6th Amendment—No “Same Offense” Protection

A decision out of the 4th Circuit Court of Appeal in Virginia this week held that state and federal charges stemming from the same act are not the “same offense” for purposes of 6th Amendment protections.^[1] The appeal court further held in US v. Alvarado, that the “filing of a federal criminal complaint does not trigger the Sixth Amendment right [to counsel].”^[2]

Right to Counsel
The 6th Amendment right to counsel attaches only after the commencement of formal charges against a defendant.^[3] Additionally, the right attaches only to the specific offences with which a defendant is formally charged.^[4]

The United States Supreme Court has held that there is “no constitutional difference between the meaning of the term ‘offense’ in the contexts of double jeopardy and of the right to counsel.”^[5] The 4th Circuit Court of Appeal noted that the essence of double jeopardy’s notion of “offense” is the dual sovereignty doctrine. Therefore, the dual sovereignty doctrine must also be the essence of the notion of “offense” with regard to the individual’s right to counsel.

The dual sovereignty doctrine has consistently led the Supreme Court to affirm that federal and state crimes are not the same offense, “no matter how identical the conduct they proscribe.”^[6] Hence, “[s]ince they arise from separate sovereigns, state and federal offenses are not the same for purposes of the Sixth Amendment right to counsel.”^[7]

Dual Sovereignty
According to the dual sovereignty principal, state criminal laws and federal criminal laws inhabit separate and distinct spheres. The 4th Circuit noted its agreement with appeal courts in the 1st and 5th Circuits, as well as its disagreement with the 2nd and 7th Circuits, in finding that the 5th and 6th Amendments, separately, offer adequate protection to defendants in the separate and sovereign state and federal realms.

According to the 4th Circuit, “Virginia can no more define what constitutes a federal criminal offense than the federal government can promulgate Virginia’s criminal law.”^[8]

Facts
In the facts of this case, Samuel Constanza Alvarado was arrested during a joint state and federal surveillance operation. He was read his Miranda rights by a federal officer and consented to a search of his hotel room where the officers discovered a suitcase full of marijuana and a gun.^[9] The same officer re‑interrogated Alvarado at the county police station later that morning after reading him his rights for a second time. Alvarado asked for and received counsel.

The same day that Alvarado’s state charges were dismissed at his preliminary hearing, federal agents executed an arrest warrant based on the same events that resulted in the state charge. Alvarado was taken back to the county police station, was read his rights, was interrogated for 45 minutes, and then was taken before a judge for his initial appearance on the federal charges for distribution and conspiracy to distribute marijuana and cocaine.^[10]

Alvarado appealed his eventual conviction, arguing that the formal state proceedings had triggered his right to counsel in the federal case as well because both sets of charges were for the same offense—therefore, the statements made during the federal interrogation before his initial appearance were inadmissible fruits. However, the appeal court found that the state and federal governments were “defining and prosecuting” their separate, sovereign statutes in different ways, even though the underlying criminal conduct was the same.

The court concluded that for the state to be “charging the defendant with conspiracy to distribute a finite amount of drugs on one day should not stop the federal government from prosecuting a more widespread conspiracy to distribute a greater amount of drugs over a several‑month period.”^[11]

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[1] United States v. Alvarado, No. 04-4969 (4th Circ., Mar. 13, 2006).
[2] Id. at 2.
[3] Id. at 5, citing Moran v. Burbine, 475 U.S. 412 (1986)
[4] Id. at 2, citing Texas v. Cobb [hereinafter Cobb], 532 U.S. 162 (2001).
[5] Id. at 6, citing Cobb at 173.
[6] Id. at 6, citing a line of cases from Moore v. Illinois, 55 U.S. (14 How.) 13 (1852) to Heath v. Alabama, 474 U.S. 82 (1985).
[7] Id. at 5.
[8] Id. at 7.
[9] Id. at 2-5.
[10] Id. at 4 (cocaine was seized in a co‑conspirator’s hotel room). See also 21 U.S.C. §§841(a)(1), 846 and 18 U.S.C. §2.
[11] Id. at 10.