BLOG BULLETS:

• If your detained client is kept in custody at an overly remote location, consider a Sixth Amendment challenge that this prevents the attorney-client consultation required for effective assistance of counsel.
• There’s also a statutory argument based on 18 U.S.C. § 3142(i)(3), which requires that a defendant detained without bail “be afforded reasonable opportunity for private consultation with counsel.”
• Argue that the court doesn’t have to find a definite Sixth Amendment violation, but has power under this statutory provision to take action to avoid the mere risk of a Sixth Amendment violation.

NOW THE BLOG:

My post last week on getting clients out of custody brought to mind an issue that can come up when you don’t succeed in getting a client out. You then have to go to where your client is being kept in custody, and that can be a problem if the location is overly far away. With the limited number of federal jail facilities, what seem like chronic overcrowding problems, and the broad geographical reach of federal jurisdiction, this has sometimes created a problem for federal defense attorneys. I don’t know if it still remains a problem, but I’ve had Federal Public Defender colleagues in Hawaii and Alaska who sometimes had to fly all the way to Washington or California to meet with their clients. There was a time when the United States Marshal in Los Angeles was threatening to keep some of our Los Angeles clients in Arizona, though this fortunately never actually happened. And less extreme circumstances of custodial locations requiring drives of more than an hour are reflected in at least some reported cases. See, e.g., United States v. Lucas, 873 F.3d 1279, 1280 (9th Cir. 1989); United States v. Argraves, No. 3:09cr117 (MRK), 2010 WL 283064, at *5 (D. Conn. Jan. 22, 2010); United States v. Echeverri, No. 91-Cr-885 (DRH), 1992 WL 81876, at *2 (E.D.N.Y. March 31, 1992); United States v. MacFarlane, 759 F. Supp. 1163, 1167 (W.D. Pa. Jan. 18, 1991).See also United States v. Allick, No. 2011-020, 2012 WL 32630 (D.V.I. Jan. 5, 2012) (defendant being prosecuted in St. Croix kept in jail in Puerto Rico, though with plan to bring defendant to St. Croix “well in advance of trial”).

I offer this post to provide some authority and encouragement to challenge the validity of such remote detention. I did once litigate it in Los Angeles – with some success in the form of the Marshal’s office voluntarily relocating my client when the judge indicated he wanted some questions answered – and I found there are some legal arguments to be made.

The motion I filed is attached here, but briefly summarized, there are two arguments. One is the Sixth Amendment one that might first jump into your mind. The Sixth Amendment of course guarantees not just the presence of counsel but the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). And effective assistance of counsel includes adequate consultation between counsel and the client. As recognized inUnited States v. Tucker, 716 F.2d 576 (9th Cir. 1983), “[c]ourts have repeatedly stressed the importance of adequate consultation between attorney and client,” and such consultation “is an essential element of competent representation of a criminal defendant.” Id. at 581. See also Correll v. Ryan, 539 F.3d 938, 943 (9th Cir. 2008); Daniels v. Woodford, 428 F.3d 1181, 1203 (9th Cir. 2005); Summerlin v. Schriro, 427 F.3d 623, 633 (9th Cir. 2005); Turner v. Duncan, 158 F.3d 449, 457 (9th Cir. 1998); Harris v. Wood, 64 F.3d 1432, 1436 (9th Cir. 1995). There is a Ninth Circuit case holding that there wasn’t a Sixth Amendment violation when the client was a two-hour drive away and there was no case-specific showing of prejudice, see United States v. Lucas, 873 F.3d at 1280, but all that means is there isn’t an automatic Sixth Amendment violation. In a different case, there very well could be a Sixth Amendment violation, and you should do your best to carefully document case-specific ways in which the effectiveness of your representation in your particular case may be affected by remote detention.

And if you look into it further, there’s an interesting statutory argument that’s separate and independent from the Sixth Amendment argument. The pretrial detention statute, 18 U.S.C. § 3142, has a subsection (i)(3) that requires detention orders to “direct that the person be afforded reasonable opportunity for private consultation with counsel.” 18 U.S.C. § 3142(i)(3). While there hasn’t been a lot of litigation about what “reasonable opportunity” is, courts have recognized it is required. In fact, they’ve used it to reject the very sort of Sixth Amendment effective assistance of counsel challenges I suggest in the preceding paragraph. In Fassler v. United States, 858 F.2d 1016 (5th Cir. 1988), for example, the court rejected the defendant’s challenge because he “could have moved for additional relief to prepare his defense, or he could have challenged this facet of detention on review by the district court.” Id. at 1018. In United States v. Parker, 848 F.2d 61 (5th Cir. 1988), the court rejected a facial challenge based in part on 18 U.S.C. § 3142(i)(3):

Finally, Parker asserts that the Act denies a pre-trial detainee the effective assistance of counsel because it limits the detainee’s access to his attorney and his participation in preparing a trial defense. This contention is similarly without merit. The Act provides that a detention order must direct that the detainee “be afforded reasonable opportunity for private consultation with counsel,” and a judicial officer may subsequently order the temporary release of the detainee “to the extent that the judicial officer determines such release to be necessary for preparation of the person’s defense.” 18 U.S.C. § 3142(i). Those provisions are sufficient to defeat Parker’s facial challenge to the Act “whether or not they might be insufficient in some particular circumstances.” (Citation omitted.)

Parker, 848 F.2d at 63.

Another case, United States v. Falcon, 52 F.3d 137 (7th Cir. 1995), is interesting because it recognizes a judge can act to cure problems during the proceedings. The defendant in that case filed his challenge in the district where he was confined and the court there rejected the challenge because the defendant “ha[d] a judicial remedy that he ha[d] not pursued.” Id. at 139. The court explained:

[The district judge] who is presiding over Falcon’s drug case pending in the Southern District of Florida retains jurisdiction over all pretrial, trial and post-trial aspects of that case. In particular, in this case, we may presume that [the district judge] acted in accordance with 18 U.S.C. § 3142(i) in ordering pretrial detention for Falcon. Pursuant to Section 3142(i)(3), that order must direct the BOP to provide Falcon with “reasonable opportunity for private consultation with counsel.” Moreover, [the district judge] has discretionary authority under § 3142(i)(3) to order Falcon into the custody of a United States Marshal if he determines that such action is necessary for preparation of his defense. Section 3142(i)(3) is designed to protect a defendant’s Sixth Amendment right to counsel, and if that right is being infringed, [the district judge] has the statutory authority to protect Falcon’s access to counsel.

Falcon, 52 F.3d at 139.

And don’t forget to argue, as I did in the linked sample motion, that the judge doesn’t have to find a Sixth Amendment violation to order a remedy. A court has inherent authority to enforce its own orders, see, e.g., United States v. W.R. Grace, 526 F.3d 499, 516 (9th Cir. 2008) (en banc), and the order required by 18 U.S.C. § 3142(i)(3) provides that “the [detained] person be afforded reasonable opportunity for private consultation with counsel.” You can argue – as I do in the attached sample pleading – that the mere risk of a Sixth Amendment violation justifies the court granting some sort of relief. As the old saying goes, “an ounce of prevention is worth a pound of cure.”