United States v. 2009-01-05 | 07-99008 | USA V. MIKHEL | precedential | opinion |

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, CaliforniaDefendant-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 Mik-
hel’s direct appeal and pursuant to our authority to “regulate
practice in a particular case [before us] in any manner consis-
tent with federal law.” Fed. R. App. P. 47(b); see Daccarett-
Ghia 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
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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 attor-
neys, 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 pre-
cleared 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 pre-
cise . . . [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] rec-
ognized that the presence of an interpreter who provides accu-
rate 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 provi-
sion 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

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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 communicat-
ing with Mikhel. Specifically, we order that SAM 2(b)(i) be
amended to state that “Mikhel’s attorney(s) may use Depart-
ment 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 Govern-
ment, 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 dissemi-
nate the contents of the inmate’s communication to third par-
ties for the sole purpose of preparing the inmate’s post-
sentencing proceedings . . . on the understanding that any
such dissemination shall be made solely by the inmate’s attor-
ney, 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 investi-
gators working on behalf of Mikhel’s counsel . . . to dissemi-
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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 amend-
ment.
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. Stew-
art, 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 investiga-
tor 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 investi-
gator 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” justifi-
cation 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 Fed-
eral Public Defender staff investigators who have satisfied the
Government’s pre-clearance requirements to meet with Mik-
hel in the absence of his attorney will not impose any addi-
tional burden on the Government or otherwise adversely
792 UNITED STATES v. MIKHEL

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“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 non-
contact, 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 modi-
fications, 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.
793 UNITED STATES v. MIKHEL

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