John R. Turner, Petitioner-Appellant,
United States of America, Respondent-Appellee.
Argued: October 11, 2017
from the United States District Court for the Western
District of Tennessee at Memphis. Nos. 2:12-cv-02266;
2:08-cr-20302-1-Samuel H. Mays, Jr., District Judge.
L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for
G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis,
Tennessee, for Appellee.
L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for
G. Ritz, Murrell G. Martindale, UNITED STATES ATTORNEY'S
OFFICE, Memphis, Tennessee, for Appellee. Steven J. Mulroy,
UNIVERSITY OF MEMPHIS, Memphis, Tennessee, Stephen Ross
Johnson, RITCHIE, DILLARD, DAVIES & JOHNSON, P.C.,
Knoxville, Tennessee, Adam Lamparello, Newport, Kentucky, for
Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS,
ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE,
STRANCH, DONALD, THAPAR, and BUSH, Circuit Judges.
M. BATCHELDER, Circuit Judge.
Appellant John Turner asks us to overrule nearly four decades
of circuit precedent holding that the Sixth Amendment right
to counsel does not extend to preindictment plea
negotiations. See United States v. Moody, 206 F.3d
609, 614- 15 (6th Cir. 2000) (citing United States v.
Sikora, 635 F.2d 1175 (6th Cir. 1980)). We decline to do
so. Our rule-copied word for word from the Supreme
Court's rule-is that the Sixth Amendment right to counsel
attaches only "at or after the initiation of judicial
criminal proceedings-whether by way of formal charge,
preliminary hearing, indictment, information, or
arraignment." Id. at 614 (quoting Kirby v.
Illinois, 406 U.S. 682, 689 (1972) (plurality opinion));
see also United States v. Gouveia, 467 U.S. 180, 188
(1984). The district court followed this rule, and we AFFIRM.
2007, after appellant John Turner robbed four Memphis-area
businesses at gunpoint, he was arrested by a Memphis police
officer who was part of a joint federal-state "Safe
Streets Task Force." Turner hired an attorney. A
Tennessee grand jury indicted Turner on multiple counts of
aggravated robbery, and Turner's attorney represented him
in plea negotiations with state prosecutors.
the state proceedings, the state prosecutor informed
Turner's attorney that the United States Attorney's
Office planned to bring federal charges against Turner.
Turner's attorney contacted the Assistant United States
Attorney ("AUSA") responsible for Turner's
case, who confirmed that the United States planned to bring
federal robbery and firearms charges that could result in a
mandatory minimum of eighty-two years' imprisonment for
the firearms charges alone. The AUSA conveyed to Turner's
attorney a plea offer of fifteen years' imprisonment
which would expire if and when a federal grand jury indicted
attorney says that he correctly and timely relayed the
federal plea offer to Turner, but that Turner refused it.
Turner disputes this. In any event, Turner did not accept the
federal plea offer before the federal grand jury in the
United States District Court for the Western District of
Tennessee indicted him in 2008. Turner hired a new attorney
and negotiated a plea deal which resulted in twenty-five
years' imprisonment. As part of Turner's plea
agreement, he waived his right to file a direct appeal.
2012, Turner filed a 28 U.S.C. § 2255 motion alleging
that his original attorney rendered constitutionally
ineffective assistance during the federal plea negotiations.
The district court, following Sixth Circuit and Supreme Court
precedent, found that Turner's Sixth Amendment right to
counsel had not yet attached during his preindictment federal
plea negotiations and denied his motion.
of this court affirmed the district court. Turner v.
United States, 848 F.3d 767 (6th Cir. 2017). Turner then
filed a petition for rehearing en banc, which this court
granted. Turner v. United States, 865 F.3d 338 (6th
raises two issues: (1) whether the Sixth Amendment right to
counsel extends to preindictment plea negotiations; and (2)
whether an indictment in a state prosecution triggers a
criminal defendant's Sixth Amendment right to counsel for
the purposes of forthcoming federal charges based on the same
underlying conduct. Both of these issues are questions of law
that we review de novo. See Moody, 206 F.3d at 612.
all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his
defen[s]e." U.S. Const. amend. VI. The Sixth Amendment
right to counsel "does not attach until a prosecution is
commenced." Rothgery v. Gillespie Cty., 554
U.S. 191, 198 (2008) (quoting McNeil v. Wisconsin,
501 U.S. 171, 175 (1991)). A prosecution commences only at or
after "the initiation of adversary judicial criminal
proceedings-whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment."
Id. (quoting Gouveia, 467 U.S. at 188).
the Sixth Amendment right to counsel attaches, criminal
defendants have a right to the assistance of counsel during
"critical stages" of the prosecution. Missouri
v. Frye, 566 U.S. 134');">566 U.S. 134, 140 (2012); Montejo v.
Louisiana, 556 U.S. 778, 786 (2009). The "core
purpose" of the Sixth Amendment right to counsel was to
ensure that criminal defendants could receive assistance of
counsel "at trial, " United States v. Ash,
413 U.S. 300, 309 (1973), but the Supreme Court has
"expanded" the right to certain pretrial
"trial-like confrontations" that present "the
same dangers that gave birth initially to the right
itself." Id. at 311-12. These critical stages
include "arraignments, postindictment interrogations,
postindictment lineups, and the entry of a guilty plea."
Frye, 566 U.S. at 140.
years ago, in Missouri v. Frye, 566 U.S. at 144, and
Lafler v. Cooper, 566 U.S. 156');">566 U.S. 156, 162 (2012), the
Supreme Court extended the Sixth Amendment right to counsel
to a new critical stage: plea negotiations. It did so because
plea negotiations have become "central to the
administration of the criminal justice system" and
because they frequently determine "who goes to jail and
for how long, " making them potentially "the only
stage when legal aid and advice would help" many
criminal defendants. Frye, 566 U.S. at 143-44
(citations omitted). In both Frye and
Lafler, however, the plea negotiations occurred
after the criminal defendants had been formally charged.
See id. at 138; Lafler, 566 U.S. at 161.
Neither Frye nor Lafler specifically
addresses attachment, but they are critical-stage cases which
we have found "accept the rule that the right to counsel
does not attach until the initiation of adversary judicial
proceedings." Kennedy v. United States, 756
F.3d 492, 493 (6th Cir. 2014).
argues that the Supreme Court's reasoning for holding
that postindictment plea negotiations are critical stages
applies equally to preindictment plea negotiations. But
Turner makes the fundamental "mistake" of confusing
the "critical stage question" with the
"attachment question." Rothgery, 554 U.S.
at 211 (internal quotation marks omitted). These questions
must be kept "distinct." Id. at 212
(citation omitted). That is why the Supreme Court has
repeatedly rejected attempts by criminal defendants to extend
the Sixth Amendment right to counsel to preindictment
proceedings, even where the same proceedings are critical
stages when they occur postindictment. Compare United
States v. Wade, 388 U.S. 218, 236-37 (1967) (Sixth
Amendment right to counsel in postindictment lineups),
with Kirby, 406 U.S. at 690 (plurality opinion) (no
Sixth Amendment right to counsel in preindictment lineups);
compare Massiah v. United States, 377 U.S. 201,
205-06 (1964) (Sixth Amendment right to counsel in
postindictment interrogations), with Moran v.
Burbine, 475 U.S. 412, 431-32 (1986) (no Sixth Amendment
right to counsel in preindictment interrogations).
Supreme Court's attachment rule is crystal clear. It is
"firmly established" that a person's Sixth
Amendment right to counsel "attaches only at or after
the time that adversary judicial proceedings have been
initiated against him." Gouveia, 467 U.S. at
187. Because the Supreme Court has not extended the Sixth
Amendment right to counsel to any point before the initiation
of adversary judicial criminal proceedings, we may not do so.
See Moody, 206 F.3d at 614. We therefore reaffirm
our long-standing rule that the Sixth Amendment right to
counsel does not extend to preindictment plea negotiations.
argues that other circuits extend the Sixth Amendment right
to counsel to preindictment "adversarial confrontations,
" but no other circuit has definitively extended the
Sixth Amendment right to counsel to preindictment plea
negotiations. Only one circuit has implied that the Sixth
Amendment right to counsel extends to preindictment plea
negotiations, but that opinion was non-precedential and the
issue of when the Sixth Amendment right to counsel attaches
was not before the court in that case. See United States
v. Giamo, 665 Fed.Appx. 154, 156-57 (3d Cir. 2016). A
minority of circuits have also discussed the
"possibility that the right to counsel might conceivably
attach before any formal charges are made, or before an
indictment or arraignment." Roberts v. Maine,
48 F.3d 1287, 1291 (1st Cir. 1995); see Perry v.
Kemna, 356 F.3d 880, 895-96 (8th Cir. 2004) (Bye, J.,
concurring) (collecting cases). None of these circuits,
however, has extended the Sixth Amendment right to counsel to
preindictment plea negotiations. There is therefore no
circuit split on this issue.
also argues that even if the Sixth Amendment right to counsel
does not ordinarily attach to preindictment plea
negotiations, an indictment in a state prosecution triggers a
criminal defendant's Sixth Amendment right to counsel for
the purposes of forthcoming federal charges based on the same
appears to have waived this argument, because he did not make
this argument to the district court or to the panel on
appeal. See Scottsdale Ins. Co. v. Flowers, 513 F.3d
546, 552 (6th Cir. 2008). However, the government has not
argued waiver. Additionally, where a newly-raised issue is
"purely one of law requiring no new or amplified factual
determination" and has been "fully briefed and
argued, " we may exercise our discretion to deviate from
the general waiver rule. Taft Broad. Co. v. United
States, 929 F.2d 240, 244-45 (6th Cir. 1991) (citations
omitted). We do so here and address Turner's argument on
Sixth Amendment right to counsel is "offense
specific." McNeil, 501 U.S. at 175. "It
cannot be invoked once for all future prosecutions, "
id., or once for all "factually related"
offenses. Texas v. Cobb, 532 U.S. 162, 168-69
(2001). Turner is therefore correct only if both the state
and federal governments prosecuted him for the "same
offense." Id. at 173.
determining what constitutes the "same offense, "
the Supreme Court has instructed us to apply the test in
Blockburger v. United States, 284 U.S. 299 (1932).
Cobb, 532 U.S. at 173. "The applicable rule is
that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact
which the other does not." Blockburger, 284
U.S. at 304. This test applies to the Sixth Amendment right
to counsel because the Supreme Court "see[s] 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.
circuit courts are split on whether the Supreme Court in
Cobb "incorporated all of its double jeopardy
jurisprudence (including the dual sovereignty doctrine)"
into its Sixth Amendment right-to-counsel jurisprudence
"or [incorporated] merely the Blockburger
test." United States v. Coker, 433 F.3d 39, 43
(1st Cir. 2005).
majority view is that when a criminal defendant's conduct
violates both state and federal law, that defendant commits
two separate offenses, even when the state and federal
offenses contain the same essential elements. Id. at
43-45; United States v. Holness, 706 F.3d 579,
590-91 (4th Cir. 2013); United States v. Burgest,
519 F.3d 1307, 1310 (11th Cir. 2008); United States v.
Avants, 278 F.3d 510, 517 (5th Cir. 2002). Because the
Supreme Court 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, these circuits apply the dual
sovereignty doctrine from the double-jeopardy context to the
Sixth Amendment right-to-counsel context. Under that
doctrine, 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
'offen[s]es.'" Heath v. Alabama, 474
U.S. 82, 88 (1985) (citation omitted).
minority view is that when a criminal defendant's conduct
violates both state and federal law, the defendant
nevertheless commits only one offense when the state and
federal offenses contain the same essential elements. See
United States v. Mills, 412 F.3d 325, 330 (2d Cir.
2005); United States v. Red Bird, 287 F.3d 709, 715
(8th Cir. 2002). These circuits interpret Cobb to
incorporate only the Blockburger test and not the
dual-sovereignty doctrine into the Sixth Amendment
the majority view because it more closely follows Supreme
Court precedent than does the minority view. Using the
dual-sovereignty doctrine to determine the meaning of the
term "offense" in the double-jeopardy context but
not in the Sixth Amendment right-to-counsel context would
create a constitutional difference where the Supreme Court
saw none. See Coker, 433 F.3d at 44. We therefore
hold that when a criminal defendant's conduct violates
both state and federal law that defendant commits two
separate offenses, even when the essential elements of the
state and federal offenses are the same.
sole basis for relief in his 28 U.S.C. § 2255 motion was
that his original attorney provided constitutionally
ineffective assistance during Turner's preindictment
federal plea negotiations. But Turner's Sixth Amendment
right to counsel had not yet attached during those
preindictment plea negotiations. There can be no
constitutionally ineffective assistance of counsel where
there is no Sixth Amendment right to counsel in the first
place. Smith v. Ohio Dep't of Rehab. &
Corr., 463 F.3d 426, 433 (6th Cir. 2006) (citing
Coleman v. Thompson, 501 U.S. 722, 752 (1991)).
foregoing reasons, we AFFIRM the judgment of the district
BUSH, Circuit Judge, concurring dubitante. History sometimes
reveals more import to words than they at first seem to have.
And faithful adherence to the Constitution and its Amendments
requires us to examine their terms as they were commonly
understood when the text was adopted and ratified, rather
than applying meaning derived years later that may weaken
constitutional rights. This case calls for such an
Sixth Amendment states in pertinent part: "In all
criminal prosecutions, the accused shall enjoy the right . .
. to have the assistance of counsel for his defence." We
must decide whether a criminal suspect, having received from
a federal prosecutor an offer to enter into a plea agreement
that requires pre-indictment acceptance, is an
"accused" in a "criminal prosecution"
and therefore entitled to a constitutional right to counsel.
that it is settled that the substantive right to
counsel includes the right to communication of a favorable
plea offer: the Supreme Court made that clear in Lafler
v. Cooper, 566 U.S. 156');">566 U.S. 156 (2012), and Missouri v.
Frye, 566 U.S. 134');">566 U.S. 134 (2012). So no one disputes that
defendant-appellant John Turner's right of
"assistance of counsel for his defence" includes
his counsel's communicating the offer, assuming the right
has attached. Our task, therefore, is to decide only whether
that substantive right did attach to Turner upon or before
the federal prosecutor's presentment of the plea
offer-that is, whether Turner was then an "accused"
in a "criminal prosecution."
majority is correct that we are bound to affirm because of
Supreme Court precedents holding that the Sixth Amendment
right to counsel attaches only "at or after the
initiation of criminal proceedings-whether by way of formal
charge, preliminary hearing, indictment, information, or
arraignment." United States v. Moody, 206 F.3d
609, 614 (6th Cir. 2000). But the original understanding of the
Sixth Amendment gave larger meaning to the words
"accused" and "criminal prosecution" than
do these precedents, and for that reason, I write separately.
discussed below, the greater weight of the Founding-era
evidence appears to support the propositions that Turner was
an "accused" even though he had not yet been
indicted federally, and that the communication of an
exploding plea-agreement offer by a federal prosecutor that
would, if accepted, all but end Turner's criminal
litigation, was part of a "criminal prosecution" as
those terms were used in the Sixth Amendment. In light of
this history of the original meaning of the Sixth Amendment
text, the Supreme Court might wish to reconsider its
The Search for "Original Meaning" in the Historical
Supreme Court routinely looks to Founding-era dictionaries,
acts of the First Congress, early decisions of the federal
judiciary, records of the Constitutional Convention and state
ratifying conventions, and other Founding-era documents as
sources that shed light on the original meaning of
constitutional provisions. See, e.g.,
Ariz. State Legislature v. Ariz. Indep. Redistricting
Comm'n, 135 S.Ct. 2652, 2671-72 (2015); District
of Columbia v. Heller, 554 U.S. 570, 603-14 (2008);
Marsh v. Chambers, 463 U.S. 783, 787-91 (1983).
the Court has relied on such sources to determine what the
Framers intended the provision to mean-or, more
specifically, what a provision's drafter intended it to
mean. See, e.g., U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 800 (1995). Call this the
"What was James Madison thinking?" approach. Yet
another method has been to ascertain the understanding of
those who ratified the text (in the case of the original
Constitution) or amendment (as here). See, e.g.,
Alden v. Maine, 527 U.S. 706, 716-19 (1999). Call
this the "What did the ratifiers think that James
Madison was thinking?" approach.
third approach, and the one this opinion follows, is to look
to the original public meaning of a provision in the
Constitution, as distinct from the perhaps more technical
understanding of the provision that a constitutional drafter
or a delegate to a ratifying convention might have held.
See, e.g., Heller, 554 U.S. at 576-77
("In interpreting this text, we are guided by the
principle that '[t]he Constitution was written to be
understood by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.' . . . Normal meaning may of course include an
idiomatic meaning, but it excludes secret or technical
meanings that would not have been known to ordinary citizens
in the founding generation.").
Morris, "from whose pen" (according to Madison)
came "[t]he finish given to the style and arrangement of
the [C]onstitution, " aptly acknowledged: "It is not
possible for me to recollect with precision all that passed
in the Convention while we were framing the Constitution;
and, if I could, it is most probable that a meaning may have
been conceived from incidental expressions different from
that which they were intended to convey, and very different
from the fixed opinions of the speaker." The same could be
said of those who drafted and edited the Bill of Rights.
Accordingly, as Justice Joseph Story emphasized, it should be
the objective meaning of the constitutional text, not the
drafter's, editor's, or ratifier's subjective
intention, that is to be ascertained, for "[t]he people
adopted the [C]onstitution according to the words of the text
in their reasonable interpretation, and not according to the
private interpretation of any particular
men." Call this the "What did the average
Joe (or Josephine) from the Founding era understand the words
to mean?" approach.
latter method, like most searches for word meaning, begins
with the dictionary. Cf. Ariz. State Legislature,
135 S.Ct. at 2671. Accordingly, I will first consult the
prevailing lay and legal dictionaries of the time period when
the Sixth Amendment was adopted. Second, I will look to
Founding-era statutes and legal decisions interpreting the
words "accused" and "criminal
prosecution" to see whether these words were likely used
and understood by the Framers and their contemporaries in a
manner consistent with their dictionary definitions and not
in some narrower sense. Finally, after articulating how the
words "accused" and "criminal
prosecution" were likely understood in the Founding era,
I will apply that understanding by analogy to the facts of
the case before us.
last step warrants brief explanation. Sometimes the Supreme
Court articulates the original meaning of a constitutional
provision with sufficient specificity that it applies
directly to the facts of the case being decided. See,
e.g., Heller, 554 U.S. at 624-27 (explaining
meaning of the right to bear arms such that the firearms
regulation at issue could not then withstand any
level of judicial scrutiny). But sometimes the Court
articulates a more general understanding of such a provision,
which it then applies inductively, whether by analogy or
otherwise, to the case before it. See, e.g.,
United States v. Jones, 565 U.S. 400, 411 (2012)
(applying "an 18th-century guarantee against
unreasonable searches" to the government's use of
GPS monitoring to track a criminal suspect).
latter approach is appropriate where, as in Jones
and as in this case, the Framers could not have foreseen the
twenty-first-century context to which the constitutional
provision in question would be applied. Indeed, charge
bargaining was as unknown to the Framers as GPS technology.
See generally Albert W. Alschuler, Plea Bargaining
and Its History, 79 Colum. L. Rev. 1 (1979). So, rather than
ask whether the Founding generation understood the right to
counsel to apply during pre-indictment charge bargaining (a
question as misguided as asking whether the Founding
generation understood the right to privacy to preclude
warrantless GPS tracking), one should ask how the Framers and
their contemporaries understood the right to counsel to
operate in the contexts that they knew, and then apply that
understanding by analogy to the present-day charge-bargaining
context. Cf. Maryland v. Craig, 497 U.S. 836, 862-70
(1990) (Scalia, J., dissenting) (interpreting Confrontation
Clause and applying that interpretation to address whether a
child witness could testify by one-way closed-circuit
television). This is the method that I will now employ.
Historical Evidence of the Original Understanding of the
Scope of the Right to Counsel
to what one might surmise from Supreme Court precedents,
Founding-era dictionaries offer no reason to suppose either
that "accused" as used in the Sixth Amendment was
commonly understood to mean "indicted" or that it
was a term of art understood by the legally trained to mean
"indicted." Of the nine prevailing general English
dictionaries (that is, non-legal dictionaries) of the
Founding era, eight define "accuse" as some version
of "to charge with a crime; to blame or censure, "
and all nine offer a definition much broader than "to
the four prevailing legal English dictionaries of
the Founding era, one does not define "accuse" (or
related words) at all; the other three define
"accusation" by example, citing Clause 39 of the
Magna Carta: "By Magna Charta, no man shall be
imprisoned or condemned on any accusation, without
trial by his peers, or the law." One can draw two
conclusions: "accused" was a word in general usage
(not a term with peculiar meaning in the law), and
"accused" had a meaning that was broader than
with the Sixth Amendment's reference to "criminal
prosecutions": Although there is no particular
definition of that phrase, eight of the nine general English
dictionaries cited above do define the word
"prosecution, " and seven of the eight give a
primary definition of that term such as "[a] pursuit, an
endeavor to carry on any design." This definition
contemplates a broad meaning of
"prosecution"-something reminiscent of its
etymological meaning of pursuing a goal. The dictionaries
also include more specific secondary definitions such as
"a process at law" and a "suit against a man
in a criminal cause." Nor do the legal dictionaries
give reason to define a "prosecution" as occurring
only post-indictment: of the four prevailing dictionaries,
three do not define the word (or related words) at
all-and the one legal dictionary that defines
"prosecutor" does so only as "he that follows
a cause in another's name." From this evidence, one
may draw two conclusions: "prosecution" was in
general usage, and it was understood to have a broader
meaning than referring only to the post-indictment critical
stages of a judicial criminal action.
also notes that nowhere else in the original
Constitution or the Amendments does either
"accused" or "criminal prosecution" (or a
related word) appear except in the Sixth Amendment. In
particular, the Sixth Amendment's unique use of the words
"[i]n all criminal prosecutions" (emphasis
added) to demarcate its rights prompts this question: if
Sixth Amendment rights were to attach only after indictment,
why didn't the Sixth Amendment state that it applied in a
"criminal case" (as used in the Fifth Amendment) or
in all criminal "Cases" (as used along with
"Controversies" in Article III)? It is arguable
that "[i]n all criminal prosecutions" as used in
the Sixth Amendment imparted temporally broader meaning than
would have been imparted by the words "[i]n all criminal
cases." This word choice was consistent with the
Founding-era dictionaries discussed above and other sources
discussed below indicating that a "criminal prosecution,
" indeed, could begin before a "criminal case"
Crimes Act of 1790 and the Trial of Aaron Burr
to corroborate the dictionary evidence as probative of the
original understanding of "accused" and
"criminal prosecution, " I will examine other
relevant uses and interpretations of those words from the