[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 13, 2008
THOMAS K. KAHN
No. 06-11351
CLERK
D. C. Docket No. 05-80146-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EARL BURGEST,
a.k.a. Earl Burgess,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(March 13, 2008)
Before EDMONDSON, Chief Judge, DUBINA, Circuit Judge, and STORY,*
District Judge.
_______________________
*Honorable Richard W. Story, United States District Judge for the Northern District of Georgia,
sitting by designation.
DUBINA, Circuit Judge:
Appellant Earl Burgest (“Burgest”) appeals his convictions on two counts of
possession with intent to distribute five grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1). Burgest contends that the district court erred
by admitting into evidence his post-arrest statement given to federal authorities
after he waived his Miranda1 rights but while he had retained counsel for a
pending state drug charge. Burgest’s challenge presents an issue of first
impression in this circuit: whether the dual sovereignty doctrine2 applies to the
Sixth Amendment right to counsel. Based on the following discussion, we join the
majority of circuits and hold that the dual sovereignty doctrine applies in the Sixth
Amendment context. Because the drug offenses violated the laws of separate
sovereigns, the state and federal offenses are not the same for purposes of the
Sixth Amendment right to counsel. Thus, Burgest’s right to counsel had not
attached to his uncharged federal offenses at the time he made his incriminating
statements. Accordingly, we conclude that the district court did not err in
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
2
“The dual sovereignty doctrine is founded on the common-law conception of crime as an
offense against the sovereignty of the government. 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
‘offences.’” Heath v. Alabama, 474 U.S. 82, 88, 106 S. Ct. 433, 437 (1985) (quoting United States
v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 142 (1922)).
2
admitting Burgest’s post-arrest statement into evidence, and we affirm his
convictions.3
I. BACKGROUND
A federal grand jury indicted Burgest on two counts of possession with
intent to distribute at least five grams of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(iii). Burgest, through counsel, filed a pre-trial motion to
suppress, arguing that statements he made to federal agents during an interrogation
should be suppressed because the State of Florida had formally charged him with
possession of cocaine, and he was represented by counsel for the state charge
when federal agents interrogated him regarding the federal drug possession counts.
Burgest asserted that his written waiver of his Miranda rights was insufficient to
overcome an attached Sixth Amendment right to counsel.4 The Government
responded that Burgest’s right to counsel was not violated when the federal agents
interviewed him regarding his drug possession charges because the state and
3
Burgest also challenges the district court’s denial of his motion to suppress the admission
of the crack cocaine discovered by officers during a search of Burgest. Because the arresting
officer’s testimony established probable cause for solicitation of prostitution under Florida law, the
search incident to Burgest’s arrest did not violate his Fourth Amendment rights. Therefore, the
district court properly denied Burgest’s motion to suppress the crack cocaine.
4
Burgest also claimed that the statements should be suppressed under the Fifth Amendment,
and the district court denied the motion to suppress on this ground as well. However, because
Burgest does not assert a Fifth Amendment violation on appeal, we will not consider this assertion.
See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (holding that defendant
abandons an issue for which no argument is offered on appeal).
3
federal charges violated the laws of separate sovereigns and were thus not the
same offense.
The district court held an evidentiary hearing on the motion. The parties
reiterated the arguments made in their respective memoranda on the motion to
suppress. Additionally, the Government noted, and the defense conceded, that the
state charge was for possession of cocaine and the federal charges were for
possession of crack cocaine with intent to distribute. The district court deferred
ruling on the motion until trial. At trial, the district court denied the motion,
finding the dual sovereignty doctrine applicable to the Sixth Amendment right to
counsel analysis. Thus, because Burgest committed two distinct offenses, the
district court found that his right to counsel did not attach to his federal charges at
the time federal agents questioned him.
The case proceeded to trial, and Burgest moved for judgment of acquittal at
the conclusion of the Government’s case and at the conclusion of the presentation
of all the evidence. The district court denied both motions, and the jury found
Burgest guilty on both counts. The district court subsequently sentenced Burgest
to 360 months imprisonment on both counts, to run concurrently, followed by
eight years supervised release. Burgest then perfected this appeal.
II. ISSUE
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Whether the district court erred by admitting Burgest’s post-arrest statement
given to federal authorities after he had retained counsel for a pending state
charge.
III. STANDARD OF REVIEW
When considering a district court’s denial of a motion to suppress, we
review its findings of fact for clear error and its application of the law to those
facts de novo. United States v. Newsome, 475 F.3d 1221, 1223 (11th Cir. 2007),
cert. denied, 128 S. Ct. 218 (2007). We construe all facts in the light most
favorable to the prevailing party, in this case, the Government. Id. at 1223-24.
IV. DISCUSSION
Under the Sixth Amendment, “[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. The Sixth Amendment right to counsel is offense specific.
McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991). “It cannot
be invoked once for all future prosecutions, for it 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.” Id. (internal quotation marks and
citation omitted). Moreover, “if police initiate interrogation after a defendant’s
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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.” Michigan v. Jackson, 475 U.S. 625, 636, 106 S. Ct. 1404, 1411 (1986).
In this case, there is no question that Burgest’s Sixth Amendment right to
counsel had attached to the state drug charge at the time the federal agents
interviewed him. Because the Sixth Amendment right to counsel is offense
specific, Burgest’s prior invocation of his right to counsel for the charged state
offense did not attach to Burgest’s uncharged federal drug offenses if the federal
offenses are separate offenses from the state drug offense. We hold that where
conduct violates laws of separate sovereigns, the offenses are distinct for purposes
of the Sixth Amendment right to counsel. Accordingly, Burgest’s right to counsel
did not attach to his federal charges at the time federal agents questioned him. See
United States v. Alvarado, 440 F.3d 191 (4th Cir. 2006), cert. denied, 127 S. Ct.
81 (2006) (applying dual sovereignty doctrine to Sixth Amendment); United
States v. Coker, 433 F.3d 39 (1st Cir. 2005) (same); United States v. Avants, 278
F.3d 510 (5th Cir. 2002) (same); see also United States v. McCloud, No. CR406-
247, 2007 WL 1706353 (S.D. Ga. June 11, 2007); United States v. Lall, No. 8:06-
cr-508-T-23MAP, 2007 WL 1521487 (M.D. Fla. May 23, 2007). But see United
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States v. Mills, 412 F.3d 325 (2d Cir. 2005); United States v. Red Bird, 287 F.3d
709 (8th Cir. 2002).
As the Coker court noted,
[a]fter carefully examining Cobb, we conclude that the dual
sovereignty doctrine applies for the purposes of defining what
constitutes the same offense in the Sixth Amendment right to counsel
context. In doing so, we reject the reasoning of the Second Circuit in
Mills and adopt the reasoning of the Fifth Circuit in Avants. The
court in Mills stated that “[n]owhere in Cobb, either explicitly or by
imputation, is there support for a dual sovereignty exception” in the
Sixth Amendment right to counsel context. Mills, 412 F.3d at 330.
This statement, in our view, does not give adequate consideration to
the Court’s statement that it saw “no constitutional difference
between the meaning of the term ‘offense’ in the contexts of double
jeopardy and of the right to counsel.” Cobb, 532 U.S. at 173, 121 S.
Ct. 1335. If the Court intended to incorporate only the Blockburger
test into its Sixth Amendment jurisprudence, then its statement in
Cobb would make no sense, as there would be a difference in the
meaning of the term “offense” in the contexts of double jeopardy and
of the right to counsel.
433 F.3d at 44. Thus, “because [the charges] originate[d] from autonomous
sovereigns that each ha[d] the authority to define and prosecute criminal conduct,”
Alvarado, 440 F.3d at 194, Burgest’s state drug charge was a different offense
than his federal drug charges for Sixth Amendment purposes. Burgest’s prior
invocation of his right to counsel for the state drug charge did not attach to the
uncharged federal drug offenses at the time of the interview. Therefore, we
conclude that the federal agents’ questioning, which occurred after Burgest’s
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voluntary waiver of his right to counsel and did not consist of any questions
concerning the pending state drug charge, did not violate his Sixth Amendment
right to counsel.5
Even if we were to find that the district court erred in denying Burgest’s
motion to suppress his incriminating statements, the error was harmless beyond a
reasonable doubt. See United States v. Turner, 871 F.2d 1574, 1581-82 (11th Cir.
1989). Having reviewed the record, we are convinced that, even in the absence of
the confession, the evidence against Burgest was sufficient to support his
conviction. An officer testified that when he arrested Burgest, he had a pill bottle
containing a large quantity of crack cocaine in his pocket, along with $285 in bills
folded in a fashion commonly utilized by drug dealers. (R. Vol. 5, p. 411-16.)
Laboratory tests showed that the substance in the pill bottle was cocaine base. (Id.
at 450-52.) Additionally, a confidential informant testified that he purchased
crack cocaine from Burgest. (R. Vol. 6, p. 590-98.) The Government presented a
5
Burgest urges the application of the Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676 (1959),
exception to the dual sovereignty doctrine. This exception arises when “one sovereign so thoroughly
dominates or manipulates the prosecutorial machinery” of the other sovereign or “if it appears that
one sovereign is controlling the prosecution of another merely to circumvent the defendant’s Sixth
Amendment right to counsel.” Coker, 433 F.3d at 46 (quotations omitted). Specifically, Burgest
claims that the federal and state investigations were inextricably intertwined, and the federal
authorities were aware of his state counsel retention when they interviewed him. He claims that the
agents had a preconceived plan to get him to admit to his involvement in drug activity. However,
Burgest does not support his mere contention that the Bartkus exception applies in his case.
Accordingly, we find no merit to his argument.
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videotape of the drug transaction showing Burgest selling drugs to the confidential
informant. Thus, because the record demonstrates that the evidence of guilt was
overwhelming, any error in admitting Burgest’s incriminating statement was
harmless.
V. CONCLUSION
“[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.”
Avants, 278 F.3d at 522. Therefore, Burgest’s prior invocation of his right to
counsel for his state drug charge did not attach to the uncharged federal drug
offenses when the federal agents interviewed him. Thus, the district court did not
err in denying Burgest’s motion to suppress his incriminating statements.
Accordingly, we affirm Burgest’s convictions.
AFFIRMED.
9