U.S. v. Alvarado

Decision Date13 March 2006
Docket NumberNo. 04-4969.,04-4969.
Citation440 F.3d 191
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Samuel Constanza ALVARADO, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Mark Howard Bodner, Fairfax, Virginia, for Appellant. Kelli Hamby Ferry, Special Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, Ian R. Conner, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed in part; vacated and remanded in part by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge KING joined.

WILKINSON, Circuit Judge.

The instant case touches upon the sovereign authority of the state and federal governments to create and enforce criminal laws. The Commonwealth of Virginia charged defendant with state drug offenses, provided him with counsel, and subsequently dismissed the charges against him. After filing a federal criminal complaint, federal investigators gave defendant appropriate Miranda warnings and then questioned him outside the presence of his state-appointed lawyer about his involvement in federal drug crimes. Defendant contends that the incriminating statements he made during this interrogation should have been suppressed at his federal trial, because they were taken in violation of his Sixth Amendment right to counsel.

The Sixth Amendment right to counsel attaches only to the specific offense with which a defendant is formally charged. See Texas v. Cobb, 532 U.S. 162, 167-68, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). We hold that federal and state crimes are necessarily separate offenses for the purposes of the Sixth Amendment, because they originate from autonomous sovereigns that each have the authority to define and prosecute criminal conduct. We further hold that the filing of a federal criminal complaint does not trigger the Sixth Amendment right. Since defendant's right to counsel had yet to attach to his federal offenses when he was interrogated, his remarks were properly admitted and we affirm his convictions. However, we vacate defendant's sentence and remand for resentencing pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 755-56, 160 L.Ed.2d 621 (2005).


On the evening of October 1, 2003, state and federal law enforcement officers were conducting surveillance of an Econo Lodge Motel in Dumfries, Virginia. The officers had received a tip from a confidential source that cocaine would be delivered to the motel. They observed Francisco Lara-Hernandez and another suspected drug trafficker enter the motel, and state law enforcement officers subsequently arrested them.

Special Agent Jordi Clop of the federal Bureau of Alcohol, Tobacco, and Firearms participated in this surveillance, and interrogated Lara-Hernandez after he was placed under arrest. Lara-Hernandez stated that he had recently returned to the hotel from North Carolina with approximately 500 grams of cocaine. He indicated to Clop that the cocaine was now across the street in Room 333 of the Days Inn Hotel. He also disclosed that three individuals, one wearing a red t-shirt, were in the room and that two vehicles, including a white truck, were associated with the drug ring. Law enforcement officers observed defendant Samuel Constanza Alvarado (Alvarado), clad in a red t-shirt, exit Room 333 and climb into a white truck. State police officers arrested defendant upon his entering the truck.

Defendant did not speak English, but Agent Clop was fluent in Spanish. Agent Clop gave defendant his Miranda warnings, and defendant agreed to talk with Clop. From this conversation, Agent Clop determined that defendant was staying in Room 338 of the Days Inn, and received defendant's permission to search the room. Law enforcement officers eventually recovered 250 grams of cocaine from Room 333 and a suitcase full of marijuana and a handgun from Room 338. In the early morning hours of October 2, 2003, defendant was transported to a police station in Prince William County, Virginia. Agent Clop interrogated him at the police station after defendant was again read his Miranda rights.

On October 2, the Commonwealth of Virginia issued arrest warrants for Alvarado. The Commonwealth charged him with both possession with intent to manufacture sell, give, or distribute cocaine, see Va.Code Ann. § 18.2-248 (2004), and conspiracy to manufacture, sell, give, or distribute cocaine, see id. §§ 18.2-22, .2-248. According to the warrants, these charges concerned only the events on or about October 2, 2003. Defendant requested counsel, and the Commonwealth appointed him a lawyer. Virginia retained custody of defendant until December 5, 2003, when he had his preliminary hearing. At this hearing, the Commonwealth dismissed its charges against him.

On December 4, 2003, the day prior to Alvarado's preliminary hearing in state court, federal agents had filed a federal criminal complaint against defendant, and requested a warrant for his arrest. This warrant was issued. See Fed.R.Crim.P. 3, 4(a). Agent Clop was present at the Prince William County courthouse when defendant's state charges were dismissed, and immediately took him into federal custody. Defendant was subsequently transported to a Prince William County police station.

At the station, Alvarado told Agent Clop that he was glad to see him and wanted to give him his side of the story. Agent Clop interrupted defendant to give him Miranda warnings. In this conversation, defendant provided incriminating statements about his involvement in the drug conspiracy. Specifically, he described in detail the events of October 1-2, 2003. He also mentioned that he had gone on a previous trip to obtain cocaine from a source in North Carolina, and that he had been involved with other coconspirators in drug distribution since at least August 2003. After about forty-five minutes of questioning, Agent Clop took defendant before a judge to make his initial appearance.

On February 5, 2004, a grand jury indicted Alvarado on two counts. First, it charged him with conspiring to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000). According to the indictment, defendant conspired with at least three different individuals between August 2003 and October 2003. Second, the grand jury charged Alvarado with distributing cocaine on or about September 27, 2003, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2000). Prior to trial, defendant moved to suppress all the incriminating statements made over the course of his conversations with Agent Clop. Defendant alleged that these statements were taken in violation of his Fifth and Sixth Amendment rights to counsel. The district court denied his motion, and found Agent Clop properly read defendant his Miranda rights.

Alvarado was tried in front of a jury between April 28 and May 4, 2004. At the trial, Agent Clop testified about the incriminating remarks that defendant made to him on December 5, 2003. The jury convicted defendant on both counts. Based on the Presentence Investigation Report, the district court enhanced defendant's sentence on a number of grounds, including possession of a dangerous weapon and obstruction of justice. It ultimately sentenced him to 121 months on each count, with the sentences to run concurrently. Defendant appeals his convictions and sentence.


Alvarado alleges that his inculpatory statements of December 5, 2003 should have been suppressed at his trial, because they were taken in violation of his Sixth Amendment right to counsel.* He initially contends that commencement of formal proceedings on his state charges caused the Sixth Amendment right to counsel to attach to his federal charges as well, because the state and federal charges were the "same offense."

We disagree. Since they arise from separate sovereigns, state and federal offenses are not the same for purposes of the Sixth Amendment right to counsel. This case, moreover, highlights the fact that different sovereigns often define and prosecute similar crimes in different ways. For even applying the traditional test to determine whether two conspiracies are the same, the state and federal offenses in this case are distinct.


The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The right attaches only after the commencement of formal charges against a defendant. See Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). The right is also "offense specific," and "cannot be invoked once for all future prosecutions." McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Even though an accused has a Sixth Amendment right to counsel for one offense — because formal charges have been brought — the right does not automatically attach to other offenses with which he has not been charged. See Texas v. Cobb, 532 U.S. 162, 168, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). Instead, the right only includes uncharged offenses that constitute the "same offense" as one an accused has been formally charged with committing. See id. at 172-73, 121 S.Ct. 1335. In Cobb, the Supreme Court applied double jeopardy's "same offense" test, first articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether two state offenses were distinct for purposes of the Sixth Amendment right to counsel. Id. at 173, 121 S.Ct. 1335. Most importantly, the Court explained that there was "no constitutional difference between the meaning of the term `offense' in the contexts of double jeopardy and...

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