The Honorable Russell G. Clark, United States District Judge for the Western 1

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1522

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Alfonso Moore, *

*

Appellant. *

___________

Submitted: June 11, 1997

Filed: September 10, 1997

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Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Alfonso Moore appeals the district court's denial of his motion to suppress a

1

statement that he made to a government agent. We affirm. 
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I.

While Mr. Moore was incarcerated in New York state on unrelated state

charges, the Bureau of Alcohol, Tobacco, and Firearms ("BATF") filed a criminal

complaint against him in the Western District of Missouri, alleging that he had violated

18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by a felon. An

affidavit by a BATF agent accompanied the complaint, and, after making a finding of

probable cause, a United States magistrate judge issued a warrant for Mr. Moore's

arrest. On the basis of that warrant, Mr. Moore was arrested in New York and taken

before a United States magistrate judge for the hearing required by Fed. R. Crim. P.

40(a). At that appearance, Mr. Moore waived his right to an identity hearing, and the

magistrate judge ordered him returned to the Western District of Missouri.

 Upon Mr. Moore's return to Missouri, a pretrial services officer interviewed

him. During this interview, Mr. Moore completed the financial status affidavit used by

the court to evaluate claims of financial need. After that interview, while Mr. Moore

was awaiting his appearance before the magistrate judge for appointment of counsel,

the BATF agent conducted a second interview of Mr. Moore. The BATF agent

obtained a signed, written waiver of Mr. Moore's right to counsel and a statement by

Mr. Moore that he had possessed and sold a firearm. A federal grand jury indicted

Mr. Moore, charging him with violating 18 U.S.C. § 922(g)(1), soon thereafter. After

the district court denied Mr. Moore's motion to suppress the statement that he made to

the BATF agent, he pleaded guilty to the charge against him. 

II. 

Mr. Moore appeals the district court's refusal to suppress the statement that he

made to the BATF agent. He argues that his Sixth Amendment right to counsel

attached with the filing of the criminal complaint, that he invoked that right during the

interview with the pretrial services officer, that any waiver of that right without counsel

was ineffective, and that his statement to the BATF agent was therefore taken in

violation of the Sixth Amendment. Because we believe that Mr. Moore's Sixth 
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Amendment right to counsel had not attached at the time of the statement in question,

we disagree.

In Kirby v. Illinois, 406 U.S. 682, 688-89 (1972) (plurality opinion), the

Supreme Court held that the right to counsel guaranteed by the Sixth Amendment

attaches only "at or after the time that adversary judicial proceedings have been

initiated ... whether by way of formal charge, preliminary hearing, indictment,

information, or arraignment." It is at that point, the Court explained, that "the

government has committed itself to prosecute, and only then that the adverse positions

of government and defendant have solidified," id. at 689 (plurality opinion), thus

initiating judicial criminal proceedings and rendering the assistance of counsel

necessary. While it is well settled that an arrest is not a "formal charge" giving rise to

a right to counsel, United States v. Gouveia, 467 U.S. 180, 190 (1984), our court has

not yet decided whether the filing of a complaint under Fed. R. Crim. P. 3 constitutes

a "formal charge" that does give rise to such a right. We believe that it does not.

As explained in United States v. Pace, 833 F.2d 1307, 1312 (9th Cir. 1987), cert.

denied, 486 U.S. 1011 (1988), and United States v. Duvall, 537 F.2d 15, 22 (2d Cir.

1976), cert. denied, 426 U.S. 950 (1976), the principal function of a complaint under

Fed. R. Crim. P. 3 is to serve as the basis for a judicial determination of probable cause

for an arrest warrant under Fed. R. Crim. P. 4(a). Complaints under Fed. R. Crim. P. 3

are, therefore, by definition, issued before an arrest occurs. If an arrest does not

trigger the Sixth Amendment right to counsel, we are unable to see how the issuance

of a complaint that serves as the basis for a probable cause determination authorizing

a later arrest would trigger that right. Because warrantless arrests are sometimes

authorized, moreover, we note that if we were to hold that the right to counsel does

attach when a complaint under Fed. R. Crim. P. 3 issues, we would be granting greater

protection to persons arrested with warrants than without, thus discouraging the use of

warrants in making arrests for federal crimes. See Duvall, 537 F.2d at 22. We

therefore hold that the issuance of a complaint under Fed. R. Crim. P. 3 is not the type
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of "formal charge" contemplated by Kirby, 406 U.S. at 689 (plurality opinion), and that

a person's Sixth Amendment right to counsel does not attach upon the filing of such a

complaint. See, e.g., United States v. Langley, 848 F.2d 152, 153 (11th Cir. 1988) (per

curiam), cert. denied, 488 U.S. 897 (1988); Pace, 833 F.2d at 1312; and Duvall, 537

F.2d at 22. 

We note further that our decision in Chewning v. Rogerson, 29 F.3d 418 (8th

Cir. 1994), does not govern the case before us. Chewning, 29 F.3d at 420, addressed

the point at which the right to counsel attached in a criminal case in a particular state,

and our holding today is limited to complaints filed pursuant to Fed. R. Crim. P. 3. 

III.

For the foregoing reasons, we affirm the district court's order denying

Mr. Moore's motion to suppress his statement. 

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.