No. 07-5015
In The
SUPREME COURT OF THE UNITED STATES
Brian Dawson,
Petitioner,
v.
United States of America,
Respondent.
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTEENTH CIRCUIT
BRIEF FOR PETITIONER
A
QUESTIONS PRESENTED
I.
Whether the identification of burglary and murder as “separate” offenses in Texas
v. Cobb means that identical federal and state arson charges are also separate
offenses, thus allowing state and federal agencies to cooperate to elicit an
incriminating statement from a suspect after he has invoked his Sixth Amendment
right to counsel.
II.
Whether the notice requirement of Fed. R. Crim. P. 32(h) applies to both
departures and variances when such a requirement is essential to addressing
concerns for basic procedural fairness and when no practical difference exists
between the two terms.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ……………………………………………………………...i
TABLE OF CONTENTS …………………………………………………………….......ii
TABLE OF CITED AUTHORITIES …………………………………………………….v
OPINIONS BELOW ……………………………………………………………………...1
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ………………….1
STATEMENT OF THE CASE …………………………………………………………...1
SUMMARY OF ARGUMENT …………………………………………………………..4
ARGUMENT……………………………………………………………………………...8
I.
THE FIFTEENTH CIRCUIT ERRED IN DETERMINING
THAT IDENTICAL FEDERAL AND STATE OFFENSES
ARE THE “SAME OFFENSE” FOR SIXTH AMENDMENT
PURPOSES BECAUSE SUCH AN INTERPRETATION
ALLOWED SEPARATE GOVERNMENT AGENCIES TO
COLLABORATE AND CIRCUMVENT PETITIONER’S
RIGHT TO COUNSEL WITHOUT CONSEQUENCE. ……………………10
A.
Applying the dual sovereignty exception in a Sixth
Amendment context serves to eviscerate the constitutional
right to counsel when state and federal authorities are
permitted to exploit their dual sovereignty powers without
consequence. …………………………………………………………….11
B.
Because applying the Dual Sovereignty exception defeated
Petitioner’s right to counsel, the exception should not be
incorporated into Sixth Amendment jurisprudence for the
same reasons this Court has refused to apply the exception
to defeat a defendant’s Fourth and Fifth Amendment rights……………12
1. As seen in Fourth Amendment jurisprudence, state police
should not be allowed to sidestep Petitioner’s Sixth
Amendment right and subsequently hand over the fruits
of that constitutional abuse to federal agents on a “silver
platter.” ………………………………………………………………12
ii
2. Supreme Court precedent demonstrates the need to deter
future constitutional abuses. …………………………………………14
3. When wholly incorporating the dual sovereignty exception
jeopardizes a constitutional guarantee, this Court has
correctly added procedural safeguards to ensure that federal
and state authorities are not allowed to manipulate an
individual’s constitutional right. …………………………………….15
C.
Texas v. Cobb did not directly incorporate the dual sovereignty
exception into Sixth Amendment jurisprudence and did not
address a situation where separate sovereigns manipulated their
dual sovereignty to prosecute an identical offense. ……………………..16
1. Cobb dealt with federal and state offenses that were easily
distinguishable and did not foresee the constitutional abuse
practiced by Respondent. ……………………………………………17
2. No other procedural safeguards exist to guarantee Petitioner’s
right to counsel. ……………………………………………………...18
D.
Circuit courts that have incorporated the dual sovereignty
exception have failed to account for the potential loss of a
constitutional right. ……………………………………………………...20
1. An individual’s right to counsel outweighs law
enforcement’s right to investigate crime. ……………………………20
2. The Dual Sovereignty doctrine should not be exploited
to serve as a shortcut to justice. ……………………………………..22
E.
II.
Even if the dual sovereignty exception applies generally in
a Sixth Amendment setting, an exception should be
established when two jurisdictions manipulate their dual
sovereignty and allow one to act as “merely a tool” of the other. ………24
DEFENDANTS MUST RECEIVE NOTICE BEFORE DISTRICT
COURTS CAN IMPOSE A SENTENCE VARIANCE BASED
ON BASIC PROCEDURAL FAIRNESS, DUE PROCESS
CONCERNS AND THE LACK OF ANY PRACTICAL
DIFFERENCE BETWEEN VARIANCES AND DEPARTURES. …………27
A.
Requiring notice for variances is consistent with the mandates
outlined in Burns to provide the defendant a meaningful
opportunity to be heard, promote the adversarial testing of
issues, avoid unfair surprise, and achieve judicial economy. …………...28
iii
1. Notice is essential to fulfill the requirements in Burns
and Rule 32(h) provide the defendant a meaningful
opportunity to be heard. …………………………………………28
2. Providing notice remains the only effective way to test
the varied sentencing factors at issue in 18 U.S.C. § 3553(a) …..29
B.
Because no practical distinction exists between the terms
“variance” and “departure,” the terms should be used
interchangeably. …………………………………………………………31
C.
A Due Process analysis, compulsory under Burns, would also require
notice for variances. ……………………………………………………..32
CONCLUSION ………………………………………………………………………….34
APPENDIX …………………………………………………………………………….A-1
iv
TABLE OF CITED AUTHORITIES
United States Supreme Court Decisions
Bartkus v. Illinois, 359 U.S. 121 (1959) ...................................................................... 24-26
Blockburger v. United States, 284 U.S. 299 (1932) ........................................ 10-11, 16, 18
Burns v. United States, 501 U.S. 129 (1991) ............................................................... 27-34
Gideon v. Wainwright, 372 U.S. 335 (1963). ........................................................... 8, 9, 12
Heath v. Alabama, 474 U.S. 82 (1985) ............................................................................. 10
Maine v. Moulton, 474 U.S. 159 (1985). .......................................................... 9, 15, 22, 26
Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................................. 33-34
McNeil v. Wisconsin, 501 U.S. 171 (1991) .................................................................. 9, 23
Messiah v. United States, 377 U.S. 201 (1964) ...................................................... 8, 19, 22
Miranda v. Arizona, 384 U.S. 436 (1966). .............................................. 8, 9, 12, 17, 19-23
Powell v. Alabama, 287 U.S. 45 (1932) ........................................................................ 8 12
United States. v. Booker, 543 U.S. 220 (2005)...................................................... 27-32, 35
United States. v. Lanza, 260 U.S. 377 (1922).............................................................. 10-11
Weeks v. United States, 232 U.S. 383 (1914). ................................................................. 20
Federal Courts of Appeals Decisions
United States v. Avants. 278 F.3d 510 (5th Cir. 2001). .............................................. 22-24
United States v. Coker, 433 F.3d 39 (1st Cir. 2005).............................................. 20-22, 24
United States v. Cousins, 469 F.3d 572 (6th Cir. 2006) ............................................. 27, 30
United States v. Davenport, 445 F.3d 366 (4th Cir. 2006) ................................... 27, 29, 31
United States v. Dozier, 444 F.3d 1215 (10th Cir. 2006) ...................................... 27, 31-33
United States v. Evans-Martinez, 448 F.3d 1163 (9th Cir. 2006) .................................... 33
v
United States v. Guzman, 85 F.3d 823 (1st Cir. 1996). .................................................... 26
United States v. Liddy, 542 F.2d 76 (D.C. Cir. 1976). ..................................................... 25
United States v. Mejia-Huerta, 480 F.3d 713 (5th Cir. 2007); ......................... 27-28, 31-32
United States v. Mills, 412 F.3d 325 (2d Cir. 2005) ........................................ 10, 17-22, 24
United States v. Trammell, 133 F.3d 1343 (10th Cir. 1998) ....................................... 24-25
United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006). ................................ 27, 31
Constitutional Provisions, Statutes, and Rules
U.S. Const. amend. VI ................................................................................................... 8-26
18 U.S.C. § 3553(a). .................................................................................................... 29-30
Fed. R. Crim. P. 32(h) .................................................................................................. 27-34
Fed. R. Crim. P. 32(i)................................................................................................... 28-29
vi
OPINIONS BELOW
The record of Petitioner’s conviction and sentence in the United States District
Court has not been reported but appears in the Transcript of Record. (R. 1-5). The
opinion of the United States Court of Appeals for the Fifteenth Circuit has not been
reported but appears in the Transcript of Record. (R. 1-6). The order granting writ of
certiorari by the United States Supreme Court is in the Transcript of Record. (R. 6).
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
The following Constitutional provisions and statutes are significant to the
outcome of this case: U.S. Const. amend. VI; 18 U.S.C. § 3553(a); Fed. R. Crim. P.
32(h). (App. A-1, A-2).
STATEMENT OF THE CASE
After Brian Dawson was arrested under a state arson statute, he refused to talk to
police. (R. 2). The local prosecutor reviewed the evidence against Dawson and found
that the case against Dawson to be largely circumstantial. Id. Evidence from a traffic
stop put Dawson near the E Street apartment house fifteen minutes after a fire was
reported there. (R. 1). Through interviews, police also learned that Dawson was
embarrassed after losing a bar fight with several men, and the grandmother of one of the
men lived in the apartment house. (R. 1-2).
The prosecutor told officers that if they had obtained a confession from Dawson,
the chance of a conviction would have been much greater. (R. 2). Nonetheless, believing
she had a reasonable chance for conviction, the prosecutor formally charged Dawson
with the state arson offense, which criminalized maliciously damaging or destroying a
building using fire or explosives. Id.
1
Consistent with his Sixth Amendment right, Dawson retained counsel and
remained in jail following his arraignment. (R. 2). Several weeks later, police arrested
another man, Ryan Ratz, on forgery charges. Ratz immediately told police he wanted to
make a deal to get himself off the hook and that he had information about a person who
committed an arson and assault. Id. Ratz offered police a few new details, telling police
that because Dawson was embarrassed after losing a fight with several men, Dawson
attempted to run one of the men off the road and started the fire at the apartment. Id.
Police decided they needed more information and realized if they could use Ratz,
they could bolster their circumstantial case against Dawson. (R. 2). But police and
prosecutors knew they would violate Dawson’s Sixth Amendment right if they
interrogated him after he had retained counsel and refused to talk. Id.
One prosecutor hatched a plan to bypass this constitutional problem by bringing
the case to the attention of federal law enforcement. Id. State authorities believed that
because Dawson had not been charged with a federal crime, federal agents could open
their own investigation and use Ratz to elicit incriminating statements from Dawson for
their own case. Id.
State police approached federal agents from the Division of Alcohol, Tobacco and
Firearms and told them about their plan for federal authorities to build a new and stronger
case against Dawson for the arson. Id. Federal agents agreed to start their own
investigation using Ratz. (R. 2-3).
Another obstacle to the plan was the fact that Dawson remained in jail. (R. 2).
As a result, prosecutors decided to allow Dawson to be released by not opposing his
pending motion to reduce his bail. (R. 2). After Dawson was released, federal agents put
2
a wire on Ratz, who elicited incriminating statements from Dawson about both the arson
and an assault. (R. 3).
In response, state officials took action, choreographing their efforts with federal
agents. (R. 3). State police revoked Dawson’s bond and rearrested him while federal
authorities obtained an indictment against Dawson on a federal arson charge. Id. The
state then charged Dawson with assault and dismissed the state arson charge. Id.
The federal arson case went to trial and Dawson moved to suppress the
incriminating statements from Ratz because they were obtained in violation of his Sixth
Amendment right to counsel. (R. 3). The trial court denied the motion, agreeing with the
government that the state and federal arson offenses were separate offenses under Texas
v. Cobb, and that Dawson’s right to counsel attached only to the state charge. Id. As a
result, Dawson was convicted. Id.
Dawson subsequently entered into a plea agreement on the state charge, where he
agreed to plead guilty to a reduced charge of assault and receive a one-year sentence,
which he would serve concurrently with his federal sentence. (R. 3). For the federal
arson charge, authorities prepared a Presentence Report (PSR), which showed a guideline
calculation of 63 to 78 months for the federal charge and reflected the time Dawson
would serve for the state charge. Id.
At the federal sentencing hearing, Dawson and the government had an
opportunity to present witnesses and information relating to an appropriate sentence. The
judge imposed a sentence of 96 months. (R. 3). Acknowledging that the sentence was
higher than the maximum permitted by the advisory guidelines, the judge said she
believed the increased sentence was necessary based on the factors set forth in 18 U.S.C.
3
§ 3553(a). Id. She said her decision was based on the extreme risk of harm that had been
created by the serious crime, the need for deterrence because Dawson had told Ratz he
wanted to get back at his intended victims and to better reflect Dawson’s criminal history,
including the state charge. Id. Additionally, the judge said she believed the increased
sentence was necessary to protect the intended victims and the public from a dangerous
criminal. (R. 3-4). Dawson objected to the judge’s failure to provide notice that she
intended to impose a higher sentence. (R. 4). But the judge overruled the objection,
stating that she was not required to provide such notice. Id.
Dawson appealed his conviction and sentence, and the Fifteenth Circuit affirmed
both. (R. 4). Recognizing that the government may not “intentionally create a situation
likely to elicit an incriminating response from a defendant relating to the same offense,”
the court ruled that the federal and state arson charges were not the same offense under
Texas v. Cobb and that Dawson’s right to counsel had not attached to the federal charge.
Id. Regarding Dawson’s appeal on the judge’s failure to provide notice, the court held
that no notice was required under the current sentencing scheme. (R. 4-5). This Court
granted Dawson’s petition for certiorari. (R. 6).
SUMMARY OF ARGUMENT
Because of injustices practiced on individuals in this country’s formative years,
courts and Congress developed constitutional and procedural safeguards to protect
citizens from oppressive governments. The goal was to create a fair and balanced system
– to help lift up individuals to the same level as the sizable government institutions they
faced. These protections include providing notice to those facing prosecution and
punishment, so that they can mount an informed defense and contribute to a balanced
4
proceeding. Another protection – boldly provided for in the Bill of Rights – is the right
for the accused to have counsel. In the present case, Brian Dawson was stripped of both
of these time-honored protections.
The abuse of power that led to Dawson losing his constitutional right to counsel
came about because of a mistaken interpretation of Texas v. Cobb. In Cobb, this Court
set forth a limitation on the right to counsel, stating that a defendant cannot invoke the
right when accused of one offense and expect that the protection extends to investigations
of all future, separate offenses. Thus, when Cobb invoked his right to counsel for a
burglary charge, authorities were free to interrogate him later on a related murder charge
without violating his Sixth Amendment right. Cobb affirmed the test from Blockburger
v. United States to determine whether closely related offenses should be considered the
same for Sixth Amendment purposes. The Blockburger test provides for an exception
allowing federal and state governments investigating the same offense to treat their
investigations as separate because of their dual sovereignty.
But in accepting this test, the Cobb Court did not address the narrow factual
situation where two government agencies exploit their dual sovereignty to destroy an
individual’s constitutional protections. In the present case, state police failed to build a
strong case against Dawson on an arson charge before he invoked his right to counsel.
State police wanted to interrogate Dawson further but knew they were prohibited from
doing so by the Sixth Amendment. As a result, state officials went to federal agents to
encourage them to start their own investigation into the arson so they could circumvent
Dawson’s Sixth Amendment guarantee.
5
This Court has refused to allow the dual sovereignty doctrine to defeat a
defendant’s Fourth and Fifth Amendment rights. For example, state and federal
governments are not allowed to cooperate to make an unlawful search and seizure and
then benefit from that constitutional abuse. The same protection should exist for the right
to counsel.
Circuit courts that have incorporated the dual sovereignty doctrine for Sixth
Amendment purposes are misguided because they dealt with factual situations where
other procedural safeguards, such as Miranda warnings, protected individuals. Dawson
received no such protection when state and federal authorities conspired to release him
from jail and elicit incriminating statements from him using an informant. Such an
interpretation not only creates an unconscionable constitutional loophole but also
encourages law enforcement to disregard the right to counsel without consequence.
Even if the dual sovereignty doctrine is applied generally in a Sixth Amendment
setting, an exception must be established to protect individuals when two governments
exploit their dual sovereignty. The government is obligated not to circumvent an
individual’s right to counsel and dilute his constitutional protection. The present case
presents the exceptional circumstance where the state set out to use federal agents as a
“tool” to make up for its inferior investigation, thereby thwarting Dawson’s right to
counsel.
Similarly, the procedural safeguard of notice should be required when sentencing
defendants to guarantee the basic fairness of the proceeding. In Burns v. United States,
this Court mandated notice in any instance where an individual faced the loss of liberty.
The notice requirement is as important under the current sentencing scheme as it was
6
under the mandatory guidelines, despite a trivial change in terminology from “departure”
to “variance.”
Courts not only are required to provide notice, but more importantly, they are
required to give defendants a meaningful opportunity to be heard at sentencing hearings.
If a judge intends to impose a sentence higher than the maximum allowed by guidelines,
the only way the accused can prepare a meaningful response is by allowing him to know
in advance the specific grounds for the increased sentence. Because judges may consider
several wide-ranging factors from 18 U.S.C. § 3553(a) when deciding on a sentence term,
defendants cannot reasonably be expected to prepare a meaningful response to every
single potential ground for a variance.
Courts that have narrowly interpreted Fed. R. Crim. P. 32(h) as applying only to
departures are misguided because they fail to take into account the due process
requirements this Court set forth in Burns. That analysis is compulsory and would dictate
notice for all variances because defendants’ liberty interest substantially outweighs the
government interest involved. Also, the potential for erroneously depriving a defendant
of his liberty increases greatly when a defendant is unable to adequately prepare a
defense. Without notice, defendants would be placed in the impracticable situation of
having to guess the court’s grounds for a variance, and if they guess incorrectly, to
instantly come up with a haphazard response. Such a practice flies in the face of
concerns for fundamental procedural fairness.
Because the dual sovereignty doctrine allows separate sovereigns to abuse an
individual’s right to counsel and because notice is essential to guaranteeing the basic
7
fairness of a sentencing hearing, this Court should reverse the judgment of the Fifteenth
Circuit on both grounds and remand for further proceedings.
ARGUMENT
I.
THE FIFTEENTH CIRCUIT ERRED IN DETERMINING THAT
IDENTICAL FEDERAL AND STATE OFFENSES ARE THE “SAME
OFFENSE” FOR SIXTH AMENDMENT PURPOSES BECAUSE SUCH
AN INTERPRETATION ALLOWED SEPARATE GOVERNMENT
AGENCIES TO COLLABORATE AND CIRCUMVENT PETITIONER’S
RIGHT TO COUNSEL WITHOUT CONSEQUENCE.
From the time the framers enacted the Sixth Amendment in 1798, courts have
been called upon to safeguard the right to counsel against oppressive governments
seeking to erode the right in the name of law enforcement. See, e.g., Messiah v. United
States, 377 U.S. 201 (1964) (holding that an informant’s secret interrogation of a
defendant who invoked his right to counsel contravened basic dictates of fairness);
Powell v. Alabama, 287 U.S. 45, 71 (1932) (finding that the failure to appoint counsel
was a clear denial of due process). This Court has recognized that the right to counsel is
an individual’s “most important privilege” and “vital and imperative.” Powell, 287 U.S.
at 70-71. In 1963, the right to counsel was extended to every defendant in the United
States because “lawyers in criminal courts are necessities not luxuries.” Gideon v.
Wainwright, 372 U.S. 335, 344 (1963). “From the very beginning, our state and national
constitutions and laws have laid great emphasis on procedural and substantive safeguards
designed to assured fair trials before impartial tribunals in which every defendant stands
equal before the law.” Id.
Courts deem the right to counsel as so fundamental that it attaches as soon as
police take an individual into custody for questioning. Miranda v. Arizona, 384 U.S. 436,
474 (1966). The Miranda decision demonstrates that an individual who is suspected of a
8
crime, isolated from counsel and outnumbered by his interrogators, sits in a position
comparable to David in his epic battle against Goliath. To maintain a fair balance
between the government and the defendants, this Court called on the government to
produce evidence against a defendant “by its own independent labors, rather than by the
cruel, simple expedient of compelling it from [a defendant’s] own mouth.” Id. at 460.
Miranda recognizes that law enforcement officials are not only capable – but also
expected – to successfully investigate and prosecute crimes without abusing a suspect’s
constitutional rights.
The Sixth Amendment right to counsel has limitations which adequately
safeguard law enforcement’s right to do its job. For instance, a defendant cannot invoke
his right to counsel when charged with one offense and have the right apply to all future
prosecutions. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). In other words, the right
is “offense-specific.” Id. But when a defendant has invoked his right to counsel for a
specific offense, the government is prohibited from manipulating a situation to elicit
incriminating statements from him relating to that singular offense. Maine v. Moulton,
474 U.S. 159, 170 (1985). Recalling Gideon, the Court in Moulton, avowed that to
“deprive a person of counsel during the period prior to trial may be more damaging than
denial of counsel during the trial itself.” Id.
In the present case, state authorities assembled a weak case against Dawson and
collaborated with federal authorities to circumvent Dawson’s Sixth Amendment right to
counsel to bolster their evidence. (R. 2). Because Dawson had invoked his right to
counsel when he was charged with the state arson offense, state officials believed that an
identical federal offense would be considered separate from the state offense and that
9
federal authorities could question Dawson about the arson without trampling his
constitutional right. Id.
That practice is grounded in a mistaken interpretation of Texas v. Cobb, which
held that the right to counsel attaches to offenses considered the same under the
Blockburger test.” 532 U.S. 162, 173 (2001) (citing Blockburger v. United States, 284
U.S. 299, 304 (1932)). Under Blockburger, two offenses are considered to be separate if
any element of proof for the two offenses is different. 284 U.S. at 304. The offenses of
burglary and murder would be considered separate, for example, while the state offense
of gun possession and the federal offense of gun possession would be considered the
same. Cobb, 532 U.S. at 174; United States v. Mills, 412 F.3d 325, 328 (2d Cir. 2005).
The dual sovereignty doctrine presents an exception to the Blockburger formula,
allowing identical state and federal statutes to be considered distinct. See Heath v.
Alabama, 474 U.S. 82 (1985). Because such an interpretation not only creates an
unconscionable constitutional loophole but also encourages law enforcement to disregard
the right to counsel without consequence, the judgment of the Fifteenth Circuit should be
reversed.
A.
Applying the dual sovereignty exception in a Sixth Amendment context
serves to eviscerate the constitutional right to counsel when state and
federal authorities are permitted to exploit their dual sovereignty powers
without consequence.
The dual sovereignty doctrine developed out of litigation where defendants
argued that their Fifth Amendment right against double jeopardy was violated when state
and federal governments were allowed to prosecute and subsequently punish them for the
same offense. In United States v. Lanza, the Supreme Court held that double jeopardy
protections were not violated because “an act denounced as a crime by both national and
10
state sovereignties is an offense against the peace and dignity of both and may be
punished by each.” 260 U.S. 377, 382 (1922). The purpose of the dual sovereignty
doctrine is to allow each government to hold an individual accountable for an act that
affects both the state and federal realms and to allow both sovereignties to exercise
control without awarding one “paramount jurisdiction.” Id. at 384 (quoting Cross v.
North Carolina, 132 U.S. 131, 139 (1889)).
That Fifth Amendment purpose is served when state and federal governments are
required to abide by an individual’s Sixth Amendment right to counsel. Both the state
and federal governments are entitled to separately investigate, prosecute and punish a
defendant for the alleged arson under their separate laws. But a constitutional problem
with the dual sovereignty doctrine arises when the exception is applied in a Sixth
Amendment setting because it allows state and federal authorities to conspire to use their
right of dual sovereignty to sidestep an individual’s right to counsel and their procedural
responsibilities as law enforcement officers.
State officers knew they could not deliberately elicit any incriminating statements
from Dawson after he was charged with the state offense and obtained counsel, so they
turned to federal agents to exploit their dual sovereignty. (R. 2). Dawson had invoked
his Sixth Amendment right and refused to talk to state officers about the alleged arson,
but federal agents decided that protection could be ignored if they opened their own
investigation. Id. Using an informant who promised to obtain a confession from Dawson
in exchange for his own freedom in an unrelated matter, federal agents elicited damaging
statements from Dawson and moved to prosecute him in a federal forum. (R. 2-3).
11
Before federal investigators became involved in Dawson’s case, state
prosecutors’ evidence against him was “largely circumstantial.” (R. 2). The prosecutor
told state officers that a confession would improve the state’s chances of success at trial.
(R. 2). By exploiting their dual sovereignty, federal and state agents were able to evade
the right to counsel demanded by a long line of Supreme Court cases. See Miranda, 384
U.S. at 436; Gideon, 372 U.S. at 335; Powell, 287 U.S. at 45.
In addition, by allowing the federal prosecution to proceed and dismissing the
state charges, state authorities were further allowed to circumvent the penalty courts have
fashioned to address Sixth Amendment violations. Courts at every level enforce the right
to counsel and seek to deter police from abusing it by refusing to admit any statements
obtained in violation of the right. See Michigan v. Jackson, 475 U.S. 625, 636 (1986)
(holding that police interrogations violate the Sixth Amendment when investigators
obtained confessions after suspects asked for counsel but before counsel arrived). For
example, if police start to interrogate a suspect after he has asserted his right to counsel at
a proceeding, “any waiver of the defendant’s right to counsel for that police-initiated
interrogation is invalid.” Id. Accordingly, respondent should be required to account for
its actions and Dawson’s statements to the informant should be suppressed.
B.
Because the Dual Sovereignty exception defeats a defendant’s right to
counsel, the exception should not be incorporated into Sixth Amendment
jurisprudence for the same reasons this Court has refused to apply the
exception to defeat a defendant’s Fourth and Fifth Amendment rights.
1. State police should not be allowed to sidestep Petitioner’s right to
counsel and subsequently hand over the fruits of that constitutional
abuse to federal agents on a “silver platter.”
Just as incorporating the dual sovereignty exception into Sixth Amendment
jurisprudence creates procedural and practical consequences, the exception would also
12
defeat individual’s rights when applied in Fourth and Fifth Amendment contexts. As a
result, the Supreme Court has refused to apply the doctrine when individuals’
constitutional rights would be trampled. In Elkins v. United States, for example, this
Court effectively overruled what had become known as the “silver platter” doctrine in
search and seizure cases. 364 U.S. 206, 208 (1960). Similarly, in Murphy v. Waterfront
Comm’n, the Court held that because a witness for the state was protected by the Fifth
Amendment privilege against self incrimination, federal officials were barred from using
the witness’ compelled testimony and the fruits of the witness’ statements. 378 U.S. 52,
79 (1964).
In Elkins, where this Court saw fit to safeguard an individual’s Fourth
Amendment right, state police officers obtained a search warrant by testifying “upon
information and belief” that the defendants possessed obscene movies. 364 U.S. at 206.
Lower courts found the warrant invalid and the subsequent search to be unreasonable. Id.
As a result, state prosecutors were barred by the exclusionary rule from admitting the
evidence. Id. at 208. But lower courts allowed federal authorities – who were not
involved in the state search – to use the state’s evidence in their own prosecution despite
defendants’ motion to suppress. Id. at 207-08. This Court reversed, holding that the
evidence was inadmissible and that federal courts must make independent inquiries to
determine whether evidence is obtained through an unreasonable search and seizure. Id.
at 223.
With its holding in Elkins, this Court overruled what had become known as the
“silver platter” doctrine, under which state officials were allowed to hand over unlawfully
seized evidence to federal officials on a “silver platter.” Id. at 208. In the same way,
13
state and federal agents in the present case manipulated Dawson’s situation to unlawfully
obtain incriminating statements from him with the intention of giving the information to
federal prosecutors on a “silver platter.” Accordingly, federal investigators should not be
able to take advantage of a constitutional abuse, and the informant’s statements against
Dawson should be suppressed.
2. Supreme Court precedent demonstrates the need to deter future
constitutional abuses.
The Court in Elkins found the silver platter doctrine unacceptable in part because
it was at odds with the Fourth Amendment assurance to keep the government “under
limitations and restraints as to the exercise of [its] power and authority.” Id. at 209. The
Court warned of decisions that would confine the right or and make it of “no value” and
essentially “stricken from the Constitution.” Calling upon the reasoning in Weeks v.
United States, which established the exclusionary rule remedy for unlawful searches and
seizures, the Elkins Court noted the importance of focusing on the effect of constitutional
rulings. Id. (citing Weeks v. United States, 232 U.S. 383, 393 (1914).
The efforts of the courts and their officials to bring the guilty to
punishment, praiseworthy as they are, are not to be aided by the sacrifice
of those great principles established by years of endeavor and suffering
which have resulted in their embodiment in the fundamental law of the
land.
Id. The Elkins Court further found that the exclusionary rule was not directed at
the individual misconduct of law enforcement. Rather, the rule was meant to deter all
law enforcement from abusing individuals’ constitutional guarantees. Accordingly, the
Elkins Court held that the protection should be enforced against both state and federal
officials – even when they are not collaborating with each other. Id. at 217 (emphasis
added).
14
The rule proposed to protect the constitutional rights of Dawson and similarly
situated defendants is not as far-reaching and instead would apply only when federal and
state authorities are cooperating to elicit incriminating statements from an individual on
identical state and federal charges. As suggested by Elkins, the rule would create a
protection to ensure that separate jurisdictions respect a defendant’s right to counsel when
conducting a joint effort. Protecting against future abuses is as important as safeguarding
Dawson’s constitutional guarantee in the present case. See Moulton, 474 U.S. at 180.
Like in Moulton, allowing the state and federal agents to exploit their dual sovereignty
“invites abuse by law enforcement personnel in the form of fabricated investigations and
risks the evisceration of the Sixth Amendment right recognized in Massiah.” Moulton,
474 U.S. at 180.
3. When wholly incorporating the dual sovereignty exception jeopardizes
a constitutional guarantee, this Court has correctly added procedural
safeguards to ensure that federal and state authorities are not allowed
to manipulate an individual’s constitutional right.
Similarly, this Court has recognized the need to consider federal and state
jurisdictions as the same sovereign for Fifth Amendment purposes when the guarantee
against self incrimination would be jeopardized. In Murphy v. Waterfront Comm’n, this
Court held that a state witness who has been granted immunity by state officials cannot
be forced to give testimony that might incriminate him in a federal case unless federal
prosecutors are prohibited from using the testimony to build a case against the witness.
378 U.S. 52, 79 (1964). If federal prosecutors go forward with a case against the state
witness on matters relating to his testimony, the burden is on federal prosecutors to
establish that they have an independent and legitimate source for the evidence against
him. Id. Similarly, the burden should be on state police in Dawson’s case to demonstrate
15
that they could successfully prosecute Dawson without the evidence federal agents
obtained by abusing his constitutional right to counsel.
By focusing on the procedurally unfair result of applying a dual sovereignty
exception, this Court correctly concluded that incorporating the doctrine in all Fifth
Amendment jurisprudence would defeat an individual’s constitutional guarantee. Such a
result could not be tolerated. Accordingly, a rule defeating petitioner’s Sixth Amendment
right also cannot be tolerated and the judgment of the Fifteenth Circuit should be
reversed.
C.
Texas v. Cobb did not directly incorporate the dual sovereignty exception
into Sixth Amendment jurisprudence and did not address a situation where
separate sovereigns manipulated their dual sovereignty to prosecute an
identical offense.
Because the Texas v. Cobb decision rests on facts that are wholly distinguishable
from Dawson’s case, it does not address the narrow situation of dual sovereignty. The
decision also does not take into account the practical consequences of applying the
exception in a Sixth Amendment setting. Cobb held that the right to counsel is offense
specific. 532 U.S. at 167-68. Thus, where a defendant had invoked his right to counsel
on a burglary charge, he could not carry over that protection when the same sheriff’s
officials started investigating him on a related murder charge. Id. at 168. The relevant
test to determine whether the same act is considered to violate two distinct statutory
provisions comes from Blockburger, which stated that two offenses are considered
separate if one offense requires proof of a fact that the second offense does not. Id.
(citing Blockburger v. United States, 284 U.S. 299 (1932)). Accordingly, burglary and
murder were considered separate offenses.
16
1. Cobb dealt with federal and state offenses that were easily
distinguishable and did not foresee the constitutional abuse practiced
by Respondent.
The facts in Cobb are irreconcilable from those in petitioner’s case, and
accordingly, the need to safeguard the right to counsel varies as well. In Cobb, the
defendant was arrested for burglary, appointed counsel and released on bond. 532 U.S. at
165. While free on bond, the defendant told his father that he murdered a woman and her
baby during the burglary, and the father reported the confession to police. Id.
Investigators arrested the defendant again, and after he waived his Miranda rights, he
confessed to the murders. Id. at 165-66. Lower courts found the admission to
investigators inadmissible because the murder charges were “very closely related
factually” to the burglary charge, for which the defendant had already invoked his right to
counsel. Id. at 167.
But the Supreme Court correctly reversed, holding that the confession was
admissible because an individual cannot invoke his right to counsel once and then have it
be invoked “for all future prosecutions.” Id. Unlike the identical arson charges in
Dawson’s case, the distinction between the burglary and the murder charges against Cobb
was plainly apparent and thus did not require analysis of the dual sovereignty doctrine.
Further, because the Court was not faced with a question relating to dual sovereignty and
the special implications of the doctrine, the question of whether the exception should be
applied to an individual’s right to counsel was left unresolved.
The first court of appeals to address the dual sovereignty issue and a factual
situation comparable to Dawson’s held that authorities cannot violate a defendant’s right
to counsel when investigating the same federal and state charge. United States v. Mills,
17
412 F.3d 325, 328 (2d Cir. 2005). Following the reasoning in Cobb, the Second Circuit
ruled that the right to counsel “extends to offenses considered to be the ‘same offense,’”
even though different sovereigns are prosecuting the offenses. Id. at 327. The court
concluded that statements taken in violation of the defendant’s Sixth Amendment right as
attached to a state firearm violations charge could not be admitted in the federal
prosecution for the same charge. Id. at 328.
The Mills court correctly held that the Blockburger test cited in Cobb does not
automatically incorporate the dual sovereignty exception. Id. at 330. In fact, the court
noted the practical consequences of using the doctrine in the Sixth Amendment setting.
The test is used simply to define identity of offenses. Where, as here, the
same conduct supports a federal or a state prosecution, a dual sovereignty
exception would permit one sovereign to question a defendant whose right
to counsel had attached, to do so in the absence of counsel and then to
share the information with the other sovereign without fear of suppression.
We easily conclude that Cobb was intended to prevent such a result.
Id. Because Cobb did not address a situation where separate sovereigns manipulated the
dual sovereignty doctrine to violate an individual’s constitutional right, the constitutional
loophole state police abused in the present case was not foreseen.
2. No other procedural safeguards exist to guarantee Petitioner’s right to
counsel.
The facts in Mills further demonstrate why the court made a decision that in
essence protected a defendant from over-reaching investigators. Mills was charged with
a state gun offense after the shooting of a police officer and he retained an attorney.
Mills subsequently talked with federal investigators about a similar federal gun offense,
but testimony on what took place before and during the interview is conflicting and raised
concerns over procedural fairness. Mills insisted he was told that he was not a suspect
18
and that he was never told officers were investigating the shooting of a police officer. Id.
at 327.
In addition, Mills argued that he was not advised of his Miranda rights, that his
“statements were involuntary because he was tricked by the interviewing police,” and
that the statements were obtained in violation of his right to counsel. Id. at 328. In
contrast, the defendant in Cobb agreed to talk with police about the second offense and
waived his Miranda rights. 532 U.S. at 165. As a result, he was afforded a minimum
protection when he had the opportunity to consult with counsel. Dawson was refused
that same safeguard when he was trapped in a conversation with the informant, Ratz.
In fact, Dawson was forced into the same objectionable position as Messiah, who
was tricked into a secret interrogation with an informant after he retained counsel and
was released on bail. The Court held that investigators denied Messiah the basic
protections of the Sixth Amendment when they recorded a conversation between Messiah
and an informant after Messiah had retained counsel. Messiah, 377 U.S at 206. The
Court pointed to the fact that the secret interrogation further infringed on Messiah’s
rights: “In this case, Messiah was more seriously imposed upon . . . because he did not
even know that he was under interrogation by a government agent.” Id.
Similar to the guarantee established by this Court in Messiah, the Second Circuit
recognized that defendants like Dawson have no protection against federal authorities
who blatantly ignore their right to counsel to elicit incriminating statements and then turn
over any incriminating evidence to state officials investigating the same crime. Id.
Applying the dual sovereignty exception to a defendant’s right to counsel blatantly
abuses a constitutional guarantee and should not be allowed.
19
D.
Circuit courts that have incorporated the dual sovereignty exception have
failed to account for the potential loss of a constitutional right.
Circuits that have applied the dual sovereignty doctrine to the Sixth Amendment
have failed to take into account that separate sovereigns can manipulate their dual power
and breach basic constitutional dictates of fairness. The First Circuit conceded in United
States v. Coker that the Supreme Court left open a question about whether the dual
sovereignty exception applied to the right to counsel. 433 F.3d 39, 43 (1st Cir. 2005).
But the First Circuit then incorrectly inferred from Cobb that the same rule on dual
sovereignty should apply in both Fifth and Sixth Amendment contexts. Id. at 44-45. The
court found that because Coker could properly be prosecuted by state and federal
authorities without violating his protection against double jeopardy, then federal
authorities also did not violate Coker’s right to counsel when they questioned him after
he retained counsel for an identical state charge. Id. at 45.
1. An individual’s right to counsel outweighs law enforcement’s right to
investigate crime.
The Coker court focused on the statement in Cobb that the Court sees “no
constitutional difference between the meaning of the term ‘offense’ in the contexts of
double jeopardy and of the right to counsel.” 433 F.3d at 44 (citing Cobb, 532 U.S. at
173). But defining the term “offense” is merely the first part of a two-step analysis. The
second part of the analysis, as the Second Circuit correctly pointed out, requires a
determination of whether the dual sovereignty doctrine should be incorporated into Sixth
Amendment jurisprudence. Mills, 412 F.3d 330. By looking that the practical
consequence that a defendant would lose his Sixth Amendment protection if federal and
20
state authorities were allowed to collaborate, the Second Circuit correctly held that the
dual sovereignty exception could not apply. Id.
The First Circuit failed to take note of this constitutional loophole. Instead, the
court reasoned that reasoned that defendants would not be stripped of their right to
counsel if the dual sovereignty exception applied because defendants would still be
advised of their Miranda rights and because society has an interest in police being able to
talk to witnesses and suspects “even those who have been charged with other offenses.”
433 F.3d at 45.
But this reasoning is supported only by the narrow factual situation in Coker,
where the defendant received some protection from the Miranda provisions. Dawson’s
rights and those of similarly situated defendants are not protected. When there’s no
custodial interrogation, no Miranda protection applies, thus allowing authorities to strip a
defendant’s Sixth Amendment protection when they use an informant.
No one gave Dawson the right to counsel when he was tricked into a conversation
with an informant. (R. 2-3). Conversely, in Coker, federal agents went to Coker’s house
to question him, despite knowing that he had obtained counsel for the same charges in the
state case. 433 F.3d at 41. But Coker then not only agreed to the interview but he also
agreed to drive his own car to a nearby firehouse, where the federal agents had a satellite
office. Id. Before beginning the question, agents gave read Coker his Miranda rights and
gave him a copy of the rights. During a ninety-minute interview, Coker confessed. Id.
In the present case, Dawson was never told he was being interrogated in relation
to a police investigation or that he had any right to counsel or to remain silent. The myth
purported by the Coker court that defendants are protected by Miranda provisions when
21
the dual sovereignty exception applies is unavailing. The rationale provided by this
Court in Messiah is more applicable because investigators “seriously impose[]” on an
individual’s constitutional right to counsel when he is oblivious to the fact that he is
under investigation. Messiah, 377 U.S at 206. The only way to ensure that a defendant’s
Sixth Amendment right will be protected is to follow the Mills reasoning and find that the
dual sovereignty exception is unworkable in Sixth Amendment jurisprudence.
2. The Dual Sovereignty doctrine should not be exploited to serve as a
shortcut to justice.
The government has an “affirmative obligation” to avoid acting in a way that
would dilute an individual’s constitutional rights. Moulton, 474 U.S. at 171. The Fifth
Circuit failed to take into consideration this obligation and the consequences of the state
breaching this obligation in United States v. Avants. 278 F.3d 510 (5th Cir. 2001). The
facts in the Avants case are distinguishable from both Mills and the present case, which
may account for the court’s short-sighted reasoning. In both Coker and Avants, the
defendants were offered some procedural protection when they voluntarily submitted to
an interview and waived their Miranda rights. No similar procedural safeguards were in
effect to protect Mills or the petitioner.
In Avants, the defendant was indicted in 1967 for killing a man named Ben
White. 278 F.3d at 513. While Avants was free on bond for the state murder charge, FBI
agents interviewed him about an entirely different murder – without the counsel
appointed to him for the White murder. Id. Avants confessed to murdering White to the
FBI agents, but the agents did not follow up on his statements. Id. Subsequently, Avants
was acquitted in state court of murdering White. Id. at 513-14.
22
More than 30 years later, federal authorities decided to prosecute Avants for
White’s murder. Id. Avants moved to suppress the confession on the grounds that it
violated his right to counsel because the state and federal offenses should be considered
the same offense for Sixth Amendment purposes. Id. at 514. With a brief analysis
similar to the First Circuit’s in Coker, the Fifth Circuit found that Avants’ right to counsel
had not attached to the federal charge. Id. at 517.
Such a decision allows police to sidestep their investigatory obligation and goes
far beyond the need to safeguard the right of police to question willing witnesses and
suspects and to serve society and solve crimes. In rejecting a defendant’s argument to
broaden his Sixth Amendment rights, this Court in McNeil v. Wisconsin found that a rule
that would prevent police from questioning individuals in custody would fail to serve
society. 501 U.S. 171, 181 (1991). “[T]he ready ability to obtain uncoerced confessions
is not an evil but an unmitigated good. . . . Admissions of guilt resulting from valid
Miranda waivers are more than merely desirable; they are essential to society’s
compelling interest in finding, convicting, and punishing those who violate the law.” Id.
(quoting Moran v. Burbine, 475 U.S. 412, 426 (1986) (internal quotations omitted)).
But those noble societal goals would still be served under the rule proposed by
petitioner, which states that when two jurisdictions cooperate to elicit incriminating
information and exploit their right of dual sovereignty, a defendant’s right to counsel
cannot be abused. In Avants, any failure to serve justice is to blame on federal law
enforcement officials who obtained a valid confession from the defendant but failed to
(1) pass the information along to state authorities and (2) act on the information for more
23
than 30 years. Courts should not step in to remedy the failings of law enforcement at the
expense of individuals’ constitutional rights.
In fact, the Avants court reached the decision about incorporating the dual
sovereignty exception unnecessarily. Because federal agents were investigating a
separate murder offense when they initially questioned Avants, their actions in no way
constituted a Sixth Amendment violation relating to the state murder charge. As the
Mills court pointed out: “Avants is readily distinguishable because the relevant
statements were made to FBI agents who were investigating a crime unrelated to the
murder for which defendant was initially prosecuted by the state.” 412 F.3d at 330.
Because of the distinguishable factual situations in Cobb, Coker, and Avants, those courts
did not need to pay heed to the oppressive situation faced by Dawson – where two
jurisdictions conspired to trample an individual’s Sixth Amendment right.
E.
Even if the dual sovereignty exception applies generally in a Sixth
Amendment setting, an exception should be established when two
jurisdictions manipulate their dual sovereignty and allow one to act as
“merely a tool” of the other.
Even if the dual sovereignty doctrine were to be incorporated into Sixth
Amendment jurisprudence, an exception must be established for situations where
individuals are stripped of their right to counsel by two sovereigns that have collaborated
to exploit their separate jurisdiction. Such an exception is well established in Fifth
Amendment jurisprudence and is known as the Bartkus or “sham prosecution” exception.
Bartkus v. Illinois, 359 U.S. 121 (1959); United States v. Trammell, 133 F.3d 1343, 1349
(10th Cir. 1998). “When one sovereign is acting as ‘merely a tool’ of the other, and the
second prosecution is merely a ‘sham and cover’ for a previously unsuccessful
24
prosecution, the second prosecution violates the Double Jeopardy Clause.” Trammell,
133 F.3d at 1349.
The standard for establishing a “sham prosecution” is whether one jurisdiction
brings its prosecution as a tool of the other jurisdiction to circumvent a defendant’s
constitutional protection. Bartkus, 359 U.S. at 123-24. The Bartkus Court ultimately
rejected the need to apply the exception because the cooperation between state and
federal authorities was not seen as a ruse to get a second chance for conviction. Id. In
contrast, the present case is distinguishable because state police were well aware that
their evidence against Dawson was weak and that they were unable to further interrogate
him without the presence of his counsel. (R. 2). As a result, state authorities used federal
authorities so that the government could have a second opportunity for its investigation.
(R. 2-3).
The D.C. Circuit described the purpose of the Bartkus exception as standing for
the principle that “federal authorities are proscribed from manipulating state processes to
accomplish that which they cannot constitutionally do themselves.” United States v.
Liddy, 542 F.2d 76, 79 (D.C. Cir. 1976). The court maintained that any other finding
would “result in a mockery of the dual sovereignty concept that underlies our system of
criminal justice.” Id. The Liddy court went on to explain that the burden for the
defendant is substantial and that he must show that the second jurisdiction to become
involved must have “had little or no independent volition in the state proceedings.” Id.
Dawson easily meets this burden because federal officials had taken no action toward
pursuing Dawson until they were contacted by state authorities. (R. 2). State officials
pushed forward the entire sham.
25
Notably, some courts have lowered this bar, making Dawson’s position more self
evident. The First Circuit states that a defendant merely must put forward “sufficient
evidence to establish a prima facie case that the two prosecutions were for the same
offense.” United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996). Then, the burden
shifts to the government to prove the offenses are not identical. Id. The present case
presents the exceptional circumstance where the state set out to use federal agents as a
“tool” to make up for its own inferior investigation, and thereby circumvented Dawson’s
right to counsel. The state’s actions violated the affirmative obligation this Court set
forth in Moulton to not circumvent an individual’s right to counsel. The government
breaches this obligation and an individual’s constitutional guarantee when they
knowingly exploit an opportunity to interrogate the accused in the absence of counsel.
474 U.S. at 176. Allowing such action “fundamentally misunderstands the nature of the
right.” Id.
When applied in a Sixth Amendment setting, the dual sovereignty exception
works to create a constitutional loophole, allowing separate government agencies to
cooperate and purposefully sidestep a constitutional guarantee. The degree of
cooperation by state and federal agents in Dawson’s case, coupled with the lack of other
procedural protections, demonstrates the need to prohibit the exploitation of
governments’ dual sovereignty powers. Accordingly, the state and federal arson offenses
should be considered the “same offense” for Sixth Amendment purposes so that
Dawson’s Sixth Amendment right to counsel will properly be recognized.
26
II.
DEFENDANTS MUST RECEIVE NOTICE BEFORE DISTRICT COURTS
CAN IMPOSE A SENTENCE VARIANCE BASED ON BASIC
PROCEDURAL FAIRNESS, DUE PROCESS CONCERNS AND THE
LACK OF ANY PRACTICAL DIFFERENCE BETWEEN VARIANCES
AND DEPARTURES.
In Burns v. United States, this Court described the guarantee of basic fairness that
exists in any instance where an individual faces the loss of his liberty or property –
whether or not that guarantee was explicit in the statute authorizing the deprivation. 501
U.S. 129 at 137-38 (1991). This guarantee includes “both notice and a meaningful
opportunity to be heard” as well as other “protections essential to ensuring procedural
fairness.” Id. The concept is rooted at the heart of the American legal system.
Although Burns was decided in relation to mandatory sentencing guidelines, its
rationale for providing notice remains intact since this Court found that the mandatory
sentencing scheme was unconstitutional in United States. v. Booker. United States v.
Cousins, 469 F.3d 572, 578-80 (6th Cir. 2006) (citing 543 U.S. 220 (2005) (holding that
the district court committed reversible error by imposing a variance without providing
advance notice as required by Fed. R. Crim. Pro. 32(h)); United States v. Davenport, 445
F.3d 366, 371 (4th Cir. 2006) (maintaining that district courts are required under Rule
32(h) to provide reasonable notice of an intent to impose a variance); United States v.
Dozier, 444 F.3d 1215, 1217-18 (10th Cir. 2006) (finding that Rule 32(h) survived
Booker and requires district courts to notify parties if they intend to depart from the
advisory sentencing scheme).
Some courts have used the change to the post-Booker sentencing scheme as a
justification for dispensing with the notice requirement. United States v. Mejia-Huerta,
480 F.3d 713, 720-23 (5th Cir. 2007); United States v. Vampire Nation, 451 F.3d 189,
27
195-98 (3d Cir. 2006). But Booker did not overrule Burns nor did it repeal Fed. R. Crim.
P. 32(h). In fact, the Booker Court did not address “notice” in its 100-page opinion.
Instead, notice – and the procedural and due process concerns that accompany it – was
the focus of the Burns decision, which remains good law. Dispensing with notice merely
because Rule 32(h) does not use the current language of “variance” would mistakenly
sidestep the requirements of Burns and create new constitutional problems. Accordingly,
the decision of the Court of Appeals should be reversed because the requirement of notice
should apply to “variances” the same as it applied to “departures.”
A.
Requiring notice for variances is consistent with the mandates outlined in
Burns to provide the defendant a meaningful opportunity to be heard,
promote the adversarial testing of issues, avoid unfair surprise, and
achieve judicial economy.
1. Notice is essential to fulfill the requirements in Burns and Rule
32(h) provide the defendant a meaningful opportunity to be heard.
Courts that have dispensed with the notice requirement for variances are
misguided because they fail to heed other requirements in Burns, which should be equally
applicable to both variances and departures. The Burns Court held that when a district
court intends to impose a sentence longer than the mandated guidelines, the court must
provide parties with reasonable notice that it is considering an increased sentence and the
specific grounds for it. Id. at 138-39. Without such notice, a defendant’s opportunity to
be heard at a sentencing hearing becomes a “meaningless” exercise. Burns, 501 U.S. at
136. The right to comment is now grounded in Fed. R. Crim. P. 32(h) which requires
notice “[b]efore the court may depart from the applicable sentencing range on a ground
not identified for departure either in the presentence report or in a party’s prehearing
submission.” Fed. R. Crim. P. 32(i) further provides that a court must address the
28
defendant personally before imposing a sentence so that the defendant is allowed “to
speak or present any information to mitigate the sentence.”
The congressional intent behind these requirements is to “promot[e] focused,
adversarial resolution of the legal and factual issues relevant to fixing Guidelines
sentences.” Burns, 501 U.S. at 137-38. If a defendant receives no notice that a judge
plans to impose an increased sentence, defendants will attempt to address the change “in
a random and wasteful way by trying to anticipate and negate every conceivable ground
on which the district court might choose to depart on its own initiative.” Id. Such a
process would undermine another goal outlined in Burns – judicial economy – by failing
to provide for a focused, adversary testing of sentencing decisions. Id. at 137.
2. Providing notice remains the only effective way to test the varied
sentencing factors at issue in 18 U.S.C. § 3553(a).
A critical concern of the Burns Court was to ensure that parties were able to
anticipate issues so that “critical sentencing determination[s]” would not “go untested by
the adversarial process contemplated by Rule 32 and the Guidelines.” 501 U.S. at 137.
This need for adversarial testing of the issues in a sentencing hearing makes the
requirement of notice essential for variances as well as departures because the criteria
used by judges when imposing a variance are as subjective and varied as the bases for a
departure. Under the 18 U.S.C. § 3553(a) criteria, there is “‘essentially no limit on the
number of potential factors that may warrant a departure’ or a variance, and neither the
defendant nor the Government ‘is in a position to guess when or on what grounds a
district court might depart’ or vary from the guidelines.” United States v. Davenport, 445
F.3d 366, 371 (4th Cir. 2006) (citing Burns, 501 U.S. at 136-37). As a result, notice that
29
a court intends to depart or vary from the sentencing scheme “remains a critical part of
sentencing” after Booker. Id.
Courts that have undertaken a complete analysis of the Burns decision in a
contemporary context have found that the situations and factors affecting sentencing
decisions and defendants are comparable before and after the Booker decision. In fact,
the Second Circuit, following the mandate in Burns to examine “the textual and
contextual evidence of legislative intent” behind Rule 32, found that it could not “discern
any distinction between the departure criteria and the § 3553(a) factors, in terms of the
notice that they provide to parties preparing for sentencing.” Cousins, 469 F.3d at 57880.
The requirement in Burns that notice must “specifically identify the ground” for
an increased sentence demonstrates this Court’s concern to provide defendants an
opportunity to develop an informed and meaningful response, which would not be
possible if a defendant were required to prepare a response to every conceivable grounds
under the § 3553(a) factors. The wide-ranging sentencing criteria in § 3553(a) call upon
judges to consider “the nature and circumstances of the offense and the history and
characteristics of the defendant” and the need for the sentence to “reflect the seriousness
of the offense,” “promote respect for the law,” protect the public, and “provide just
punishment,” adequate deterrence and restitution to victims. (A. 1). In addition, the
criteria set forth another goal that would encourages a notice requirement: “the need to
avoid unwarranted sentence disparities” among similarly situated defendants. (A. 1). By
making the reasons for a variance known in advance of a sentencing hearing, district
courts would better ensure that defendants are sentenced fairly.
30
Courts that consider defendants to have constructive notice because defendants
are aware that the wide-ranging § 3553(a) factors are applicable failed to take into
consideration the comprehensiveness of the potential grounds for variances. As in Burns,
particularly when a judge intends to make a sua sponte departure from sentencing
guidelines, there remains “essentially no limit on the number of potential factors” at issue
in a sentencing hearing. 501 U.S. at 136-37. A defendant’s opportunity to comment “has
little reality or worth unless one is informed” about the specifics behind a potential
decision. Burns, 501 U.S. at 136 (quoting Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)). Without specific notice, defendants would be placed in an
impracticable situation. “[N]o one is in a position to guess when or on what grounds a
district court might depart, much less to ‘comment’ on such a possibility in a coherent
way.” Id. at 137. Additionally, defendants would be subject to the “unfair surprise” that
some courts have found not to exist post-Booker. See United States v. Mejia-Huerta,
480 F.3d 713, 724 (5th Cir. 2007); United States v. Vampire Nation, 451 F.3d 189, 19598 (3d Cir. 2006). As the Tenth Circuit found, notice still must be given “in order to
ensure that issues with the potential to impact sentencing are fully aired.” Dozier, 444
F.3d at 1217-18.
B.
Because no practical distinction exists between the terms “variance” and
“departure,” the terms should be used interchangeably.
The primary source of confusion in the circuits that have dispensed with notice
stems from the fact that the language in Rule 32(h) predates the Booker decision and thus
uses the term “departure” instead of “variance.” A broad reading of the controlling
authorities makes clear that Rule 32(h) remains applicable after Booker regardless of
whether the increased sentence is described as a variance or a departure. See Davenport,
31
445 F.3d at 371 (finding that notice for either a departure or a variance “remains a critical
part of sentencing post-Booker”).
The Fifth Circuit, for instance, limits its analysis to the plain language of Rule
32(h) in concluding that notice is not required for variances. Mejia-Huerta, 480 F.3d at
722. (5th Cir. 2007). This analysis is flawed not only because it is unduly narrow but
also because it fails to account for the underlying rationale provided in Burns. As the
Burns Court noted: when a court’s interpretation of a statute would produce “an absurd,
and perhaps unconstitutional result,” a court must provide an alternative meaning to the
statute to avoid such a consequence. Burns, 501 U.S. at 137. Accordingly, other
circuits have properly found that only a semantic difference exists between the terms and
that “variances” and “departures” can be used interchangeably. Dozier, 444 F.3d at
1217-18.
C.
A Due Process analysis, compulsory under Burns, would also require
notice for variances.
Even if Rule 32(h) is found to be inapplicable after the Booker decision, notice
would still be required under the Due Process Clause. Because the Burns Court found
notice was mandated by statute, the Court saw no need to reach a due process analysis.
501 U.S. at 138. But the Burns Court cautioned that if Rule 32 did not require notice,
courts “would then have to confront the serious question whether notice in this setting is
mandated by the Due Process Clause.” Id. The Burns Court further cautioned that a Due
Process analysis would be required if a court’s interpretation “would raise serious
constitutional problems” or if the interpretation “is plainly contrary to the intent of
Congress.” Id.
32
The Ninth Circuit hinted at this fundamental concern for fairness when it found
plain error in a district court’s failure to provide notice of a variance. United States v.
Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir. 2006). The court held that the lack of
notice had a serious impact on the “fairness, integrity, or public reputation” of the
sentencing proceeding.” Id. In an opinion that closely followed the Burns rationale, the
Ninth Circuit found that defendants must receive notice of when a court is considering a
variance “to ensure that issues with the potential to impact sentencing are fully aired.”
The court continued, “[w]e cannot be confident that the issues which impacted sentencing
were thoroughly tested as intended under Rule 32(h).” Similarly, the 10th Circuit found
that procedural fairness was put at risk where notice was given to the government but
kept from the defendant. “[I]t is clear that under Rule 32, ‘the defendant and the
Government enjoy equal procedural entitlements.’” Dozier, 444 F.3d at 1218 (citing
Burns, 501 U.S. at 135).
Circuits that have dispensed with the notice requirement for variances have failed
to yield to the required constitutional analysis, resulting in their erroneous findings. Such
an inquiry would require the three-part analysis as set forth in Mathews v. Eldridge.
Burns, 501 U.S. at 147, (Souter, J. dissenting) (citing Mathews, 424 U.S. 319, 335
(1976)). Under Mathews, a court must consider (1) the private interest affected; (2) the
risk of the erroneous deprivation of that interest; and (3) the government’s interest,
including judicial economy. Id.
An analysis of the Mathews test demonstrates the need to provide defendants
notice of potential variances. As outlined by this Court in Burns, the defendant’s
interests that are affected when notice is lacking are extensive and include a need for
33
adversarial testing of the issues and for the defendant to be able to prepare a coherent and
complete response to the court’s potential imposition of a variance. The Burns dissent
also found that a defendant’s interests are “clearly substantial” and that “a convicted
defendant plainly has a lively concern with the consequences of an erroneous upward
departure.” Burns, 501 U.S. at 148, (Souter, J. dissenting).
The second Mathews factor, the risk of erroneously depriving a defendant of his
liberty, also weighs heavily in favor of requiring notice. Without notice, the defendant
would not be able to meaningfully prepare a response to the district court’s grounds for
the variance, resulting in a potential omission of significant evidence or relevant issues.
The Burns dissent also found the third Mathews factor – the government interest – to be
substantial in regard to departures because of the time involved in planning for and
scheduling an advance review of the possible grounds for a departure. Id. at 148-49. But
this government interest cannot overcome the first two factors and the greater concern for
guaranteeing defendants basic procedural fairness.
The district court should have provided Dawson with notice and a meaningful
opportunity to be heard to comply with Burns and due process requirements.
Accordingly, the judgment of the Fifteenth Circuit should be reversed because the court
erred in finding that notice was unnecessary under the current sentencing scheme.
CONCLUSION
When the dual sovereignty doctrine is fully incorporated for Sixth Amendment
purposes, separate sovereigns are allowed to cooperate to intentionally bypass a
constitutional guarantee. The degree of cooperation by state and federal agents
investigating an identical offense in Petitioner’s case demonstrates the need to prohibit
34
governments from exploiting their dual sovereignty powers. Similarly, notice should be
required to guarantee basic procedural fairness anytime a judge intends to impose a
sentence higher than the maximum allowed by the guidelines.
For these reasons, Petitioner respectfully requests that this court reverse the
judgment of the Fifteenth Circuit on the grounds that (1) federal and state authorities
violated Dawson’s Sixth Amendment right to counsel because they were investigating the
“same offense;” and (2) notice is required for variances as well as departures under Rule
32(h).
Respectfully submitted,
Counsel for Petitioner
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APPENDIX
U.S. Constitution, Amendment VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.
18 U.S.C. § 3553(a)
Imposition of a sentence
(a) Factors to be considered in imposing a sentence. The court shall impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection. The court, in determining the particular sentence to be
imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for-(A) the applicable category of offense committed by the applicable category
of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section
994(a)(1) of title 28, United States Code, subject to any amendments made
to such guidelines by act of Congress (regardless of whether such
amendments have yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g) [18 USCS §
3742(g)], are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing
Commission pursuant to section 994(a)(3) of title 28, United States Code,
taking into account any amendments made to such guidelines or policy
statements by act of Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement-(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of
title 28, United States Code, subject to any amendments made to such
policy statement by act of Congress (regardless of whether such
amendments have yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g) [18 USCS § 3742(g)], is in
effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
Fed. R. Crim. P. 32(h)
Notice of Possible Departure From Sentencing Guidelines. Before the court may depart
from the applicable sentencing range on a ground not identified for departure either in the
presentence report or in a party's prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure. The notice must specify any
ground on which the court is contemplating a departure.
Fed. R. Crim. P. 32(i)(4)
(4) Opportunity to Speak.
(A) By a Party. Before imposing sentence, the court must:
(i) provide the defendant's attorney an opportunity to speak on the
defendant’s behalf;
(ii) address the defendant personally in order to permit the defendant to
speak or present any information to mitigate the sentence; and
(iii) provide an attorney for the government an opportunity to speak
equivalent to that of the defendant's attorney.
A-2