US v. Covarrubias

• Decision Date: 14 June 1999
• Docket Number: No. 98-30167.,98-30167.
• Citation: 179 F.3d 1219
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ascencio Daniel COVARRUBIAS, Juan Luis Ochoa, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

179 F.3d 1219

UNITED STATES of America, Plaintiff-Appellant, v. Ascencio Daniel COVARRUBIAS, Juan Luis Ochoa, Defendants-Appellees.

No. 98-30167.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1999.

Decided June 14, 1999.

Gregory Shogren, Assistant United States Attorney, Yakima, Washington, for plaintiff-appellant.

Richard A. Smith, Smith Law Firm, Yakima, Washington, for defendant-appellee Ascencio Daniel Covarrubias.

Gregory Scott, Law Office of Gregory L. Scott, Yakima, Washington, for defendant-appellee Juan Luis Ochoa.

Before: FLETCHER, REINHARDT, and THOMAS, Circuit Judges.

REINHARDT, Circuit Judge:

This appeal arises out of the questioning of defendants by state and federal officers before and after the appointment of counsel. The arrest of defendants Ascencio Daniel Covarrubias and Juan Luis Ochoa was planned and executed by officers of the Sunnyside Police Department with the assistance of a federal immigration agent. The local police and the federal agent both conducted interrogations of the defendants about possible state and federal crimes. The charges against the defendants, initially filed in state court, were dismissed, and the defendants were subsequently charged in federal court for a different offense, arising out of the same course of conduct.

When federal and state authorities cooperate in arresting a suspect and deciding which jurisdiction will prosecute him, an increasingly common occurrence in an era in which many offenses are made punishable under both state and federal law, they must take care to insure that the suspect's constitutional rights are not violated in the process. Here, such care was not taken, and the result was the breach of the defendants' Sixth Amendment right to counsel. We affirm the district court's decision that the Sixth Amendment violation required suppression of the statements that the defendants made to a federal officer after counsel had been appointed to defend them against the state charges.

BACKGROUND

On December 18, 1997, in return for payment of a few hundred dollars, defendants Covarrubias and Ochoa allegedly drove eight individuals, some of whom may have been undocumented immigrants, from Los Angeles, California to Washington state in Covarrubias's recently purchased van. They dropped off seven of these individuals in Washington state, four in Yakima and three in Mount Vernon. The defendants then brought the last individual, Martin Hernandez, to the arranged location in another Washington city, Sunnyside, but did not drop him off because of a dispute over payment.¹ Although the defendants told the police that Hernandez voluntarily remained with them in the van in order to wait for his wife to raise the money that he owed them, the police had reason to believe that he was being held against his will: Hernandez's wife had contacted the police and told them that the defendants were holding him for ransom. With her cooperation, the police executed a plan to apprehend the defendants. The police gave her $700; she contacted the defendants and told them that she had the money; and they arranged to meet her. When she handed over the money, Hernandez left the van, and the police made the arrests.

The Sunnyside Police Department officers arrested the defendants on the charge of kidnapping Hernandez. Aware that Hernandez was in the country illegally, the officers had previously enlisted the services of INS Special Agent Abe Gonzalez, and he participated in the planning of the arrest of the two defendants as well as the arrest itself.

Covarrubias and Ochoa were taken to the Sunnyside Police Department, where Detective Trevino questioned Covarrubias and Officer Jarin Whitley questioned Ochoa. Both defendants waived their Miranda rights and answered the questions that the police posed about facts relevant to the state kidnapping allegation as well as to the transportation of Hernandez and the other individuals to Washington state.² After the interview, Covarrubias and Ochoa were taken to the Yakima County Jail. The next day, Covarrubias and Ochoa appeared for preliminary hearings on the state kidnapping charge, at which time counsel was appointed for both defendants.

Later that day, Agent Gonzalez visited the Yakima County Jail to interview Covarrubias and Ochoa.³ He interrogated them regarding matters pertinent to each of the charges—the state kidnapping charge and the potential federal charge of transporting illegal aliens.⁴ Agent Gonzalez was subsequently listed as a witness for the state in its prosecution.

However, the state prosecution never really commenced. On February 5, 1998, the state dismissed without prejudice the criminal charges against Covarrubias and Ochoa. The motion and order of dismissal gave the following reason: "Promise of federal prosecution for charge(s) arising out of same incident."⁵ The defendants were immediately transferred into federal custody and, on March 3, 1998, were indicted on two federal charges, one count of transporting and moving an illegal alien in violation of 8 U.S.C. § 1324(a)(1)(B) and a forfeiture count.

The defendants then brought a motion in federal district court to suppress the statements that they had made to Detective Trevino, Officer Whitley, and Agent Gonzalez, on Fifth Amendment, Sixth Amendment, and Vienna Convention grounds. The district court held an evidentiary hearing at which the three law enforcement officers and Ochoa testified.

The district court rejected the defendants' Fifth Amendment and Vienna Convention arguments and denied the motion to suppress the statements that the defendants had given to the Sunnyside police. However, it held the Sixth Amendment claim to be meritorious and ordered the statements to Agent Gonzalez suppressed. The court found that the Sixth Amendment right to counsel had attached to the state kidnapping charge when the defendants were arraigned and counsel was appointed. Recognizing that the Sixth Amendment right to counsel is generally offense-specific, the district court concluded that two exceptions to this rule caused the right to counsel to extend to the federal charges: (1) the federal transporting charge was "intextricably intertwined" with the state kidnapping charge; and (2) by questioning the defendants, who had been arrested and charged as a result of a joint state-federal effort, the federal government had acted to circumvent the defendants' right to counsel. It found that each exception provided an independent basis for suppressing the statements.

The government filed an interlocutory appeal.

DISCUSSION

The Sixth Amendment right to counsel attached to the state kidnapping charge when adversary judicial proceedings were initiated. See United States v. Gouveia, 467 U.S. 180, 187-88, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). We extend strict protections of the right to counsel when "a `suspect' has become an `accused,'" Jackson, 475 U.S. at 632, 106 S.Ct. 1404, because it is at that point "`that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.'" Gouveia, 467 U.S. at 189, 104 S.Ct. 2292 (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)). Once this right attaches, the government may no longer initiate interrogation of a suspect, and even a written waiver of the right to counsel is invalid. See Jackson, 475 U.S. at 635, 636, 106 S.Ct. 1404. However, "the Sixth Amendment right ... is offense specific" and prohibits government initiated interrogation only regarding the offense to which the right to counsel has attached, McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)—in this case, the state kidnapping charge. Applying the Supreme Court's Sixth Amendment right to counsel jurisprudence, appellate courts have recognized two clear exceptions to this offense-specific requirement: the "inextricably intertwined" or "closely related" exception and the "circumvention of Sixth Amendment right" exception. We need consider only the first here.⁶

On the basis of a uniform reading of two Supreme Court cases, every circuit to consider the question, including our own, has recognized that "an exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense." Hines, 963 F.2d at 257 (citing United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir.1991)); see also United States v. Melgar, 139 F.3d 1005, 1013-15 (4th Cir.1998); United States v. Doherty, 126 F.3d 769, 776 (6th Cir.1997); United States v. Arnold, 106 F.3d 37, 42 (3d Cir. 1997); United States v. Kidd, 12 F.3d 30, 33 (4th Cir.1993); United States v. Carpenter, 963 F.2d 736, 740 (5th Cir.1992); United States v. Mitcheltree, 940 F.2d 1329, 1342 (10th Cir.1991); United States v. Nocella, 849 F.2d 33, 37-38 (1st Cir. 1988). But cf. Hellum v. Warden, United States Penitentiary-Leavenworth, 28 F.3d 903, 909 (8th Cir.1994) (acknowledging exception without deciding whether to adopt it).

While the Supreme Court has not expressly adopted the "inextricably intertwined" exception to the offense-specific nature of the Sixth Amendment—or, as some circuits have described it, the "closely related" exception⁷—it has implicitly applied it in its Sixth Amendment decisions. In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the defendant was arraigned on a charge of abduction and transported by police officers to another location. 430 U.S. at 391, 399, 97 S.Ct. 1232. During the car ride, the police officers elicited...