U.S. v. Coker, 04-2154.

• Decision Date: 28 December 2005
• Docket Number: No. 04-2154.,04-2154.
• Citation: 433 F.3d 39
• Parties: UNITED STATES of America, Appellee, v. Edward COKER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 39

433 F.3d 39

UNITED STATES of America, Appellee, v. Edward COKER, Defendant, Appellant.

No. 04-2154.

United States Court of Appeals, First Circuit.

Heard October 4, 2005.

Decided December 28, 2005.

James H. Budreau, for appellant.

William H. Connolly, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

TORRUELLA, Circuit Judge.

Defendant-appellant Edward Coker was convicted by a jury of one count of attempted arson in violation of 18 U.S.C. § 844(i). He now appeals, arguing that the district court erred in denying his motion to suppress a confession he made to federal agents because the agents violated his Sixth Amendment right to counsel. We affirm.

I. Background

In the early morning hours of July 28, 2002, a fire broke out inside an apartment building located at 43 High Rock Street in Lynn, Massachusetts. Police officers and firefighters arriving at the scene found that a glass panel on the front door of the apartment building had been shattered. After firefighters extinguished the fire, the officers determined that three small fires had been set inside the building. They also found what appeared to be a Molotov cocktail in the hallway of the third floor of the building. The officers interviewed residents of the building, two of whom stated that they had seen a black male, who had been driving a Nissan sports car with a T-roof,¹ standing on the sidewalk outside the building yelling up at an apartment on the third floor. This man entered and exited the building just before the residents noticed the smell of smoke. One of the witnesses saw a straw hat in the man's car, while the other observed the man carrying a baseball bat.²

Based on these statements, police issued a "be-on-the-lookout" ("BOLO") call for a man fitting the witnesses' description. Shortly thereafter, two officers responding to an unrelated noise disturbance complaint a short distance from High Rock Street saw Coker sitting in a Nissan sports car that matched the description in the BOLO. The officers approached the car and saw a straw hat and silver baseball bat in the front seat.³ The officers later found a pair of rubber gloves and a butane lighter in the center console.

The officers detained Coker and arranged for a "show-up" identification, meaning that they arranged for the two witnesses to be brought to Coker's location and tell the police whether he was the man they had seen. Both witnesses identified Coker as the man they had seen yelling and entering the building just before the fire started. Coker was then placed under arrest.

Coker was booked at the Lynn Police Department and charged with burning or aiding in the burning of a dwelling house, in violation of Mass. Gen. Laws ch. 266, § 1, and malicious or wanton injuries to personal property, in violation of Mass. Gen. Laws ch. 266, § 127. On July 31, 2002, Coker was arraigned in state district court, had an attorney appointed, and was released on personal recognizance.

Between July 28 and July 31, the Lynn Fire Department notified the Bureau of Alcohol, Tobacco, and Firearms ("BATF") of the incident because it had found what appeared to be a Molotov cocktail in the apartment building.⁴ BATF Agent Konstantinos Balos ("Agent Balos") began an investigation to determine if the incident involved a federal crime. See 18 U.S.C. § 844. Agent Balos interviewed a number of witnesses to the alleged arson. Several Lynn police officers were present at these interviews. On August 8, 2002, Agent Balos and another BATF agent went to Coker's house and asked him to consent to an interview. At this time, Agent Balos knew that Coker was represented by counsel in the state case. Coker agreed to the interview and, driving his own car, followed the agents to the Lynn Fire Department, where the BATF maintains a satellite office. The agents brought Coker into a room, gave him a seat nearest an unlocked door, told him that he was not under arrest and was free to leave at any time, but nevertheless read Coker his Miranda rights, and gave him a copy of those rights. During the interview, which lasted around ninety minutes, Coker confessed to setting fire to the High Rock Street apartment building.⁵ Towards the end of the interview, Coker became emotional, stating that he regretted setting the fire and felt like killing himself. Coker told the agents that he wanted to end the interview and left the station.

In April 2003, a federal grand jury indicted Coker, charging him with one count of attempted arson in violation of 18 U.S.C. § 844(i). Coker filed a motion to suppress the confession, arguing that the federal agents had violated his Sixth Amendment right to counsel. The district court denied the motion to suppress. On May 9, 2004, following a three-day jury trial, Coker was convicted. He was sentenced to 60 months' imprisonment. He now appeals, arguing that the district court erred in denying his motion to suppress.

II. Discussion

A. Sixth Amendment Right to Counsel

We use a bifurcated standard in reviewing a district court's ruling on a motion to suppress, reviewing factual rulings for clear error and legal rulings de novo. United States v. Pardue, 385 F.3d 101, 104 (1st Cir.2004).

Under the Sixth Amendment, "[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. This right to counsel "does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (internal quotation marks and citation omitted). The Supreme Court has held that "if police initiate interrogation 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." Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).

In the instant case, we agree with the district court that "there is no dispute[ ] that Coker's Sixth Amendment right to counsel had attached as to the state charges at least by July 31, 2002, the date of his arraignment in state court, and that he did not validly waive that right before" his confession to the BATF agents. United States v. Coker, 298 F.Supp.2d 184, 189 (D.Mass.2003). Thus, there is no dispute that Coker's confession would not have been admissible in the state prosecution.

The Supreme Court has stated that "[t]he Sixth Amendment right [to counsel] . . . is offense specific. It cannot be invoked once for all future prosecutions." McNeil, 501 U.S. at 175, 111 S.Ct. 2204. The issue currently before us is whether the uncharged federal arson offense was the same offense as the state arson offense for Sixth Amendment purposes when Coker confessed to the BATF agents. As Coker notes, both offenses involved the same essential elements of proof. If the two offenses were the same, then Coker's Sixth Amendment right to counsel had attached to the federal offense and was violated when the federal agents interviewed him.

Our resolution of this issue turns on our interpretation of Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001), in which the Supreme Court clarified the meaning of "offense" in the Sixth Amendment context. In Cobb, the defendant confessed to a home burglary but denied knowledge of the simultaneous disappearances of a woman and child from the burglarized home. Id. at 165, 121 S.Ct. 1335. He was indicted for the burglary, had an attorney appointed, and was released on bond. Id. Over a year later, while the burglary charges were still pending, the defendant confessed to his father that he had killed the woman and her child. Id. His father informed the police, who arrested the defendant and advised him of his Miranda rights. Id. The defendant waived these rights, confessed to the murders, and was eventually convicted of capital murder. Id. at 165-66, 121 S.Ct. 1335. The Texas Court of Criminal Appeals reversed the conviction, finding that "the Sixth Amendment's right to counsel had attached on the capital murder charge even though [the defendant] had not yet been charged with that offense" because the murder charge was "factually interwoven with the burglary." Id. at 166, 121 S.Ct. 1335 (internal quotation marks omitted).⁶ The court found that the defendant had asserted his Sixth Amendment right to counsel by accepting appointment of counsel in the burglary case, and therefore deemed the confession inadmissible. Id.

The Supreme Court reversed, rejecting the "factually related" exception to the offense-specific rule. Id. at 172-73, 121 S.Ct. 1335. The Court re-emphasized that the Sixth Amendment is offense-specific and looked to its Fifth Amendment double jeopardy jurisprudence to define the term "offense" in the Sixth Amendment context. Id. The Court applied a test it had articulated in the double jeopardy context in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932): "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Cobb, 532 U.S. at 173, 121 S.Ct. 1335 (internal quotation marks and citation omitted). The burglary and murder charges were separate offenses under the Blockburger test. The Court thus found that the defendant's Sixth Amendment right to counsel had not attached to the murder charge. Id.

In the instant case, the state and federal arson charges contained the same essential elements. Thus, one...