United States v. William Gouveia, Robert Ramirez, Philip Segura, Adolpho Reynoso, Robert Eugene Mills, Richard Raymond Pierce

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.

*1118 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…

I respectfully dissent. Although I adhere to my position in United States v. Mills, 641 F.2d 785 (9th Cir.1981), the majority’s unprecedented expansion of the right to counsel requires that I comment further.

The Supreme Court has spoken with a clear and consistent voice regarding the point at which the right to counsel attaches. It attaches when adversary judicial criminal proceedings are initiated. Kirby v. Illinois, 406 U.S. 682, 688 , 92 S.Ct. 1877, 1881 , 32 L.Ed.2d 411 (1972). By contrast, the speedy trial right may attach at other times, depending on threats to the liberty interests it protects. United States v. Marion, 404 U.S. 307, 320-321 , 92 S.Ct. 455, 463-464 , 30 L.Ed.2d 468 (1971).

The majority today has confused these distinct Sixth Amendment guarantees. Relying on a de facto accusation concept derived from Marion , it rules that a prisoner stands accused if he is subjected to prolonged administrative detention pending investigation of a prison crime. Although Marion concerned the speedy trial right, the majority concludes that the right to counsel attaches when an inmate is so detained, though formal proceedings have not begun.

The reasons for the majority’s…

704 F.2d 1116 UNITED STATES of America, Plaintiff-Appellee, v. William GOUVEIA, Robert Ramirez, Philip Segura, Adolpho Reynoso, Robert Eugene Mills, Richard Raymond Pierce, Defendants-Appellants. Nos. 81-1271 to 81-1274, 82-1206 and 82-1278. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 15, 1982. Decided April 26, 1983. 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: 1 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…