U.S. v. Mills

• Decision Date: 20 May 1983
• Docket Number: No. 82-8001,82-8001
• Citation: 704 F.2d 1553
• Parties: 13 Fed. R. Evid. Serv. 396 UNITED STATES of America, Plaintiff-Appellee, v. Barry MILLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1553

704 F.2d 1553

13 Fed. R. Evid. Serv. 396

UNITED STATES of America, Plaintiff-Appellee, v. Barry MILLS, Defendant-Appellant.

No. 82-8001.

United States Court of Appeals, Eleventh Circuit.

May 20, 1983.

Stephanie Kearns (Ct. Appt.), Atlanta, Ga., for plaintiff-appellee.

Richard W. Hendrix, Asst. U.S. Atty., Atlanta, Ga., for defendant-appellant.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit Judge.

VANCE, Circuit Judge:

Barry Mills appeals his conviction for murder and conspiracy to commit murder in violation of 18 U.S.C. Secs. 1111 and 1117.

On May 20, 1979, John Sherman Marzloff was killed in the men's room of the recreation shack at the United States penitentiary in Atlanta, Georgia. His death was caused by sixteen stab wounds in the head, back, shoulder, and upper arm area. The murder weapon was tossed into the commode, and a second similar knife, unused in the killing, was tucked up under the arm of the victim. The details of the murder were reported, incorrectly, in an Atlanta newspaper. Although numerous witnesses testified to having seen Mills in the recreation shack area at the time of killing, the only eyewitness was Danny Holliday. Holliday, the prosecution's key witness, testified that he had accompanied Mills to the recreation shack, armed with the second knife, for the sole purpose of robbing Marzloff; that he had been surprised by the murder and had taken no part in it.

The prosecution's theory of the case was that the murder of Marzloff had been committed pursuant to an Aryan Brotherhood contract. The Aryan Brotherhood is a white supremacist prison gang. It originally was organized as a defensive organization during the prison racial violence of the 1960's, but now attempts to control drug traffic within the prison system through violent means. The prosecution offered extensive testimony that in a drug transaction Marzloff had cheated Tommy Silverstein, an Aryan Brotherhood "commissioner" in another penitentiary, that Tommy Silverstein had put out a contract on Marzloff, and that this contract had been communicated to Mills, also an Aryan Brotherhood "commissioner," by a letter channeled through someone on the streets. Included in the prosecution's evidence to show Mills' membership in the Aryan Brotherhood was a letter Mills had written from prison, using terms in the Aryan Brotherhood argot, referring to ongoing Aryan Brotherhood activities, and alluding to Mills' participation in other crimes. Mills now challenges the admissibility of nearly all this evidence.

Mills maintained that he was innocent, that the Aryan Brotherhood had ceased to be an active organization, and that the murder had actually been committed by Robert Lee Hogan, another inmate. Hogan, who had committed several unrelated murders with sexual overtones, had confessed to Marzloff's murder several times. He had also confessed to other murders, both corroborated and uncorroborated. Hogan was murdered in apparent retaliation for one such killing several months prior to Mills' Both the prosecution and the defense acknowledged unusual credibility problems. In opening argument the prosecution stated that substantial documentation was needed to explain to a lay jury the prison culture of violence, drugs, and secret gangs. During closing argument, and again in its brief on appeal, the government admitted that Holliday's testimony of his own involvement, as an indicted coconspirator who had plea bargained to a lesser charge, was highly suspect. Prosecuting counsel urged the jury, during closing argument, to believe only so much of Holliday's testimony as could be corroborated. Mills conducted his own defense with the assistance of standby counsel. During his own opening argument, Mills told the jury that he was conducting his own defense because, as an insider to the prison system, he could expose the lies prisoners told and the compromises they made with the prosecution in an effort to play the prison survival game. He tried repeatedly to elicit testimony on cross-examination that witnesses had agreed to testify for the government in order to obtain parole advantages, and the safety and better conditions of the Witness Protection Program. The prosecution countered with elaborate testimony concerning the government witnesses' terror of the Aryan Brotherhood.

trial. The prosecution introduced extensive testimony to impeach Hogan's confession. Hogan's description of the details of the murder was factually incorrect, but identical to the erroneous report in the Atlanta newspaper. Hogan's psychological counselor at the Atlanta penitentiary, and her superior, the prison psychiatrist, testified that Hogan's psychopathology indicated he would have been incapable of Marzloff's murder but was fully capable of falsely confessing to it in order to ingratiate himself with the Aryan Brotherhood.

I DELAY BETWEEN PLACEMENT IN DISCIPLINARY SEGREGATION AND THE INDICTMENT

Mills contends that his sixth amendment right to a speedy trial was denied by the eighteen and three quarter month delay between his placement in disciplinary segregation for Marzloff's murder and the date of the indictment. Because Hogan died during this time, Mills says that he was prevented from preparing the best possible defense. Since he could not leave segregation to interview Hogan himself, and had no access to appointed counsel prior to return of the indictment, he was unable to investigate the veracity of Hogan's confession or obtain exculpatory testimony.

Mills argues that the speedy trial guarantee of the sixth amendment applies because his placement in disciplinary segregation marked the beginning of the accusatory phase of the trial. Although the sixth amendment speedy trial guarantee is generally considered inapplicable to preindictment delay, United States v. Lovasco, 431 U.S. 783, 788, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971); United States v. Lindstrom, 698 F.2d 1154, 1157 (11th Cir.1983), certain other events, including arrest or the filing of an information, may also initiate the guarantee. Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 304, 46 L.Ed.2d 205 (1975); United States v. Rice, 550 F.2d 1364, 1369 (5th Cir.), cert. denied, 434 U.S. 954, 98 S.Ct. 478, 54 L.Ed.2d 312 (1977). We previously have held that placement in segregation within a prison does not initiate the accusatory phase or trigger the sixth amendment. United States v. Manetta, 551 F.2d 1352, 1353-54 (5th Cir.1977); United States v. Duke, 527 F.2d 386, 390 (5th Cir.), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1190 (1976). Mills contends that his case is distinguishable because Manetta and Duke concerned "administrative" segregation for investigative purposes, whereas he was subjected to punitive "disciplinary" segregation upon a finding of guilt by the Institutional Disciplinary Committee. We conclude that the contention presents a distinction without a difference. In Duke, "administrative segregation" was described In the alternative, Mills argues that the delay denied him his right to a speedy trial under the due process clause of the fifth amendment. Under the more rigorous fifth amendment standard, he must make a twofold showing: "(1) that the delay caused actual prejudice to the conduct of his defense, and (2) that the delay was the product of deliberate action by the government designed to gain a tactical advantage." United States v. Lindstrom, 698 F.2d at 1157-58. Mills can meet the first prong of this test. His lack of access to Hogan's testimony was genuinely prejudicial to preparation of his defense. He cannot meet the second prong because he has failed to show any tactical advantage the prosecution could have hoped to gain by the delay. Id. at 1158. He has produced "no evidence even tending to show that the delay was a deliberate tactical maneuver by the government," United States v. Hendricks, 661 F.2d 38, 40 (5th Cir.1981), nor is any suggested by the circumstances. The prosecution could scarcely have foreseen that Hogan would be murdered before Mills came to trial. Further, Hogan's death was equally prejudicial to the government, which had to resort to elaborate secondary evidence to impeach Hogan's confession.

                as a method of "disciplining or investigating inmates," United States v. Duke, 527 F.2d at 390.  This definition embraces the type of confinement to which Mills was subjected.  We also explained in Duke that segregation within a prison is not equivalent to the onset of the accusatory phase because "administrative segregation of a prisoner is an internal disciplinary measure that is totally independent from the criminal processes of arrest and prosecution."    Id.  The prison segregation system remains equally distinct from the judicial system when its purpose is entirely punitive
                

II HYBRID REPRESENTATION

Mills requested but was denied permission for his appointed attorney to act as his cocounsel during trial. He now contends that the district court's refusal to allow such hybrid representation denied him his sixth amendment right to assistance of counsel. He does not claim that the intersection of the right to appointed counsel under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and the right to proceed pro se under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) compels the conclusion that there is a constitutional right to hybrid counsel. Mills acknowledges that under the law of this circuit, the right to appointed counsel and the right to proceed pro se exist in the alternative and the decision to permit a defendant to proceed in a hybrid fashion rests in the sound discretion of the trial court. United States v. Daniels, 572 F.2d 535, 540 (5th Cir.1978); United States v. Shea, ...