U.S. v. Reilley, 90-8084

Citation948 F.2d 648
Decision Date28 October 1991
Docket NumberNo. 90-8084,90-8084
PartiesUNITED STATES of America, Plaintiff/Appellee, v. Patrick M. REILLEY, Defendant/Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Karen Jean Budd, of Dray, Madison & Thomson, Cheyenne, Wyo., for defendant/appellant.

Richard A. Stacy, U.S. Atty., and Aleksander D. Radich, Asst. U.S. Atty., Cheyenne, Wyo., for plaintiff/appellee.

Before SEYMOUR and EBEL, Circuit Judges, and MATSCH, District Judge. *

EBEL, Circuit Judge.

In this case we are faced with three questions regarding the scope of a criminal defendant's right to court-appointed counsel: First, is the scope of Federal Rule of Criminal Procedure 44(a) coextensive with that of the Sixth Amendment right to counsel? Second, does Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979), which limits the Sixth Amendment right to counsel in state petty offense trials to cases where the defendant is "sentenced to a term of imprisonment," impose a similar limit in federal petty offense trials? And third, does a sentence of incarceration that is conditionally suspended satisfy Scott's "sentenced to a term of imprisonment" requirement? We answer all of these questions in the affirmative. 1


The Defendant, Patrick M. Reilley ("Reilley"), was charged with leaving property unattended in a national park for longer than twenty-four hours in an undesignated area. 36 C.F.R. § 2.22(a)(2). This offense is punishable by imprisonment not exceeding six months, a fine not exceeding $500, or both. 36 C.F.R. § 1.3(a). He was tried in the United States District Court for the District of Wyoming. The district court denied his request for appointed counsel, despite his offer of proof regarding his indigence. 2 The court then proceeded to find him guilty and sentenced him to thirty days imprisonment and a $500 fine. His sentence was suspended, however, on the condition that he pay $100 of the fine. 3 Reilley now appeals that conviction and sentence as violative of his right to counsel under the Sixth Amendment to the United States Constitution and Federal Rule of Criminal Procedure 44.


Reilley cites two authorities, each of which, on its face, appears to grant criminal defendants an absolute right to counsel. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defence." U.S. Const. amend. VI. Federal Rule of Criminal Procedure 44(a) grants to "[e]very [criminal] defendant who is unable to obtain counsel" the right "to have counsel assigned to represent that defendant at every stage of the proceedings...." 4

Notwithstanding the apparently absolute language of the Sixth Amendment Counsel Clause, the Supreme Court has limited that right so as to exclude prosecutions for petty offenses for which the defendant is not "sentenced to a term of imprisonment." Scott, 440 U.S. at 374, 99 S.Ct. at 1162. 5

The government claims that Scott precludes any constitutional right to counsel for Reilley, who has not actually been imprisoned. In response, Reilley makes, at least by implication, three arguments: First, he argues that he was entitled to counsel under Rule 44, even if not under the Sixth Amendment. Second, he contends that Scott, which dealt with a state defendant, does not restrict the Sixth Amendment rights of federal defendants. And third, he argues that even if Scott controls his rights in federal court, his sentence of imprisonment, although conditionally suspended, nevertheless satisfies Scott's requirement. We address each of these arguments in turn.


Reilley argues that he is entitled to counsel by virtue of Federal Rule of Criminal Procedure 44(a) irrespective of his Sixth Amendment right and that Scott, a Sixth Amendment case, does not limit his right under that Rule. A characterization of Rule 44's right to counsel as broader than that of the Sixth Amendment is enticing; such a characterization would preserve the absolute language of that Rule. However, we cannot find that the scope of Rule 44 extends beyond that of the Sixth Amendment.

Rule 44 "is a restatement of existing law in regard to the defendant's constitutional right of counsel as defined in recent judicial decisions." Fed.R.Crim.P. 44, advisory committee's note 1 (1944). While the cases cited by the Committee were decided long before Scott, we find no indication that the Committee intended Rule 44 to freeze the case law of the day. 6

Although no cases appear to have held directly that Rule 44 is coextensive with the Sixth Amendment, several courts have treated it as such and, in extensive dicta, indicated support for this conclusion. See, e.g., United States v. Moore, 706 F.2d 538, 540 (5th Cir.) ("sixth amendment right to counsel [is] echoed in Rule 44"), cert. denied, 464 U.S. 859, 104 S.Ct. 183, 78 L.Ed.2d 163 (1983); United States v. Posey, 665 F.Supp. 848, 851 (C.D.Cal.1987) (Rule 44(a) "restates the defendant's constitutional right of counsel in criminal proceedings as defined by judicial interpretations of the sixth amendment"). Additionally, several scholarly authorities appear to support this position. See, e.g., 9 Fed.Proc., L.Ed. § 22:342 (1982) (Rule 44 "implements this [Sixth Amendment] right"); Annotation, Accused's Right to Counsel under the Federal Constitution--Supreme Court Cases, 2 L.Ed.2d 1644, 1645 (Rule 44 implements Sixth Amendment). We have found no authority for the proposition that the scope of Rule 44(a) extends beyond that of the Sixth Amendment.

Reilley cites United States v. Leavitt, 608 F.2d 1290 (9th Cir.1979), as supporting a right to counsel under Rule 44 independent of the Sixth Amendment right. Id. at 1293 ("The right to counsel in federal courts is governed by ... Rule 44(a) as well as the sixth amendment."). However, both the language and the holding in Leavitt are ambiguous. That case acknowledged a right to counsel for a federal defendant who was given only a suspended sentence. Id. at 1291, 1293. If Scott precludes the Sixth Amendment right to counsel when actual imprisonment is not imposed, Reilley argues, Leavitt must have granted a distinct right under Rule 44. An alternative reading, however, suggests itself. We believe that Leavitt acknowledged the defendant's constitutional right to counsel, which is expressed in Rule 44, on the ground that his suspended sentence constituted a "sentence[ ] to a term of imprisonment." Our reading of Leavitt draws support both from the evidence cited supra suggesting that Rule 44 is coextensive with the Sixth Amendment, and that cited infra, Part III, suggesting that a conditionally suspended sentence is sufficient to trigger the Sixth Amendment right to counsel.

We thus hold that Rule 44(a) and the Sixth Amendment are coextensive. A defendant cannot have any rights under Rule 44 that he does not have under the Sixth Amendment. Thus, if Scott precludes Reilley's constitutional right to counsel, he cannot claim an independent right under Rule 44(a).


Reilley next argues that Scott, which on its facts addressed the Sixth Amendment right to counsel only in state court, should not be held applicable in federal court. We disagree.

Although Scott arose in the context of a state prosecution, and its language therefore deals exclusively with state courts, both the doctrine of selective incorporation, on which Scott relies, and the reasoning of Scott suggest that its holding must extend to prosecutions in federal court.

The federal constitutional right to counsel in state court addressed in Scott is a product of the doctrine of selective incorporation. Under this doctrine, the commands of the Sixth Amendment, which are generally binding only against the federal government, are applied against the states through the Fourteenth Amendment. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 2.5(a) (1985).

The seminal case granting state criminal defendants a federal constitutional right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), was ambiguous as to the basis for its holding. That case could be read as based either on the doctrine of selective incorporation or on the alternative doctrine of fundamental fairness. See Gideon, 372 U.S. at 340, 342, 83 S.Ct. at 794, 795 ("the Fourteenth Amendment requires appointment of counsel in a state court just as the Sixth Amendment requires in a federal court"; "appointment of counsel for an indigent criminal defendant was 'a fundamental right, essential to a fair trial' ").

The distinction between the selective incorporation and fundamental fairness doctrines is important because under the former the right that is applied against the states has precisely the same contours as the federal right. Under the fundamental fairness doctrine, in contrast, only those elements of the federal right required to assure fundamental fairness apply against the state. Thus, the state government may be held to a lesser standard than the federal government under the fundamental fairness doctrine but not under the selective incorporation doctrine. See W. LaFave & J. Israel, supra, § 2.5(a).

At least in the area of the Sixth Amendment right to counsel, the debate between fundamental fairness and selective incorporation seems to have been resolved in favor of the latter. 7 Subsequent cases, albeit in dicta, have clearly interpreted Gideon as resting on selective incorporation. See, e.g., Argersinger v. Hamlin, 407 U.S. 25, 27, 92 S.Ct. 2006, 2008, 32 L.Ed.2d 530 (1972) ("The Sixth Amendment, ... in enumerated situations has been made applicable to the States by reason of the Fourteenth Amendment....") (citing Gideon and other cases); Malloy v. Hogan, 378 U.S. 1, 10, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964) ("[T]he right to counsel guaranteed by the Sixth Amendment [is] to be enforced against the States under the Fourteenth Amendment according to the same...

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