139 F.3d 1005 (4th Cir. 1998), 96-4582, United States v. Melgar

Docket Nº:96-4582.
Citation:139 F.3d 1005
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Aldalberto MELGAR, a/k/a Jose Aldalberto Melgar-Campos, Defendant-Appellant.
Case Date:April 08, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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139 F.3d 1005 (4th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,


Jose Aldalberto MELGAR, a/k/a Jose Aldalberto Melgar-Campos,


No. 96-4582.

United States Court of Appeals, Fourth Circuit

April 8, 1998

Argued Oct. 27, 1997.

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ARGUED: Mark Howard Bodner, Fairfax, VA, for Appellant. Mark Samuel Popofsky, United States Department of Justice, Washington, DC, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Ian Simmons, Special Assistant United States Attorney, Office of the United States Attorney, Alexandria, VA, for Appellee.

Before RUSSELL, [*] MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge MICHAEL joined.



The sole issue presented in this case is whether the district court committed reversible error in refusing to suppress statements taken from a defendant assertedly in violation of his Fifth and Sixth Amendment rights to counsel. Because the defendant waived his Fifth Amendment right and because the Sixth Amendment violation constituted harmless error, we affirm.


We review de novo the ultimate question of whether the government violated a defendant's Fifth and Sixth Amendment rights, but we must "take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 698-700, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); see also United States v. Sprinkle, 106 F.3d 613, 616-17 (4th Cir.1997). Accordingly, we set forth below the relevant facts as found by the district court. See United States v. Melgar, 927 F.Supp. 939, 943-46 (E.D.Va.1996).

At approximately 3:00 a.m. on November 26, 1995, Officer Alan Lowrey of the Arlington County Police Department observed an automobile traveling behind him with only one functioning headlight, in violation of Va.Code § 46.2-1030 (1996). After further observation, Officer Lowrey signaled to the car to pull over. He noted that five occupants were inside and that the car windows were rolled down despite the fact that it was a bitter cold evening. Officer Lowrey asked the driver for his license and registration. While Officer Lowrey checked the documents against computer records, back-up officers arrived, including Officer David Torpy. In Spanish, Officer Torpy asked the driver of the car if there were any drugs or guns in the car and whether the officers could search the car. The driver denied having any drugs or guns and did not immediately respond to the search request.

As Officer Torpy discussed with the driver whether he would consent to a search, Officer Lowrey walked back to the passenger side of the car and asked Jose Aldalberto Melgar, who was in the front passenger seat, whether there were any drugs or guns in the car. Melgar, too, asserted that there were none.

When the driver eventually consented to a search of his car, Melgar got out of the car. He initially took his jacket with him, then hesitated and left it behind. As Officer Lowrey searched the car, he spotted this jacket on the front passenger seat. Officer Lowrey lifted the jacket and felt the outline of a gun in one of the pockets. After a computer check revealed that Melgar did not have a registered permit for the concealed weapon, the officers arrested him for illegal possession of a firearm. A search incident to Melgar's arrest uncovered a small amount of marijuana and an alien identification card, which, the district court expressly found, "Officer Lowrey immediately recognized as a fake." Melgar, 927 F.Supp. at 945.

The next day Melgar was arraigned in state court on charges of possession of a concealed firearm without a permit, possession of marijuana, and possession of a fictitious government identification card. At his state arraignment, Melgar invoked his right to assistance of counsel, and the court appointed counsel for him.

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On the same day, a state law enforcement officer contacted Immigration and Naturalization Service (INS) Agent Lloyd Miner regarding Melgar. Agent Miner's ordinary duties with the INS involve investigating suspected violations of United States immigration laws, and he is often called by state law enforcement officers who believe that they have information about illegal aliens. Miner understood the state officer in this case to be calling him with routine information about a suspected illegal alien. Miner told the state officer that he would interview Melgar during the week regarding his immigration status--specifically Melgar's alienage and eligibility for deportation. The district court found that the state officer's contact with Miner "was not part of a conscious plan or effort to circumvent defendant's invocation of his right to counsel in connection with the state charges." Id. at 945 n. 7.

Miner interviewed Melgar two days later on November 29, 1995, at the local detention center where Melgar was held. At the outset of the interrogation, Miner identified himself to Melgar as an INS agent and told Melgar that he was interviewing him only to discuss Melgar's immigration status, not the state criminal charges. Miner twice advised Melgar in Spanish of his Miranda rights. Melgar signed a written waiver of those rights.

During the interrogation, Melgar admitted to Agent Miner that he was born in El Salvador and that both of his parents were citizens and nationals of that country. He further stated that he had last entered the United States in October 1994 illegally. In addition, when Agent Miner asked if Melgar had any identifying scars or marks, Melgar showed Miner a tattoo, which Miner recognized as the symbol of membership in an El Salvadoran gang, "Mara Salvatrucha."

Following the interview, Agent Miner conducted the standard INS computer checks, which confirmed Melgar's status as an illegal alien. At this time, in mid-December, more than a week after Agent Miner's interview with Melgar, Miner was named as case agent. The district court found that "Agent Miner testified credibly that at the time of the interview [of Melgar], he assumed someone else would be named case agent if defendant were later prosecuted on any federal charges," and that "[a]t the time of his interview of defendant, his sole interest was defendant's alienage and deportability." Id. at 946.

On December 18, 1995, federal agents--including Agent Miner--arrested Melgar, who had been released on bond from state custody. On February 20, 1996, the United States indicted Melgar for possession of a firearm by an illegal alien in violation of 18 U.S.C.A. § 922(g)(5) (West Supp.1996), possession of marijuana in violation of 21 U.S.C.A. § 844 (West 1981 & Supp.1997), and possession of a fraudulent identification card in violation of 18 U.S.C.A. § 1546(a) (West Supp.1997). Prosecution of the state offenses was stayed pending resolution of the federal charges.

Melgar moved to suppress the statements taken from him by Agent Miner, asserting, inter alia, that they were elicited in violation of his right to counsel. After conducting two evidentiary hearings, Judge T.S. Ellis, III, entered an order denying the suppression motion. A few weeks later, Judge Ellis issued an opinion, carefully setting forth the reasons for that order. Melgar, 927 F.Supp. at 939. A jury ultimately convicted Melgar of all three offenses. Judge James C. Cacheris sentenced him to a term of eighteen months imprisonment each on the gun and fraudulent identification card charges, and twelve months on the marijuana charge, all to run concurrently.


On appeal, Melgar claims only that Judge Ellis erred in refusing to suppress his statements to Agent Miner. Melgar asserts that Miner's interrogation of him, after he invoked his right to counsel in state court, contravened his constitutional rights. The Fifth and the Sixth Amendment each guarantee a right to assistance of counsel; Melgar maintains that the government violated both provisions in his case.

The Sixth Amendment, of course, specifically provides a right to counsel: "[i]n all criminal prosecutions, the accused shall enjoy

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the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. In Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), the Supreme Court established that this right prohibits the government from deliberately eliciting "incriminating evidence" from an accused "after he ha[s] been indicted and in the absence of his counsel." Unlike the Sixth Amendment, the text of the Fifth Amendment contains no specific guarantee of counsel, but the constitutional protection against compelled self-incrimination has long been held to include an additional right to counsel. See, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Fifth and Sixth Amendment rights to counsel differ not only in origin but also in purpose and scope.

The purpose of the Fifth Amendment right "is to protect ... the suspect's desire to deal with the police only through counsel." McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991) (internal quotation omitted). "The purpose of the Sixth Amendment guarantee ... is to protec[t] the unaided layman at critical confrontations with his expert adversary, the government, after the adverse positions of government and defendant have solidified with respect to a particular alleged crime." Id. at 177-78, 111 S.Ct. at 2208-09 (internal quotation omitted; emphasis and alteration in original).


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