hall from where the

body was found shortly after brunch on November 11, 1978. Reynoso

and Segura were then observed tearing some clothing and flushing it

down the toilet. (6 R. 1007-1017)

In the defense case, Pedro Flores testified that he was an inmate at

Lompoc in November of 1978. Mr. Flores denied passing a knife to

either Robert Ramirez or Adolpho Reynoso on the evening of

November 10, 1978. (7 R. 1414, 1437)

eh ee

11

1356-1365; 9 R. 1937-1952). Two inmates testified that

Steven Kinard had told them that he killed Thomas Trejo,

while assisted by another inmate named Michael Thomp-

son. (10 R. 2061-2066, 2209-2212)

After the four Respondents were convicted, they

appealed their convictions to the United States Court of

Appeals for the Ninth Circuit. The Court of Appeals, in

an en banc decision, voted six to five to reverse the

convictions of all four Respondents. The Court also

ordered the indictment to be dismissed.

The Ninth Circuit held that lengthy pre-indictment

isolation without the assistance of counsel irrevocably

prejudiced the ability of the Respondents to prepare an

effective defense, and, thus, unconstitutionally deprived

them of their Sixth Amendment right to counsel and to a

fair trial. United States v. Gouveia, 704 F.2d 1116, 1119

(9th Cir. 1983). Since the Government’s conduct in this

case resulted in harm which was not capable of after-the-

fact remedy, the Ninth Circuit ruled that the Respon-

dents were in a position similar to suspects who were

denied a speedy trial, and thus dismissal of the indictment

was the only certain remedy. United States v. Gouveia,

supra, at 1125-1127.

SUMMARY OF THE ARGUMENT

1. The Sixth Amendment right to counsel attached

prior to the indictment of the Respondent because of the

unique facts of this case. The Respondent was a federal

prisoner. He was placed in solitary confinement for 20

months as a suspect in a prison murder prior to being

indicted for that murder. Three weeks after being placed

in solitary confinement, he was told at a prison disciplina-

ry hearing that he was considered to be guilty of murder-

ing another inmate. Since he was indigent, Respondent

12

requested that counsel be provided for him. No counsel

was provided, however, until 20 months later when Re-

spondent appeared in court to be arraigned on the murder

charge.

The unfairness that resulted was that the Government,

through the FBI, was able to begin their investigation

and preparation of the case from the very day of the

murder. Respondent, on the other hand, without counsel

and placed in solitary confinement, was prevented from

beginning his investigation and defense preparation until

almost two years later when counsel was appointed. By.

then, inmate defense witnesses had been transferred,

released and some were deceased. The net effect was that

Respondent was unable to present the testimony of

several defense witnesses who were now dead or missing,

and those defense witnesses who were available had diffi-

culty recalling the events which had occurred approxi-

mately two years before.

Although Kirby v. Illinois, 406 U.S. 682 (1972) limits

the right to counsel to after the initiation of the adversary

judicial proceeding, the Kirby case was factually different

from Respondent’s case. Kirby was not a prison case.

This Court’s decision in United States v. Wade, 388 U.S.

218 (1967) held that the right to counsel guarantee applies

to critical stages of the proceedings, or, in other words,

when counsel’s presence is necessary to preserve the

defendant’s right to meaningfully cross-examine the wit-

nesses against him and to have the effective assistance of

counsel at the trial itself. See also, Escobedo v. Illinois,

378 U.S. 478 (1964); Powell v. Alabama, 287 U.S. 45

(1982). In Respondent’s case, the right to counsel did

attach prior to indictment in light of this Court’s Wade

decision. |

13

2. The dismissal of a criminal indictment is an appro-

priate remedy for a violation of an accused’s right to

counsel upon a showing of “demonstrable prejudice, or

substantial threat thereof.” United States v. Morrison,

449 U.S. 361, 365 (1981). In this case, the Respondent has

made a showing of demonstrable prejudice warranting

the dismissal remedy.

The Ninth Circuit also found that there was a preump-

tion of prejudice in this case from the Government’s in-

terference with the Respondent’s right to the effective

assistance of counsel, because there was a substantial

threat of prejudice inherent in the facts of this case. Such

a conclusion was consistent with numerous cases decided

by this Court in which the particular right to counsel

violation was deemed to be prejudicial per se. This has

occurred in the past when no counsel has been provided,

Gideon v. Wainwright, 372 U.S. 335 (1963); Hamilton v.

Alabama, 368 U.S. 55 (1961), or when counsel is pre-

vented from discharging functions vital to effective rep-

resentation of his client. Geders v. United States, 425

U.S. 80 (1976); Herring v. New York, 422 U.S. 853 (1975).

ARGUMENT

I

A Federal Prisoner, Suspected Of Committing A Crime While

The Sixth Amendment provides that, “In all criminal

prosecutions, the accused shall enjoy the right . . . to

have the Assistance of Counsel for his defense.” The right

to counsel clearly applies to the representation in court by

an attorney of a person accused of a felony. Gideon v.

Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304

U.S. 468 (1988). In Powell v. Alabama, 287 U.S. 45

14

(1932), this Court stated that the right to counsel at trial

was one of those certain “immutable principles of justice

which inheres in the very idea of a free government,” and

that it is one of the “fundamental principles of liberty and

justice.” (287 U.S., 67-69)

In numerous decisions of this Court, it has been made

clear that in a felony criminal case, the right to counsel is

not limited to the trial alone. A defendant is entitled to the

right to counsel at the arraignment. White v. Maryland,

373 U.S. 59 (1963); Hamilton v. Alabama, 368 U.S. 52

(1961). He is entitled to have counsel assist in the

preparation of the defense during that period of time

between the arraignment and the trial. Powell v. Ala-

bama, 287 U.S. 45 (1982). The right to counsel also exists

at the preliminar) hearing (Coleman v. Alabama, 399

U.S. 1 (1970)), and at a post-indictment lineup. United

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

In the present case, the Ninth Circuit held that the

right to counsel attached when a federal prisoner is held

in isolation in administrative detention for more than

ninety days pending investigation and triai for the com-

mission of a crime while in prison. The Government

argues that the opinion of the Ninth Circuit is in conflict

with Kirby v. Illinois, 406 U.S. 682 (1972). This Court

stated in Kirby in a plurality opinion, that the Sixth

Amendment right to counsel “attaches only at or after the

time that adversary judicial proceedings have been in-

itiated” against an accused. Kirby v. Illinois, supra, at

688. Thus, in Kirby, this Court held that the right to

counsel does not attach to out-of-court eyewitness

identification procedures conducted prior to indictment.

The Ninth Circuit correctly noted that Kirby is dis-

15

tinguishable from this case because Kirby was not a pris-

on case.

The Respondent’s right to counsel issue does not arise

in the context of a pre-indictment lineup. Indeed, eyewit-

ness identification has nothing to do with this case. The

Respondent Ramirez and his three co-defendants were

deprived of their right to counsel for twenty months while

they were placed in solitary confinement as suspects in a

prison murder.

This occurred while the Government conducted its in-

vestigation into the case with the help of the Federal

% When Kirby v. Illinois, 406 U.S. 682 (1972) was decided by this

Court, it was at odds with numerous lower court of appeal decisions

that held that the right to counsel attached at pre-indictment lineups.

See, Wilson v. Gaffney, 454 F. 2d 142, 144 (10th Cir. 1972); United

States v. Greene, 429 F. 2d 193, 196 ‘D.C. Cir. 1970); United States v.

Phillips, 427 F. 2d 1035, 1037 (9th ir. 1970). The Kirby decision was

thereafter subjected to criticism in the legal periodicals. See, Com-

ment, Kirby v. Illinois: A New Approach to the Right to Counsel, 58

Iowa L.Rev. 404, 416 (1972) (“the result in Kirby was reached be-

cause of an unnecessary narrow reading of Wade and the Sixth

Amendment.”); Note, The Lineup’s Lament: Kirby v. Illinois, 22 De

Paul L.Rev. 660, 675 (1973) (“By drawing a line between post- and

pre-indictment lineups, the Court exalts form over substance.”);

Note, Right to Counsel at Lineups—A Pro Forma Right, 7 Suffolk

Univ.L.Rev. 587, 606 (1973) (“the reasons given by the Wade Court

for the importance of counsel’s presence at the lineup apply whether

the confrontation occurs before or after indictment.”); Pulaski, Veil

v. Biggers: The Supreme Court Dismantles The Wade Trilogy’s Due

Process Protection, 26 Stan. L. Rev. 1097, 1102 (1974). Furthermore,

several states have declined to follow Kirby and have extended the

right to counsel to pre-indictment lineups on the basis of state con-

stitutional grounds. See, People v. Bustamante, 30 Cal. 3d 88; 177

Cal. Rptr. 576; 634 P.2d 927 (1981); Blue v. State, 558 P. 2d 636, 641

(Alaska 1977); People v. Jackson, 391 Mich. 323; 217 N.W. 2d 22

(1974); Commonwealth v. Richman, 458 Pa. 167; 320 A. 2d 351

(1974).

16

Bureau of Investigation. Since Respondent was serving a

federal prison sentence for bank robbery, within a month

after the murder, the prison held a prison disciplinary

hearing at which the Respondent was found guilty of the

murder. His punishment was loss of good time sentence

credits and placement in solitary confinement. At the

hearing, however, the Respondent asked for the assist-

ance of an attorney (J.A. 32-33). Since the Respondent

was indigent, he was unable to privately retain an attor-

ney and no attorney was provided for the Respondent

until he was indicted twenty months later.

Providing an attorney for the first time at the post-

indictment arraignment was not sufficient under the facts

of this case to insure that Respondent was afforded his

constitutional right to counsel. The Ninth Circuit, in

reaching that conclusion, essentially relied upon the ear-

lier decisions of this Court. See, Powell v. Alabama, 287

U.S. 45 (1932); United States v. Wade, 388 U.S. 218

(1967); Escobedo v. Illinois, 378 U.S. 478 (1964).

From Powell v. Alabaria, supra, it is clear that the

right to assigned counsel “is not discharged by an assign-

ment at such time or under such circumstances as to

preclude the giving of effective aid in the preparation and

trial of the case.” (287 U.S., at 71) Thus, in Powell, the

defendants’ convictions were reversed because counsel

was appointed only one day before the trial in a capital

case. The right to counsel was not protected if counsel

was appointed at a time period where it was impossible to

conduct pre-trial preparation in the case. In the same

manner, by delaying the appointment of counsel in Re-

pondent’s case for twenty months, the appointment of

counsel was made in a manner which precluded effective

aid in preparation and trial of the case.

17

In United States v. Ash, 413 U.S. 300, 310 (1973), this

Court noted that the “extension of the right to counsel to

events before trial has resulted from changing patterns of

criminal procedure and investigation that have tended to

generate pre-trial events that might appropriately be

considered to be parts of the trial itself.” These pre-trial

events where the right to counsel attached were called

critical stages in the proceedings in United States v.

Wade, 388 U.S. 218 (1967). Thus, in Wade, this Court

stated:

When the Bill of Rights was adopted, there were

no organized police forces as we know them today.

The accused confronted the prosecutor and the wit-

nesses against him, and the evidence was marshal-

led, largely at the trial itself. In contrast, today’s law

enforcement machinery involves critical confronta-

tions of the accused by the prosecution at pretrial

be ey, gr the results might well settle the

accused’s and reduce the trial itself to a mere

formality. In recognition of these realities of modern

criminal prosecution, our cases have construed the

Sixth Amendment guarantee to apply to “critical”

stages of the proceedings. (388 U.S., at 224)

In United States v. Wade, supra, this Court extended

the Sixth Amendment right to counsel to a pre-trial

lineup, denominating that event as a critical stage of the

proceeding. The Court noted that a pre-trial proceeding

is a “critical stage” if “the presence of . . . counsel is

necessary to preserve the defendant’s ... right

meaningfully to cross-examine the witnesses against him

and to have effective assistance of counsel at the trial

itself.” (388 U.S., at 277)

In the Wade case, this Court focused upon two prob-

lems in extending the right to counsel: the danger that

suggestion, intentional or unconscious, will influence the

witness’ identification; and the difficulty in reconstruct-

18

ing the manner and mode of lineup identification at trial,

so that defense counsel would be unable to cross-examine

the witness on that subject. These problems led the Court

to conclude that “there can be little doubt that for Wade

the post-indictment lineup was a critical stage of the

prosecution at which he was ‘as much entitled to such aid

{of counsel]. . . as at the trial itself.’ (Powell v. Alabama,

287 U.S. 45, 57).” (388 U.S., at 236-237)"

Thus, from the Wade case, it is clear that if Respon-

dent’s right to meaningful confrontation and to the effec-

tive assistance of counsel at trial was substantially

jeopardized by a twenty month pre-indictment delay and

placement in solitary confinement, then his right to coun-

sel was violated. This is so whether the Court uses the

phrase “the right to counsel attaches” during prolonged

administrative detention or whether the Court states

that such prolonged detention “impairs the accused’s

right to meaningful confrontation and his right to the

effective assistance of counsel at trial.”

Although the Kirby decision does appear to limit the

right to counsel to the post-indictment stage, a different

rule must be applied to cases involving prison crimes,

such as occurred in this case. In Escobedo v. Illinois, 378

U.S. 478 (1964), and Miranda v. Arizona, 384 U.S. 436

u This was further explained in Justice Stewart’s concurring opin-

ion in United States v. Ash, 413 U.S. 300, 324 n.1 (1973), where it

states:

rr

” situation, nor do I understand Court re-

quired of an attorney because of the advice or

assistance he could give to his client at the lineup itself. Rather, I

had of Wade was that the right to counsel

19

(1966), this Court extended the right to counsel to the

post-arrest interrogation of an accused by the police,

even though such interrogation occurred prior to the:

indictment.

In Escobedo v. Illinois, supra, the defendant was con-

victed of murdering his brother-in-law. On the night of

the murder he was arrested and interrogated at a police

station. While at the police station he made several re-

quests to see his lawyer, who, though present in the

building, was refused access to his client. The defendant .-

was not advised by the police of his right to remain silent

and made damaging statements after repeated question-

ing by the police. The conviction was reversed by this

Court on Sixth Amendment right to counsel grounds, in

an opinion which stated: 5

We hold, therefore, that where, as here, the in-

a is no longer a general inquiry into an

unsolved crime but has begun to focus on a particular

suspect, the suspect has been taken into police cus-

tody, the police carry out a process of interrogations

that lends itself to eliciting incriminating state-

ments, the suspect has requested and been denied an

opportunity to consult with his lawyer, and the police

have not effectively warned him of his absolute con-

stitutional right to remain silent, the accused has

been denied “the Assistance of Counsel” in violation

of the Sixth Amendment to the Constitution as

“made ey upon the States by the Fourteenth

Amendment,“ Gideon v. Wainwright, 372 U.S., at

— et that no statement sane by the pete

uring the inte tion may be used against him at

a criminal trial. (378 U.S., at 490-491)

The Government has argued that Miranda and

Escobedo were not intended to vindicate the Sixth

Amendment right to counsel but rather were intended to

insure the full effectuation of the Fifth Amendment privi-

20

lege against compulsory self-incrimination, citing John-

son v. New Jersey, 384 U.S. 719 (1966) and Kirby v.

Illinois, 406 U.S. 682 (1972). However, Johnson v. New

Jersey, supra, merely decided the issue of whether

Miranda and Escobedo were retroactive, and nothing

more. Kirby v. Illinois, supra, did not overrule

Escobedo. Rather, Kirby notes that Escobedo is the one

case where the Sixth Amendment right to counsel did

attach prior to indictment. Nowhere is it ever suggested

that Escobedo should be overruled. On the contrary, this

Court has been careful to protect the accused’s Sixth

Amendment right to counsel in interrogation situations,

although admittedly recent cases have all involved post-

indictment situations. See, Estelle v. Smith, 451 U.S. 454

(1981); United States v. Henry, 447 U.S. 264 (1980). See

also, Moore v. Illinois, 434 U.S. 220 (1977)

A critical stage in the prosecution was reached in the

present case when Respondent was placed in solitary

confinement, deprived of counsel, and excluded from par-

ticipation in the investigation into the prison homicide in

which he was a suspect. Respondent’s placement into

solitary confinement was the first step in the prosecution

by the Government of its case against the Respondents

and his co-defendants. The Government’s argument that

the administrative detention of a prisoner who is a sus-

pect in a prison crime is not accusatory, is an argument

that ignores the reality of what occurred in this case. The

placement of the Respondent in solitary confinement was

not merely a security measure. If it was only a security

measure, there would have been no criminal prosecution.

Here, there was such a prosecution.

The Government argues that administrative detention

should not be viewed as a formal accusation which gener-

ates a Sixth Amendment right to counsel, because there

21

are other reasons for administrative detention. See, 28

C. F. R. 541.22(a)." However, in this case, the primary

reason Respondent was placed in administrative deten-

tion was because he was pending investigation and trial

for a criminal act. Furthermore, he remained there for

twenty months. Thus, it is under these circumstances

that the Ninth Circuit held that Respondent became an

accused entitled to a Sixth Amendment right to counsel.

Reliance upon United States v. Marion, 404 U.S. 307

(1971), a speedy trial case, by the Ninth Circuit was in the

nature of an analogy. In Marion, this Court stated that

“the Sixth Amendment speedy trial provision has no ap-

plication until the punitive defendant in some way be-

comes an ‘accused’.” (404 U.S. at 313) One may be an

accused even before he is indicted if he has been arrested

Section 541.22(a) provides, in part:

The Warden may place an inmate in administrative detention when

the inmate is in holdover status (i.e., en route to a designated institu-

tion) during transfer, or is a new commitment pending classification.

The Warden may also place an inmate in administrative detention

when the inmate’s continued presence in the general population

poses a serious threat to life, property, self, staff, other inmates or to

the security or orderly running of the institution and when the

inmate: g

(1) Is pending a hearing for a violation of Bureau regulations;

(2) Is pending an investigation of a violation of Bureau reg-

ons,

(3) Is pending investigation or trial for a criminal act;

(4) Is pending transfer;

Is terminati 8 t in discipli ti

ANI e

=>

_ we

22

and held to answer. This was made clear in United States

v. Marion, 404 U.S. 307, 320-321 (1971) when the Court

held:

So viewed, it is readily understandable that it is

either a formal indictment or information or else the

actual restraints imposed by arrest and holding to

answer a criminal a that engage the particular

protections of the s y trial provision of the Sixth

Amendment.

Invocation of the speedy trial provision thus need

not await indictment, information, or other formal

charge. But we decline to extend the reach of the

amendment to the period rior to arrest. Until this

event occurs, a citizen suffers no restraints on his

liberty and is not the subject 1 accusation: his

situation does not com with that of a defendant

who has been arrested and held to answer. (Id., at

320-321)

The analogy to Respondent’s case is simply the recogni-

tion that when the Respondent was placed in administra-

tive detention and was told at an administrative hearing

that he was guilty of murder, he became an accused. This

occurred within one week after first being placed in ad-

ministrative detention. Thereafter, when his confine-

ment in administrative detention became unreasonably

long, he was entitled under the Sixth Amendment to

either (1) a release from administrative detention, or (2)

to the appointment of counsel, or (3) to a speedy indict-

ment and prosecution on the charge of murder.

In order to avoid their Sixth Amendment obligations,

the Government argues that the placement of Respon-

.

„„

23

population, presumably because prison crimes are in-

evitably more difficult to investigate than nonprison

crimes.

The major harm, however, was the elementary unfair-

ness in allowing the FBI to thoroughly investigate and

interview potential witnesses, while at the same time, the

Government denies the Respondent a similar access to

potential witnesses, to investigate and to prepare his

defense. Once again, the time period is important. This

occurred over a twenty-month period. Placing Respon-

dent in solitary confinement without counsel removed

Respondent from access to all of the witnesses. This was a

substantial burden to be placed upon an accused inmate

who seeks only the right and opportunity to prepare his

defense.

The Government raises several reasons in order to

justify this unfairness. None of these reasons survive

close analysis. It is suggested that there is little basis in

any criminal case for supposing that suspects ordinarily

attempt their own preindictment investigations. Respon-

dent’s case, however, is different. Just nine days after

being placed in solitary confinement, Respondent was

told by prison officials at his au. ninistrative hearing that

he was guilty of murdering Thomas Trejo. Under these

circumstances, preindictment investigation by the de-

fense would certainly have occurred.

It is also suggested that Respondent could have used a

prison staff member who was available at the prison

disciplinary hearings. However, a prison staff member is

not a lawyer or a trained investigator. There is no

attorney-client privilege affording the prisoner con-

fidentiality. Rather, the staff member is an employee of

the very same prison system which seeks to prosecute

him at the disciplinary hearing. It is simply unacceptable

24

to think that a prison staff member could somehow sub-

stitute for the “guiding hand of counsel” envisioned in

Powell v. Alabama, 287 U.S. 45, 69 (1932). On the contra-

ry, several prison staff members testified as Government

witnesses during the trial because they acted as criminal

investigator: for the prosecution. For example, it was a

prison staff member who secured the crime scene. And

another staff member located the murder weapons which

had been discarded after the murder.

Equally unacceptable is the Government’s suggestion

that Respondent could have cleared himself and pre-

served the names of witnesses by providing full informa-

tion concerning his activities to the FBI. The Respon-

dent, however, had an absolute Fifth Amendment privi-

lege to remain silent rather than to submit to custodial

interrogation by the FBI. Miranda v. Arizona, 384 U.S.

436 (1966). In Miranda, this Court noted that “Custodial

interrogation. . . does not necessarily afford the innocent

an opportunity to clear themselves.” (384 U.S. at 482).

And in Escobedo v. Illinois, 378 U.S. 478, 488 (1963), this

Court quoted from an earlier decision where it was noted

that “any lawyer worth his salt will tell the suspect in no

uncertain terms to make no statement to police under any

circumstances.” (378 U.S., at 488) This Court should,

therefore, reject the argument that Respondent must

give up his Fifth Amendment right as a condition of being

afforded an opportunity to investigate and prepare his

defense.

The Government has also suggested that Respondent,

in solitary confinement, had access to the prison

grapevine in order to investigate the case, because there

was evidence of conversations between inmates in admin-

istrative detention and those in the general population

through windows or vents. However, this assumes that

25

all potential defense witnesses will somehow seek out the

Respondent and attempt to communicate with him in

violation of prison regulations.” That assumption is un-

realistic.

Lastly, the Government calls into question the legi-

timacy of any investigation conducted by an inmate-

suspect, stating that it may take the form of intimidating

witnesses and suborning perjury. In the next paragraph,

the Government suggests that the numerous deceased

and missing witnesses were simply invented by the

Respondents. While recognizing that those possibilities

The Government additionally notes that Respondent was not

placed in administrative detention until December 4, 1978, three

weeks after che murder of Trejo and there is no indication that

Respondent took advantage of this three-week period to investigate

and prepare a defense. However, prior to December 4, 1978, Respon-

dent was not accused of the murder of Thomas Trejo and would have

no reason to investigate or prepare a defense.

The Government also states that there is no need to investigate if

an inmate asserting an alibi already knows who he was with at the

time of the crime. But in this case, Respondent only knew some

inmates by nicknames and he desired to investigate whether other

persons in the gymnasium saw him there during the critical time

period, even if he did not see them.

Although defense counsel were provided with inmate rosters,

photographs of all inmates at Lompoc Prison during November of

1978 were never provided. But even more important was the fact

that the inmate rosters were two years old when examined by de-

fense counsel. By then, inmates had died or had been released from

custody, and those who were still in prison would be interviewed for

the first time by a defense representative two years after the event.

Two years later, the witnesses could not remember critical facts.

These failures of recollection inevitably decreased their value as

defense witnesses.

Zy extending the Government's logic, it could be said that in any

criminal case it is unnecessary to allow the accused an opportunity to

26

exist, it still does not justify removing the inmate-suspect

from any opportunity to conduct an investigation. That is

what occurred in this case. Indeed, the Ninth Circuit’s

remedy of appointing counsel would seem to minimize the

danger of intimidation and subornation.

Although there is presently no statutory authority for

the appointment of counsel, this should not be a factor in

determining whether the Sixth Amendment right to

counsel exists in the first instance. Indeed, the wholesale

appointment of counsel for inmate suspects in administra-

tive detention may not be the Government’s response at

all.

The case of Miranda v. Arizona, 384 U.S. 436 (1966)

did not result in the placement of lawyers at police sta-

tions for the purpose of being appointed to represent

suspects during custodial interrogation. It resulted in the

termination of all police interrogation when the suspect,

after being informed of his right to counsel, requested

counsel to be present at the interrogation.

In the same manner, the Ninth Circuit’s opinion in the

Gouveia case will not result in the placement of lawyers in

the prisons to assist the prisoners in the investigation of

their cases. It will, however, result in the Government

avoiding in the future those situations in which a prisoner

is placed in solitary confinement for twenty months prior

to indictment without the assistance of counsel during

that time.

testify in his own defense, because it would be a simple matter for him

to invent a defense. Yet this Court has stated unequivocally that

“Few rights are more fundamental than that of an accused to present

witnesses in his own defense.” Chambers v. Mississippi, 410 U.S.

284, 302 (1973)

27

Although the Ninth Circuit’s opinion in this case fo-

cuses upon the right to counsel, it also rests in part upon

the fact that the Government unnecessarily delayed

bringing the indictment in this case. During that period of

delay, the Government slowly investigated and prepared

its case, while the Respondent was kept in isolation away

from the assistance of counsel. After the passage of twen-

ty months, when counsel was finally appointed to repre-

sent the Respondent, the case was finally appointed to

represent the Respondent, the case had become so old

that Respondent’s ccnstitutional right to the

effective assistance of counsel was infringed upon. Thus,

the Ninth Circuit’s opinion is designed to prevent, in the

future, long delays in the initiation of criminal charges in

cases involving prison crimes. The ultimate effect, of

course, is to protect the accused’s right to counsel,

recognizing the fact that counsel’s effectiveness can best

be assured by his early entry into the case on behalf of the

accused.

The Dismissal Of The Indictment Was An Appropriate Remedy

In This Case For Violation Of The Sixth Amendment Right To

2 Counsel

The Government has also argued that dismissal of the

indictment was not the appropriate remedy in this case,

even assuming that a violation of the right to counsel has

occurred. The Government relies upon this Court’s re-

cent opinion in United States v. Morrison, 449 U.S. 361

(1981).

In Morrison, this Court held that dismissal of an indict-

ment because of a violation of the Sixth Amendment right

to cuunsel is not an appropriate remedy unless there is

some showing of an adverse consequence to the represen-

28

tation of the accused or to the fairness of the proceeding

leading to conviction. In Morrison, this Court found that

no prejudice occurred when the accused was visited by

Government agents in the absence of her counsel. Thus,

dismissal of the indictment was not appropriate under the

facts of the Morrison case.

However, the Court’s opinion in Morrison did not re-

ject the remedy of dismissal in the appropriate case. This

Court stated that “Our approach has thus been to identify

and then neutralize the taint by tailoring relief appropri-

ate in the circumstances to assure the defendant the

effective assistance of counsel and a fair trial.” United

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

In some cases, the appropriate remedy is to reverse the

conviction and order a new trial at which evidence

obtained in violation of the right to counsel is suppressed.

See, Massiah v. United States, 377 U.S. 201 (1964);

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

v. Blue, 384 U.S. 251 (1966). But where there is a continu-

ing prejudice which cannot be remedied by a new trial or

suppression of evidence, this Court has recognized that

dismissal of the indictment is the appropriate remedy.

United States v. Morrison, supra, at 366 n.2, citing

United States v. Marion, 404 U.S. 307, 325-326 (1971). In

the Court’s own words, what must be shown is “demon-

strable prejudice, or substantial threat thereof.” United

States v. Morrison, supra, at 365.

In the Respondent’s case, the Ninth Circuit found a

substantial threat of prejudice by the twenty-month de-

lay in providing the Respondent counsel. The Court

stated:

29

themselves at trial. Prison crimes present suspects

with unique wit aaj and evidentiary obstacles.

And, to repeat, the passage of time 2 ex-

acerbates these difficulties. The length of delay in

appointing counsel for appellants who were likewise

denied the opportunity to take measures to preserve

their own defense means that the critical initial stage

of investigation was forever lost to appellants.

United States v. Gouveia, 704 F. 2d 1116, 1125.

The Ninth Circuit also found demonstrable prejudice.

Indeed, the instant case is one where there is a continuing

prejudice that cannot be remedied by mere reversal of the

conviction or suppression of evidence. Each of the Re-

spondents were unable to locate defense witnesses be-

cause the witnesses, many known only by nicknames,

were transferred to other institutions, released from cus-

tody, or died before the Respondents were indicted and

afforded counsel. The Government’s delay in indicting the

Respondents infringed upon their right to counsel be-

cause of counsel’s inability to locate and present these

defense witnesses. Because the blame is properly placed

upon the Government for this infringement of the right to

counsel and because it affects the fairness of the proceed-

ing which led to the convictions, dismissal of the indict-

ment is the appropriate remedy in this case.

Petitioner's demand tur a more specific inquiry into

actual prejudice is misplaced in the context of this case. It

should be noted that the present case involves a situation

wherein counsel was prevented from discharging his nor-

mal ions by governmental actions. More specifically,

the Government failed to appoint counsel at a time when

could effectively discharge his normal functions.

the case of Cooper v. Fitzharris, 586 F. 2d 1325 (9th

1978), the Ninth Circuit distinguished, in the harm-

error context, those cases in which prejudice must be

30

shown in some specific fashion from those in which no

specific showing of prejudice is required when an ineffec-

tive assistance of counsel claim is made. The Ninth Cir-

cuit indicated that:

When no counsel is provided, or counsel is pre-

vented from discharging his normal functions, the

evil lies in what the attorney does not do, and is

either not readily apparent on the record, or occurs

at a time when no record is made. “Thus an inquiry

into a claim of harmless error here would require,

unlike most cases, nas bea > speculation,” [citation]

and a rule requiring that the record reflect that the

defendant was “prejudiced ... in some specific

fashion would not be susceptible to intelligent, even-

handed application.” [citation] This situation is to be

distinguished from the usual one in which a harmless

error rule is applied: “In the normal case where a

harmless error rule is be prs the error occurs at

trial and its scope is readily identifiable: According-

ly, the reviewing court can undertake with some

confidence its relatively narrow task of assessing the

likelihood that the error materially affected the de-

liberations of the jury.“ (586 F. 2d at 1332)

Thus, when the Ninth Circuit found a presumption of

prejudice in the Respondent’s case, it was merely

recognizing that under certain circumstances, a violation

of the Sixth Amendment right to counsel is prejudicial per

se. This occurs where there is no counsel provided, as in

Gideon v. Wainwright, 372 U.S. 335 (1963) or where

counsel is prevented from discharging functions vital to

effective representation of his client. See, Geders v.

United States, 425 U.S. 80 (1976) (counsel. prevented

from conferring with client during mid-trial recess);

Herring v. New York, 422 U.S. 853 (1975) (counsel not

permitted to give summation); Holloway v. Arkansas,

435 U.S. 475 (1978) (counsel had conflict of interest);

Powell v. Alabama, 387 U.S. 45 (1932) (counsel ap-

pointed too late to prepare for trial).

31

Thus, in Hamilton v. Alabama, 368 U.S. 52, 55 (1961),

this Court stated that “When one pleads to a capital

charge without benefit of counsel, we do not stop to

determine whether prejudice resulted.” And in White v.

Maryland, 373 U.S. 59, 60 (1963), this Court stated that

“the rationale of Hamilton v. Alabama, supra, does not

rest, as we shall see, on a showing of prejudice.” It was

this same type of consideration which led the Ninth Cir-

cuit to find a presumption of prejudice under the facts of

the Respondent’s case. By delaying the appointment of

counsel for almost two years, the Government prevented

counsel from discharging functions vital to the effective

representation of the Respondent.

The Government’s reliance upon United States v.

Valenzuela-Bernal, No. 81-450 (July 2, 1982) is mis-

placed. This Court’s decision in Valenzuela-Bernal was

concerned with the dismissal remedy in the context of the

Compulsory Process Clause of the Sixth Amendment and

the Due Process Clause of the Fifth Amendment. In that

case, the Government deported two of three illegal alien

material witnesses, who were passengers in a vehicle in

which the defendant had been arrested. This Court held

that absent some showing that the testimony of the miss-

ing witnesses would be both material and favorable to the

defendant, the indictment should not be dismissed.

The Valenzuela-Bernal case is distinguishable from

Respondents case on several gro The Respondent's

the Court was also especially concerned with the Govern-

ment’s vital interest in regulating immigration, a consid-

eration absent in Respondent’s case. And, finally, no

effort was made in Valenzuela-Bernal by the defendant

to explain how the deported passengers could assist him

32

in proving his innocence. In Respondent’s case, on the

other hand, the showing was made that the missing wit-

nesses were alibi witnesses who would testify that the

Respondent was at another location at the time of the

killing.

Although it is true that Respondent was able to pro-

duce some, but not all of his alibi witnesses, his failure to

produce all of such witnesses was caused by the Govern-

ment’s failure to provide counsel. And finally, as the

Ninth Circuit’s opinion points out, it is not the quantity of

defense witnesses that is important, it is their quality.

United States v. Gouveia, 704 F. 2d 1116, 1326 (9th Cir.

1983). The fact that some alibi witnesses testified does not

cure the “other prejudicial factors such as the dimming

memories of witnesses whose testimony the defense had

no opportunity to record at a time when events were fresh

and the deterioration of physical evidence.” (Id., at 1326)

Therefore, dismissal of the indictment in Respondent’s

case was the appropriate remedy.

CONCLUSION

Based upon the foregoing, Respondent urges the Court

to reverse the convictions and to order the indictment

Respectfully submitted,

JOSEPH F. WALSH

Attorney for Respondent,

Robert Ramirez