IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-60745
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ERNEST HENRY AVANTS,
Defendant-Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
January 7, 2002
Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit
Judges.
E. GRADY JOLLY, Circuit Judge:
In 1966, Ben Chester White was murdered. The state of
Mississippi charged the appellee, Ernest Henry Avants, with the
murder. Shortly before his state court trial in 1967, Avants made
incriminating statements to FBI agents. Avants was later acquitted
on the state murder charge.
White was murdered on federal land. So, many years later in
the year 2000, the federal government initiated this federal murder
prosecution against Avants. During the course of these 2000
proceedings, the government sought to introduce as evidence
Avants’s 1967 incriminating statements to the FBI. The district
court suppressed the statements. The central issue was whether
federal agents violated Avants’s Sixth Amendment right to counsel
during the 1967 interview. The trial court held that, because the
FBI agents had initiated the conversation at a time when Avants was
represented by counsel to defend him in the state prosecution, the
agents violated Avants’s Sixth Amendment right to counsel in
obtaining the incriminating statements. It therefore granted
Avants’s motion to suppress the statements.
On appeal, the government now contends that the district court
erred because Avants’s Sixth Amendment right to counsel is offense-
specific, and the federal and state murder charges do not
constitute the “same offense” in this context. Thus, the
government argues that Avants’s right to counsel had attached only
to the state murder prosecution at the time of the 1967 interview
and had not attached with respect to the later federal prosecution.
We agree.
We hold that the federal and state murder prosecutions in this
case, although identical in their respective elements, are separate
offenses for purposes of the Sixth Amendment because they were
violations of the laws of two separate sovereigns -- specifically,
the State of Mississippi and the United States. Therefore, because
the Sixth Amendment is offense-specific, Avants’s statements during
the 1967 interview, when he was represented by counsel only in the
state proceeding, are not barred in this federal proceeding.
2
Accordingly, we reverse the ruling of the district court and remand
for proceedings not inconsistent with this opinion.
I
In 1966, an elderly African-American sharecropper, Ben Chester
White, was found dead in Homochitto National Forest in Adams
County, Mississippi. After a police investigation, Avants, Claude
Fuller, and James Lloyd Jones were arrested and indicted by the
state authorities for White’s murder. Avants obtained counsel and
was released on bond pending trial. During the police
investigation of White’s murder, Jones elected to turn state’s
evidence and to testify against Avants and Fuller.
Around the same time, the FBI was investigating the murder of
Wharlest Jackson, a Mississippi civil rights worker killed by a car
bomb in early 1967. On March 13, 1967, the FBI special agents
assigned to the Jackson case, Allan Kornblum and Robert Boyle, went
to Avants’s house to question him about the Jackson murder.
Although both Boyle and Kornblum were aware that Avants was a
suspect in the Jackson murder -- primarily because he had been
charged with murdering White -- neither agent was actively
investigating the White murder.
When the agents reached Avants’s house, they identified
themselves and asked if they could speak with him. Avants
voluntarily came out onto the porch, and the agents read him his
rights under Miranda v. Arizona, 384 U.S. 436 (1966). Avants told
3
the agents that he was represented by an attorney on the state
murder charge, that he was aware of his rights, and that he did not
wish to have an attorney present during the interview. The three
men then discussed several civil rights crimes that had occurred
recently in Adams County, including the White murder.
According to a contemporaneous FBI report completed by Boyle
and Kornblum, at some point during the interview, Boyle asked
Avants when his trial for White’s murder was scheduled to begin.1
Avants responded that he was ready to go to trial and was confident
that he would be acquitted because the only witness against him,
James Jones, was “out of his mind.” Avants also said that his
attorney had told him that he could not be convicted of killing
White. According to Kornblum’s suppression hearing testimony,
Boyle asked Avants why he could not be convicted, and he replied
that “you can’t be convicted of killing a dead man.” The agents
then asked what Avants meant by that statement, and he responded
“Yeah, I shot the nigger, but before I shot him [Fuller] had
already shot him with a carbine, had emptied the full magazine of
15 rounds into him before I shot him. I blew his head off with a
1
The district court reconstructed the sequence of the
statements in the interview from the FBI report and from Kornblum’s
deposition and suppression hearing testimony. The trial court
credited the 1967 report indicating that “Boyle initiated the
subject of the Ben Chester White murder.” Avants, Op. at 14-16.
Relying on the language in the report and on Kornblum’s equivocal
deposition testimony, the court therefore rejected Kornblum’s
suppression hearing testimony that Avants initiated the
conversation concerning White’s murder. See id.
4
shotgun.” The agents suggested that White might not have been
dead, and Avants replied that “he had to be dead because of the
number of shots fired into him by Fuller.” Because the agents had
not been assigned to investigate the White case, they asked no
further questions on the matter.
In the late 1960s, Avants was acquitted of the state murder
charge.
More than thirty years later, in June 2000, a federal grand
jury sitting in the Southern District of Mississippi indicted
Avants for aiding and abetting White’s murder within the special
maritime and territorial jurisdiction of the United States in
violation of 18 U.S.C. §§ 1111 and 1112. During pre-trial
proceedings, Avants moved to suppress his statements to the FBI
agents during the 1967 interview. He argued that the statements
were taken in violation of his Sixth Amendment right to counsel
because he had retained an attorney in connection with the state
murder charge, and the attorney was not present for the interview.
The district court held an evidentiary hearing in September
2000. Although the court found that Avants “knowingly,
voluntarily, and intelligently” waived his Sixth Amendment right to
counsel, it found that the waiver was invalid under Michigan v.
Jackson, 475 U.S. 625 (1986), because the FBI had initiated the
conversation concerning White’s murder after Avants’s Sixth
Amendment right to counsel had attached and had been invoked. The
5
court therefore found that the statements were inadmissible as
substantive evidence at trial. The district court proceedings were
stayed pursuant to 18 U.S.C. § 3731, pending the government’s
appeal of the order suppressing Avants’s statements.
II
As we have noted, the initial issue in this appeal is whether
the FBI agents violated Avants’s Sixth Amendment rights during the
1967 interview when he was represented by counsel in the state
court proceeding. The government now argues –- for the first time
on appeal –- that Avants’s rights never attached to the federal
murder prosecution because the state prosecution and the federal
prosecution are separate offenses for purposes of the Sixth
Amendment. The government bases its position on the “dual
sovereignty doctrine,” which maintains that conduct in violation of
a federal statute and a state statute constitutes two independent
offenses, even if the statutes are identical, because the conduct
violates the law of two separate sovereigns. For the reasons set
out below, we find the government’s argument persuasive.
This case, however, cannot be decided in such a
straightforward manner. After addressing whether the “dual
sovereignty” doctrine applies in the context of the Sixth
Amendment, we must determine whether the government affirmatively
waived the argument or whether the government only forfeited the
argument by neglecting to raise it at trial. Because we conclude
that the government forfeited but did not waive the argument, we
6
must then evaluate the argument under the plain error doctrine. We
conclude that, under the law as it exists today, the district
court’s ruling constituted plain error and its suppression of
Avants’s 1967 statement must be reversed.
III
A
We begin our inquiry by laying out the legal framework for
analyzing issues relating to the Sixth Amendment right to counsel
and police interrogation. In Edwards v. Arizona, 451 U.S. 477
(1981), the Supreme Court held that, once a suspect in custody
invokes the Fifth Amendment right to counsel, the police may not
interrogate the suspect in the absence of counsel -- even if the
suspect later attempts to waive that right. Under Edwards, any
statement made by the suspect in response to police-iniated
questioning after an invocation of the right to counsel violates
the Fifth Amendment and must be excluded. The Supreme Court’s
decision in Michigan v. Jackson, 475 U.S. 625 (1986), extended the
rule in Edwards to cases involving the Sixth Amendment right to
counsel.2 The Court held that, “if police officers initiate
2
The holding in Edwards applies to cases pending on direct
appeal at the time the case was decided by the Supreme Court. See
Shea v. Louisiana, 470 U.S. 51 (1985). We assume without deciding
that the holding in Michigan v. Jackson similarly applies to cases
pending on direct appeal. Because this case has not yet gone to
trial, we assume that Michigan v. Jackson requires the exclusion of
Avants’s statements if the Sixth Amendment right to counsel
attached with respect to the federal charges at the time of the
interrogation.
7
interrogations after a defendant’s assertion, at an arraignment or
similar proceeding, of his right to counsel, any waiver of the
defendant’s right to counsel for that police initiated
interrogation is invalid,” and the resulting statements are
inadmissible as substantive evidence against the defendant.
Jackson, 475 U.S. at 636; see also Michigan v. Harvey, 494 U.S.
344, 348-49 (1990).
Michigan v. Jackson thus imposes two requirements for the
application of the Edwards rule in the Sixth Amendment context.
First, the right to counsel must have attached as to the offense in
question at the time of the interrogation. Second, the defendant
must have asserted the right to counsel at some point after the
right attached and before the interrogation began. See Patterson
v. Illinois, 487 U.S. 285, 290-91 (1988) (rejecting an argument
that police interrogation concerning a charged offense is
prohibited once Sixth Amendment right to counsel attaches where the
defendant has not invoked the right). Once invoked at an
arraignment or similar proceeding, the defendant cannot validly
waive the right to counsel during a “police initiated
interrogation” concerning the charged offense. If the defendant
voluntarily and without police prompting initiates a conversation
about the charged offense, however, any resulting statements are
admissible against the defendant at trial. See Patterson, 487 U.S.
at 291; Harvey, 494 U.S. at 352.
8
B
The initial question we address is whether Avants’s right to
counsel had attached with respect to the federal murder charge at
the time of the 1967 interview.3 As the Supreme Court explained in
McNeil v. Wisconsin, 501 U.S. 171, 175 (1991), the Sixth Amendment
right to counsel “does not attach until a prosecution is commenced,
that is, at or after the initiation of adversary judicial criminal
proceedings--whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.” The Court reasoned that
the Sixth Amendment right to counsel is “offense specific” and
attaches only with respect to charged offenses that are the subject
of adversary proceedings. See id. Even if the Sixth Amendment
right to counsel has attached with respect to a charged offense and
the defendant has invoked that right, police may elicit statements
from the defendant about another, uncharged offense without
violating the Sixth Amendment. See id. at 176.
In the present case, the government concedes that Avants’s
right to counsel had attached with respect to the state murder
charge when he was questioned by Special Agents Kornblum and Boyle
3
The government also argues that the district court erred on
two other points. First, the government challenges the district
court’s determination that the agents’ inquiries concerning White’s
murder constituted “police initiated interrogation” in violation of
Jackson. Second, the government argues for the first time on
appeal that the prophylactic rule announced in Jackson does not
apply where the suspect is questioned outside police custody. Our
ultimate holding obviates the need to reach these issues.
9
in 1967. But the government argues -- for the first time on appeal
–- that Avants’s right to counsel had not attached with respect to
this federal murder charge, which was not brought until 2000.
Relying on the “dual sovereignty doctrine,” the government contends
that the state murder charge and the instant federal murder charge
are distinct offenses for purposes of the Sixth Amendment because
they are prosecuted by separate sovereigns. Avants responds that
the federal murder charge against him is effectively the same
offense as the state murder charge that was pending in 1967. Since
his right to counsel had attached with respect to the state charge
at the time of the interview, Avants reasons, his right to counsel
must also have attached with respect to the identical federal
offense. We begin by assessing what constitutes the same offense
under the Double Jeopardy Clause.
C
Ordinarily, offenses with identical elements would constitute
the same offense under double jeopardy jurisprudence because, as
the Supreme Court has said, two offenses are the “same offense” if
neither offense “‘requires proof of an additional fact which the
other does not.’” Brown v. Ohio, 432 U.S. 161, 166 (1977) (quoting
Blockburger v. United States, 284 U.S. 299 (1932)). However, the
Supreme Court has long held that a defendant’s conduct in violation
of the laws of two separate sovereigns constitutes two distinct
offenses for purposes of the Double Jeopardy Clause. See Heath v.
Alabama, 474 U.S. 82, 88-93 (1985); see also Abbate v. United
10
States, 359 U.S. 187, 193-94 (1959) (tracing the rule to cases
decided in the 1850s). Under the Heath Court’s interpretation of
the “dual sovereignty doctrine,” the federal government may thus
prosecute a defendant after an unsuccessful state prosecution based
on the same conduct, even if the elements of the state and federal
offenses are identical. See id. at 93. The government argues that
we must apply these principles to determine whether, in the Sixth
Amendment context, an uncharged federal murder offense is the same
as Avants’s 1966 state murder charge. In evaluating this argument,
we are significantly assisted by a Supreme Court case that was
decided after the district court ruled on the motion to suppress.
In Texas v. Cobb, 121 S.Ct. 1335, 1343 (2001), the Supreme
Court clarified the meaning of “charged offense” in the Sixth
Amendment context.4 There, the defendant, Raymond Cobb, initially
admitted that he had committed a residential burglary but denied
knowledge of the simultaneous disappearance of two people who lived
in the burglarized residence. See id. at 1339. Based on this
confession, the state indicted Cobb for burglary. Cobb was then
appointed counsel and released on bond. See id. More than one
year later, while Cobb’s burglary trial was pending, his father
informed the police that Cobb had admitted to killing one of the
missing persons during the burglary. See id. After the police
took Cobb into custody and advised him of his Miranda rights, he
waived his rights and confessed to murdering both of the missing
4
The Supreme Court decided Cobb after Avants’s suppression
hearing and after the government filed its opening brief in this
appeal. Nevertheless, each party had an opportunity to present its
view of the case in subsequent briefing.
11
persons -- all in the absence of his appointed counsel. See id.
On the strength of this confession, Cobb was eventually convicted
of capital murder. See id. at 1340.
The Texas Court of Criminal Appeals reversed the conviction,
holding that the Sixth Amendment right to counsel attaches to
uncharged offenses that are “‘very closely related factually’” to
charged offenses. Cobb, 121 S.Ct. at 1340. Because the uncharged
capital murder offense was “‘factually interwoven with the
burglary,’” the court concluded that the defendant’s Sixth
Amendment right to counsel had attached with respect to the murder
offense at the time of his confession. Id. The court therefore
held that the defendant’s confession was obtained in violation of
his right to counsel and was inadmissible in his capital murder
trial. See id. The state sought review in the Supreme Court, and
the Court granted certiorari.
The Supreme Court disagreed with the Texas court. It held
that the Sixth Amendment right to counsel does not extend to
uncharged offenses, even if they are “closely related to” or
“inextricably intertwined with” charged offenses. Cobb, 121 S.Ct.
at 1343-44 (internal quotation marks omitted). The Court
emphasized that the Sixth Amendment right to counsel is “offense
specific” and “attaches only to charged offenses.” Id.
Particularly relevant to our analysis today, the Court saw “no
constitutional difference between the meaning of the term ‘offense’
in the contexts of double jeopardy and of the right to counsel.”5
5
Accordingly, the Court held that, once the right to counsel
has attached and has been invoked with respect to a charged
12
Id. at 1343.
Thus, it 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.
As we have earlier observed, identical offenses under the
respective laws of separate sovereigns do not constitute the “same
offense” under the Double Jeopardy Clause. See Heath, 474 U.S. at
88-93. 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.6 We now turn to apply the principle
announced in Cobb to the case before us.
offense, the police may still question the defendant concerning an
uncharged offense where “‘each [offense] requires proof of a fact
which the other does not.’” Id. at 1343 (quoting Blockburger v.
United States, 284 U.S. 299, 304 (1932)). The Court applied this
analysis to the case before it and held that burglary and capital
murder charges are not the “same offense” under Blockburger.
6
In a supplemental filing, Avants contends that United States
v. Red Bird, 146 F.Supp.2d 993, 1001 (D.S.D. 2001) stands for the
proposition that, under Cobb, a federal charge and a state charge
are the same offense for purposes of the Sixth Amendment. Although
the court in Red Bird counseled against reading Cobb too broadly,
the court did not specifically address whether Cobb requires
application of the dual sovereignty doctrine in the Sixth Amendment
context. Instead, the court simply held that two statutes that
differ only with respect to a jurisdictional element are the “same
offense” under the Blockburger test.
13
D
It is plain to see that the federal and state murder
prosecutions against Avants are not the “same offense” under the
Sixth Amendment because each was initiated by a separate sovereign.
This is true notwithstanding that the elements of the Mississippi
murder statute, MISS. CODE ANN. § 2215 (1956), and the federal murder
statute, 18 U.S.C. §§ 1111-12, are virtually identical.7 See
Heath, 474 U.S. at 88 (“When a defendant in a single act violates
the ‘peace and dignity’ of two sovereigns by breaking the laws of
each, he has committed two distinct ‘offenses.’”); see also id. at
89 (“[T]he Court has uniformly held that the States are separate
sovereigns with respect to the Federal Government. . . .”).
To recap what we have earlier noted, when Special Agents Boyle
and Kornblum interviewed Avants in 1967, the state had indicted
Avants for murder under Mississippi law, and Avants had retained
counsel to defend him in the state proceeding. Thus, there is no
question but that Avants’s right to counsel had attached as to the
state murder charge in 1967. See Jackson, 475 U.S. at 636. But
because the federal charge is a separate offense for purposes of
the Sixth Amendment and because the federal murder charge was not
pending until the year 2000, no Sixth Amendment right to counsel
7
To be punishable under the federal homicide statutes, the
homicide must take place “[w]ithin the special maritime and
territorial jurisdiction of the United States.” 18 U.S.C. §§ 1111-
12. Although the Mississippi murder statute does not include this
requirement, we have held that two statutes constitute the same
offense under the Double Jeopardy Clause where the sole difference
between the two statutes is a jurisdictional element. United
States v. Gibson, 820 F.2d 692, 698 (5th Cir. 1987).
14
had attached as to the federal murder charge.
Accordingly, we conclude that the district court erred in
finding that Avants’s Sixth Amendment right to counsel had attached
with respect to the federal murder charge because he “had been
arrested and indicted by the Adams County Grand Jury for White’s
murder.” Avants, Op. at 7. We do not fault the district court
because the question of attachment was not argued to the court. We
must therefore go further.
IV
A
As we have earlier cautioned, merely concluding that Avants’s
Sixth Amendment right to counsel did not attach with respect to the
federal murder prosecution at the time of the 1967 interview does
not resolve this appeal. Avants contends that the government
affirmatively waived this argument in the district court. If the
government intended to abandon (i.e., waive) all arguments
concerning whether Avants’s right to counsel had attached, the
government may not argue on appeal that the district court erred in
concluding that Avants’s right to counsel had attached. See United
States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999). In contrast,
if the government only neglected to raise -- and thus forfeited --
the argument in the district court, we review the district court’s
ruling for plain error. See Oden v. Oktibbeha County, Miss., 246
F.3d 458, 466 (5th Cir. 2001).
In United States v. Olano, the Supreme Court defined waiver as
“the ‘intentional relinquishment or abandonment of a known right.’”
507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
15
464 (1938)). To determine whether the government waived a right or
an argument, we must therefore look to evidence of the government’s
intent. See Matter of Christopher, 28 F.3d 512, 521 (5th Cir.
1994) (“Waiver may be established by showing that a party actually
intended to relinquish a known right or privilege.”); cf. First
Nat’l Bank v. Allen, 118 F.3d 1289, 1294 (8th Cir. 1997) (observing
“that waiver [of a bankruptcy claim] is ordinarily a matter of
intent”); In re Garfinkle, 672 F.2d 1340, 1347 (11th Cir. 1982)
("Waiver [of a bankruptcy claim] is usually a question of fact
since it concerns the intent of the parties.").
Avants argues that the government waived the argument that the
state and federal murder charges are not the same offense by
expressly conceding at trial that Avants’s right to counsel had
attached with respect to the federal murder charge at the time of
the 1967 interview. To support this contention, Avants relies on
the following exchange in the district court during the hearing on
Avants’s motion to suppress:
[Government:] In this case the motion that
the defendant has filed suggests two issues,
and it occurs to the government that the
principal thrust of their energy is directed
to the Sixth Amendment issue.
If the defendant is willing to concede the
voluntariness issue as to the Fifth Amendment,
then the government would be prepared to
concede as to the Sixth Amendment issue that
the defendant at the time of the [interview]
in question was represented by counsel; and we
can proceed on that matter. . . .
The Court: Let me ask first, is there a Fifth
Amendment issue?
16
[Defense Counsel:] We have raised a Fifth
Amendment issue. At this point I think that
[the government] is quite correct in saying
that our principal thrust has been towards the
Sixth Amendment Michigan v. Jackson question.
. . . I think that we could concede the Fifth
Amendment voluntariness issue, your Honor and
concentrate on the Sixth Amendment.
The Court: All right. And, with that
announcement, the government said that it
would concede what point?
[Government:] We will concede, your Honor,
that there is an issue then before the court
on the Sixth Amendment without conceding the
rectitude of the defendant’s argument. And we
would be prepared to go forward with our
witnesses at this time.
(emphasis added). Avants also points to the following statement by
the district court during the suppression hearing reflecting its
understanding of the government’s position:
Here the defendant had been indicted, but was
out on bond. He was at home. I don’t know
when he was indicted; but, at any rate, . . .
I think the government and the defendant both
agree that not only did the right to counsel
attach, but that he actually had counsel who
was actively representing him.8
In our view, the government’s representations before the
district court do not support the broad interpretation advanced by
Avants. To the contrary, in the exchange quoted above, the
8
This remark could be taken to mean that, in the trial court’s
view, the government had conceded that Avants’s right to counsel
had attached with respect to the federal murder charge before the
1967 interview. The trial court’s opinion, however, does not
mention or rely on any such view of the agreement in its analysis
of this issue.
17
government seems to have deliberately avoided making a blanket
concession regarding the attachment of Avants’s right to counsel.
The government expressly conceded only that Avants was represented
by counsel at the time of the 1967 interview and, therefore, that
Avants had invoked his right to counsel. The government also
conceded that Avants had raised “an issue” under the Sixth
Amendment, without specifying further.9 In response, the defendant
indicated that the only issue before the district court was
whether, under Michigan v. Jackson, Avants or Boyle initiated the
conversation about the White murder. In framing the arguments
attacking the admissibility of his incriminating statements, Avants
thus placed the weight of his challenge on Michigan v. Jackson.
During the above exchange, the government never expressly
conceded that Avants’s right to counsel had attached with respect
to the federal charge. Except for the Michigan v. Jackson
question, no other Sixth Amendment argument was mentioned by either
party. Indeed, the district court devoted its opinion almost
entirely to determining who initiated the conversation between
Avants and the FBI agents. We find no clear evidence from this
exchange that the government intentionally abandoned all other
potential arguments concerning the attachment of Avants’s right to
9
During argument in the trial court, the government later
indicated its belief that “the motion to suppress turn[s] on the
court’s factual determination as to who initiated the White murder
conversation . . . between Mr. Avants and the two FBI agents.”
18
counsel.10
We further note that the issue raised by the government is
purely legal and does not require additional fact-finding; that is,
if we conclude that the federal and state murder charges are
separate offenses under the Sixth Amendment, it follows as a matter
of law that Avants’s right to counsel had not attached to the
federal charge at the time of the interview.11
Clearly, however, the government’s failure to raise the issue
it now argues on appeal constitutes a forfeiture of that argument.
See United States v. Kelly, 961 F.2d 524, 528 & n.5 (5th Cir. 1992)
(distinguishing between cases in which the government failed to
raise an issue concerning probable cause and cases in which the
10
Avants further argues that he relied on a broad
interpretation of the government’s concessions when he (1)
abandoned the Fifth Amendment claim raised in his motion to
suppress and (2) gave up the opportunity to develop “additional
facts which might have shown that his Sixth Amendment right had
attached with regard to the federal charge or have shown that the
FBI was acting as an agent of the state in attempting to secure
statements to be used at his state court trial.” Given our ruling
that the government did not waive the argument that Avants’s right
to counsel had not attached to the federal charge at the time of
the 1967 interview, Avants’s concessions in the trial court do not
influence us in deciding this appeal. We should make clear,
however, that on remand Avants may pursue his Fifth Amendment
argument and his argument that the FBI agents colluded with state
authorities in 1967 to circumvent Avants’s Sixth Amendment rights.
We, of course, express no opinion on the merits of either of these
arguments.
11
See United States for use of Wallace v. Flintco Inc., 143
F.3d 955, 971 (5th Cir. 1998) (“This Court generally refuses to
consider issues not raised below unless the issue presents a pure
question of law or an issue which, if ignored, would result in a
miscarriage of justice.”).
19
government “conceded that probable cause did not exist”),
disapproved of on other grounds, United States v. Calverley, 37
F.3d 160 (5th Cir. 1994) (en banc). Accordingly, we review for
plain error the district court’s determination that Avants’s right
to counsel had attached at the time of the 1967 interview.12
B
Following United States v. Olano, 507 U.S. 725, 730-36 (1993),
our plain error analysis proceeds in four steps. First, we
determine whether the district court’s conclusion was erroneous.
See United States v. Dupre, 117 F.3d 810, 816 (5th Cir. 1997).
Second, if the court erred, we determine whether the error was
“clear and obvious” under the law as it exists at the time of the
appeal. See id. (“‘[W]here the law at the time of trial was
settled and clearly contrary to the law at the time of appeal--it
is enough that an error be ‘plain’ at the time of appellate
consideration.’” (quoting Johnson v. United States, 520 U.S. 461
(1997)). Third, we determine whether the error “‘affect[s]
substantial rights.’” Johnson, 520 U.S. at 467 (quoting Olano, 507
U.S. at 732). Finally, if all of these conditions are satisfied,
we have discretion to reverse the trial court’s judgment based on
12
See FED R. CIV. P. 52(b); Kelly, 961 F.2d at 528 (applying
plain error standard where government forfeited an issue by failing
to raise it in the district court); Singleton v. Wulff, 438 U.S.
106, 121 (1978) (“The matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily to the
discretion of the courts of appeals, to be exercised on the facts
of individual cases.”).
20
a forfeited error if we conclude that the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (citations and internal quotation marks
omitted; alteration in original).
We have already concluded, under the first prong of Olano,
that the district court erred in concluding that Avants’s Sixth
Amendment right to counsel had attached with respect to the federal
murder charge at the time that he was interviewed by Boyle and
Kornblum. See Olano, 507 U.S. at 732-33 (“Deviation from a legal
rule is ‘error’ unless the rule has been waived.”).
Under the second prong of the Olano plain error analysis, the
law is plain that the Sixth Amendment is offense-specific and that
a state offense is not the “same offense” as an identical federal
offense in this context. Indeed, the Supreme Court’s opinion in
Cobb makes clear to us that we are to apply the dual sovereignty
doctrine in the Sixth Amendment context. We therefore conclude
that the district court’s error is “clear and obvious” under the
law as it exists today.13 See Dupre, 117 F.3d at 816.
To satisfy Olano’s third requirement that the error affect
substantial rights, the appellant must generally “make a specific
showing of prejudice” -- that is, the error “must have affected the
13
We recognize here that the district court did not have the
benefit of the Supreme Court’s guidance in Cobb when it ruled on
Avants’s motion to suppress. Because we must conduct our review
under the law as it exists on appeal, however, we find that the
district court’s ruling constituted plain error.
21
outcome of the district court proceedings.” Olano, 507 U.S. at
734-35; see also United States v. Torrez, 40 F.3d 84, 87 (5th Cir.
1994) (same). In this case, the prejudicial effect of the error is
beyond dispute. There is a high probability that, absent this
error, the government would have prevailed on Avants’s motion to
suppress under the Sixth Amendment. Specifically, the federal
agents could not have violated Avants’s right to counsel as to this
federal murder charge during the 1967 interview because his right
to counsel had not yet attached with respect to the federal charge.
We therefore find, under the applicable law, that the district
court’s conclusion regarding the attachment of Avants’s right to
counsel as to the federal murder charge is plain error.
Finally, we must determine whether it is appropriate to
exercise our discretion to reverse the district court’s ruling in
this case. On this point, we find it particularly important that
the court’s error resulted in the exclusion of Avants’s startlingly
candid admission that he shot White in the head with a shotgun
after another individual had shot White fifteen times.14 This
statement is powerful evidence of guilt, the admission or exclusion
of which would be highly likely to affect the outcome of the trial.
We find that the court’s erroneous exclusion of Avants’s confession
14
Agent Kornblum testified during the suppression hearing that
Avants’s statement was “shocking” and that in his “40 years of law
enforcement and intelligence experience, no one ha[d] ever
confessed to committing a murder” in this manner.
22
seriously undermines the “fairness, integrity [and] public
reputation of judicial proceedings” and, accordingly, exercise our
discretion to reverse the district court’s ruling.15 Johnson, 520
U.S. at 467.
V
In sum, we have decided today that, following the Supreme
Court’s decision in Cobb, there is no constitutional distinction
between the definition of “offense” for purposes of the Sixth
Amendment and the Double Jeopardy Clause of the Fifth Amendment.
It follows that a federal offense and a state offense do not
constitute the “same offense” under the Sixth Amendment -- even if
the offenses are identical in their respective elements -- because
they are violations of the laws of two separate sovereigns.
Accordingly, because the right to counsel under the Sixth Amendment
is offense specific, Avants’s right to counsel had not attached
with respect to the federal murder charge at the time of the 1967
interview.
Although the government failed to raise the issue of whether
15
See Olano, 507 U.S. at 736-37; cf. Maine v. Moulton, 474
U.S. 159, 180 (1985) (“[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 the time, would unnecessarily frustrate the
public’s interest in the investigation of criminal activities.”);
cf. also Pyles v. Johnson, 136 F.3d 986, 996 (5th Cir.) (observing
that the defendant’s “‘own confession [was] probably the most
probative and damaging evidence that [could] be admitted against
him.’” (quoting Bruton v. United States, 391 U.S. 123, 139 (1968)
(White, J., dissenting))), cert. denied, 524 U.S. 433 (1998).
23
Avants’s right to counsel had attached and failed to argue the
“dual sovereignty” doctrine in the trial court, we have determined
that the government did not waive these arguments and is therefore
not barred from raising them on appeal. Reviewing the district
court’s ruling under the plain error doctrine, we further hold that
the district court erred, in view of the law existing at the time
of the appeal, when it determined that Avants’s Sixth Amendment
right to counsel had attached with respect to the federal murder
charge when Avants was arraigned on the state murder charge in
1966. We therefore reverse the district court’s ruling and remand
for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
24