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Turner v. United States

United States Court of Appeals, Sixth Circuit

March 23, 2018

John R. Turner, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued: October 11, 2017

          Appeal 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.

         ARGUED EN BANC:

          Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant.

          Kevin G. Ritz, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

         ON SUPPLEMENTAL BRIEF:

          Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant.

          Kevin 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 Amici Curiae.

          Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, and BUSH, Circuit Judges. [*]

          OPINION

          ALICE 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.

         I.

         In 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.

         During 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 Turner.

         Turner's 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.

         In 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.

         A panel 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 Cir. 2017).

         II.

         Turner 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.

         A.

         "In 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).

         Once 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.

         Six 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).

         Turner 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).

         The 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.

         Turner 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.

          B.

         Turner 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 underlying conduct.

         Turner 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 the merits.

         The 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.

         In 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.

         The 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).

          The 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).

         The 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 right-to-counsel context.

         We join 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.

         C.

         Turner's 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)).

         III.

         For the foregoing reasons, we AFFIRM the judgment of the district court.

         DUBITANTE

         JOHN K. 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 examination.

         The 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.

         We know 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."

         The 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).[1] 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.

         As 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 right-to-counsel jurisprudence.

         I

         A. The Search for "Original Meaning" in the Historical Record

         The 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).

         Sometimes 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.

          A 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.").

         Gouverneur Morris, "from whose pen" (according to Madison) came "[t]he finish given to the style and arrangement of the [C]onstitution, "[2] 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."[3] 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."[4] Call this the "What did the average Joe (or Josephine) from the Founding era understand the words to mean?" approach.

         This 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.

         This 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).

         The 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.

          B. Historical Evidence of the Original Understanding of the Scope of the Right to Counsel

         1. Founding-Era Dictionaries

         Contrary 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 indict."[5]

          As for the four prevailing legal English dictionaries of the Founding era, one does not define "accuse" (or related words) at all;[6] 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."[7] 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 "indicted."

         Likewise 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."[8] This definition contemplates a broad meaning of "prosecution"-something reminiscent of its etymological meaning of pursuing a goal.[9] The dictionaries also include more specific secondary definitions such as "a process at law" and a "suit against a man in a criminal cause."[10] 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."[11] 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.

         One 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" commenced.[12]

          2. The Crimes Act of 1790 and the Trial of Aaron Burr

         Next, 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 ...


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