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

___________ Bef ore BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Alfon so Moore appeals the district court's denial of his motion to suppress a 1 statement that he made to a government agent. We affirm.-2- I. While Mr. Moore was incarcerated in New York state on unrelated stat e cha rges, the Bureau of Alcohol, Tobacco, and Firearms ("BATF") filed a criminal complaint against him in the Western District of Mis souri, alleging that he had violated 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by a felon. A n affidavit by a BATF agent accompanied the complaint, and, after making a finding of proba ble 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 appe arance, Mr. Moore waived his right to an identity hearing, and the magistrate judge ordered him returned to the Western District of Missouri. Up on Mr. Moore's return to Missouri, a pretrial services officer interviewe d him. During this interview, Mr. Moore completed th e 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 age nt conducted a second interview of Mr. Moore. The BATF agen t obtaineda 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 indicte d 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 counse l attached with the fili ng 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 ineffec tive, and that his statement to the BATF agent was therefore taken i n violation of the Sixth Amendment. Because we believe that Mr. Moore's Sixth-3-

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), th e Suprem e Court held that the right to counsel guaranteed by the Sixth Amendmen t attaches only "at or after the time that adversary judicial proceedings have bee n initiated ... whether by way of formal charge, preliminary hearing, indictment , informat ion, or arraignment." It is at that point, the Court explained, that "th e government has committed itself to prosecute, and only then that the adverse positions of governm ent and defendant have solidified," id. at 689 (plurality opinion), thu s initiating judicial criminal proceedings and rendering the assistance of counse l necessary. While it is wel l 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 de cided 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. 198 7), cert. denied , 486 U.S. 1011 (1988), and United States v. Duvall , 537 F.2d 15, 22 (2d Cir. 19 76), 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). Comp laints under Fed. R. Crim. P. 3 are, theref

ore, by definition, issued before an arrest occurs. If an arrest does no t trigger the Sixth Amendment right to counsel, we are unable to see how the issuance of a com plaint that serves as the basis for a probable cause determination authorizing a lat er arrest would trigger that right. Because warrantless arrests are sometime s au thorized, moreover, we note that if we were to hold that the right to counsel doe s attach when a complaint under Fed. R. Crim. P. 3 issues, we would be granting greater protection to persons arrested with war rants than without, thus discouraging the use of warrants i n making arrests for federal crimes. See Duvall , 537 F.2d at 22. W e therefore hold that the issuance of a complaint under Fed. R. Crim. P. 3 is not the type-4-

of "formal charge" contemplated by Kirby , 406 U.S. at 689 (p lurality 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 (11 th 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 cas e before us. Chewning , 29 F.3d at 420, addressed the point at w hich 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. Fo r the foregoing reasons, we affirm the district court's order denyin g Mr. Moore's motion to suppress his statement. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.