Criminal defense lawyers are all too familiar with the scenario. The client is charged with a crime that offends both state and federal law, but at the outset, only the state seems interested in prosecuting. After the client is arrested and released on bond, the lawyer prepares for the preliminary hearing. But on that date, the lawyer gets an unwelcome surprise: The Commonwealth’s Attorney announces in court that he is dismissing the charges against the defendant, and an unsmiling federal agent is sitting in the courtroom waiting to take defendant into custody on freshly-minted federal charges, which are often far more extensive.

In a case handed down on Monday, March 13, the Fourth Circuit finds that in this circumstance, the invocation of the defendant’s right to counsel in the state case does not carry over to the federal case. Monday’s decision is US v. Alvarado. There, Alvarado had been interrogated by a federal ATF agent in relation to federal charges after an attorney had been appointed for him in the state charge. When the agent sat Alvarado down, the defendant couldn’t wait to start singing like a bird; the agent had to stop him long enough to Mirandize him. With that formality out of the way, Alvarado proceeded to inculpate himself in ways he would later regret.

His attorney in federal court moved to suppress the interrogation, not due to Miranda v. Arizona (remember, the ATF agent mirandized him), but under the Sixth Amendment. Since Alvarado had an attorney, the feds clearly couldn’t question him in the absence of that lawyer. Or could they?

They did and, the Fourth rules, they could. The key to this holding is that while the general subject of the two prosecutions is the same — possession and distribution of cocaine — the offenses are distinct. The federal crimes charged were much more extensive, including elements and even time ranges not included in the state charges. That means that the two investigations, and the two prosecutions, were separate, so an appointment of an attorney for one charge (in state court) did not carry over to the other.

The court describes this issue, at the outset, as implicating the dual sovereignty that is at the heart of the American system of government. It notes that two governments, one state and the other federal, may each elect to criminalize common conduct, but each retains its own sovereignty to determine when certain conduct violates its own criminal law. Since the laws are different, the prosecutions are different; since the prosecutions are different, the assignment of court-appointed counsel is different; and since the appointment of counsel is different, each must be separately requested. Once in the hands of federal authorities, Alvarado didn’t request an attorney; he requested a microphone.

Those attorneys who are guardians of the rights of criminal defendants will justifiably regard this ruling as a setback. It must be cruelly frustrating for an attorney to learn that a government agent has interrogated his client — his client! — without the attorney’s presence or even knowledge, and that such uncounseled statements will be admissible in the government’s case in chief. But Monday’s ruling legitimizes this practice within the limited contours of this form of dual or parallel prosecution. In tandem with the Fourth’s recent ruling in US v. Nichols, this case indicates that the landmines for the federal criminal defense bar are spreading.


Ever since the 1960’s, police have been required to obey the mandate that when a custodial interrogee invokes the right to consult with counsel, “all questioning must cease.” Any violation of this rule results in the invocation of the most celebrated exclusionary rule in American jurisprudence. Americans have largely understood the mandates of Miranda v. Arizona to be inflexible and absolute; the government may not use any information obtained in violation of Miranda against the accused at trial.

Well, not so fast. Actually, there are occasions in which the prosecution may use illegally obtained self-inculpatory statements. For example, they may be used to impeach the defendant if he takes the witness stand, as long as the statement was not coerced. Information gained from a non-coerced statement also may result in leads that the police may freely pursue, giving them access to witnesses and physical evidence they would not otherwise learn about.

Today, February 28, the Fourth Circuit finds another place in which illegally obtained statements can be used: At sentencing. In US v. Nichols, it rules that where such evidence is reliable, no good policy reasons support exclusion of the statement from the sentencing phase of a trial. In this case, Nichols engaged in a casual conversation with police, without the use of handcuffs. He got a cigarette when he wanted one. He stated that he thought it would be better for him to talk with police.

That didn’t stop a magistrate judge, and then a US district judge, from granting Nichols’ attorney’s motion to suppress the statements. They were not used in the guilt phase of trial, and two charges against Nichols had to be dropped as a result. But when he pleaded guilty to a remaining bank robbery charge, the government offered the uncounseled statements at the sentencing phase. The district court specifically declined to consider them.

In an unusual move, prosecutors appealed the district court’s refusal; today, they win. The Fourth Circuit finds that this type of evidence is really not very different from other types of evidence that are routinely considered in sentencing, but would be strictly forbidden at the guilt phase (for example, evidence of prior convictions to enhance punishment). The decision stops short of sanctioning police efforts to develop uncounseled statements for the primary purpose of enhancing sentencing, so investigators can’t use this case as a green light to go fishing for inflammatory evidence.

But today’s ruling will probably sound an alarm for those guardians of the Fifth Amendment who have by now become accustomed to seeing assaults upon the Miranda doctrine; they may well gather villagers with pitchforks and torches to seek a rehearing en banc or a petition for certiorari. As readers of this site know well, I do not engage in speculation on how such further proceedings would come out, but I do see this as a likely case for further action, this time by Nichols’ lawyers.