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

   No. 83-128

   In the Supreme Court of the United States

   October Term, 1983

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

   Brief for the United States

                      PARTIES TO THE PROCEEDINGS

   In addition to the parties shown by the caption of this case,
Robert Ramirez, Philip 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
      1. Respondents Gouveia, Ramirez, Segura and
          Reynoso
      2. Respondents Mills and Pierce
      3. The decision of the court of appeals
   Introduction and summary of argument
   Argument
      I. The Sixth Amendment does not require that counsel
          be appointed for an indigent prison inmate during the
          period he is held in administrative detention pending a
          criminal investigation but prior to the institution of
          adversary judicial proceedings
          A. The Sixth Amendment right to counsel attaches
              only at the time of institution of adversary judicial
              proceedings
          B. Segregation of an inmate from the general prison
              population pending a criminal investigation is not
              tantamount to a formal accusation that would trigger
              the right to counsel
          C. Respondents' allegations that they were deprived of
              the opportunity to investigate and prepare an effective
              defense do not support a departure from the longstanding
              principle governing attachment of the Sixth Amendment
              right to counsel
          II. Assuming arguendo that respondents had the right
              to appointment of counsel after being held in
              administrative detention for 90 days pending a criminal
              investigation, dismissal of the indictments was an
              inappropriate remedy in the absence of any showing of
              actual and specific prejudice
              A. This Court's decisions establish that
                  dismissal of the indictment is not a proper
                  remedy for violation of the right to counsel
                  in the absence of a showing of actual and
                  specific prejudice
              B. The record in this case refutes the
                  court of appeals' conclusion that prejudice
                  must be presumed in the prison setting
   Conclusion

                            OPINIONS BELOW

   The opinion of the en banc court of appeals (Pet. App. 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 (Pet. App. 30a-40a) is
reported at 641 F.2d 785.  An earlier opinion of the district court in
the case of respondents Mills and Pierce (Pet. App. 41a-50a) is
unreported.  The oral opinion of the district court denying motions to
dismiss the indictment in the case of the Gouveia respondents (J.A.
92-93) 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, 1983.  The petition was filed on that date and was
granted on October 17, 1983.  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 specific 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, all 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 (Pet. App.
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 (J.A. 8, 10, 15, 44, 50).  Inmates in ADU are
separated from the remainder of the prison population, and their
participation in various prison programs is curtailed.  However, they
are not deprived of regular visitation rights, exercise periods,
access to legal materials, and telephones from which they can make
unmonitored calls to attorneys.  See Pet. App. 3a, 6a;  28 C.F.R.
540.101, 540.102, 540.105, 541.21, 541.22, 543.11(j), 543.13;  J.A.
62;  Tr. 2411.

   On November 22, 1978, Gouveia, Reynoso, and Flores were removed
from ADU and returned to the general prison population (J.A. 8, 15,
50).  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 id. at 8, 12, 15, 31, 50).
Later in December, prison authorities conducted disciplinary hearings.
 Respondents requested appointment of counsel at the hearings, but the
requests were denied (e.g., id. at 15, 31, 45).  Prison officials
determined that the four respondents each had participated in the
murder of Trejo and ordered that they forfeit accumulated good time
and be returned to ADU (Pet. App. 2a;  Tr. 1214-1215).  /2/
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 population at Lompoc (J.A. 33-34, 46-47).

   In March 1979, after the FBI notified the United States Attorney of
the results of its investigation, presentation of the matter to a
grand jury commenced.  On June 17, 1980, the grand jury 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 (Pet. App. 3a).  /3/

   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 their 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 representations in support of 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 located four potential defense witnesses by using
inmate rosters furnished by the Bureau of Prisons;  however, Gouveia's
counsel asserted that he had been unable to obtain information about
two other potential witnesses (J.A. 47, 65).  Ramirez claimed that
because of his segregation from the general 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 identifies or
determine their whereabouts;  and that a potential witness had died
since the murder (id. at 34).  Reynoso alleged that, as the result of
his placement in ADU and the ensuing delay, it would be an "impossible
task" to locate inmate witnesses, many of whom he knew only by
nickname, and to corrobrate his alibi that he was watching a football
game at the time of the murder (id. at 19-20, 21).  Segura alleged
that he was unable to locate and interview potential witnesses because
they had been transferred to other penal institutions and because he
had insufficient means of identifying them, and that two alibi
witnesses had recently died (id. at 27).  Following oral argument, the
district court denied respondents' motions to dismiss on the ground
that "there has been an insufficient showing of actual prejudice to
the (respondents) by the passage of time" (id. at 92).

   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 (J.A. 1).

   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 that Trejo "had to go" by Christmas
because he had made a "bad move against la cliqua" while incarcerated
at Terminal Island (Tr. at 488-489);  Ramirez had arranged for another
inmate to make several knives with which the murder would be committed
(id. at 489-500);  and on the morning of the murder Reynoso stated
that "the fool had to be sent home today" (id. at 512-513).  Kinard
described the four respondents' actions in preparing for the murder
and disposing of the weapons and bloodstained clothing.  Kinard
related that, following the stabbing, Reynoso stated that "(t)he
fool's gone * * * he ain't got no heart left" and boasted that he had
held Trejo while the other respondents stabbed him (id. at 515-559).
/5/ The prosecution also introduced evidence that Gouveia's
fingerprints and palm print and Segura's palm print were discovered in
the cell in which the murder occurred (id. at 327-328, 443-444).

   Respondents called 34 witnesses, including 14 alibi witnesses, to
testify on their behalf (see Pet. App. 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.  See pages 56-57, infra, for a
description of testimony presented by respondents.

                    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. 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
(Pet. App. 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 ten 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" (Pet. App. 33a-34a;  J.A. 138, 139).  The
conditions of their confinement in ADU were identical to those
described above for the Gouveia respondents (Pet. App. 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 (Pet. App. 31a;  J.A. 129).
Mills declined the offer of assistance of a staff representative to
interview witnesses and help prepare his case for the disciplinary
proceeding (id. at 129-130).  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 (Pet. App. 4a).  In addition, prison officials
informed Mills that he would be transferred to the control unit at
Marion Penitentiary (J.A. 130).

   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 (Pet. App. 4a).  /6/

   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 crucial events took place" (Memorandum of Points and
Authorities in Support of Motion to Dismiss Indictment (Mills C.R. 59)
at 16).  /7/ 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;  J.A.
125-126, 149-155).  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. at 126;  Reply to Government's
Opposition to Motion to Dismiss (Mills C.R. 73) at 7-8).

   On August 14, 1980, the district court granted the motion to
dismiss the indictment (Pet. App. 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 ten-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 prejudiced 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 * * *" (id. at 49a, 50a).

   c. The court of appeals reversed (Pet. App. 30a-40a).  It rejected
the district court's holding that the ten-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 (id. at 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 noted respondents' claims of prejudice, but dismissed them as
speculative (id. at 36a-37a).  /8/

   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 (Mills Tr. 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 blood-stained 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.  Those witnesses testified, inter alia, that Mills and
Pierce were eating a meal at the time of the crime and were locked in
the dining hall with the other prisoners immediately after its
discovery, and that Hall's assailants were masked at all times, so
that their identities could not be determined.  See pages 57-59,
infra, for a description of testimony by respondents' witnesses.

                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 (Pet. App. 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" (Pet. App. 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 (Pet. App. 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" (Pet. App. 17a).  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" (ibid.).  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.  /9/

   The majority then held that dismissal of the indictments was the
appropriate remedy (Pet. App. 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 (Pet. App.
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 (Pet. App. 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.  They pointed out that the potential prejudice referred to by
the majority resulted primarily from the passage of time, rather than
from ineffective assistance of counsel (Pet. App. 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).

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   The court of appeals held that the Sixth Amendment requires
appointment of counsel for indigent inmates held in administrative
detention for more than 90 days pending criminal investigation.  It
held further that dismissal of the indictment is the proper remedy for
the failure to provide counsel under such circumstances.

   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 he was transferred to another institution.
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. 541.22).  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).  See 28 C.F.R. 541.22 (d);  J.A. 62.  /10/

   Bureau of Prisons regulations provide that inmates may be placed in
administrative detention in a variety of circumstances.  See 28 C.F.R.
541.22(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 a variety of important security purposes,
including protection of potential inmate-witnesses from intimidation
and prevention of subornation of perjury.  It is these all too
substantial concerns that underlay the placement of respondents in
administrative detention during the time the FBI and prosecutors
investigated the murders.

   2. a. The court of appeals erred in concluding that the Sixth
Amendment requires that counsel be appointed for an indigent prison
inmate who is in administrative detention pending a criminal
investigation.  This Court has held consistently that the Sixth
Amendment right to counsel attaches only at or after the institution
of adversary judicial proceedings.  Thus, respondents had no right to
appointment of counsel until they were indicted.

   The court of appeals' attempt to analogize segregation of an inmate
from the general prison population for more than 90 days pending a
criminal investigation to a formal accusation is misplaced.  It is
prison authorities, not prosecutors, who impose administrative
detention;  moreover, the purpose of such detention is not to accuse
but to preserve the safety of others (particularly potential
witnesses) and the security of the institution.  The court of appeals'
additional analogy to an arrest outside prison walls also fails to
support its right to counsel analysis.  It is not arrest alone that
triggers Sixth Amendment rights;  rather, it is arrest and holding to
answer a criminal charge.  Respondents were not held to answer a
criminal charge until they were indicted.

   The court of appeals based its departure from well-settled right to
counsel principles in part on its belief that an inmate who is held in
administrative detention is severely disadvantaged, in comparison to
an inmate in the general prison population, in his ability to conduct
an investigation of the crime and to prepare a defense during the
period prior to the time he is actually charged.  We submit that the
court of appeals erred by, on the one hand, underestimating the
opportunities available to inmates in administrative detention to take
steps to preserve favorable evidence and, on the other hand,
exaggerating the likelihood that inmates released to the general
prison population would take significant and legitimate actions to
gather evidence that would be unavailable if they remained in
segregation.  In fact, these differences are not of sufficient
consequence to justify the court of appeals' departure from settled
Sixth Amendment principles.

   b. Assuming arguendo that respondents had a Sixth Amendment right
to appointment of counsel after they had been held in administrative
detention for 90 days pending criminal investigation, the court of
appeals erred in concluding that dismissal of the indictments was the
proper remedy when there was no showing of actual and specific
prejudice.  This Court has made clear that dismissal of the indictment
normally is not an appropriate remedy even for deliberate violations
of the right to counsel.  See United States v. Morrison, 449 U.S. 361,
364-365 (1981).  The court of appeals' conclusion that dismissal of
the indictment can be based on a potential for prejudice or that a
presumption of prejudice is appropriate in connection with
administrative detention is inconsistent with the principles
articulated in Morrison.  In fact, a court must conduct a
case-specific, post-trial analysis to determine whether a defendant
has suffered actual and specific prejudice as a result of the failure
to appoint counsel in the preindictment period.

   The record in this case illustrates the court of appeals' error in
presuming prejudice in connection with administrative detention.  In
alleging prejudice, respondents failed to show what testimony alleged
missing witnesses would have given and how it would have aided the
defense;  moreover, they did not explain why the testimony would not
have been cumulative in view of the numerous alibi witnesses they
presented at trial.  In addition, respondents Mills and Pierce failed
to show that they were prejudiced by the deterioration of physical
evidence, which in any event could not have been prevented by their
release from administrative detention.

                               ARGUMENT

 I. THE SIXTH AMENDMENT DOES NOT REQUIRE THAT COUNSEL BE APPOINTED FOR
AN INDIGENT PRISON INMATE DURING THE PERIOD HE IS HELD IN
ADMINISTRATIVE DETENTION PENDING A CRIMINAL INVESTIGATION BUT PRIOR TO
THE INSTITUTION OF ADVERSARY JUDICIAL PROCEEDINGS

   The court of appeals' conclusion (Pet. App. 17a) that an indigent
inmate who is segregated from the general prison population for more
than 90 days because of an ongoing investigation of a prison crime
must either be appointed counsel or returned to the general prison
population represents a radical departure from the decisions of this
Court, which has held consistently that the right to counsel attaches
only at the initiation of adversary judicial proceedings.  Nothing in
the circumstances of this case warrants the court of appeals'
"unprecedented expansion of the right to counsel" (id. at 24a).  /12/

 A. The Sixth Amendment Right to Counsel Attaches Only At the Time of
Institution of Adversary Judicial Proceedings

   The Sixth Amendment guarantees that "(i)n all criminal
prosecutions, the accused shall enjoy the right * * * to have the
Assistance of Counsel for his defence." This Court's decisions firmly
establish, as the text of the provision itself suggests, that the
right to counsel attaches only at or after 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.

                      * * * * *

         * * * (W)hile members of the Court have differed as to
      existence of the right to counsel in the contexts of some of the
      above cases, all of those cases have involved points of time at
      or after the initiation of adversary judicial criminal
      proceedings -- whether by way of formal charge, preliminary
      hearing, indictment, information, or arraignment.

   Kirby v. Illinois, 406 U.S. 682, 688-689 (1972) (plurality opinion)
(emphasis in original).  The Court has reaffirmed this principle on
several occasions since the Kirby decision.  See Estelle v. Smith, 451
U.S. 454, 469-470 (1981);  Moore v. Illinois, 434 U.S.220, 226-227
(1977);  Brewer v. Williams, 430 U.S. 387, 398-399 (1977);  United
States v. Mandujano, 425 U.S. 564, 581 (1976) (opinion of Burger,
C.J.).  /13/

   The Court's holding that the right to counsel does not attach until
the initiation of adversary judicial proceedings is firmly grounded in
both the language and the purposes of the Sixth Amendment.  That
provision refers to the right to counsel in "criminal prosecutions"
only.  See Kirby v. Illinois, 406 U.S. at 690.  "The requirement that
there be a 'prosecution,' means that this constitutional 'right to
counsel attaches only at or after the time that adversary judicial
proceedings have been initiated against (an accused) * * *.'" United
States v. Ash, 413 U.S. 300, 321-322 (1973) (Stewart, J., concurring)
(quoting Kirby, 406 U.S. at 688).  Until the initiation of adversary
judicial proceedings -- through formal charge, preliminary hearing,
indictment, information, or arraignment /14/ -- there is no
"prosecution" to which the right of counsel can attach.

   The purposes served by the Sixth Amendment right to counsel also
support the Court's reading.  One purpose is to ensure that an accused
may be guided in the intricacies of the law at every "critical stage"
of the proceedings against him.  See, e.g., United States v. Ash, 413
U.S. at 307-308, 311;  Coleman v. Alabama, 399 U.S. 1, 7 (1970)
(plurality opinion);  United States v. Wade, 388 U.S. 218, 227 (1967).
 As the Court explained in Powell v. Alabama, 287 U.S. 45, 69 (1932),
an accused needs counsel in order to determine "whether the indictment
is good or bad," to aid him with "the rules of evidence," to ensure
that he is not "put on trial without a proper charge, and convicted
upon incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible," and to provide "the skill and knowledge
adequately to prepare his defense." Accord, Gideon v. Wainwright, 372
U.S. 335, 345 (1963).

   The right to counsel also helps to minimize the imbalance in the
adversary system that resulted from the creation of the office of
public prosecutor.  The Sixth Amendment "embodies a realistic
recognition of the obvious truth that the average defendant does not
have the professional legal skill to protect himself when brought
before a tribunal with power to take his life or liberty, wherein the
prosecution is presented by experienced and learned counsel." Johnson
v. Zerbst, 304 U.S. 458, 462-463 (1938).  See also United States v.
Ash, 413 U.S. at 309.  The test for determining whether the right to
counsel attaches to a particular event in order to determine whether
the accused required aid in coping with legal problems or assistance
in meeting his adversary" (id. at 313).

   The initiation of adversary judicial criminal proceedings -- the
point at which the right to counsel attaches -- "is far from a mere
formalism" (Kirby v. Illinois, 406 U.S. at 689).  "(I)t 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." Ibid.  The
right is "historically and rationally applicable only after the onset
of formal prosecutorial proceedings" (id. at 690).

   In this case there was no adversary judicial proceeding prior to
the dates the respondents were indicted.  During the period prior to
indictment, when prison officials held respondents in administrative
detention, the government had not initiated a criminal prosecution.
Thus, under this Court's decisions, the right to counsel did not
attach during that period, and appointment of counsel was not required
by the Sixth Amendment.

 B. Segregation of an Inmate From the General Prison Population
Pending a Criminal Investigation Is Not Tantamount to a Formal
Accusation That Would Trigger the Right to Counsel

   The court of appeals attempted to justify its departure from this
Court's right to counsel decisions by suggesting that the statements
in those decisions do not apply to a "prison case" (Pet. App. 7a).
According to the court of appeals (id. at 11a), "(a)dministrative
detention at times serves an accusatory function * * *." Based on its
reading of Bureau of Prisons regulations, the court of appeals created
a presumption that any period of segregation of more than 90 days
following a prison crime is tantamount to "an accusation which
generates a Sixth Amendment right to the assistance of counsel" (id.
at 18a).  /15/ But that reasoning is plainly wrong and does not
support the court of appeals' conclusion that a right to counsel
attaches during the period of administrative detention.

   The court of appeals erred in equating segregation from the general
prison population for more than 90 days with an accusation that
initiates a criminal prosecution.  It is prison authorities, not
prosecutors or police, who make the decision to place an inmate in
administrative detention and to retain him there.  /16/ The Fifth
Circuit explained this point in United States v. Duke, 527 F.2d 386,
390, cert. denied, 426 U.S. 952 (1976) (emphasis added):

         (A)dministrative segregation is an internal disciplinary
      means of classifying prisoners, utilized under the almost total
      discretion of prison officials * * *.  Used as a method of
      disciplining or investigating inmates who break prison
      regulations, of protecting certain inmates from members of the
      general population, and of providing a general cooling-down
      period for inmates involved in events that could disrupt the
      general population, administrative segregation accompanying the
      breach of a prison regulation is in no way related to or
      dependent on prosecution by the federal government of an inmate
      for th(e) same offense as a violation of federal criminal law.

   See also United States v. Mills, 704 F.2d 1553, 1557 (11th Cir.
1983), petition for cert. pending, No. 83-5286 (disciplinary
segregation, like administrative segregation, is "distinct from the
judicial system").  /17/

   The purpose of administrative detention is not to accuse an inmate
or to initiate adversary judicial proceedings.  Rather, the objective
is to maintain prison security and to assure the safety of prison
staff and other inmates, including potential witnesses.  /18/ Prison
officials place an inmate in administrative detention only upon
concluding that "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 * * *" (28
C.F.R. 541.22(a)).  The reasons for detention include, inter alia, a
pending hearing or investigation for a violation of institution
regulations or a pending investigation or trial for a criminal act (28
C.F.R. 541.22(a) (1)-(3)).  In fact there are frequently several
independent and concurrent reasons for keeping an inmate in
administrative detention during the period in which he is under
criminal investigation.  Once prison officials conclude that an inmate
has committed a murder, they may believe it necessary to segregate him
in order to protect prison staff members and other inmates, regardless
of whether a criminal investigation is pending.  /19/ Such inmates are
likely to be among the most dangerous in the prison system, and prison
officials would be remiss in failing to take protective measures that
may include administrative detention.  In addition, an inmate who has
been found by prison officials to have committed a violent prison
crime may be held in administrative detention pending transfer to a
higher security level institution when space permits.  See 28 C.F.R.
541.22(a)(4).

   Consistent with the regulations, respondents were kept in
administrative detention because of the pendency of the criminal
investigation of the murders they were suspected of committing and
also because of prison officials' belief that their "(c)ontinued
presence * * * in the general population (would) pose() a serious
threat" to other inmates "and to the security of the institution"
(J.A. 10, 12, 138, 139).  See pages 3-4 note 2, 7-8 supra.
Respondents Mills, Pierce, Gouveia and Ramirez presumably were kept in
administrative detention for the additional reason that they were
pending transfer to another penal institution.  See Pet. App. 44a;
J.A. 33-34, 46-47, 130.  /20/

   Even if respondents had been segregated from the general prison
population for the sole reason that they were pending criminal
investigation, it is abundantly clear that such detention cannot be
equated with accusation for Sixth Amendment purposes.  This Court has
recognized that segregation of inmate-suspects from the general prison
population pending investigation of prison offenses serves important
security purposes, especially the protection of potential witnesses.
In Hewitt v. Helms, No. 81-638 (Feb. 22, 1983), slip op. 12 (citations
omitted), the Court stated:

         The safety of the institution's guards and inmates is perhaps
      the most fundamental responsibility of the prison
      administration.  Likewise, the isolation of a prisoner pending
      investigation of misconduct charges against him serves important
      institutional interests relating to the insulating of possible
      witnesses from coercion or harm.

   It went on to note that 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" (id. at 14-15).  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 concerns are by no means trivial.  In the Gouveia case, the
prosecutor informed the district court that he was reluctant to turn
over to the defense a month before trial the names of six
inmate-witnesses whose testimony the government planned to present,
since three of the six had been the objects of attempted murders when
it became known that they were interested in cooperating with the
government.  See Aug. 18, 1980, Hearing Tr. 27-28.  /21/ Plainly the
administrative detention of inmate-suspects pending a criminal
investigation does not constitute some sort of symbolic "accusation";
the heart of the rationale for such detention is practical --
protection of potential inmate-witnesses from intimidation and
prevention of subornation of perjury.

   The court of appeals attempted to bolster its analysis by drawing
an analogy between administrative detention of an inmate and arrest of
a suspect outside prison.  The court noted (Pet. App. 12a-13a) that
outside prison a suspect who is arrested and detained must appear
before a magistrate without unnecessary delay and that such a suspect
would be guaranteed the assistance of counsel at the time of that
appearance.  But it is not arrest and detention by law enforcement
authorities that triggers the Sixth Amendment right to counsel;
rather, it is the decision by prosecutors to initiate formal adversary
judicial proceedings.  /22/ "An arrest on probable cause without a
warrant, even though that arrest is for the crime with which the
defendant is eventually charged, does not initiate adversary judicial
criminal proceedings * * *." Caver v. Alabama, 577 F.2d 1188, 1195
(5th Cir. 1978).  See also Kirby v. Illinois, supra (no right to
counsel at preindictment show-up following arrest);  Lomax v. Alabama,
629 F.2d 413, 415-416 (5th Cir. 1980), cert. denied, 450 U.S. 1002
(1981) (arrest with or without a warrant falls far short of an
official accusation by the state that would trigger a right to counsel
for the arrested individual).

   The court of appeals invoked cases involving the Sixth Amendment
right to a speedy trial in support of its arrest analogy.  See Pet.
App. 7a-8a, 24a-25a.  But the decisions in those cases make clear that
the speedy trial right is not triggered merely by arrest or detention;
 instead, both arrest and holding to answer a criminal charge (which
is necessary if authorities are to continue to hold a suspect) are
required in order to engage the right to a speedy trial.  See 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;
United States v. Marion, 404 U.S. 307, 320 (1971) ("it is either a
formal indictment or information or else the actual restraints imposed
by arrest and holding to answer a criminal charge" that engage the
right to a speedy trial);  id. at 321 (referring to a defendant who
"has been arrested and held to answer").  Cf. Dillingham v. United
States, 423 U.S. 64 (1975).  Respondents were not held to answer a
criminal charge until they were indicted.  See United States v. Duke,
527 F.2d at 389-390 (for purposes of speedy trial analysis, defendant
was not "charged" with a crime while he was in administrative
segregation).  /23/ Thus, the court of appeals' analogy to an
individual arrested outside the prison setting is simply inadequate to
support its creation of a right to counsel.

 C. Respondents' Allegations That They Were Deprived of the
Opportunity to Investigate and Prepare an Effective Defense Do Not
Support a Departure From the Longstanding Principle Governing
Attachment of the Sixth Amendment Right to Counsel

   As we have shown above, the general principle that Sixth Amendment
assistance of counsel rights do not attach prior to the institution of
formal judicial proceedings is well settled.  The question here is
whether the court of appeals was correct in carving out an exception
-- impossible to discern in the constitutional text -- for prisoner
suspects segregated from the general prison population for more than
90 days.

   The court of appeals did not hold that indigents suspected of
crimes must generally be appointed counsel under the Sixth Amendment
-- although such action would doubtless be of some value to their
ability to mount an effective defense in the event they are ultimately
charged.  Nor did it find such a right for incarcerated indigent
suspects as a class.  Each of these in turn might be seen as logical
developments growing out of the court of appeals' initial departure
from the general Sixth Amendment rule, but at this juncture they so
manifestly contradict the basic principles laid down by this Court
that they were doubtless recognized to be beyond the innovative powers
of a lower court.  /24/

   Here, the triggering event was solely the retention of an inmate in
segregated status for a period in excess of 90 days.  Had respondents
been released into the general prison population at that juncture, the
court of appeals would have found no constitutional right to
appointment of counsel.  In assessing the need for preindictment
counsel in this case, therefore, the critical focus cannot be on the
benefits that appointment of counsel might have afforded to the
presentation of a defense at trial, but solely on the differences
between custody in administrative segregation and custody in the
general prison population for purposes of preparing a defense against
charges that have not yet been preferred.  In evaluating this matter,
we think the court of appeals doubly erred:  it underestimated the
opportunities available to inmates in segregation to take steps to
preserve favorable evidence;  and it exaggerated the likelihood that
inmates released to the general prison population would take material,
legitimate actions to gather evidence that would be unavailable if
they remained in segregation.  Realistically viewed, these differences
are not of such consequence as to justify the departure from settled
Sixth Amendment principles undertaken by the court of appeals.  /25/

   In assessing the court of appeals' conclusions regarding an
inmate-suspect's need for the assistance of counsel in the
preindictment period, it is important to recall, as an initial matter,
that there are natural obstacles to preparation of any criminal case
during the preindictment period -- obstacles that affect both the
prosecution and the defense and that exist in connection with
nonprison crimes as well as prison crimes.  In particular, the passage
of time ordinarily makes investigation and preparation of a case more
difficult.  In any criminal case, witnesses may disappear or die,
memories may fade, and physical evidence may deteriorate during the
preindictment period.  These vicissitudes do not in any other context
expand the right to appointment of counsel to the preaccusation stage.

   In general, these normal obstacles to preindictment investigation
work in favor of the defense.  That is because the prosecution bears
the heavy burden of proving guilt beyond a reasonable doubt in any
criminal case.  That burden of proof, which represents the basic
protection for defendants under our system of criminal justice,
largely compensates for the investigative difficulties a suspect may
face during the preindictment period, regardless of whether an offense
occurs inside or outside prison.

   While prison crimes may present some special problems, they are not
inevitably more difficult to investigate than nonprison crimes.
Depending on the circumstances, nonprison crimes may present serious
investigative problems.  For example, when an offense has occurred on
a busy street and anonymous witnesses have dispersed, both the
prosecution and the defense may have great difficulty in conducting an
investigation.  In addition, as the dissenters noted (Pet. App. 26a))

         (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.

   The dissenters also noted (ibid.) that obstacles similar to those
respondents faced may confront an individual who is convicted and
imprisoned for one crime while investigation for other (nonprison)
offenses is underway or an individual whose probation or parole is
revoked based on renewed criminal activity.  Indeed, in any criminal
case it probably will be difficult for an indigent suspect to
accomplish the same things a lawyer could in the preindictment period
-- and there is little basis for supposing that suspects ordinarily
attempt their own preindictment investigations.  Perhaps, in an ideal
world, the government could provide counsel prior to indictment for
every indigent suspect who could benefit from such assistance in
overcoming investigative difficulties.  But no court has ever
suggested that the Constitution confers such a wide-ranging
entitlement.

   In any event, assuming with the court of appeals that the relevant
comparison is between administrative detention and the general prison
population, the court of appeals appears to have overestimated the
incremental impact on the ability to investigate suffered by an inmate
who is moved from the general population to administrative detention.
/26/ Any inmate-suspect has certain important opportunities to
investigate and preserve the names of witnesses, regardless of whether
he is in the general prison population or in administrative detention.
 An inmate who chooses to attempt to clear himself by providing full
information about his activities to FBI investigators will ensure
preservation of information concerning witnesses in the form of a
detailed FBI report of the interview.  See, e.g., J.A. 23-25, 35-37,
53-61.

   In addition, normally there will be a prison disciplinary
proceeding following any prison offense.  In connection with that
proceeding prison officials ask inmate-suspects to list any witnesses
who might provide information about whether the inmate participated in
the offense.  See 28 C.F.R. 541.15(i).  Thus, an inmate who is
interested in clearing his name can provide information that will be
summarized in disciplinary records and thereby preserved;  that
information would then be available for the inmate to use in a later
criminal proceeding. In fact, the inmate can obtain individualized
assistance in preparing for a disciplinary hearing.  The Bureau of
Prisons provides staff representatives to assist inmate-suspects in
collecting and presenting evidence in connection with prison
disciplinary hearings.  Under 28 C.F.R. 541.17(b), 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 disciplinary committee) on the merits of the
charge(s) or in extenuation or mitigation * * *." /27/

   Prison disciplinary hearings take place soon after an offense has
occurred (see 28 C.F.R. 541.15(b), (k)) -- within several weeks of the
offense in each of these cases (see pages 3, 8, supra).  Thus, in the
period when memories are still fresh, any inmate-suspect can obtain
the sort of investigative assistance the court below deemed necessary
to preserve the right to a fair trial in a subsequent criminal
prosecution and can preserve information about identities of potential
witnesses.  /28/

   The court of appeals believed that an inmate-suspect would have no
opportunity to identify potential witnesses and to establish their
real names unless he were returned to the general prison population
within several months of the offense.  But even apart from the
opportunities for preserving lists of witnesses in connection with
disciplinary hearings or FBI interviews, an inmate-suspect in
administrative detention is not without means to obtain information.
Some inmate-suspects may have been in the general prison population
for at least part of the time following the offense (as was the case
with the Gouveia respondents) /29/ and thus would have an opportunity
to identify witnesses during that period.  Inmates in administrative
detention may submit formal requests for assistance to prison staff
members and may appeal to the warden of the institution if such
requests were denied.  See U.S. Dep't of Justice, Federal Prison
System Program Statement No. 5511.1 (May 14, 1981).  /30/ If an inmate
made clear that such a request was in connection with preparation of
his defense to anticipated criminal charges, prison officials could be
expected to take steps to obtain and preserve the requested
information.  In addition, inmates in administrative detention have
visitation and telephone privileges, as well as contact with guards,
counselors, and other inmates who are in administrative detention on a
short-term basis.  Communication between inmates in administrative
detention and inmates in the general population, either through
outsiders or through the "prison grapevine," is not uncommon.  Indeed,
during the trial in the Gouveia case, several inmate-witnesses
testified to direct communication between inmates in administrative
detention and those in the general population (e.g., through windows
or vents or in the visitation area).  See Tr. 1215-1216, 1644-1645,
1650-1651, 2427, 2567-2568.

   On the other side of the coin, an inmate who remains in the general
prison population does not have unlimited opportunities to pursue
investigations.  Such an inmate would not have access to physical
evidence in the custody of the FBI and would be unable to perform his
own expert analysis of that evidence or to take steps to preserve it.
/31/ Inmates in the general prison population have more opportunities
for contact with other inmates than do those in administrative
detention.  However, inmates in the general population do not have
unlimited access to any part of the institution;  limitations on an
inmate's schedule and on his ability to enter units other than his own
(see Mills Tr. 223-224) could circumscribe his ability to locate
witnesses.  /32/

   Moreover, we question the extent to which most inmate-suspects
would conduct legitimate investigations if they were returned to the
general prison population.  Prison officials would be derelict in
their duties if they failed to take into account the possibility that
"investigations" by inmate-suspects may take the form of intimidating
witnesses and suborning perjury.  See pages 27-29 & note 21, supra.
Depending on the nature of the offense, even if an inmate-suspect
wished to prepare a defense, he might not be able to accomplish much
of use before he learned the nature of the government's case against
him (i.e., before the indictment is handed down).  /33/ In this
connection, 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.

   Respondents have alleged the existence of numerous missing or
deceased witnesses whom they would have identified, or whose testimony
they could have preserved, if they had not been in administrative
detention during the preindictment period.  It is hard to avoid
viewing such claims with a certain amount of skepticism.  It is, of
course, a simple matter for a defendant to invent witnesses known only
by nickname, while it is virtually impossible for the prosecution to
disprove the existence or alleged usefulness of such hypothetical
individuals.  /34/ In addition, a defendant can freely attribute guilt
or exculpatory knowledge to any inmate who happens to die prior to
trial.  Indeed, there are a suspiciously large number of deceased
witnesses who were alleged to be critical to the defense in the
Gouveia case.  /35/

   To the extent an inmate-suspect (whether he has been in
administrative detention or in the general population) has been unable
to gather information prior to indictment, his counsel nevertheless is
not without resources with which to trace potential witnesses once an
indictment has been returned.  Because of the controlled conditions of
prison life, the number of potential witnesses to a prison crime
normally is limited to the inmates and staff members assigned to the
institution who have access to the area in which the crime occurred or
in which the inmate claims to have been at the time of the crime.
Although the transient nature of a prison population may complicate
efforts to identify and locate witnesses, an institution may be able
to provide inmate rosters that would help a defendant recall names of
potential witnesses.  Inmate photographs may be available to assist
defendants who claim that they cannot recall names of potential
witnesses or that they know only prison nicknames.  The Bureau of
Prisons locator system or local probation offices may be able to
provide information on the location of potential witnesses who have
been transferred to a different institution or released.  See 28
C.F.R. 2.40(a)(4) (requiring parolees to notify their probation
officers of changes in residence);  J.A. 65-78.  In addition,
defendants may obtain substantial assistance from discovery of
exculpatory information in the government's possession.  See, e.g.,
Brady v. Maryland 373 U.S. 83 (1963);  Fed. R. Crim. P. 16(a)(1).  In
this case, respondents were able to take advantage of several of these
possibilities.  /36/ Indeed, there is nothing in the record to
disprove the conclusion (and respondents never suggested otherwise)
that by the time of trial they had located every potential witness of
any significance whom they had been unable to find at the time of the
pretrial motions.  See pages 56-58, infra.

   Again, we stress that an inmate-suspect in administrative detention
has the ultimate advantage in a later criminal proceeding -- the
prosecution's burden of proving guilt beyond a reasonable doubt.
Furthermore, it is worth noting that the prosecution itself faces
significant hurdles in investigating prison crime, including
difficulty in obtaining cooperation from inmate-witnesses and a
shortage of witnesses whom a jury is likely to find credible.  See,
e.g., Mills Tr. 720-721, 781-782, 851-852, 1441-1445.  See also United
States v. Mills, 704 F.2d at 1557 (death of key witnesses was
prejudicial to both defense and prosecution);  United States v.
Clardy, 540 F.2d at 442.

   We do not suggest that inmate-suspects would never have a remedy in
cases like these.  If an inmate could show that prison officials
wrongly interfered with his good faith efforts to preserve a defense
(for instance, by refusing to make a record of potential witnesses
suggested by the inmate at the time of the disciplinary hearing) and
that he suffered actual and specific prejudice from such failure,
perhaps the inmate could assert a due process claim.  Compare, e.g.,
United States v. Ash, 413 U.S. at 320 (proper safeguard against abuses
during pretrial photographic display is not expansion of the right to
counsel but rather prosecutor's ethical responsibility and review
under the Due Process Clause);  Kirby v. Illinois, 406 U.S. at 690-691
(proper safeguard against prejudicial procedures at a preindictment
lineup is review under the Due Process Clause).  See also United
States v. Lovasco, 431 U.S. 783, 789-790 (1977) (due process inquiry
into reasons for delay and prejudice to accused is appropriate in
cases involving claims of preindictment delay);  United States v.
Marion, 404 U.S. 307, 324 (1977).  But there is no indication in this
case that prison officials refused to cooperate with legitimate
attempts by respondents to preserve a defense.  Rather, to the extent
the record speaks to this point, it appears that prison officials and
FBI investigators urged respondents to provide information that would
clear them of suspicision.  See, e.g., J.A. 35, 129-130.  It is
respondents themselves who declined to take opportunities offered to
them to preserve their defenses.  See, e.g., J.A. 56, 129-130, 136.
Thus, there could be no basis for a finding that any constitutional
right of respondents was violated.

               II. ASSUMING ARGUENDO THAT RESPONDENTS

                HAD THE RIGHT TO APPOINTMENT OF COUNSEL

                  AFTER BEING HELD IN ADMINISTRATIVE

               DETENTION FOR 90 DAYS PENDING A CRIMINAL

              INVESTIGATION, DISMISSAL OF THE INDICTMENTS

                  WAS AN INAPPROPRIATE REMEDY IN THE

                 ABSENCE OF ANY SHOWING OF ACTUAL AND

                          SPECIFIC PREJUDICE

   Even if the Court should conclude that respondents had a right to
appointed counsel during the time they were in administrative
detention, the court of appeals erred in ordering dismissal of the
charges.  The court decided (Pet. App. 20a-23a) that dismissal of the
indictments was the only possible remedy for prejudice respondents may
have suffered as a result of the failure to have appointed counsel at
the preindictment stage.  It concluded (id. at 22a) that the failure
to appoint counsel created a "potential of substantial prejudice" that
was sufficient to warrant dismissal of the indictments or,
alternatively, that it was appropriate to presume prejudice in the
prison setting.  The court's opinion reflects no analysis of the trial
records to determine whether they confirmed or disproved the
respondents' allegations of prejudice.  Rather, the court based its
conclusion that substantial prejudice "may have occurred" (ibid.) on
respondents' general assertions of prejudice and on the pretrial
conclusions of the district court that had dismissed the indictment in
the Mills case (conclusions a panel of the court of appeals found to
be insufficient to support dismissal on the ground of preindictment
delay (id. at 35a-38a)).

 A. This Court's Decisions Establish That Dismissal of the Indictment
Is Not a Proper Remedy for Violation of the Right to Counsel in the
Absence of a Showing of Actual and Specific Prejudice

   This Court has noted that 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).  The court of appeals' dismissal of the indictments in this
case on the basis of potential or presumed prejudice is clearly
inconsistent with this Court's decision in United States v. Morrison,
supra.  The Court there stated that in right to counsel cases "absent
demonstrable prejudice, or substantial threat thereof, dismissal of
the indictment is plainly inappropriate, even though the violation (of
the Sixth Amendment right to counsel) may have been deliberate." 449
U.S. at 365.  The Court instructed that "remedies should be tailored
to the injury suffered from the constitutional violation" and that the
proper approach in right to counsel cases 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 364, 365).  Although the court of
appeals purported to abide by the teachings of Morrison (Pet. App.
20a, 22a), its treatment of prejudice cannot be reconciled with the
reluctance to allow dismissal of serious criminal charges evinced by
that decision.

   The court of appeals seized on this Court's reference in Morrison
(449 U.S. at 365) to the possibility that dismissal of the indictment
might be an appropriate remedy if there were a "substantial threat" of
"demonstrable prejudice." The court of appeals reformulated these
terms and concluded that dismissal would be proper when the failure to
appoint counsel "creates the potential of substantial prejudice" (Pet.
App. 22a).  But that formulation is not the same as the standard of
Morrison;  rather, Morrison makes clear that dismissal of the
indictment is an extraordinary remedy that should be confined to cases
in which prejudice is concrete, substantial, and irremediable by less
drastic means.  Moreover, Morrison would seem to require a
case-specific analysis of prejudice, rather than a presumption,
whenever possible.  /37/

   The court of appeals concluded that a presumption of prejudice
would be appropriate in the case of inmate-suspects in administrative
detention "because ordinarily it will be impossible adequately either
to prove or refute its existence," so that it would be necessary to
"tip the scales in favor of the locked away accused" in order to
vindicate the right to counsel (Pet. App. 22a).  But this Court has
made clear that the lower courts normally must make case-by-case
evaluations to determine whether constitutional violations have
resulted in a degree of actual prejudice that would justify dismissal
of the indictment.  The sort of prejudice claimed by respondents --
dimmed memories, inaccessible witnesses, and lost evidence -- is most
similar to that involved in claims of prejudice resulting from
preindictment delay in violation of the Due Process Clause.  See
United States v. Marion, 404 U.S. at 325-326.  The analysis of
prejudice in such cases normally is not an easy task, since it may be
difficult to be certain of just what evidence a defendant could have
produced in the absence of the alleged constitutional violation.  But
this Court's decisions require such an analysis, even when the
prosecutor has deliberately and unfairly delayed an indictment in
order to secure a tactical advantage at trial.  See United States v.
Lovasco, 431 U.S. at 790.  We find it difficult to understand why the
court of appeals deemed it necessary to dispense with such a
case-specific inquiry in the right to counsel context.

   The court of appeals suggested that dismissal of the indictments
was the only adequate remedy in cases like these because "(p)rison
crimes present suspects with unique investigatory and evidentiary
obstacles" (Pet. App. 20a).  But as we explained above, defendants who
have been in administrative detention in the preindictment period are
nevertheless not without means of identifying potential sources of
favorable information.  A court that evaluates prejudice from the lack
of appointed counsel during administrative detention should consider,
e.g., the opportunities for investigation and preservation of
information afforded to a defendant in connection with the prison
disciplinary proceeding (including the assistance of a staff
representative), the amount of time a defendant may have spent in the
general prison population following the offense before being placed in
administrative detention, and the information a defendant's counsel
may have received in the form of inmate rosters and photographs or
discovery of exculpatory information in the government's possession.
In addition, the court should consider the extent to which a defendant
would have benefited from appointment of counsel in light of the
nature of his defense, as well as the strength of the prosecution's
case.  Such considerations may establish that a particular defendant
has not been prejudiced by the "unique investigatory and evidentiary
obstacles" the court of appeals perceived.

   Moreover, a court must analye prejudice in light of the record made
at trial.  /38/ This Court has indicated that evaluations of prejudice
arising from alleged constitutional violations generally are best made
from a post-trial perspective.  For example, in United States v.
MacDonald, 435 U.S. 850 (1978), the Court held that a defendant may
not take a pretrial appeal based on an alleged violation of his Sixth
Amendment right to a speedy trial.  It explained that "(b)efore trial
* * * an estimate of the degree to which delay has impaired an
adequate defense tends to be speculative" and that "(n)ormally, it is
only after trial that that claim may fairly be assessed" (id. at 858,
860).  /39/ Such reasoning applies with equal force to right to
counsel cases.  Most obviously, a defendant who is acquitted (as was
co-defendant Flores in the first Gouveia trial, despite the fact that
he had been in administrative detention or at another institution
during most of the preindictment period, see J.A. 8-9) cannot be said
to have suffered prejudice.  In evaluating allegations of prejudice in
other cases, a court should consider, e.g., the nature of the
testimony of witnesses the defendant presented at trial.  If the
testimony of alleged missing or deceased witnesses would have been
cumulative to the testimony of witnesses who appeared, the court may
not conclude that the defendant was seriously prejudiced by the
inability of counsel to locate every possible potential witness.  See,
e.g., United States v. Tempesta, 587 F.2d 931, 933-934 (8th Cir.
1978), cert. denied, 441 U.S. 910 (1979).

   The court of appeals' willingness to forgo a post-trial,
case-specific analysis and to presume prejudice fails to give adequate
consideration to "society's interest in the administration of criminal
justice" and to whether the relief it fashioned did "not unnecessarily
infringe on competing interests" (United States v. Morrison, 449 U.S.
at 364).  See also Rushen v. Spain, No. 82-2083 (Dec. 12, 1983) (per
curiam), slip. op. 3-4;  United States v. Hasting, No. 81-1463 (May
23, 1983), slip op. 7;  United States v. Blue, 384 U.S. at 255.  The
court of appeals gave no serious consideration to the availability of
other remedies that might help overcome the alleged prejudice in a
given case.  /40/ In addition, it failed to acknowledge the serious
practical consequences that would flow from dismissal of the
indictments in this and similar cases.  As we pointed out in our
petition (at 29), violent prison crimes have become a serious threat
to the security of both federal and state prisons in recent years.
The remedy prescribed by the court of appeals allows especially
dangerous individuals who have committed serious prison crimes to
escape criminal penalties entirely.  Such consequences only reinforce
the conclusion that, assuming the court of appeals was correct in
creating a right to counsel in the circumstances of this case, no
court should dismiss an indictment in such a case unless a searching
assessment of the record reveals that a defendant suffered such
serious actual prejudice that he can be said to have been denied a
fair trial.

 B. The Record in This Case Refutes the Court of Appeals' Conclusion
That Prejudice Must Be Presumed in the Prison Setting

   The record in this case illustrates well why the court of appeals'
generalizations about the prison setting do not support a presumption
of prejudice from the failure to appoint counsel during the period of
administrative detention.  Even respondents' pretrial allegations were
inadequate to establish a probability of concrete prejudice sufficient
to warrant dismissal of the indictments.  Assuming their allegations
had been sufficient, the evidence respondents were able to offer at
trial disproved their contention that lack of appointed counsel at the
preindictment stage deprived them of a fair trial.

   1. As a preliminary matter, we note that respondents' pretrial
allegations did not establish a probability that they would suffer the
sort of prejudice that would warrant dismissal of the indictments.  As
noted above, the harm that respondents alleged -- missing or deceased
witnesses, dimmed memories, and deterioration of physical evidence --
is similar to the sort of alleged prejudice considered by courts in
connection with claims of preindictment delay motivated by bad faith
tactical considerations.  See United States v. Lovasco, 431 U.S. at
796-797;  United States v. Marion, 404 U.S. at 325-326.  Thus, in the
absence of any precedent for assessing prejudice resulting from the
lack of appointed counsel in the preindictment period, it seems most
appropriate to measure respondents' allegations against the standards
courts apply in the preindictment delay cases.

   The court of appeals concluded that substantial prejudice "may have
occurred" in this case because the government was unable to "rebut
convincingly" respondents' showing of potential prejudice (Pet. App.
22a).  But that approach improperly shifts the burden of proof, which
should rest on respondents to demonstrate actual prejudice.  A
defendant who alleges loss of a witness as a result of preindictment
delay bears the burden of establishing what the alleged missing
witness's testimony would have been and how it would have helped his
defense.  "The mere allegation that (a missing witness) could have
testified for the defendant does not establish that he would have so
testified or that his testimony would have been helpful." United
States v. Pino, 708 F.2d 523, 528 (10th Cir. 1983).  /41/

   Respondents' allegations that missing witnesses would have provided
favorable testimony do not meet that standard.  For example, counsel
for respondent Segura alleged that he was unable to present the
testimony of several alibi witnesses due to the death of some and the
inability to locate others.  He admitted, however, that he did not
know "to what degree they would be valuable witnesses" (J.A. 81;  see
also J.A. 27).  /42/ Respondent Mills alleged that the passage of time
prevented him from locating witnesses known only by nicknames who
could support his alibi that he was in the prison mess hall at the
time of the murder, while respondent Pierce speculated that
unidentifiable witnesses "might" have presented testimony that would
have helped him in formulating a defense (Pet. App. 36a-37a).  /43/
But as the panel in the Mills case pointed out (id. at 37a), there was
no evidence to support Mills, contentions other than his self-serving
affidavit, and Pierce's speculation that missing witnesses "might"
have been useful did not show actual prejudice.  /44/

   Several respondents also alleged that the recollections of
potential defense witnesses had dimmed because of the passage of time
and that the potential witnesses were unable to recall the details of
their activities.  See, e.g., Pet. App. 20a, 36a;  J.A. 116-117,
153-154.  /45/ But in cases involving claims of preindictment delay it
is settled law that the general claim that memories have dimmed
because of the passage of time is not the sort of substantial actual
prejudice that constitutes a predicate for reversal.  See, e.g.,
United States v. Marion, 404 U.S. at 325-326;  United States v.
Rogers, 639 F.2d 438, 441 (8th Cir. 1981);  United States v. Elsbery,
602 F.2d 1054, 1059 (2d Cir.), cert. denied, 444 U.S. 994 (1979);
United States v. Avalos, 541 F.2d 1100, 1108 (5th Cir. 1976).  As the
Seventh Circuit explained in United States v. Cowsen, 530 F.2d 734,
736, cert. denied, 426 U.S. 906 (1976):

         A claim of faded memory, the veracity of which can rarely be
      satisfactorily tested, can be plausibly asserted in almost any
      criminal case in which the defendant is not charged within a few
      weeks, at most, after the crime * * *.  If the limitation period
      for prosecution were measured by the length of the defendant's
      memory of routine events, few crimes could be prosecuted.

   See also United States v. Juarez, 561 F.2d 65, 68-69 (7th Cir.
1977) (faded memory claim is inherently speculative as to its impact
on a given case).  To the extent a particularized showing that the
failure to recollect specific facts due to the passage of time may
provide a basis for a claim of prejudice (see, e.g., United States v.
Mays, 549 F.2d 670, 680 (9th Cir. 1977)), the defendant must
demonstrate specifically how the forgotten testimony would have aided
his cause in some substantial way.  See United States v. Jenkins, 701
F.2d 850, 855 (19th Cir. 1983);  United States v. D'Andrea, 585 F.2d
1351, 1356 (7th Cir. 1979), cert. denied, 440 U.S. 983 (1979).  But
respondents neither established that any alleged lack of recollection
resulted from the passage of time nor identified how any specific
information would have materially assisted their defense if witnesses
had been able to recall it at the time of trial.  /46/

   Finally, respondents Mills and Pierce maintained that they were
prejudiced because of the loss of physical evidence due to the lapse
of time following the murder of Hall.  Mills and Pierce pointed to the
deterioration of bloodstains on clothing, the healing of wounds and
bruises on their bodies, and the destruction of prison records by
government employees (see, e.g. Mills & Pierce Br. in Opp. 4;  Pet.
App. 37a).  Since their release from detention after 90 days could not
conceivably have aided them in preserving such evidence, this factor
cannot possibly be considered in support of a claim of prejudice.
Moreover, as the panel observed (ibid.), absent any evidence of
deterioration rates or the point at which the prison documents
allegedly were destroyed, it is entirely speculative whether the
losses resulted from the passage of time prior to appointment of
counsel or whether the evidence would have been unavailable to the
defense even if the government had returned an indictment within a
month of the murder.  /47/

   2. Even if respondents' allegations of prejudice had established a
prima facie case that they were in danger of being deprived of a fair
trial because of the lack of appointed counsel in the preindictment
period, that proposition was disproved by the evidence respondents in
fact offered at trial.  For example, the Gouveia respondents asserted
that, because of the passage of time, they would be unable to locate
and present the testimony of witnesses who could verify their
whereabouts at the time the murders were committed.  But at trial they
presented the testimony of 14 alibi witnesses (Pet. App. 28a).  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).
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 (id. at 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 (id. at
1418-1420, 1442, 1520-1525).  /48/ Another witness verified Ramirez'
testimony that he was lifting weights at the gymnasium at the time of
the murder (id. at 1939, 2245-2247).  /49/

   The trial of Mills and Pierce likewise refuted their pretrial
contention that they would be unable to present witnesses who could
verify their alibis and their claim that the murderer was disguised
and therefore could not be identified.  Six witnesses testified that
at the time the murder was committed Mills and Pierce were eating a
meal and that they were locked in the dining hall with other prisoners
immediately after discovery of the murder (Mills Tr. 756-758, 777-779,
801-804, 819-824, 849-851, 1135-1137).  Three other witnesses
testified that they had observed the murder and that, contrary to
testimony presented by a government witness, the assailants were
masked at all times, so that their identities could not be determined
(id. at 985-992, 1028-1030, 1048-1050).  /50/ Thus, none of the
respondents was precluded from presenting a substantial defense
because of an inability to locate witnesses.  /51/ Indeed, respondents
never claimed that they did not succeed eventually in locating all of
the significant witnesses they had not found at the time of the
pretrial motions.

   Despite their pretrial predictions, Mills and Pierce in fact were
able to present a substantial amount of expert testimony concerning
physical evidence.  A forensic pathologist who examined the scars on
Mills' arms and photographs of Mills' wounds and marks on Pierce's
upper arm testified that, in his opinion, the injuries could not have
been sustained during the murder of Hall (Mills Tr. 1278-1288).  A
forensic scientist testified (id. at 902-903) that hair fibers
discovered on knit ski caps allegedly worn by the assailants during
the murder did not correspond to hair samples taken from Mills and
Pierce.  A serologist testified (id. at 911-917) that, on the basis of
his own tests and a review of FBI testing procedures, tests conducted
by the FBI on a pair of blood-stained trousers worn by Mills on the
day of the murder could not yield conclusive evidence of blood type.
/52/ Finally, a neurologist testified (id. at 1312-1318) that Pierce
was decidedly left-handed, providing support for the contention that
it was unlikely that Pierce was Hall's assailant since the murder was
committed by a right-handed person.

   Respondents had the benefit of appointed counsel who conducted
extensive investigations in preparation for trial and, as the
dissenters noted (Pet. App. 28a), presented "defenses of uncommon
quality and vigor." Thus, it is not surprising that the record
demonstrates that respondents were able to produce very substantial
amounts of evidence in support of their defenses (including 34
witnesses for the Gouveia respondents and 42 witnesses for Mills and
Pierce).  There is no indication in the court of appeals' opinion that
it considered any of the record material discussed above.  Indeed, had
it done so, the court would have been hard-pressed to support its
conclusion that prejudice must be presumed and that substantial
prejudice in fact "may have occurred" in this case (id at 22a).  The
court of appeals' analysis of prejudice was clearly inadequate under
either the standard courts use to measure prejudice in cases of bad
faith preindictment delay or, a fortiori, under the high standard for
right to counsel cases referred to by this Court in United States v.
Morrison.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      DEPUTY SOLICITOR GENERAL

   CAROLYN F. CORWIN

      Assistant to the Solicitor General

   JOHN F. DE PUE

      Attorney

   DECEMBER 1983

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

   /2/ The reasons for the decision to return respondents to
administrative detention are not set forth clearly in the record.  A
prison form dated December 4, 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 (J.A. 12).  Respondents presumably
received forms containing similar information.  See id. at 83-84, 86,
88-89.  The same reasons for detention existed following the
disciplinary hearing (with the exception of the investigation for
violation of prison rules).  A portion of the period of administrative
detention following the hearing may also have served disciplinary
purposes, although this is not clear from the record.  Gouveia and
Ramirez probably were returned to ADU for the additional reason that
they were pending transfer to another penal institution.  See 28
C.F.R. 541.22(a).

   /3/ By the time of the indictment, several of the respondents had
been transferred to other institutions.  See, e.g., J.A. 46.  After
the indictment, respondents were transferred to the Los Angeles County
Jail.  See Aug. 18, 1980, Hearing Tr. 24.

   /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 he had
observed Gouveia and Segura destroying blood-stained prison uniforms
shortly after the murder in a cell near the location of the crime (Tr.
1011-1013, 1153-1157).  Another 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 (id. at 1214-1215).

   /6/ Following their indictments Mills and Pierce were moved to Los
Angeles County Jail and to the Terminal Island facility in Los Angeles
(J.A. 134).

   /7/ "Mills C.R." signifies the district court Clerk's Record in the
case of the Mills respondents.  The number following the abbreviation
corresponds with the entry number on the district court docket sheet.

   /8/ Judge Nelson issued a concurring opinion in which she stated
that respondents' due process claims could properly be raised at trial
(Pet. App. 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).

   /9/ The majority found it unnecessary to reach respondents' claims
based on the Fifth and Eighth Amendments (Pet. App. 5a).

   /10/ Bureau of Prison's 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. 541.12(a)).

   /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. 541.22(a)).

   /12/ This case involves only the issue of the right to appointment
of counsel for indigent inmates.  Respondents were not denied the
opportunity to retain their own counsel during the time they were in
administrative detention (Pet. App. 3a, 6a).  Nor was there any claim
that respondents' trial 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.

   /13/ In their briefs in opposition, several respondents suggested
that this Court's decisions in Escobedo v. Illinois, 378 U.S. 478
(1964), and Miranda v. Arizona, 384 U.S. 436 (1966), indicate that a
Sixth Amendment right to counsel may arise prior to the formal
initiation of adversary judicial proceedings.  See, e.g., Segura Br.
in Opp. 10;  Ramirez Br. in Opp. 5, 7.  In those cases the Court
indicated that a suspect subjected to custodial interrogation would be
entitled to have counsel present during that interrogation.  But on
several occasions the Court has made clear that Escobedo and Miranda
were not intended to vindicate the Sixth Amendment right to counsel,
but rather to ensure full effectuation of the Fifth and Fourteenth
Amendment privilege against compulsory self-incrimination.  See Rhode
Island v. Innis, 446 U.S. 291, 300 n.4 (1980);  Kirby v. Illinois, 406
U.S. at 688, 689;  Johnson v. New Jersey, 384 U.S. 719, 729 (1966).
Moreover, as the Court noted in Kirby, 406 U.S. at 689, Escobedo has
been limited to its own facts.

   /14/ See Estelle v. Smith, 451 U.S. at 469-470;  Moore v. Illinois,
434 U.S. at 226-227;  Kirby v. Illinois, 406 U.S. at 689.

   /15/ In developing its theory of when segregation from the general
prison population would become "accusatory," the court of appeals
appears to have misconstrued Bureau of Prisons regulations.  The court
concluded (Pet. App. 17a) that the maximum period of segregation for
disciplinary purposes is 90 days and that "(i)solation for more than
ninety days, then, is necessarily for some purpose other than
discipline." Under 28 C.F.R. 541.11 a prisoner may, following a
disciplinary hearing, be placed in disciplinary segregation for up to
60 days (for a single offense) and may be given consecutive terms of
up to 60 days for each additional offense.  Following termination of
disciplinary segregation, an inmate may be held in post-disciplinary
(administrative) detention for up to 90 days.  See 28 C.F.R.
541.22(a)(6).  Thus, on the basis of a single disciplinary infraction
a prisoner could be segregated for a period of up to 150 days
following a disciplinary hearing.  Although the regulations do not
place specific time limitations on the duration of a prisoner's
confinement in administrative detention, they state that such
detention "is to be used only for short periods of time except where
an inmate needs long-term protection" and that the prison staff must
conduct hearings to review the status of prisoners in administrative
detention at 30-day intervals.  See 28 C.F.R. 541.22(c).

   /16/ Indeed, in the Mills case, the prosecutor stated, in response
to a question from the district court, that he had been unaware that
Mills and Pierce had been in administrative detention and that he had
had "no communication with prison officials with respect to the status
of (respondents) until March," i.e., until shortly before the return
of the indictment (J.A. 172).

   The district court in the Mills case disregarded the prosecutor's
explanation that he and the prison authorities had acted
independently.  The court observed that "for purposes of this case
(it) would not distinguish between the Department of Justice (and) the
Bureau of Prisons" (J.A. 172).  The court of appeals likewise
concluded that it "need not inquire into the extent of cooperation
between prison officials, the FBI, and the United States Attorney" in
placing inmates in administrative detention in determining whether
such detention is "accusatory" (Pet. App. 15a).

   /17/ The existence of an ongoing criminal investigation while
respondents were in administrative detention did not amount to a
formal accusation for purposes of the Sixth Amendment.  See United
States v. MacDonald, 456 U.S. 1, 8-9 (1982) (absent a formal charge,
an ongoing criminal investigation does not trigger the Sixth Amendment
right to a speedy trial);  United States v. Marion, 404 U.S. 307, 313,
320 (1971).

   The court of appeals suggested that administrative detention was
equivalent to an accusation for Sixth Amendment purposes because it is
a "public act" (Pet. App. 15a).  But the court's suggestion disregards
its own precedent, United States v. Clardy, 540 F.2d 439, 441 (9th
Cir.), cert. denied, 429 U.S. 963 (1976), in which it stated that
segregation of an inmate from the general prison population is "not a
public act with public ramifications, but a private act." Even if
administrative detention did constitute a "public act," like an
arrest, that would not be sufficient to support a finding of a Sixth
Amendment right to counsel.  See pages 29-31, infra.

   /18/ The court of appeals itself observed (Pet. App. 10a) that
administrative detention "is perhaps the princip(al) remedy available
to prison officials when crime or other disturbances threaten the
prison environment."

   /19/ See, e.g., Tr. 1214-1215 (respondent Reynoso's statement that
if prison authorities were only going to deprive him of 20 days' good
time for his role in the murder, he would kill again).

   /20/ In their briefs in opposition Segura and Ramirez suggest that
they were segregated from the general prison population for punitive
reasons following their prison disciplinary hearings.  Segura Br. in
Opp. 8;  Ramirez Br. in Opp. 5.  If that were so it would not affect
the conclusion that there nevertheless as yet existed no criminal
prosecution in which they were entitled to appointment of counsel.
This Court has made clear that there is no right to counsel in
connection with prison disciplinary proceedings.  See Baxter v.
Palmigiano, 425 U.S. 308, 314-315 (1976);  Wolff v. McDonnell, 418
U.S. 539, 569-570 (1974).  See also United States v. Mills, 704 F.2d
at 1557 (even when its purpose is "entirely punitive," prison
segregation is not equivalent to the onset of accusatory judicial
proceedings).  In fact, however, the record is unclear as to whether
respondents' detention was imposed in part for disciplinary reasons or
solely for administrative purposes (i.e., because of the pending
investigation and security concerns).

   /21/ In the Mills case an inmate called as a defense witness
refused to testify, apparently because he believed a recent attempt on
his life was related to the testimony he might give (Mills Tr.
1071-1079).  In addition, there is evidence that members of the Aryan
Brotherhood, to which respondent Mills sought admission (Mills Tr.
562-563), have sworn, among other anti-social undertakings, 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), petition
for cert. pending, No. 83-935 (filed Dec. 6, 1983).  Brotherhood
members apparently attempt to prevent others from testifying against
their members as well.  In one case an inmate was so fearful of
appearing as a prosecution witness in a murder trial involving a
member of the Brotherhood that he feigned suicide in order to obtain
special protection from the government.  See United States v. Mills,
704 F.2d at 1560.  See also United States v. Castillo, 615 F.2d 878,
885 (9th Cir. 1980) (suspect in a prison murder case attacked an
inmate who had cooperated with the FBI investigation of the murder).

   /22/ Moreover, even when an attorney is appointed for a defendant
in connection with a particular event that takes place following
indictment, that attorney's responsibilities do not routinely extend
to investigation and preparation of the defense.  See United States v.
Daly, 716 F.2d 1499, 1504-1505 (9th Cir. 1983), in which the court
noted that counsel had been explicitly appointed to represent the
defendant at a bail hearing following indictment.  The court held that
under the Speedy Trial Act, the 30-day period between appearance
through counsel and trial begins to run only after the defendant has
first appeared with counsel who has been engaged or appointed to
represent him at trial.

   /23/ The courts of appeals have held uniformly that segregation
from the general prison population does not trigger the Sixth
Amendment right to a speedy trial.  See United States v. Mills, 704
F.2d at 1556-1577;  United States v. Daniels, 698 F.2d 221, 223 (4th
Cir. 1983);  United States v. Blevins, 593 F.2d 646, 647 (5th Cir.
1979);  United States v. Bambulas, 571 F.2d 525, 527 (10th Cir. 1978);
 United States v. Clardy, 540 F.2d at 441;  United States v. Duke, 527
F.2d at 389-391.  Despite its reliance on concepts developed in speedy
trial cases, the court of appeals here found inapposite its own
holding in Clardy that segregation of prison inmates does not trigger
the right to a speedy trial.  See Pet. App. 14a.

   This Court has never suggested that a constitutional right to
counsel attaches prior to initiation of adversary judicial proceedings
whenever an individual lacks investigative resources or otherwise
faces obstacles to investigation.  In fact, to the extent this Court's
decisions touch on the subject of investigation, they suggest the
absence of any such right.  See, e.g., Morris v. Slappy, No. 81-1095
(Apr. 20, 1983) slip op. 9 ("Not every restriction on counsel's time
or opportunity to investigate or to consult with his client or
otherwise to prepare for trial violates a Sixth Amendment right to
counsel");  United States v. Ash, 413 U.S. at 317-318 (right to
counsel applies to trial-like confrontations, not to prosecutor's
investigations or interviews with witnesses);  United States v. Wade,
388 U.S. 218, 227-228 (1967) (government analyses of evidence are not
critical stages of a prosecution at which the accused has the right to
presence of his counsel);  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").
See also United States v. Mandujano, 425 U.S. at 581 (opinion of
Burger, C.J.) (witness before a grand jury does not have a Sixth
Amendment right to counsel);  United States v. Ciampaglia, 628 F.2d
632, 639 (1st Cir.), cert. denied, 449 U.S. 956 (1980) (government was
not required to time the return of an indictment so the right to
counsel would attach to the investigatory stage of the proceedings);
United States v. Bennett, 409 F.2d Cir.), cert. denied, 396 U.S. 852
(1969) (right to counsel cases do not suggest that counsel must be
present when the prosecution is interrogating witnesses in the
defendant's absence).

   This Court has noted that counsel must be appointed sufficiently in
advance of trial to permit "the giving of effective aid in the
preparation and trial of the case" (Powell v. Alabama, 287 U.S. at
71).  But the Court in Powell was referring to preparation during the
period following initiation of adversary judicial proceedings.  See
Kirby v. Illinois, 406 U.S. at 688-689.  There is no claim in this
case that respondents' counsel had insufficient time to prepare for
trial following their appointments.  Counsel for the Gouveia
respondents were appointed at the arraignments on July 14, 1980.  The
first trial (which resulted in an acquittal of co-defendant Flores on
all counts, an acquittal of respondent Reynoso on the weapons
conveyance count, and a mistrial as to all other charges) began on
September 16, 1980, and the retrial began on February 17, 1981.
Counsel for the Mills respondents were appointed at the arraignments
on April 21, 1980.  Following dismissal of the indictment and an
interlocutory appeal, the trial finally was held in January 1982.  See
Pet. App. 4a-5a;  J.A. 1, 120.

   /25/ In devising this novel right to counsel the court of appeals
purported to achieve "a proper balance of the interests of both prison
officials and inmates suspected of crime" (Pet. App. 18a).  But the
court can hardly be said to have given significant weight to the
concerns of prison authorities.  As we noted in our petition (at
26-29), implementation of the court's decision would cause significant
practical problems.  The Bureau of Prisons itself has neither
statutory authority nor a source of funding with which to appoint
counsel.  Thus, district courts presumably would do so pursuant to the
Criminal Justice Act of 1964, 18 U.S.C. 3006A(a), on the motion of an
inmate, the Bureau of Prisons, or a public defender.  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 and the conduct
of ongoing FBI investigations in the prison.  It is unclear from the
court's opinion to what extent prison officials could limit
investigation by counsel to avoid compromising the identity of
inmate-informants or exposing certain individuals to retaliation
before prison officials could make arrangements to ensure their
safety.  As we have suggested at pages 26-29, supra, the alternative
offered by the court of appeals -- release of an inmate suspect into
the general prison population after 90 days -- would normally be
unsatisfactory because of security concerns.

   The record in this case does not indicate that respondents applied
to a district court for appointment of counsel.  In addition, it
appears that only Gouveia and co-defendant Flores (who was acquitted
in the first trial in the Gouveia case) contacted the Federal Public
Defender's office in an attempt to obtain counsel while they were in
administrative detention.  See J.A. 45;  Sept. 8, 1980, Hearing Tr.
67-69.  That office informed Flores that it could not represent him
until he had been charged in a criminal case (id. at 68-69).

   /26/ Ironically, if, rather than being placed in segregation,
respondents had been released from prison soon after the murders in
these cases, they would probably have faced even greater obstacles to
preparation of a defense than those inherent in administrative
detention.

   /27/ Supplemental guidelines issued by the Bureau of Prisons
instruct staff representatives that their duties include:
"assist(ing) the inmate in presenting whatever information the inmate
wants to present and in preparing a defense;" "speak(ing) to witnesses
who might furnish evidence on behalf of the inmate;" and
"question(ing) witnesses requested by the inmate who are called (at
the hearing)." U.S. Dep't of Justice, Federal Prison System Program
Statement No. 5270.5 (Inmate Discipline and Special Housing Units),
Ch. 10 at 8 (Aug. 12, 1982)).  Copies of Program Statement No. 5270.5
are being lodged with the Court and provided to respondents' counsel.

   /28/ Respondent Segura provided the disciplinary committee with the
name of a single witness (see J.A. 40), while respondent Gouveia
provided the names, or nicknames, of three witnesses (id. at 49).
Respondent Mills apparently did not provide the names of any witnesses
(id. at 136).  Mills acknowledged that a prison hearing officer gave
him an opportunity to provide a confidential list of favorable
witnesses, but that he declined that opportunity.  See Pet. App. 44a;
J.A. 129-130.  The record also indicates (ibid.) that Mills refused
the offer of assistance of a staff representative.  There is no
indication in the record that the other respondents took advantage of
such assistance.

   In their briefs in opposition, several respondents suggested that
the staff representative could not be useful because he or she is
merely a prison guard "more likely to be viewed by the prisoner as a
spy for the government." Ramirez Br. in Opp. 8 n.1;  see also Mills &
Pierce Br. in Opp. 18.  But under Bureau of Prisons regulations, the
inmate selects the staff representative of his or her choice (see 28
C.F.R. 541.17(b)).  The Bureau informs us that the staff
representative may well be a social worker or counselor.  Moreover,
Bureau regulations prohibit the appointment as staff representative of
any individual who would have a conflict of interest (ibid.).  We
certainly cannot accept the implicit suggestion that an innocent
inmate can reasonably fear that information given to the staff
representative would somehow be used to "frame" him.

   /29/ 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 during
the period between November 22 and December 4, 1978.  See pages 2-3,
supra.  There is no evidence in the record that respondents took
advantage of their relative freedom in these weeks following the
murder in order to conduct investigations, determine the identity of
potential witnesses, or preserve testimony.

   /30/ Copies of Program Statement No. 5511.1 are being lodged with
the Court and provided to respondents' counsel.

   /31/ Respondents Mills and Pierce contended that they were
prejudiced by the deterioration of physical evidence, including the
healing of their own wounds.  See Pet. App. 37a.  Even if they had
been released to the general prison population immediately after the
murder of Hall, they surely could not have prevented the developments
of which they complain.

   /32/ The incremental difference between opportunities to
investigate in administrative detention, as opposed to the general
population, is even less in view of the fact that the court of appeals
did not require release of the inmate to the general population for 90
days.  To the extent an inmate can conduct useful investigation while
in the general population, information is more likely to be available
in the first months after commission of an offense than in the later
period.

   /33/ Of course, investigation may be unnecessary, depending on the
nature of the inmate's defense.  For example, an inmate who claims he
was with one other inmate at the time the offense was committed might
have relatively little need to conduct an investigation if he knows
the identity of that other inmate.

   /34/ The list of unidentified potential witnesses provided by
respondent Pierce included the following:  "Little Charlie, Henry's
Kid, Hat, Dollars, Crow Dog, Buzzard, Indian, Droopy, The Hippie,
Sluggo, Ole, Mouse, Cowboy, Fast Freddie and Weasel" (J.A. 150).
Respondent Ramirez identified four potential alibi witnesses as
"'Abalone', 'Jose', 'Paharo', and 'Jesus R.C.'" (id. at 34).

   /35/ See, e.g., J.A. 78 (citing three deceased witnesses who
allegedly would have testified for respondent Segura).

   /36/ For example, the Gouveia respondents received copies of
transcripts of interviews the FBI had conducted with them following
the murders.  See, e.g., J.A. 23-25, 35-37, 53-61, Gouveia's counsel
used such a transcript to determine the identies of six potential
witnesses.  See J.A. 65.  In addition, the Gouveia respondents
requested and obtained rosters of inmates assigned to the unit at
Lompoc in which the murder of Trejo occurred.  See J.A. 64, 66, 70-77.
 They also received unit rosters for other cellblocks and a roster
listing inmates who had arrived shortly before the murder took place.
See J.A. 64, 67.  Several respondents apparently found the rosters
unhelpful because they did not bear dates of the week of the murder
and listed inmates only by last name and prison number.  See, e.g.,
Reynoso Br. in Opp. 7;  J.A. 21.  However, counsel for Gouveia
acknowledged that he was able to determine the whereabouts of four
alibi witnesses by using the prison locator system and inmate records.
 See J.A. 65.

   /37/ We argue in our brief in United States v. Cronic, No. 82-660,
and in our brief as amicus curiae in Strickland v. Washington, No.
82-1544, that in cases involving claims of ineffective assistance of
counsel a court must assess whether the defendant was prejudiced in a
manner that probably affected the outcome of the trial.  See, e.g.,
Morris v. Slappy, supra, slip op. 9-10;  United States v. Decoster,
624 F.2d 196, 208 (D.C. Cir.) (en banc) (plurality opinion), cert.
denied, 444 U.S. 944 (1979).  Respondents' claims that they were
unable to conduct adequate investigations and to present exculpatory
evidence because of the failure to appoint counsel in the
preindictment period are not unlike claims of ineffective assistance
of counsel.  See Pet. App. 21a.

   /38/ It appears that none of the respondents renewed and
supplemented their motions to dismiss the indictments following trial.
 Rather than arguing that their pretrial contentions of inability to
prepare a defense had been borne out by their experience at trial,
respondents continued to rely primarily on general contentions of
prejudice.  In view of the extensive defenses respondents were able to
present at trial (see pages 56-59, infra), it is understandable that
they preferred not to argue from a post-trial perspective.

   /39/ See also United States v. Valenzuela-Bernal, No. 81-450 (July
2, 1982), slip op. 15, in which the Court noted that where the
government places a percipient witness beyond the reach of process
"judges may wish to defer ruling on motions until after the
presentation of evidence," since determinations of materiality for the
purpose of assessing prejudice "are often best made in light of all of
the evidence adduced at trial."

   /40/ As the dissenters noted (Pet. App. 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 possible prejudice in cases like
this one.

   /41/ See also, e.g., United States v. Jenkins, 701 F.2d 850, 855
(10th Cir. 1983) (vague and conclusory allegations of prejudice
resulting from the passage of time and absence of witnesses are
insufficient to constitute showing of actual prejudice);  United
States v. Surface, 624 F.2d 23, 25 (5th Cir. 1980) (bald assertion
that missing witness would have testified favorably to defense,
without extrinsic support, was not adequate to show actual prejudice);
 United States v. D'Andrea, 585 F.2d 1351, 1356 (7th Cir. 1978), cert.
denied, 440 U.S. 983 (1979) (absent substantial identification of the
way in which missing witnesses' testimony would have aided the
defense, claims of prejudice were too speculative to satisfy the
requirement of actual prejudice);  United States v. King, 560 F.2d
122, 130 (2d Cir.), cert. denied, 434 U.S. 925 (1977) (absent ability
to say with specificity or assurance what deceased witness would have
said and how his testimony would have aided the defense, no basis for
claim of prejudice);  United States v. Mays, 549 F.2d 670, 679-680
(9th Cir. 1977) (claim of exculpatory testimony by missing witnesses
was inadequate when based only on speculation and "self-serving"
affidavits of defendants);  United States v. Avalos, 541 F.2d 1100,
1108 (5th Cir. 1976), cert. denied, 430 U.S. 970 (1977) (conclusory
allegations concerning loss of potential defense witnesses
insufficient).  And see United States v. Valenzuela-Bernal, slip op.
14 (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 known percipient
witnesses deprived the defendant of a fair trial "unless there is some
explanation of how their testimony would have been favorable and
material").

   /42/ Counsel for Ramirez stated that one individual Ramirez
allegedly had seen in the prison gymnasium at the time of the murder
had died and that others could not be located (J.A. 84;  see also J.A.
34).  But he presented no evidence that the missing witnesses would
have testified that they had seen Ramirez at the time the murders were
committed.  Counsel for Gouveia alleged that, because of the transfer
or release of some inmates and the inability to locate others known
only by prison nicknames, he was unable to find several inmates who
may have seen Gouveia at the time of the murder and one "theoretical
percipient witness to the murder" itself (J.A. 91).  But he made no
showing that the potential witnesses would have presented evidence
favorable to the defense if called to testify.  Counsel for Reynoso
alleged prior to trial that two potential alibi witnesses had died and
that several others could not be located (J.A. 21), but he never
proffered any assurance that the missing witnesses could have provided
favorable testimony.

   /43/ Counsel for Pierce also alleged that several potential alibi
witnesses were reluctant to testify out of apprehension that, because
of dimmed memories, they might present incorrect testimony and thereby
subject themselves to charges of perjury (J.A. 152-154).  He
acknowledged, however, that his allegations were based only on his
personal belief that the potential witnesses could present favorable
evidence and were reluctant to testify because of their uncertainty
about specific details.  See id. at 153.

   /44/ The panel also noted (Pet. App. 36a) that "(p)rison nicknames
do not erase the element of speculation.  There was no showing that
these nicknames were recorded and actual identities or the existence
of the witnesses could not be associated with any certainty."

   /45/ It seems to us inherently implausible that witnesses who would
have remembered enough to support respondents' alibis 90 days after
the murders would later have forgotten.  Several respondents filed
declarations stating that other inmates normally are well aware that
an inmate has been segregated from the general prison population
because he has been found in a disciplinary hearing to have murdered
another inmate (J.A. 18, 134).  Surely an individual who knew that the
inmate-suspect in fact had an alibi for the time of the murder, and
thus had been wrongly identified as the murderer, would recall that
information clearly for at least several years.

   /46/ For example, in his opening brief in the court of appeals (at
12), respondent Gouveia simply alleged that several defense witnesses
could not recall certain unspecified facts and had to rely on habit
evidence in order to answer counsel's questions about their activities
on the day of the murder of Trejo.  As an example, Gouveia stated in
his reply brief (at 6-7) that one Tony Estrada could not remember the
television program he had been watching at the time of the crime.  But
Gouveia made no showing that such information was relevant or that it
would have materially aided his defense had it been within Estrada's
recollection.

   See also United States v. MacDonald, 632 F.2d 258, 269-270 (4th
Cir. 1980) (Bryan, J., dissenting), rev'd, 456 U.S. 1 (1982);  United
States v. Walker, 601 F.2d 1051, 1057 (9th Cir. 1979).

   /48/ Reynoso alleges now simply that he "lost the opportunity to
locate and call witnesses who could corroborate his two alibi
witnesses" (Reynoso Br. in Opp. 6).

   /49/ In addition, the Gouveia respondents presented the testimony
of the inmates who, according to the government's witnesses,
fabricated the murder weapons and carried them into the prison.  Both
inmates denied any involvement in the crime (e.g., Tr. 1795-1796,
2424).  Other witnesses testified that government witness Steven
Kinard had told them that he and another prisoner (who had since
died), rather than respondents, had murdered Trejo because of a
dispute over drugs (id. at 1855-1864, 1894-1897, 2064).

   /50/ The Mills respondents also presented three inmates who
testified that they were watching the entrance to the unit in which
the murder of Hall occurred but did not observe respondents enter or
leave (Mills Tr. 682, 708-709, 728-729).  Inmates also testified that
shortly after the murder the guard who had identified Mills at trial
as one of the inmates who had fled from the unit in which Hall was
murdered stated that he did not know the identities of Hall's
assailants (id. at 684-685);  that, prior to testifying that Mills
admitted committing the murder, an inmate-witness stated that he would
testify falsely in order to obtain leniency from prison authorities
(id. at 971-973);  that Hall had many enemies within the prison
population as the result of his reputation as an informant and his
involvement in drug dealings (id. at 734, 1086-1087, 1097, 1107-1109,
1451);  and that bruises and cuts observed on the respondents' bodies
shortly after the murders resulted from athletic injuries (id. at
1223-1225, 1325-1328).

   /51/ The court of appeals rejected the government's contention that
additional alibi testimony would have been cumulative on the ground,
inter alia, that it was incorrect to assume "that the quantity of
witnesses always can overcome the absence of any particular defense
witness" (Pet. App. 23a).  But neither the court nor the respondents
pointed to any alleged missing witness whose testimony would have been
qualitatively more valuable than that of the witnesses who testified.

   /52/ In addition, the government's own expert witness testified
that he had been unable to reach a definite conclusion about the type
of blood on trousers Mills and Pierce had been wearing on the evening
of the murder (Mills Tr. 420-424).