Criminal Justice Section  


Criminal Justice Magazine
Summer 2001
Volume 16, Issue 2

Right to Counsel: Courts Adhere to Bright-line Limits

By James S. Montana, Jr., and John A. Galotto

In a group of cases that the United States Supreme Court decided or declined to review within the last year, the strict doctrinal limits of the Sixth Amendment right to counsel held firm despite fact patterns that challenged the wisdom and soundness of those limits. Two related principles-that the right only attaches at the commencement of formal judicial proceedings and that the right is "offense specific"-remained intact because the Supreme Court adopted and endorsed a formalistic approach to the Sixth Amendment. In this environment, where the right to counsel remains subject to strict, bright-line limitations by the Supreme Court, it is imperative that lower courts give broad interpretation to the no-contact rule and other state ethical rules intended to guarantee individuals fair and unfettered access to legal representation.

The general rule regarding the attachment of the right to counsel is familiar: The right to counsel does not attach until the initiation of formal proceedings. (Kirby v. Illinois, 406 U.S. 682, 688-89 (1972).) However, two recent cases-United States v. Moody, 206 F.3d 609 (6th Cir.), cert. denied, 121 S. Ct. 301 (2000), and United States v. Hayes, 231 F.3d 663 (9th Cir. 2000) (en banc), cert. denied, 121 S. Ct. 1388 (2001)-not only reaffirmed Kirby's general rule, but also made it a bright-line test that permits no exceptions. In Moody, the Sixth Circuit expressed frank dissatisfaction with its decision that held that the right to counsel did not protect a defendant during preindictment plea negotiations. (See 206 F.3d at 616 ("this is an occasion when justice must of necessity yield to the rule of law.").) In a 7-4 decision in Hayes, the Ninth Circuit held that the right to counsel had not attached even after the government had sought to obtain material witness depositions for use at the defendant's trial. The panel majority admitted that it was "somewhat queasy" about its decision. (See 231 F.3d at 675.)

After denying certiorari in both Moody and Hayes, the U.S. Supreme Court enforced a bright-line rule in the face of very difficult facts in Texas v. Cobb, 121 S. Ct. 1335 (2001). In a 5-4 decision, the Court said that the Sixth Amendment is "offense specific." This rule first emerged in McNeil v. Wisconsin, 501 U.S. 171 (1991), as a corollary of the Kirby rule-the Sixth Amendment only applies to offenses in which formal proceedings have been initiated, and, thus, does not protect individuals with respect to investigations into other offenses. (See McNeil, 501 U.S. at 175.) Adhering to the letter of the McNeil rule, the Court in Cobb held that with respect to a single incident of burglary and murder, the Sixth Amendment right to counsel did not protect the defendant in connection with the murder investigation even while he was already charged and awaiting trial on the burglary.

Attachment of the right to counsel

The Sixth Amendment of the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." (U.S. CONST. amend. VI.) The right applies to state proceedings through the Fourteenth Amendment. (See Brewer v. Williams, 430 U.S. 387 (1977).) Evidence obtained in violation of a defendant's Sixth Amendment right to counsel may not be used against the defendant at trial. (Massiah v. United States, 377 U.S. 201, 207 (1964).)

Unlike the Fifth Amendment right to counsel, which attaches in the context of custodial interrogation, see Miranda v. Arizona, 384 U.S. 436 (1966), the Sixth Amendment right to counsel entitles the accused to effective assistance of counsel at the "critical stages" of the criminal justice process, including during trial and during certain pretrial proceedings. (United States v. Wade, 388 U.S. 218, 224 (1967); United States v. Ash, 413 U.S. 300, 310 (1973) (certain pretrial proceedings "might appropriately be considered parts of the trial itself" when the defendant is "confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.").) The Court in Wade recognized that certain pretrial proceedings may yield results that "settle the accused's fate and reduce the trial itself to a mere formality." (Wade, 388 U.S. at 224.) In a pre-Miranda case that the Court later limited to its own facts, the Court held that the Sixth Amendment right to counsel was violated when police arrested a suspect and, while refusing his requests to see his attorney and denying the attorney access to the suspect, arranged a confrontation between the suspect and his accuser. (See Escobedo v. Illinois, 378 U.S. 478 (1964).)

The Kirby line of cases

At the same time that the Supreme Court recognized that a criminal defendant is entitled to counsel during "critical stages" of a criminal proceeding, it also began to focus on when in the chronology of the proceeding the Sixth Amendment right to counsel first attached. The foundation for this approach was the opinion of a four-justice plurality in Kirby, holding that the right to counsel did not protect a defendant at postarrest, prearraignment show-up. The plurality in Kirby stated that "[W]hile members of the Court have differed as to the existence of the right to counsel in the context of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information or arraignment." (Kirby, 406 U.S. at 689.) Here the Court selectively read its own precedents, choosing to limit Escobedo, which found that the Sixth Amendment right to counsel attached after arrest but prior to the initiation of any proceedings, to its own facts. (See Kirby, 406 U.S. at 689.) The Kirby plurality went on to define what constitutes the "initiation of judicial criminal proceedings":

The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of the government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.
(Id. at 689. See also Brewer v. Williams, 430 U.S. 387, 399 (1977) (right to counsel attached when defendant was arraigned on arrest warrant and held prior to indictment); Moore v. Illinois, 434 U.S. 220, 228 (1977) (right to counsel attached at preliminary hearing.)

In a pair of cases decided in the mid-1980s, the Supreme Court built upon the foundation laid by the Kirby plurality. In United States v. Gouveia, 467 U.S. 180 (1984), the Court held that defendants suspected of murder in prison did not have a right to counsel while in administrative segregation prior to indictment. In so holding, the Gouveia majority enunciated the proposition that "[t]he right to counsel does not attach until after the initiation of adversary judicial proceedings." (Id. at 187.) Recognizing that this proposition went many steps beyond Kirby towards eliminating the preindictment right to counsel, Justices Stevens and Brennan refused to join the opinion of the Court while concurring in its judgment. (Id. at 193 (noting that the language in Kirby "does not foreclose the possibility that the right to counsel might under some circumstances attach prior to the formal initiation of judicial proceedings").)

Just one year later, the Court decided in Moran v. Burbine, 475 U.S. 412, 431 (1986) that a defendant's right to counsel was not violated when the police secured Miranda waivers and interviewed him without informing the defendant that they had been contacted by an attorney retained without his knowledge by his sister. Moran reinforced the Gouveia rule by stating that "the first formal charging proceeding [is] the point at which the Sixth Amendment right to counsel initially attaches." (Id. at 428.) However, the Moran majority also described the rule in more open-ended language later in the opinion, observing that the Sixth Amendment "becomes applicable only when the government's role shifts from investigation to accusation. For it is only then that the assistance of one versed in the 'intricacies . . . of law,' is needed to assure that the prosecution's case encounters 'the crucible of meaningful adversarial testing.'" (Moran, 475 U.S. at 430 (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).)

Lower courts interpret Kirby, Gouveia, and Moran

Lower courts interpreting the Supreme Court's decisions regarding the time of attachment of the right to counsel have taken one of two approaches. Courts in many circuits, including most recently the Sixth and Ninth, have seized upon the bright-line rule stated in Gouveia that the right to counsel does not attach until the initiation of formal charges. (See, e.g., United States v. Payne, 954 F.2d 199, 203 (4th Cir.), cert. denied, 503 U.S. 989 (1992); United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1117 (10th Cir. 1998); Kight v. Singletary, 50 F.3d 1539, 1548 (11th Cir. 1995), cert. denied, 516 U.S. 1077 (1996); United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986).) In each of these cited cases the discussion of the right to counsel begins and ends with the quotation from Gouveia that the right to counsel does not attach until formal charges are filed. Unlike Moody and Hayes, none of these cases discussed the extent to which their interpretations limited the right to counsel.

The other approach by lower courts has been to rely upon the broader language in Kirby and Moran, and focus on the true point at which "the government has committed itself to prosecute," see Kirby, 406 U.S. at 689, or the point at which the government's role shifts from investigation to accusation. (See Moran, 475 U.S. at 430.) This is the approach employed by the First, Third, and Seventh Circuits. (See Roberts v. Maine, 48 F.3d 1287, 1291 (1st Cir. 1995) ("We recognize the possibility that the right to counsel might conceivably attach before any formal charges are made, or before an indictment or arraignment. . . ."); Judd v. Vose, 813 F.2d 494, 497 (1st Cir. 1987) (analyzing whether extradition hearing was a criminal proceeding within meaning of Sixth Amendment); Matteo v. Superintendent, 171 F.3d 877, 892 (3d Cir.) (right to counsel "also may attach at earlier stages [than indictment or arraignment], when 'the accused is confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. . . .'"), cert. denied, 528 U.S. 824 (1999); United States ex rel. Hall v. Lane, 804 F.2d 79, 82 (7th Cir. 1986) ("What is not absolutely certain is whether [formal charges, preliminary hearing, information or indictment] are the only events that can ever constitute the start of a 'prosecution.'"), cert. denied, 480 U.S. 921 (1987); United States v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992) (defendant "may rebut this presumption [that right to counsel did not attach at pre-indictment lineups] by demonstrating that, despite the absence of formal adversary judicial proceedings, 'the government had crossed the constitutionally significant divide from fact-finder to adversary.'"), cert. denied, 507 U.S. 935 (1993).)

Consistent with this divide in the circuits, there are two federal district court cases-from the Seventh and the Third Circuits-upholding the attachment of the Sixth Amendment right to counsel prior to the initiation of formal charges. In Chrisco v. Shafran, 507 F. Supp. 1312, 1318-19 (D. Del. 1981), the district court held that the right to counsel attached to preindictment plea negotiations. The court found that notwithstanding "traditional sixth amendment analysis," the government's willingness to engage in plea bargaining was "proof that the government has made a commitment to prosecute and that the adverse positions of the government and the defendant have solidified in much the same manner as when formal charges are brought." (Id. at 1319.) Therefore, the court, "[r]ecognizing the important role played by counsel in plea bargaining, [concluded] that there can be factual contexts in which the sixth amendment right to counsel attaches prior to the time formal criminal charges have been filed." (Id.)

Similarly, in United States v. Busse, 814 F. Supp. 760, 763 (E.D. Wis. 1993), the district court held that a defendant could assert an ineffective assistance of counsel claim based upon advice received from his bankruptcy counsel to reject a preindictment plea offer. The court found that the government had committed itself to prosecute at the time the defendant discussed the plea offer with his counsel. (Id.) The court vacated the defendant's sentence on grounds of ineffective assistance, finding that counsel had not made his client aware of the mandatory application of the federal sentencing guidelines in advising him to reject the offer. Interestingly, the court also suggested that the government, having engaged in plea negotiations with the defendant's bankruptcy counsel, was estopped from claiming that the defendant's right to counsel had not attached during the plea negotiations. (Id. at 763-64.)

It is against this backdrop that two federal courts of appeals in the Sixth and Ninth Circuits this past year made significant decisions in the Moody and Hayes cases concerning the timing of the attachment of the Sixth Amendment right to counsel.

Ineffective counsel: Moody

The Moody case involved a defendant's claim of ineffective assistance of counsel based upon advice given in connection with preindictment plea negotiations. Claims of ineffective assistance of counsel are based upon the Sixth Amendment right to counsel. (See Strickland v. Washington, 466 U.S. 668 (1984).) A defendant, therefore, cannot claim ineffective assistance of counsel based on events that occurred prior to the attachment. (See, e.g., United States v. Alvarez, 142 F.3d 1243 (10th Cir.), cert. denied, 525 U.S. 905 (1998).)
In Moody, the defendant sought habeas relief based upon ineffective assistance of counsel after he was convicted and sentenced to 10 years' imprisonment for conspiracy to distribute cocaine. In February 1993, FBI agents executed search warrants at Moody's home and business, seizing one kilogram of cocaine and obtaining information that linked Moody to the cocaine. Shortly thereafter, Moody approached the FBI seeking to cooperate against his coconspirators. In the course of six interviews, all of which he attended without counsel, Moody made numerous self-incriminating statements, including an admission that his coconspirator transported 12 kilograms of cocaine for distribution by the other conspirators. During the interviews, Moody was offered a deal to plead to conspiracy in connection with the one kilogram that was seized. The deal would have limited his exposure to five years' imprisonment. With the encouragement of the assitant U.S. attorney and the FBI agent, Moody retained counsel to provide advice on the plea offer. A month later, counsel contacted the government and rejected the offer without ascertaining the extent of Moody's admissions during the interviews (most of which were conducted outside the assistant U.S. attorney's presence, thus permitting the admission of the defendant's statements under FED. R. EVID. 410(4)). On June 23, 1993, Moody was indicted for conspiracy to distribute 18 kilograms of cocaine in violation of 21 U.S.C. § 846. In January 1994, Moody pled guilty to the indictment and was sentenced to 10 years in prison-five more than he would have received under the plea offer made prior to indictment. (See Moody, 206 F.3d at 611.)

After an evidentiary hearing on Moody's habeas motion, the district court found that Moody had a Sixth Amendment right to counsel during the preindictment plea negotiations and that Moody's counsel had provided ineffective assistance of counsel by rejecting the government's offer. The district court vacated the defendant's sentence and imposed the sentence that Moody would have received had he accepted the preindictment plea offer. On appeal, the Sixth Circuit reversed, holding that the ineffective assistance of counsel did not warrant vacating the sentence because the defendant had no Sixth Amendment right to counsel at the time of the ineffective assistance. The Sixth Circuit analyzed the Supreme Court's decisions in Ash, Kirby, Gouveia, and Moran, and concluded that it could not find that a right to counsel attached during the plea negotiations:

In light of the Supreme Court's stance on this issue, it is beyond our reach to modify this rule, even in this case where the facts so clearly demonstrate that the rights protected by the Sixth Amendment are endangered. Although Moody was faced with an expert prosecutorial adversary, offering him a plea bargain which he needed legal expertise to evaluate and which would have constituted an agreement if accepted by him despite the lack of formal charges, and although by offering the specific deal the Assistant United States Attorney was committing himself to proceed with prosecution, we must uphold the narrow test of the Supreme Court.
(Id. at 614.)

The panel acknowledged that it was a "mere formality that the government had not indicted Moody at the time it offered him a deal," id. at 615, and bluntly admitted that "[t]here is no question in our minds that at formal plea negotiations, where a specific sentence is offered to an offender for a specific offense, the adverse positions of the government and the suspect have solidified." (Id. at 615-16.) Nevertheless, the panel felt constrained to hold that no right to counsel attached because the plea discussions occurred prior to the initiation of formal charges.

Preindictment Massiah violations: Hayes

In Massiah v. United States, 377 U.S. 201, 207 (1964), the Court held that incriminating statements obtained in violation of a defendant's Sixth Amendment right to counsel must be excluded from evidence. However, the evidence in Massiah was obtained after the defendant had been formally charged and was awaiting trial. In Hayes, the court confronted a defendant's claim under Massiah to exclude certain incriminating evidence obtained prior to the initiation of formal charges against the defendant.

The Hayes case involved an unusual situation in which the government, prior to indicting the defendant, sought to take material witness depositions to use at the defendant's trial pursuant to Rule 15 of the Federal Rules of Criminal Procedure. Hayes, an instructor at a community college, was one of several targets in an investigation into a conspiracy involving the sale of grades to foreign students. The government alleged that Hayes accepted money from the ringleader of the conspiracy in exchange for giving passing grades to more than 31 foreign students who never attended class or completed examinations. (See Hayes, 231 F.3d at 666.)

The investigation of the grade-selling conspiracy began sometime before the fall of 1994. On November 15, 1995, motivated by the concern that several of the foreign students would return to their home country, the government filed material witness complaints against the students pursuant to 18 U.S.C. § 3144. Section 3144 allows a court to detain or set bond conditions on witnesses whose testimony "is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena." (18 U.S.C. § 3144.) After they were arraigned the next day, the witnesses were released upon the condition that they not leave the United States without permission of the U.S. attorney or the court. (See id. at 667-68.)

On April 19, 1996, near the time the students were scheduled to graduate, the government filed a motion to take videotaped depositions of the student witnesses pursuant to Rule 15 of the Federal Rules of Criminal Procedure, and to modify the conditions of release to permit the students to return to the United Arab Emirates after the depositions were taken. In the motion, the government named Hayes as well as five other targets. The magistrate judge granted the motion, and ordered all "parties," including Hayes, to attend each deposition. The depositions were taken on May 6, 1996, and Hayes was represented at the deposition by appointed counsel. (See id. (Although not part of its holding in the case, the majority in Hayes acknowledged that is questionable as to whether preindictment Rule 15 depositions were even permitted under the federal rules. This issue was not raised by the defendant on appeal because the depositions were not used at trial. The majority also noted that the magistrate did not state the basis for appointing counsel for the defendant. See Hayes, 231 F.3d at 673-74 & n.6.).)

Meanwhile on May 5, 1996, the day before the government was to take depositions intended to be used at Hayes's trial, the FBI succeeded in eliciting and recording incriminating statements from Hayes using a cooperating witness. Almost a year later, on April 17, 1997, a federal grand jury returned a 57-count indictment against Hayes for conspiracy to defraud the United States, mail fraud, aiding and abetting mail fraud, and tax fraud. (See id. at 669.)

Hayes argued that his recorded statements should have been excluded from evidence because they were obtained in violation of his right to counsel that, he argued, attached no later than at the time the government filed its motion to take depositions for use at Hayes's trial. The court found that under the Supreme Court's decisions in Kirby and Moran, the initiation of material witness depositions was not the "functional equivalent" of the initiation of formal charges. The panel found that Hayes was "not thereby charged, indicted, or arraigned-and may never have been. Instead, the government remained an investigator rather than a prosecutor and Hayes was a target, not 'the accused.'" (Hayes, 231 F.3d at 673.) "This is a clean and clear rule that is easy enough to follow . . . . We are loath to engraft some new, pre-indictment proceeding onto the rule, thereby making it no longer clean and clear-and outside the clear boundaries that the Supreme Court has established. This said, we can't help being somewhat queasy because it looks like the government is trying to have its cake and eat it too." (Hayes, 231 F.3d at 675.)

The dissenters in Hayes focused on the extraordinary nature of the preindictment material witness depositions as a reason to depart from the general rule regarding the attachment of the right to counsel. "Rule 15 depositions are fully usable as substantive evidence at trial, and nothing prevents the government from obtaining a conviction on the basis of Rule 15 depositions alone." (Hayes, 231 F.3d at 677.) The dissenters observed that under the majority's ruling, the government, "without violating the Sixth Amendment, could have deposed the material witnesses and convicted Hayes on the basis of their deposition testimony alone, even if Hayes had been unrepresented by counsel at the depositions." (Id. at 677-78. (This may be an overstatement by the dissenters; the deposition testimony may not have qualified as former testimony under FED. R. EVID. 804(b)(1) without counsel to meaningfully cross-examine the witness).) The dissenters also decried the broader implications of the majority's holding. "[T]he majority's mechanical and formalistic approach is simply inadequate to evaluate, let alone preserve, the constitutional values at stake." (Id. at 680.) The insistence on a bright-line rule "may prevent this court from responding appropriately to some as-yet-unforeseen pre-indictment event with even more disturbing Sixth Amendment implications." (Hayes, 231 F.3d at 681.)

Reflections on Moody and Hayes

The Moody and Hayes cases articulated a bright-line rule that fails to accommodate the fundamental concern of the Sixth Amendment to protect individuals after the government has committed to prosecute them. (See Kirby, 406 U.S. at 689.) In the federal system especially, the commitment to prosecute individuals occurs before, often long before, an indictment is returned. Nevertheless, defendants engaged in complex plea negotiations involving the application of the federal sentencing guidelines are not entitled to effective assistance of counsel under the Moody and Hayes cases. Furthermore, by foreclosing the attachment of the right to counsel prior to the initiation of formal charges, the Moody and Hayes cases have unintentionally provided an incentive to law enforcement to pursue aggressive investigative techniques against represented persons even in the late stages of a criminal investigation. Defense counsel should be aware that, even after plea negotiations have been initiated and progressed, their clients are subject to surreptitious monitoring through a cooperating witness up to the point where an indictment is returned or an information is filed.

Although the Cobb case signaled the reluctance of the Court to modify its Sixth Amendment doctrine, the Supreme Court should revisit the right to counsel and articulate a rule that does not, as the Sixth Circuit candidly observed about the present rule, endanger the rights protected by the Sixth Amendment. There are several reasons why the Supreme Court should take up this issue. First, both the Moody and Hayes cases were decided by sharply divided panels. Although there is nothing unusual about the spirited dissent in the Hayes case, it is unusual that in both Moody and Hayes the majority expressed candid dissatisfaction with their decisions. Furthermore, in the concurring opinion in Moody, Judge Wiseman "urge[d] the Supreme Court to reconsider its bright line test for attachment of the Sixth Amendment right to counsel." (Moody, 206 F.3d at 618.)

The second reason the Supreme Court should take up the issue of preindictment right to counsel is that there is a distinct split between the circuits. (See Sup. Ct. R.10(c).) As described above, the First, Third, and Seventh Circuits have enunciated an open-ended rule that would permit the attachment of the right to counsel at any point where it can be shown that the government has committed itself to prosecute. Most, if not all, of the other circuits (there is some intracircuit disagreement in the Second Circuit) adhere to a bright-line test whereby the right to counsel never can attach prior to the initiation of formal charges. There is clearly a need for the Supreme Court to provide a uniform approach that can be applied in all circuits.

The third reason the Supreme Court should revisit this issue is that the bright-line test articulated by Moody and Hayes is flatly inconsistent with the broader holdings of Kirby and Moran. (See Sup. Ct. R.10(c).) As discussed above, the Supreme Court attached constitutional significance to the moment in time when "the government has committed itself to prosecute," see Kirby, 406 U.S. at 689, or the point at which the government's role shifts from investigation to accusation. (See Moran, 475 U.S. at 430.) It is clear that in many cases the point of "commitment to prosecute" is reached prior to the filing of formal charges. In many federal cases, the point of commitment is reached no later than the time that a prosecution memo is approved by a supervisor. In the many types of federal prosecutions that must be approved by the U.S. Department of Justice (DOJ), the point of commitment may be reached even earlier-at the time the DOJ approves prosecution and transmits the file to the local U.S. attorney's office. The Supreme Court should recognize that the emphasis on the time at which formal charges are filed is inconsistent with its exhortations in Kirby and Moran, and that the point when the government shifts from investigator to prosecutor is truly a question of fact to be resolved as part of any right to counsel challenge.

The fourth reason for Supreme Court review is that fact patterns will continue to emerge that put intense strain on the bright-line rule upheld in Hayes and Moody. The Hayes majority already explicitly referenced one potential fact pattern that is problematic for the bright-line rule: where it can be alleged that the prosecutors intentionally delayed in bringing formal charges. (Cf. Hayes, 231 F.3d at 673 n.5.) This fact pattern is sure to arise in the future-indeed, the bright-line rule is itself an unintentional invitation to prosecutors to intentionally delay formal charges while investigative contacts are made. Apart from this scenario, the dissent in Hayes expressed concern over "as-yet-unforeseen pre-indictment event[s] with even more disturbing Sixth Amendment implications." (Id. at 681.)

And finally, the Supreme Court should reconsider Gouveia, a case decided before the advent of the federal sentencing guidelines that magnify the significance of events in the preindictment stage to the point where Gouveia's focus on the point of indictment appears almost anachronistic. As Judge Wiseman discussed at length in his dissent in Moody, the guidelines have elevated the frequency and importance of preindictment plea bargaining. By offering certainty of outcomes, the guidelines have resulted in a continuing increase in the rate of criminal dispositions achieved by plea bargaining, see id. at 616-17 & n.2, and have created incentives for the government and the defendant to engage in plea bargaining at the earliest possible point in the criminal process. (See Moody, 206 F.3d at 616.) In addition, the ability of defendants to receive a downward departure under section 5K1.1 of the U.S. Sentencing Guidelines has intensified the "race to the courthouse" in conspiracy cases. (See id.) Indeed, in a recent case in the Southern District of New York, Judge Martin declared that "in the age of the Sentencing Guidelines, it is malpractice for a lawyer to fail to give his client timely advice concerning the importance of cooperation with the government as a means of reducing the defendant's sentence." (United States v. Fernandez, 2000 WL 534449 (S.D.N.Y. 2000).) Judge Martin observed that "[c]ounsel's ability to persuade the judge or jury is now far less important than his ability to persuade the prosecutor that the defendant should be allowed to cooperate with the government and thereby obtain a 5K1.1 letter. . . ." (Id.) The importance of effective counsel in advising criminal clients on the impact of the guidelines was underscored recently by the Supreme Court in Glover v. United States, 531 U.S. 198 (2001), which held that a 6- to 21-month difference in a sentence possibly resulting in a failure to make certain arguments under the guidelines was sufficient prejudice under the Strickland test for a finding of ineffective assistance of counsel.

In the present environment, where the federal sentencing guidelines have made plea bargaining more complicated and more likely to occur pre-indictment, the Court should free lower courts from the constraints of the bright-line test suggested by Gouveia and Moran, and allow the right to counsel to attach at "critical stages" occurring prior to indictment. As the Supreme Court recognized early on in the interpretation of the Sixth Amendment, the extension of the right to counsel beyond the actual trial resulted from "changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself." (Ash, 413 U.S. at 310.) The advent of the sentencing guidelines and their dramatic impact on the federal criminal process is precisely the type of watershed event that should influence the Court to reevaluate its formulation of the Sixth Amendment right to counsel.

Cobb and the offense-specific right to counsel

The Court, however, has signaled no inclination to reevaluate its formulations of the right to counsel. Indeed, the recent Cobb case, which reaffirmed the bright-line rule that the Sixth Amendment is offense-specific, shows a commitment by the Court to its formal doctrines irrespective of the facts of a particular case.

The principle that the Sixth Amendment is offense specific was first announced in McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). In McNeil, the defendant appeared in court and bail was set on a charge that the defendant committed armed robbery in West Allis, Wisconsin. After the defendant's court appearance, detectives questioned the defendant regarding a murder in Caledonia, Wisconsin. (Id. at 173-74.) The Court held that the questioning regarding the murder did not violate the defendant's right to counsel; although the right to counsel had attached for the armed robbery charges, it had not yet arisen for the murder charge. (Id. at 176.) Citing Kirby and Gouveia, the Court reasoned that the right had not attached because no formal proceedings had been initiated with respect to the murder charge. Finally, the Court cited a policy rationale first announced in Maine v. Moulton, 474 U.S. 159 (1985):

The police have an interest . . . in investigating new or additional crimes [after an individual is formally charged with one crime.] . . . [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities.
(McNeil, 501 U.S. at 175-76 (quoting Moulton, 474 U.S. at 179-80).)

In Cobb, the U.S. Supreme Court took the McNeil bright-line rule one step further by applying it to a single incident of burglary and murder-and in so doing reversed the Texas Court of Criminal Appeals and reinstated a death sentence. In Cobb, the victim reported in December 1993 that his home had been burglarized and his wife and daughter had disappeared. In July 1994, in response to questioning about the incident, the defendant confessed to the burglary but denied knowledge of the disappearances. In November 1995, while free on bond and awaiting trial on the burglary, the respondent was again questioned about the incident and this time, after waiving his Miranda rights, confessed to the murder as well. (See Cobb, 121 S. Ct. at 1339.) The defendant was convicted of capital murder, but his conviction was overturned by the Texas Court of Criminal Appeals. The Texas court held that the right to counsel had attached to the murder charge because it was "closely related factually" to the burglary, and the defendant's subsequent waiver of the right to counsel was not valid under Michigan v. Jackson, 475 U.S. 625 (1986). The Supreme Court reversed on the right to counsel issue, holding that McNeil "meant what it said," Cobb, 121 S. Ct. at 1339, and did not reach the waiver issue.

The basis for the Court's holding in Cobb was the language in McNeil and Moulton cited above. What is remarkable is the extent to which the Court failed to justify its reliance on the bright-line rule in light of Cobb's specific fact pattern whereby the two crimes were committed as part of a single incident in the same place involving the same victims. First of all, McNeil is factually distinguishable because the offenses in that case were unrelated-a robbery in West Allis and a murder in Caledonia. Second, as the dissent in Cobb points out, see 121 S. Ct. at 1349, in two of the Supreme Court's seminal cases upholding the right to counsel, the facts of those cases involved separate offenses. In Brewer v. Williams, 430 U.S. 387, 399 (1977), when the defendant confessed to murder after the "Christian burial speech," formal proceedings had only been initiated on an abduction charge. In Moulton, the Court found right to counsel violations with respect to burglary and theft charges based on postindictment monitoring of the defendant, even though the defendant had only been indicted on the theft charges at the time of the monitoring. The dissent in Cobb discusses at length how, under the majority's analysis, both Brewer and Moulton would have been decided differently. (See Cobb, 121 S. Ct. at 1349.) The majority's response goes no further than to say that Moulton "did not address the question now before us" and that Brewer "did not address the significance of the fact that the suspect had been arraigned only on the abduction charge, nor did the parties in any way argue this question." (Cobb, 121 S. Ct. at 1341-42.)
The majority attempted in Cobb to clarify the contours of the "offense specific" right to counsel, and held that offenses are separate for Sixth Amendment purposes under the same test of Blockburger v. United States, 284 U.S. 299 (1932) that determines whether offenses are separate for double jeopardy purposes. (See Cobb, 121 S. Ct. at 1343.) In other words, if the right to counsel attaches with respect to offense X, it will not attach with respect to offense Y if offense Y requires proof of facts that offense X does not require. So, the majority opinion begins with one formalistic test, the McNeil test, and then refines it by combining it with another formalistic test-the Blockburger test. The dissent is correct to decry the use of these technical tests to determine whether the right to counsel applies: "What Sixth Amendment sense-what common sense-does such a rule make? What is left of the 'communicate through counsel' rule? The majority's approach is inconsistent with any common understanding of the scope of counsel's representation. It will undermine the lawyer's role as 'medium' between the defendant and the government." (Id.) It is the dissenters, not the majority, who allude to the purpose of the Sixth Amendment right to counsel. (Id. at 1347 ("The purpose of the Sixth Amendment counsel guarantee is to 'protec[t] the unaided layman at critical confrontations' with his 'expert adversary'").)

A primary concern of the dissenters was the ability of law enforcement to question a defendant outside the presence of counsel concerning an incident in which the defendant has only been charged with offense X. By initiating questions concerning only offense Y, law enforcement can obtain on an ex parte basis information about the entire incident, including offense X. (See Cobb, 121 S. Ct. at 1348.) As an alternative to the Blockburger test, the dissenters offered a common sense solution-define "offense" for purposes of the "offense-specific" test to include "criminal acts that are 'closely related to' or 'inextricably intertwined with' the particular crime set forth in the charging instrument," which would tie together acts occurring at the same time or against the same victim. (Id. at 1350.)

Although the dissenters' test for "offense specific" is preferable to the majority's approach, another solution to the Cobb case can be found in taking the open-ended approach described in this article to the question of when the Sixth Amendment right to counsel attaches. If, as this article advocates, Cobb's right to counsel attached at the time the authorities committed to prosecute him for murder, the confession that Cobb gave to the authorities in November 1995 would have been obtained in violation of his right to counsel. The defendant was charged with burglary and appointed counsel in August 1994; twice thereafter, and as late as September 1995, investigators questioned Cobb concerning the disappearances with his appointed counsel present. (See Cobb, 121 S. Ct. at 1339.) Cobb's burglary case was still pending in November 1995, and it is not a stretch to assume that the delay meant that the authorities believed Cobb was responsible for the disappearances and were simply waiting for the victims' bodies to be discovered or for other evidence to develop. Then, in November 1995, the authorities were contacted by Cobb's father who reported that Cobb had confessed to killing the victims in the course of the burglary. (Id.)

Under the theory espoused by this article, Cobb's right to counsel would have attached at the point Cobb's father reported his confession, if not earlier. Clearly, at this point the Texas authorities, having placed Cobb on the scene based upon his confession to the burglary and having obtained a confession of the murder through a third party, were committed to prosecute Cobb for murder. Cobb and the Texas authorities were clearly adversaries with respect to the murder, and Cobb was entitled to counsel under the Sixth Amendment. (See Kirby, 406 U.S. at 689.) Therefore, the subsequent arrest and ex parte questioning of Cobb that elicited his confession would have violated his Sixth Amendment right to counsel, assuming that Cobb's waiver was not valid under Michigan v. Jackson.

Ethical rules in lieu of constitutional protections

Although Miranda will continue to protect criminal suspects' constitutional right to counsel in the context of custodial interrogation, the noncustodial protections of the Sixth Amendment right to counsel remain severely constricted by Supreme Court doctrine. However, if constitutional protections at the investigative stage of criminal proceedings appear to be at a low ebb, greater protection of the values underlying the Sixth Amendment is possible as a result of the passage of the McDade Amendment in 1998. The McDade Amendment, which requires federal prosecutors to comply with state ethics codes, has imposed an obligation to comply with important rules bearing on the relationship between prosecutors, defendants, and defense counsel. Such rules include the no-contact rule embodied in Rule 4.2 of the Model Rules of Professional Conduct and Rule 3.8 of the Model Rules, which requires prosecutors to make efforts to ensure that a defendant has been given the opportunity to obtain counsel. For a succinct and cogent discussion of the evolution of the applicability of state ethics rules to federal prosecutors from the Thornburgh Memorandum to the Reno Rules to the McDade Amendment, see Note, Federal Prosecutors, State Ethics Regulations, and the McDade Amendment, 113 HARV. L. REV. 2080 (2000) (hereinafter Note, Federal Prosecutors).

Model Rule 4.2 provides that a lawyer "shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." (See MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.2.) The no-contact rule has the potential to be an effective deterrent against prosecutorial overreaching during the investigative stages of criminal proceedings, including the initiation of undercover contact with subjects or targets who are known to be represented by counsel. Although courts have been extremely conservative in this area, prosecutorial violations of state ethics rules such as the no-contact rule can be a basis for courts to exclude evidence, see United States v. Hammad, 858 F.2d 834, 840-41 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990), or even to dismiss indictments. (See United States v. Lopez, 4 F.3d 1455, 1463-64 (9th Cir. 1993) (vacating dismissal of indictment because no showing of substantial prejudice and availability of lesser sanctions).) Thus, in theory, when incriminating statements may not be excludable under Hayes because they were elicited prior to indictment, they may be excludable under the no-contact rule if the defendant was represented by counsel at the time the statements were elicited. However, it should be said that courts have been extremely reluctant to create an exclusionary rule based upon violations of prosecutorial ethics. (See, e.g., United States v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993) (citing cases); United States v. McNaughton, 848 F. Supp. 1195, 1204 (E.D. Pa. 1994) ("suppression of evidence is not an appropriate remedy for an ethics violation"); United States v. Guerrerio, 675 F. Supp. 1430, 1432-36 (S.D.N.Y. 1987) (same).) Some courts have gone so far as to hold that the no-contact rule does not apply "during the investigative process before the initiation of criminal proceedings," essentially limiting the no-contact rule to areas already protected by the Sixth Amendment right to counsel. (United States v. Ryans, 903 F.2d 731, 740 (10th Cir.), cert. denied, 498 U.S. 855 (1990); but see MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.2, comment (1999) ("The ABA's Ethics Committee rejects the argument that the Rule . . . does not apply until Sixth Amendment rights attach.").)

The courts and commentators favoring a broad application of the no-contact rule have argued that it should encompass the actions of agents and law enforcement personnel as well as the actions of prosecutors. The Second Circuit has interpreted Rule 4.2 as encompassing contacts made by undercover agents and cooperating witnesses. (See Hammad, 858 F.2d at 837.) The American Bar Association Ethics Committee similarly has taken the position that prosecutors cannot avoid the prohibitions of Rule 4.2 by directing agents to contact represented parties. (See Note, Federal Prosecutors, 113 HARV. L. REV. at 2090 & n.82.) There is a problem, however, with interpreting the no-contact rule to apply to agents and law enforcement only when they act at the specific direction of the prosecutor. Such a rule may create strong incentives for the prosecutors to relinquish supervision over the agents in order to avoid the limits and potential sanctions of Rule 4.2. (See Note, Federal Prosecutors, 113 HARV. L. REV. at 2091 & nn.87-88.) Thus, while it might seem harsh to hold prosecutors accountable under Rule 4.2 for law enforcement contacts that occur without their knowledge, it may be necessary to do so in some cases to avoid the incentives just described. One approach could be to permit a factual inquiry to determine whether the prosecutor deliberately maintained ignorance of his or her agents' activities. Another approach would be to allow a "safe harbor" for prosecutors who can demonstrate that the investigative contacts with represented parties were made despite his or her warnings that such contacts were impermissible.

Of course, federal prosecutors would object to having Rule 4.2 apply in any manner to investigative contacts by law enforcement agents and potentially interfere with well-established investigative techniques-this was the concern that led to the Thornburgh Memorandum in the first place. In response to the McDade Amendment, federal prosecutors can be expected to argue that any such contacts, especially Title III wiretaps, are "authorized by law" under Rule 4.2 (although not every state's version of the rule contains this exception). Numerous courts have held that traditional investigative techniques conducted by agents were "authorized by law" under Rule 4.2, see United States v. Ward, 895 F. Supp. 1000, 1006 (N.D. Ill. 1995), or have otherwise exempted traditional investigative activities from the constraints of Rule 4.2. (See, e.g., United States v. Marcus, 849 F. Supp. 417, 421 (D. Md. 1994) (citing cases).)

Another ethical rule governing the contacts between prosecutors and defendants is Model Rule 3.8(b), which provides that "the prosecutor in a criminal case . . . shall make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel." (See MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.8(b) (1999).) The ABA Commentary to the Model Rule states that this rule applies "[a]t the investigatory stages, particularly in grand jury proceedings." The one federal district court that has analyzed Rule 3.8(b) concluded that "a prosecutor's special responsibilities under [Rule 3.8(b)] arise before a suspect is formally indicted." (See United States v. Acosta, 111 F. Supp. 2d 1082, 1094 (E.D. Wis. 2000) (finding violation of Rule 3.8(b) but declining to suppress tainted evidence).)

In an environment where the right to counsel is "offense specific" and does not attach even during the latter investigative stages of the criminal process, courts should be particularly inclined to extend the protections of state ethics rules such as Rule 3.8 and Rule 4.2 as broadly as possible. Indeed, the dissenters in Cobb recognized that Rule 4.2 protects the same values protected by the Sixth Amendment. (Cobb, 121 S. Ct. at 1347 ("Rule 4.2 . . . exists to prevent lawyers from taking advantage of uncounseled laypersons and to preserve the integrity of the lawyer-client relationship.").) Consider the facts of Moody, Hayes, and Cobb in conjunction with Model Rules 3.8 and 4.2. In Moody, the defendant approached the FBI after incriminating evidence including one kilogram of cocaine was seized, and in a series of debriefings made self-incriminating statements linking him to 12 kilograms of cocaine. (See Moody, 206 F.3d at 611.) Even if the government did not obtain these statements in violation of the defendant's right to counsel, it is arguable that the supervising assistant U.S. attorney, who was present at the first and the last of the debriefings, may have violated Model Rule 3.8(b) by not advising Moody of his right and opportunity to obtain counsel. It was not until the debriefings were complete, and the defendant had thoroughly incriminated himself, that the prosecutor encouraged the defendant to seek the advice of counsel. (See Moody, 206 F.3d at 611.) If Model Rule 3.8(b) was in effect in that particular jurisdiction, the Sixth Circuit panel would have had alternative grounds to reach the just result they sought, namely, upholding the district court's sentence based only upon the original one kilogram of cocaine.

Similarly, in Hayes, it is clear that a broad interpretation of Rule 4.2, one that encompasses the activity of agents as well as prosecutors, would have given the Ninth Circuit a basis other than the right to counsel to exclude the incriminating statements Hayes made to the cooperating witness. There is no doubt that at the time Hayes made the incriminating statements, one day before the trial depositions were to take place, he was represented by counsel. (See Hayes, 231 F.3d at 668.) The same is true in Cobb-as long as Rule 4.2 applied to the Texas authorities, it would have prohibited their contact with the defendant regarding the murder because he had counsel appointed for the burglary case. Although Rule 4.2 only prohibits ex parte contact with respect to the same "matter," case law under the rule supports the proposition that if the matters are closely related, the individual should be deemed to represented in both. (See MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.2, comment (1999) (citing cases); see also United States v. Ortega, 203 F.3d 675, 681 (9th Cir. 2000).) Clearly the burglary and the murder, even if not the same "offense" under Blockburger, were nevertheless the same "matter" for purposes of Rule 4.2.


As the dissenters in Cobb recognized, the Supreme Court's formalistic approach to the right to counsel has diminished the Sixth Amendment guarantee to "protect the unaided layman at critical confrontations with his expert adversary." (Cobb, 121 S. Ct. at 1347 (dissent) (citations omitted).) This constriction on the right to counsel is a compelling reason why courts should give the broadest possible interpretation to the state ethics rules barring contact by prosecutors and their agents with represented persons.

James S. Montana, Jr., is a former assistant U.S. attorney in the Northern District of Illinois, who now practices white-collar criminal defense as a cochair of the white-collar criminal practice group at Piper Marbury Rudnick & Wolfe in Chicago, Illinois. John A. Galotto is an attorney in Piper's white-collar group and is a former trial attorney with the U.S. Department of Justice Tax Division, Criminal Enforcement Section.

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