THE SUPREME COURT OF THE UNITED STATES
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE FIFTEENTH CIRCUIT
BRIAN DAWSON,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent
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No. 07-2150
BRIEF FOR PETITIONER
Prepared by Practitioner D
1
QUESTIONS PRESENTED
I.
DOES THE BLOCKBURGER TEST AS APPLIED IN TEXAS V. COBB PERMIT TWO
JURSIDICTIONS TO ACT IN CONCERT TO CIRCUMVENT THE SIXTH
AMENDENT RIGHT TO COUNSEL WHERE THE STATE AND FEDERAL
OFFENSE REQUIRE PROOF OF THE SAME ELEMENTS?
II.
DOES RULE 32(H) REQUIRE THAT REASONABLE NOTICE BE GIVEN OF A
JUDGES INTENTION TO IMPOSE A SUA SPONTE VARIANCE FROM THE
FEDERAL SENTENCING GUIDELINES?
2
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………………………..iii
STATEMENT OF CASE…………………………………………………………………………1
SUMMARY OF ARGUMENT…………………………………………………………………..5
ARGUMENT……………………………………………………………………………………..8
I.
THE CIRCUIT COURT ERRED IN AFFIRMING THE TRIAL COURT’S
ADMISSION OF INCRIMINATING STATEMENTS MADE BY PETITIONER
DAWSON BECAUSE DAWSON’S SIXTH AMENDMENT RIGHT TO COUNSEL
HAD ATTACHED TO THE FEDERAL ARSON CHARGE BECAUSE IT WAS THE
SAME OFFENSE AS THE STATE CHARGE, EVEN IF THE SEPARATE
SOVEREIGNTY DOCTRINE APPLIES TO SIXTH AMENDMENT
JURSIPRUDENCE…………………………………………….…………………………8
A. The Cobb Decision Did Not Incorporate the Separate Sovereignty Doctrine Into Sixth
Amendment Jurisprudence Because the Question Was Not Properly Before the
Court…………………………………………………………………………………..9
B. The Blockburger Test Defines “Offense” in All Areas of Constitutional
Jurisprudence, and Therefore Is Not Limited By Limitations Placed On It In The
Double Jeopardy Context……………………………………………………………10
C. Even If the Separate Sovereignty Doctrine Applies to Sixth Amendment
Jurisprudence, The Doctrine Does Not Protect Purposeful Circumvention Of The
Accused’s Sixth Amendment Rights to Obtain Incriminating Statements…………12
II.
THE CIRCUIT COURT ERRED IN HOLDING THAT NOTICE IS NOT REQUIRED
IN ADVANCE OF A SUA SPONTE VARIANCE FROM SENTENCING GUIDELINES
BECAUSE FEDERAL RULE OF CRIMINAL PROCEDURE 32(H) AND PUBLIC
POLICY CONSIDERATIONS WARRANT A NOTICE REQUIREMENT, IN THAT
THE ADVERSARIAL SENTENCING GOALS OF THE BURNS DECISION ARE
BEST FULFILLED AND DUE PROCESS VIOLATIONS MOST EASILY AVOIDED
WHEN NOTICE IS
PROVIDED……………………………………………………………………………..16
3
A. The Goals of the Burns Decision, and the Reflection of Them in Rule 32(h), Imply
That Reasonable Notice Is Required Before a Sua Sponte Variance from Federal
Sentencing Guidelines……………………………………………………………….17
B. Congressional Intent and Public Policy Considerations Warrant a Requirement of
Reasonable Notice of a Possible Variance From Sentencing Guidelines…..19
CONCLUSION…………………………………………………………………………………20
4
TABLE OF AUTHORITIES
Cases
Bartkus v. Illinois, 359 U.S. 121 (1959)…………………….………………………….5, 8, 13, 16
Blockburger v. United States, 284 U.S. 299 (1932)………………………….5, 8, 9, 10, 11, 12, 20
Burns v. United States, 501 U.S. 129 (1991)………………………………….6, 16, 17, 18, 19, 20
Elkins v. United States, 364 U.S. 206 (1960)………………………………………….8, 14, 15, 16
Gideon v. Wainwright, 372 U.S. 335 (1963)……………………….……………………………12
Maine v. Moulton, 474 U.S. 159 (1985)………………………………………………………8, 12
Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52 (1964)………………………..15, 16
Texas v. Cobb, 532 U.S. 162 (2001)………………………………3, 5, 8, 9, 10, 11, 12, 14, 15, 20
United States v. Anati, 457 F.3d 233 (2nd Cir. 2006)………………………………………...17, 18
United States v. Avants, 278 F.3d 510 (5th Cir. 2002)………...…………………………………10
United States v. Booker, 543 U.S. 220 (2005)…………………………………………………...17
United States v. Coker, 433 F.3d 39 (1st Cir. 2005)……………………………….9, 10, 13, 15, 16
United States v. Davenport, 445 F.3d 366 (4th Cir. 2006)…………………………………...17, 18
United States v. Dozier, 444 F.3d 1215 (10th Cir. 2006)………………………………………...17
United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir. 2006)…………….………..17, 18
United States v. Guzman, 85 F.3d 823 (1st Cir. 1996)…………………………………………...13
United States v. Liddy, 542 F.2d 76 (D.C. Cir. 1976)……………………………………………13
United States v. Mills, 412 F.3d 325 (2nd Cir. 2005)………………………….………9, 10, 12, 14
United States v. Ortega, 203 F.3d 675 (9th Cir. 2000)…………………………………………….9
United States v. Vega-Santiago, No. 06-1558, 2008 U.S. App. LEXIS 3757 (1st Cir. Feb. 21,
2008)…………………………………………………………………………………………………..16, 17
5
Statutes and Rules
18 U.S.C. § 3553(a)…………………………………………………………………………...4, 17
Fed. R. Crim. P. 32(h)…………………………………………………………..…6, 16, 17, 19, 20
Secondary Sources
Ilya Beylin, Booker’s Unnoticed Victim: The Importance of Providing Notice Prior to Sua Sponte NonGuidelines Sentences, 74 U. CHI. L. REV. 961, 989 (2007)…………………………………17, 18, 19, 20
Charles Morrison, The Supreme Court May Have Meant What It Said, But It Needs to Say More:
A Comment on the Circuit Split Regarding the Application of the Dual Sovereignty Doctrine to
the Sixth Amendment Right to Counsel, 39 U. TOL. L. REV. 153, 178 (2007)……………….15, 16
Ali C. Rodriguez, Detaching Dual Sovereignty from the Sixth Amendment: Use of the
Blockburger Offense Test Does Not Incorporate Double Jeopardy Doctrines, 33 NEW ENG. J. ON
CRIM. & CIV. CONFINEMENT 213, 235-36 (2007)……………………………………….10, 11, 13
6
STATEMENT OF CASE
On the morning of October 15, 2006, and explosion caused a fire at an apartment
building on E Street. Record 1. Several apartments were damaged in the fire, but no serious
injuries were reported. Record 1. When police and firefighters arrived, several tenants reported
seeing someone flee from the scene and most agreed that the person was a white male wearing a
blue baseball jacket and hat. Record 1. Approximately fifteen minutes after the fire was reported,
a police officer on patrol stopped Petitioner Dawson’s vehicle for running a stop sign, but the
officer had not heard of the fire and had no cause to hold Dawson once the citation was issued.
Record 1. However, Dawson appeared nervous so the officer made a detailed report of the stop,
noting that Dawson was a white male and wearing a blue baseball jacket. Record 1.
Several days later, after a full investigation of the area surrounding the apartment
building, police discovered a witness who indicated that he saw a man in a blue jacket leave the
area in a gray van with a dent on the front of it. Record 1. The witness indicated that he
remembered three of the letters and numbers on the license plate of the van, two of which
matched the license plate numbers on Dawson’s van. Record 1. Upon further investigation,
police discovered that Dawson drove a gray van and had been ticketed near the area on the night
in question. Record 1. The witness selected photographs of two men out of a sample of six
photographs that he claimed could have been the man he saw leaving the scene of the fire, one of
which was a photograph of Dawson. Record 1.
Two officers subsequently visited Dawson’s house and asked to talk with him. Record 2.
He gave the officers an alibi for the night in question but did not have time to answer further
questions. Record 2. The alibi supplied by Dawson could not be wholly verified, and upon
further investigation, the officers determined that Dawson had been involved in a bar fight
7
several weeks before and had been hurt and embarrassed by a group of men. Record 2. They also
discovered that one of the men in the fight occasionally stayed with his grandmother, who lived
in the apartment building that had been set on fire. Record 2.
The local prosecutor determined that there was sufficient evidence to charge Dawson
under a state arson statute. Record 2. Police subsequently arrested Dawson, who refused to
answer questions or make a statement after receiving the Miranda warnings. Record 2. Dawson
was then formally charged and arraigned before a judge. Record 2. He remained incarcerated
because he could not afford bail. Record 2. The evidence against Dawson was largely
circumstantial, and the prosecutor had commented to officers that chances of conviction would
have been much stronger had they had a confession. Record 2.
Several Weeks later, Ryan Ratz was arrested by police on forgery charges, and he
informed police that he would provide information about an assault and an arson in exchange for
having the charges against him dropped. Record 2. Ratz later informed prosecutors that Dawson
had been in a bar fight, and that Dawson was determined to get back at the men he fought.
Record 2. According to Ratz, a reported hit and run had been one such attempt by Dawson to get
back at one of the men, and that the fire at the apartment house had been another. Record 2.
Prosecutors subsequently agreed to wear a wire to procure incriminating statements from
Dawson in exchange for having the forgery charge dropped. Record 2.
Police and Prosecutors determined that they could not elicit statements from Dawson
because he had already been charged with arson; therefore his Sixth Amendment right to counsel
had attached. Record 2. Upon further discussion, prosecutors determined that they could get
around Dawson’s right to counsel and elicit incriminating statements if they did not oppose a
reduction in Dawson’s bail and allowed him to be released, and then have federal authorities use
8
Ratz to procure statements from Dawson that would allow him to be charged under a federal
arson offense identical to that of the state. Record 2. When the state authorities contacted their
federal counterparts with the idea they agreed to the plan. Record 2.
Once Dawson was released, federal agents from the Division of Alcohol, Tobacco, and
Firearms arranged for Ratz to be wired and for Ratz to record his conversations with Dawson.
Record 2-3. Ratz was successful in obtaining incriminating statements concerning the arson and
the hit and run. Record 3. Dawson’s statements included an admission of his intention to scare
the men with whom he had fought, an admission of his awareness of the degree of harm he could
have caused, and a claim that he had a long memory and would get back at the men even though
police had apprehended him. Record 3. With the new evidence, state officials had Dawson’s bail
revoked and rearrested him. Record 3. A federal indictment was obtained charging Dawson with
arson in violation of section 844(f)(1) of Title 18 of the United States Code. The state then filed
formal charges for assault with a deadly weapon (ADW) based on the supposed hit and run.
Record 3. The federal government proceeded to trial first. Record 3.
Dawson moved at trial to have the incriminating statements suppressed on the ground
that they were obtained in violation of his Sixth Amendment right to counsel. Record 3. The
government conceded that the elements of the federal arson charge were the same as those of the
state arson charge, but argued that the federal charge constituted a separate offense under Texas
v. Cobb and that therefore Dawson’s Sixth Amendment right to counsel only attached to the state
charge. Record 3. The trial court agreed and denied Dawson’s motion to suppress. Record 3.
Both the testimony and tapes were admitted at trial, and Dawson was convicted of the arson
charge in federal court. Record 3.
9
While Dawson awaited sentencing on that charge, the state encountered difficulty in
prosecuting the ADW claim under a state law technicality, and entered into a plea agreement
whereby Dawson would plead guilty on the lesser charge of assault in exchange for a state
sentence of one year incarceration that the judge would recommend be served concurrently with
his federal sentence. Record 3. Dawson’s Presentence Report (PSR) showed a guideline
calculation of 63-78 months based on an offense level of 24 and a criminal history category of
III, and Dawson did not dispute the calculation. Record 3. The PSR also contained information
about the plea agreement. Record 3. At the sentencing hearing, both government and Dawson
had the opportunity to present witnesses and argue for an appropriate sentence, although the
record is unclear as to the degree each party participated. Record 3. Over the objection of
Dawson, the judge imposed a sentence of 96 months, citing the factors in section 3553(a) of Title
18 of the United States Code. Record 3-4. Neither party received notice of the judge’s intent to
vary from the sentencing guidelines.
The circuit court affirmed both Dawson’s arson conviction and the judge’s sua sponte
variance from the sentencing guidelines. Dawson now appeals that decision on the grounds that
it was error to allow his incriminating statements into evidence, and that notice of the judge’s
intent to impose a non-guideline sentence was required.
10
SUMMARY OF ARGUMENT
The circuit court erred in affirming the district court’s admission of incriminating
statements made by Petitioner Dawson following the filing of a state arson charge against him
because the federal charge constituted the “same offense” under the Blockburger test. While this
court has recognized the separate sovereignty doctrine in the contexts of other constitutional
issues, namely the prohibition of double jeopardy, the Cobb decision did not incorporate the
doctrine into Sixth Amendment jurisprudence.
The Cobb decision could not have conclusively incorporated the separate sovereignty
doctrine because the case did not involve separate sovereigns. Furthermore, any implied
incorporation is based on a flawed interpretation of Cobb. The Blockburger test is simply the
constitutional test for defining “offense,” and is applied in several constitutional contexts. The
fact that the test is most commonly applied in the context of double jeopardy does not mean that
restrictions on the test that arise in the context of double jeopardy are automatically imported to
restrict the test when it is applied in Sixth Amendment jurisprudence. The fundamental purpose
of the Sixth Amendment would be defeated if one sovereign were permitted to obtain
incriminating statements in violation of the accused’s right to counsel and then hand over the
evidence to another sovereign without the fear of suppression.
Even if Cobb is read to incorporate the separate sovereignty doctrine into the Sixth
Amendment context, the doctrine does not protect the intentional circumvention of the accused’s
Sixth Amendment rights. While the Bartkus “sham prosecution” exception is likely too narrow to
condemn the practices of federal and state authorities in this case, a broader exception to the
separate sovereignty doctrine should be imputed from other constitutional jurisprudence. In the
11
Fourth and Fifth Amendment contexts, the Court has recognized situations where the application
of the dual sovereignty doctrine would negate the rights expressly granted by the Fourth and
Fifth Amendments. The reasoning and circumstances surrounding the Court’s decision to allow
an exception in those context are analogous to the very situation presented by Petition Dawson’s
case. While state and federal authorities may cooperate in furtherance of an investigation, they
may not act in concert solely for the purpose of side-stepping the constitutional rights of the
accused. This view is consistent with the reasoning of the Bartkus exception, and also with the
reasoning behind the exception to the separate sovereignty doctrine in the Fourth and Fifth
Amendment contexts. The circuit court’s decision should therefore be reversed and remanded
for a new trial with an order to suppress Dawson’s incriminating statements.
The circuit court also erred in affirming the trial judge’s sentence that varied from the
plea agreement and federal sentencing guidelines. Federal Rule of Criminal Procedure 32(h)
requires notice of sua sponte variances, and no notice was provided to Petitioner Dawson in this
case.
While Rule 32 does not mention the term “variance,” its presence is implied by the goals
of the Burns decision. The lack of mention of variances in Rule 32 is not an expression of
Congress’ intent that the rule only apply to departures, but is merely a result of the rule being
adopted well before the Booker decision made variances possible. The presence of valid
adversarial process and due process concerns is evidence that notice should be required on such
variances.
Burns states that the purpose of Rule 32 is to encourage the adversarial process and to
avoid due process violations—neither of which would be served if notice is not required by the
rule. In order for the adversarial process to work, the parties must be able to focus on the issues
12
relevant in the court’s determination of the sentence to be imposed. If notice to the parties is not
provided, the parties will not be able to gage the weight the court will assign to each factual
issue, and therefore cannot argue effectively for or against it. While sentence guidelines are
advisory and therefore parties are on notice that a sentence may stray from the guidelines, they
cannot predict what issues may be considered in the event of a possible variance and may be
unable to argue effectively on them. Lack of advance notice may also have adverse affects on the
bargaining process, in that parties may seek to present facts to a court in effort to avoid any
ground for overturning the plea agreement.
The benefit of a notice requirement must be weighed against the government’s interest in
judicial economy. While a notice requirement would no doubt lead to an increased number of
motions to reassess the sentence, the increase in motions would be limited due to the rarity of sua
sponte variances. The increased burden on the court is nevertheless outweighed by the benefit of
notice to the parties, in that a notice requirement better implements the adversarial process and
more easily avoids due process violations. Accordingly, the Court should order a resentencing of
Petitioner Dawson if the subject of the first appeal is denied, or enter an order requiring advance
notice of sua sponte variances in the event that Petitioner Dawson is convicted of the federal
arson charge in a new trial.
13
ARGUMENT
I. THE CIRCUIT COURT ERRED IN AFFIRMING THE TRIAL COURT’S
ADMISSION
OF
INCRIMINATING
STATEMENTS
MADE
BY
PETITIONER DAWSON BECAUSE DAWSON’S SIXTH AMENDMENT
RIGHT TO COUNSEL HAD ATTACHED TO THE FEDERAL ARSON
CHARGE BECAUSE IT WAS THE SAME OFFENSE AS THE STATE
CHARGE, EVEN IF THE SEPARATE SOVEREIGNTY DOCTRINE
APPLIES TO SIXTH AMENDMENT JURSIPRUDENCE.
“[T]he Sixth Amendment is violated when the State obtains incriminating statements by
knowingly circumventing the accused’s right to have counsel present in a confrontation between
the accused and a state agent.” Maine v. Moulton, 474 U.S. 159, 176 (1985). The underlying
principle of fairness in this statement illustrates both the primary purpose of the Sixth
Amendment and the fundamental reason that the separate sovereignty doctrine is inapplicable to
this case. This Court’s decision in Texas v. Cobb did not incorporate the separate sovereignty
doctrine into Sixth Amendment jurisprudence because the question was not properly before the
Court. 532 U.S. 162 (2001).
Furthermore, the inference that Cobb imported the separate
sovereignty doctrine into the Sixth Amendment is based on a flawed interpretation of the
language of Cobb, as the Blockburger test is not synonymous with double jeopardy
jurisprudence, but rather is an independent test used to define what constitutes a singular offense
in Constitutional jurisprudence as a whole. Blockburger v. United States, 284 U.S. 299, 304
(1932). Even if the separate sovereignty doctrine applies to the Sixth Amendment right to
counsel, the reasoning behind the “sham prosecution” exception, Bartkus v. Illinois, 359 U.S.
121 (1959), and reasons for exceptions to the dual sovereignty rule in other Constitutional
14
contexts, see, e.g., Elkins v. United States, 364 U.S. 206 (1960), demonstrate that the State
cannot hide behind the separate sovereignty doctrine solely for the purpose of circumventing the
accused’s Sixth Amendment right to counsel. Whether the accused’s right to counsel has been
violated is a question of law and is therefore reviewed de novo. United States v. Ortega, 203 F.3d
675, 679 (9th Cir. 2000).
D. The Cobb Decision Did Not Incorporate the Separate Sovereignty Doctrine Into
Sixth Amendment Jurisprudence Because the Question Was Not Properly
Before the Court.
In United States v. Mills, the Second Circuit was actually presented with the question
before this Court—whether federal and state crimes that require proof of the same elements
qualify as the “same offense” under Blockburger; therefore attaching Sixth Amendment rights to
a federal charge that has yet to be brought once the same charge is brought by the state. 412 F.3d
325, 327-28 (2nd Cir. 2005). In finding that statements made during interrogation following a
state gun charge could not be used in a federal case requiring proof of the same elements, the
Second Circuit stated “[n]owhere in Cobb, either explicitly or by imputation, is there support for
a dual sovereignty exception to its holding that when the Sixth Amendment right to counsel
attaches, it extends to offenses not yet charged that would be considered the same offense under
Blockburger.” Id. at 330. Just because the Cobb court employs the Blockburger test (initially
used in double jeopardy cases), does not mean that Cobb incorporates the dual sovereignty
doctrine. Id. Rather, the test is used to simply determine whether separate charges constitute a
single offense. Id.
The Second Circuit’s holding in Mills has been attacked on the grounds that the court did
not give “adequate consideration to the Court’s statement that it saw ‘no constitutional difference
between the meaning of the term ‘offense’ in the contexts of double jeopardy and of the right to
15
counsel.’” United States v. Coker, 433 F.3d 39, 44 (1st Cir. 2005). Both the First and Fifth
Circuits hold that the language in Cobb conclusively imports the separate sovereignty doctrine to
the Sixth Amendment. Coker, 433 F.3d 39; United States v. Avants, 278 F.3d 510 (5th Cir. 2002).
However, the very language of Cobb bars any conclusion that the plain language of the opinion
incorporates the separate sovereignty doctrine into Sixth Amendment jurisprudence. 532 U.S. at
169. As the opinion itself states, “Constitutional rights are not defined by inferences from
opinions which did not address the question at issue.” Id.
The issue in Cobb was whether the accused’s violation of two state statutes—not the
simultaneous violation of the laws of two sovereign entities—constituted separate offenses;
therefore the Court’s holding did not reach the applicability of the separate sovereignty doctrine
to Sixth Amendment cases. Id. While the Fifth Circuit stated that Cobb “effectively foreclosed
any argument that the dual sovereignty doctrine does not inform the definition of ‘offense’ under
the Sixth Amendment,” 278 F.3d at 517, Cobb could not be given enough weight to “foreclose”
any issue of separate sovereignty because the issue of separate sovereignty was not before the
Court. Thus, the Second Circuit’s reasoning in Mills is the proper interpretation of Cobb. 412
F.3d 325 (2nd Cir. 2005).
E. The Blockburger Test Defines “Offense” in All Areas of Constitutional
Jurisprudence, and Therefore Is Not Limited By Limitations Placed On It In
The Double Jeopardy Context.
The Blockburger test, as applied outside of the double jeopardy context, does not carry
with it the limitations placed on it within the context of double jeopardy. The Court’s statement
in Cobb that it saw “no constitutional difference between the meaning of the term ‘offense’ in the
contexts of double jeopardy and of the right to counsel,” 532 U.S. at 332, “merely suggests that
the identity of a particular ‘offense’ under either analysis shall be determined by looking . . . [at]
16
the Blockburger offense test.” Ali C. Rodriguez, Detaching Dual Sovereignty from the Sixth
Amendment: Use of the Blockburger Offense Test Does Not Incorporate Double Jeopardy
Doctrines, 33 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 213, 235-36 (2007). Essentially, the
Blockburger test is the constitutional offense test—independent of double jeopardy or right to
counsel jurisprudence. Rodriguez, supra, at 237. While most commonly applied in the context of
double jeopardy, the test has a “more general and independent purpose of distinguishing among
statutory ‘offenses.’” Id. at 237. The Blockburger test was originally employed in a non-double
jeopardy context, which is further evidence that the test is not subject to the limitations that the
context of double jeopardy places on it. 284 U.S. at 304.
The circuit court, in following the reasoning of the First and Fifth Circuits, improperly
read Cobb to constrict the Blockburger test, on the assumption that the separate sovereignty
doctrine somehow automatically applies outside the context of double jeopardy. Rodriguez,
supra, at 237. However, the separate sovereignty doctrine only arises to limit the application of
the test when an issue of double jeopardy is in question. Id. at 232-234. While the test is
commonly employed in the double jeopardy setting, “the test itself and the principles of double
jeopardy that may thereafter be implicated are not one and the same.” Id. at 237. In applying the
test to Cobb, the Court recognized that it has valuable application outside of the context of
double jeopardy and thereby “defined a single and unchanging constitutional definition of the
term ‘offense.’” Id. “By understanding that the task of distinguishing among statutory offenses is
neither limited by, nor restricted to, the context of double jeopardy, one can see that the
Blockburger test is, in like manner, neither limited by, nor restricted to, double jeopardy
principles.” Id. at 241.
17
In addition, if the separate sovereignty doctrine from double jeopardy jurisprudence
applies to the Sixth Amendment right to counsel, the fundamental purpose behind the Sixth
Amendment would be defeated. “The fundamental purpose behind the Sixth Amendment’s
guaranty of counsel to an accused is to assure a fair trial.” See Gideon v. Wainwright, 372 U.S.
335, 336-37 (1963). If the separate sovereignty doctrine bars the attachment of Sixth
Amendment rights to charges brought in a subsequent prosecution on the same charge as another
sovereign, “[the] 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.” Mills, 412 F.3d at 330. The Mills court
concluded that Cobb was intended to prevent that very result. Id.
In Moulton, the Court established an affirmative duty upon law enforcement officials and
prosecutors not to act in a manner that purposefully “circumvents and thereby dilutes the
protection afforded by the right to counsel.” 474 U.S at 171. This statement by the Court would
be rendered meaningless if the interpretations of Cobb by the First and Fifth Circuits prevail.
Petitioner Dawson’s case presents the very issue that Moulton sought to prevent and that Mills
warned about—that the accused’s Sixth Amendment right could be easily circumvented for the
sole purpose of obtaining incriminating statements that one sovereign could not otherwise obtain
without the protection of the separate sovereignty doctrine. While sovereign entities maintain an
interest in being able to investigate additional offenses once an accused has been charged, the
Blockburger test bars any inquiry where the offense requires the proof of the same elements as
the already charged offense, even if the offenses are charged by separate sovereign entities.
F. Even If the Separate Sovereignty Doctrine Applies to Sixth Amendment
Jurisprudence, The Doctrine Does Not Protect Purposeful Circumvention Of
The Accused’s Sixth Amendment Rights to Obtain Incriminating Statements.
18
Even if Cobb is read to incorporate the separate sovereignty doctrine into Sixth
Amendment jurisprudence, the doctrine is inapplicable where one sovereign intentionally
violates the accused’s right to counsel in order to obtain incriminating statements that may be
turned over to another sovereign. The “sham prosecution” exception to the separate sovereignty
doctrine was originally stated in Bartkus v. Illinois, 359 U.S. 121, 123-24, where the court stated
that the separate sovereignty would not apply where one sovereign acted as “merely a tool” of
the other and one prosecution was therefore a “sham and a cover” for another. Id. In Coker, the
First Circuit noted that the Bartkus exception could apply under similar circumstances in the
realm of Sixth Amendment jurisprudence. 433 F.3d at 45.
The Bartkus court made clear that the mere cooperation between state and federal
authorities did not constitute a “sham” prosecution, and also that the exception is narrow and
rarely applied. Rodriguez, supra, at 230. The First Circuit noted that the exception is “limited to
situations in which one sovereign so thoroughly dominates or manipulates the prosecutorial
machinery of another that the latter retains little or no volition in its own proceedings.” United
States v. Guzman, 85 F.3d 823, at 827 (1st Cir. 1996). While courts have expressed that the
exception is to be narrowly applied, the reason for the exception is clear. “Bartkus . . . stands for
the proposition 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).
While federal authorities did not manipulate state proceedings in order to obtain
incriminating statements from Petitioner Dawson, state and federal authorities worked in tandem
to manipulate the judicial system and circumvent Petitioner Dawson’s Sixth Amendment right to
counsel that attached upon the filing of the state arson charge. Record 2. Upon the realization
19
that they likely lacked enough evidence to convict Petitioner Dawson on the merits of their own
case, state authorities devised a way to sidestep Dawson’s constitutional rights and obtain
incriminating statements that would have otherwise been barred. This manipulation of the system
and end-around Petitioner Dawson’s constitutional right to counsel is the very reason that the
Bartkus exception exists, and creates a situation where the separate sovereignty doctrine should
not protect the actions of state and federal authorities.
Although the conduct of federal and state authorities may not amount to a “sham” in this
case, the holding in Mills and a broader exception to the separate sovereignty doctrine in other
constitutional contexts illustrate the need and reasoning for a broader exception in Sixth
Amendment jurisprudence. In Mills, the court refused to apply the separate sovereignty doctrine
and suppressed statements the accused made to local officials in a federal case requiring the
proof of the same elements, because state charges had been filed and his Sixth Amendment right
to counsel had attached. 412 F.3d at 327-30. Had the court applied the separate sovereignty
doctrine, Mills’ right to counsel would have been violated because state authorities would have
been able to question him in absence of council, even though his right to counsel had attached,
and then share the information with federal authorities without the threat of suppression. Id. The
Mills court recognized the potential for collusion between state and federal authorities for the
purpose of circumventing the rights of the accused, and handed down a ruling that would not
permit it. Even if the decision was inconsistent with Cobb, the effort of the court to proscribe
collusive practices by state and federal authorities presents a valid reason for a broader exception
to the separate sovereignty doctrine.
This Court has also recognized a broader exception to the separate sovereignty doctrine
in the contexts of the Fourth and Fifth Amendments, and there is little reason that the broader
20
exception should not be imputed into Sixth Amendment jurisprudence. The reasoning of the
Mills court is closely paralleled with the underlying logic of this Court’s decision in Elkins v.
United States. 364 U.S. 206, 223 (1960). Elkins held that the “Silver Platter Doctrine,” which
permitted state authorities to conduct warrantless searches and delivering evidence to federal
authorities on a silver platter, violated the accused’s Forth Amendment rights and was
unconstitutional. Id. At the very least, Elkins demonstrates that this Court recognizes some
circumstances where separate sovereigns should not be permitted to take advantage of their
independent powers in order to sidestep the constitutional rights of the accused. Charles
Morrison, The Supreme Court May Have Meant What It Said, But It Needs to Say More: A
Comment on the Circuit Split Regarding the Application of the Dual Sovereignty Doctrine to the
Sixth Amendment Right to Counsel, 39 U. TOL. L. REV. 153, 178 (2007). Basically, the Elkins
analysis shows that a remedy exists to do away with the “undesirable byproduct of recognizing
dual sovereignty.” Id. at 179.
This court has also recognized a broader exception to the separate sovereignty doctrine in
Fifth Amendment self-incrimination jurisprudence. Murphy v. Waterfront Comm’n of N.Y.
Harbor, 378 U.S. 52 (1964). In Murphy, the court recognized that allowing a witness to
incriminate himself under both state and federal law would defeat the underlying purpose of the
self-incrimination prohibition. Id. at 55. Both Elkins and Murphy recognize that without limits on
the application of the separate sovereignty doctrine, collusion between state and federal
authorities would be encouraged and would usurp the constitutional rights of the accused. Coker,
433 F.3d at 50 (Cyr, J., concurring). The fact that this reasoning was not noted in Cobb is no
surprise, because Cobb did not involve separate sovereigns, as discussed previously. Id. The
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facts of Petitioner Dawson’s case present the proper opportunity for the court to impute these
well-established constitutional principles into its Sixth Amendment jurisprudence.
State authorities likely lacked sufficient evidence against Petitioner Dawson in the
absence of a confession, but the fact that state authorities failed to obtain incriminating
statements in the period between arrest and the appointment of counsel is a fault that lies with the
state, and should not result in the loss of the accused’s constitutional rights. Morrison, supra, at
183. The collusive nature of the state and federal authorities’ actions in the present case is a
manifestation of the type of conduct this Court remedied in Elkins and Murphy, and the logic of
those decisions demonstrates the need for a broader exception to the separate sovereignty
doctrine in the Sixth Amendment context. These practices probably cannot be remedied by the
Bartkus exception alone, but require the imputation of well-established constitutional principles.
Coker, 433 F.3d at 51 (Cyr, J., concurring).
II. THE CIRCUIT COURT ERRED IN HOLDING THAT NOTICE IS NOT
REQUIRED IN ADVANCE OF A SUA SPONTE VARIANCE FROM
SENTENCING GUIDELINES BECAUSE FEDERAL RULE OF CRIMINAL
PROCEDURE 32(H) AND PUBLIC POLICY CONSIDERATIONS
WARRANT A NOTICE REQUIREMENT, IN THAT THE ADVERSARIAL
SENTENCING GOALS OF THE BURNS DECISION ARE BEST FULFILLED
AND DUE PROCESS VIOLATIONS MOST EASILY AVOIDED WHEN
NOTICE IS PROVIDED.
Rule 32(h) of the Federal Rules of Criminal Procedure provides that “[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, the court must give the parties
reasonable notice that it is contemplating such a departure.” Fed. R. Crim. P. 32(h). While the
rule only uses the term “departure,” the principles of the Burns v. United States decision, 501
22
U.S. 129 (1991), as reflected in Rule 32(h) make the notice requirement equally applicable to
variances. United States v. Vega-Santiago, No. 06-1558, 2008 U.S. App. LEXIS 3757, at *22 n.8
(1st Cir. Feb. 21, 2008)(Lipez, J., dissenting). In addition, the benefits of a notice requirement outweigh
any increased burden on the courts. Ilya Beylin, Booker’s Unnoticed Victim: The Importance of Providing
Notice Prior to Sua Sponte Non-Guidelines Sentences, 74 U. CHI. L. REV. 961, 989 (2007).
Because the Court is determining whether Rule 32(h) requires notice in advance of a sua
sponte variance from sentencing guidelines, and not whether the sentence was reasonable, the
question is one of law and is therefore reviewed de novo. United States v. Dozier, 444 F.3d 1215,
1217 (10th Cir. 2006).
A. The Goals of the Burns Decision, and the Reflection of Them in Rule 32(h),
Imply That Reasonable Notice Is Required Before a Sua Sponte Variance from
Federal Sentencing Guidelines.
The Burns decision identified two goals: implementing the adversarial system of Rule 32
and avoiding due process violations. Beylin, supra, at 981. As noted in Burns, a notice
requirement is consistent with Rule 32’s purpose of “promoting focused, adversarial resolution
of the legal and factual issues relevant to fixing Guidelines sentences.” 501 U.S. 129. While
United States v. Booker made sentencing guidelines advisory, 543 U.S. 220 (2005), the
guidelines still serve as a starting block for a sentencing determination; therefore the parties must
still receive notice if the court is considering a sentence outside of the guidelines to ensure that
issues affecting the sentencing are fully aired through the adversarial process. United States v.
Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir. 2006).
It is true that parties have full knowledge of the facts the court will consider in
determining a sentence, and that those facts will be measured against the factors laid forth in
section 3553(a) of Title 18, 18 U.S.C. § 3553(a) that establish grounds for a variance, but parties
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are no better able to predict the weight the court will place on one or any number of those
factors. United States v. Anati, 457 F.3d 233, 237 (2nd Cir. 2006); see United States v. Davenport,
445 F.3d 366 (4th Cir. 2006)(stating that the need for notice is as clear now as before Booker). In
this vein, notice of the court’s consideration of a sentence is essential to the parties’ ability to
“focus their attention on the considerations upon which the resulting sentence will rest.” Anati,
457 F.3d at 237. This is especially true when the government has offered a reduced sentence in
exchange for a guilty plea, as in the case of Petitioner Dawson. Evans-Martinez, 448 F.3d at
1167.
Lack of a notice requirement for variances from federal guidelines may also have an
adverse affect on the adversarial process. Given that the great majority of sentences fall within
the guidelines, the parties may develop expectations based on their own experiences that a
particular sentence will not stray from the guideline-recommended sentence. Beylin, supra, at
983. Even if a party anticipates every fact the court may consider in determining whether to
impose a sentence outside of the guidelines, it may be reluctant to anticipatorily rebut the court’s
reasoning to avoid adding weight to a previously irrelevant fact that may now adversely affect
the sentence. Id.
The innumerable factors the court may consider as grounds for a variance from
sentencing guidelines provide a sound reason for requiring advance notice of the court’s intent,
in that no one could be expected to guess or coherently argue the grounds the court selects on a
given day. See Burns, 501 U.S. at 132. Any attempt to do so would likely only amount to a waste
of the court’s time. Id.
A holding that advance notice of a possible variance would also defeat Rule 32’s purpose
of avoiding due process violations. The additional safeguard that notice provides is balanced
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against the government’s interest of judicial economy. Id. at 147 (O’Connor, J., dissenting).
While the burden of requiring notice would likely also increase the number of motions to
reassess the sentence, the overall burden to the courts would increase very little due to the rarity
of sua sponte variances. Beylin, supra, at 982-83. In addition, Pre-Booker records indicate that
this burden is sustainable. Id. at 983.
B. Congressional Intent and Public Policy Considerations Warrant a Requirement
of Reasonable Notice of a Possible Variance From Sentencing Guidelines.
As noted in Burns, “the textual and contextual evidence of legislative intent indicates that
Congress did not intend district courts to depart from the Guidelines sua sponte without first
affording notice to the parties.” 501 U.S. at 132. The fact that Rule 32 does not mention
variances is not evidence that Congress did not intend for it to include them, but merely a result
of the rule being written long before Booker made variances possible. Beylin, supra, at 978. In
fact, there is no apparent reason that variances “should be insulated from the adversarial process
or why due process concerns posed by variances are any less serious than those posed by
departures.” Id. Because valid due process and adversarial concerns arise out of sua sponte
variances, the lack of mention of “variances” in Rule 32 should be construed in favor of
requiring notice. Id. at 984. In addition, the Burns court noted that absent express language,
statutes authorizing deprivations of liberty are readily construed as requiring the government
provide notice and a meaningful opportunity to be heard to affected parties, which could raise
additional due process concerns if Rule 32 were read not to require notice. 501 U.S. at 137-138.
On top of Congressional intent and broad public policy arguments stated above,
interpreting Rule 32(h) not to require advance notice of sua sponte variances will have practical
consequences with regard to the manner in which parties bargain in sentencing agreements.
Beylin, supra, at 985. Parties may “fact bargain” in effort to assure that the trial court does not
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overturn the plea agreement. Id. While there is no data demonstrating how often plea agreements
are overturned, over half of the cases composing of the circuit split on this issue arose in such
situations—evidencing that plea bargains do get overturned. Id. “In response to such incidents,
the Department of Justice has issued a memo to federal prosecutors announcing its preference for
the notice requirement.” Id. Given that prosecutors have subsequently joined defendants on
appeal in arguing that notice of sua sponte variances is required, it begs the question of why the
respondent opposes this appeal.
CONCLUSION
The Circuit Court erred in admitting incriminating statements made by Petitioner Dawson
because Dawson’s Sixth Amendment right to counsel attached to the federal charge of arson
once a similar state charge of arson was filed against him. The federal charge requires the proof
of the same elements, and therefore qualifies as the “same offense” under the Blockburger test.
Even if the separate sovereignty doctrine is incorporated into Sixth Amendment jurisprudence by
Cobb, exceptions to the separate sovereignty doctrine in other areas of constitutional
jurisprudence should be imputed into the Sixth Amendment right to counsel to bar the intentional
circumvention of Petitioner Dawson’s constitutional right to counsel.
In addition, the circuit court erred in affirming the sua sponte variance from sentencing
guidelines and the plea agreement because advance notice of such a variance must be provided to
the parties. The principles of Burns and public policy considerations warrant a holding that
Federal Rule of Criminal Procedure 32(h) requires notice for all sua sponte variances.
Accordingly, Petitioner Dawson’s case should be reversed and remanded for a new trial with an
order that incriminating statements made following the filing of the state charge of arson be
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suppressed, and with a order solidifying that any sua sponte variance from sentencing guidelines
requires reasonable advance notice to the parties.
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