one five six zero six zero john turner versus united states of america arguments not to exceed twenty minutes for mr hutton for palin your numbers are three minutes for rebuttal ok chief judge cole may it please the court this case presents two separate issues concerning the attachment of the sixth amendment right to counsel first this court should hold that the right to counsel protects an accused during plea negotiations with  prosecutor even if the prosecutor chooses to make an offer prior to the formal commencement of a judicial proceedings second this court should follow the second in the eighth circuit and hold that a state court criminal prosecution will trigger the sixth them  right to counsel for a forthcoming federal prosecution for the same underlying offense especially when federal agents are involved in the initiation of the state court proceeding or proceedings now in addition to answer whatever questions the court may have today i'd like to go right to the heart of the two objections that the government has raised in their brief with respect to the first issue the government argues that this court has no power to fund the six memorised the council attaches during pre indictment plea negotiations it argues that based upon language in united states versus says the reasoning that the court is saying that the court says it is then that a defendant finds himself faced with the prosecutorial forces of organized society and immersed in the intricacies of substantive in criminal procedural and procedural criminal law so you have a statement in the opinion followed by the purposes the purposes are to counterbalance a professional prosecutor and to assist a defendant in navigating the law now what i would submit to this court is that those same purposes are f and if i can try to unpack those the first is the way the court would answer this is the same way that the supreme court has done through all of it six of them in jurisprudence remember that the six minute originally applied to a right to trial the court originally said you have a right to and seven hundred ninety one the understanding of criminal prosecution was a right at trial but what the court did over history is it applied to different facts which it determined to be critical proceedings looking at the purposes of the amendment to counterbalance the prosecutor and also to when a person needed assistance navigating the of the law and it did so on a case by case basis it found that applied to pool near hearings than it applied to post lineups and then applied to arraignments were asking this court to say that all this court has to do today is look at the facts of this case and say you know the six member talks about a prosecution here we have a prosecutor this making a specific offer for a specific amount of time and says if you don't take this then you're going to be indicted so all this court has to do is to do that now for other circuits to have author criminal defense attorney correct sort of a general practice when the u s sends out a target letter they always offer to get counsel for the defendant it's my understanding in the district yes rather that they will and that the federal defender will represent somebody an approach a court if there's a target letter it's my understanding so are you aware of any cases where someone wasn't represented by counsel pre indictment in the federal system because what a usas don't like negotiating directly with defendants and even when they talk to a defendant with an agent present they will always say we're going to make you a plea offer so you can cooperate but you better go run it by an attorney before you say anything to us judge the part that is my experience as well but the the behind the scenes somebody will go approach a magistrate and that's how you'll get the attorneys when they could in judgment you're correct that most of these cases there's already a lawyer that's involved the reason that the issues here is because our argument is that mr deal with what serenity here if it let's assume down the road we we agree with you and you get ineffective assistance when you win that it's your own what's the remedy the remedy is for the court to reinstate the fifteen year offer that was how can  go ahead i'm sorry i interrupted the that was the issue that the court in the complaining case is frying laughter they struggle with what is the remedy that was the big issue in the case and what justice kennedy in the majority opinion said is the remedy is to send it back and for the the court lower court to mit remake that particular offer and we know in this case that eight that first of all that's that's a different issue in my mind only because here we're talking about separation of powers there maybe we're talking about state sovereignty sovereignty but what you're asking is us to order the executive branch to offer something that no longer exists your honor all i can say to answer your honor's question is that that was precisely the issue before the court in two thousand and twelve unlawful versus cooper the remedy question in justice kennedy's opinion held that that was the appropriate remedy but you understand what i'm saying is stayed giving it to a state trial judge and saying figure this out which is what they did and laugh learn missouri and try to get the same situation and ordering a co equal branch of government to extend an offer to different things i mean where do we have the authority in the constitution to do that well your honor with respect to all i can say is i'm aware that the companion case is a misery for laughter and they were both state cases but the issue and the reason the court took those cases they were sort of the flip side one was a lawyer that messed up by not telling his client about an offer which was missouri which is my case and the other was a lawyer that said don't take that offer let's go to trial you didn't even look at the case  and that there was some disagreement at the lower court about whether or not the op was communicating or not so if if we determine that a right to counsel does exist at this for this period that may come that yes sure but this court at least you're asking for them a hearing at the lower court to make some determination of whether or not there was an effect of this or you know yes are we never normally in the twenty this we came to the corner twenty two fifty five motion normally you would have an evidentiary hearing when you're in effect of assistance of counsel claims but judge mays basically denied the hearing is moot because he found that there was no right to counsel at all and therefore you can't complain we never decided the particular issue mix question with you know some of the case also as well line to go from investigatory to become a judicial proceeding you know we have two separate response alternate responses to that the first is it crossed the line when a u s attorney made a specific offer to mr turner's lawyer at that point where the government is no longer investigating now remember mr turner already confessed signed a full confession all the robberies but when he when the u s attorney said i'm offering you fifteen years on the forward nine hundred fifty one count the one twenty four and if you don't take it you're going to be indicted in september that's when they cross the invest the line as marandi bourbon talks about from going from investigating a case to prosecute a case but we also going to have a separate issue there were four pending state court ind says you don't apply a new rule and collateral review unless the u s supreme court one has announced a new rule and then the u s supreme court has said it applies retroactively which it does not do very often now it's probably a forfeit a bull argument and i don't think the government has raised it but i'm raising it and we have discretion to reach it and surely the next case the government has the right to raise it this is surely a new rule so i find myself really puzzled that we're doing this on a twenty sure but ineffective assistance because you have to have an evidentiary hearing to develop the rule the question you look at it you know intake was state cases you had all that state post conviction so there was a whole state court proceeding where you could develop a record ineffective but your honor i would say here that the first reasonable opportunity the first opportunity you get a hearing to develop a claim is at the at the post at the twenty to fifty five which is the sort of federal court's equivalent of a  collateral review it is ok for a lower court to announce a new rule in that context and apply retroactively well your honor again maybe i am sorry and i would take exception your honor respectfully with we're announcing a new rule what we're saying is the rule all along on the sixth amendment that our point is the government is misinterpreting go via the holding in go by is merely that a prisoner in the ministry of detention has no right to the point of counsel when he's detained in the  opinion talks about the reasoning or the sixth amendment and if you look at all of the supreme court's jurisprudence on how to figure out if there's a right to counsel going going back to powell versus alabama they look at the purposes we know that originally the six intricacies of the law and on occasion about rock area because you don't talk about that a lot and that's post all of these cases right and it deals with kirby and it deals with and it says i'm going to read to you  merely reaffirm what we have held before and what an overwhelming jordi of american jurisdictions understand in practice a criminal defendants and his show appearance before a judicial officer where he learns the charge against him and his liberty is subject to restriction marks the start of adversary judicial proceedings that trigger attachment of the sixth amendment right to what you've done is blurred the critical stage and the attachment the critical stage goes to be at the at the last part of the sixth amendment in all criminal prosecutions goes to the attachment and what that case says is nothing attaches before then and that's post all those other cases so it would be a new rule and in fact i don't think you can point to a single supreme court case that predates that time period i'm sorry and i'm sorry you know please go ahead but in dealing with these cases judges are reviewing a set of facts and writing an opinion based on those facts the facts and raw kerry was in one thousand nine hundred three suit and whether or not when a person went to court on an initial appearance of mean he had a right to counsel he could sue because he didn't get one they repeat language from other cases and yes the court rot kerry quote in for more and verses bourbon that quoted from which quoted from kirby illinois but these cases when you look at them they have that language but they immediately follow that language with the purpose for the rule the put which could work does it work that you've got to have a formal plea that it's triggered because there's a deadline i would think it to extent this is a good idea i would think it applies the first time the prosecutor talks to somebody because those informal conversations are very likely to influence the way things go so i take it the way this rule would work is as soon as the prosecutor talks and the question of some kind of plea comes up counsel first right but you're i would think looking at that with judge sutton when a prosecutor makes a specific offer to resolve specific charge i mean i would i would be just as nervous about the prosecutor talking to the individual casually nothing specific hey you know there's a lot out there you face a lot of time we're just kind of wondering what you might like to do or an offer of cooperation to add to that right right what exactly would i always say again you get into i understand your judson your question with respect to trying to figure out the degree when this is triggered i can tell you that in this particular case i know you're looking for a rule to establish but at least when there is a formal offer to resolve specific charges with specific time that's going to end because you're going to be indicted in the month in which is how is this going to work its i don't makes me nervous your all you want to say is we win today a classic answer first i'd like to know how the next case is going to i think part of that goes back to something the judge the parses the normally the us attorneys want to deal with the attorneys anyway so normally the person is going to have a lawyer and then the honor was cut the taxes in all criminal prosecutions and accused will have the right to this into counts of first offense we know that originally criminal prosecution only meant trial that's what it meant back in seven hundred ninety one and we know that the court has extended that on a case by case basis looking at the purposes it isn't at the courts to extend then how can a lower court do it because the court is extending what was once established right and they're extending it isn't it for them to do a judge not part of the i happens all the time of cour appeals do this all the time look at riley versus kept california riley was the case the old law was search incident to a lawful arrest basically any if you're jaywalking the police stop you they can search you can get anything on the court change that to say no you need a warrant for you but where the line is it but lower i'm sorry you wanted me to know but the lower courts were in disarray it came up the first circuit basically found the same position that the supreme court ultimately held that no you need a  warrant if you're going to search for the cell phone so the law what judges do in a common law tradition of our our legal system is you have a case built on these facts and it sets principle in the reasoning of the court to do that and based on the law is that what you're saying hundred ninety one and we look at x as ok i mean the text here it says in all criminal prosecutions it's hard for me to to see how you have a criminal prosecution before you have an indictment and how do you have a criminal prosecution indictment judge griffin if we were looking at the tax criminal prosecution originally only meant the trial that's what the word meant back in seven hundred ninety one that was a critical critical stage of the criminal prosecution that's what the law was that you are only entitled to counsel during critical stages once there's a process of criminal prosecution under way but there's never been a case that you have a right to counsel prior to interpret it the way i understood judge griffin talking about you don't have a criminal prosecution and there's an indictment if that's the way we interpret this where the prosecutor chooses not to seek an indictment but to proceed on information if we take that tack a person could go all the way through investigation to being fit enough without the right to the think the member ever attaching that's not clearly that's not what we're talking about an issue of this because the prosecution controls the the only thing i can say is that there are four other circuits that have recognized that there's a solidification in language and opinions that yes normally it's when they're formal judicial proceedings that the right attaches but there could be cases when there's a sick of a threshold from investigation to prosecution by the government and i would also never i didn't get time maybe i can address it on rebuttal to show why the state court prosecution to this court to follow the second the circuit and hold that that triggers the right to counsel that's great you can  may please the court kevin ritz for the united states the constitution and the supreme court's cases are clear the right to counsel does not attach until the initiation of formal adversary judicial proceedings that bright line rule bars turner's claim and this court should affirm under the text of the sixth amendment there must be a criminal prosecution in an accused before this right attaches the supreme court has consistently for a prosecutor to offer and when someone   charge by himself or herself but second that the question is more is this a of the adversary in judicial proceedings started in the court has tied the nature of the accused the definition of what accused means and what criminal prosecution means to the role of a judge a judge has to be involved the tribunal has to be involved all the way back to the reason in kirby and go braina actually say that or do the reasoning say this is a fact intensive investigation we want to look at this functional inquiry and why does that necessarily with the this requirement that you be standing before judge the the those opinions say both they they gave us the bright line attachment rule and then as mr hutton said they discuss the reasoning behind that and they hearken back to powell versus alabama but in powell just a sutherland account of what the sixth amendment means he talked about if charged with a crime in johnson versus service to nine hundred thirty eight when brought before a tribunal so when the court explains why this bright line is the right way to interpret criminal prosecution and accused it's explaining that that is when the judicial machinery to use rough kerry's words the judicial machinery has been activated the person has been brought before a judge formal state has committed to prosecute where the accused is confronted with substantive and procedural intricacies of the criminal justice system and where defendant is faced with prosecutorial of an organized society which things to me very much to exist at the intersection of the adversarial nature of the relationship between the state in this individual defendant in the risk of prejudice to that first that if a defendant takes the police offer a potential defendant that person will have the right to counsel no later than the write the hearing at which he accept the information for example and he can later bring a claim just like mr turner wants to bring and say my lawyer incorrectly advised me to take that plea but the but the nature of that preannouncement negotiation is that the procedural system has not been activated and so the prejudice that mr turner for example suffer now he obviously believes he made a bad decision perhaps he did but the six amendment did not prohibit him from making that decision and plays no role in protecting him against that decision another good example if i may is the grand jury as as we were discussing what the practice is for calling someone who's a target or a subject to the grand jury that person it probably makes sense to have a lawyer it would definitely benefit that person to have a lawyer but it's not the sixth amendment that provides that in our target letter it's the the target letter in actually the u s attorney's manual does not say we will get you a lawyer in practice i think it's safe to say we would always say under the facts could a federal attorney go and negotiate with the then that absent counsel on the on the you know where you're talking about that or what charges could they do that your honor the sixth amendment would not prohibit that but that would just not happen it is we or the ethics or whatever well ethical rules would play a role your honor and also the practicalities of this why would we be engaged in this negotiation if we were not trying to reach a resolution to whatever potential point because here on the base facts had it in fact shifted from investigation to accusation when this particular with with with communicated no your honor and the reason is because these are discussions about the case and yes mr turner has a pretty good case of a set of facts to come to this court but in the next case is it going to be that clear is there going to be a specific term of years off or is the plea offer going to be super formal sometimes it might just be an initial discussion we may be able to work something out sometimes it's the agent working on behalf of the government and sometimes very closely with the prosecutor sometimes not so much and that what you offer is not process if they become a cooperating witness all of which would almost of necessity occur before any public formal educational proceedings which render the person not a good cooperate with this precisely your honor you can make the exact same argument that that's a critical stage because if the guy says roll over on my buddies that i'm not going to get charged that might even be more critical thing for his livelihood then being offered so i think that's true and we see these kinds of scenarios it's why courts policing this type of interaction is not a good idea and what well procedurally what happens typically with these cases is that there's no why for the u s attorney's office to complete a binding plea agreement without court intervention either got to have got to the charging the potential defendant it's there are adversarial aspects to the relationship certainly there are just like there are adversarial asked about a diversion agreement you wouldn't have court involvement then most likely not your honor  although i'll be frank i'm not super familiar with how our district or other districts might handle those but i think that's true usually that would be between the government and the person directly and there would be no judicial involvement and what about the fact i mean i know i understand your argument on the sixth am seem at least some justices think went beyond the sixth amendment and so in living in a world beyond the sixth amendment i mean i think you and i can both agree that the most important time for a defendant to have an attorney's pre indictment for because you can charge bargain you can sentence bargain you can do all kinds of things that you can't do post indictment now you get most serious readily provable fance and all those things kicked in so in the laughter fry world why doesn't it make sense to extend are a few things about there first of all i think it depends on the case whether it's the most important stage three indictment but laughland just simply agree it's easier to charge bargain than absolutely yes your honor but laughter and fried didn't change things here first of all they're not attachment cases they're critical stage cases just like these other functional cases like wade ash multan these are critical stage cases and there is tension again to get back to what you had strange was getting at there is tension between the critical stage cases the attachment cases but the court has drawn this bright line in for laughter and fry as this the panel when kennedy pointed out the dissenting opinion in laughland fry was pretty vociferous accuse the majority of a lot of things but it didn't accuse the majority of changing the attachment rule no one thought that was an attachment case the point so i know you haven't raised that i think it's for football but i am going to guess that's not a department of justice policy not to raise when it comes to this argument it's not this court majority of of just making the point we could announce the new rule because you forfeited the teac argument but the next would be stuck with the argument so it's a very it's a lot of work for an bank court for coming to much i think that's right your honor but we'd actually quibble with your first point that this court could change the rule this court is bound by my position but that could happen right that this court is bound by the supreme court's law and that the critical stage cases again different than these attachment cases there is no ambiguity in these attachment cases and you would concede then that this could be for laugh cry purposes a critical stage you're just argument as the the right didn't attach it's a critical stage because it's a you need the advice of counsel that's correct you could even be the cutest right but the right might not attach you can be accused before indictment maybe not in a formal sense as the sixth amendment understands it that's the way we would look at it not in the way the sixth amendment requires and it's no different than the interrogation cases met messiah versus miranda the lineup cases wade versus kirby there is tension right i mean because you have an event that occurs after the initiation of formal adversary judicial proceedings and that very same event or or context occurs before the attachment rule in it has an attached and the court has your  say i'm sorry concurrence in the moody opinion he discussed some of those statistics and then of course and laughter in fry they discussed were in the system of please but just to push back on that a bit and judge wiseman's opinion he actually cite statistics from understand it on the continuum that exists and i have no dispute that the indictment is the easiest place to think but my question is why is it the exclusive life i mean  used to be the trial with the school in place and that's no longer so so i don't think that we can get that from the initiation of the fifth amendment there was a bright line rule struggling to understand why this is we think it is impractical to start drawing the rule anywhere else it's a clean and clear rule as your honor just said and once you get into the ends of the intricacies of how this might play out in the different past this could go down in a pretty indictment context it is it would be not it would be a very difficult thing for your district colleagues to sort out your your state court colleagues because this would apply to the states as well and for circuit look to the raise your honor the four circuits that have been identified as creating this kind of tension we would we would actually disagree with the notion that there's a real robust circuit split here all for those cases or for those circuits can actually be harmonized with a bright line rule in only one of those cases to the right actually attach and there was a preliminary arraignment in the third circuit case matel you in all those cases that contemplated this  said i should say and all of them just kind of thought well they they looked to some of the language that you were quoting earlier just strange you know when adverse positions have solidified when the government is committed to prosecute and they said well you know it's possible we could maybe conceive of something but one like the first circuit said it would actually be extremely limited type of scenario we don't think there's really a circuit split there at the end of the day all the other courts i should say the other six courts that we've cited have squarely full stop bright line rule attachment applies only it adversary judicial proceedings which they define which i'm sorry which is defined type of attachment but i guess our bottom line point on that precedent can i interrupt for just a second i just want to ask you a couple of questions the charge bargaining that we've been dealing with here was that in existence at the time of the  adoption of the sixth amendment i don't think so your honor in the senate in the way that certainly not in the way that it's plays out today but i don't know i guess to be honest with you i don't know whether there was that type of pre charge negotiation that occurred at that time and the sixth amendment uses the word accused as opposed to indicted the use the same distinction between indicted and q's the queues can be a little broader in the sense that it encompasses of course an information and it encompasses you know we certainly in our office we're very used to the federal system but it encompasses these various variations on how this might play out in the states as well again that's what rockery was concerning but at the end of the day accused has been defined and criminal prosecution has been defined in this context as a bright line rule and as it doesn't trigger until you get to that bright line couldn't are you are you familiar with their crime acts of seventeen nine that makes a they use the word indicted and accused in that act which is a year before the sixth amendment i don't believe i am you know ok so you're not aware of any discussion or consideration there might have been a distinction between indicted accused and using accused in the sixth amendment and we are not but an accused to mean that the prosecutor accused has to be a judicial proceeding yes i thought there's that attachment is the jitters i didn't realize they linked the key use the word accused to that i believe in moran and gouveia both in particular they are saying under the text which requires a criminal prosecution and accused formal adversary judicial proceedings is the line we draw and i don't know that it's in the same sentence the accused as opposed to in a criminal prosecution correct and and and i get to get back to the notion of weather isn't the accused just simply who can assert their right and the timing is in l a criminal prosecutions which is when in other words why isn't the queues just a definition of who can actually assert the right that would be a tricky one to for us all to implement but it would at the end of the day it would be tricky i'm sorry i guess if you're it wouldn't help us figure out whether people like mr turner can can claim this right when in all criminal prosecutions would which is the timing mechanism of the sixth amendment so in other words the criminal prosecutions phrase is what governs here more than the word accused i don't see where you see it in the supreme court case the word accuse government your honor i would have to go back and look and i don't have those right in front of me but those cases do talk about the text and they do talk about how this this rule implements that text and at the end of the day our view is that ruling for mr turner moving this line earlier in the process would not be filling some sort of gap it would not be moving to fill some gap that the supreme court has not told to a bright line rule by definition is a rule without exceptions and that's what the supreme court has set forth this court is bound by that and for that reason this court should got a couple points i did just want to hit on our second argument because there are two circuits the second circuit mills and circuit in the redbird case of hell that a state court criminal prosecution will trigger the six of them right to counsel for a forthcoming federal prosecution for the analysis and the reason they say that is because if you don't do that you can game the system so for example you could have a drug charge the da joint task force is investigating so many they bring a charge and state court normally once th defendant and if he says anything incriminating they can either bring a federal charge or they could go testify in the state court case because they decided that six in the right and attach we were investigating the unfiled federal charge not the same state charge that would be a fifth amendment respectfully disagree judge given because under messiah versus united states one of the key rights in most of these cases actually deal with evidentiary issues because the government has talked to a defendant after the right to counsel has been the six member right is attached without counsel being present but that's what most of these cases evidence are about so one of the core issues it's messiah of the united states and bowing to his prunes is that once those six minute attaches the defendant has a right to be left alone and the problem is the government c government can manipulate constitution right so under elkins the supreme court has said state agents can't search a house without a warrant violation the fourth amendment find drugs in the they can't use it handed over to federal officers to use with impunity in a state in a federal prosecution they can't manipulate the same thing with the thought of them in the murphy case you can't get a coerced confession in state court and handed over the feds there's a principle that the two can't work together to circumvent constitutional rights and if this court doesn't follow mills and that's exactly what can happen that's why that a formal charge in one proceeding must trigger the right in another if there are any other questions here that we thank you