In re Suppressed
| Decision Date | 07 April 2022 |
| Docket Number | 20 M 118 |
| Parties | In the Matter of the Search of Suppressed |
| Court | U.S. District Court — Northern District of Illinois |
The Court grants the motion (“the Motion”; D.E. 8) under 18 U.S.C. § 3006A(a)(1), to appoint counsel under the Criminal Justice Act (“the Act”) in this pre-indictment, pre-information matter in which the uncharged target (“the Target”) of the federal investigation is not in custody and wishes to negotiate a plea agreement with the government. Although the Motion is unopposed and undisputed (D.E. 13), the Court must ensure that the Act authorizes the requested relief. The magistrate judge's jurisdiction over this matter stems from 18 U.S.C. § 636(a)(1), in that the government initiated the matter by filing an application for a search warrant under Federal Rule of Criminal Procedure 41. (D.E. 1.)
Attorney representation “shall be provided for any financially eligible person who … is entitled to appointment of counsel under the sixth amendment to the Constitution.” 18 U.S.C. § 3006A(a)(1)(H). The Motion argues that the financially eligible Target is entitled to representation under the Sixth Amendment and thus under Section 3006(a)(1)(H). Supplemental Statement in Support of Motion for Appointment of Defense Attorney (“Supp.”); D.E. 11 at 1. The Motion also argues that the Target has statutory access to representation because he or she faces loss of liberty in “a case, and federal law requires the appointment of counsel.” Id., citing 18 U.S.C. § 3006A(a)(1)(I). The Court has decided the Motion based on the Target's entitlement to appointment of counsel under the Sixth Amendment per Section 3006A(a)(1)(H) during plea negotiations before the lodging of a formal charge.
The Sixth Amendment right to counsel applies during plea negotiations. Bridges v. United States, 991 F.3d 793, 803 (7th Cir. 2021), citing Lafler v. Cooper 566 U.S. 156, 162 (2012). But decisions such as Bridges and Lafler involved plea negotiations that had begun after the defendants in those cases were charged formally, and the general rule is that the Sixth Amendment right to counsel ordinarily does not attach at all until the initiation of formal adversary judicial proceedings. See Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality). The answer to whether the Sixth Amendment right to counsel attaches during pre-indictment or pre-information plea negotiations is therefore more nuanced. Federal courts of appeal have not approached uniformly the question of whether, in some circumstances, the relationship between the government and a yet-to-be-charged person can be sufficiently adversarial to trigger the person's Sixth Amendment right to counsel, particularly during pre-charging plea negotiations. Some courts of appeal apply a “bright-line” rule holding that the Sixth Amendment right to counsel never attaches before the government initiates formal adversary judicial proceedings. See United States v. Heinz, 983 F.2d 609, 612-13 (5th Cir. 1993); Turner v. United States, 848 F.3d 767, 773 (6th Cir. 2017) (Turner I), rehearing en banc granted, vacated by 865 F.3d 338 (6th Cir.), and on rehearing en banc, 885 F.3d 949 (6th Cir. 2018) (Turner II); United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000); United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1117 (10th Cir. 1998); United States v. Waldon, 363 F.3d 1103, 1112 n.3 (11th Cir. 2004); and United States v. Sutton, 801 F.2d 1346, 1365-66 (D.C. Cir. 1986). Other courts of appeal, including the Seventh Circuit, have declined to adopt a bright-line rule and have recognized or indicated that under certain limited circumstances, the Sixth Amendment right to counsel could attach before the initiation of formal adversary judicial proceedings. See Roberts v. Maine, 48 F.3d 1287, 1290-91 (1st Cir. 1995); United States v. Burgess, No. 96-4505, 141 F.3d 1160, 1998 WL 141157, at *1-2 (4th Cir. Mar. 30, 1998); and United States v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992). The Sixth Circuit has opined that the foregoing two divergent views do not represent a genuine circuit split because none of the decisions espousing the latter view had held expressly that the Sixth Amendment right did attach before formal charging. Turner II, 885 F.3d at 954. A few district courts have found that the Sixth Amendment right to counsel attaches during pre-indictment plea negotiations. See United States v. Wilson, 719 F.Supp.2d 1260, 1266-67 (D. Ore. 2010); United States v. Busse, 814 F.Supp. 760, 763-64 (E.D. Wis. 1993). The gist of the reasoning behind Wilson and Busse is that plea negotiation is a critical stage of the proceeding, and even if formal judicial proceedings have not begun, the prosecution has committed itself to bring charges against a target when it offers or discusses a potential plea disposition. Wilson, 719 F.Supp.2d at 1267; Busse, 814 F.Supp. at 763-64.
Even as the Sixth Circuit applied the bright-line rule (no Sixth Amendment right of counsel before formal judicial proceedings) over the years, several of the Sixth Circuit opinions and judges expressed considerable misgivings about that approach when applied to pre-indictment plea negotiations. The Sixth Circuit's reticence about its bright-line rule had its foundation in a dissent by Judge Thomas Anderson Wiseman, Jr. from the majority's holding in United States v. Sikora, 635 F.2d 1175 (6th Cir. 1980), that the appellant did not have a right to counsel when he was neither in custody nor the subject of adversary proceedings at the time he made certain incriminating statements. Judge Wiseman's Sikora dissent opined that the Sixth Amendment right to counsel should have been held to have attached at the time of pre-indictment plea negotiations. Id. 635 F.2d at 1180-82 (Wiseman, J., dissenting in part).
Judge Wiseman's reasoning began with the premise that the Kirby plurality “identified the initiation of judicial proceedings [for purposes of determining when the Sixth Amendment right to counsel attaches] as the point when the government has committed itself to prosecute, and the adverse positions of the parties have solidified.” Id. at 1181. Ordinarily, then, the Kirby plurality viewed the initiation of formal judicial proceedings as the point at which a defendant finds himself “‘faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.'” Id., quoting Kirby, 406 U.S. at 689. Judge Wiseman then reasoned that Kirby did not foreclose the possibility that adversity between the government and the defendant could occur even before arrest: “If in fact the adverse positions of the parties have solidified at some point earlier than arrest and the defendant has been ‘faced with the prosecutorial forces' of the government, Kirby clearly suggests that the right to counsel attaches at that point, despite the absence of ‘formal' procedures.” Id. Judge Wiseman found it “obvious” that even before charging, “the government had made a commitment to prosecute” the individual once it “entered into plea negotiations” with him. Id.
Twenty years after Sikora, the Sixth Circuit cited Judge Wiseman's dissent in expressing reservations about its holding that no Sixth Amendment right attaches to pre-indictment plea negotiations. United States v. Moody, 206 F.3d 609, 614-15 (6th Cir. 2000). The panel in Moody bluntly criticized the bright-line rule it applied:
Then, more recently in Turner I, the Sixth Circuit echoed Moore in expressing concerns about the bright-line rule that it affirmed once again, quoting what the Turner I opinion called “the well-reasoned words” of Judge Wiseman in his dissent in Sikora:
The Court has extended the right in new contexts that present the same dangers that gave rise to the right originally, those dangers being confrontation with the procedural system, the expert prosecutor, or both. In the plea bargaining context, the accused is presented with both of these dangers, and therefore those persons who enter the plea bargaining process before formal charges have been filed should have the protection of the Sixth Amendment.... [W]hen the government begins plea negotiations with a citizen who has not been formally charged, he is just as surely faced with the “prosecutorial forces of organized society” as the defendant who has been formally introduced into the system.
Turner I, 848 F.3d at 773 ()).
All of which brings us to the Seventh Circuit's treatment of whether...
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