FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-99008

Plaintiff-Appellee, D.C. No.

v. 2:02-cr-00220-DT  Central District of IOURI MIKHEL,

California Defendant-Appellant.

OPINION AND

ORDER 

Filed January 5, 2009

Before: Alfred T. Goodwin, Stephen Reinhardt, and

William A. Fletcher, Circuit Judges

OPINION

Before us is defendant-appellant Iouri Mikhel’s Motion to

Allow Attorney-Client Access Without “SAM” Restrictions.

We have jurisdiction ancillary to our jurisdiction over Mikhel’s direct appeal and pursuant to our authority to “regulate

practice in a particular case [before us] in any manner consistent with federal law.” Fed. R. App. P. 47(b); see DaccarettGhia v. Comm’r, 70 F.3d 621, 623 (D.C. Cir. 1995) (“[A]

court’s authority to control its own proceedings . . . is both an

inherent power and, in the federal circuit courts, embodied in

Federal Rule of Appellate Procedure 47.”). 

Mikhel asks us to lift all restrictions imposed pursuant to

28 C.F.R. § 501.3 on his communications with his appellate

counsel, the Federal Public Defender for the Central District

of California. He contends that these restrictions, known as

Special Administrative Measures or “SAMs,” violate the Due

789
Process Clause and his Sixth Amendment right to effective

assistance of appellate counsel. After reviewing the pleadings

and the declarations filed by the parties, we order as follows:

1. Special Administrative Measure 2(b)(i). The SAM

order currently in effect prohibits the Federal Public Defender

from utilizing the services of a translator when meeting with

Mikhel, a foreign national, except when “absolutely necessary

where the inmate does not speak a common language with the

attorney.” See SAM 2(b)(i) (May 20, 2008). The Government

asserts that Mikhel “is proficient in English” and therefore is

not entitled to a translator during any meeting with his attorneys, even if that translator meets the other restrictions

imposed by the SAM including the requirements that the

translator be pre-cleared by the FBI and the United States

Attorney for the Central District of California and that the

translator never be in contact with Mikhel outside the physical

presence of Mikhel’s attorneys, who have also been precleared by the Government. See Govt.’s Response at 14. The

Public Defender asserts that, because Mikhel is not “a native

English speaker, . . . his word selection is, at times, not precise . . . [and] his English is deteriorating somewhat . . . given

his extreme isolation as a result of the SAM.” Decl. of Sean

Bolser at ¶ 16. 

We recognize the Government’s legitimate interest in

ensuring that Mikhel does not surreptitiously use a translator’s

services to plan an escape from prison, as he has attempted to

do in the past. However, “[n]umerous courts have [also] recognized that the presence of an interpreter who provides accurate and complete translations may be necessary to protect the

defendant’s . . . rights.” Chacon v. Wood, 36 F.3d 1459, 1464

(9th Cir. 1994). Other than the use of a translator, there are

no sufficient “alternative means of exercising [Mikhel’s]

right” to communicate fully with his counsel. Casey v. Lewis,

4 F.3d 1516, 1520 (9th Cir. 1993). We hold that SAM provision 2(b)(i) as applied “is an ‘exaggerated response’ to prison

concerns” and places an unacceptable burden on Mikhel’s due

790 UNITED STATES v. MIKHEL
process and Sixth Amendment rights. Id. (quoting Turner v.

Safley, 482 U.S. 78, 89-90 (1987)). The Government’s

requirements that any translator assisting the Public Defender

be “successfully . . . cleared by the FBI and USA/CDCA”

after “submit[ting] to a background check” and that the “use

of a translator by the attorney shall be in the physical and

immediate presence of the attorney” at all times are adequate

to achieve the Government’s asserted security interests. 

Accordingly, we order that in this case SAM 2(b)(i) be

modified so as to parallel SAM 1(d)(i), which governs the

Bureau of Prisons’ own use of translators when communicating with Mikhel. Specifically, we order that SAM 2(b)(i) be

amended to state that “Mikhel’s attorney(s) may use Department of Justice(DOJ)-approved translators as necessary for

the purpose of facilitating communication with the inmate.

Any translator shall be pre-cleared under the ordinary process

(see SAM footnote 2).” A sworn declaration by Mikhel’s

attorney provided to the appropriate representatives of the

Government explaining that a translator is necessary for the

purpose of facilitating communication with the inmate will be

sufficient to satisfy the “necessity” component of the revised

SAM provision. Accommodation of Mikhel’s right in this

fashion will not impose any additional burden on the Government, as the screening procedures are already mandated by

and detailed in the existing SAM order. Cf. Casey, 4 F.3d at

1520. 

2. Special Administrative Measure 2(d). The SAM

order also provides that the “inmate’s attorney may disseminate the contents of the inmate’s communication to third parties for the sole purpose of preparing the inmate’s postsentencing proceedings . . . on the understanding that any

such dissemination shall be made solely by the inmate’s attorney, and not by the attorney’s staff.” SAM 2(d) (May 20,

2008). The Government has indicated that it “does not oppose

. . . modifying the SAM restrictions to allow the two investigators working on behalf of Mikhel’s counsel . . . to dissemiUNITED STATES v. MIKHEL 791
nate the contents of Mikhel’s communication to third parties”

consistent with the requirement that “they do so for the sole

purpose of preparing his post-sentencing proceedings.”

Govt.’s Response at 2-3. Accordingly, the SAM restrictions

are modified to reflect the Government’s proposed amendment. 

3. Special Administrative Measure 2(e). The SAM

order also provides that “[a]n investigator . . . may not meet

alone with the inmate.” SAM 2(e) (May 20, 2008). “[A]n

indigent defendant has a constitutional right to investigative

services . . . when some need is demonstrated,” which is

invariably the case in complex capital cases. Williams v. Stewart, 441 F.3d 1030, 1053 (9th Cir. 2006) (quoting Smith v.

Enomoto, 615 F.2d 1251, 1252 (9th Cir. 1980)). In order to

be effective in providing investigative services, an investigator often needs to meet with the client. However, Mikhel is

confined in Terre Haute, Indiana, which is 2,000 miles away

from the Public Defender’s office in Los Angeles. Given this

substantial distance, the arbitrary requirement that an attorney

or paralegal from the Public Defender’s office accompany an

investigator from that same office for every meeting with

Mikhel imposes a significant burden on the defendant with

respect to the availability of necessary investigative services.

The same SAM provision that prohibits a defense investigator from meeting alone with Mikhel provides that “[t]he

inmate’s pre-cleared paralegal(s) may meet with the inmate

without the necessity of the inmate’s attorney being present.”

SAM 2(e) (May 20, 2008) (emphasis added). We do not see,

nor has the Government provided, any “valid, rational” justification for distinguishing between paralegals and investigators

employed by the office of the Federal Public Defender.

Casey, 4 F.3d at 1520. Altering SAM 2(e) so as to allow Federal Public Defender staff investigators who have satisfied the

Government’s pre-clearance requirements to meet with Mikhel in the absence of his attorney will not impose any additional burden on the Government or otherwise adversely

792 UNITED STATES v. MIKHEL
“impact . . . guards, . . . other inmates, or . . . the allocation of

prison resources.” Id. We modify SAM Restriction 2(e) to

state that: 

The inmate’s attorney’s pre-cleared paralegal(s) and

pre-cleared investigators in the regular full-time

employment of the attorney may meet with the

inmate without the necessity of the inmate’s attorney

being present. A translator may not meet alone with

the inmate. These meetings may be contact or noncontact, at the discretion of the USMS/BOP/DF. 

It is hereby ORDERED that the modifications set forth

above are incorporated into the SAM order. With those modifications, the defendant’s motion to lift all SAM Restrictions

is DENIED. We express no opinion as to the constitutionality

of Mikhel’s conditions of confinement except to the extent

those conditions relate to his right to effective assistance of

counsel in the present appeal. 

The stay of proceedings is lifted. The opening brief is due

March 31, 2009. The answering brief is due May 29, 2009.

The reply brief is due June 30, 2009. 

IT IS SO ORDERED.

UNITED STATES v. MIKHEL 793


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