278 F.3d 510 (5th Cir. 2002), 00-60745 , U.S. v Avants

Docket Nº:00-60745</CENTER></B></P>
Citation:278 F.3d 510
Party Name:00-60745 , U.S. v Avants
Case Date:January 07, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 510

278 F.3d 510 (5th Cir. 2002)

UNITED STATES OF AMERICA, Plaintiff-Appellant,


ERNEST HENRY AVANTS, Defendant-Appellee.

No. 00-60745

United States Court of Appeals, Fifth Circuit

January 7, 2002

Appeal from the United States District Court for the Southern District of Mississippi

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[Copyrighted Material Omitted]

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Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In 1966, Ben Chester White was murdered. The state of Mississippi charged the appellee, Ernest Henry Avants, with the murder. Shortly before his state court trial in 1967, Avants made incriminating statements to FBI agents. Avants was later acquitted on the state murder charge.

White was murdered on federal land. So, many years later in the year 2000, the federal government initiated this federal murder prosecution against Avants. During the course of these 2000 proceedings, the government sought to introduce as evidence Avants's 1967 incriminating statements to the FBI. The district court suppressed the statements. The central issue was whether federal agents violated Avants's Sixth Amendment right to counsel during the 1967 interview. The trial court held that, because the FBI agents had initiated the conversation at a time when Avants was represented by counsel to defend him in the state prosecution, the agents violated Avants's Sixth Amendment right to counsel in obtaining the incriminating statements. It therefore granted Avants's motion to suppress the statements.

On appeal, the government now contends that the district court erred because Avants's Sixth Amendment right to counsel is offense-specific, and the federal and state murder charges do not constitute the "same offense" in this context. Thus, the government argues that Avants's right to counsel had attached only to the state murder prosecution at the time of the 1967 interview and had not attached with respect to the later federal prosecution. We agree.

We hold that the federal and state murder prosecutions in this case, although identical in their respective elements, are separate offenses for purposes of the Sixth Amendment because they were violations of the laws of two separate sovereigns -- specifically, the State of Mississippi and the United States. Therefore, because the Sixth Amendment is offense-specific, Page 513

Avants's statements during the 1967 interview, when he was represented by counsel only in the state proceeding, are not barred in this federal proceeding. Accordingly, we reverse the ruling of the district court and remand for proceedings not inconsistent with this opinion.


In 1966, an elderly African-American sharecropper, Ben Chester White, was found dead in Homochitto National Forest in Adams County, Mississippi. After a police investigation, Avants, Claude Fuller, and James Lloyd Jones were arrested and indicted by the state authorities for White's murder. Avants obtained counsel and was released on bond pending trial. During the police investigation of White's murder, Jones elected to turn state's evidence and to testify against Avants and Fuller.

Around the same time, the FBI was investigating the murder of Wharlest Jackson, a Mississippi civil rights worker killed by a car bomb in early 1967. On March 13, 1967, the FBI special agents assigned to the Jackson case, Allan Kornblum and Robert Boyle, went to Avants's house to question him about the Jackson murder. Although both Boyle and Kornblum were aware that Avants was a suspect in the Jackson murder -- primarily because he had been charged with murdering White -- neither agent was actively investigating the White murder.

When the agents reached Avants's house, they identified themselves and asked if they could speak with him. Avants voluntarily came out onto the porch, and the agents read him his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Avants told the agents that he was represented by an attorney on the state murder charge, that he was aware of his rights, and that he did not wish to have an attorney present during the interview. The three men then discussed several civil rights crimes that had occurred recently in Adams County, including the White murder.

According to a contemporaneous FBI report completed by Boyle and Kornblum, at some point during the interview, Boyle asked Avants when his trial for White's murder was scheduled to begin.1 Avants responded that he was ready to go to trial and was confident that he would be acquitted because the only witness against him, James Jones, was "out of his mind." Avants also said that his attorney had told him that he could not be convicted of killing White. According to Kornblum's suppression hearing testimony, Boyle asked Avants why he could not be convicted, and he replied that "you can't be convicted of killing a dead man." The agents then asked what Avants meant by that statement, and he responded "Yeah, I shot the nigger, but before I shot him [Fuller] had already shot him with a carbine, had emptied the full magazine of 15 rounds into him before I shot him. I blew his head off with a shotgun." The agents suggested that White might not have been dead, and Avants replied that "he had to be dead because of the number of shots fired into him by Fuller." Because the Page 514

agents had not been assigned to investigate the White case, they asked no further questions on the matter.

In the late 1960s, Avants was acquitted of the state murder charge.

More than thirty years later, in June 2000, a federal grand jury sitting in the Southern District of Mississippi indicted Avants for aiding and abetting White's murder within the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. § § 1111 and 1112. During pre-trial proceedings, Avants moved to suppress his statements to the FBI agents during the 1967 interview. He argued that the statements were taken in violation of his Sixth Amendment right to counsel because he had retained an attorney in connection with the state murder charge, and the attorney was not present for the interview.

The district court held an evidentiary hearing in September 2000. Although the court found that Avants "knowingly, voluntarily, and intelligently" waived his Sixth Amendment right to counsel, it found that the waiver was invalid under Michigan v. Jackson, 475 U.S. 625 (1986), because the FBI had initiated the conversation concerning White's murder after Avants's Sixth Amendment right to counsel had attached and had been invoked. The court therefore found that the statements were inadmissible as substantive evidence at trial. The district court proceedings werestayed pursuant to 18 U.S.C. § 3731, pending the government's appeal of the order suppressing Avants's statements. II

As we have noted, the initial issue in this appeal is whether the FBI agents violated Avants's Sixth Amendment rights during the 1967 interview when he was represented by counsel in the state court proceeding. The government now argues -- for the first time on appeal -- that Avants's rights never attached to the federal murder prosecution because the state prosecution and the federal prosecution are separate offenses for purposes of the Sixth Amendment. The government bases its position on the "dual sovereignty doctrine," which maintains that conduct in violation of a federal statute and a state statute constitutes two independent offenses, even if the statutes are identical, because the conduct violates the law of two separate sovereigns. For the reasons set out below, we find the government's argument persuasive.

This case, however, cannot be decided in such a straightforward manner. After addressing whether the "dual sovereignty" doctrine applies in the context of the Sixth Amendment, we must determine whether the government affirmatively waived the argument or whether the government only forfeited the argument by neglecting to raise it at trial. Because we conclude that the government forfeited but did not waive the argument, we must then evaluate the argument under the plain error doctrine. We conclude that, under the law as it exists today, the district court's ruling constituted plain error and its suppression of Avants's 1967 statement must be reversed.



We begin our inquiry by laying out the legal framework for analyzing issues relating to the Sixth Amendment right to counsel and police interrogation. In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court held that, once a suspect in custody invokes the Fifth Amendment right to counsel, the police may not interrogate the suspect in the absence of counsel -- even if Page 515

the suspect later attempts to waive that right. Under Edwards, any statement made by the suspect in response to police-iniated questioning after an invocation of the right to counsel violates the Fifth Amendment and must be excluded. The Supreme Court's decision in Michigan v. Jackson, 475 U.S. 625 (1986), extended the rule in Edwards to cases involving the Sixth Amendment right to counsel.2 The Court held that, "if police officers initiate interrogations after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police initiated interrogation is invalid," and the resulting statements are inadmissible as substantive evidence against the defendant. Jackson, 475 U.S. at 636; see also Michigan v. Harvey, 494 U.S. 344, 348-49 (1990).

Michigan v. Jackson thus imposes two requirements for...

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