U.S. v. Gouveia, s. 81-1271

Citation704 F.2d 1116
Decision Date26 April 1983
Docket NumberNos. 81-1271,s. 81-1271
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William GOUVEIA, Robert Ramirez, Philip Segura, Adolpho Reynoso, Robert Eugene Mills, Richard Raymond Pierce, Defendants-Appellants. to 81-1274, 82-1206 and 82-1278.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Nancy Wieben Stock, Joyce Ann Babst, Richard E. Drooyan, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Michael J. Treman, Santa Barbara, Cal., for Gouveia.

Joseph Francis Walsh, Los Angeles, Cal., for Ramirez.

Joel Levine, Los Angeles, Cal., for Segura.

Manuel U.A. Araujo, Los Angeles, Cal., for Reynoso.

Charles P. Diamond, Los Angeles, Cal., for Mills.

Edwin S. Saul, Encino, Cal., for Pierce.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, WRIGHT, CHOY, SNEED, KENNEDY, ANDERSON, HUG, SCHROEDER, POOLE, FERGUSON, and NELSON, Circuit Judges.

SNEED, Circuit Judge:

Appellants Reynoso, Segura, Ramirez, and Gouveia have been convicted of murdering a fellow inmate at the Federal Correctional Institution in Lompoc, California (FCI-Lompoc). Appellants Mills and Pierce, also inmates at FCI-Lompoc, were convicted of a later murder at the same institution. Each appellant was isolated in administrative detention without the benefit of counsel for an extended period prior to being indicted. We consolidated these cases for en banc consideration of whether, under any circumstances, a federal prisoner suspected of committing a crime while in prison and placed in administrative detention is constitutionally entitled to an attorney prior to indictment.

I. FACTS
A. Appellants Reynoso, Segura, Ramirez, and Gouveia

Thomas Trejo, an inmate at FCI-Lompoc, was stabbed to death on November 11, 1978. The Bureau of Prisons instituted an administrative investigation and on December 4, 1978, the Unit Disciplinary Committee and the Institutional Disciplinary Committee at FCI-Lompoc conducted administrative hearings to consider appellants' involvement in the killing. Appellants Ramirez and Reynoso requested appointment of counsel at the hearings, but their requests were denied. Prison officials found that appellants had killed Trejo and appellants were placed in isolation in the administrative detention unit (ADU) at FCI-Lompoc.

Appellants remained in ADU continuously until July of 1980, a period of more than 19 months. While in ADU appellants were confined in individual cells except for short daily exercise periods; they were denied access to the general prison population and their participation in various prison programs was curtailed. Appellants did have access to legal materials, they had visitation rights, and they could make unmonitored phone calls. During this period appellants were not appointed counsel though their opportunity to hire private counsel was not restricted.

The Federal Bureau of Investigation conducted its own investigation into Trejo's murder, concurrent with the Bureau of Prison's internal investigation. In January 1979, the United States Attorney's Office was officially informed of the FBI investigation and a prosecutive file was opened. In March 1979, a grand jury investigation commenced. Appellants Reynoso, Ramirez, and Segura appeared before the grand jury to provide fingerprint exemplars and they were appointed counsel for purposes of that appearance.

On June 17, 1980, the grand jury indicted appellants on charges of first degree murder and conspiracy to commit murder in violation of 18 U.S.C. Secs. 1111, 1117. On July 14, 1980, appellants were arraigned in federal court and the magistrate appointed counsel. Appellants' first trial commenced on September 16, 1980, but it resulted in a mistrial when the jury was unable to reach a verdict. A second trial began on February 17, 1981, and all four appellants were convicted on both counts. They were each sentenced to consecutive life and ninety-nine year terms of imprisonment.

B. Appellants Mills and Pierce

Thomas Hall, an inmate at FCI-Lompoc, was stabbed to death on August 22, 1979. Appellants Mills and Pierce were questioned and given physical examinations by FBI agents and prison officials. They were placed in ADU on the day following the murder. An internal prison investigation culminated in a hearing before the Institutional Disciplinary Committee on September 13, 1979. Appellants were adjudged guilty of killing inmate Hall and, in accordance with prison regulations, were ordered to forfeit all accumulated "good time."

Mills and Pierce remained isolated in ADU for eight months. They were not permitted to communicate with inmates in the general population or other potential witnesses, to discuss their case with anyone other than prison officials, or to be examined by their own physicians or experts. During this time appellants repeatedly asked to speak with counsel but their requests were denied. On March 27, 1980, Mills and Pierce were indicted under 18 U.S.C. Secs. 1111, 1792, for first degree murder of a federal inmate and for conveyance of a weapon in prison. Pierce was indicted also for assault under 18 U.S.C. Sec. 113(c). On April 21, 1980, appellants were arraigned, appointed counsel, and released from ADU.

The district court dismissed the indictments on the grounds that appellants had been denied their constitutional rights to speedy trial and assistance of counsel. It concluded that the government failed to justify its delay in seeking the indictments or in bringing defendants to trial, or to explain why Mills and Pierce remained in isolation for eight months without assistance of counsel. It found that they had been irreparably prejudiced because of the dimming of memories of exonerating witnesses, the loss of witnesses, and the deterioration of physical evidence.

On appeal this court reversed the dismissal, holding that the Sixth Amendment right to counsel and a speedy trial did not attach until appellants were indicted. United States v. Mills, 641 F.2d 785 (9th Cir.), cert. denied, 454 U.S. 902, 102 S.Ct. 409, 70 L.Ed.2d 221 (1981). We further held that the preindictment delay did not deny appellants due process because appellants could not demonstrate actual prejudice resulting from the delay. In January 1982, appellants were brought to trial, convicted on all counts, and sentenced to life imprisonment. On appellants' petition, we consolidated appellants' post-conviction appeal with United States v. Gouveia for reconsideration by the court sitting en banc of whether appellants were denied their constitutional right to counsel during the preindictment period in which they were isolated in ADU.

II. THE SIXTH AMENDMENT RIGHT TO COUNSEL

Appellants claim, inter alia, that lengthy preindictment isolation without assistance of counsel irrevocably prejudiced their ability to prepare an effective defense, and thus unconstitutionally deprived them of their right to counsel and to a fair trial in contravention of the Fifth, Sixth, and Eighth Amendments. Because we conclude that appellants were denied their Sixth Amendment right to counsel, we do not reach the Fifth and Eighth Amendment claims.

The Sixth Amendment guarantees that: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." This guarantee is meant to assure fairness in the adversary criminal process. United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981). The right to counsel is primarily a trial right. It has been held to attach at any point in the prosecution where an attorney is necessary to preserve the accused's right to a fair trial or to ensure that the accused will receive effective assistance of counsel at the trial itself. See id. at 364, 101 S.Ct. at 667; United States v. Wade, 388 U.S. 218, 225-27, 87 S.Ct. 1926, 1931-32, 18 L.Ed.2d 1149 (1967).

There is no dispute that Sixth Amendment guarantees are as applicable to the prosecution of prison crimes as to any other criminal prosecution. See, e.g., United States v. Clardy, 540 F.2d 439 (9th Cir.), cert. denied, 429 U.S. 963, 97 S.Ct. 391, 50 L.Ed.2d 331 (1976); United States v. Blevins, 593 F.2d 646 (5th Cir.1979). Thus appellants were appointed counsel at their arraignments. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The issue before us is a narrower one though; it is a question of first impression that is unique to prison crime. We must decide whether the isolation of appellants in administrative detention pending investigation and trial obligated prison officials to provide counsel at any time prior to appellants' indictments.

Each appellant has established that while being held in administrative detention he lacked the means necessary to hire an attorney. This is significant because inmates held in administrative detention are not denied access to counsel. Though isolated from the general prison population, they have the opportunity to make unmonitored phone calls if they wish to talk to an attorney and they have visitation rights. 28 C.F.R. Secs. 541.19(c)(10), 541.20(d) (1982). Thus, it is only indigent inmates, those who are without the means to retain counsel on their own, whose constitutional right to the assistance of counsel is before us today.

The government first argues that the appointment of counsel at arraignment fully satisfied appellants' constitutional rights to assistance of counsel. This position is based on Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), where the Supreme Court held that the Sixth Amendment right to counsel attaches when formal judicial proceedings are initiated by way of indictment, information, arraignment, or preliminary hearing. See also United States v. Bagley, 641 F.2d 1235 (9th Cir.), cert. denied, 454 U.S. 942, 102 S.Ct. 480, 70 L.Ed.2d 251 (1981); United States v. Zazzara, 626 F.2d...

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9 cases
  • United States v. Gouveia, 83-128
    • United States
    • United States Supreme Court
    • 29 Mayo 1984
    ...to counsel. Providing a defendant with a preindictment private investigator is not a purpose of the right to counsel. Pp. 191-192. 704 F.2d 1116 (CA9 1983), reversed and Andrew L. Frey, Washington, D.C., for petitioner. Charles P. Diamond, Los Angeles, Cal., for respondents, Mills, et al. J......
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