Opinion
Case 3:20-cr-00012-TMB-DMS
07-28-2020
UNITED STATES OF AMERICA, Plaintiff, v. KEVIN GLOVER, et al., Defendants.
TENTATIVE PARTIAL CONCLUSIONS OF LAW ON DEFENDANTS' MOTION FOR REASONABLE ACCESS TO COUNSEL AND DIGITAL EVIDENCE
(DKT. 73)
I. INTRODUCTION
The matter comes before the Court on the "Motion for Reasonable Access to Counsel and Digital Evidence" (the "Motion") filed by Defendant Kevin Glover at docket 73. The Motion has since been joined by Defendants Isaiah James Cross and Dorian Duane Topps. As of the date of filing, all three Defendants are in pretrial detention at Anchorage Correctional Complex ("ACC"). Each of the Defendants is also subject to the same Protective Order for Discovery issued by the Court.
Dkts. 74 (Cross Joinder); 78 (Topps Joinder).
Glover and Cross are housed at ACC-West and Topps is housed at ACC-East.
Dkt. 63 (Protective Order). The current Protective Order prohibits the Defense Team from (1) disclosing protected personal information to unauthorized third parties or (2) leaving discovery containing protected personal information or the identifying information of a confidential informant in the Defendants' custody. Id. at 1-2.
Defendants assert that Alaska Department of Corrections' ("DOC") regulations and COVID-19 restrictions "make it impossible, NOT DIFFICULT--BUT IMPOSSIBLE, for the defense to review discovery with Defendant or Defendant to provide any meaningful assistance to counsel." Defendants argue that their current conditions of confinement violate their Fifth Amendment right to access the courts and their Sixth Amendment right to effective assistance of counsel. To redress these alleged constitutional violations, Defendants request this Court to "declare AS § 33.30.015 unconstitutional and order the DOC to implement procedures to permit prisoner access to iPads or similar devices with limited capabilities that permit discovery review and access to counsel."
Dkt. 73 at 10 (capitalization in original). The challenges that Defendants face while in DOC custody are further alleged by Bruce Johnson. Dkt. 73-1 (Johnson Declaration).
Dkt. 73 at 3-11.
Id. at 11
The Government opposes the Motion. The Government asserts that federal detainees in DOC custody are able to review their discovery either by reviewing papers/CDs sent to their DOC facility, via videoconference with their attorney, or by being temporarily transferred to the custody of the U.S. Marshal pursuant to 18 U.S.C. § 3142(i). Additionally, the Government contends the Court cannot order DOC to alter its policies within the context of this criminal case. Moreover, the Government argues that even if Defendants' constitutional claims are properly before the Court, AS 33.30.015 does not violate Defendants' right access to counsel or discovery under the Fifth or Sixth Amendments.
Dkt. 75 (Opposition).
Id. at 5
Id. at 6
Defendants' Motion implicates numerous questions of law, fact, and procedure. However, two questions warrant immediate attention. First, are Defendants' constitutional claims properly before this Court? Specifically, Defendants' Motion begs the question as to whether they have standing to make their constitutional claims, whether the Court has jurisdiction to hear them in the context of this criminal case, and whether the State of Alaska a necessary party. Second, if their constitutional claims are properly before the Court, which standard of scrutiny applies to statutes and regulations that impinge on pretrial detainees' constitutional rights? The Court addresses each of these questions in turn.
II. DISCUSSION
A. Whether the Defendants' Constitutional Claims Are Properly Before this Court
The Government argues that the Court lacks authority to order relief in this case because the Motion is directed at DOC—not the United States. Additionally, the Government contends that Defendant's Motion "is tantamount to requesting a civil injunction against a non-party, i.e., the State of Alaska, which has not had an opportunity to defend its own statutes." As a threshold matter, the Court must determine whether Defendants have standing to bring their claims before this Court and whether this Court has jurisdiction to hear them in the context of a criminal case. Then, the Court must inquire into whether the State of Alaska must be invited to join this litigation.
Id. at 1-2.
Id. at 2.
1. Defendants' Have Standing to Bring Their Claims Before this Court
A party has Article III standing if: (1) he suffers an "injury in fact"; (2) the injury is "fairly traceable" to the challenged conduct; and (3) the injury is likely to be redressed by a favorable judicial decision. For the purposes of the Sixth Amendment, it is a sufficient injury in fact that a defendant's "right to privately confer with counsel has been chilled." The Ninth Circuit has not required a showing that a defendant has been prejudiced by the ongoing violation of a defendant's right to counsel. In other words, a defendant need not wait for trial or conviction to challenge violations to his Sixth Amendment right to counsel. Although Nordstrom was decided on Sixth Amendment grounds, the same reasoning would seem to apply to the corollary right to consult an attorney under the Fifth Amendment.
Buono v. Norton, 371 F.3d 543, 546 (9th Cir. 2004); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Nordstrom v. Ryan, 762 F.3d 903, 911 (9th Cir. 2014).
Id.
Id.
Procunier v. Martinez, 416 U.S. 396, 419 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989) (holding that "inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid.").
Here, Defendants allege that their right to substantively confer with counsel has not only been chilled but foreclosed entirely. Therefore, if the allegations in the Motion are taken as true, the Defendants have stated a cognizable injury in fact under the Fifth and Sixth Amendments. The injury is "fairly traceable" to the statutes, regulations, and practices being applied in DOC facilities, which are under contract with the U.S. Marshals Service. Moreover, the injury could be remedied by a favorable decision by this Court (e.g., pretrial release). Therefore, Defendants have standing to bring their constitutional claims regarding access to counsel before this Court.
Dkt. 73 at 10.
The Court expects that questions about the nature and consequence of the relationship between the United States and DOC will be explored further as this matter is litigated.
2. The Court Has Jurisdiction Over the Defendants' Claims
The procedural posture of Defendants' claims is uncommon. Generally, pretrial detainees may only challenge their conditions of confinement in a civil action brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 42 U.S.C. § 1983, or 28 U.S.C. § 2241. Courts disfavor attempts to litigate conditions of confinement as motions in a defendant's criminal case. However, one exception to this rule is where a pretrial detainee challenges the conditions of their confinement that infringe their ability to consult with counsel or exercise other trial rights.
403 U.S. 388, 389 (1971).
See United States v. Yandell, No. 2:19-CR-00107-KJM, 2020 WL 3858599, at *4 (E.D. Cal. July 8, 2020) (citing United States v. Luong, No. CR 99-433 WBS-GGH, 2009 WL 2852111, at *1-2 (E.D. Cal. Sept. 2, 2009)).
Luong, 2009 WL 2852111, at *1-2 (reasoning that "[p]ermitting defendant to file grievances in his criminal proceeding not directly related to his ability to exercise his rights in that proceeding would circumvent his obligation to exhaust administrative remedies before seeking redress in court.").
Yandell, 2020 WL 3858599, at *4; United States v. Wade, No. 3:07-cr-00111-RRB-JDR, 2009 WL 3837151, at *1 (D. Alaska Nov. 13, 2009) (acknowledging "that the Court does have jurisdiction to consider whether the conditions of [a pretrial detainee's] confinement prevent him from aiding his attorneys in his defense and obtaining a fair trial.").
Here, Defendants have raised constitutional claims which implicate their trial rights—the right to access and consult their attorneys. Moreover, the alleged constitutional injuries impact this Court's administration of a criminal case. Accordingly, the Court has jurisdiction to consider Defendants' Motion in the context of this criminal case.
3. The Court Must Certify the Question to the State of Alaska
Defendants have called into question the constitutionality of a state statute, AS 33.30.015. The Government contends that Defendants failed to certify the question to the State of Alaska pursuant to Federal Rule of Civil Procedure 5.1(a)(1)(B) and (a)(2) and 28 U.S.C. § 2403. Civil Rule 5.1 provides that
A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly: (1) file a notice of constitutional question . . . and (2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned—or on the state attorney general if a state statute is questioned.The Government has provided no authority that Civil Rule 5.1 applies in a criminal case, and it is unclear to the Court that it applies in this context. Nevertheless, 28 U.S.C. § 2403 provides:
In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.Certification under § 2403, is not limited to civil cases by its text. In Maine v. Taylor, the Supreme Court approved the State of Maine's intervention in a criminal case pursuant to § 2403. There, Maine was permitted to intervene after Defendant argued that Maine's import ban was unconstitutional and could not form the basis for a federal prosecution under the Lacey Act. It is unclear what certification procedure was used in the trial court.
According to Federal Rule of Civil Procedure 1, the Civil Rules "govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81." None of the Civil Rule 81 exceptions seem to apply here.
Maine v. Taylor, 477 U.S. 131, 136 (1986)
Id.
Here, the Court will rely on the procedures set forth in § 2403, which states that "the court shall certify such fact to the attorney general of the State." Accordingly, the Court will serve a copy of the Motion and the Court's certification on the Attorney General for the State of Alaska. Should the State of Alaska choose to intervene they shall be permitted to present evidence and argument on the question of AS 33.30.015's constitutionality.
B. What Legal Standards Govern the Merits of Defendants' Claims
The Defendants' claims arise under the Fifth and Sixth Amendments. From these two constitutional provisions, the Defendants articulate overlapping rights relating to access to their attorneys for the preparation of their defense. Therefore, to decide the present Motion, the Court must determine what is the scope of a pretrial detainee's Fifth and Sixth Amendment rights and what level of scrutiny applies to laws, regulations, or practices that impinge on those rights.
Dkt. 73 at 3-11. It is unclear whether Defendants' believe they have an independent constitutional right to possess and review discovery at this stage of the proceedings or whether access to discovery is a necessary part of the Fifth and Sixth Amendment right to counsel. As the Court has found no binding authority that parses this issue, it makes no tentative finding as to the constitutional dimension of Defendants' claims regarding discovery.
1. Standard Governing Defendants' Fifth Amendment Claims
The Fifth Amendment provides that "[n]o persons shall . . . be deprived of life, liberty, or property, without due process of law." "The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys."
U.S. Const. amend. V.
Procunier, 416 U.S. at 419.
In Bell v. Wolfish, the Supreme Court articulated the level of scrutiny that applies to restrictions that implicate a pretrial detainee's due process rights. The Bell Court held that, "In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee." However, "[n]ot every disability imposed during pretrial detention amounts to "punishment" in the constitutional sense, however." In order to prove that a restriction was intended to punish, the defendant must either show (1) "an expressed intent to punish on the part of detention facility officials" or (2) that the restriction is not reasonably related to a legitimate governmental objective.
Bell v. Wolfish, 441 U.S. 520, 535 (1979)
Id.
Id. at 537
Id. at 538-39.
2. Standard Governing Defendants' Sixth Amendment Claims
The Sixth Amendment guarantees the right to effective assistance of counsel during all critical stages of a defendant's criminal proceedings. However, unlike the "punishment" standard that governs due process restrictions, prison regulations that impinge on other constitutional rights will be upheld if "it is reasonably related to legitimate penological interests." This standard is deferential to prison officials and acknowledges that "prison administrators . . . , and not the courts, [are] to make the difficult judgments concerning institutional operations."
United States v. Wade, 388 U.S. 218, 224 (1967)
Turner v. Safley, 482 U.S. 78, 89 (1987)
Id.
III. CONCLUSION
The above tentative partial conclusions of law are not final. They are intended to clarify some of the issues presented by the Motion and provide guidance for future briefing and argument. However, the Motion expressly questions the constitutionality of AS 33.30.015. Therefore, pursuant to 28 U.S.C. § 2403, the Court shall issue a separate order certifying that the Motion draws into question the constitutionality of AS 33.30.015 to be served on the Attorney General for the State of Alaska.
DATED at Anchorage, Alaska this 28 th day of July, 2020.
/s/ Deborah M . Smith
CHIEF U.S. MAGISTRATE JUDGE