United States v. Gregory Olson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-16591
Plaintiff-Appellee,
D.C. Nos.
v. 2:18-cv-01995-APG
2:12-cr-00327-APG-
GREGORY J. OLSON, VCF-1
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding

Argued and Submitted November 18, 2020
San Francisco, California

Filed February 22, 2021

Before: Sidney R. Thomas, Chief Judge, and Mary M.
Schroeder and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion;
Concurrence by Chief Judge Thomas;
Concurrence by Judge Berzon
2 UNITED STATES V. OLSON

SUMMARY*

28 U.S.C. § 2255

The panel affirmed the district court’s judgment denying
Gregory Olson’s 28 U.S.C. § 2255 motion seeking to vacate
his sentence on the basis of a claim of ineffective assistance
of counsel during plea negotiations that took place before
Olson was formally accused of any crime.

Traditionally, the Sixth Amendment has been interpreted
to mean that the right to counsel attaches when a criminal
defendant is formally charged. See Kirby v. Illinois, 406 U.S.
682, 688–89 (1972); United States v. Hayes, 231 F.3d 663,
669–70 (9th Cir. 2000) (en banc). Olson asked the court to
reexamine this traditional approach to attachment of the Sixth
Amendment right to counsel in order to recognize that the
right to counsel may attach before there has been a formal
charge. The panel wrote that it is not in a position to do so
because it cannot overrule binding circuit precedent. The
panel further concluded that this is not an appropriate case to
ask for an en banc court to consider overruling Hayes,
because the record does not support Olson’s claim that his
counsel was ineffective, and an en banc ruling would
therefore not affect the result.

Concurring in the judgment, Chief Judge Thomas wrote
separately to express his opinion that (1) there is a pre-
indictment Sixth Amendment right to counsel when a

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. OLSON 3

functional equivalent of an indictment exists, and (2) Hayes
does not foreclose such a result.

Concurring in part, Judge Berzon agreed that Olson’s
lawyer was not ineffective during the plea negotiations, that
Hayes is conclusive on the question whether the right to
counsel can ever attach before formal judicial proceedings of
some kind have begun, and that the panel is bound by Hayes.
She wrote, however, that Hayes imposes a more stringent and
bright line test regarding when the Sixth Amendment right to
counsel begins than the Supreme Court’s case law requires or
the underlying Sixth Amendment precepts justify; and that
Hayes should be reconsidered en banc at the first opportunity.

COUNSEL

Daniel Hill (argued), Hill Firm PLLC, Las Vegas, Nevada,
for Defendant-Appellant.

Elham Roohani (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,
United States Attorney, United States Attorney’s Office, Las
Vegas, Nevada; for Plaintiff-Appellee.
4 UNITED STATES V. OLSON

OPINION

PER CURIAM:

The Sixth Amendment guarantees the accused “[i]n all
criminal prosecutions” the right to “the Assistance of Counsel
for his defence.” Traditionally, this has been interpreted to
mean that the right to counsel attaches when a criminal
defendant is formally charged. See Kirby v. Illinois, 406 U.S.
682, 688–89 (1972); United States v. Hayes, 231 F.3d 663,
669–70 (9th Cir. 2000) (en banc). The right to counsel means
not merely a right to the services of an attorney, but a right to
“reasonably effective” assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 687–88 (1984). Effective
assistance generally requires a defendant’s counsel to “inform
a defendant of the advantages and disadvantages of a plea
agreement.” Libretti v. United States, 516 U.S. 29, 50 (1995).

This 28 U.S.C. § 2255 motion asks us to vacate the
movant’s sentence on the basis of a claim of ineffective
assistance of counsel during plea negotiations that took place
before the movant was formally accused of any crime. It
represents what may be a growing practice of extensive pre-
indictment dealings between prosecutors and their
investigation targets, who may or may not be represented by
counsel. The movant asks us to reexamine the traditional
approach to attachment of the Sixth Amendment right to
counsel, as set forth in Kirby and Hayes, in order to recognize
that the right to counsel may attach before there has been a
formal charge. This panel is not in a position to do so,
however, because we cannot overrule binding circuit
precedent. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.
2003). We further conclude that this is not an appropriate
case to ask for an en banc court to consider overruling Hayes,
 UNITED STATES V. OLSON 5

since this movant was appointed counsel, and the record
indicates that the movant’s counsel was not ineffective.

Factual Background

Gregory Olson pleaded guilty to wire fraud and income
tax evasion in 2017 after being charged with defrauding his
church and its members of over one million dollars between
2006 and 2010. Olson had been serving as a church treasurer
and property chairman during that time.

In June 2012, federal prosecutors sent Olson a “target
letter” advising him that he was a target of a federal grand
jury investigation. The letter invited Olson to “have [his]
attorney contact” the U.S. Attorney’s office if he was
“interested in resolving this matter short of an Indictment.”
Advising Olson to contact a court clerk for the District Court
of Nevada if he could not afford an attorney, the letter warned
that “the matter w[ould] proceed in the ordinary course of
prosecution” unless prosecutors heard from him within a
month.

Olson contacted the court clerk as instructed, and Brenda
Weksler, then an assistant federal public defender, was
assigned to represent him. Shortly thereafter, prosecutors
conveyed a plea offer to his counsel wherein Olson would
plead guilty only to tax evasion and the parties would jointly
recommend a sentence at the lower end of the guideline
range. Defense counsel’s handwritten notes suggest that
accepting this offer would have led to a recommended
sentence of approximately 30 months.

Communications between prosecutors and defense
counsel broke down, however, after prosecutors, over defense
6 UNITED STATES V. OLSON

counsel’s objections, refused to share discovery or interview
notes. After some contentious back-and-forth, defense
counsel communicated that Olson was willing to plead to a
misdemeanor resulting in probation, but prosecutors
responded by withdrawing the offer. One week later, a grand
jury indicted Olson for wire fraud and tax evasion.

In May 2016, Olson, now represented by different
counsel, entered into a plea agreement wherein he pleaded
guilty to both wire fraud and tax evasion. The district court
sentenced Olson to 48 months in custody and 3 years of
supervised release. Olson appealed to this Court, which
dismissed under his plea agreement’s appeal waiver
provisions.

In October 2018, Olson filed a pro se motion to vacate his
sentence under 28 U.S.C. § 2255. In addition to the
ineffectiveness of counsel claim at issue here, the motion
claimed that prosecutors violated his Fifth Amendment due
process rights by refusing to provide inculpatory and
exculpatory information during pre-indictment plea
negotiations in 2012. The district court ruled that Olson
waived his right to bring the latter claim in his 2016 plea
agreement, and that claim is not before us.

Olson’s sole claim on appeal is that defense counsel was
ineffective in handling prosecutors’ 2012 plea offer. In his
motion to vacate, Olson declared under penalty of perjury that
his public defender in 2012 “did not make contact with [him]
and discuss the offer, or provide professional guidance [on]
the terms and foreseeable consequences of accepting or
rejecting the offer.” Olson claimed that his counsel’s failure
to “effectively communicat[e] the writ[t]en offer . . . caused
 UNITED STATES V. OLSON 7

the denial of [his] Constitutional right to review and accept or
reject the offer.”

The district court ordered Olson’s pre-indictment counsel
to respond to the claim. In a sworn declaration, she stated
that she communicated the pre-indictment offer to Olson on
the same day it was offered, conveyed that prosecutors had
not shared any reports or evidence with her, and explained to
Olson that he could face much higher sentencing exposure if
indicted. She attached her contemporaneous handwritten
notes, which include sentencing calculations under the United
States Federal Sentencing Guidelines and document her
conversations with prosecutors and with Olson himself.
Olson’s own memorandum in support of his motion attached
contemporaneous emails between defense counsel and
prosecutors. The emails explicitly set forth not only that
defense counsel communicated the pre-indictment offer to
Olson but also that Olson responded by asking her to pass
along “his desire to plead to a misdemeanor that will result in
probation.” The emails also show that, during the time in
question, defense counsel found it “impossible” to counsel
Olson as to the nature or sufficiency of the government’s
evidence against him because of prosecutors’ refusal to share
any discovery. “[B]ecause of my ethical duties,” she
explained in an email to the prosecutors, “I cannot counsel
my client to entertain entering a plea of guilty without having
seen any of the evidence involved in this case.”

The district court denied Olson’s motion to vacate his
conviction. The district court concluded that, under binding
precedent, “Olson did not have a Sixth Amendment right to
effective counsel during the pre-indictment plea negotiation.”
The district court did grant a certificate of appealability,
however, after noting that four judges on the Sixth Circuit
8 UNITED STATES V. OLSON

had dissented in a similar case, Turner v. United States,
885 F.3d 949, 977–84 (6th Cir. 2018) (en banc) (Stranch, J.,
dissenting). We appointed counsel for the appeal, and Olson
now asks us to reconsider the bright-line rule adopted in
Hayes. We conclude that this panel is bound by Hayes and
that this is not an appropriate case to reconsider it. We
therefore affirm. See Miller, 335 F.3d at 899.

Discussion

In Kirby v. Illinois, 406 U.S. 682 (1972), a plurality of the
Supreme Court described the Court’s past cases as “firmly
establish[ing] that a person’s Sixth and Fourteenth
Amendment right to counsel attaches only at or after the time
that adversary judicial proceedings have been initiated against
him.” Id. at 688. The plurality in Kirby cited nine previous
Sixth Amendment cases and described them as “all . . .
involv[ing] 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.” Id. at 689. In subsequent cases, majorities
of the Supreme Court have confirmed that “the right to
counsel does not attach until the initiation of adversary
judicial proceedings.” United States v. Gouveia, 467 U.S.
180, 188 (1984); Moran v. Burbine, 475 U.S. 412, 431
(1986).

Circuits have not agreed, however, on whether the Kirby
line of cases mandates a “bright-line rule” holding that the
right to counsel never attaches until formal charges have been
initiated “by way of formal charge, preliminary hearing,
indictment, information, or arraignment.” Kirby, 406 U.S. at
689. Compare, e.g., United States v. Waldon, 363 F.3d 1103,
1112 n.3 (11th Cir. 2004) (rejecting ineffective assistance
 UNITED STATES V. OLSON 9

claim “out-of-hand, because the Sixth Amendment right to
counsel simply does not attach until the initiation of formal
adversary proceedings.”), with Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 892 (3d Cir. 1999) (“The right also
may attach at earlier stages . . . .”).

In United States v. Hayes, 231 F.3d 663 (9th Cir. 2000)
(en banc), this circuit adopted the bright-line rule. Id. at 675;
see also United States v. Percy, 250 F.3d 720, 725 (9th Cir.
2001) (“This Circuit adheres to the bright-line rule that the
Sixth Amendment’s right to counsel attaches upon the
initiation of formal charges.”) (citing Hayes). In Hayes, the
prosecutors kept their tactical options open by declining to
bring formal charges against the defendant. 231 F.3d
at 666–69. By doing so, prosecutors were able to use a
cooperating witness to record an incriminating conversation
with the defendant without his counsel present. Id. At the
same time, prosecutors detained and deposed other material
witnesses under the district court’s authority—an option
contemplated by the Federal Rules of Criminal Procedure
only after formal charges have been brought. Id. at 666–69,
675. Our en banc majority took note of this apparent
gamesmanship but nonetheless adopted the bright-line rule
after considering, and rejecting, the defendant’s suggestion
that we adopt a “functional equivalent” test instead. See id.
at 669, 673–75. Recognizing the “clear boundaries the
Supreme Court has established,” our majority adopted the
“clean and clear” bright-line rule while admitting that the
prosecutors’ sequence of actions made us “queasy.” Id.
at 675.

Other circuits have expressed similar discomfort. Though
some have accordingly rejected the bright-line rule, none has
actually found a violation of the right to counsel prior to the
10 UNITED STATES V. OLSON

initiation of formal charges. See Matteo, 171 F.3d 877,
892–97 (3d Cir. 1999) (holding that defendant’s right to
counsel had attached prior to formal proceedings but
ultimately finding no constitutional violation); United States
v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992) (“[T]he right to
counsel presumptively does not attach at pre-indictment
lineups.”) (emphasis added); Roberts v. State of Me., 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 . . . .”). Others, including this
circuit, have upheld the bright-line rule but expressed
reservations. See, e.g., Hayes, 231 F.3d at 675 (observing
that “it looks like the government is trying to have its cake
and eat it too”), United States v. Heinz, 983 F.2d 609, 612
(5th Cir. 1993) (noting that pre-Gouveia “Supreme Court
cases seem to imply that a more functional test . . . is
appropriate”).

The Sixth Circuit has specifically declined to extend the
right to counsel to pre-indictment plea bargaining
negotiations like those presented here. United States v.
Moody, 206 F.3d 609 (6th Cir. 2000). Describing the bright-
line rule as a “mandate” from the Supreme Court, the Sixth
Circuit concluded, “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.” Id. at 614; see also id. at 616–18 (6th Cir.
2000) (Wiseman, J., concurring but “urg[ing] the Supreme
Court to reconsider its bright line test”). Eighteen years later,
the court en banc reached the same result, but was deeply
divided. Turner, 885 F.3d 949 (6th Cir. 2018) (en banc); id.
at 955–66 (Bush, J., concurring dubitante upon review of the
historical record); id. at 966–69 (Clay, J., concurring in the
 UNITED STATES V. OLSON 11

judgment only); id. at 976–77 (White, J., concurring in the
judgment only); id. at 977–84 (Stranch, J., dissenting).

We acknowledge that the bright-line rule allows
prosecutors to employ historically uncommon approaches to
investigation and prosecution that a more flexible approach
to the Sixth Amendment might deter. In Hayes, Judge
Reinhardt, joined by three other judges, wrote in a dissenting
opinion that the prosecutors’ “highly unusual step of setting
in motion Hayes’s trial before bothering to indict him”
merited departure from a “mechanical and formalistic
approach.” 231 F.3d at 676–81 (Reinhardt, J., dissenting).
Olson points out, along these lines, that the Supreme Court
has recognized post-indictment plea bargaining as a “critical
stage” and extended the right to counsel to such proceedings.
Missouri v. Frye, 566 U.S. 134, 143–44 (2012). Indeed, in
criminal cases today, plea negotiations are “almost always the
critical point” at which a defendant’s fate is sealed. Id. at
144.

Olson urges that we eschew the bright-line rule in favor
of a multi-factor, case-by-case approach to pre-indictment
attachment of the Sixth Amendment right to counsel. He
argues that Supreme Court precedent does not mandate the
bright-line rule. Even if so, however, we as a three-judge
panel “may not overrule a prior decision of the court” unless
a higher authority has “effectively overruled” such a decision.
Miller, 335 F.3d at 899. Because Frye cannot be plausibly
read to effectively overrule this circuit’s decision in Hayes—
and Olson makes no such argument in any event—the bright-
line rule adopted in Hayes requires us to find no
constitutional violation here.
12 UNITED STATES V. OLSON

This panel could, at its discretion, request a vote of active
judges to rehear this case en banc under Rule 35 of the
Federal Rules of Appellate Procedure. In determining
whether this is an appropriate case to do so, we must assess
whether Olson might prevail if current circuit precedent were
to be overruled. We do not find this case appropriate for such
en banc rehearing, because the record does not support
Olson’s claim that his counsel was ineffective. An en banc
ruling would therefore not affect the result.

The record reflects Olson’s understandable dissatisfaction
with his sentence, which ended up being longer than what the
government offered to recommend pre-indictment. He faults
his lawyer for failing to provide “professional guidance [on]
the terms and foreseeable consequences of accepting or
rejecting the offer.” The record further reflects, however, that
defense counsel was unable to provide any informed guidance
because she did not have any information about the strength
of the government’s case and prosecutors refused to provide
any. Olson’s pleadings acknowledged this in a separate claim
of prosecutorial misconduct—one that was dismissed and is
not before us on appeal—wherein Olson alleged that
prosecutors violated his due process rights by refusing to
disclose any evidence during pre-indictment plea discussions.
Olson’s inability to predict the probable consequences of
accepting or rejecting the pre-indictment plea was, therefore,
not due to any ineffectiveness on the part of his attorney.

In his reply brief, Olson’s appointed counsel on appeal
suggests a somewhat different theory of ineffectiveness: that
his pre-indictment counsel never communicated the pre-
indictment offer to him at all. The record belies such a claim.
The extensive and undisputed record of email
communications between defense counsel and prosecutors
 UNITED STATES V. OLSON 13

confirms that Olson’s appointed counsel timely conveyed the
pre-indictment plea offer to him. These e-mails even include
Olson’s unsuccessful counteroffer, conveyed via counsel, to
plead guilty to a misdemeanor in exchange for receiving
probation.

With 20/20 hindsight, Olson now knows that, had he
accepted the pre-indictment offer in 2012, he would have
received a lower sentence than the one he actually received
five years later. The problem is that neither Olson nor his
counsel could have known this in 2012. Olson’s counsel,
without the benefit of any discovery, was not in a position to
advise Olson to accept the offer. Counsel’s performance was
therefore not deficient.

The judgment of the district court is AFFIRMED.

THOMAS, Chief Judge, concurring in the judgment:

I concur in the decision to affirm the denial of Olson’s
28 U.S.C. § 2255 motion. The record does not support
Olson’s claim that he received ineffective assistance of
counsel during pre-indictment plea negotiations. I write
separately to express my opinion that (1) there is a pre-
indictment Sixth Amendment right to counsel when a
functional equivalent of an indictment exists, and (2) United
States v. Hayes, 231 F.3d 663 (9th Cir. 2000) (en banc), does
not foreclose such a result.
14 UNITED STATES V. OLSON

I

The Supreme Court has never squarely addressed whether
the Sixth Amendment right to counsel attaches during pre-
indictment plea negotiations. Indeed, other circuits have
expressly concluded that the Supreme Court’s attachment
case law permits recognition of the right to counsel in some
pre-indictment settings. See, e.g., Matteo v. Superintendent,
SCI Albion, 171 F.3d 877, 892 (3d Cir. 1999); Roberts v.
Maine, 48 F.3d 1287, 1291 (1st Cir. 1995); United States v.
Larkin, 978 F.2d 964, 969 (7th Cir. 1992).

In Turner v. United States, 885 F.3d 949 (6th Cir. 2018)
(en banc), cert. denied, 139 S. Ct. 2740 (2019), where the
Sixth Circuit, in a splintered opinion, adhered to “four
decades of circuit precedent holding that the Sixth
Amendment right to counsel does not extend to preindictment
plea negotiations,” id. at 951, Judge Stranch, in dissent,
explained that the touchstone of the Supreme Court’s
attachment jurisprudence is whether the government conduct
at issue is investigatory or accusatory (not simply whether it
occurs before or after a formal indictment or its equivalent).
See id. at 979; accord Matteo, 171 F.3d at 892. I agree.

In Kirby v. Illinois, 406 U.S. 682 (1972), the Supreme
Court defined “the initiation of judicial criminal
proceedings,” the triggering event for Sixth Amendment
attachment purposes, as the moment when investigation ends
and prosecution begins:

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
 UNITED STATES V. OLSON 15

government has committed itself to prosecute,
and only then that the adverse positions of
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. It
is this point, therefore, that marks
the commencement of the “criminal
prosecutions” to which alone the explicit
guarantees of the Sixth Amendment are
applicable.

406 U.S. at 689–90 (emphasis added). The Court then
rejected a claim that a suspect had a Sixth Amendment right
to counsel during a pre-indictment showup that took place
during a “routine police investigation”—“long before the
commencement of any prosecution whatever.” Id. at 690.

To be sure, since Kirby, the Court has used language
suggesting that the right to counsel attached after the
initiation of adversary proceedings against the defendant.
See, e.g., Rothgery v. Gillespie Cty., 554 U.S. 191, 198
(2008); Moran v. Burbine, 475 U.S. 412, 482 (1986); United
States v. Gouveia, 467 U.S. 180, 187 (1984). However, the
Court has consistently then proceeded to a fact-attuned
inquiry about whether the government’s pre-indictment
conduct crossed the line from investigation to prosecution,
rejecting Sixth Amendment claims only where the conduct at
issue plainly landed on the investigation side of the line. See,
e.g., Gouveia, 467 U.S. at 185, 189 (holding that the right to
counsel did not extend to the pre-indictment administrative
detention of inmates “being investigated for criminal
activities” because that right does not attach until the
16 UNITED STATES V. OLSON

“government has committed itself to prosecute”(emphasis
added)); Moran, 475 U.S. at 416, 430 (reaching the same
conclusion as to the pre-indictment police interrogation of an
individual under investigation for murder because the Sixth
Amendment, “[b]y its very terms,” applies “only when the
government’s role shifts from investigation to accusation”
(emphasis added)).

Rothgery, the latest in the line of attachment cases, most
clearly endorses a functional, over formal, approach. There,
the Court held that the Sixth Amendment right to counsel
kicked in when Rothgery appeared for a pre-indictment
probable cause hearing before a magistrate judge and
“learn[ed] the charge against him.” Rothgery, 554 U.S. at
213. The Court reasoned that this event triggered the
constitutional guarantee because it “signifie[d] a sufficient
commitment to prosecute regardless” whether the prosecutor
participated in, or was even aware of, the hearing and even
absent the filing of an indictment, information, or “formal”
complaint. Id. at 210 (emphasis added). The Court further
rejected the government’s interpretation of its cases as
espousing the “general rule that the right to counsel attaches”
only when “formal charges are filed.” Id. at 211; see also id.
at 223–24 (Thomas, J., dissenting) (asserting that Rothgery’s
“initial appearance before the magistrate did not commence
a ‘criminal prosecution,’” as “[n]o formal charges had been
filed” where “[t]he only document submitted to the
magistrate was the arresting officer’s affidavit of probable
cause”).

I agree with Judge Stranch that whether criminal
proceedings have been initiated within the meaning of the
Court’s attachment jurisprudence “depends on both the nature
of the relationship between the government and the accused
 UNITED STATES V. OLSON 17

and the implications of the confrontation.” Turner, 885 F.3d
at 979 (Stranch, J., dissenting). Thus, if one reads the
Supreme Court precedent carefully, there is no bright line
rule; rather, the Court has taken a functional approach.

II

The majority concludes that Hayes established a bright
line rule that a criminal defendant does not have a Sixth
Amendment right to an attorney before an indictment has
been filed. However, Hayes also considered the possibility
that the right to counsel might attach when the government
conduct was the “functional equivalent of the initiation of
formal criminal charges.” 231 F.3d at 673 (quotation marks
omitted).

Hayes involved a different circumstance from the one at
bar. In Hayes, during an investigation of a “complicated,
multi-party scheme to sell grades for classes that foreign
students did not attend,” the government moved for and
received court approval to take material witness depositions
of several foreign students, who wished to return home. Id.
at 666. In that motion, the government named Hayes as a
target of its investigation. Id. at 668. Hayes received notice
of the depositions, but his retained counsel neither objected
to the motion nor attended the hearing on the motion; shortly
before the depositions, appointed counsel began to represent
Hayes. Id. Around the same time as the depositions, the
government covertly taped a conversation between Hayes and
a wired co-conspirator. Id. at 666, 668. A year later, the
government indicted Hayes, who moved to exclude the taped
conversation on the ground that the absence of his attorney
during that conversation violated his Sixth Amendment right
to counsel. Id. at 666 (citing Massiah v. United States,
18 UNITED STATES V. OLSON

377 U.S. 201, 206 (1964) (holding that a defendant was
entitled to counsel during a post-indictment interrogation)).
The district court held that Hayes did not have a right to
counsel in this pre-indictment setting. Id. at 667. We
affirmed, with the majority concluding that the motion for
material witness depositions was not the functional equivalent
of an indictment because the government had not committed
to charging Hayes, and “the depositions served only to
preserve their testimony for trial if there were a trial and the
students did not return.” Id. at 673–74. We concluded that
Hayes “was not thereby charged, indicted, or arraigned—and
may never have been.” Id. at 673. “Instead, the government
remained an investigator rather than a prosecutor and Hayes
was a target, not ‘the accused.’” Id.; see also id. at 674
(“Being a target is not enough.”). “Under these
circumstances,” the majority held, “the Sixth Amendment
right to counsel did not apply.” Id. at 675.

By contrast, the government’s target letter, coupled with
intense plea agreement negotiations, did signal the
government’s commitment to charge Olson, and was thereby
the functional equivalent of an indictment for Sixth
Amendment purposes. The government’s so-called “target
letter” to Olson was unequivocal: It indicated that the
government would “proceed in the ordinary course of
prosecution” if Olson did not indicate interest in “resolving
th[e] matter short of an [i]ndictment.” During the ensuing
plea negotiations, the government further signaled that its
investigation into Olson’s activities was complete and that it
had resolved to prosecute him on the basis of the evidence it
had gathered. In an email memorializing the plea offer, an
Assistant United States Attorney (“AUSA”) informed Olson’s
counsel, “[I]f your client rejects the offer, the indictment that
will be proposed to the grand jury will include both fraud and
 UNITED STATES V. OLSON 19

tax charges.” The AUSA was not bluffing. A mere week
after the pre-indictment plea negotiations fell through, a
grand jury indicted Olson.

These circumstances, markedly different from those
presented in Hayes, foreclose a conclusion that the
government “remained an investigator rather than a
prosecutor” and Olson a mere “target,” who “may never have
been” indicted, rather than “the accused.” Hayes, 231 F.3d at
673; see also id. at 669 (noting that the motion for material
witness depositions “merely indicated” that the government
“might seek indictments against the targets”); id. at 666
(noting that Hayes was not indicted until “nearly a year” after
the depositions and the taped conversation with his co-
conspirator). Absent that threshold determination, Hayes
cannot bind us to hold that Olson was not entitled to counsel
during his pre-indictment plea negotiations. Cf. id. at 675
(declining to hold that the Sixth Amendment right to counsel
had attached “under th[o]se circumstances” (emphasis
added)).

Under these circumstances, the Sixth Amendment must
operate to afford a right to counsel. The government’s plea
offer implicated the “intricacies of substantive and procedural
criminal law,” Kirby, 406 U.S. at 689, in at least two respects:
Olson’s counsel and the AUSA discussed Olson’s potential
exposure under the U.S. Sentencing Guidelines and
vehemently disagreed about whether the prosecution had any
obligation to disclose evidence to Olson to assist his counsel
in assessing the plea terms and whether there was “sufficient
evidence to convict him.”

A contrary conclusion would overlook the “core
purpose” of the Sixth Amendment counsel guarantee, which
20 UNITED STATES V. OLSON

is to “assure aid” to an “accused [] confronted with both the
intricacies of the law and the advocacy of the public
prosecutor.” Hayes, 231 F.3d at 670 (quoting Gouveia, 467
U.S. at 188–89). It would also lead to the absurd conclusion
that, even though Olson had counsel at a critical stage of a
criminal proceeding, he had no right to effective assistance of
counsel under the Sixth Amendment.

III

For these reasons, I would hold that the Sixth Amendment
right to counsel attaches when there is a functional equivalent
of an indictment. Therefore, applied to this case, Olson had
a Sixth Amendment right to effective assistance of counsel
during pre-indictment plea negotiations where the
government had indicated its clear intent to proceed with a
prosecution. However, I concur in the judgment because I do
not believe, under the circumstances presented in this case,
that Olson did not receive effective assistance of counsel.

To the extent that Hayes intimates a different conclusion,
I respectfully suggest that we revisit the rule en banc in an
appropriate case.

BERZON, Circuit Judge, concurring in part:

I concur in the per curiam opinion’s conclusion that
Olson’s lawyer was not ineffective during the plea
negotiations. Further, I agree that United States v. Hayes, 231
F.3d 663 (9th Cir. 2000) (en banc) is conclusive on the
question whether the right to counsel can ever attach before
formal judicial proceedings of some kind have begun. On that
 UNITED STATES V. OLSON 21

point, I note that not only does Hayes contain the broad
language quoted in the per curiam opinion, but it also
specifically summarizes as supporting its conclusion a Sixth
Circuit opinion, United States v. Moody, 206 F.3d 609 (6th
Cir. 2000), that addresses the very issue before us—the
availability of the Sixth Amendment right to counsel at
pre-indictment plea negotiations even when the commitment
to prosecute is apparent.

I am, however, quite convinced that Hayes imposes a
more stringent and bright line test regarding when the Sixth
Amendment right to counsel begins than the Supreme Court’s
case law requires or the underlying Sixth Amendment
precepts justify. And though the recent recognition in
Missouri v. Frye, 566 U.S. 134 (2012), of the importance of
attorney representation during plea bargaining does “undercut
the … reasoning underlying [Hayes],” it does not do so “in
such a way that the cases are clearly irreconcilable.” Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Our
panel is thus bound by Hayes.

This difference over whether Hayes is controlling here
aside, I agree with Chief Judge Thomas’s concurrence
generally, and with the following points in particular: First,
the Supreme Court case law is best read as setting the line as
that between investigation and commitment to prosecution,
not between pre- and post-invocation of formal judicial
proceedings. See, e.g., Kirby v. Illinois, 406 U.S. 682, 689-90
(1972); United States v. Gouveia, 467 U.S. 180, 189 (1984).
Second, Hayes, despite its broad language and reliance on
Moody, concerns a circumstance entirely different from
pre-indictment plea bargaining with regard to the factors that
trigger the right to counsel—namely, adversarialness,
22 UNITED STATES V. OLSON

commitment to prosecution, and the need to be advised as to
technical legal issues.

I add the following: There are two more considerations in
addition to those detailed by Chief Judge Thomas that, in my
view, support the conclusion that the right to counsel should
be triggered in this case and should generally be triggered
where pre-indictment plea bargaining is instigated by the
government.

First, aside from the particular indices surveyed in Chief
Judge Thomas’s opinion from the record in this case
indicating a commitment to prosecution, such a commitment
is inherent when the government makes a specific
pre-indictment plea offer. “[P]lea bargains are essentially
contracts.” Puckett v. United States, 556 U.S. 129, 137
(2009). Prosecutors cannot know when they make a
pre-indictment plea offer whether it will be accepted. And
plea agreements are, of course, not self-executing once
entered into. If accepted, the offer can only be implemented
with the filing of charges and the instigation of judicial
proceedings. Moreover, “[t]his phase of the process of
criminal justice, and the adjudicative element inherent in
accepting a plea of guilty, must be attended by safeguards to
insure the defendant what is reasonably due in the
circumstances.” Santobello v. New York, 404 U.S. 257, 262
(1971). Specifically, the plea agreement must be approved by
a court. And only after judicial sentencing, applying the
requisite discretion, and entry of a judgment of conviction can
a defendant be incarcerated. See Fed. R. Crim. P. 11.

In short, making the offer is ordinarily itself a
commitment to prosecute, and so constitutes the onset of an
adversarial rather than investigatory process. The specific
 UNITED STATES V. OLSON 23

surrounding documents in the record in this case reviewed in
Chief Judge Thomas’s concurrence confirm that
understanding, but the making of an actual plea offer is itself,
I believe, enough to establish it.

Second, after Hayes was decided, Missouri v. Frye
recognized the importance of the opportunity “for defendants
to admit their crimes and receive more favorable terms at
sentencing” by plea bargaining, particularly when such
negotiations have become “central to the administration of
the criminal justice system.” 566 U.S. at 143–44. In return,
Frye explained, the government is able “to conserve valuable
prosecutorial resources.” Id. at 144. Frye reasoned that “[i]n
order that these benefits can be realized … criminal
defendants require effective counsel during plea
negotiations.” Id. The same considerations apply to
pre-indictment plea bargains as post-indictment ones.

So, although Hayes does draw the Sixth Amendment line
at the initiation of “adversary judicial proceedings … ‘by way
of formal charge, preliminary hearing, indictment,
information, or arraignment,’” Hayes, 231 F.3d at 675
(quoting Kirby, 406 U.S. at 690), it was wrong to do so.
Bright-line rules are well and good in some circumstances,
but not when they are drawn along the wrong parameters and
fence out circumstances that fall on the other side of the
barrier when the correct underlying precepts are considered.
Pre-indictment plea bargaining is no different from post-
indictment plea bargaining as to any of the criteria that matter
for recognizing a constitutional right to counsel—the
prosecutor’s commitment to prosecute; the adversarial
relationship between the potential defendant and the
prosecution; the critical importance of the plea bargaining
process in deciding the defendant’s fate; and the need for
24 UNITED STATES V. OLSON

technical understanding of the proffered agreement’s charges
and terms—including sentencing provisions and procedural
waivers—as well as of the evidence and the legal defenses
available. To require an unaided layperson to consider
without consultation with counsel the charges, evidence, and
potential sentence so as to evaluate the wisdom of accepting
the plea offer, countering it, or refusing it—when the
opposing party, the government, is communicating through
counsel well versed in all these matters—is to set up an
entirely one-sided chess board. The Sixth Amendment, in my
view, does not permit the government to game the plea
bargaining system by making plea offers before indictment
and maintaining that the potential defendant has to go
forward essentially defenseless or not at all.

In this case, of course, that is not what happened. Olson
did have counsel, appointed before the negotiations, at the
government’s instigation. This case would look very different
had the government tried to negotiate directly with the
defendant, as the mismatch, and need for counsel, would then
be stark. Yet the necessary corollary of applying Hayes’
bright line test to this case is that the government could have
done that. No right to counsel means just that; any right to
bring a habeas case alleging ineffective assistance of counsel
that was involved in the negotiations is a corollary of the right
to have counsel at all, not a free standing Sixth Amendment
right.

I have no doubt that the Sixth Amendment forbids
requiring a lay defendant to negotiate unaided by counsel
with government prosecutors as to an agreement that could
directly seal his fate in a criminal case, whether those
negotiations are pre- or post-indictment. I therefor concur
most reluctantly in the per curiam opinion’s reliance on the
 UNITED STATES V. OLSON 25

Hayes bright line rule regarding when the Sixth Amendment
right to counsel begins. But I would reconsider Hayes en banc
at the first opportunity, for the reasons given in Chief Judge
Thomas’s concurring opinion and in mine.