dissenting:
Robert Kennedy, Jr.’s drug trafficking conviction was on appeal when an Assistant United States Attorney (AUSA) forced him to testify before a grand jury about what he had done. Though it seems incredible, the AUSA actually told Kennedy that he did not have a Fifth Amendment right to refuse to testify in the grand jury about his pending case. The AUSA then questioned Kennedy, who was still an accused, in blatant violation of his Sixth Amendment right to counsel. In all of this, the AUSA misused the grand jury because it had no authority to interrogate Kennedy about his crimes while his case was still pending. After Kennedy testified falsely in his second forced grand jury appearance, he was prosecuted and convicted for perjury. In the events leading up to the perjury prosecution, the AUSA flouted Kennedy’s rights and abused the grand jury power to such a degree that Kennedy was denied due process. I therefore respectfully dissent from the majority’s refusal to order the suppression of Kennedy’s grand jury testimony.
I.
The facts relating to the many violations of Kennedy’s constitutional rights are worth repeating. Kennedy, who is now fifty-eight years old, was subpoenaed to give post-conviction testimony before the grand jury in February and March 2002; he had just been sentenced to thirty-five years in prison on two counts of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of conspiracy to distribute more than five kilograms of cocaine and more than fifty grams of crack in violation of 21 U.S.C. § 846. Kennedy was being held in the Roanoke, Virginia, city jail, awaiting transfer to federal prison. His appeal was pending, and he was represented by counsel. Meanwhile, the *699investigation into the drug ring that Kennedy had been a part of was continuing, and the government was interested in learning more about the activities of his confederates. The AUSA, who was in charge of the ongoing investigation and who had prosecuted Kennedy on the drug charges, knew that Kennedy’s conviction was on direct appeal and that he was represented by counsel.
Despite this knowledge the AUSA twice brought Kennedy from the Roanoke city jail to the federal building to be interrogated and to testify before the grand jury about the very same conduct that led to his conviction and pending appeal. Kennedy’s lawyer was not there to assist him on either occasion. Right before each of Kennedy’s grand jury appearances, drug task force officers — at the direction of the AUSA — -interrogated Kennedy in the U.S. Marshal’s office about his offense conduct. Kennedy was not informed of his Miranda rights on either occasion. Again, his lawyer was not present, even though the officers also knew he was represented. Each pre-grand jury interrogation session began with the AUSA giving Kennedy wrong or misleading information about his constitutional rights. First, the AUSA instructed Kennedy that he did not have a Fifth Amendment right to refuse to testify about the conduct underlying his convictions that were on appeal. As the majority recognizes, this advice was completely wrong and violated Kennedy’s Fifth Amendment right against self-incrimination. See ante at 691-92. Second, the AUSA gave Kennedy advice that was misleading and deceptive in the circumstances: the AUSA told Kennedy that he had a right to consult with his lawyer outside the grand jury room. This advice would have been correct only if Kennedy’s appeal had been concluded and his conviction affirmed. Because Kennedy’s conviction was not yet final, the AUSA should have told him that he had the right not to be put before the grand jury to testify about his pending case unless he first waived his right to counsel. During the interrogation sessions that preceded both of his grand jury appearances, Kennedy made it plain to the officers that he did not want to talk. He said repeatedly that he did “not want[ ] to testify before the grand jury” and that “he would just pull his 35 years.” J.A. 21, 23. Nevertheless, in the first interview the officers were able to get quite a bit of information from Kennedy about his drug dealing. Although the AUSA did not remain in the room during the pre-grand jury interrogations, he knew that the officers would be questioning Kennedy about his offense conduct. And the AUSA had access to the information gathered by the officers to guide his questions of Kennedy in the grand jury.
At the start of each of Kennedy’s grand jury appearances, the AUSA gave Kennedy the same erroneous and misleading advice he was given prior to the sessions in the Marshal’s office. Kennedy was told that he did not have the right to refuse to answer questions about the offenses for which he had been convicted and that he only had a right to consult his lawyer outside the grand jury room. The AUSA then asked, and Kennedy answered, many questions about what he had done to be convicted. The AUSA suspended the questioning in Kennedy’s first appearance after Kennedy asked a second time to speak to his lawyer. The AUSA said he would “make arrangements” for Kennedy’s lawyer to be there for his next grand jury appearance. J.A. 314. No such arrangements were ever made, however. Kennedy did talk with his lawyer after his first appearance, but the record reveals nothing about the substance of that conversation.
At his first grand jury appearance, Kennedy testified about the cocaine transactions that led to his pending conviction, *700and he named persons to whom he had sold drugs. When- Kennedy was asked about these transactions at his second grand jury appearance, he claimed that he could not remember anything. This led to Kennedy’s indictment on five counts of perjury (one count was dismissed). The district court denied Kennedy’s motion, made on Fifth and Sixth Amendment grounds, to suppress his grand jury testimony. Kennedy was then convicted of perjury and sentenced to an additional thirty months imprisonment, to be served consecutively to his existing 420-month (thirty-five year) sentence on the drug charges. Kennedy’s perjury conviction is bottomed on nearly a dozen separate violations of his Fifth and Sixth Amendment rights that occurred during the pre-grand jury and grand jury interrogations. Specifically, Kennedy’s Sixth Amendment right to counsel was violated each of the four times (two grand jury appearances and two pre-appearance sessions) he was questioned outside the presence of his counsel about the conduct underlying his convictions. His Fifth Amendment right to be free of compelled self-incrimination was violated each of the four times the AUSA incorrectly informed him that he had no right to refuse to testify about his convictions. Kennedy’s Fifth Amendment rights were also violated when he was not given Miranda warnings before each of his pre-grand jury interrogation sessions. Finally, when the AUSA’s oppressive acts, including his abuse of the grand jury process, are all put together, they violate Kennedy’s right to due process under the Fifth Amendment.
II.
A.
I will first discuss the significance of the Sixth Amendment violations, which the majority fails to recognize fully. If Kennedy’s Sixth Amendment rights had been honored, he would not have been brought before the grand jury in the first place. “The Sixth Amendment guarantees the accused ... the right to rely on counsel as a ‘medium’ between him and the [government].” Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). The right to counsel attaches at the beginning of a criminal prosecution and continues through the first appeal as of right. Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); see also Taylor v. Best, 746 F.2d 220, 222 (4th Cir.1984). An indictment, for example, triggers the right to counsel, Michigan v. Jackson, 475 U.S. 625, 632, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), and thereafter the defendant must have “legal representation when the government interrogates him,” Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232 (1977). Because the right to legal representation after indictment is so basic, the government has an “affirmative obligation” not to interrogate the accused unless his lawyer is present. Moulton, 474 U.S. at 176, 106 S.Ct. 477; see also Jackson, 475 U.S. at 631-32, 106 S.Ct. 1404. The government’s violation of this obligation “contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.” Massiah, 377 U.S. at 205, 84 S.Ct. 1199 (internal quotation marks and citation omitted). The Sixth Amendment right to counsel has certain limits. For instance, the right may be waived, Brewer, 430 U.S. at 404, 97 S.Ct. 1232, and it only attaches to the offense charged, Texas v. Cobb, 532 U.S. 162, 167-68, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). None of the limitations applies here, however.
Kennedy’s Sixth Amendment right to counsel was violated a number of times, by the officers in the interrogation sessions *701and by the AUSA before the grand jury. Because Kennedy had been formally charged with the very drug offenses he was being questioned about, and his conviction for those offenses was on appeal, Kennedy remained an accused. See Massiah, 377 U.S. at 206, 84 S.Ct. 1199; Taylor, 746 F.2d at 222 (holding that a defendant with an appeal pending retains his Fifth Amendment privilege because compelled statements might be used against him in subsequent proceedings). The AUSA and the officers, therefore, could not question Kennedy about those offenses without his lawyer present, unless he waived his Sixth Amendment right. See Brewer, 430 U.S. at 401, 404, 97 S.Ct. 1232. Moreover, because Kennedy’s lawyer could not have accompanied Kennedy inside the grand jury room, see Fed.R.Crim.P. 6(d), the AUSA had an affirmative obligation not to bring Kennedy before the grand jury at all for questioning about his unaf-firmed convictions. See Moulton, 474 U.S. at 171, 106 S.Ct. 477. Instead of respecting Kennedy’s Sixth Amendment rights, the AUSA “knowingly circumvent[ed] [Kennedy’s] right to the assistance of counsel.” Id. at 180, 106 S.Ct. 477. The offense specific nature of the right to counsel does not negate Kennedy’s right because he was questioned about the offenses involved in his pending drug case; he was not questioned about any perjury offense. See Cobb, 532 U.S. at 167, 121 S.Ct. 1335. In sum, Kennedy’s Sixth Amendment right was violated every time the officers or the AUSA questioned him, either in the pre-grand jury sessions or before the grand jury itself.
The majority is wrong to suggest that it might have been permissible for the government to bring Kennedy before the grand jury in these circumstances because the AUSA told him he could consult with his lawyer outside the grand jury room. Ante at 692. The cases cited by the majority for this proposition are short of the mark because they deal with unindicted targets of grand jury investigations, who are not yet accused within the meaning of the Sixth Amendment. Compare Massiah, 377 U.S. at 206, 84 S.Ct. 1199, with United States v. Williams, 504 U.S. 36, 49, 112 S.Ct. 1735,118 L.Ed.2d 352 (1992), and In re Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957). Kennedy, as an accused, had the Sixth Amendment right not to be brought before the grand jury to testify about his offenses of conviction that were pending on appeal. See Moulton, 474 U.S. at 176,106 S.Ct. 477. Simply put, the government could not confront Kennedy in any situation where his lawyer was not or could not be present. Id. Justice Brennan made this same point, relying on the Fifth Amendment, in his opinion concurring in the judgment in United States v. Mandujano, 425 U.S. 564, 594, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976): “[i]t is clear that the government may not in the absence of an intentional and knowing waiver call an indicted defendant before a grand jury and there interrogate him concerning the subject matter of a crime for which he already stands formally charged.”
The cases from other circuits cited by the majority are easily distinguishable from Kennedy’s situation. See ante at 692. Both In re Grand Jury Subpoena (United States v. McDougal), 97 F.3d 1090, 1092-93 (8th Cir.1996), and United States v. Schwimmer, 882 F.2d 22, 27 (2d Cir.1989), relied on the government’s grant of use immunity to hold that an indicted grand jury witness could be questioned outside the presence of counsel without violating the Constitution. Here, Kennedy was not granted use immunity, nor did he waive his Sixth Amendment right to counsel. He therefore had a constitutional right to have his lawyer sitting next to him any time the government questioned him about the offenses he was being prosecuted for, even if the government’s purpose was to seek in*702formation about others involved in his drug dealing. See Moulton, 474 U.S. at 179-80, 106 S.Ct. 477. The AUSA’s misleading advice to Kennedy — that he had the right to consult his (absent) lawyer outside the grand jury room — does not excuse the blatant Sixth Amendment violations. See id. at 176,106 S.Ct. 477.
The majority, in arguing that any Sixth Amendment violations here are not a bar to Kennedy’s perjury prosecution, relies on Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212, and United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977), cases where grand jury testimony obtained in violation of the Fifth Amendment was used to establish perjury. Ante at 693-94. In relying on these Fifth Amendment cases, the majority ignores important differences between the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. As long as the government honors Fifth Amendment safeguards (such as giving Miranda warnings when required), it may ask questions of an individual that could lead to incriminating answers; it is up to the individual to assert his Fifth Amendment privilege. E.g., Minnesota v. Murphy, 465 U.S. 420, 427-28, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). This procedure “reflects] an appropriate accommodation of the Fifth Amendment privilege and the generally applicable principle that governments have the right to everyone’s testimony.” Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). In contrast, the Sixth Amendment forbids the government from questioning an accused about charged offenses outside the presence of his lawyer. Moulton, 474 U.S. at 176, 106 S.Ct. 477. Moreover, once the Sixth Amendment right to counsel has attached, the accused does not have to assert his right every time the government seeks to question him. Brewer, 430 U.S. at 404, 97 S.Ct. 1232. The government has an affirmative obligation to refrain from questioning an accused without his lawyer present, and that obligation is fundamental to “our whole system of adversary criminal justice.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). These differences between the Fifth and Sixth Amendments mean that the grand juries in Mandujano and Wong, where the witnesses were not yet accused or indicted, could ask the questions that led to perju-rous answers that were not suppressed. An indicted individual, however, cannot be brought into the grand jury to testify about his charged conduct, for that violates his right to have counsel at his side. See Moulton, 474 U.S. at 176, 106 S.Ct. 477. In this case, therefore, where criminal proceedings were still pending against Kennedy, the grand jury was constitutionally forbidden from asking the questions that led to his false answers. See Mandujano, 425 U.S. at 581, 96 S.Ct. 1768; Wong, 431 U.S. at 179-80, 97 S.Ct. 1823; Brown v. United States, 245 F.2d 549, 554-55 (8th Cir.1957) (reversing a perjury conviction because the grand jury was investigating crimes in another jurisdiction and the purpose of the questioning was to lay a foundation for a perjury indictment).
In sum, the grand jury in this case was never entitled to Kennedy’s testimony, truthful or otherwise, because the grand jury (through the AUSA) violated Kennedy’s Sixth Amendment right to have his lawyer present at all interrogations from indictment through appeal. It is not necessary to decide, however, whether the Sixth Amendment violations alone require the suppression of Kennedy’s grand jury testimony at his perjury trial. As I explain next, the testimony must be suppressed because Kennedy’s rights were trampled to the point that he was denied due process.
*703B.
The AUSA’s abusive tactics and procedures violated Kennedy’s Fifth Amendment due process rights. After misusing the government’s subpoena power to bring Kennedy to the courthouse while his appeal was pending, the AUSA proceeded to commit or orchestrate Fifth and Sixth Amendment violations in the process of requiring Kennedy to answer questions about his offenses. What is more, the AUSA misused the grand jury, which had no authority to question Kennedy about his case while it was still on appeal. These overbearing tactics were pervasive and shocking, and they must be recognized for what they amount to — a violation of the Due Process Clause of the Fifth Amendment.
Kennedy was not given the required Miranda warnings at either of the pre-grand jury interrogations. Yet at both sessions, Kennedy made it clear that he did not want to testify about or discuss his offenses; he said repeatedly that he “just wanted to do his time.” J.A. 24. Even though Kennedy made his wishes plain in laymen’s language, the AUSA put him into the grand jury and misadvised him that he did not have a Fifth Amendment right to refuse to testify about the conduct that led to his convictions then pending on appeal. The AUSA then proceeded to ask him questions about that very conduct, compounding the Fifth Amendment violations. No perjury case cited by the majority involves Fifth Amendment violations by a prosecutor that approach this level of abuse. For example, in Mandujano the Supreme Court held that a grand jury witness, who was a suspect, could be prosecuted for perjury even though he was not given full Miranda warnings. 425 U.S. at 578-79, 96 S.Ct. 1768. Likewise, in Wong the untruthful grand jury witness, who was under investigation, was subject to a perjury prosecution even though she did not — because of language barriers — understand the prosecutor’s warning that she had a Fifth Amendment right not to answer incriminating questions. 481 U.S. at 177, 97 S.Ct. 1823. Here, in contrast, the AUSA told Kennedy that he did not have a Fifth Amendment right to refuse to testify. That was dead wrong and indefensible. The AUSA simply rode roughshod over Kennedy, forcing him to testify against himself.
Kennedy’s case is also different from Mandujano and Wong because the grand juries in those cases were exercising their lawful investigative authority to gather evidence from witnesses who were suspected of criminal activity. See Mandujano, 425 U.S. at 573, 578, 96 S.Ct. 1768; Wong, 431 U.S. at 179-80, 97 S.Ct. 1823. Here, the grand jury’s role in Kennedy’s pending case terminated when he was indicted. After his indictment the grand jury had no authority to call Kennedy before it to testify about his pending case. The AUSA, by putting Kennedy before the grand jury to question him about his ongoing case, forced the grand jury to act beyond its authority. This amounted to an abuse of process in violation of the Fifth Amendment. United States v. Doss, 563 F.2d 265, 276-77 (6th Cir.1977); Brown, 245 F.2d at 554-55; see also Mandujano, 425 U.S. at 583, 96 S.Ct. 1768; id. at 594, 96 S.Ct. 1768 (Brennan, J., concurring in the judgment).
The AUSA’s conduct here was far different from that of the prosecutors in Man-dujano and Wong for still another reason: the AUSA repeatedly violated Kennedy’s Sixth Amendment right to counsel. This debacle could have been prevented if the AUSA had honored Kennedy’s Sixth Amendment right and allowed his lawyer to be present at the interrogations that preceded each grand jury appearance. If the lawyer had been there, he could have put force behind Kennedy’s wishes and *704assisted him in asserting his Fifth Amendment rights before any interrogation began. In addition, the lawyer could have reminded the AUSA that a defendant whose case is on appeal must not be subjected to questioning before a grand jury about the offenses involved. By the time Kennedy’s case had reached the post-trial stage, he had established a pattern of not talking to the authorities and of not testifying. He did not cooperate with the authorities before his trial, he did not testify at trial, and he said repeatedly in the post-trial interrogation sessions that he did not want to talk to the authorities or testify in the grand jury. If his lawyer had been with him when he was confronted by the authorities after his conviction, it is likely that Kennedy’s continuing wish to remain silent would have been honored. It is not enough to say that Kennedy talked with his lawyer about something between his grand jury appearances, see ante at 696-97, because that is no substitute for his constitutionally guaranteed right to have his counsel with him during every interrogation “as a ‘medium’ between him and the [authorities].” Moulton, 474 U.S. at 176, 106 S.Ct. 477. In short, this case is a perfect illustration of why the interrogation of a defendant without his lawyer while his case is still pending “contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.” Massiah, 377 U.S. at 205, 84 S.Ct. 1199 (internal quotation marks and citation omitted).
The majority recognizes six violations of Kennedy’s constitutional rights and assumes that two others occurred. Yet it concludes that there was no due process violation, in part because the AUSA says he was not aiming to gather evidence against Kennedy. Ante at 696-97. The AUSA asserts that he was investigating others involved in drug dealing; that, of course, was an appropriate prosecutorial mission. Nevertheless, as the majority recognizes elsewhere in its opinion, the AUSA and the officers “were not entitled to ignore Kennedy’s constitutional rights in the process” of this investigation. Ante at 693 (citing Moulton, 474 U.S. at 179-80, 106 S.Ct. 477). The majority also relies on the facts that the AUSA did not trick Kennedy into lying, that he paid lip service to Kennedy’s right to consult with his lawyer outside the grand jury room, that he warned Kennedy of the consequences of lying under oath, and that he gave Kennedy an opportunity to change his testimony. Ante at 696-97. Although the majority may be correct that the AUSA’s constitutional violations did not force Kennedy to testify falsely, they did force him to testify in “contraven[tion of] the basic dictates of fairness in the conduct of criminal causes and [Kennedy’s] fundamental rights.” Massiah, 377 U.S. at 205, 84 S.Ct. 1199 (internal quotation marks and citation omitted). The unfairness here was the very act of calling Kennedy to testify before the grand jury. See Wong, 431 U.S. at 179, 97 S.Ct. 1823. In any event, the AUSA’s repeated and wrong instructions about Kennedy’s Fifth Amendment rights almost certainly led him to incriminate himself during his first grand jury appearance and to answer questions falsely when he should have remained silent during his second appearance.
Kennedy was still an accused with Fifth and Sixth Amendment rights when the AUSA twice arranged for his interrogation by officers and twice questioned him before the grand jury. The AUSA’s actions — from arranging for Kennedy to be interrogated without counsel, to telling him that he had no Fifth Amendment rights, to ignoring his express wishes that he not be questioned, to questioning him before grand jury in violation of his Sixth Amendment rights, to misusing the grand jury at a time when it had no authority over Ken*705ned/s pending case — amount to shocking misconduct. This misconduct corrupted the investigative and grand jury process to a degree that it denied Kennedy his due process rights. See Mandujano, 425 U.S. at 583, 96 S.Ct. 1768; id. at 585, 96 S.Ct. 1768 (Brennan, J., concurring in the judgment).
C.
This case presents a real dilemma. There is no solution that offers complete justice because both sides have engaged in reprehensible conduct. The AUSA repeatedly violated Kennedy’s most basic rights as an accused in a criminal case, and that must be condemned. Kennedy committed perjury, and that must also be condemned. If we leave things as they are, Kennedy stands convicted of perjury, and the AUSA stands excused. That result, I believe, does not take sufficient account of the prosecutorial abuse.
The government had lawful ways to obtain Kennedy’s testimony before his appeal was concluded. The AUSA could have contacted Kennedy’s lawyer and requested that he waive his rights and testify voluntarily. If that failed, the government could have given Kennedy use immunity. Immunity was a reasonable option, especially since the government had no intention of pursuing Kennedy any further for drug crimes. Rather than taking a common sense approach, the AUSA plunged recklessly ahead, jerking Kennedy into interrogation sessions and grand jury proceedings and committing a slew of constitutional violations along the way.
During this entire interrogation and grand jury process, Kennedy did not know what his rights were. The AUSA used his dominant position to mislead Kennedy about his rights, and he forced Kennedy to testify against himself. The majority suggests that Kennedy’s remedy is “to protest the infringement of his rights.” Ante at
695. But protest is an inadequate remedy in this instance. Protest, for example, cannot undo the tangible detriment to Kennedy that stems from the AUSA’s misconduct: a two and one-half year sentence for perjury added to a thoroughly deserved thirty-five year sentence for drug dealing, all to be served by a man who is nearly sixty years old.
I believe that Kennedy’s false testimony to the grand jury, must be suppressed in light of the magnitude of the violations of his rights. I recognize, of course, that “[pjerjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings,” and perjury “has no place” in an ordered system of justice. Mandujano, 425 U.S. at 576, 96 S.Ct. 1768. The rule that perjury cannot be excused is not quite absolute, however, because the Supreme Court has recognized that entrapment or abuse of the grand jury process may require the dismissal of perjury charges. Mandujano, 425 U.S. at 583, 96 S.Ct. 1768. As one Justice who concurred in the Mandujano judgment explained: when false answers before a grand jury are “induced by governmental tactics or procedures so inherently unfair under all the circumstances ... a prosecution for perjury [may constitute] a violation of the Due Process Clause of the Fifth Amendment.” Id. at 585, 96 S.Ct. 1768 (Brennan, J., concurring in the judgment). See also id. at 609, 96 S.Ct. 1768 (Stewart, J., concurring in the judgment) (noting that a perjury prosecution may be barred when there is “prosecutorial conduct amounting to a denial of due process”). The prosecutor’s tactics here, especially his misuse of the grand jury, were so abusive and unfair that Kennedy was denied due process. His perjured testimony should therefore be suppressed.