United States District Court, E.D. California
TENTATIVE RULING & ORDER
court heard argument on October 23, 2019, on defendants'
motion challenging their conditions of pretrial confinement,
ECF No. 189. Broadly, the government in this case charges an
alleged drug distribution conspiracy by members of the Aryan
Brotherhood incarcerated in the California prison system. The
government also charges certain defendants committed murder
in furtherance of the conspiracy. Indictment, ECF No. 25.
These defendants are Jason Corbett, Ronald Yandell, Daniel
Troxell, William Sylvester, Travis Burhop, Donald Mazza, Pat
Brady, Samuel Keeton, Michael Torres and Justin Petty, and
are the movants here. Five of these defendants potentially
face the death penalty: Yandell, Sylvester, Daniel, Brady,
argue the conditions of their confinement at the Sacramento
County Jail deny them their constitutional rights to
effective assistance of counsel and due process, in that they
are being denied adequate access to meetings with their
attorneys and review of discovery. Defendant Brant Daniel
joins in the motion, alleging similar violations of his
rights at California State Prison-Sacramento. ECF No. 194.
The government argued, and defendants conceded, that certain
matters they raise here are conditions of confinement not
susceptible of resolution by this court at this time; rather
they must be raised after exhaustion of administrative
remedies in a Bivens action. See Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). An example of one of these conditions is
defendant Daniel's housing in administrative segregation.
Daniel Joinder, ECF No. 194 at 3. After discussion with the
court, the parties agreed at hearing the court could address
conditions of defendants' confinement to the extent they
interfere with the right to effective assistance of counsel.
To facilitate the court's addressing these conditions,
the parties agreed to meet and confer and, in order to
clarify the record and narrow disputes to the extent
possible, file a joint statement addressing each alleged
barrier to effective assistance. At hearing, the court
indicated it would tentatively identify for the parties the
standards the court currently has identified as applicable to
conditions of defendants' confinement to ensure effective
assistance of counsel and related pretrial rights, which it
does below. To the extent any party disagrees with these
standards, that party shall register and explain its
disagreement in the joint statement.
Attorney Visitation and Discovery Review
defendants assert they can only meet with their attorneys in
a single visitation booth wide enough only for a single
person on each side. Mot. at 2. The government disputes this
characterization. Opp'n at 12, ECF No. 215. Defense
attorneys say they can only run a laptop in the booth for the
duration of its battery life; there is no electrical outlet
in the booth. Mot. at 2-3. Because discovery includes
extensive digital information, defendants propose the jail
either rewire the booth to allow longer periods of time for
review of discovery, or provide the defendants with approved
devices so that they can review discovery themselves in their
cells. Mot. at 8-9.
right to effective assistance of counsel is […] the
right of the accused to require the prosecution's case to
survive the crucible of meaningful adversarial
testing.” United States v. Cronic, 466 U.S.
648, 656 (1984). “The core of this right has
historically been, and remains today, ‘the opportunity
for a defendant to consult with an attorney and have him
investigate the case and prepare a defense for
trial.'” Kansas v. Ventris, 556 U.S. 586,
590 (2009) (citing Michigan v. Harvey, 494 U.S. 344,
348 (1990)). “Not every restriction on counsel's
time or opportunity to investigate or to consult with his
client or otherwise prepare for trial violates a
defendant's Sixth Amendment right to counsel.”
Morris v. Slappy, 461 U.S. 1, 11 (1983) (citation
omitted). The Sixth Amendment does not guarantee a meaningful
relationship with counsel. Id. at 13-14.
particularly relevant here, the Supreme Court has
“consistently required that capital proceedings be
policed at all stages by an especially vigilant concern for
procedural fairness and for the accuracy of
factfinding.” Strickland v. Washington, 466
U.S. 668, 704 (1984) (Brennan, J., concurring).
caselaw provides no per se rules delimiting what physical
attributes of visitation satisfy or violate the right to
assistance of counsel for an incarcerated defendant. However,
given that five defendants may face death charges with the
corresponding need for careful procedural safeguarding of
their right to counsel, their confinement must meet the
attorneys must be allowed to schedule visits with their
clients of sufficient length to review discovery and discuss
its implications with counsel, and if necessary, an
investigator. The prosecution's case undoubtedly will
rely on extensive evidence; to subject that case to
“the crucible of meaningful adversarial testing,
” discoverable evidence must be subject to meaningful
investigation, including input from defendants. Attorneys may
not be prevented from meaningfully consulting with their
clients at the Jail or Prison; they must be allowed access.
defendants must be allowed to make unmonitored phone calls to
counsel during normal business hours. Weatherford v.
Bursey, 429 U.S. 545, 554 n.4 (1977).
court can find no authority to support a constitutional right
for the defendants to physically possess discovery materials.
Thus, for example, the court does not anticipate requiring
that electronic devices be given to the defendants to review
discovery in their cells.
the Ninth Circuit has identified a Fourteenth Amendment right
to contact visits, see Ching v. Lewis, 895 F.2d 608,
610 (9th Cir. 1990), a legitimate penological policy
restricting that right appears valid under Turner v.
Safley, 482 U.S. 78, 89 (1987). Thus, the court does not
anticipate requiring that contact visits be allowed at this
time the court also does not anticipate ordering rewiring of
visiting booths or the provision of internet access. No case
law exists suggesting either is constitutionally required for
effective assistance of counsel.
defendants assert the visiting booths at the Sacramento
County Jail are not soundproof and thus not confidential.
Mot. at 2. They claim deputies have been seen reading
defendants' legal documents. Mot. at 5. Defendant
Daniel's joinder describes attorney visiting booths at
CSP-Sacramento as ...