United States of America, Plaintiff/appellee, v. Patrick M. Reilley, Defendant/appellant, 948 F.2d 648 (10th Cir. 1991)

In this case we are faced with three questions regarding the scope of a criminal defendant's right to court-appointed counsel: First, is the scope of Federal Rule of Criminal Procedure 44(a) coextensive with that of the Sixth Amendment right to counsel? Second, does Scott v. Illinois, 440 U.S. 367, 373-74, 99 S. Ct. 1158, 1162, 59 L. Ed. 2d 383 (1979), which limits the Sixth Amendment right to counsel in state petty offense trials to cases where the defendant is "sentenced to a term of imprisonment," impose a similar limit in federal petty offense trials? And third, does a sentence of incarceration that is conditionally suspended satisfy Scott's "sentenced to a term of imprisonment" requirement? We answer all of these questions in the affirmative.¹ FACTS

The Defendant, Patrick M. Reilley ("Reilley"), was charged with leaving property unattended in a national park for longer than twenty-four hours in an undesignated area. 36 C.F.R. § 2.22(a) (2). This offense is punishable by imprisonment not exceeding six months, a fine not exceeding $500, or both. 36 C.F.R. § 1.3(a). He was tried in the United States District Court for the District of Wyoming. The district court denied his request for appointed counsel, despite his offer of proof regarding his indigence.²  The court then proceeded to find him guilty and sentenced him to thirty days imprisonment and a $500 fine. His sentence was suspended, however, on the condition that he pay $100 of the fine.³  Reilley now appeals that conviction and sentence as violative of his right to counsel under the Sixth Amendment to the United States Constitution and Federal Rule of Criminal Procedure 44.

DISCUSSION

Reilley cites two authorities, each of which, on its face, appears to grant criminal defendants an absolute right to counsel. The Sixth Amendment provides that " [i]n all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defence." U.S. Const. amend. VI. Federal Rule of Criminal Procedure 44(a) grants to " [e]very [criminal] defendant who is unable to obtain counsel" the right "to have counsel assigned to represent that defendant at every stage of the proceedings...."⁴ 

Notwithstanding the apparently absolute language of the Sixth Amendment Counsel Clause, the Supreme Court has limited that right so as to exclude prosecutions for petty offenses for which the defendant is not "sentenced to a term of imprisonment." Scott, 440 U.S. at 374, 99 S. Ct. at 1162.⁵ 

The government claims that Scott precludes any constitutional right to counsel for Reilley, who has not actually been imprisoned. In response, Reilley makes, at least by implication, three arguments: First, he argues that he was entitled to counsel under Rule 44, even if not under the Sixth Amendment. Second, he contends that Scott, which dealt with a state defendant, does not restrict the Sixth Amendment rights of federal defendants. And third, he argues that even if Scott controls his rights in federal court, his sentence of imprisonment, although conditionally suspended, nevertheless satisfies Scott's requirement. We address each of these arguments in turn.

Reilley argues that he is entitled to counsel by virtue of Federal Rule of Criminal Procedure 44(a) irrespective of his Sixth Amendment right and that Scott, a Sixth Amendment case, does not limit his right under that Rule. A characterization of Rule 44's right to counsel as broader than that of the Sixth Amendment is enticing; such a characterization would preserve the absolute language of that Rule. However, we cannot find that the scope of Rule 44 extends beyond that of the Sixth Amendment.

Rule 44 "is a restatement of existing law in regard to the defendant's constitutional right of counsel as defined in recent judicial decisions." Fed. R. Crim. P. 44, advisory committee's note 1 (1944). While the cases cited by the Committee were decided long before Scott, we find no indication that the Committee intended Rule 44 to freeze the case law of the day.⁶ 

Although no cases appear to have held directly that Rule 44 is coextensive with the Sixth Amendment, several courts have treated it as such and, in extensive dicta, indicated support for this conclusion. See, e.g., United States v. Moore, 706 F.2d 538, 540 (5th Cir.) ("sixth amendment right to counsel [is] echoed in Rule 44"), cert. denied, 464 U.S. 859, 104 S. Ct. 183, 78 L. Ed. 2d 163 (1983); United States v. Posey, 665 F. Supp. 848, 851 (C.D. Cal. 1987) (Rule 44(a) "restates the defendant's constitutional right of counsel in criminal proceedings as defined by judicial interpretations of the sixth amendment"). Additionally, several scholarly authorities appear to support this position. See, e.g., 9 Fed.Proc., L. Ed. § 22:342 (1982) (Rule 44 "implements this [Sixth Amendment] right"); Annotation, Accused's Right to Counsel under the Federal Constitution--Supreme Court Cases, 2 L. Ed. 2d 1644, 1645 (Rule 44 implements Sixth Amendment). We have found no authority for the proposition that the scope of Rule 44(a) extends beyond that of the Sixth Amendment.

Reilley cites United States v. Leavitt, 608 F.2d 1290 (9th Cir. 1979), as supporting a right to counsel under Rule 44 independent of the Sixth Amendment right. Id. at 1293 ("The right to counsel in federal courts is governed by ... Rule 44(a) as well as the sixth amendment."). However, both the language and the holding in Leavitt are ambiguous. That case acknowledged a right to counsel for a federal defendant who was given only a suspended sentence. Id. at 1291, 1293. If Scott precludes the Sixth Amendment right to counsel when actual imprisonment is not imposed, Reilley argues, Leavitt must have granted a distinct right under Rule 44. An alternative reading, however, suggests itself. We believe that Leavitt acknowledged the defendant's constitutional right to counsel, which is expressed in Rule 44, on the ground that his suspended sentence constituted a "sentence [ ] to a term of imprisonment." Our reading of Leavitt draws support both from the evidence cited supra suggesting that Rule 44 is coextensive with the Sixth Amendment, and that cited infra, Part III, suggesting that a conditionally suspended sentence is sufficient to trigger the Sixth Amendment right to counsel.

We thus hold that Rule 44(a) and the Sixth Amendment are coextensive. A defendant cannot have any rights under Rule 44 that he does not have under the Sixth Amendment. Thus, if Scott precludes Reilley's constitutional right to counsel, he cannot claim an independent right under Rule 44(a).

Reilley next argues that Scott, which on its facts addressed the Sixth Amendment right to counsel only in state court, should not be held applicable in federal court. We disagree.

Although Scott arose in the context of a state prosecution, and its language therefore deals exclusively with state courts, both the doctrine of selective incorporation, on which Scott relies, and the reasoning of Scott suggest that its holding must extend to prosecutions in federal court.

The federal constitutional right to counsel in state court addressed in Scott is a product of the doctrine of selective incorporation. Under this doctrine, the commands of the Sixth Amendment, which are generally binding only against the federal government, are applied against the states through the Fourteenth Amendment. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 2.5(a) (1985).

The seminal case granting state criminal defendants a federal constitutional right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), was ambiguous as to the basis for its holding. That case could be read as based either on the doctrine of selective incorporation or on the alternative doctrine of fundamental fairness. See Gideon, 372 U.S. at 340, 342, 83 S. Ct. at 794, 795 ("the Fourteenth Amendment requires appointment of counsel in a state court just as the Sixth Amendment requires in a federal court"; "appointment of counsel for an indigent criminal defendant was 'a fundamental right, essential to a fair trial' ").

The distinction between the selective incorporation and fundamental fairness doctrines is important because under the former the right that is applied against the states has precisely the same contours as the federal right. Under the fundamental fairness doctrine, in contrast, only those elements of the federal right required to assure fundamental fairness apply against the state. Thus, the state government may be held to a lesser standard than the federal government under the fundamental fairness doctrine but not under the selective incorporation doctrine. See W. LaFave & J. Israel, supra, § 2.5(a).

At least in the area of the Sixth Amendment right to counsel, the debate between fundamental fairness and selective incorporation seems to have been resolved in favor of the latter.⁷  Subsequent cases, albeit in dicta, have clearly interpreted Gideon as resting on selective incorporation. See, e.g., Argersinger v. Hamlin, 407 U.S. 25, 27, 92 S. Ct. 2006, 2008, 32 L. Ed. 2d 530 (1972) ("The Sixth Amendment, ... in enumerated situations has been made applicable to the States by reason of the Fourteenth Amendment....") (citing Gideon and other cases); Malloy v. Hogan, 378 U.S. 1, 10, 84 S. Ct. 1489, 1495, 12 L. Ed. 2d 653 (1964) (" [T]he right to counsel guaranteed by the Sixth Amendment [is] to be enforced against the States under the Fourteenth Amendment according to the same standards that protect [that] personal right [ ] against federal encroachment.") (citing Gideon) .

While these references to Gideon are admittedly dicta, they appear to be uniform. We are aware of no authority for the proposition that the federal constitutional right to counsel in state prosecutions is a product of the fundamental fairness doctrine or that this right is not coextensive with the right in federal prosecutions.

Where the Sixth Amendment right to counsel applies to the states through the doctrine of selective incorporation, a decision on the scope of that right in one forum must logically extend to the other forum. Thus, Scott must apply in federal court.

Additionally, although Scott's reasoning is directed to the context of state court, that reasoning applies with equal force in a federal forum. Scott was based primarily on two arguments: First, "actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment," at least in the context of a petty offense. 440 U.S. at 373, 99 S. Ct. at 1162. And second, granting defendants a right to counsel in cases in which imprisonment is not imposed but is merely authorized by statute "would create confusion and impose unpredictable, but necessarily substantial, costs" on the states. Id. The first of these considerations, the nature of the penalty, obviously extends to federal as well as state fora. The second consideration, while addressed to the state courts, applies to federal courts as well: Although financial and administrative expedience may not be the strongest of grounds for deciding the scope of a constitutional right, these factors are as relevant in federal courts as they are in state courts.

Courts in at least two other circuits have applied Scott in federal court. See United States v. Doe, 743 F.2d 1033, 1038 (4th Cir. 1984); United States v. Jackson, 605 F.2d 1319, 1320 (4th Cir. 1979) (per curiam); United States v. Nash, 703 F. Supp. 507, 510 (W.D. La.), aff'd, 886 F.2d 1312 (5th Cir. 1989) (table).⁸  And although one district court has explicitly limited Scott to state prosecutions, United States v. Ramirez, 555 F. Supp. 736, 740 (E.D. Cal. 1983), the reasoning in that case is contrary to that set forth herein. Thus, we must respectfully disagree with Ramirez.

In sum, the doctrine of selective incorporation, through which the Sixth Amendment was applied in Scott, the reasoning underlying that opinion, and subsequent decisions suggest that Scott must apply in federal court as well as in state court.

Therefore, Scott is applicable in Reilley's case. Thus, Reilley has a right to assigned counsel under the Sixth Amendment only if he was "sentenced to a term of imprisonment."

Reilley's final argument is that his conditionally suspended sentence satisfies Scott's "sentenced to a term of imprisonment" requirement, such that he is entitled to counsel under the Sixth Amendment (and therefore under Rule 44(a) as well). We agree.

Scott held that "no indigent criminal defendant [can] be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." 440 U.S. at 374, 99 S. Ct. at 1162. In this formulation, the constitutional right to counsel limits not the trial itself, but rather the sentence that may be imposed. By denying the defendant counsel, the court effectively waives its right to sentence him to prison. See United States v. Foster, 904 F.2d 20, 21-22 (9th Cir. 1990) (" [I]f a court wishes to retain its powers to imprison a [defendant], it must simply afford [him] counsel...."); see also United States v. Sultani, 704 F.2d 132, 133-34 (4th Cir. 1983) (A conditionally suspended jail sentence "could not be made an active one when an indigent defendant had requested counsel and that claim was denied.") (dicta).

Although Scott did not address the issue of whether a conditionally suspended term of imprisonment constitutes a "sentence [ ] to a term of imprisonment," the conclusion clearly follows from its holding. If a defendant cannot be ordered to serve a sentence of imprisonment, it seems obvious that a conditional sentence of imprisonment is equally invalid. Since the court's conditional threat to imprison Reilley could never be carried out, the threat itself is hollow and should be considered a nullity.

At least two circuits appear to maintain this position. See Leavitt, 608 F.2d at 1293 (constitutional right to counsel attached where jail sentence was suspended);⁹  United States v. White, 529 F.2d 1390, 1394 (8th Cir. 1976) (upholding fine but striking suspended jail term for defendant deprived of counsel).¹⁰ 

Although one district court has read Scott as adopting an "actual imprisonment" standard, Nash, 703 F. Supp. at 510 (conditionally suspended sentence permissible in uncounseled trial under Scott) we respectfully disagree with that court's reading of Scott for the reasons stated supra.¹¹ 

We thus hold that a conditionally suspended sentence of imprisonment cannot be imposed on a defendant who has been denied counsel. Although we strike down that portion of the sentence here, we affirm the remainder of the sentence, which was a $500 fine suspended on the condition that Reilley pay $100. The record does not disclose whether Reilley has, or will, satisfy that condition and, accordingly, we remand so that the district court may supervise the execution of sentence in this case.

Accordingly, Reilley's conviction is AFFIRMED, his prison sentence is VACATED, the remainder of his sentence is AFFIRMED, and the case is REMANDED to the district court for such proceedings consistent with this opinion as may be necessary.