The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge
Chief Judge Curtis L. Collier
Defendant David Donaldson ("Defendant") filed a motion to suppress a statement, which he made to an agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") on November 21, 2005, based upon his right to counsel under the Sixth Amendment of the United States Constitution (Court File No. 74).*fn1 The Court previously decided this motion in part. The remaining legal issue is whether the dual sovereignty doctrine is applicable to a defendant's right to counsel under the Sixth Amendment. Magistrate Judge Susan K. Lee issued a second Report and Recommendation ("R&R"), on April 15, 2008, addressing this issue, and recommended Defendant's suppression motion be denied (Court File No. 103). Defendant filed an objection to this R&R (Court File No. 104). For the following reasons, the Court ACCEPTS and ADOPTS the R&R (Court File No. 103) and DENIES Defendant's motion to suppress (Court File No. 74). I. FACTS
The facts of this case were comprehensively detailed in Magistrate Judge Lee's first Report and Recommendation, and the Court incorporates that section here (Court File No. 89, pp. 1-4).
Defendant was charged with various state offenses, including unlawful possession of a firearm (Court File No. 89, p. 1). Defendant retained counsel and was held in state custody (id., p. 2). While in state custody, a federal agent, Stephen Gordy, questioned Defendant concerning a situation involving a firearm; this situation was also the factual basis for the state offenses (id.). Defendant was subsequently federally charged with being a felon in possession of a firearm (id.). Defendant has moved to suppress the statements he made to the federal agent, arguing his retention of counsel in the state claim precluded the federal government from questioning him, without counsel present, for a federal claim of the same nature (Court File No. 74). Defendant's right to counsel is protected by the Sixth Amendment. The Sixth Amendment right to counsel, and the invocation of that right, are offense-specific; thus, the federal agent was precluded from questioning Defendant outside the presence of counsel only if the state and federal offenses are the same. See McNeil v. Wisconsin, 501 U.S. 171, 177 (1991).
Two offenses can be distinguished based upon whether they possess the same substantive elements (the Blockburger test), see Blockburger v. United States, 284 U.S. 299, 304 (1932), and whether they are based upon the laws of and pursued by the same sovereign (the dual sovereignty doctrine), see Heath v. Alabama, 474 U.S. 82, 89 (1985). In a previous Order, this Court held that Defendant's state and federal offenses for possession of a firearm were the same substantive offense under the Blockburger test, but left open the issue of whether the dual sovereignty doctrine applied to offenses for the purpose of the Sixth Amendment right to counsel (Court File Nos. 92, pp. 5-8; 93).
Neither the United States Supreme Court nor the United States Court of Appeals for the Sixth Circuit has expressly addressed whether the dual sovereignty doctrine applies to a defendant's Sixth Amendment right to counsel, and there is a conflict among the circuits that have addressed the issue. The conflict arises from the interpretation of the Supreme Court's intent when it held "[w]e see no constitutional difference between the meaning of the term 'offense' in the contexts of double jeopardy and of the right to counsel." See Texas v. Cobb, 532 U.S. 162, 173 (2001). Read broadly, the Supreme Court was incorporating all double jeopardy "offense" analysis into the right to counsel analysis, including the dual sovereignty doctrine. Read narrowly, the Supreme Court was only adopting the Blockburger test, dealing with the substantive elements of the offense regardless of the sovereign behind the relevant law.
The Court finds the conflict among the circuits to be misleading. The Supreme Court did not have the issue of whether the dual sovereignty doctrine applied before it in Cobb because the offenses in Cobb - state burglary offense and a federal murder offense - were separate offenses under Blockburger. See Cobb, 532 U.S. at 173. The dual sovereignty doctrine was not properly before the Court, and the above quote was in the context of and addressing only the Blockburger test. The Cobb decision thus provides no binding statement of law for this Court, and this Court is left to determine whether the Sixth Amendment right to counsel incorporates the dual sovereignty doctrine based upon a broader review of current Sixth Amendment jurisprudence.
In accordance with the following analysis, the Court holds the dual sovereignty doctrine applies to the Sixth Amendment right to counsel. Defendant's state and federal offenses are not the same; the Sixth Amendment thus did not prohibit a federal agent from questioning Defendant; and, therefore, Defendant's statements to the federal agent should not be suppressed. This outcome is in accordance with the outcomes in the majority of circuits that have addressed this issue. See United States v. Burgest, 519 F.3d 1307, 1310-11 (11th Cir. 2008); United States v. Alvarado, 440 F.3d 191, 196-97 (4th Cir. 2006); United States v. Coker, 433 F.3d 39, 44 (1st Cir. 2005); United States v. Avants, 278 F.3d 510, 517-18 (5th Cir. 2002), cert. denied 536 U.S. 968 (2002). But see United States v. Mills, 412 F.3d 325, 328 (2d Cir. 2005); United States v. Red Bird, 287 F.3d 709, 714 (8th Cir. 2002).
1. A Sovereign has a Right to Investigate Violations of its Laws
The Sixth Amendment right to counsel should not be construed to severely undermine the inherent and fundamental authority of a sovereign in pursuing the interests of its citizenry. Two separate sovereigns may each formulate separate laws to protect their interests, and both may separately punish anyone who violates those laws, even when both laws are violated by the same act. See Heath, 474 U.S. at 87 (citing United States v. Lanza, 260 U.S. 377, 382 (1922)) ("[E]ach government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.")
It follows that, just as both sovereigns have the inherent authority to separately pursue their interests through prosecution, those sovereigns must also possess the inherent authority to separately investigate conduct which may lead to such prosecution. See Alvarado, 440 F.3d at 196, 198-99 (recognizing that different sovereigns may investigate and enforce their laws in different ways). The investigations of one sovereign are unaffected by the developments in the investigations of the other, including a defendant's reaction to each of those investigations. ...