UNITED STATES OF AMERICA, PETITIONER v. WILLIAM GOUVEIA, ET AL.

   No. 83-128

   In the Supreme Court of the United States

   October Term, 1983

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

                       PARTIES TO THE PROCEEDING

   In addition to the parties shown by the caption of this case,
Robert Ramirez, Phillip Segura, Adolpho Reynoso, Robert Eugene Mills,
and Richard Raymond Pierce were appellants below and are respondents
here.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Relevant constitutional provision
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                            OPINIONS BELOW

   The opinion of the en banc court of appeals (App. A, infra, 1a-29a)
is reported at 704 F.2d 1116.  An earlier opinion of the court of
appeals in the case of respondents Mills and Pierce (App. B, infra,
30a-40a) is reported at 641 F.2d 875.  An earlier opinion of the
district court in the case of respondents Mills and Pierce (App. C,
infra, 41a-50a) is unreported.

                             JURISDICTION

   The judgment of the en banc court of appeals was entered on April
26, 1983.  On June 17, 1983, Justice Rehnquist extended the time
within which to file a petition for a writ of certiorari to and
including July 25, 1982.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                   RELEVANT CONSTITUTIONAL PROVISION

   The Sixth Amendment provides in pertinent part:

         In all criminal prosecutions, the accused shall enjoy the
      right * * * to have the assistance of counsel for his defense.

                          QUESTIONS PRESENTED

   1. Whether the Sixth Amendment requires appointment of counsel for
an indigent prison inmate under criminal investigation during the time
he is being held in administrative detention following the alleged
offense but before the institution of adversary judicial proceedings.

   2. Whether, in the absence of a special showing of prejudice,
dismissal of the indictment is the appropriate remedy for failure to
appoint counsel once an indigent prison inmate is held in
administrative detention more than 90 days because of a pending
criminal investigation.

                               STATEMENT

   This case raises the question whether the Sixth Amendment requires
that counsel be appointed for an indigent prison inmate under criminal
investigation during the time he is held in administrative detention
following the alleged offense, but before the institution of adversary
judicial proceedings.  The court of appeals consolidated appeals from
two separate sets of district court convictions involving prison
inmate murders, both of which raised this issue.

   1. Respondents Gouveia, Ramirez, Segura and Reynoso

   Following a jury retrial in the United States District Court for
the Central District of California, the four respondents were
convicted of murder and conspiracy to commit murder, in violation of
18 U.S.C. 1111 and 1117 respectively.  Each was sentenced to
consecutive terms of imprisonment for life and 99 years.  App. A,
infra, 3a.

   a. On November 11, 1978, inmate Thomas Trejo was stabbed to death
at the Federal Correctional Institution at Lompoc, California.  An
autopsy revealed that Trejo had suffered 45 stab wounds, most of which
were in the area of his heart (Tr. 149).  /1/

   Following the murder, the Federal Bureau of Investigation and
prison officials began independent investigations to determine the
identity of the murderers.  Respondents Gouveia and Reynoso and inmate
Pedro Flores were immediately placed in the Administrative Detention
Unit ("ADU") at Lompoc (C.R. No. 40, Reynoso Declaration at 1;  C.R.
No. 62 at 15).  /2/ While in ADU, the two respondents were separated
from the remainder of the prison population, and their participation
in various prison programs was curtailed.  However, they were not
deprived of regular visitation rights, exercise periods, access to
legal materials, and telephones from which they could make unmonitored
calls to attorneys.  See App. A, infra, 3a, 6a;  28 C.F.R. 540.50(c),
540.101, 540.102, 540.105, 541.19, 541.20, 543.11(j), 543.13, C.R. No.
62 at 21;  Tr. 2411.

   On November 22, 1978, Gouveia, Reynoso, and Flores were removed
from ADU and returned to the general prison population (C.R. No. 40,
Reynoso Declaration at 1;  C.R. No. 62 at 15).  However, on December
4, 1978, all four respondents, as well as Flores and inmate Steven
Kinard, were placed in ADU pending further investigation after prison
officials obtained further information that implicated the six in the
murder (see C.R. No. 40, Reynoso Declaration at 1;  C.R. No. 33, Exh.
C;  C.R. No. 42 at 19;  C.R. No. 62 at 15).  Later in December, prison
authorities conducted disciplinary hearings.  Respondents requested
appointment of counsel at the hearings, but the requests were denied
(e.g., C.R. No. 40, Reynoso Declaration at 1-2;  C.R. No. 42 at 19;
C.R. No. 60 at 2-3).  Prison officials determined that the four
respondents each had participated in the murder of Trejo and ordered
that they be returned to ADU (App. A, infra, 2a).  /3/ Thereafter,
prison authorities directed that Gouveia and Ramirez be transferred to
the control unit of the United States Penitentiary in Marion,
Illinois, based on a finding that they were too dangerous to be
maintained in the general prison population at Lompoc (C.R. No. 43 at
5;  C.R. No. 60 at 4).

   In March 1979, after the FBI notified the United States Attorney of
the results of its investigation, the matter was presented to a grand
jury, which, on June 17, 1980, indicted respondents, Flores, and
Kinard for murder and conspiracy to commit murder.  In addition,
Reynoso, Kinard, and Flores were charged with conveyance of a weapon
in a penal institution, in violation of 18 U.S.C. 1792.  On July 14,
1980, respondents were arraigned in federal court, at which time they
were appointed counsel (App. A, infra, 3a).

   b. Prior to trial, respondents and Flores moved to dismiss the
indictment on the ground that the 19-month period between their
removal to ADU and their indictment violated the Sixth Amendment right
to a speedy trial or, alternatively, constituted unreasonable
preindictment delay in violation of the Due Process Clause of the
Fifth Amendment.  They also argued that the failure of prison
authorities to appoint counsel to represent them during the period
they were in administrative detention, coupled with their own
inability to begin preparation of a defense because of their
segregation from the general inmate population, violated their Sixth
Amendment right to effective assistance of counsel.

   Respondents made various factual representations to support their
claims.  For example, Gouveia acknowledged that he had obtained some
information from the transcript of an FBI interview, and his counsel
stated that he had learned from inmate rosters furnished by the Bureau
of Prisons the whereabouts of four potential defense witnesses;
however, Gouveia's counsel asserted that he was unable to obtain
information about two other potential witnesses (C.R. No. 60 at 5;
C.R. No. 69 at 3-7).  Ramirez claimed that because of his segregation
from the general prison population he had been unable to contact
potential witnesses who could verify his whereabouts on the day of
Trejo's death;  that he knew several of these inmates only by
nicknames and thus was unable to establish their identities or
determine their whereabouts;  and that a potential witness had died
since the murder (C.R. No. 43 at 5-6).  Following argument, the
district court denied respondents' motions to dismiss without opinion
(C.R. No. 72).

   c. Trial began on September 16, 1980.  The jury acquitted Flores on
all counts and acquitted Reynoso on the weapon conveyance count.
However, the jury was unable to reach a verdict on the murder and
conspiracy charges against respondents, and a mistrial was declared on
those counts.

   Retrial began on February 17, 1981.  Kinard, who was the
government's principal witness, /4/ testified about the plans to
murder Trejo.  According to Kinard's testimony, Reynoso had told
Kinard in early November 1978 and Trejo "had to go" by Christmas
because he had made a "bad move against la cliqua" while incarcerated
at Terminal Island (Tr. 488-489);  Ramirez had arranged for another
inmate to make several knives with which the murder would be committed
(Tr. 489-500);  and on the morning of the murder Reynoso stated that
"the fool had to be sent home today" (Tr. 512-513).  Kinard described
the four respondents' actions in preparing for the murder and
disposing of the weapons and blood-stained clothing and related their
later descriptions of the stabbing (Tr. 515-559).  /5/ The prosecution
introduced evidence that Gouveia's fingerprints and palm print and
Segura's palm print were discovered in the cell where the murder
occurred (Tr. 327-328, 443-444).

   Respondents called 34 witnesses, including 14 alibi witnesses, to
testify on their behalf (see App. A, infra, 28a).  Each respondent
sought to establish that he was elsewhere at the time of the murder.
In addition, the respondents presented evidence that the crime had
been committed by others, including Kinard.  For example, five
witnesses corroborated Segura's testimony that he was playing handball
in the morning and that at the time the murder was committed he was
playing pool and watching a football game on television (e.g., Tr.
1568-1569, 1579-1590, 1596-1597, 1610-1612, 1764-1767, 2141-2148).
Another witness verified Ramirez' testimony that he was lifting
weights at the gymnasium at the time of the murder (Tr. 1939,
2245-2247).  Three witnesses testified in support of Gouveia's story
that on the morning of the murders he was eating in the dining hall
and thereafter went to the gymnasium (Tr. 1549-1550, 1680-1681,
2114-2119, 2370-2378).  Two witnesses testified that they were
watching a football game with Reynoso at the time of the murders (Tr.
1418-1420, 1442, 1520-1525).  In addition, the inmates identified by
government witnesses as those who fabricated the knives and brought
them into the prison denied any involvement in the scheme (Tr.
1795-1796, 2424).  Other witnesses testified that Kinard had told them
that he and another prisoner, who had since died, had murdered Trejo
following a dispute over payment for drugs (Tr. 1855-1864, 1894-1897,
2064).

   2. Respondents Mills and Pierce

   Following a jury trial in the United States District Court for the
Central District of California, respondents Mills and Pierce were
convicted of murder, in violation of 18 U.S.C. (Supp. V) 1111, and of
conveying a weapon in prison, in violation of 18 U.S.C. 1792.  Pierce
also was convicted of assaulting another prisoner, in violation of 18
U.S.C. 113(c).  Each was sentenced to life imprisonment on the murder
charge and to a concurrent three-year term on the weapon conveyance
charge.  App. A infra, 4a-5a.  Pierce received an additional
concurrent three-year term on the assault charge (Mills Tr. 1783).

   A. On August 22, 1979, Thomas Hall, an inmate at Lompoc, died after
being stabbed 10 times in the "E" unit of the prison (Mills Tr. 445,
482-483).  Shortly after the murder, Mills and Pierce were taken into
custody and examined by an FBI agent and a prison doctor, who observed
that Mills' face was flushed and that he had two puncture wounds on
his left arm and a spot of blood on his thumbnail.  Pierce's upper arm
bore bruises that appeared to be finger impressions (Mills Tr. 461,
484, 619-621, 628).  The following morning, Mills and Pierce were
placed in ADU on the ground that they were pending investigation for
criminal offenses and violation of prison regulations and that their
continued presence in the general prison population "pose(d) a serious
threat to life, property, self, staff, other inmates, or to the
security of the institution" (App. B, infra, 33a-34a;  Mills C.R. No.
59, Exhs. B, C).  The conditions of their confinement in ADU were
identical to those described above (see App. B, infra, 31a).

   During disciplinary hearings conducted by the Bureau of Prisons
several weeks later, respondents stated that they wished to consult
with counsel, but the request was denied (App. B, infra, 31a;  Mills
C.R. No. 59 at 27-28).  Mills declined the offer of assistance of a
staff representative to interview witnesses and help prepare his case
for the disciplinary proceeding (Mills C.R. No. 59, Mills Declaration
at 28).  See 28 C.F.R. 541.14(b).  Prison officials concluded that
Mills and Pierce had murdered Hall and returned them to ADU.  The two
were ordered to forfeit their accumulated good time (App. A, infra,
4a).  In addition, prison officials informed Mills that he would be
transferred to the control unit at Marion Penitentiary (Mills C.R. No.
59 at 28).

   On March 27, 1980, after Mills and Pierce had been in
administrative detention for approximately seven months, they were
indicted by a grand jury.  At the time of their arraignment on April
21, 1980, respondents were appointed counsel.  App. A, infra, 4a.

   b. Mills and Pierce moved to dismiss the indictment on the grounds
that their administrative detention for seven months prior to return
of the indictment violated their Sixth Amendment right to a speedy
trial or, alternatively, constituted unreasonable preindictment delay.
 They also contended that the failure of prison authorities to appoint
counsel to represent them when they were placed in administrative
detention violated their Sixth Amendment right to counsel.

   In support of their claims of prejudice, Mills and Pierce alleged
that lack of access to witnesses during the period in which they were
confined in ADU "severely undermined" their ability to prepare a
defense;  that the time lapse following the murder prevented witnesses
from recalling the details of the evening of August 22, 1979, "as
clearly as they had * * * last fall," and that, in many cases,
"defense witnesses are unable, * * * to remember who they were with
(and) the times the crucial events took place" (Mills C.R. No. 59 at
16).  Respondents also alleged that the release or transfer of some
potential witnesses to other institutions had made it difficult to
locate them, that it was impossible to find other potential witnesses
who were known only by nicknames, that some witnesses were reluctant
to testify, and that memories had faded (id. at 16-17;  No. 49 at 7-8;
 No. 73 at 17-25).  Finally, respondents claimed that the time lapse
made it impossible to analyze blood stains found on clothing;  that
evidence relating to the case had been lost or destroyed;  and that
their own physical wounds, which might have had some probative value
for their defense, had healed (id. No. 49 at 9;  No. 73 at 7-8).

   On August 14, 1980, the district court granted the motion to
dismiss the indictment (App. C, infra, 41a-50a).  The court first
concluded that respondents stood accused of the murder at the time
they were committed to ADU and that, because the government failed to
justify the ensuing 10-month delay in bringing them to trial, they
were denied their Sixth Amendment right to a speedy trial.
Alternatively, the court found that respondents were denied due
process because their continued administrative detention after the
government had substantially completed its investigation irreparably
projudiced their ability to prepare for trial.  Finally, the court
found that the government's failure to appoint counsel to represent
respondents promptly after their placement in ADU deprived them of the
Sixth Amendment right to counsel, as well as their due process right
to prepare a defense.  The court reasoned that respondents "were
denied any effective opportunity to have an investigation conducted on
their behalf while events were still recent and recollections intact,
and that the passage of time "resulted in the irrevocable loss of
exculpatory testimony and evidence * * * " (App. C, infra, 49a, 50a).

   c. The court of appeals reversed (App. B, infra, 30a).  It rejected
the district court's holding that the 10-month delay between
respondents' placement in ADU and the trial violated the Sixth
Amendment Speedy Trial Clause, since administrative detention by
prison authorities is not an "arrest" or "accusal" for speedy trial
purposes (App. B, infra, 34a).  The court of appeals held that the
right to counsel did not attach until the initiation of formal
adversary proceedings by way of indictment in March 1980 (ibid.).
Finally, the court of appeals noted respondents' claims of prejudice,
but dismissed them as speculative (id. at 36a-37a).  /6/

   d. At trial, the government presented eyewitness testimony linking
Mills and Pierce to the murder of Hall.  The evidence showed that
prior to the murder Mills told another inmate that he knew who was
responsible for providing information that caused Mills to be placed
temporarily in administrative detention and that Mills was going to
"take care of it" upon his release from detention (Mills Tr. 344-345);
 in fact, it was Hall who had provided the information to prison
authorities (id. at 474-476).  The day before the murder Hall
confronted Mills and demanded repayment of a debt (id. at 289).  On
the day of the murder there were several confrontations between Hall
and Mills and Pierce (id. at 76-77, 291-292).  After dinner, inmate
Mellen, who was Hall's friend, heard Hall scream for help;  he then
saw Mills hold Hall from behind while Pierce stabbed Hall in the
abdomen (id. at 88-96, 109).  Other witnesses corroborated Mellen's
testimony.  For example, inmate Ehle testified that before the murder
he had overheard Mills tell inmate John Able, identified as the leader
of a prison gang known as the Aryan Brotherhood, that Mills was going
to "move on" an inmate who owed him money;  Mills asked Able whether
the murder would make him eligible for membership in the Brotherhood
(id. at 561-563).  Ehle also testified that he overheard Mills
discussing the murder with Able after it occurred (id. at 591-593).  A
substantial amount of physical evidence, including bloodstained
clothing and wounds on the arms of both Mills and Pierce, linked
respondents to the murder (id. at 189-190, 418-425, 508-510, 618-621).

   Mills and Pierce presented 42 witnesses, including six alibi
witnesses.  Three inmates testified that they were watching the
entrance to the "E" unit during the period when the murder occurred
but did not observe respondents enter or leave (Mills Tr. 682,
708-709, 728).  Six witnesses corroborated Pierce's testimony (id. at
1401-1402) that he and Mills were eating a meal at the time of the
crime and were locked in the dining hall with other prisoners
immediately after its discovery (id. at 756-758, 777-779, 801-804,
819-824, 849-851, 1135-1137).  Three inmates testified that they
witnessed the crime and that, contrary to Mellen's testimony, the
assailants were masked at all times, so that their identifies could
not be determined (id. at 985-992, 1028-1030, 1048-1050).  Other
witnesses testified that Hall was an informant and had many enemies in
the prison population (id. at 1106-1109) and that bruises and cuts
observed by investigators on the respondents' bodies shortly after the
murders resulted from athletic injuries (id. at 1223-1225, 1325-1328).
 Several expert witnesses called by the defense challenged the
accuracy of opinion testimony by government witnesses or testified
based on the physical evidence that it was unlikely that respondents
committed the murder (e.g., id. at 902-903, 1278-1290, 1312-1318).

   3. The Decision of the Court of Appeals

   The en banc court of appeals consolidated the Gouveia and Mills
cases.  By a vote of six to five, it reversed the convictions and
remanded for dismissal of the indictments.  The majority held that
when an inmate is separated from the general prison population for
more than 90 days pending a criminal investigation, the Sixth
Amendment requires that he be appointed counsel (App. A, infra, 17a).

   The majority recognized that under this Court's decisions the right
to counsel attaches only when formal judicial proceedings are
initiated.  It reasoned, however, that "(t)he point of 'accusation'
may be different for the prosecution of prison crimes, where the
subject is already incarcerated and subject to the discretion and
discipline of federal authorities" (App. A, infra, 7a).  Proceeding
from this premise, the majority concluded that, although separation of
inmates from the general prison population properly serves
disciplinary and security functions (id. at 10a), such detention
becomes "accusatory" when one of the purposes is to isolate the
prisoner pending investigation and trial (id. at 11a).

   The majority acknowledged (App. A, infra, 11a) that administrative
detention is necessary to further important governmental investigative
interests, such as the protection of potential witnesses in the prison
population.  However, it observed that such detention deprives the
prisoner of the opportunity to prepare a defense or even to keep track
of the location of other inmate-witnesses in a transient prisoner
population.  This inability, the majority reasoned, "distinguishes
(respondents) from suspects outside of prison who have not yet been
arrested or indicted;" the position of such detainees "more resembles
that of a suspect outside of prison who has been arrested and detained
than that of an outside suspect who has been neither arrested nor
detained" (id. at 12a).  The majority noted that a suspect outside
prison who is arrested and detained normally is arraigned without
delay, at which time the right to counsel attaches;  it concluded by
analogy that "the administrative detention of an indigent inmate who
is suspected of a crime does, under certain circumstances, give rise
to the right to appointed counsel" (id. at 13a, 15a).

   The majority then considered the circumstances under which
administrative detention would trigger the right to counsel.
Purporting to interpret applicable Bureau of Prisons regulations, the
majority concluded that the maximum stay in segregation for purely
disciplinary reasons is 90 days, and that any segregation for a period
exceeding 90 days must be for investigative purposes.  The majority
stated that "(i)f an inmate is held after the maximum disciplinary
period has expired, he should be allowed to show that his detention,
at least in part, is due to pending investigation or trial for a
criminal act." If the inmate establishes indigency and requests
counsel, "prison officials must either refute the inmate's showing,
appoint counsel, or release the inmate back into the general prison
population" (App. A, infra, 17a).  The majority concluded that prison
authorities had violated the 90-day rule it had fashioned and that
respondents thus had been denied the right to counsel.  /7/

   The majority then held that dismissal of the indictments was the
appropriate remedy (App. A, infra, 20a-23a).  It acknowledged (id. at
20a) that under United States v. Morrison, 449 U.S. 361, 364-365
(1981), the remedy for Sixth Amendment deprivations must be tailored
to the injury suffered.  It rejected the government's argument that
none of the respondents had demonstrated actual and specific
prejudice.  The majority concluded that the belated appointment of
counsel, coupled with respondents' prolonged administrative detention
following the murders, handicapped the ability of respondents'
attorneys to defend them at trial, citing the respondents' allegations
of prejudice and the statements of the district court that had
dismissed the indictments in the Mills case at the pretrial stage
(App. A, infra, 20a-23a).  The majority concluded that in any event it
was appropriate to presume prejudice because ordinarily it would be
difficult to prove or refute its existence (id. at 22a-23a).

   Judge Wright dissented in an opinion joined by Judges Choy,
Kennedy, Anderson, and Poole (App. A, infra, 24a-29a).  The dissenters
pointed out that the majority had confused right to counsel principles
with speedy trial principles when it applied a de facto accusation
concept.  They concluded that extension of the right to counsel to the
preindictment investigative period contravenes decisions in which this
Court has stated that the right to counsel attaches only at the time
adversary judicial proceedings are initiated.  The dissenters also
noted that the majority's presumption of prejudice and dismissal of
the indictment were inconsistent with United States v. Morrison,
supra.  The dissenters pointed out that the potential prejudice
referred to by the majority resulted primarily from the passage of
time, rather than ineffective assistance of counsel (App. A, infra,
28a), and that there are adequate remedies, short of dismissal of the
indictment, for prejudice resulting from any governmental interference
with access to witnesses (id. at 28a-29a).  The dissenters concluded
that the majority had departed substantially from Supreme Court
precedent and that "review by that Court is indicated" (id. at 29a).
/8/

                   REASONS FOR GRANTING THE PETITION

   The court of appeals' holding that the Sixth Amendment requires
appointment of counsel for indigent inmates held in administrative
detention pending criminal investigation represents a radical
departure from this Court's decisions defining the right to counsel.
Under those decisions, it is well established that the right to
counsel attaches only at the initiation of adversary judicial
proceedings.  The court of appeals nevertheless concluded that in the
prison setting the right to counsel arises wholly independent of the
filing of any formal judicial charges against an inmate.  /9/

   In addition, the court of appeals' conclusion that dismissal of the
indictment normally will be the appropriate remedy for the failure to
appoint counsel at an early stage, despite the absence of any specific
showing of substantial prejudice, conflicts with this Court's decision
in United States v. Morrison, 449 U.S. 361 (1981), which requires that
the remedy for a violation of the right to counsel be tailored to the
injury suffered.  The court's virtually irrebuttable presumption that
in such circumstances there will be irreparable prejudice to prison
inmates, resulting in denial of a fair trial, is not well founded.

   The court of appeals' "unprecedented expansion of the right to
counsel" (App. A, infra, 24a) will have a significant effect on the
administration of federal and state prisons and on the criminal
justice system in the Ninth Circuit.  The decision below threatens to
interfere with important security measures taken by prison authorities
in connection with prison crimes.  In addition, the court's conclusion
that dismissal of the indictment is the proper remedy means that not
only these respondents, but also many other individuals who have
committed serious institution crimes, will escape criminal penalties
entirely.  In view of the court of appeals' radical departure from the
decisions of this Court and the significant impact of the decision
below, review by this Court is warranted.

   1. Each respondent was placed in the administrative detention unit
at Lompoc after being identified as a suspect in a prison murder, and
each remained there until after he was indicted.  Bureau of Prisons
regulations define administrative detention as "the status of
confinement of an inmate in a special housing unit in a cell either by
himself or with other inmates which serves to remove the inmate from
the general population." 28 C.F.R. 541.20.  An administrative detainee
normally is confined to his cell except for regular exercise, shower,
and visitation periods, and he is deprived of the usual interaction
with his fellow prisoners that is provided by shared meals, work and
recreation.  However, administrative detainees generally are afforded
the same privileges as are made available to general population
inmates (e.g., commissary, visitation, and correspondence privileges).
 28 C.F.R. 541.20(d).  /10/

   Bureau of Prisons regulations provide that inmates may be placed in
administrative detention in a variety of circumstances.  28 C.F.R.
541.20(a).  In particular, prison officials may place an inmate in
administrative detention "when his continued presence in the general
population poses a serious threat to life, property, self, staff,
other inmates or to the security or orderly running of the institution
and when the inmate * * * (i)s pending investigation or trial for a
criminal act." Ibid.  /11/ Separation of inmate-suspects from the
general prison population during the course of a criminal
investigation serves important security purposes, including protection
of potential inmate-witnesses from intimidation and prevention of
subornation of perjury.  /12/ The federal concerns underlying such
detention are similar to state interests in detention of inmates
pending investigation, recognized by this Court in Hewitt v. Helms,
No. 81-638 (Feb. 22, 1983), slip op. 14-15:  "(The state) must protect
possible witnesses -- whose confinement leaves them particularly
vulnerable -- from retribution by the suspected wrongdoer, and, in
addition, has an interest in preventing attempts to persuade such
witnesses not to testify at disciplinary hearings." See also id. at 16
n.9 (noting that pendency of a state criminal investigation was a
factor properly taken into account in continuing administrative
detention).  These are the concerns that underlay the placement of
respondents in administrative detention during the time the FBI and
prosecutors conducted investigations of the murders.

   2. The decisions of this Court make clear that the Sixth Amendment
right to counsel attaches only at the initiation of adversary judicial
proceedings:

         In a line of constitutional cases in this Court stemming back
      to the Court's landmark opinion in Powell v. Alabama, 287 U.S.
      45, it has been firmly established that a person's Sixth and
      Fourteenth Amendment right to counsel attaches only at or after
      the time that adversary judicial proceedings have been initiated
      against him.  See Powell v. Alabama, supra;  Johnson v. Zerbst,
      304 U.S. 458;  Hamilton v. Alabama, 368 U.S. 52;  Gideon v.
      Wainwright, 372 U.S. 335;  White v. Maryland, 373 U.S. 59;
      Massiah v. United States, 377 U.S. 201;  United States v. Wade,
      388 U.S. 218;  Gilbert v. California, 388 U.S. 263;  Coleman v.
      Alabama, 399 U.S. 1.

   Kirby v. Illinois, 406 U.S. 682, 688 (1972) (plurality opinion).
Accord, Estelle v. Smith, 451 U.S. 454, 469-470 (1981);  Moore v.
Illinois, 434 U.S. 220, 226-227 (1977).  /13/ Of course, the Sixth
Amendment by its terms refers to rights in connection with "criminal
prosecutions." Moreover, practical considerations support the
conclusion that the right to counsel does not attach until the
commencement of adversary judicial proceedings:

         The initiation of judicial criminal proceedings is far from a
      mere formalism.  It is the starting point of our whole system of
      adversary criminal justice.  For it is only then that the
      government has committed itself to prosecute, and only then that
      the adverse positions of government and defendant have
      solidified.  It is then that a defendant finds himself faced
      with the prosecutorial forces of organized society, and immersed
      in the intricacies of substantive and procedural criminal law.
      It is this point, therefore, that marks the commencement of the
      "criminal prosecutions" to which alone the explicit guarantees
      of the Sixth Amendment are applicable.  See Powell v. Alabama,
      287 U.S. at 66-71;  Massiah v. United States, 377 U.S. 201;
      Spano v. New York, 360 U.S. 315, 324 (Douglas, J., concurring).

   Kirby v. Illinois, supra, 406 U.S. at 689-690 (footnote omitted).
Accord, Moore v. Illinois, supra, 434 U.S. at 227, 228.

   The court of appeals disregarded these well-established principles
in concluding that respondents' right to appointed counsel attached 90
days after they had been placed in administrative detention following
commission of a criminal offense -- at which point the government was
still conducting its investigation and had not yet determined whether
prosecution was warranted.  /14/ The court of appeals attempted to
avoid the apparent inconsistency between its holding and this Court's
right to counsel cases by announcing that an inmate becomes an
"accused" after 90 days of administrative detention (App. A, infra,
13a, 16a-17a).  This analysis is plainly wrong.  To begin with, even
if continuation of administrative detention were equivalent to some
sort of "accusation", it would not trigger the right to counsel, which
attaches only at the initiation of adversary judicial proceedings.
Moreover, assuming for the sake of argument that a speedy trial
analysis could be applied to the right to counsel (see id. at
24a-25a), the court's reasoning would still be incorrect.  It is not
detention alone that triggers the right to a speedy trial under the
Sixth Amendment;  rather, both arrest and "holding to answer a
criminal charge" are necessary to engage the speedy trial provision.
United States v. Marion, 404 U.S. 307, 320 (1971).  See also id. at
321 (referring to a defendant who "has been arrested and held to
answer");  United States v. MacDonald, 456 U.S. 1, 7 (1982) ("no Sixth
Amendment right to a speedy trial arises until charges are pending");
id. at 8-9 (speedy trial guarantee inapplicable once charges are
dismissed).  An inmate in administrative detention is not held to
answer a criminal charge until such a charge is made, e.g., at the
time of indictment.  /15/

   It is simply incorrect to view administrative detention as in any
way accusatory.  It is prison officials, not prosecutors, who make the
decision to place or retain an inmate in administrative detention.
The purpose of such detention is not to accuse or to initiate judicial
proceedings.  Rather, separation of an inmate from the general prison
population serves security purposes, including protection of other
inmates, prison staff, and the institution as a whole.  As the court
of appeals itself recognized (App. A, infra, 10a), administrative
detention "is perhaps the princip(al) remedy available to prison
officials when crime or other disturbances threaten the prison
environment." In particular, as we described above (pages 15-17),
administrative detention pending a criminal investigation or trial
serves significant security purposes, such as preventing suspects from
intimidating or injuring potential witnesses.  Detention for these
purposes does not amount to an "accusation." /16/

   The court of appeals concluded (App. A, infra, 11a-12a) that a
right to counsel at the preindictment stage would be appropriate
because it is difficult for an inmate in administrative detention to
conduct an investigation and prepare a defense to criminal charges
that might eventually be filed against him.  But this Court has never
suggested that a constitutional right to counsel attaches prior to
indictment whenever a potential defendant lacks investigative
resources.  /17/ Indeed, if this were the case, the government would
be required to provide counsel for many suspects, both inside and
outside prisons.  /18/

   In any event, the court of appeals' concerns about the ability of
respondents to investigate and prepare a defense are properly
addressed under due process standards, not under a Sixth Amendment
right to counsel analysis.  The sort of prejudice alleged by
respondents -- faded memories and inability to locate witnesses or
examine physical evidence -- is quite similar to that alleged in
United States v. Marion, 404 U.S. 307 (1971), and United States v.
Lovasco, 431 U.S. 783 (1977), in which the Court concluded that
allegations of prejudice resulting from preindictment delay are
properly addressed under a due process standard, rather than a Sixth
Amendment speedy trial analysis.  If respondents have any
constitutional claim that they were deprived of a fair trial as a
result of their administrative detention, that claim should be
evaluated under due process criteria, rather than under a right to
counsel analysis that is so clearly inconsistent with this Court's
decisions.

   3. The court of appeals also erred in concluding that dismissal of
the indictments was the appropriate remedy in the absence of any
specific showing of prejudice resulting from the failure to appoint
counsel during respondents' stay in administrative detention.
Dismissal of the indictment is a drastic remedy that is rarely
appropriate, even in the case of constitutional violations.  See,
e.g., United States v. Blue, 384 U.S. 251, 255 (1966).  This Court
stressed in United States v. Morrison, supra, 449 U.S. at 364-365
(footnote omitted), that "remedies should be tailored to the injury
suffered" and that "absent demonstrable prejudice, or substantial
threat thereof, dismissal of the indictment is plainly inappropriate,
even though the violation (of the right to counsel) may have been
deliberate." The Court pointed out in Morrison that in right to
counsel cases the proper approach is to identify and neutralize any
taint "by tailoring relief appropriate in the circumstances to assure
the defendant the effective assistance of counsel and a fair trial."
Id. at 365.

   Here the court of appeals made little effort to determine whether
respondents had suffered actual and significant prejudice as a result
of the failure to appoint counsel during the period of administrative
detention.  To the extent the court attempted to identify prejudice,
it relied on respondents' allegations and on the pretrial conclusions
of the district court that had dismissed the indictment in the Mills
case -- conclusions that a panel of the court of appeals subsequently
had found to be without foundation (see App. B, infra, 30a-40a).  The
court of appeals made no attempt to analyze whether these predictions
of prejudice had been borne out by events at trial.  In fact, the
court concluded that in the case of inmate-suspects who are held in
administrative detention during the preindictment period it is proper
to "presume prejudice because ordinarily it will be impossible
adequately either to prove or refute its existence" (App. A, infra,
22a).  The court of appeals suggested that its holding was in line
with Morrison because, in the court's view, the "potential for
substantial prejudice" resulting from the failure to appoint counsel
during administrative detention could not be cured by an after the
fact remedy (App. A, infra, 21a, 22a).  But Morrison surely requires
more than the potential for prejudice as a prerequisite to dismissal
of the indictment.

   This Court has made clear that courts must make case by case
evaluations to determine whether constitutional violations have
resulted in actual prejudice and whether such prejudice is so great
that dismissal of the indictment is warranted, even when this is not
an easy task.  In United States v. Marion, supra, 404 U.S. at 325-326,
the Court stressed that the possibility of prejudice in the form of
dimmed memories, inaccessible witnesses, and lost evidence resulting
from preindictment delay is not alone sufficient to establish that a
defendant will be deprived of a fair trial and to justify the drastic
remedy of barring the prosecution.  See also United States v. Lovasco,
supra, 431 U.S. at 796-797.  This requirement of a concrete showing of
prejudice applies even where the prosecutor has deliberately and
unfairly delayed indictment in an effort to secure a tactical
advantage at trial.  Id. at 790.  /19/ Respondents' allegations of
prejudice are quite similar to the kind that courts regularly evaluate
in passing upon claims of improper preindictment delay, and we find it
impossible to understand why the courts of appeals deemed it necessary
to dispense with such an inquiry in this context.

   We also take issue with the court of appeals' conclusion (App. A,
infra, 22a) that the circumstances of prison cases normally make it
impossible to determine whether prejudice has resulted from the
failure to appoint counsel during administrative detention.  In fact,
in view of the controlled conditions of prison life (resulting in a
limited number of potential witnesses and availability of inmate
rosters, photographs, and other records), it should usually be less
difficult than in other cases to determine whether preparation of an
inmate's defense has been impaired.  Moreover, at least in federal
prison cases, a court should consider the fact that those wrongly
suspected of crime are not without recourse.  The Bureau of Prisons
provides staff representatives to help inmates investigate and present
evidence in connection with prison disciplinary hearings.  Under 28
C.F.R. 541.15, the staff representative "shall be available to assist
the inmate if the inmate desires by speaking to witnesses and by
presenting favorable evidence to the (institution discipline
committee) on the merits of the charge(s) or in extenuation or
mitigation of the charge(s)." Thus, inmates normally will have had
access to the sort of assistance with which the court of appeals was
concerned.  /20/ Moreover, as in any case, the absence of some
potential witnesses may or may not make a difference, depending on the
defense theory and on the ability to locate other witnesses, as well
as on the strength of the prosecution's case.  If the testimony of
allegedly missing witnesses would have been cumulative to that of
witnesses who have been located, the absence of the former does not
warrant the drastic remedy of barring prosecution altogether.  /21/
Finally, in evaluating prejudice in cases like this one, a court
should take into account the fact that the prosecution also faces
significant investigative hurdles in the case of prison crime (see
App. A, infra, 11a), including difficulty in obtaining cooperation
from inmate-witnesses and a shortage of witnesses whom a jury is
likely to find credible.  Moreover, every defendant has the ultimate
protection of the prosecution's burden of proving guilt beyond a
reasonable doubt.

   Here, no substantial basis exists for concluding that the failure
to appoint counsel during administrative detention deprived
respondents of a fair trial.  Respondents' appointed counsel conducted
extensive investigation and presented "defenses of uncommon quality
and vigor" (App. A, infra, 28a).  At trial, the Gouveia respondents
presented 34 witnesses, including 14 alibi witnesses, while the Mills
respondents presented 42 witnesses, including six alibi witnesses.
See pages 6, 11, supra.  Although the Mills respondents complained
that they were prejudiced by deterioration of physical evidence, they
presented several expert witnesses who testified concerning that
evidence.  See page 11, supra.  Several of the Gouveia respondents
were not placed in administrative detention until approximately three
weeks after the murder occurred;  thus, they had some opportunity to
investigate and prepare defenses during the weeks immediately
following the offense -- presumably the most important time for
purposes of investigation.  /22/ In such circumstances, the court of
appeals should have analyzed the respondents' allegations of prejudice
in light of the evidence presented at trial, rather than simply
presuming that there would be prejudice in virtually every case
involving the failure to appoint counsel during administrative
detention.  /23/

   4. The decision below will have significant practical consequences
for the administration of federal and state prisons and for the
criminal justice process in the Ninth Circuit.  Under the decision,
after an indigent inmate has been in administrative detention for 90
days following commission of a criminal offense, prison officials must
choose between providing counsel for the inmate and returning him to
the general prison population.  As a practical matter, appointment of
counsel would require prison officials and the court to set up new
administrative procedures.  /24/ In addition, prison officials would
have to make arrangements to ensure that preindictment investigation
of the type envisioned by the court of appeals could be conducted
consistently with the maintenance of order in the institution and with
the need to avoid interference with ongoing FBI investigations.

   The alternative of releasing inmate-suspects into the general
prison population after 90 days of administrative detention would be
unacceptable in many instances.  As noted above, prison officials have
responsibilities to preserve order and to protect the integrity of
ongoing investigations.  These responsibilities normally will require
continued administrative detention of inmates pending investigation of
serious crimes.  While there may occasionally be useful investigation
that an inmate could conduct to vindicate his innocence, prison
officials would be derelict in their duties if they failed to take
into account the fact that often such "investigations" are likely to
consist of intimidating prospective witnesses and suborning perjury.
See, e.g., United States v. Castillo, 615 F.2d 878, 885 (9th Cir.
1980).

   The decision below is of particular concern if it is read to
prohibit transfer of an inmate-suspect to a higher security
institution following commission of a criminal offense.  /25/ Transfer
is an important administrative tool for prison officials who are
responsible for inmates who cannot safely be returned to the general
population.  See, e.g., Olim v. Wakinekona, No. 81-1581 (Apr. 26,
1983);  Howe v. Smith, 452 U.S. 473 (1981);  Meachum v. Fano, 427 U.S.
215 (1976);  Montanye v. Haymes, 427 U.S. 236 (1976).  The Bureau of
Prisons has informed us that during a recent 12-month period
approximately 400 inmates in detention following suspected commission
of an indictable offense were transferred before being returned to the
general prison population.  Of the 400, over 70 were transferred from
prisons located within the Ninth Circuit.  If as a result of the
decision below prison authorities may not transfer inmates found to
have participated in a prison murder, there would be a significant
threat to the security of federal prisons.

   Moreover, it is not at all clear that appointment of counsel during
administrative detention would contribute as significantly to an
inmate's investigation or preparation of a defense as the court of
appeals presumed.  Bureau of Prisons officials have informed us that
they are unaware of any instances in which retained counsel have
sought access to a prison to conduct an investigation prior to
indictment.  Of course, security concerns would make it virtually
impossible to allow counsel unsupervised access to the premises of a
prison or free rein to week out possible witnesses from among the
inmates.  Moreover, inmates may obtain the assistance of a staff
representative in connection with disciplinary proceedings.  See pages
24-25, supra.  Thus, an inmate who is sincerely interested in
exonerating himself already has access to an individual who is
responsible for investigation, interviewing witnesses, and presenting
a defense on behalf of the inmate.  See 28 C.F.R. 541.15(b).

   There are also significant practical concerns arising from the
court of appeals' conclusion, without analysis of actual prejudice or
alternative remedies, that the appropriate remedy in cases like this
one is dismissal of the indictment.  The two brutal murders in this
case are typical of the violent prison crimes that have become a
serious threat to the security of both federal and state institutions
in recent years.  See, e.g., App. B, infra, 31a (noting information
that Lompoc inmates committed at least 14 homocides in 1980);
Brothers in Blood:  Prison Gangs Formed by Racial Groups Pose Big
Problem in West, Wall St. J., May 11, 1983, Section 1, at 1, col. 1.

   If the decision below stands, the result will be that many
especially dangerous individuals who have committed serious
institution crimes will escape criminal penalties entirely.  On a
nationwide basis, the Bureau of Prisons has identified over 200
pending prosecutions for serious institution crimes (including 66 in
the Ninth Circuit).  The Bureau believes that many of the defendants
in these prosecutions were held in disciplinary segregation and/or
administrative detention for more than 90 days following the offense
and prior to indictment;  thus, indictments against them would
apparently have to be dismissed if the decision below is correct.
And, of course, the Ninth Circuit's novel rule casts a pall over the
viability of innumerable state prosecutions for prison crimes.  In
view of these consequences, and in light of the practical problems
federal and state prison officials will face as a result of the
decision below, it would be unduly burdensome if resolution of the
questions raised by the decision below were postponed.  Thus, review
of the decision below is plainly warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   CAROLYN F. CORWIN

      Assistant to the Solicitor General

   JOHN F. DE PUE

      Attorney

   JULY 1983

   /1/ "Tr." signifies the transcript in the case of the Gouveia
respondents.

   /2/ "C.R." signifies the district court Clerk's Record in the case
of the Gouveia respondents.  The number following the abbreviation
corresponds with the entry number on the district court docket sheet.

   /3/ The reasons for the decision to return respondents to ADU are
not set forth clearly in the record.  However, a prison form dated
December 1978, submitted as an exhibit to co-defendant Flores' motion
to dismiss, indicates that he was placed in ADU pending investigation
for violations of prison rules and crimes committed in the prison and
because his "(c)ontinued presence * * * in general population pose(d)
a serious threat" to other inmates and to the security of the
institution (C.R. No. 33, Exh. C).  Respondents apparently were
returned to ADU for similar reasons (see C.R. No. 60 at 1-2);  Gouveia
and and Ramirez presumably were returned to ADU for the additional
reason that they were pending transfer to another penal institution.
See 28 C.F.R. 541.20(a).

   /4/ Kinard entered a plea of guilty on the weapon conveyance count
prior to the first trial, with the understanding that the government
would seek dismissal of the remaining counts and that he would testify
on the government's behalf (Tr. 508-509).

   /5/ Several other prisoners corroborated portions of Kinard's
testimony.  For example, one inmate witness testified that Reynoso
returned from the prison disciplinary hearing and stated that he had
lost only about 20 days' good time and that, if that was all prison
authorities were going to do, he would kill again (Tr. 1214-1215).

   /6/ Judge Nelson issued a concurring opinion in which she stated
that respondents' due process claims could properly be raised at trial
(App. B, infra, 40a).

   Following the court of appeals' reversal of the order dismissing
the indictment, both respondents filed petitions for writs of
certiorari, which were denied by this Court.  454 U.S. 902 (1981).

   /7/ The majority found it unnecessary to reach respondents' claims
based on the Fifth and Eighth Amendments (App. A, infra, 5a).

   /8/ On May 16, 1983, the court of appeals stayed the issuance of
the mandate for a 90-day period commencing May 9, 1983.

   /9/ This case involves only the issue of the right to appointment
of counsel for indigent inmates.  The respondents were not denied the
opportunity to retain their own counsel during the time they were in
administrative detention (App. A, infra, 3a, 6a).  Nor was there any
claim that respondents' counsel rendered ineffective assistance apart
from the contention that failure to appoint counsel at an earlier
stage impeded the ability to mount a fully effective defense.

   /10/ Bureau of Prisons regulations distinguish between
"administrative detention" and "disciplinary segregation." Under the
regulations, "(i)nmates housed in disciplinary segregation have
significantly fewer privileges than those housed in administrative
detention." 28 C.F.R. 541.19(a).  The record appears to indicate that
respondents were in administrative detention, as opposed to
disciplinary segregation, during the entire period of their separation
from the general prison population.

   /11/ Under the regulations, an inmate may also be placed in
administrative detention if he is pending hearing or investigation in
connection with a violation of prison regulations, is pending transfer
to another institution, needs protection, or is terminating
confinement in disciplinary segregation and placement in the general
prison population is not prudent.  28 C.F.R. 541.20(a).

   /12/ For instance, there is evidence that members of the Aryan
Brotherhood, to which respondent Mills sought admission (Mills Tr.
562-563), have sworn to perjure themselves on behalf of fellow members
who may be prosecuted.  See United States v. Abel, 707 F.2d 1013, 1016
(9th Cir. 1983).

   /13/ The initiation of adversary judicial proceedings may occur at
the time of formal charge, preliminary hearing, indictment,
information, or arraignment.  See Estelle v. Smith, supra, 451 U.S. at
469-470;  Moore v. Illinois, supra, 434 U.S. at 226-229;  Kirby v.
Illinois, supra, 406 U.S. at 689.

   /14/ The court of appeals acknowledged (App. A, infra, 10a) that
there is no right to counsel in connection with prison disciplinary
proceedings.  See Baxter v. Palmigiano, 425 U.S. 308 (1976);  Wolff v.
McDonnell, 418 U.S. 539, 569-570 (1974).

   /15/ The court of appeals acknowledged (App. A, infra, 14a) that,
under its own case law and that of other circuits, segregation of an
inmate from the general prison population does not constitute an
"arrest" or "accusation" for speedy trial purposes.  See United States
v. Clardy, 540 F.2d 439, 441 (9th Cir.), cert. denied, 429 U.S. 963
(1976);  United States v. Blevins, 593 F.2d 646 (5th Cir. 1979);
United States v. Duke, 527 F.2d 386, 389-390 (5th Cir.), cert. denied,
426 U.S. 952 (1976).  See also United States v. Mills, 704 F.2d 1553,
1556-1557 (11th Cir. 1983).  It is thus especially ironic that it
should attempt to justify its decision by reference to speedy trial
criteria heretofore deemed irrelevant to the less elastic right to
counsel.

   /16/ Disciplinary segregation (as opposed to administrative
detention, see note 10, supra) may be imposed as punishment following
a prison disciplinary hearing.  Such segregation does not constitute
an "accusation" or initiation of a criminal prosecution to which Sixth
Amendment rights attach any more than does administrative detention.
In any event, as noted above (note 10), it does not appear that
respondents were held in disciplinary segregation at any time;
rather, they were in administrative detention.

   We note that in developing its theory of when separation from the
general prison population would become "accusatory," the court of
appeals appears to have misread Bureau of Prisons regulations.  The
court concluded (App. A, infra, 17a) that the maximum period of
segregation for disciplinary reasons would be 90 days.  However, under
28 C.F.R. 541.11 the maximum period of disciplinary segregation
following a disciplinary hearing is 60 days (assuming only one offense
is involved), while under 28 C.F.R. 541.20(a) an inmate may be held in
post-disciplinary detention for up to 90 days.  Thus, contrary to the
court of appeals' calculation, an inmate could spend a total of 150
days away from the general prison population after disciplinary
segregation had been imposed (or perhaps more if more than one offense
is involved).  No such specific time limits are imposed in connection
with administrative detention, although prison staff conduct periodic
reviews to determine whether continued detention is appropriate.  28
C.F.R. 541.20.

   /17/ Cf. Avery v. Alabama, 308 U.S. 444, 446 (1940) (noting that
the Constitution "nowhere specifies any period which must intervene
between the required appointment of counsel and trial");  United
States v. Ash, 413 U.S. 300 (1973) (right to counsel applies to
trial-like confrontations, not to prosecutor's investigations or
interviews with witnesses).

   /18/ As the dissenters noted (App. A, infra, 26a), obstacles
similar to those respondents faced may confront an individual who is
convicted and imprisoned for one crime while investigation for other
offenses is underway or an individual whose probation or parole is
revoked for renewed criminal activity.  Moreover,

         (e)ven free suspects often lack the investigatory advantages
      the majority attributes to them.  Many law enforcement
      investigations are confidential and continue for months or
      years.  Like (respondents), the targets in such cases have
      limited knowledge or none about the investigations.

   Ibid.

   /19/ More recently, in United States v. Valenzuela-Bernal, No.
81-450 (July 2, 1982), the Court required some showing of prejudice
even in a case in which (unlike this case) the government had acted to
remove from the reach of process individuals it knew to be percipient
witnesses.  The Court held that, under either the Compulsory Process
Clause of the Sixth Amendment or the Due Process Clause of the Fifth
Amendment, a defendant cannot establish that the government's
deportation of witnesses has resulted in deprivation of a fair trial
"unless there is some explanation of how their testimony would have
been favorable and material" (slip op. 14).  The Court stressed in
Valenzuela-Bernal that determinations of the materiality of a missing
witness's testimony often would be best made in light of all the
evidence adduced at trial (id. at 15).  See also United States v.
MacDonald, 435 U.S. 850, 858-859 (1978) (noting that a claim of
prejudice from violation of the right to a speedy trial is "best
considered only after the relevant facts have been developed at
trial").

   /20/ The record in this case indicates (Mills C.R. No. 59, Mills
Declaration at 28) that respondent Mills refused the offer of
assistance of a staff representative;  it is unclear whether the other
respondents took advantage of such assistance.

   /21/ Other factors also might indicate that a defendant has not
been deprived of a fair trial as a result of the failure to appoint
counsel during administrative detention.  The most obvious would be
acquittal;  here, the Gouveia respondents' co-defendant Flores was
acquitted, although he had been in administrative detention or at
another institution during most of the preindictment period and made
claims of prejudice similar to those made by respondents (see pages
2-3, 5, supra;  C.R. No. 33 at 15, 16, 18-19).

   /22/ Respondents Ramirez and Segura were not placed in
administrative detention until December 4, 1978 -- three weeks after
the murder of Trejo;  respondents Gouveia and Reynoso were released
from detention and returned to the general prison population in the
period between November 22 and December 4, 1978.  See pages 2-3,
supra.  The record contains no evidence that the respondents took
advantage of these periods to conduct investigations.

   /23/ In addition, as the dissenters poointed out below (App. A,
infra, 28a-29a), there are remedies short of dismissal of the
indictment (including cross-examination, argument to the jury, and
instructions concerning missing evidence) that can mitigate prejudice
in cases like this one.

   /24/ The court of appeals spoke in terms of prison officials
appointing counsel for indigent inmates (App. A, infra, 17a).  In
fact, however, the Bureau of Prisons itself has neither statutory
authority nor a source of funding with which to appoint counsel.
However, if the court of appeals' recognition of a Sixth Amendment
right to counsel in this context is correct, it appears that district
courts could appoint counsel pursuant to the Criminal Justice Act of
1964, 18 U.S.C. 3006A(a), on the motion of an inmate or the Bureau of
Prisons.  Here respondents did not apply to a district court for
appointment of counsel.

   /25/ Transfer of an inmate to another institution presumably would
interfere with his ability to investigate and prepare a defense even
more than would a continuation of administrative detention.  Indeed,
even if counsel were appointed, it is unclear whether the court of
appeals' decision would permit a transfer (e.g., from California to
the Marion Penitentiary in Illinois), since the result could be either
that the inmate and his counsel would be too far apart to confer
conveniently (if counsel were located in California), or that both
would be located a considerable distance from the scene of the crime
(if counsel were located in Illinois).

   Appendix Omitted