Dual sovereignty and the Sixth Amendment right to counsel.

• Jurisdiction: United States
• Date: 01 June 2004
• Author: D'Addio, David J.
• Published date: 01 June 2004
• Author: D'Addio, David J.

United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002).

In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charged offenses. (1) Prior to Cobb, lower courts had created an exception to this rule, holding that the right to counsel also attached to any additional uncharged crimes that were "factually related" to a specific charged offense. (2) But Cobb rejected this exception and held that "offense" in the right-to-counsel context is synonymous with "offense" in the double jeopardy context. (3) For double jeopardy purposes, a single criminal act that violates both state and federal law constitutes two separate offenses, because it violates the laws of two separate sovereigns. (4) Thus, read literally, Cobb implies that the right to counsel can attach to a charged offense against one sovereign, but not to the same (uncharged) offense against a different sovereign.

In United States v. Avants, the Fifth Circuit adopted this literal reading and held that Cobb requires lower courts to incorporate the "dual sovereignty doctrine" described above into the Sixth Amendment definition of offense. (5) In contrast, the Eighth Circuit concluded in United States v. Bird that Cobb does not strictly require application of the dual sovereignty doctrine. (6) Although Avants is more faithful to the plain language of Cobb, the decision is problematic because it invites collusion among state and federal law enforcement during pretrial investigations, creating the potential for cooperating sovereigns to circumvent a defendant's Sixth Amendment fight to counsel. Bird, on the other hand, at least implicitly recognizes this collusion problem. As a result, its holding better comports with the purpose and spirit of the Sixth Amendment. This Comment sides with Bird's outcome, but places the case on a firmer doctrinal foundation, arguing that the importation of dual sovereignty into Sixth Amendment doctrine runs counter to both the logic and the history of the post-incorporation Bill of Rights. Part I sets forth relevant Sixth Amendment doctrine and examines Cobb. Part II assesses Avants and Bird. Part III supplies a structural argument for Bird's result, and concludes.

I

The purpose of the Sixth Amendment right to counsel is "to protec[t] the unaided layman at critical confrontations with his expert adversary." (7) Defendants possess this fight in the pretrial phase because, in the Court's view, the time between the defendant's arraignment and the beginning of his trial is "perhaps the most critical period of the proceedings." (8) The Sixth Amendment right to counsel is offense-specific and attaches only to the charged offense. (9) Once the defendant invokes his right, any statements "deliberately elicited" (10) by law enforcement regarding that offense may not be used as evidence at trial unless either (1) the defendant's counsel has agreed to the interrogation, or (2) the defendant waived his right to counsel. (11) But given the practical difficulties in obtaining a waiver, police are effectively unable to elicit statements from a represented defendant unless the defendant initiates the conversation. (12)

Because the fight to counsel is offense-specific, the distinction between the charged offenses to which the fight attaches and other uncharged offenses is crucial. The Court recognized in Texas v. Cobb that "the definition of an 'offense' is not necessarily limited to the four corners of a charging instrument." (13) To determine just how far beyond the four corners courts were permitted to reach, the Supreme Court borrowed doctrine from another area of law where the definition of offense is crucial: double jeopardy. Specifically, Cobb imported the test of Blockburger v. United States, which states that a criminal act that violates two statutes will be considered two separate offenses when each violated statute "'requires proof of a fact which the other does not.'" (14) Cobb chose this test because it saw "no constitutional difference between the meaning of the term 'offense' in the contexts of double jeopardy and of the right to counsel." (15) This statement is, at the very least, an invitation for lower courts to import dual sovereignty into Sixth Amendment jurisprudence. (16) If there is truly "no difference" between the meanings of offense in the double jeopardy and right-to-counsel contexts, then it follows that dual sovereignty--an integral part of the double jeopardy definition of offense--should be part of the right-to-counsel definition of offense as well.

The theory of dual sovereignty is simple: "[A]n 'offense' is a transgression of a 'sovereign's' law; the states and the federal government are 'distinct sovereignties'; therefore, a single act violating federal and state laws constitutes two distinct offenses." (17) Yet if federal and state charges for the same act are separate offenses for Sixth Amendment purposes, opportunities arise for cooperating sovereigns to undercut the right to counsel. First, federal officials acting in good faith could interrogate a defendant facing state charges without informing the defendant's lawyer, and could then provide those statements to the state prosecutor for use at trial or use them in a federal prosecution for the same offense. (18) Second, state investigators could conduct the interrogation themselves, rendering its fruits inadmissible at a state trial, but potentially admissible in a subsequent federal trial for the same crime. (19)

II

United States v. Avants interprets Cobb in a manner that permits the Sixth Amendment circumvention described in Part I. Ernest Henry Avants was indicted by Mississippi authorities for the 1966 murder of an elderly sharecropper. Avants obtained counsel and was released on bond pending state trial, but was subsequently questioned by two FBI agents about the murder. Despite having been apprised of his Miranda rights, Avants said that he "blew [the victim's] head off with a shotgun." (20)

Avants was acquitted of the state murder charge, but because the murder was committed in a national forest, the crime fell within federal jurisdiction. Thirty years later, a federal grand jury indicted Avants for the murder. Before trial, Avants moved to suppress the statements he had made to the FBI agents in 1967, arguing that they were taken in violation of his Sixth Amendment right to counsel. The Southern District of Mississippi agreed and suppressed the statements. (21) But the Fifth Circuit reversed, finding that the evidence was admissible under Cobb because the state and federal murder charges were separate offenses, and the fight to counsel had attached only to the state charge when Avants confessed. (22) The court explained, "[I]t seems rather clear that the Supreme Court would require us to apply double jeopardy principles in determining whether two offenses are the same in the Sixth Amendment context." (23) According to the Fifth Circuit, Cobb mandated this conclusion:

By concluding without limitation that the term "offense" has the same meaning under the Sixth Amendment as it does under the Double Jeopardy Clause, the Court effectively foreclosed any argument that the dual sovereignty doctrine does not inform the definition of "offense" under the Sixth Amendment. Stated differently, the Supreme Court has incorporated double jeopardy analysis, including the dual sovereignty doctrine, into its Sixth Amendment jurisprudence. (24) Two points about Avants are worth emphasizing. First, the case involved a single criminal act that, despite being a violation of both federal and state law, would constitute a single "offense" under the Blockburger test. The Fifth Circuit readily conceded this point, (25) yet because the murder violated the laws of two separate sovereigns, the court held that the single criminal act nevertheless constituted two separate offenses for Sixth Amendment purposes. (26) Second, nothing in the opinion suggests that the court was concerned about the relationship between the sovereigns--whether they worked together, shared investigative resources, or consulted each other on prosecutorial decisions. In short, Cobb's statement equating "offense" in the fight-to-counsel context with "offense" in the double jeopardy context carries practically the entire weight of the Fifth Circuit's decision.

In sharp contrast, Bird declined to import dual sovereignty into its Sixth Amendment analysis, and did so with little explanation. Instead, it assessed the two crimes at issue--violations of federal law and Native American...