United States Court of Appeals

For the First Circuit

No. 04-2154

UNITED STATES OF AMERICA,

Appellee,

v.

EDWARD COKER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

James H. Budreau, for appellant.

William H. Connolly, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief, for

appellee.

December 28, 2005
 According to Wikipedia, a free-content online encyclopedia, T- 1

roofs "open a vehicle roof to the side windows, providing a wider

opening than other sunroofs. [They] have two removable glass

panels, and leave a T-shaped structural brace in the roof center."

http://en.wikipedia.org/wiki/Sunroof (last visited Oct. 27, 2005).

-2-

TORRUELLA, Circuit Judge. Defendant-appellant Edward

Coker was convicted by a jury of one count of attempted arson in

violation of 18 U.S.C. § 844(i). He now appeals, arguing that the

district court erred in denying his motion to suppress a confession

he made to federal agents because the agents violated his Sixth

Amendment right to counsel. We affirm.

I. Background

In the early morning hours of July 28, 2002, a fire broke

out inside an apartment building located at 43 High Rock Street in

Lynn, Massachusetts. Police officers and firefighters arriving at

the scene found that a glass panel on the front door of the

apartment building had been shattered. After firefighters

extinguished the fire, the officers determined that three small

fires had been set inside the building. They also found what

appeared to be a Molotov cocktail in the hallway of the third floor

of the building. The officers interviewed residents of the

building, two of whom stated that they had seen a black male, who

had been driving a Nissan sports car with a T-roof, standing on 1

the sidewalk outside the building yelling up at an apartment on the

third floor. This man entered and exited the building just before

the residents noticed the smell of smoke. One of the witnesses saw
 We discuss exactly what the witnesses saw and heard in more 2

detail in Part II.B., infra.

 The baseball bat had pieces of glass embedded in it. These 3

pieces of glass were later matched to the glass from the shattered

door panel at 43 High Rock Street.

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a straw hat in the man's car, while the other observed the man

carrying a baseball bat.2

Based on these statements, police issued a "be-on-thelookout" ("BOLO") call for a man fitting the witnesses'

description. Shortly thereafter, two officers responding to an

unrelated noise disturbance complaint a short distance from High

Rock Street saw Coker sitting in a Nissan sports car that matched

the description in the BOLO. The officers approached the car and

saw a straw hat and silver baseball bat in the front seat. The 3

officers later found a pair of rubber gloves and a butane lighter

in the center console.

The officers detained Coker and arranged for a "show-up"

identification, meaning that they arranged for the two witnesses to

be brought to Coker's location and tell the police whether he was

the man they had seen. Both witnesses identified Coker as the man

they had seen yelling and entering the building just before the

fire started. Coker was then placed under arrest.

Coker was booked at the Lynn Police Department and

charged with burning or aiding in the burning of a dwelling house,

in violation of Mass. Gen. Laws ch. 266, § 1, and malicious or
 The device was submitted to a federal forensics laboratory and 4

eventually determined to be a fake.

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wanton injuries to personal property, in violation of Mass. Gen.

Laws ch. 266, § 127. On July 31, 2002, Coker was arraigned in

state district court, had an attorney appointed, and was released

on personal recognizance.

Between July 28 and July 31, the Lynn Fire Department

notified the Bureau of Alcohol, Tobacco, and Firearms ("BATF") of

the incident because it had found what appeared to be a Molotov

cocktail in the apartment building. BATF Agent Konstantinos Balos 4

("Agent Balos") began an investigation to determine if the incident

involved a federal crime. See 18 U.S.C. § 844. Agent Balos

interviewed a number of witnesses to the alleged arson. Several

Lynn police officers were present at these interviews. On

August 8, 2002, Agent Balos and another BATF agent went to Coker's

house and asked him to consent to an interview. At this time,

Agent Balos knew that Coker was represented by counsel in the state

case. Coker agreed to the interview and, driving his own car,

followed the agents to the Lynn Fire Department, where the BATF

maintains a satellite office. The agents brought Coker into a

room, gave him a seat nearest an unlocked door, told him that he

was not under arrest and was free to leave at any time, but

nevertheless read Coker his Miranda rights, and gave him a copy of

those rights. During the interview, which lasted around ninety
 Evidently, Coker had offered a resident of the building, Edith 5

Drame, $40 for a bag of marijuana. Drame said she could get him

the marijuana, took the money, and entered her apartment with no

intention of coming back out. It was Drame's apartment that Coker

was yelling at when the two witnesses saw him.

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minutes, Coker confessed to setting fire to the High Rock Street

apartment building. Towards the end of the interview, Coker 5

became emotional, stating that he regretted setting the fire and

felt like killing himself. Coker told the agents that he wanted to

end the interview and left the station.

In April 2003, a federal grand jury indicted Coker,

charging him with one count of attempted arson in violation of 18

U.S.C. § 844(i). Coker filed a motion to suppress the confession,

arguing that the federal agents had violated his Sixth Amendment

right to counsel. The district court denied the motion to

suppress. On May 9, 2004, following a three-day jury trial, Coker

was convicted. He was sentenced to 60 months' imprisonment. He

now appeals, arguing that the district court erred in denying his

motion to suppress.

II. Discussion

A. Sixth Amendment Right to Counsel

We use a bifurcated standard in reviewing a district

court's ruling on a motion to suppress, reviewing factual rulings

for clear error and legal rulings de novo. United States v.

Pardue, 385 F.3d 101, 104 (1st Cir. 2004).
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Under the Sixth Amendment, "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence." U.S. Const. amend. VI.

This right to counsel "does not attach until a prosecution is

commenced, that is, at or after the initiation of adversary

judicial criminal proceedings -- whether by way of formal charge,

preliminary hearing, indictment, information, or arraignment."

McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (internal quotation

marks and citation omitted). The Supreme Court has held that "if

police initiate interrogation after a defendant's assertion, at an

arraignment or similar proceeding, of his right to counsel, any

waiver of the defendant's right to counsel for that policeinitiated interrogation is invalid." Michigan v. Jackson, 475 U.S.

625, 636 (1986).

In the instant case, we agree with the district court

that "there is no dispute[] that Coker's Sixth Amendment right to

counsel had attached as to the state charges at least by July 31,

2002, the date of his arraignment in state court, and that he did

not validly waive that right before" his confession to the BATF

agents. United States v. Coker, 298 F. Supp. 2d 184, 189 (D. Mass.

2003). Thus, there is no dispute that Coker's confession would not

have been admissible in the state prosecution.

The Supreme Court has stated that "[t]he Sixth Amendment

right [to counsel] . . . is offense specific. It cannot be invoked
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once for all future prosecutions." McNeil, 501 U.S. at 175. The

issue currently before us is whether the uncharged federal arson

offense was the same offense as the state arson offense for Sixth

Amendment purposes when Coker confessed to the BATF agents. As

Coker notes, both offenses involved the same essential elements of

proof. If the two offenses were the same, then Coker's Sixth

Amendment right to counsel had attached to the federal offense and

was violated when the federal agents interviewed him.

Our resolution of this issue turns on our interpretation

of Texas v. Cobb, 532 U.S. 162 (2001), in which the Supreme Court

clarified the meaning of "offense" in the Sixth Amendment context.

In Cobb, the defendant confessed to a home burglary but denied

knowledge of the simultaneous disappearances of a woman and child

from the burglarized home. Id. at 165. He was indicted for the

burglary, had an attorney appointed, and was released on bond. Id.

Over a year later, while the burglary charges were still pending,

the defendant confessed to his father that he had killed the woman

and her child. Id. His father informed the police, who arrested

the defendant and advised him of his Miranda rights. Id. The

defendant waived these rights, confessed to the murders, and was

eventually convicted of capital murder. Id. at 165-66. The Texas

Court of Criminal Appeals reversed the conviction, finding that

"the Sixth Amendment's right to counsel had attached on the capital

murder charge even though [the defendant] had not yet been charged
Following McNeil, some courts "read into McNeil's offense- 6

specific definition an exception for crimes that are 'factually

related' to a charged offense." Cobb, 532 U.S. at 168.

-8-

with that offense" because the murder charge was "factually

interwoven with the burglary." Id. at 166 (internal quotation

marks omitted). The court found that the defendant had asserted 6

his Sixth Amendment right to counsel by accepting appointment of

counsel in the burglary case, and therefore deemed the confession

inadmissible. Id.

The Supreme Court reversed, rejecting the "factually

related" exception to the offense-specific rule. Id. at 172-73.

The Court re-emphasized that the Sixth Amendment is offensespecific and looked to its Fifth Amendment double jeopardy

jurisprudence to define the term "offense" in the Sixth Amendment

context. Id. The Court applied a test it had articulated in the

double jeopardy context in Blockburger v. United States, 284 U.S.

299, 304 (1932): "where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the other

does not." Cobb, 532 U.S. at 173 (internal quotation marks and

citation omitted). The burglary and murder charges were separate

offenses under the Blockburger test. The Court thus found that the

defendant's Sixth Amendment right to counsel had not attached to

the murder charge. Id.
 There is an exception to the dual sovereignty doctrine that we 7

discuss below.

-9-

In the instant case, the state and federal arson charges

contained the same essential elements. Thus, one might conclude

that, under Cobb and Blockburger, Coker's federal and state

offenses were the same for Sixth Amendment right to counsel

purposes. However, of significant importance to the present case

is the fact that the Court in Cobb stated that "[w]e see no

constitutional difference between the meaning of the term 'offense'

in the contexts of double jeopardy and of the right to counsel."

Id. In its double jeopardy jurisprudence, the Court has held that

a defendant's conduct in violation of two separate sovereigns ("the

dual sovereignty doctrine") constitutes two distinct offenses.

See, e.g., Heath v. Alabama, 474 U.S. 82, 87-93 (1985). Thus,

under the dual sovereignty doctrine, Coker's federal offense would

be considered separate from his state offense for double jeopardy

purposes.7

The question thus becomes whether the Court in Cobb

incorporated all of its double jeopardy jurisprudence (including

the dual sovereignty doctrine) or merely the Blockburger test into

its Sixth Amendment right to counsel jurisprudence. The Second

Circuit has held that the Court incorporated only the Blockburger

test into its Sixth Amendment jurisprudence and that the dual

sovereignty doctrine does not apply in the Sixth Amendment context.
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See United States v. Mills, 412 F.3d 325 (2d Cir. 2005). In Mills,

an information issued charging the defendant with multiple state

firearms violations. Id. at 327. After the information had

issued, local police officers interviewed the defendant without

counsel present. Id. The parties did not dispute that this

interview violated the defendant's Sixth Amendment right to counsel

as to any subsequent state prosecution. Id. at 328. However, the

federal government attempted to use Mills's statements to the local

police in a subsequent federal prosecution for an offense with same

elements as the state offense. Id. The Second Circuit held that,

because the two offenses were the same under the Blockburger test,

Mills's statements were inadmissible in the federal prosecution.

Id. at 330. The court rejected the government's argument that,

under Cobb, the doctrine of dual sovereignty applied in the Sixth

Amendment context. Id. ("The fact that Cobb appropriates the

Blockburger test, applied initially in the double jeopardy context,

does not demonstrate that Cobb incorporates the dual sovereignty

doctrine."). Coker argues that we should follow the Second

Circuit's rationale.

The Fifth Circuit, along with the district court in the

instant case, has taken the position that the dual sovereignty

doctrine should be applied in the Sixth Amendment context. See

United States v. Avants, 278 F.3d 510 (5th Cir. 2002). In Avants,

the defendant was indicted in 1967 on Mississippi state murder
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charges related to the killing of African-American sharecropper

named Ben White. Id. at 513. He was provided with counsel and

released on bond. Id. While out on bond, the defendant was

interviewed without counsel by FBI agents who were investigating a

separate murder. Id. During the interview, the defendant

confessed to killing White. Id. The FBI agents did not follow up

on the confession because they were not investigating White's

murder. Id. at 513-14. The defendant was later acquitted of the

state murder charges. Id. at 514. In June 2000, the defendant was

indicted for the murder by a federal grand jury and moved to

suppress the confession he had made to the FBI agents. Id. The

Fifth Circuit held that "the Supreme Court [in Cobb] has

incorporated double jeopardy analysis, including the dual

sovereignty doctrine, into its Sixth Amendment jurisprudence." Id.

at 517. It therefore found that the defendant's uncounseled

confession to federal agents was admissible in the federal trial.

Id. at 522. The government argues that we should follow the Fifth

Circuit's rationale.

After carefully examining Cobb, we conclude that the dual

sovereignty doctrine applies for the purposes of defining what

constitutes the same offense in the Sixth Amendment right to

counsel context. In doing so, we reject the reasoning of the

Second Circuit in Mills and adopt the reasoning of the Fifth

Circuit in Avants. The court in Mills stated that "[n]owhere in
 The difference, of course, would be that offenses with the same 8

essential elements under the laws of two separate sovereigns would

not constitute the "same offense" for double jeopardy purposes,

while they would constitute the "same offense" for right to counsel

purposes.

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Cobb, either explicitly or by imputation, is there support for a

dual sovereignty exception" in the Sixth Amendment right to counsel

context. Mills, 412 F.3d at 330. This statement, in our view,

does 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 counsel." Cobb, 532 U.S. at 173. If the Court intended to

incorporate only the Blockburger test into its Sixth Amendment

jurisprudence, then its statement in Cobb would make no sense, as

there would be a difference in the meaning of the term "offense" in

the contexts of double jeopardy and of the right to counsel.8

This conclusion is bolstered by a footnote in Cobb, in

which the Court stated that "we could just as easily describe the

Sixth Amendment as 'prosecution specific,' insofar as it prevents

discussion of charged offenses as well as offenses that, under

Blockburger, could not be the subject of a later prosecution." Id.

at 173 n.3. While the Court referenced only Blockburger, the

statement indicates that the Court was referring to Blockburger in

the context of its general double jeopardy jurisprudence. In other

words, we understand the Court to have meant that if the government

could not prosecute a defendant for an offense due to double
 In this sense, the dual sovereignty doctrine serves as an 9

exception to the Blockburger test. Given the Court's statement in

Cobb that it saw no difference between the term "offense" in the

double jeopardy and right to counsel contexts, we see no reason why

the dual sovereignty doctrine would not serve as an exception to

the Blockburger test in the right to counsel context.

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jeopardy principles, then it could not question the defendant about

that offense without implicating his Sixth Amendment right to

counsel, even if the defendant had not yet been charged with the

offense. In this case, double jeopardy principles would not have

prevented the federal government from prosecuting Coker because of

the dual sovereignty doctrine. Therefore, because Coker was 9

properly subject to a later federal prosecution, it follows from

the Court's statement that the Sixth Amendment did not prevent

discussion of the uncharged federal offense.

Coker argues that applying the dual sovereignty doctrine

to cases such as his will permit law enforcement to perform an end

run around a defendant's Sixth Amendment right to counsel. As the

government notes, a similar argument was raised in Cobb and

rejected by a majority of the Supreme Court. The defendant in Cobb

had argued that applying the offense-specific rule in the Sixth

Amendment right to counsel context "will prove disastrous to

suspects' constitutional rights and will permit law enforcement

officers almost complete and total license to conduct unwanted and

uncounseled interrogations." Cobb, 532 U.S. at 171 (internal

quotation marks omitted). In rejecting this argument, the Court
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emphasized that it failed adequately to appreciate two

considerations:

First, there can be no doubt that a suspect

must be apprised of his rights against

compulsory self-incrimination and to consult

with an attorney before authorities may

conduct custodial interrogation . . . Second,

it is critical to recognize that the

Constitution does not negate society's

interest in the ability of police to talk to

witnesses and suspects, even those who have

been charged with other offenses.

Id. at 171-72. These considerations apply with equal force to the

instant case, especially given the fact that Coker was given and

waived his Miranda rights. See id. at 172 n.2 ("Even though the

Sixth Amendment right to counsel has not attached to uncharged

offenses, defendants retain the ability under Miranda to refuse any

police questioning . . . ."). Further, any concerns we may have

about potential "end runs" around the Sixth Amendment's protections

are mitigated by an exception to the dual sovereignty doctrine

first recognized by this court in United States v. Guzmán, 85 F.3d

823 (1st Cir. 1996). In Guzmán, we interpreted certain language of

the Supreme Court in Bartkus v. Illinois, 359 U.S. 121 (1959), to

mean that an exception to the dual sovereignty doctrine (the

"Bartkus exception") exists where "one sovereign so thoroughly

dominates or manipulates the prosecutorial machinery of another

that the latter retains little or no volition in its own

proceedings." Id. at 827. This exception applies with equal force

in the Sixth Amendment context. Thus, if it appears that one
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sovereign is controlling the prosecution of another merely to

circumvent the defendant's Sixth Amendment right to counsel, under

the Bartkus exception the dual sovereignty doctrine will not apply.

We believe that this exception will help prevent law enforcement

officials from making an end run around the right to counsel.

Coker next argues that, in the event we find that the

dual sovereignty doctrine applies in the Sixth Amendment right to

counsel context, we should apply the Bartkus exception to his case

because the federal and state investigations were inextricably

intertwined and because the federal agents were aware of the state

charges and that Coker had a lawyer for those charges when they

interviewed him.

In Guzmán, we stated that a defendant arguing for the

exception to the dual sovereignty doctrine "must proffer evidence

sufficient to establish a prima facie case that the two

prosecutions were for the same offense." Id. In other words,

Coker "must produce some evidence tending to prove that . . . one

sovereign was a pawn of the other, with the result that the notion

of two supposedly independent prosecutions is merely a sham." Id.

Coker has failed to carry this entry-level burden.

The district court found that

[t]he state authorities began an investigation

and interviewed witnesses on the day of the

incident. Within a day or two, they notified

the BATF of the possibility of a federal

crime, and for a time the two sovereigns

continued the investigation in parallel.
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Shortly after the BATF became involved,

however, the state effectively ended its

investigation. The federal investigation

continued, Coker was indicted by a federal

grand jury, and the state charges against him

were dropped.

Coker, 298 F. Supp. 2d at 192. We find no clear error in these

factual determinations made by the district court, nor do we

believe that Coker has pointed to any evidence tending to show that

one of the prosecutions was a sham. Rather, the "facts show

nothing more than the rendering of routine intergovernmental

assistance. Cooperative law enforcement efforts between

independent sovereigns are commendable, and, without more, such

efforts will not furnish a legally adequate basis for invoking the

. . . exception to the dual sovereign rule." Guzmán, 85 F.3d at

828.

Coker relies heavily on the Eighth Circuit's decision in

United States v. Red Bird, 287 F.3d 709 (8th Cir. 2002). In Red

Bird, the defendant was alleged to have committed a rape on a

Native American reservation. Id. at 711. He was arraigned in a

tribal court and had an attorney appointed to assist in his

representation. Id. The FBI was informed of the charge, and a

tribal investigator assisted an FBI agent in locating and

interviewing the defendant without counsel's presence. Id. The

defendant was later prosecuted on federal rape charges. Id. at

712. The Eighth Circuit rejected the government's dual sovereignty
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argument and found that evidence obtained from the interview was

inadmissible. Id. at 714-15.

The basis for the court's decision in Red Bird is not

entirely clear. On the one hand, the court looked to Cobb and,

using the Blockburger test, determined that the tribal and federal

offenses were the same for Sixth Amendment purposes because they

contained the same essential elements. Id. at 715. In so doing,

the court rejected the government's argument that the dual

sovereignty doctrine applied in the Sixth Amendment context. On

the other hand, the court repeatedly emphasized the

interconnectedness of the tribal and federal investigations as a

reason for finding that the dual sovereignty doctrine did not

apply. For example, the court noted that tribal governments and

federal authorities commonly worked together in investigating and

prosecuting crimes committed on reservations and that "tribal

sovereignty is unique and limited." Id. at 713, 715 (internal

quotation marks and citation omitted).

Coker argues that Red Bird represents an exception to the

dual sovereignty doctrine. While we think that Red Bird is not as

clear as Coker believes, to the extent that Red Bird represents

such an exception, Coker's case is distinguishable. As the

government points out, the relationship between the state and

federal investigations in Coker's case is different from the

relationship between the tribal and federal investigations in Red
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Bird. In Red Bird, there was evidence that tribal and federal

authorities commonly cooperated in investigations. In Coker's

case, although there was a certain amount of routine

intergovernmental assistance, there was no evidence that the two

sovereigns consistently worked together in investigations.

Further, there was no evidence here to suggest that one of the

prosecutions was a sham or that one of the sovereigns was the pawn

of the other, while in Red Bird, the limited and unique nature of

tribal sovereignty caused the court's concern. We therefore find

that the exception to the dual sovereignty doctrine does not apply

to Coker's case.

In sum, we hold that, as a result of the Supreme Court's

decision in Cobb, the dual sovereignty doctrine applies in the

Sixth Amendment right to counsel context. The state and federal

offenses in Coker's case were thus different offenses for Sixth

Amendment purposes and Coker's right to counsel had not attached to

the uncharged federal offense when he was interviewed by the

federal agents. The district court did not err in denying Coker's

motion to suppress.

B. Harmless Error

Even if we were to find that the district court erred in

denying Coker's motion to suppress, any error would be harmless at

best. Since the issue in this case is constitutional in nature,

the government would have the burden of proving harmless error
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beyond a reasonable doubt. See United States v. Ventura-Cruel, 356

F.3d 55, 64 n.12 (1st Cir. 2003). In other words, the government

would have to prove beyond a reasonable doubt that Coker would have

been convicted even if his confession had not been admitted into

evidence.

Coker correctly notes that we have stated that

"[c]onfessions are by nature highly probative and likely to be at

the center of the jury's attention." Id. at 64 (quoting United

States v. León-Delfis, 203 F.3d 103, 112 (1st Cir. 2000)).

However, having reviewed the record, we are convinced that, even in

the absence of the confession, the evidence against Coker was so

overwhelming that he would have been convicted.

The government presented the testimony of two residents

of the apartment building who witnessed Coker yelling outside of

the building and entering and exiting the building just before the

fire started. The first witness, April Loftman, lived on the

second floor of the apartment building. On the night in question,

Loftman was awake feeding her baby when she heard someone screaming

outside of her window. Loftman looked out of her front window and

saw a man on the sidewalk in front of the building, pacing back and

forth, yelling and pointing at Edith Drame's window, which was on

the third floor of the building just above Loftman's apartment.

The man was standing just beneath her window, and Loftman testified

that the area was well-lit. Loftman heard the man say that "you
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played the wrong person" and that he was going to "blaze this

mother fucker up." Loftman also noticed a Nissan 280Z with a Troof parked in the street facing the wrong direction. She saw a

straw hat on the front passenger seat.

Loftman saw the man enter the building. She went to her

front door and looked through her peephole to see where the man was

going. She saw the man walk past her door and heard him walk up

the stairs to the third floor. She heard the man bang on a door on

the third floor and then heard him walk back down the stairs. When

Loftman heard the door to the building open and shut, she returned

to her window. She observed the same man standing outside and

screaming. The man eventually went to his car, the Nissan with a

T-roof, at which time another man driving a Volkswagen pulled up to

the building. Loftman recognized the driver as a man who

frequented the third floor to engage in drug activity. This second

man entered the building, and the first man followed shortly

thereafter. Loftman heard the second man go to the third floor and

then she heard a door slam shut. Loftman then heard the first man

come up the stairs and jiggle the door handle to her apartment,

apparently searching for the second man. Loftman panicked and

called the Lynn Police Department, who told her to call back if

anything else happened.

Loftman heard the upstairs door shut and heard footsteps

on the stairs. She went back to the window and saw both men
 At some point, Loftman heard the sound of glass breaking but was 10

unable to recall when exactly she heard this.

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outside of the building. It appeared to Loftman that the men had

a brief conversation before the man in the Volkswagen got into his

car and drove off. Loftman then saw the first man re-enter the

building and heard him go upstairs and knock on Edith Drame's door.

When he got no answer, the man left the building. Loftman

testified that the man again said that he was going to blaze the

building before getting into his car and leaving.

About ten minutes later, Loftman heard a car door slam in

front of the building. She looked out her window and saw the same

Nissan 280Z and the same man. The man got out, opened his trunk

and entered the building. Loftman listened carefully but heard 10

no footsteps. Shortly thereafter, she heard the front door shut

again and saw the man go directly to his car and leave. Loftman

then went back to her peephole but could see only darkness. She

opened her door and saw that the hallway was full of smoke.

The second witness, Bill Terrell, also lived on the

second floor. He testified that on the night in question he was

awakened by the sounds of a man yelling in the street. He looked

out his window and saw a man standing outside yelling at the

building. This man was the only person that Terrell saw outside.

Terrell testified that he heard the man state that "you beat the

wrong person. I'm going to come back and I'm going to blaze this
-22-

whole spot up." The man eventually ran into the building. Terrell

went to his front door and heard the man running up the stairs

yelling "I'm going to fucking kill you."

As the man exited the building, Terrell heard a smash.

He stuck his body halfway out of his window and saw the man holding

a metal bat. Terrell saw the man go to his car, which he described

as a sports car with a T-roof, throw the bat inside, and drive off.

After five to eight minutes, Terrell heard a car door slam. He

looked out the window and saw the same car parked outside. Terrell

did not see anyone around the car but heard the sounds of someone

in the hallway. He called Loftman, who told him that she thought

she smelled smoke. Terrell then opened his door and saw a big

cloud of smoke in the hallway.

As we noted earlier, Coker was found driving a Nissan

sports car with a T-roof. A straw hat and metal bat with glass

embedded in it was found in his car, as were a pair of rubber

gloves and a butane lighter. In addition, both Loftman and Terrell

identified Coker that evening as the man they had seen outside of

their building. At trial, Loftman again identified Coker as the

man she had seen outside of her window. Terrell was unable to make

an in-court identification because he could no longer remember what

the man looked like. However, he testified that he was certain

that the man he had identified the morning of the fire was the man

he had seen in front of his building.
 Coker argues that his counsel did not attempt to impeach the 11

identification testimony given by Loftman and Terrell at trial

because it would have been useless given the confession. Coker

argues that, if the confession had been suppressed, he would have

impeached the identification testimony with evidence that (1)

Loftman and Terrell were driven together to the scene of the showup identification, (2) Loftman and Terrell spoke about the case as

they were being driven, and (3) Terrell identified Coker only after

Loftman identified Coker. Having considered the witnesses'

testimony and the "impeachment evidence" that Coker mentions, we

believe that a jury would have reached the same result even if

Coker's counsel had attempted to impeach the identification

testimony. Coker also argues that without the confession, he could

have attempted to focus the jury on the man in the Volkswagen as a

possible suspect. However, Loftman testified that the man in the

Volkswagen left the scene well before the fire began and did not

return. Also, the testimony of both Loftman and Terrell showed

that Coker was the only person who entered and exited the building

just before the fire. We do not believe that a jury would have

been convinced by Coker's argument, given the testimony of the two

witnesses and the corroborating physical evidence.

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In sum, the government had the testimony of two witnesses

who saw Coker outside of the building yelling and making threats,

including that he was going to kill someone and that he was going

to "blaze" this building. They saw Coker enter the building and

exit just before they noticed smoke. They also identified Coker's

car, as well as objects in the car. Based on this testimony and

the corroborating physical evidence, we are convinced that a jury

would have convicted Coker even without evidence of the

confession. Therefore, any possible error from admitting the 11

confession was harmless at best.

III. Conclusion

For the foregoing reasons, Coker's conviction is

affirmed.
-24-

"Concurring opinions follows."
-25-

CYR, Senior Circuit Judge (Concurring). The admission

into evidence of the Coker confession violated the Sixth Amendment

right to have counsel present during the post-indictment interview.

I would affirm on the ground that the violation was harmless beyond

a reasonable doubt. I write separately, since I am unable to agree

with the panel decision that no Sixth Amendment violation occurred,

and I am concerned that its alternate holding may invite serious

precedential consequences. See California v. United States, 438

U.S. 645, 689 n.10 (1978) (stating that court's alternate holdings

are not obiter dicta, but have full precedential effect); Natural

Res. Def. Council, Inc. v. Nuclear Regulatory Comm'n, 216 F.3d

1180, 1189 (D.C. Cir. 2000) (same).

Prior to Cobb, there was no question but that the

"separate sovereign" doctrine, pursuant to which federal and state

prosecutions for the same offense were not deemed offensive to the

Fifth Amendment double jeopardy clause, had no application outside

the double jeopardy context. For instance, the separate sovereign

doctrine neither applies to the Fourth Amendment protection from

unreasonable searches and seizures, see Elkins v. United States,

364 U.S. 206, 208 (1960) ("[A]rticles obtained as a result of an

unreasonable search and seizure by state officers, without

involvement of federal officers," cannot "be introduced in evidence

against a defendant over his timely objection in a federal criminal

trial"), nor to the Fifth Amendment privilege against self-
-26-

incrimination, see Murphy v. Waterfront Comm'n of N.Y. Harbor, 378

U.S. 52, 55 (1964) (stating that the policy reasons underlying the

self-incrimination prohibition are "defeated when a witness can be

whipsawed into incriminating himself under both state and federal

law even though the constitutional privilege against selfincrimination is applicable to each"). Elkins and Murphy wisely

recognized that allowing the separate sovereign doctrine to operate

in the context of these important constitutional protections would

encourage collusion between the federal and state sovereigns, one

sovereign obtaining evidence in violation of defendants'

constitutional rights, then passing the evidence on a "silver

platter" to the other sovereign, which would then be free to

utilize the tainted evidence in its own prosecution with no risk of

suppression. Elkins, 364 U.S. at 208. Obviously, no comparable

policy concerns regarding evidence-gathering are presented in the

double jeopardy context.

Read properly, Cobb does not compel the anomaly which the

majority now countenances, viz., permitting federal and state

authorities to violate a defendant's Sixth Amendment right to

counsel where they are prohibited from undertaking similar

collusive actions with respect to Fourth Amendment and Fifth

Amendment rights. Indeed, the Sixth Amendment right to counsel has

been long recognized as among the constitutional protections most

critical to ensuring the conduct of fair criminal trials. See
-27-

Massiah v. United States, 377 U.S. 201, 205 (1964); Gideon v.

Wainwright, 372 U.S. 335, 343-44 (1963); Johnson v. Zerbst, 304

U.S. 459, 462-63 (1938). In Cobb, the federal government was not

involved. Rather, the State indicted Cobb for burglary, later

interrogated him, without the aid of counsel, concerning a murder

committed during that burglary, and used his incriminating

statements during that post-indictment interview to indict him for

that murder. On appeal, the question was whether the burglary and

murder were the same "offense." Although some courts had devised

a test which considered two crimes the same if they were factually

related (e.g., committed on the same day), the Court imported the

Blockburger test from the double jeopardy definition of "offense,"

and held that two offenses are not the same for Sixth Amendment

purposes if each requires proof of a fact that the other does not.

Cobb, 532 U.S. at 173. It was in this straitened context that the

Court stated that "[w]e see no constitutional difference between

the meaning of the term 'offense' in the contexts of double

jeopardy and of the right to counsel." Id.

Here, there is no question but that Coker was questioned

after his indictment regarding the "same offense," and under Cobb

and the Blockburger test, his Sixth Amendment right to counsel had

attached. In order to find otherwise, one must assume that the

Court held that, the particular facts of the case before it

notwithstanding, it meant to decide that henceforth there would be
-28-

no conceivable differences between the term "offense" in the double

jeopardy and Sixth Amendment contexts. The Court in Cobb did not

even consider the policy issues raised in Elkins and Murray, for a

simple reason: the case before it did not involve separate

sovereigns.

'If there is one doctrine more deeply rooted

than any other in the process of

constitutional adjudication, it is that we

ought not to pass on questions of

constitutionality . . . unless such

adjudication is unavoidable.' . . . It has

long been the Court's 'considered practice not

to decide abstract, hypothetical or contingent

questions . . . or to decide any

constitutional question in advance of the

necessity for its decision . . . or to

formulate a rule of constitutional law broader

than is required by the precise facts to which

it is to be applied . . . or to decide any

constitutional question except with reference

to the particular facts to which it is to be

applied.'

Clinton v. Jones, 520 U.S. 681, 690 n.11 (1997) (citations

omitted). Especially in light of Elkins and Murray, and their

focus upon the important policy of preventing collusive end-runs

around constitutional safeguards, there remains considerable doubt

whether the Court, if and when confronted with a separate sovereign

case, would hold that the Sixth Amendment right to counsel should

be treated less cordially than the Fourth and Fifth Amendment

rights, absent some compelling reason for doing so. See United

States v. Mills, 412 F.3d 325, 329-30 (2d Cir. 2005) (holding that

Cobb did not intend to import separate sovereign doctrine into
-29-

Sixth Amendment context); cf. United States v. Red Bird, 287 F.3d

709, 715 (8th Cir. 2002) (refusing to apply separate sovereign

doctrine to Sixth Amendment right to counsel in joint federaltribal crime investigation).

These policy concerns cannot be fully assuaged simply by

resort to the Bartkus exception to the separate sovereign doctrine

in the double jeopardy context, since it 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 the proceedings." United States v. Guzmán, 85

F.3d 823, 827 (1st Cir. 1996). Obviously, this leaves out much of

the mutual collusion of independent sovereigns which is the subject

of Elkins and Murray, and creates a portentous risk of abuse in

this age of increasing federal-state cooperation. See United

States v. Martínez, 972 F.2d 1100, 1105 (9th Cir. 1992). I see no

principled reason that the Sixth Amendment right to counsel ought

to be subject to the separate sovereign doctrine when the Fourth

Amendment and Fifth Amendment self-incrimination rights are not.

Nor can I agree with my colleague's co-concurrence, which

finds this overly broad interpretation of Cobb consonant with the

Court's decisions not unnecessarily to thwart police investigations

of crime, for the argument improperly demotes Sixth Amendment

protection from substance to mere form, and overlooks the

countervailing policy interests discussed in Elkins and Murray.
My concurring colleague also advances his Cobb interpretation 12

as affording police officers the advantage of a clear bright-line

rule, but the same can be said of a rule which does not allow any

invocation of the separate sovereign doctrine as a justification

for a post-indictment interview concerning the offense of

indictment. Be that as it may, clarity has never been the

paramount benchmark of constitutional interpretation, which often

requires difficult judgment calls by law enforcement officials in

the field.

-30-

The Sixth Amendment right to counsel already has built-in

safeguards: the right can be invoked only for the offense for which

defendant is under indictment, not for "new or additional crimes,"

Maine v. Moulton, 474 U.S. 159, 179 (1985), and "cannot be invoked

once for all future prosecutions," McNeil v. Wisconsin, 501 U.S.

171, 175 (1991). The rationale advocated by the co-concurrence

would render Sixth Amendment protections essentially meaningless,

subject to the most blatant and irremediable manipulation. See

Cobb, 532 U.S. at 168 (Breyer, J., dissenting) ("The Constitution

does not take away with one hand what it gives with the other.").12

For these reasons, I do not join in the alternative

holding that the police interview with Coker did not violate his

Sixth Amendment right to counsel. At the very least, prudence

counsels that we refrain from deciding this difficult and important

constitutional issue. See Bellville v. Town of Northboro, 375 F.3d

25, 30 (1st Cir. 2004) ("Normally, we endeavor to avoid deciding

constitutional issues and attempt to decide cases on the narrowest

grounds possible."). However, I do agree with my colleagues in

their alternative holding: that any Sixth Amendment violation was
-31-

harmless beyond a reasonable doubt. Although I recognize that a

confession normally carries great evidentiary heft, see United

States v. Carpenter, 403 F.3d 9, 13 (1st Cir.), cert. denied, 125

S. Ct. 2284 (2005), the other circumstances of this case persuade

me that the error was harmless, see, e.g., United States v. DownsMoses, 329 F.3d 253, 267-68 (1st Cir.), cert. denied sub nom. WardO'Neill v. United States, 540 U.S. 916 (2003).

"Concurring opinion follows."
-32-

HOWARD, Circuit Judge (Concurring). I agree with Judge

Torruella that the government did not violate defendant Edward

Coker's Sixth Amendment right to counsel, and that Texas v. Cobb,

532 U.S. 162 (2001), is instructive as to why. Coker argues that

the interests protected by the prohibition against government

contact with an accused after the right to counsel has attached

would be undermined if federal authorities, investigating whether

an incident that already has given rise to state charges also

should be charged as a parallel federal offense, were permitted to

question the accused without first approaching his lawyer in the

state proceeding. The argument is a classic one for substance over

form: the substance of the right to counsel would be unduly

compromised if, under these circumstances, the court were to accord

dispositive significance to the fact that the federal crime being

investigated, while containing the same elements as the charged

state crime, is formally distinct because it is a crime against a

separate sovereign.

The problem with Coker's argument is that, sometimes, a

formalist approach itself serves substantive interests. In this

case, the formalist approach urged by the government will serve an

interest in permitting investigating authorities to talk with

witnesses and suspects who have been charged with formally distinct

offenses -- even those arising from the same incident under

investigation. And it will do so by means of a bright-line rule
 I acknowledge the merit of our concurring colleague's well 13

articulated prudential concerns, but I cannot join his analysis of

whether there has been a Sixth Amendment violation, because the

analysis is in my view argumentum ad consequentiam.

-33-

that eliminates the need for judgment calls about where

constitutional boundaries might lie. As Judge Torruella explains,

a majority of the Supreme Court -- albeit a slim one -- has in no

less compelling circumstances favored the investigative interest

over the admittedly substantial interests invoked by Coker. See

Cobb, 532 U.S. at 171-72. Having constructed and justified the

formalist approach, the Court should be the source of any change in

legal direction.13