United States v. Melgar

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 96-4582
JOSE ALDALBERTO MELGAR, a/k/a
Jose Aldalberto Melgar-Campos,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-96-12-A)

Argued: October 27, 1997

Decided: April 8, 1998

Before RUSSELL,* MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Mark Howard Bodner, Fairfax, Virginia, for Appellant.
Mark Samuel Popofsky, UNITED STATES DEPARTMENT OF
_________________________________________________________________
*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel pursuant to 28 U.S.C. § 46(d).
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, Ian Simmons, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The sole issue presented in this case is whether the district court
committed reversible error in refusing to suppress statements taken
from a defendant assertedly in violation of his Fifth and Sixth
Amendment rights to counsel. Because the defendant waived his Fifth
Amendment right and because the Sixth Amendment violation consti-
tuted harmless error, we affirm.

I.

We review de novo the ultimate question of whether the govern-
ment violated a defendant's Fifth and Sixth Amendment rights, but
we must "take care both to review findings of historical fact only for
clear error and to give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers." Ornelas
v. United States, ___ U.S. ___, 116 S. Ct. 1657, 1663 (1996); see also
United States v. Sprinkle, 106 F.3d 613, 616-17 (4th Cir. 1997).
Accordingly, we set forth below the relevant facts as found by the dis-
trict court. See United States v. Melgar, 927 F. Supp. 939, 943-46
(E.D. Va. 1996).

At approximately 3:00 a.m. on November 26, 1995, Officer Alan
Lowrey of the Arlington County Police Department observed an auto-
mobile traveling behind him with only one functioning headlight, in
violation of Va. Code § 46.2-1030 (1996). After further observation,
Officer Lowrey signaled to the car to pull over. He noted that five
occupants were inside and that the car windows were rolled down
despite the fact that it was a bitter cold evening. Officer Lowrey asked
the driver for his license and registration. While Officer Lowrey
checked the documents against computer records, back-up officers

2
arrived, including Officer David Torpy. In Spanish, Officer Torpy
asked the driver of the car if there were any drugs or guns in the car
and whether the officers could search the car. The driver denied hav-
ing any drugs or guns and did not immediately respond to the search
request.

As Officer Torpy discussed with the driver whether he would con-
sent to a search, Officer Lowrey walked back to the passenger side
of the car and asked Jose Aldalberto Melgar, who was in the front
passenger seat, whether there were any drugs or guns in the car. Mel-
gar, too, asserted that there were none.

When the driver eventually consented to a search of his car, Melgar
got out of the car. He initially took his jacket with him, then hesitated
and left it behind. As Officer Lowrey searched the car, he spotted this
jacket on the front passenger seat. Officer Lowrey lifted the jacket
and felt the outline of a gun in one of the pockets. After a computer
check revealed that Melgar did not have a registered permit for the
concealed weapon, the officers arrested him for illegal possession of
a firearm. A search incident to Melgar's arrest uncovered a small
amount of marijuana and an alien identification card, which, the dis-
trict court expressly found, "Officer Lowrey immediately recognized
as a fake." Melgar, 927 F. Supp. at 945.

The next day Melgar was arraigned in state court on charges of
possession of a concealed firearm without a permit, possession of
marijuana, and possession of a fictitious government identification
card. At his state arraignment, Melgar invoked his right to assistance
of counsel, and the court appointed counsel for him.

On the same day, a state law enforcement officer contacted Immi-
gration and Naturalization Service (INS) Agent Lloyd Miner regard-
ing Melgar. Agent Miner's ordinary duties with the INS involve
investigating suspected violations of United States immigration laws,
and he is often called by state law enforcement officers who believe
that they have information about illegal aliens. Miner understood the
state officer in this case to be calling him with routine information
about a suspected illegal alien. Miner told the state officer that he
would interview Melgar during the week regarding his immigration
status -- specifically Melgar's alienage and eligibility for deportation.

3
The district court found that the state officer's contact with Miner
"was not part of a conscious plan or effort to circumvent defendant's
invocation of his right to counsel in connection with the state
charges." Id. at 945 n.7.

Miner interviewed Melgar two days later on November 29, 1995,
at the local detention center where Melgar was held. At the outset of
the interrogation, Miner identified himself to Melgar as an INS agent
and told Melgar that he was interviewing him only to discuss Mel-
gar's immigration status, not the state criminal charges. Miner twice
advised Melgar in Spanish of his Miranda rights. Melgar signed a
written waiver of those rights.

During the interrogation, Melgar admitted to Agent Miner that he
was born in El Salvador and that both of his parents were citizens and
nationals of that country. He further stated that he had last entered the
United States in October 1994 illegally. In addition, when Agent
Miner asked if Melgar had any identifying scars or marks, Melgar
showed Miner a tattoo, which Miner recognized as the symbol of
membership in an El Salvadoran gang, "Mara Salvatrucha."

Following the interview, Agent Miner conducted the standard INS
computer checks, which confirmed Melgar's status as an illegal alien.
At this time, in mid-December, more than a week after Agent Miner's
interview with Melgar, Miner was named as case agent. The district
court found that "Agent Miner testified credibly that at the time of the
interview [of Melgar], he assumed someone else would be named
case agent if defendant were later prosecuted on any federal charges,"
and that "[a]t the time of his interview of defendant, his sole interest
was defendant's alienage and deportability." Id. at 946.

On December 18, 1995, federal agents -- including Agent Miner
-- arrested Melgar, who had been released on bond from state cus-
tody. On February 20, 1996, the United States indicted Melgar for
possession of a firearm by an illegal alien in violation of 18 U.S.C.A.
§ 922(g)(5) (West Supp. 1996), possession of marijuana in violation
of 21 U.S.C.A. § 844 (West 1981 & Supp. 1997), and possession of
a fraudulent identification card in violation of 18 U.S.C.A. § 1546(a)
(West Supp. 1997). Prosecution of the state offenses was stayed pend-
ing resolution of the federal charges.

Melgar moved to suppress the statements taken from him by Agent
Miner, asserting, inter alia, that they were elicited in violation of his

4
right to counsel. After conducting two evidentiary hearings, Judge T.
S. Ellis, III, entered an order denying the suppression motion. A few
weeks later, Judge Ellis issued an opinion, carefully setting forth the
reasons for that order. Melgar, 927 F. Supp. at 939. A jury ultimately
convicted Melgar of all three offenses. Judge James C. Cacheris sen-
tenced him to a term of eighteen months imprisonment each on the
gun and fraudulent identification card charges, and twelve months on
the marijuana charge, all to run concurrently.

II.

On appeal, Melgar claims only that Judge Ellis erred in refusing to
suppress his statements to Agent Miner. Melgar asserts that Miner's
interrogation of him, after he invoked his right to counsel in state
court, contravened his constitutional rights. The Fifth and the Sixth
Amendment each guarantee a right to assistance of counsel; Melgar
maintains that the government violated both provisions in his case.

The Sixth Amendment, of course, specifically provides a right to
counsel: "[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence." U.S.
Const. amend. VI. In Massiah v. United States , 377 U.S. 201, 206
(1964), the Supreme Court established that this right prohibits the
government from deliberately eliciting "incriminating evidence" from
an accused "after he ha[s] been indicted and in the absence of his
counsel." Unlike the Sixth Amendment, the text of the Fifth Amend-
ment contains no specific guarantee of counsel, but the constitutional
protection against compelled self-incrimination has long been held to
include an additional right to counsel. See, e.g., Miranda v. Arizona,
384 U.S. 436 (1966). The Fifth and Sixth Amendment rights to coun-
sel differ not only in origin but also in purpose and scope.

The purpose of the Fifth Amendment right "is to protect . . . the
suspect's desire to deal with the police only through counsel." McNeil
v. Wisconsin, 501 U.S. 171, 178 (1991) (internal quotation omitted).
"The purpose of the Sixth Amendment guarantee . .. is to protec[t]
the unaided layman at critical confrontations with his expert adver-
sary, the government, after the adverse positions of government and
defendant have solidified with respect to a particular alleged crime."
Id. at 177-78 (internal quotation omitted; emphasis and alteration in
original).

5
Because, as Judge Ellis recognized, "[t]he scope of an accused's
right to counsel under the Fifth Amendment is bounded by the
explicit right from which it is derived -- namely, the right to be free
from compelled self-incrimination," this right"arises only in situa-
tions where the right to be free from compelled self-incrimination
might be threatened, as, for example, where an individual is subjected
to custodial interrogation by the police." Melgar, 927 F. Supp. at 949-
50. Outside the context of a custodial interrogation, the Fifth Amend-
ment does not afford a suspect the right to counsel. In contrast, a
defendant need not be the subject of interrogation in order to invoke
his Sixth Amendment Massiah right to counsel. Rather, this right
applies at any critical stage of the prosecution. For these reasons, in
McNeil, the Supreme Court, recognizing that an accused had invoked
his Sixth Amendment right to counsel at his initial court appearance,
rejected a claim that he had also thereby invoked his Fifth Amend-
ment right to counsel. See McNeil, 501 U.S. at 178-79. In this respect
then, the Fifth Amendment guarantee is narrower than that of the
Sixth Amendment. Id.

However, in another respect, the scope of the Fifth Amendment
right is broader. Id. If a suspect requests counsel in an interrogation
context, the Fifth Amendment affords him protection regardless of the
subject of the interrogation. Once a suspect properly invokes his Fifth
Amendment right to counsel, he may not be questioned"regarding
any offense unless counsel is present." Id. at 177 (emphasis added).
Thus, the Fifth Amendment right is not "offense specific"; it does not
apply only to previously charged conduct. The Sixth Amendment
guarantee, however, is offense specific: "[i]t cannot be invoked once
for all future prosecutions." Id. at 175.

Both the Fifth and Sixth Amendment rights to counsel can be
waived at the outset. Once the right to counsel is properly invoked,
however, "any subsequent waiver during a police-initiated custodial
interview is ineffective," id. at 175 (citing Michigan v. Jackson, 475
U.S. 625 (1986) (Sixth Amendment)); "the current interrogation
[must] cease" and "[i]f the police do subsequently initiate an encoun-
ter in the absence of counsel . . . the suspect's statements are pre-
sumed involuntary and therefore inadmissible as substantive evidence
at trial, even where the suspect executes a waiver and his statements
would be considered voluntary under traditional standards." Id. at 177
(Fifth Amendment).

6
With these principles in mind, we turn to the case at hand.

III.

Melgar maintains that Agent Miner violated his Fifth Amendment
rights "by impermissibly initiating an interrogation after his request
for appointment of counsel." Brief of Appellant at 14. Melgar
explains that he

invoked his right to counsel at arraignment in the Arlington
County General District Court on the day following his
arrest on Virginia charges. INS Agent Miner went to the
Arlington ADC to see Melgar, not at Melgar's invitation or
request, to interrogate him about matters later used in the
federal prosecution against him. Melgar's counsel was not
present. This was in violation of Melgar's Fifth Amendment
right not to be interrogated after his request for counsel.

Id. at 21. In view of the controlling legal principles set forth above,
Melgar's Fifth Amendment argument must fail.

First, although Melgar invoked his right to counsel at his arraign-
ment on state charges, the right invoked was grounded in the Sixth
Amendment, not the Fifth. In order for the Fifth Amendment protec-
tion to arise, a suspect must be in a custodial interrogation context.
Melgar's arraignment did not constitute an interrogation any more
than the initial hearing in McNeil constituted an interrogation.
McNeil, 501 U.S. at 178-79. Accordingly, when Melgar requested
counsel at his state arraignment, no Fifth Amendment right was avail-
able to him. Of course, a Sixth Amendment right to counsel was
available at the time of arraignment and, in accord with it, the state
judge appointed counsel for Melgar.

A few days after his arraignment in state court, Agent Miner inter-
rogated Melgar. If Melgar had requested counsel at that juncture, he
could have availed himself of his Fifth Amendment right to counsel,
but Melgar did not ask for counsel at any time during the interroga-
tion. Rather, after Agent Miner twice read Melgar his Miranda rights
in Spanish, Melgar signed a written waiver of them. Moreover, as
Judge Ellis found, "nothing . . . suggest[s] that this waiver was any-
thing less than fully informed and voluntary." Melgar, 927 F. Supp.
at 950.

7
For these reasons, Agent Miner's interrogation of Melgar did not
violate the Fifth Amendment. Judge Ellis correctly rejected Melgar's
claim to the contrary.

IV.

Melgar's Sixth Amendment argument presents a more complicated
question. Melgar undoubtedly invoked his Sixth Amendment right to
counsel at his arraignment. Accordingly, Melgar's written waiver of
his Fifth Amendment right to counsel, obtained at the outset of his
interview with Agent Miner, was "ineffective" in waiving his previ-
ously invoked Sixth Amendment right. McNeil, 501 U.S. at 175. The
government reminds us that the Sixth Amendment right to counsel is
"offense specific," id., and thus maintains the "fact that no federal
charges . . . were pending" against Melgar at the time of his state
arraignment and invocation of Sixth Amendment rights"should dis-
pose" of this claim. Brief of Appellee at 24.

Melgar, however, contends that his federal offenses were so "inex-
tricably intertwined" or "closely related" to the state charges for
which he had invoked his Sixth Amendment right to counsel, that to
invoke the right for one was essentially to invoke the right for the
other. See, e.g., United States v. Arnold, 106 F.3d 37, 40-41 (3d Cir.
1997) ("the right to counsel for the pending charge cannot constitu-
tionally be isolated from the right to counsel for the uncharged
offense"). As we have recently recognized, application of the offense-
specific rule means that "government investigations of new criminal
activity for which an accused has not yet been indicted do not violate
the Sixth Amendment right to counsel." United States v. Kidd, 12
F.3d 30, 31 (4th Cir. 1993) (emphasis added). The crux of Melgar's
argument is that the government cannot ostensibly launch an investi-
gation of, or interrogation about, "new" crimes if those "new" crimes
are so inextricably intertwined with the "old" (i.e., already charged)
crimes that interrogation about the "new" amounts to interrogation
about the "old."

Maine v. Moulton, 474 U.S. 159 (1985), offers support for this con-
tention. There, the Supreme Court held that the government violated
a defendant's Sixth Amendment right to counsel when it interrogated
him post-indictment without counsel, even though this interrogation

8
was part of a legitimate investigation of "new" crimes. Id. at 176-80.
Once the Sixth Amendment right attaches, the government must
honor it, which "means more than simply that the State cannot pre-
vent the accused from obtaining the assistance of counsel." Id. at 171.
Rather, the Sixth Amendment imposes on the government "an affir-
mative obligation" to "respect and preserve" this choice, and the gov-
ernment cannot "act in a manner that circumvents and thereby dilutes"
this Sixth Amendment right. Id. Accordingly, even when the govern-
ment legitimately investigates other, unrelated crimes, it may not
elicit from, and ultimately use against, the defendant "incriminating
statements pertaining to pending charges" if in obtaining the evidence
the government "knowingly circumvent[s]" the defendant's right to
counsel. Id. at 180.

Prior to Moulton, numerous courts had held that Massiah "did not
protect a defendant from the introduction of postindictment state-
ments deliberately elicited when the police undertook an investigation
of separate crimes." Id. at 189 (Burger, C.J. dissenting) (listing cases).
"So long as investigating officers show[ed] no bad faith and d[id] not
institute the investigation of the separate offense as a pretext for
avoiding the dictates of Massiah," such evidence was held admissible
at trial of the original crime. United States v. Darwin, 757 F.2d 1193,
1199 (11th Cir. 1985). Over a vigorous dissent, the Moulton Court
expressly rejected this standard:

In seeking evidence pertaining to pending charges, .. . the
Government's investigative powers are limited by the Sixth
Amendment rights of the accused. To allow the admission
of evidence obtained from the accused in violation of his
Sixth Amendment rights whenever the police assert an alter-
native, legitimate reason for their surveillance invites abuse
by law enforcement personnel in the form of fabricated
investigations and risks the evisceration of the Sixth
Amendment right recognized in Massiah. . . . Consequently,
incriminating statements pertaining to pending charges are
inadmissible at the trial of those charges, not withstanding
the fact that the police were also investigating other crimes,
if, in obtaining this evidence, the State violated the Sixth
Amendment by knowingly circumventing the accused's
right to the assistance of counsel.

9
Moulton, 474 U.S. at 180.

In Moulton, the state initially charged the defendant with four
counts of theft, all involving receipt of stolen vehicles and stolen auto
parts. Id. at 162. Subsequently, a government informant surrepti-
tiously recorded incriminating statements from the defendant about
these charges as well as other crimes, including burglary -- stealing
the auto parts -- and attempted murder of a state's witness. Id. The
government then dismissed the pending indictment and obtained a
new indictment, which contained the original theft charges and the
previously uncharged burglary charge, but not the attempted murder
charge. Id. at 167. After the defendant was found guilty of theft and
burglary at a trial in which the prosecution relied on the incriminating
recorded conversations, he appealed to the Supreme Judicial Court of
Maine. That court held that the incriminating statements were inad-
missible and could not be used to prove either the theft offenses for
which the defendant had been indicted prior to the incriminating con-
versation, or the burglary offense for which he had not been indicted
until after that conversation; accordingly, the court ordered a new trial
on the theft and burglary counts. Id. at 168.

The state petitioned for a writ of certiorari, which the Supreme
Court granted. Id. Emphasizing that "at the very least, the prosecutor
and police have an affirmative obligation not to act in a manner that
circumvents . . . the protection afforded by the right to counsel," the
Moulton Court held that the government's post-indictment question-
ing of the defendant "knowingly circumvent[ed]" his right to counsel
and so violated his Sixth Amendment rights. Id. at 171, 176-77. In
doing so, the Court affirmed the state court's determination that the
post-indictment interrogation required a new trial on the theft counts,
which had been previously charged, and the closely-related burglary
count which had not been charged until after the interrogation. Id. at
180. Conversely, the Court noted that "[i]ncriminating statements per-
taining to other crimes [e.g., attempted murder] as to which the Sixth
Amendment right has not yet attached, are, of course, admissible at
a trial of those offenses." Id. at 180 n.16. Thus, in Moulton the
Supreme Court recognized, albeit sub silentio , that once a defendant
has invoked his Sixth Amendment right to counsel, although the gov-
ernment is generally free to interrogate him without counsel as to
crimes to which that right has not attached, the government may not

10
knowingly question him as to crimes closely related to those to which
his Sixth Amendment right has attached.1

Lower courts have followed Moulton and concluded that the "Sixth
Amendment right to counsel extends to interrogations on new charges
where the pending charge is . . . inextricably intertwined with the
charge under investigation." United States v. Doherty, 126 F.3d 769,
776 (6th Cir. 1997) (internal citations and quotations omitted) (col-
lecting cases); see also United States v. Micheltree, 940 F.2d 1329,
1342 (10th Cir. 1991) ("when a deliberate Sixth Amendment violation
occurs concerning the pending charges, the government may not use
defendant's uncounseled incriminating statements at a trial of those
or very closely related subsequent charges"). As the Third Circuit
_________________________________________________________________
1 The Supreme Court has never retreated from Moulton. In Brewer v.
Williams, 430 U.S. 387, 390, 398-400 (1977), the Court similarly held
that after a defendant's Sixth Amendment rights attached as to an abduc-
tion charge, the government could not use statements subsequently elic-
ited from him as to the location of the victim's body at trial on the later-
charged, closely related, crime of murder. In McNeil, 501 U.S. at 174
(quoting Moulton, 474 U.S. at 180 n.16), and Moran v. Burbine, 475
U.S. 412, 416 (1986), the Court reiterated the general rule that incrimi-
nating statements pertaining to crimes "other" than the pending charges
are admissible at trial on those charges, without discussing the closely
related exception. However, neither case offered the Court any reason to
do otherwise because the post-indictment interrogations in McNeil and
Moran elicited information only as to offenses not closely related to the
charged offense. See McNeil, 501 U.S. at 175 (after charged with robbery
in West Allis, defendant was interrogated (and later charged and con-
victed) of "unrelated, uncharged" offenses-- a murder, attempted mur-
der, and robbery in Caledonia) (internal quotation omitted); Moran, 475
U.S. at 416 (after defendant was arrested in connection with a burglary
in Cranton he was interrogated (and then charged) with an unrelated
murder in Providence). Moulton is the sole instance in which the Court
has been presented with a post-indictment interrogation about two sorts
of offenses in addition to those originally charged-- one closely related
to the originally charged offenses and one not. Burglary of the auto parts
was closely related to the originally charged theft of those same parts --
both crimes occurred at the same time and place and involved the same
victim and circumstances. The attempted murder, however, was planned
at a different time and place, and involved a different victim, and so was
not so closely related to the originally charged theft offenses.

11
recently explained, "[t]o hold otherwise . . . would allow the govern-
ment to circumvent the Sixth Amendment right to counsel merely by
charging a defendant with additional related crimes after questioning
him without counsel present." Arnold, 106 F.3d at 41 (internal quota-
tion and brackets omitted). Accord Doherty, 126 F.3d at 776. More-
over, if state and federal authorities cooperate in their respective
investigations, as they indisputably did here, the fact that the two sets
of charges were "brought by different sovereigns is irrelevant to this
analysis." Doherty, 126 F.3d at 776. See also United States v. Laury,
49 F.3d 145, 150 n.11 (5th Cir. 1995) ("If . . . the charges to which
the Sixth Amendment right has been invoked and the new charges are
`inextricably intertwined,' the Sixth Amendment right may extend to
the new charges. . . . In this case the [new] federal charges and [pend-
ing] state charges were identical, and therefore invocation of the Sixth
Amendment right on the state charges was sufficient to invoke the
right on the federal charges."); United States v. Martinez, 972 F.2d
1100, 1105 (9th Cir. 1992) (after defendant was indicted and invoked
his Sixth Amendment right to counsel on state weapons charge, that
charge was dismissed and he was interrogated and then indicted on
strikingly similar federal weapons charge; the court held that if "fed-
eral and state authorities worked together in shuffling his charge from
the state to the federal system" they violated their "`affirmative obli-
gation not to act in a manner that circumvents'" his Sixth Amendment
"`right to counsel'") (quoting Moulton , 474 U.S. at 171); United
States v. Foreman, ___ F. Supp. ___, 1998 WL 4284 (S.D.N.Y. Feb.
2, 1998) (adopting closely related exception when pending state
charge is inextricably intertwined with new federal charge); United
States v. Rodriquez, 931 F. Supp. 907, 926-27 (D. Mass. 1996)
(adopting "closely related" exception where state and federal charges
"arise from identical conduct" and federal investigator was "fully
aware of the state charges" at time he interrogated defendant).2
_________________________________________________________________
2 Indeed, some courts have concluded that if state and federal authori-
ties engage in deliberate misconduct, colluding to"circumvent" the
accused's Sixth Amendment rights, this provides an additional, indepen-
dent, basis for finding an exception to the Sixth Amendment offense-
specific rule. See, e.g., United States v. Hines, 963 F.2d 255, 258 (9th
Cir. 1992); see also United States v. Nocella , 849 F.2d 33, 36 (1st Cir.
1988). In addressing the collusion exception, Judge Ellis concluded that
although state and federal authorities undeniably cooperated in their
investigation, they did not improperly collude to"thwart" Melgar's "in-

12
In United States v. Kidd, 12 F.3d 30, 32 (4th Cir. 1993), we, too,
addressed the parameters of the "closely related" or "inextricably
intertwined" exception to the "offense-specific character of the Sixth
Amendment." Chief Judge Wilkinson explained that in order to fall
within the "closely related" exception, "the offense being investigated
must derive from the same factual predicate as the charged offense."
Id. Because Kidd's later offenses "involved a different purchaser-
informant, occurred at a different time, and took place in a different
location" than his previously charged crimes, he could not meet that
requirement -- "place, time, and person involved were all different."
Id. (internal quotation omitted). Melgar asserts that, unlike Kidd, his
later federal offenses do involve the same time, place, and conduct as
_________________________________________________________________
voked Sixth Amendment right." Melgar, 927 F. Supp. at 951. The judge
expressly found that the state police officer's initial contact with Agent
Miner "was not part of a conscious plan or effort to circumvent [Mel-
gar's] invocation of his right to counsel in connection with the state
charges" and that "[a]t the time of his interview of defendant, [Agent
Miner's] sole interest was defendant's alienage and deportability." Id. at
945 n.7, 946. Our review of the record demonstrates that Judge Ellis'
findings were not clearly erroneous.

We note that on appeal Melgar heavily relies on Agent Miner's report,
dated November 29 -- the day of his interview with Melgar -- to dem-
onstrate asserted collusion between federal officials and the Virginia
Gang Task Force [VGTF]. The report states:"VGTF agents and this
writer are pursuing federal charges against subject for alien in possession
of a firearm." Melgar argues that this sentence flatly contradicts Miner's
testimony at the suppression hearing that he "did not believe" he knew
about any planned federal charges against Melgar as late as December
12. Because Melgar never asserted this argument below, the prosecution
never had a chance to address it. This certainly presents an excellent rea-
son to follow our usual rule and refuse to consider arguments not initially
made to the district court absent plain error. See, e.g., United States v.
Maxton, 940 F.2d 103, 105 (4th Cir. 1991). Clearly, there was no plain
error here. The face of Miner's report comports with the government's
explanation, offered at oral argument, for the seeming inconsistency --
Miner prepared the report over a period of time and added the sentence
on which Melgar relies after December 12. Thus, the report is "dated"
November 29, but indicates that Miner did not submit it to another INS
officer until December 20; and the text of the report contains two differ-
ent type faces, suggesting preparation at different times.

13
the pending state offenses. Accordingly, he contends that the "closely
related" exception applies in his case and required suppression of his
statements to Agent Miner.

Melgar is correct that his state and federal charges involve the
same time, place, and conduct. Specifically, both the state and federal
firearm possession charges are based on the seizure of a gun from
Melgar when state police arrested him on November 26. Similarly,
the state and federal drug charges arose from seizure of marijuana
during that arrest, and both the state and federal false identification
card charges stem from Melgar's possession, at the time of that arrest,
of a single document -- a false alien identification card.

However, the fact that the old and new charges involve the same
time, place, and conduct is not enough to invoke the"closely related"
exception. A defendant must also demonstrate that the interrogation
on the new offenses produced incriminating evidence as to the previ-
ously charged offenses. See Kidd, 12 F.3d at 33. Courts have not
applied the closely related exception in favor of a defendant absent
the production of such evidence. See, e.g., Moulton, 474 U.S. at 162;
Arnold, 106 F.3d at 39, 41-42; Micheltree , 940 F.2d at 1341-42;
Foreman, 1998 WL 42844 at *4; Rodriquez, 931 F. Supp. at 926-27;
People v. Clankie, 530 N.E.2d 448, 460-61 (Ill. 1988). See also
Martinez, 972 F.2d at 1105.

Thus, we decline to adopt Melgar's interpretation of the closely
related exception. Although the closely related exception is required
to prevent the government from "acting in a manner that circumvents"
the Massiah right, Moulton, 474 U.S. at 171; see also Doherty, 126
F.3d at 776; Arnold, 106 F.3d at 41, it must be crafted to avoid ham-
pering legitimate, necessary law enforcement investigations. After all,
as we noted in Kidd, "[t]he Sixth Amendment does not create a sanc-
tuary for the commission of additional crimes during the pendency of
an indictment." Kidd, 12 F.3d at 33.

In the case at hand, the district court concluded that because Agent
Miner's interrogation produced no evidence "necessary to prove the
state charges," Melgar's Sixth Amendment rights were not violated.
Melgar, 927 F. Supp. at 952 (emphasis added). We cannot agree.
Although Miner's interrogation did not elicit the only evidence prov-
ing an element of the state charges, Sixth Amendment Massiah viola-
tions have never turned on whether an interrogation produced

14
evidence necessary to prove an offense. Rather, the test has always
been whether the interrogation produced "incriminating" evidence.
Massiah, 377 U.S. at 206-07 ("damaging testimony" and "incriminat-
ing statements" elicited from defendant in violation of his Sixth
Amendment right to counsel "could not constitutionally be used by
the prosecution as evidence against him at his trial"). Indeed, nowhere
in Massiah itself did the Supreme Court determine that the "incrimi-
nating" statements were necessary to the defendant's conviction and
the Second Circuit dissenter indicated that they were not. See United
States v. Massiah, 307 F.2d 62, 73 (2d Cir. 1962) (Waterman, J. dis-
senting) ("other substantial evidence of guilt was introduced at trial").
Moreover, the Court has broadly construed "incriminating" to include
any evidence damaging to the defendant's case. See, e.g., United
States v. Henry, 447 U.S. 264, 269-270, 273 (1980) (government elic-
ited "incriminating statements" or "information that an accused would
not intentionally reveal to persons known to be Government agents"
in violation of a defendant's Sixth Amendment Massiah rights); see
also Rhode Island v. Innis, 446 U.S. 291, 301 n.5 (1980)
("incriminating" for Fifth Amendment purposes includes "any
response [from the defendant] -- whether inculpatory or exculpatory
-- that the prosecution may seek to introduce at trial"); Miranda, 384
U.S. at 476 (the Fifth Amendment "privilege against self-
incrimination protects the individual from being compelled to incrimi-
nate himself in any manner; it does not distinguish degrees of incrimi-
nation").

Miner's interrogation did indeed produce incriminating (although
not "necessary") evidence as to the pending state false identification
card charge. The agent elicited that Melgar had come to this country
illegally and had been here for some time, producing evidence of
motive and opportunity for Melgar to obtain a false identification
card.

Furthermore, Agent Miner, like the police officers in Moulton,
knew of the defendant's pending charges to which the defendant had
invoked his Sixth Amendment right to counsel. Indeed, INS Agent
Miner, having consulted with state police officers, knew that Melgar
had been arrested on charges stemming from possession of a fictitious
alien identification card. Based on this knowledge, Miner, like the
officers in Moulton, must have known that he was likely to obtain
incriminating statements from Melgar. The Supreme Court in

15
Moulton expressly noted that because "[d]irect proof of the State's
knowledge will seldom be available," all that is needed to establish
a Sixth Amendment violation is that the state "must have known that
its agent was likely to obtain incriminating statements from the
accused in the absence of counsel." Moulton , 474 U.S. at 176 n.12
(internal quotations omitted).

Of course, Agent Miner, like the police in Moulton, provided "al-
ternative, legitimate reason[s]" for the interrogation. Id. at 180. Miner
claimed that he needed to investigate Melgar's other unlawful con-
duct, i.e., his illegal entry into the United States; the police in Moulton
offered precisely the same reason for surreptitiously recording the
defendant after he had been indicted -- the need to investigate his
other unlawful conduct. The Moulton Court held that to admit evi-
dence "obtained from the accused in violation of his Sixth Amend-
ment rights" simply because the police "assert an alternative,
legitimate reason" for the interrogation "risk[ed] the evisceration of
the Sixth Amendment right recognized in Massiah ," and so rejected
this rationale. Id. We must similarly reject it here. Thus, Melgar's
post-indictment incriminating statements, like Moulton's, should have
been suppressed.

Melgar's victory, however, is pyrrhic. Although the admission of
incriminating statements regarding his alien status violated his Sixth
Amendment rights and so constituted error, that error was harmless.
An error is harmless if "viewing the record as a whole, it is `clear
beyond a reasonable doubt that the jury would have returned a verdict
of guilty' absent the testimony." United States v. Jones, 913 F.2d 174,
177 (4th Cir. 1990) (quoting Alston v. Garrison , 720 F.2d 812, 817
(4th Cir. 1983)). "In considering the harmlessness of the error, it is
proper to consider other evidence of the defendant's guilt." United
States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981).

At Melgar's trial, Officer Lowrey testified that at the time of arrest,
officers found a laminated "resident alien" card with "a picture that
resemble[d] Mr. Melgar" and a signature that bore the name "Jose
Aldalberto Melgar" in Melgar's wallet. Based on his experience as a
police officer, Officer Lowrey stated that he knew from viewing the
card that it was fraudulent. He explained:

A valid resident alien card is a picture of the whole card,
everything is one picture, it should be smooth. The seal

16
 should overlap into the picture of the person it's issued to
without obliterating the picture or the seal. Here, you can
see it does not move into the seal at all. You can feel that
this picture is not a part of the card. It obviously is a cut-out
picture that has been placed under there.

Agent Miner corroborated Officer Lowrey's assessment as to the
obvious falsification of the card.

This evidence was not in any way controverted at trial, and we can
only conclude that, even absent introduction of Melgar's statements
to Miner concerning his illegal alien status, "it is clear beyond a rea-
sonable doubt" that the jury would have returned a verdict of guilty
on the charge of possession of a false alien identification card.3

AFFIRMED
_________________________________________________________________
3 Admission of Melgar's statement was even more clearly harmless
with regard to the marijuana and weapons charges. The evidence as to
the marijuana charge was uncontradicted and independent of information
contained in Melgar's statement to Agent Miner. We are confident "be-
yond a reasonable doubt that the jury would have returned a verdict of
guilty" on the marijuana charge absent Melgar's statement. See Jones,
913 F.2d at 177 (internal quotation omitted). The evidence related to the
possession element of the charge of possession of a weapon by an illegal
alien was similarly uncontradicted and independent of the information in
Melgar's statement. Melgar's statements to Miner, however, proved that
Melgar was an illegal alien, and thus incriminated him as to the alienage
prong of this charge. Nonetheless, admitting this evidence was harmless
because, independent of the interrogation, the government would have
"inevitably discovered" Melgar's alien status. See Nix v. Williams, 467
U.S. 431, 444 (1984) (allowing conviction to stand despite Sixth Amend-
ment violation where the evidence impermissibly obtained "would inevi-
tably have been discovered"). Agent Miner testified that he confirmed
Melgar's alien status by checking Melgar's name and false identification
number in two computer systems maintained by the Immigration and
Naturalization Service. Apparently, Miner did not complete this process
until after he had questioned Melgar. However, Melgar's name and the
number on the false identification card provided all of the information
necessary to complete the computer investigation and so establish Mel-
gar's illegal status. Given that the police obtained this information when
they arrested Melgar and he gave his incriminating statement, they would
inevitably have learned of Melgar's illegal status regardless of Miner's
interrogation.

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