Reply Brief for the United States — United States v. Gouveia

Office - Supreme Court, U.S

FILED —

No, 83-128 MAR 9 1994

ER L. STEVAS

CLrRre

In the Supreme Court of the United States

OCTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

V.

WILLIAM GOUVEIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

Rex E. LEE

Solicitor General

Department of Justice

Washington, D.C. 205380

(202) 633-2217

TABLE OF AUTHORITIES

Cases : Page

Avery v. Alabama, 808 U.S. 444õ4444 18

Barter v. Palmigiano, 425 U.S. y 9

Chambers v. Maroney, 399 U.S. 2 20

Citizens to Preserve Overton Park, Inc. v. Volpe,

r een 5

Dillingham v. United States, 423 U.S. 64 ................ 9

Gideon v. Wainwright, 872 U.S. 388 20

Hewitt v. Helms, No. 81-688 (Feb. 22, 1983)......8, 11, 13

Hoffa v. United States, 385 U.S. 29993333 8,11

Hughes v. Rowe, 449 U.S. .....cccccccccesssceseveeeeseeeesenees 3

Kirby v. Illinois, 406 U.S. 68ũ8222 8

Meachum v. Fano, 427 U.S. 218 11

Montanye v. Haymes, 427 U.S. 23vVwm 11

Olim v. Wakinekona, No. 81-1581 (Apr. 26, 1983) 11

Powell v. Alabama, 287 U.S. 48 17

United States v. Chemical Foundation, Inc., 272

1 A 5

United States v. Lovasco, 481 U.S. 7339 8

United States v. Morrison, 449 U.S. 36111 19

United States v. Palmer, 502 F.2d 1233838 9

United States v. Valenzuela-Bernal, 458 U.S. 858.. 21, 22

Weatherford v. Bursey, 429 U.S. 54 14

Wolff v. McDonnell, 418 U.S. 59222 9, 18

Young-Buffalo v. United States, cert. denied, No.

GE-BEOS Crem. 16, TOBE) ciciceccccccheccecencserssorsccssecssess 15,17

Constitution, statutes, regulations and rules:

U.S. Const. :

Amend. V (Due Process Clause)....2, 8, 10, 11, 20, 21

l 1. 2, 8, 10, 14, 17, 18, 19, 20, 21

r d 2

r A RE a 3

28 C. F. R.:

r 4. 5

Section 541.22 (a) (6) (i) 12

. 5

eee 9

e 24

(1)

Miscellaneous :

U.S. Dep’t of Justice, Federal Prison System, /n-

stitution Supplement LOM 5270.5 (Jan. 21,

ES RI CE aye ee en ee

In the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-128

UNITED STATES OF AMERICA, PETITIONER

v.

WILLIAM GOUVEIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

In our opening brief, we showed that the court of

appeals’ holding that an indigent inmate who is seg-

regated from the general prison population for more

than 90 days pending investigation of a prison crime

must either be appointed counsel or returned to the

general prison population constitutes a radical de-

parture from this Court’s explication of the Sixth

Amendment right to counsel. Respondents and amici

offer an assortment of rationales in an effort to sup-

port the decision below. But they cannot overcome the

fact that the Sixth Amendment applies only to “crim-

inal prosecutions” and that no such prosecution was

pending prior to their indictments. Furthermore, re-

spondents’ briefs make it quite clear that the record

cannot support the court of appeals’ summary conclu-

sion that the absence of appointed counsel prior to

indictment must have deprived them of a fair trial.

1. Respondents Mills and Pierce (Br. 14-19) begin

by accusing us of distorting the record in our expla-

nation of the important security considerations that

underlie administrative detention of an inmate-suspect

(1)

during the time he is under criminal investigation.

Amicus American Civil Liberties Union (ACLU) goes

further, urging (as the basis for a due process argu-

ment) that the government used administrative de-

tention as a tactical weapon to gain an unfair ad-

vantage over respondents. See ACLU Br. 16-17, 42-

46. Those characterizations are simply wrong.“

a. Common sense alone requires the conclusion

that an inmate whom the FBI suspects of brutally

murdering another inmate is likely to constitute a

1 We note that respondents and amici attempt to color this

case by their descriptions of conditions in administrative de-

tention. See, e.g., Reynoso Br. 2-3; Mills Br. 2-3; ACLU Br.

4, 58-54 n.*. Such descriptions are irrelevant to the Sixth

Amendment issues raised by this case; at most, they might

raise issues under the Fifth or Eighth Amendments. In any

event, we note that the descriptions in the briefs are not al-

ways consistent with the record or with each other. E. g., com-

pare Mills Br. 2 (respondents were confined to three-by-five

foot cells) with Reynoso Br. 2 (respondent was confined t a

four-by-six foot cell); compare Gouveia Br. 19 (respondent

had no access to a prison library) with Pet. App. 3a (respond-

ents had access to legal materials); corapare Reynoso Br. 2

(respondent was permitted only one telephone call per month

to be made in the presence of a counselor, guard or case man-

ager) with Pet. App. 3a (respondents could make unmoni-

tored phone calls) and J.A. 62 (affidavit of William Kindig,

Supervisor of Administrative Detention Unit at Lompoc) (no

limitation on number of telephone calls that may be made by

an inmate housed in ADU; when an inmate wishes to speak

with an attorney a special attempt is made to make an un-

monitored telephone available quickly).

For the Court’s information, we are lodging with the Clerk

of the Court, and providing to respondents’ counsel, copies of

LOM 5270.5, dated January 21, 1983, a Lompoc institution

supplement on the subject of inmate discipline, which includes

information on administrative detention and disciplinary

segregation at Lompoc.

threat to the security of the institution and the safety

of other inmates and staff if permitted to remain in

the general prison population. As we noted in our

opening brief (at 27-29), concerns about “inves-

tigations” by inmate-suspects in the form of retri-

bution against possible witnesses are not hypothetical,

but are confirmed by experience. This Court in

Hewitt v. Helms, No. 81-638 (Feb. 22, 1983), recog-

nized that administrative detention of an inmate

pending a criminal investigation is not an arbitrary

measure, but instead serves significant security pur-

poses, including protection of potential witnesses and

prevention of subornation of perjury. See slip op. 12,

14-15, 16 n.9.?

2 Respondents cite Hughes v. Rowe, 449 U.S. 5 (1980), in

support of their contention that inmates under criminal in-

vestigation may not “presumptively be deemed security risks

because of the abstract possibility that they may impede the

Government’s investigation” (Mills Br. 17). But Hughes,

which involved an inmate’s action against prison officials un-

der 42 U.S.C. (Supp. V) 1983, presented a very different situ-

ation from this case. In Hughes, the petitioner had been placed

in segregation pending investigation by prison officials of his

consumption of a homemade alcoholic beverage. There was no

pending criminal investigation of petitioner’s actions (which

amounted only to a violation of prison regulation], and prison

officials did not even allege that petitioner had been placed in

segregation because of security concerns. Moreover, since

petitioner had already admitted his guilt at the time he was

placed in segregation, the Court concluded that there was no

real likelihood that he would fabricate alibis or intimidate

witnesses. 449 U.S. at 13-14 n.12. In contrast to Hughes,

respondents here were under criminal investigation for the

murder of another inmate, and they never admitted their guilt.

Thus, the security concerns underlying segregation in this

case were far more significant than those in Hughes. See also

Hewitt v. Helms, slip op. 8 (noting that Hughes was “essen-

tially a pleading case rather than an exposition of the sub-

stantive constitutional issues involved“).

4

As Bureau of Prisons regulations indicate, pend-

ency of a criminal investigation alone would not sup-

port administrative detention of an inmate-suspect;

prison officials must in addition make a specific find-

ing that the inmate poses a security threat. See 28

C.F.R. 541.22(a). In fact, security is the primary

consideration in any decision to keep an inmate in

administrative detention.* Continued administrative

detention pending a criminal investigation is used

primarily in connection with acts of physical violence,

such as murder or assault. An inmate-suspect nor-

mally would remain in the general prison population

if he were under criminal] investigation for, e.g., tax

fraud or an offense committed outside of prison.

An inmate-suspect who is transferred from the in-

stitution where a crime occurred normally would be

returned to the general prison population. As re-

spondent Gouveia notes (Br. 2, 16), he was released

to the general prison population following his trans-

fer to Leavenworth prison.

Respondents seem to suggest that the government

was required to make a factual showing that each

respondent remained a security threat throughout the

entire period of investigation. But in the case of

inmates like respondents, who were suspects in brutal

murders of other inmates, the security reasons for

continued segregation from the general prison popu-

lation ordinarily would be so self-evident to any

prison official that detailed findings would be re-

garded as unnecessary.‘ The Bureau of Prisons

* The other conditions listed in the regulations (¢.g., pend-

ency of an investigation, need for protection from other in-

mates) serve to confine use of the security rationale to those

situations in which administrative detention is needed most.

Security concerns are particularly obvious in cases like

this one, in which officials believe that prison gangs are in-

*

forms that are in the record of this case indicate

that prison authorities made express findings that the

inmates suspected of the murders posed serious

threats to other inmates and/or to the security of

the institution. See, e.g., J.A. 10, 12, 138, 139.“ Re-

spondents did not introduce comparable forms relat-

ing to the later portions of their administrative de-

tention, but it can be presumed that prison authori-

ties continued to make the findings prescribed by the

regulations. See 28 C.F.R. 541.22 (a) and (e); Citi-

zens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 415 (1971); United States v. Chemical

Foundation, Inc., 272 U.S. 1, 14-15 (1926). That pre-

sumption is confirmed by forms we have located in Bu-

reau of Prisons files, which indicate that prison offi-

cials concluded at 30-day intervals that the original

reasons for placement of respondents in administra-

tive detention continued and, in addition, that four

respondents were pending transfer while authorities

awaited vacancies in the control unit of the federal

correctional facility at Marion, Illinois (the highest

security level institution in the federal prison sys-

tem).

volved in a murder. See, e. g., Sept. 16, 1980 Tr. 9-24 (refer-

ring to Mexican Mafia affiliations of Gouveia respondents) ;

Mills Tr. 562-563 (referring to Aryan Brotherhood connection

of respondent Mills). In such cases, rival gangs may engage

in retaliation against suspects who remain in the general

prison population.

5 Respondents object (Mills Br. 15 n.10) that the findings

by prison officials were part of a preprinted form. But that

concession to administrative convenience and regularity can-

not undermine the validity of the findings. The record con-

tains no suggestion that prison officials did not make the pre-

scribed findings for a particular inmate before signing the

form.

* Because several respondents have asserted that prison

officials did not continue to find them to be security risks dur-

6

b. Amicus ACLU’s contention that the government

uses administrative detention of inmate-suspects,

combined with preindictment delay, as a tactical

weapon to gain an unfair advantage over inmate-

suspects is whe'ly without foundation in the record.

Bureau of Prisons records show that prison officials

continued to detain respondents on the basis of secu-

rity concerns associated with the criminal investiga-

tions of the murders and the pending transfers of

respondents to the Marion Control Unit. See page

5 & note 6, supra. The courts below found that

the delays in indicting both the Gouveia and Mills

respondents were not motivated by tactical concerns

on the part of the government and were at least in

part due to the tifficulties typically experienced by

the government in investigating prison crimes. The

district court in the Gouveia case concluded (J.A.

92):

I do not * * * find the delay was motivated by

an intent to gain a tactical advantage over the

defendants, any motivation by the government,

and I find no bad faith on the part of the gov-

ernment. It’s apparent from the Court’s exami-

nation of what has occurred that there were a

large number of witnesses to be interviewed,

and certainly a correctional setting can compli-

cate in many ways such an investigation.

The court of appeals panel that decided the first ap-

peal in the Mills case likewise concluded (Pet. App.

38a n.2): “There was no evidence of intentional gov-

ing their detention (see Segura Br. 18; Mills Br. 3 n.4, 14-15),

and because the ACLU suggests that the government con-

tinued to hold respondents in administrative detention for

tactical reasons, we are lodging with the Court copies of the

80-day review formas we have been able to locate in Bureau of

Prisons files. We are providing copies of each respondent’s

forms to his counsel.

7

ernment delay. The investigation was ongoing until

defendants were indicted.”*" As this Court has

held, there is no constitutional requirement that pros-

ecutors cease their investigations as soon as they

gather the minimum amount of evidence that would

These findings are fully supported by the record. In both

cases the government was required to interview scores of wit-

nesses and to make special arrangements for the safety of

inmates who expressed a willingness to cooperate. In the

Gouveia case Assistant United States Attorney Bert Deixler

and FBI agent James Wilkins submitted affidavits explaining

the steps taken from the time of the murder in November 1978

to the indictment in June 1980; Deixler provided further ex-

planation during the hearing on the motions to dismiss the

indictment. Among the difficulties they outlined were the need

to interview over 100 individuals, delays in analyzing the

large amount of physical evidence, the discovery in the fall of

1979 that it would be necessary to obtain prints of the sides

of respondents’ hands and scheduling of grand jury appear-

ances for this purpose, the need to double check the accounts

of potential grand jury inmate-witnesses to make sure they

were truthful, the need to make arrangements for potential

government witnesses to enter the witness protection pro-

gram, and lack of evidence establishing respondent Segura’s

participation in the murder until February 1980. See J.A.

50-52 (Wilkins affidavit) ; C.R. No. 62, at 18-20 (Deixler affi-

davit) ; Sept. 8, 1980 Tr. 124-131.

In the Mills case Assistant United States Attorney Richard

Drooyan and FBI agent Thomas Mansfield submitted affi-

davits describing the investigation. They explained that from

August 1979 (when the murder occurred) to March 1980

(when the indictment was handed down) FBI investigators

interviewed over 100 individuals, that the grand jury heard

testimony from inmate-witnesses in October and November

1979 and in March 1980, that arrangements had to be made

to transfer those witnesses to other prisons for security rea-

sons, that FBI laboratory reports had been received in Novem-

ber and December 1979 and in February 1980, that the FBI

report was completed in March 1980 and was over 200 pages

long, and that two witnesses did not provide key evidence

until March 1980. J. A. 140-146.

8

support an indictment. Rather, they may, inter alia,

continue to gather evidence that would support a find-

ing of guilt beyond a reasonable doubt. See, e.g.,

United States v. Lovasco, 431 U.S. 783, 790-795

(1977); Hoffa v. United States, 385 U.S. 293, 310

(1966). In the prison setting, investigations are

complicated by the additional problem of making se-

curity arrangements (often involving transfers to

distant institutions) for inmates who indicate a will-

ingness to cooperate if the government will take steps

to ensure their safety.

2. As we explained in our opening brief (at 19-

22), this Court has held consistently (and for sound

reasons) that the Sixth Amendment right to counsel

attaches “only at or after the time that adversary

judicial proceedings have been initiated against” a

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

(plurality opinion). While respondents and amici do

not point to any adversary judicial proceeding that

was initiated prior to the indictments in this case,

they attempt to characterize respondents’ administra-

tive detention in ways that suggest it should trigger

® Assuming arguendo that in some cases prison officials

might impose administrative detention pending a criminal in-

vestigation without a valid reason, an inmate-suspect pre-

sumably could apply to a district court for an order returning

him to the general prison population. The district court in the

Gouveia case specifically found that during the time respond-

ents were in administrative detention they had “the right to

telephone, write, and the right to file complaints and peti-

tions.” Sept. 8, 1980 Tr. 138.

Of course, any claim based on alleged misconduct by the

government in segregating an inmate-suspect without a valid

reason or delaying an indictment for tactical reasons would be

based on the Due Process Clause of the Fifth Amendment,

rather than on the Sixth Amendment right to counsel.

9

the Sixth Amendment right to counsel. These at-

tempts are unsuccessful.

Respondents Mills and Pierce suggest (e.g., Br. 12)

that during the time they were in administrative de-

tention, they were being held “to answer impending

criminal charges.” But despite the similarity in

sound, a possible “impending” charge is not the same

as an actual “pending” charge. During the time re-

spondents were in administrative detention there

were no criminal charges against them and thus noth-

ing for them to “answer’”.® Of course, it is clear that

the pendency of administrative charges at the initial

stage of their detention did not entitle respondents to

appointment of counsel. See Baxter v. Palmigiano,

425 U.S. 308, 314-315 (1976); Wolff v. McDonnell,

418 U.S. 539, 569-570 (1974).*

o Respondents misuse the term “holding to answer,” which

has a specific meaning in the area of criminal procedure. Fed.

R. Crim. P. 5.1(a), which relates to the probable cause finding

made by a magistrate, provides that “[i]f from the evidence

it appears that there is probable cause to believe that an of-

fense has been committed and that the defendant committed

it, the federal magistrate shall forthwith hold him to answer

in district court.” There was, of course, no proceeding in

which any of the respondents was “held to answer” by a magis-

trate prior to the time of the indictments in this case.

10 Mills and Pierce also suggest (Br. 13 n.7) that arrest

alone (as opposed to arrest and holding to answer a criminal

charge) is enough to constitute an “accusation” for speedy

trial purposes, citing Dillingham v. United States, 423 U.S.

64 (1975). See also ACLU Br. 22. But the petitioner in

Dillingham in fact was held to answer a criminal charge.

After his arrest in April 1970 and the filing of a criminal com-

plaint, Dillingham was bound over to the grand jury by a

magistrate, who set bail following waiver of a preliminary

hearing. In May 1970 Dillingham was released on a $1,500

bond, and in February 1972 he was indicted with 15 other

defendants. See United States v. Palmer, 502 F.2d 1233, 1234

(5th Cir. 1974). Because formal criminal charges had been

10

Amicus ACLU suggests (Br. 14-33) that the Sixth

Amendment right to counsel should be triggered by

“arrest and significant detention.” Of course, segre-

gation from the general prison population for admin-

istrative purposes does not constitute an “arrest,” and

continuation of segregation does not amount to “sig-

nificant detention” in the case of inmates who other-

wise are being “detained” in prison on a long term

basis as a result of sentences for previously committed

crimes. Like the court of appeals and respondents,

the ACLU stresses that outside prison a suspect who

is arrested following a crime and brought before a

magistrate would be entitled to appointment of coun-

sel. The ACLU suggests that the rules of criminal

procedure do not operate in the normal manner in the

prison setting, since the government has no need to

arrest a suspect who is already in prison. In the

ACLU’s view, additional constitutional protection is

needed so that the government could not delay indefi-

nitely making an accusation, thereby postponing the

occasion for appointment of counsel.

The ACLU’s reasoning stands the matter on its

head by ignoring the reasons why civilian arrestees

are charged and obtain the appointment of counsel.

Except in cases in which counsel is appointed for a

particular judicial proceeding (such as a preliminary

hearing), preindictment appointment of counsel is

really an indirect consequence of the operation of the

Due Process Clause, rather than a result of any pol-

icy underlying the Sixth Amendment counsel require-

ment. A suspect who is not a convicted prisoner may

brought against Dillingham by arrest and filing of a criminal

complaint, which remained pending against him, the United

States conceded in the Supreme Court that the period be-

tween his arrest and indictment should be included in deter-

mining whether he had been deprived of his right to a speedy

trial. See 74-6738 U.S. Memo. in Opp. at 4-7 (1975 Term).

11

not have his liberty restricted (either by pretrial in-

carceration or by bail conditions) except as a result

of the pendency of judicial criminal proceedings; to

impose such restraints on the basis of nothing more

than a criminal investigation would violate the in-

dividual’s due process liberty rights. The judicial

proceedings required by the Due Process Clause in

such cases coincidentally trigger appointment of coun-

sel. But if a suspect has already been deprived of his

right to liberty by virtue of a prior conviction and

sentence of incarceration,” there is simply no need to

arrest him or charge him with a crime before the

government and the grand jury have determined that

there should be a prosecution.

The ACLU’s claim amounts to the contention that

prosecutors should have initiated adversary judicial

proceedings at an earlier point, so that respondents

would have been entitled to appointment of counsel.

But “[t]here is no constitutional right to be arrested”

in order that the right of counsel may attach earlier

than it otherwise would. Hoffa v. United States, 385

U.S. at 310. Appointment of counsel is not an end in

itself, but rather a right that attaches when other

events—i.e., those that accompany the initiation of

adversary judicial proceedings—create a special need

for counsel. If those events do not take place prior to

indictment (as they did not in this case), the Con-

11 This Court has held that an inmate has no constitutionally

protected liberty interest in remaining in the general prison

population, at least in the absence of mandatory standards

governing removal from the general population. See Hewitt

v. Helms, slip op. 5-11. Nor does an inmate have any liberty

interest in avoiding transfer to another institution. See Olim

v. Wakinekona, No. 81-1581 (Apr. 26, 1983), slip op. 10-11;

Montanye v. Haymes, 427 U.S. 236, 242 (1976) ; Meachum v.

Fano, 427 U.S. 215, 223-225 (1976).

12

stitution does not require preindictment appointment

of counsel.

Respondent Reynoso errs in contending (Br. 23-27)

that the government had committed itself to prosecute

long before the indictments in these cases. Respond-

ents themselves insist that these were close cases. See,

e.g., Mills Br. 4-6. Steven Kinard, the key prosecu-

tion witness in the Gouveia case, did not agree to

testify for the government until the eve of the first

trial; even with Kinard’s testimony, the first trial

resulted in acquittal of co-defendant Flores and a mis-

trial as to the murder charges against respondents.

The government’s affidavits indicate that it was still

interviewing witnesses and receiving FBI laboratory

reports in 1980 (see note 7, supra), and that until

February 1980 the government did not have evidence

that would support indictment of respondent Segura

(see J.A. 52; Sept. 8, 1980, Tr. 124-125, 130). In the

Mills case Assistant United States Attorney Drooyan

stated in his affidavit that he did not decide to present

the matter to the grand jury for indictment until he

had received new evidence from inmates Cook and

Medina in March 1980 (J.A. 140-141).”

3. In apparent recognition that this Court’s prece-

dents do not support their right to counsel claims, re-

12 Respondents Mills and Pierce (Br. 3) and amicus ACLU

(Br. 3-4, 42-48, 45-46) incorrectly state that prison officials

invoked a provision of the regulations relating to “pretrial

inmates,” 28 C.F.R. 541.22(a) (6) (i), as the ground for con-

tinuing to hold respondents in administrative detention. The

Bureau of Prisons considers “pretrial inmates” to be those

who are under indictment and who are awaiting trial (as were

the Gouveia respondents during the time they were housed in

the Los Angeles County Jail, see U.S. Br. 4 n.3). Since re-

spondents were serving sentences for other crimes and had

not been indicted on new charges during the time they were in

administrative detention at Lompoc, they were not “pretrial

inmates.”

13

spondents and amici contend that it is appropriate to

disregard some of those precedents in prison cases.

See, e.g., Ramirez Br. 18-19; Segura Br. 14-16; Mills

Br. 28-38; National Legal Aid and Defender Associa-

tion (NLADA) Br. 25-36. There is no question that

the prison setting has special characteristics and that

the scope of respondents’ rights must be defined in

light of those characteristics. But in general, consti-

tutional rights are more, rather than less, limited in

the prison setting. See, e.g., Hewitt v. Helms, slip op.

5-7; Wolff v. McDonnell, 418 U.S. at 561-563. In any

event, the purported distinctions between prison and

nonprison settings identified by respondents and amici

do not suggest that inmate-suspects should be con-

stitutionally entitled to appointment of counsel at an

earlier stage than other suspects.

Respondents object that the failure to appoint coun-

sel during the period an inmate-suspect is in admin-

istrative detention gives the government an unfair

advantage in investigating and preparing its case and

that the government’s “head start” in prison cases

creates an inequity of constitutional proportions. See,

e.g., Gouveia Br. 12-17; Segura Br. 20-21; Ramirez

Br. 23. But in many cases, both inside and outside

prison, the government has the initial opportunity to

investigate and, at least in some instances, to preclude

others from investigating for some period of time.

For example, government authorities often secure the

scene of a crime, with the result that defendants and

defense counsel are denied access to it until long after

the crime has occurred. Of course, the government

has no duty to inform any individual that he is a

suspect or to keep him advised about the course of an

investigation. Grand jury proceedings are conducted

in secrecy, and an individual may never learn that he

is a target until an indictment is handed down. See

Pet. App. 26a. In addition, there is no general con-

14

stitutional right to discovery of the prosecution’s evi-

dence in a criminal case and no constitutional re-

quirement that the prosecution reveal before trial the

names of witnesses who will testify unfavorably to

the defense. See Weatherford v. Bursey, 429 U.S.

545, 559-561 (1977). This Court has never suggested

that the resulting “head start” by the government

poses constitutional problems.”

Respondents Mills and Pierce devote particular at-

tention (Br. 29-35) to the difficulties defense counsel

face in investigating prison crimes. They point first

to the shifting composition of the prison population

and the difficulty of tracing inmates who have been

transferred or released (id. at 30-31). As we pointed

out in our opening brief (at 35-36, 42-43), prison

inmates may be considerably less transient and more

susceptible to identification than witnesses to some

nonprison crimes because of the controlled conditions

in prisons and availability of inmate records.“ Sev-

13 Respondents Mills and Pierce complain (Br. 40-41, 44)

in particular that they were disadvantaged because inmates

who were interviewed first by FBI investigators allegedly

fabricated accounts of their activities on the day of the mur-

der. When defense counsel eventually interviewed them, those

inmates were reluctant to testify for the defense because of

their prior inconsistent statements. The willingness of in-

mates to make false statements to authorities can hardly con-

stitute a ground for concluding that a Sixth Amendment right

to counsel exists at the preindictment stage. In any event,

even if counsel had been appointed for respondents after they

had been held in administrative detention for 90 days, as the

court of appeals required, respondents presumably could not

have prevented FBI investigators from being the first to in-

terview any potential inmate-witness.

Because Lompoc is a high security level institution, the

average length of sentence of inmates there is quite long.

Thus, it is likely that most inmates who might have witnessed

15

eral respondents suggest that prison records and loca-

tor systems proved inadequate in this case. See, e. g.,

Mills Br. 21; Ramirez Br. 25 n.13; Gouveia Br. 16.

But if that is so, it is difficult to explain how respond-

ents managed to locate so many inmate-witnesses.

The defense in the Mills case presented 23 inmate-

witnesses, while the defense in the Gouveia case pre-

sented 19 such witnesses.” While prison records may

not be perfect in every respect, courts cannot ignore

the possibility that a defendant will often be able to

use such records to track down alleged missing wit-

nesses.”

a crime at Lompoc would still be in the federal prison system

at the time of indictment.

Problems with inmate records did not necessarily prevent

respondents from eventually locating witnesses. Respondent

Gouveia complains (Br. 16) that there was no record of an

inmate named Macias on the roster for M unit that was pro-

vided to him. However, Macias himself testified at trial. See

pages 25-26, infra.

16 As we noted in our opening brief (at 36-39), there are

other ways in which an inmate himself can ensure that there

is a record of information that he may eventually need for his

defense. Respondents and amici object that the alternatives

we suggest are impractical and would require inmates to in-

criminate themselves. See, e. g., Mills Br. 36-37; Ramirez Br.

23-25; ACLU Br. 28-29. Those objections are misguided. We

do not, for instance, suggest that inmates are required to

speak to FBI investigators or staff representatives. We

merely point out that an inmate who wishes to preserve a rec-

ord of witnesses or his account of his whereabouts on the day

of a crime could avail himself of these opportunities for doing

so, and that it is reasonable to anticipate that many errone-

ously suspected inmates would do so. At least some Lompoc

inmates do use staff representatives, See our Brief in Op-

position in Young-Buffalo v. United States, cert. denied, No.

83-5505 (Jan. 16, 1984), b. 7 note, describing the peti-

tioner’s offer of a statement through his staff representative

(a physician’s assistant) at the Lompoc disciplinary hearing.

A court should at least consider the possibility that an inmate

16

Respondents Mills and Pierce next stress (Br. 31-

37) the problems created by the special value system

of prison inmates, including a code of noninvolvement

and noncooperation and an inclination to make un-

truthful statements to authorities. But it is these

very factors that make it particularly difficult for

the government to conduct investigation of prison

crimes and to gather sufficient evidence to warrant

initiation of a prosecution. FBI investigators in these

cases interviewed scores of witnesses in an effort to

obtain reliable evidence concerning who was responsi-

ble for the murders. See note 7, supra. Respondents

allege (Mills Br. 44) that many of these witnesses

lied to FBI investigators, but gave truthful state-

ments to defense counsel at a later time. Assuming it

was the initial statements (rather than the later tes-

timony) that were false, this would merely illustrate

the special difficulties the government encounters in

uncovering the true version of events surrounding a

prison crime.

Respondents’ vivid descriptions of the difficulties

faced by authorities in obtaining cooperation and

truthful statements from inmates tend to disprove

their contentions (see pages 13-14, supra) that there

did use, or could have used, available means of investigating

or preserving evidence.

Respondent Gouveia takes issue (Br. 2) with the state

ments in our opening brief (at 3, 39 n.29) that he was re-

leased to the general prison population between November 22

and December 4, 1978, and thus could have engaged in inves-

tigation or otherwise preserved evidence. The affidavit of FBI

agent Wilkins (J.A. 50) supports our statements. However,

Gouveia’s own affidavit (see J.A. 44-45) does not mention any

release to the general prison population during this period.

Records we have obtained from the Bureau of Prisons appear

to confirm Gouveia’s statement that he was not released to the

general prison population until he was transferred to Leaven-

worth at the end of February 1979.

17

is some great imbalance between the investigative

ability of the government, on the one hand, and that

of inmate-suspects, on the other. While the govern-

ment may have access to evidence at an earlier stage

than defense counsel, the government is likely to have

more difficulty in obtaining cooperation and truthful

statements.“ And, of course, as we noted in our open-

ing brief (at 43), the inmate-suspect always has the

ultimate advantage in a later criminal proceeding—

the prosecution’s burden of proving guilt beyond a

reasonable doubt.

4. Respondents and amici cite in support of their

position cases such as Powell v. Alabama, 287 U.S. 45

(1932), in which this Court has recognized that one

of the functions of counsel is to assist in preparation

of a defense. See, e.g., Ramirez Br. 16; Reynoso Br.

29; Mills Br. 25-27; NLADA Br. 32. But those cases

refer to preparation of a defense in the period follow-

ing initiation of adversary judicial proceedings. Of

course, if counsel were appointed on the day of trial

of a serious felony charge, as was the case in Powell,

a court would ordinarily conclude that a defendant

had been deprived of the Sixth Amendment right to

counsel. There is no contention in this case, however,

that respondents’ counsel had inadequate time in

which to prepare a defense. Counsel for the Gouveia

respondents were appointed on July 14, 1980; the first

trial began on September 16, 1980, and the retrial

began on February 17, 1981. See J.A. 1-2. Counsel

for the Mills respondents were appointed on April 21,

1980; trial did not begin until January 1982, follow-

ing grant of respondents’ motion to dismiss the indict-

* See, e. g., Young-Buffalo v. United States, supra, involving

a brutal murder of a fellow-inmate at Lompoc. Although ap-

proximately 100 inmates saw the petitioner smash the skull of

the victim and nearly decapitate him, no inmate testified

against petitioner at trial (83-6606 U.S. Br. in Opp. at 2).

18

ment and reversal on an interlocutory appeal. See

J.A. 120. Thus, counsel in both cases had many

months (close to two years in the Mills case) in which

to investigate and prepare for trial. Respondents do

not suggest that they lacked sufficient time to pursue

all significant leads or that they would have taken

any additional steps if they had had more time. Re-

view of the extensive trial transcripts in these cases

leaves no doubt that each respondent presented sub-

stantial evidence in support of his defense and was

vigorously represented and that appointment of coun-

sel could not have been further from the “ ‘sham’ ”

referred to at NLADA Br, 35-36 (quoting Avery v.

Alabama, 308 U.S. 444, 446 (1940) ).

Respondents contend, however, that they could have

prepared better defenses if their counsel had begun

investigations prior to the date the indictments were

handed down. As an initial matter, we doubt very

much that most appointed counsel conduct any exten-

sive investigation during the preindictment stage,

since discovery of the government’s case is not avail-

able until after indictment. Thus, until counsel learns

the time the government believes the crime occurred,

he cannot search for alibi witnesses; and until he re-

ceives copies of the government’s laboratory reports

he cannot know what physical evidence may be avail-

able for analysis. But even assuming preindictment

investigation would have allowed respondents to pre-

pare better defenses, the same presumably would be

so in many nonprison cases. In many instances it

might be argued that an earlier indictment, a longer

period for investigation, or various types of assistance

from the government would have permitted a defend-

ant to prepare a stronger case. But the Constitution

does not require a perfect investigation. To the ex-

tent the Sixth Amendment right to counsel encom-

passes a reasonable opportunity to prepare a defense,

19

that opportunity is afforded when counsel is appointed

at the initiation of adversary judicial proceedings and

is given ample time prior to trial to prepare a de-

fense.“

5. Respondents and amici raise various objections

to our contention that, assuming arguendo there was

a violation of the Sixth Amendment right to counsel

in this case, the court of appeals failed to require the

sort of specific showing of prejudice that would jus-

tify dismissal of the indictments. Respondents Mills

and Pierce contend (Br. 46-50) that we are urging a

departure from the standard set out by this Court in

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

in fact we rely on Morrison. Our point is that the

Court’s decision in this case surely requires more than

either a presumption or the sort of conclusionary find-

ing of prejudice on which the court of appeals pur-

ported to rely in this case. Morrison does leave room

for a showing that violation of the Sixth Amendment

right to counsel creates a “substantial threat” of prej-

udice. See 449 U.S. at 365. But the Court in Morri-

son also stressed the extraordinary nature of the rem-

edy of dismissal of the indictment (ibid.). It seems

clear that, in a case in which it is urged that the court

should dismiss with prejudice indictments for brutal

18 Respondents and amicus ACLU also cite this Court’s prec-

edents for the proposition that counsel must be appointed for

any “critical stage.” They contend that investigation is “criti-

cal” and that respondents were therefore entitled to appoint-

ment of counsel prior to indictment to aid them in investigat-

ing the murders. See, e. g., Segura Br. 17-22; Ramirez Br. 17-

20; Mills Br. 25-26; ACLU Br. 24-27. But, as amicus NLADA

acknowledges (Br. 24-25), it is the “critical stage” of a

prosecution that triggers the Sixth Amendment right to coun-

sel under this Court’s precedents. Until the indictments in

this case, there was no prosecution and thus no “critical

stage.”

murders, a “substantial threat” of prejudice must

amount to more than speculation that, e.g., a few un-

identified missing witnesses might have testified in a

anner that would have bolstered a defendant’s ver-

„ of the facts.

ndents criticize us for contending that they

must show some sort of actual (rather than hypothet-

ical) prejudice in order to justify dismissal of the

indictment in a right to counsel case. They maintain

that courts should apply a less stringent standard for

evaluating prejudice in Sixth Amendment cases, as

opposed to Fifth Amendment cases. See, e.g., Mills

Br. 47-50. It is true that in some Sixth Amendment

cases this Court has been willing to presume prej-

udice. For example, in Gideon v. Wainwright, 372

U.S. 335 (1963), the Court ordered a new trial for a

defendant who had been unrepresented at trial with-

out inquiring into whether he had been prejudiced by

the lack of counsel. But the absence of counsel at

trial goes to the heart of the Sixth Amendment right;

moreover, the remedy of a new trial is far less drastic

than dismissal of the indictment. Here, in contrast,

assuming the failure to appoint counsel prior to ini-

tiation of adversary judicial proceedings falls within

the Sixth Amendment right, it is surely at its fringes;

and dismissal of the indictment is an extraordinary

remedy. In such circumstances, it is clearly appro-

priate to require some showing of how the failure to

appoint counsel in the preindictment period affected

the defendant’s ability to have a fair trial. Compare,

e.g., Chambers v. Maroney, 399 U.S. 42, 53-54

(1970).

Mills and Pierce urge that it is inappropriate to

analyze the allegations of prejudice in this case in

the same manner as claims of prejudice from pre-

indictment delay. Presumably they take this position

because they realize that they are unable to meet the

21

standard established by the preindictment delay

cases.” But it seems entirely reasonable to apply

that analysis to this case, since the types of harm

alleged and the remedy sought in the two types of

cases are quite similar.

Amicus ACLU contends (Br. 46-53) that the ap-

propriate standard for measuring prejudice in this

case is a “relaxed” standard, modeled on that set out

in United States v. Valenzuela-Bernal, 458 U.S. 858

(1982). We disagree.

In Valenzuela-Bernal the Court considered a claim

that the government’s deportation of aliens who were

witnesses to the crime deprived the defendant of his

Sixth Amendment right to compulsory process and

his Fifth Amendment right to due process. The Court

concluded that respondent could not establish a viola-

tion of either the Fifth Amendment or the Sixth

Amendment merely by showing that deportation had

deprived him of the testimony of the aliens; rather,

he was required at least to make some plausible show-

ing of how their testimony would have been material

and favorable to his defense. 458 U.S. at 867-872.

The Court also held that sanctions may not be im-

posed on the government for deporting witnesses un-

less a defendant “makes a plausible showing that the

testimony of the deported witnesses would have been

material and favorable to his defense, in ways not

merely cumulative to the testimony of available wit-

nesses.” Id. at 872-874.

We question the extent to which Valenzuela-Bernal

should be characterized as generally having estab-

lished a “relaxed” standard for proof of prejudice.

That characterization appears to arise from the

% Mills and Pierce abandoned their due process claims

based on preindictment delay in their most recent appeal. See

their court of appeals’ brief in Nos. 82-1206 and 82-1278.

22

Court’s suggestion (458 U.S. at 870) that defense

counsel’s inability to interview deported aliens be-

cause they are beyond the reach of the court’s process

“may well support a relaxation of the specificity re-

quired in showing materiality.” The Court explained

(ibid.) that such a situation nevertheless would not

afford the basis “for wholly dispensing with such a

showing.” But in any event it would be inappropriate

to apply any “relaxed” standard in this case, which

differs in important respects from Valenzuela-Bernal.

In the latter case there was no dispute that the de-

ported aliens existed, that they were percipient wit-

nesses, and that the government was aware of that

fact when it deported them. Here there is no firm

evidence that most of the alleged missing witnesses

actually existed or that they would have been able to

provide useful testimony. If the government released

or transferred such individuals, it presumably did not

do so in the knowledge that they were likely to be

potentially important defense witnesses. Finally, re-

lease or transfer of inmates normally would not place

them beyond the reach of the court’s process. In view

of the significant potential for fabrication of fictitious

missing witnesses in cases like this one, a high stand-

ard for showing of prejudice is particularly appro-

priate.

6. In response to our contention that the court of

appeals failed to require an adequate showing of prej-

udice to support dismissal of the indictments, re-

spondents continue to offer sweeping generalizations

about missing witnesses and faded memories. See,

e.g., Ramirez Br. 29, 32; Segura Br. 26-27; Mills Br.

40-41. Respondents do not dispute that they were

able to produce large numbers of defense witnesses,

nor do they suggest that there is any key point made

23

tirely unable to counter because of an inability to

investigate thoroughly.

Several respondents offer more specific allegations

of prejudice. But even these are insufficient to estab-

lish that they failed to receive a fair trial and that

dismissal of the indictments was required.

Respondent Reynoso contends (Br. 3, 5-6, 9, 13-

14, 17) that he was unable to locate two witnesses,

an inmate named “Sam” and a black prison guard,

who could corroborate his statement to the FBI (J.A.

23) that between 2:00 and 3:00 p.m. on the day of

the murder he was exercising and playing shuffle-

board in the prison gymnasium.” He suggests (Br.

6 n.3) that the missing testimony would have served

to impeach a witness, Gene Newby, who testified to

having seen him with other respondents disposing of

bloody clething in the early afternoon on the day of

the murder. In fact, Newby testified to having seen

respondents shortly after noon (Tr. 1011, 1160). A

pathologist testified that Trejo’s death occurred be-

tween 12:00 and 1:00 p.m. (Tr. 160-164), and two

alibi witnesses testified that between 10:00 a.m. and

1:10 p.m. Reynoso was watching a football game

(Tr. 1415-1420, 1520-1525). The testimony of the

two alleged missing witnesses about Reynoso’s activi-

ties later in the afternoon would have been of little

incremental benefit to his alibi defense.

Reynoso also maintains (Br. 17) that he was prej-

udiced because he was unable to call as a witness, or

2° Contrary to his present claim (Br. 13), Reynoso knew the

name of the prison guard who allegedly saw him at the gym-

nasium. See J.A. 15. Reynoso stated in his pretrial affidavit

that he learned after the murder that the guard was no longer

employed at Lompoc (ibid.). The record does not appear to

indicate that Reynoro attempted, through the Bureau of

Prisons or by other means, to ascertain the cuard’s where-

abouts. See, ¢.g., id. at 21-22.

24

to obtain the statement of, inmate Michael Thompson,

who was alleged by the Gouveia respondents to have

admitted committing the murder of Trejo and who

died prior to trial. Of course, Thompson’s death and

the resulting inability of the defense to call him as a

witness were not the result of failure to appoint coun-

sel prior to indictment, but rather the consequence of

the passage of time between the murder and the trial.

Moreover, Reynoso’s claim that Thompson would have

incriminated himself had he been available to testify

is sheer speculation. Nor is there any reason to be-

lieve Thompson would have admitted to the murder

and exonerated respondents if he had been inter-

viewed by defense counsel prior to his death.“

Both Reynoso (Br. 16) and Gouveia (Br. 19-20)

contend that they were prejudiced by the inability of

defense witnesses to recall crucial events that took

place during the period when the murder was com-

mitted. In support of that contention, they rely pri-

marily on testimony at the first trial, which was

aborted when the jury was unable to reach a verdict.

However, many of the defense witnesses who were

unable to recall events during the first trial suddenly

regained their recollections of those events during the

second trial. For example, Reynoso and Gouveia cite

inmate Estrada’s inability to recall either the date of

the murder or a conversation he had with Michael

Thompson on that day concerning the disposal of some

21 Even if Thompson had given such a statement, it is

doubtful whether it would have been admissible. Fed. R.

Evid. 804 (b) (3) excludes exculpatory hearsay statements

25

knives Thompson allegedly was carrying. See J.A.

114-117. However, when called as a defense witness

during the retrial, Estrada had no difficulty recalling

the date of the crime or the fact that at approxi-

mately 1:00 p.m. Thompson had asked him if he

“wanted to take [some] pieces“ (i.e., knives) to an-

other prisoner. Tr. 1843-1845, 1854-1857.”

Gouveia claims (Br. 21-22) that his attorney’s in-

ability to locate and interview those inmates who

lived in “M” Unit on the date of the murder prevented

him from demonstrating that pieces of paper and a

magazine bearing unidentified fingerprints, which

were found in the cell where the murder occurred,

had been placed there at some earlier point. Gouveia

maintains that such evidence would have dispelled the

adverse inference created by evidence that a piece of

paper found in the cell contained his prints and those

of Segura. However, Gouveia apparently accom-

22 Reynoso also notes (Br. 16) inmate Olvera’s inability dur-

ing the first trial to recall with precision the time when he

saw Gouveia on the day of the murder (J.A. 98-102). During

the retrial, however, Olvera testified without equivocation

that on the dey in question he saw Gouveia in the corridor

leading to the auditorium between 12:00 and 12:30 p.m. (Tr.

1680-1681, 1727, 1740). Gouveia complains (Br. 24) that

inmate Allen testified that on the day of the murder he saw

Gouveia in the K Unit” of the prison sometime between

11:00 a.m. and 1:00 p.m. and that the inexactitude of this

testimony seriously compromised Allen’s value as an alibi

witness. The cited testimony occurred at the first trial. See

J.A. 106-107. During the retrial, Allen testified that he saw

Gouveia between 11:00 and 11:15 am. while Allen waited to

use the telephone (Tr. 1549-1550). Both Reynoso (Br. 16)

and Gouveia (Br. 23 n.10, 24) cite the inability of inmate

Broughton to recall at the first trial the time he was eating

brunch with Gouveia (see J.A. 102-104). Broughton did not

testify during the retrial.

n We note that in the courts below Gouveia did not allege

that he had been prejudiced by his inability to locate inmates

26

plished the same result through the testimony of in-

mate Macias, the occupant of the cell, and through

cross-examination of the fingerprint analyst. Macias

testified that he had obtained the magazine from a

friend and that he had obtained writing paper from

a source within the unit (Tr. 840-842). During cross-

examination by Gouveia’s attorney, the fingerprint

analyst acknowledged that none of over 70 unidenti-

fied prints found on various items in the cell matched

those of the suspects, that Gouveia’s prints were be-

neath some blood stains, and that there was no way of

determining when or how Gouveia’s prints were

placed on the piece of paper (id. at 462-467).

Respondents Mills and Pierce contend (Br. 43-44)

that they were unable to locate witnesses who could

testify that months before the murder other inmates

had “embarked on a campaign to rid the prison of

[the victim] Mr. Hall,” which led to the firebombing

of his cell, so that they were “wholly foreclosed” from

offering “powerful exculpatory evidence” showing

that those inmates themselves had reason to commit

the murder. Respondents did not cite this point below

as a basis for their contention that the indictment

should be dismissed.“ In any event, respondents were

not foreclosed from presenting evidence that other

inmates had reason to kill Hall. A prison official testi-

fied that four months before Hall’s murder, his cell

C.A. Reply Br. 4-11.

See, e. g., JA. 149-155; Mills C.R. 59, at 16-19, 23-24;

Mills C.R. 73, at 6-9; 80-1540 Mills Br. 23-28; 80-1540 Pierce

Pierce’s attorney indicates that he did find witnesses who

knew about threats to Hall, but that at that time they were

unwilling to cooperate for various reasons (J. A. 150, 153-

27

was set on fire and he was placed in protective cus-

tody at his own request (Mills Tr. 1088-1093). A fel-

low inmate testified that Hall had a reputation as an

informant, was engaged in gambling and drug trans-

actions, paid protection money to another prisoner,

and, long before the murder, made statements ex-

pressing fear for his life (id. at 1106-1109). Another

inmate testified that, on the day before the murder,

he overheard a conversation between Hall and re-

spondent Mills during which Hall stated that several

other inmates were pressuring him to repay a debt of

several thousand dollars (id. at 1338-1339). On the

basis of this evidence, respondents were able to argue

during summation that, well before Hall was mur-

dered, he was in “serious trouble” with other inmates

(id. at 1655-1657).

As we explained in our opening brief (at 56-59),

perusal of the record in this case confirms the con-

clusion of the dissenters below (Pet. App. 28a) that

respondents’ counsel presented “defenses of uncommon

quality and vigor.” The paucity of examples of prej-

udice offered by respondents in their answering briefs

may be the best illustration of the error in the court

of appeals’ presumption of prejudice.

CONCLUSION

For the foregoing reasons, and the reasons dis-

cussed in our opening brief, the judgment of the court

of appeals should be reversed.

Respectfully submitted.

Rex E. Lee

Solicitor General

MagcH 1984