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Sixth Amendment Case Analysis

The decision is noteworthy for a couple of reasons. First, the court appears sympathetic to the argument that the interrogation by federal agents in this case did violate the right to counsel. The court could easily have stated that it found the reasoning in U.S. v. Avants, 278 F.3d 510 (5th Cir. 2002), and U.S. v. Coker, 298 F.Supp.2d 184 (D.Mass.2003), persuasive, and held that a defendant’s invocation of his right to counsel in state court is not invocation of the right as to a federal charge, irrespective of the common factual basis for the two charges.

Instead, the court merely cited those two cases, without even stating the facts, or iterating the reasons those courts gave for their holdings.

In contrast, the court discussed U.S. v. Mills, 2005 WL 1444145 (2d Cir. June 21, 2005), U.S. v. Red Bird, 287 F.3d 709 (8th Cir. 2002), and U.S. v. Bowlson, 240 F.Supp.2d 678 (E.D.Mich.2003), at significant length. The court also cited a law review article arguing that dual sovereignty principles should not be imported into Sixth Amendment jurisprudence, because dong so "creates the potential for cooperating sovereigns to circumvent a defendant’s Sixth Amendment right to counsel." David J. D’Addio, Comment, Dual Sovereignty and the Sixth Amendment Right to Counsel, 113 Yale L.J. 1991, 1992 (2004).

Even if nothing in the court’s opinion may constitute dicta that it agrees with those courts, the court has at least provided an excellent blueprint for any defense attorney to follow in future cases.

Another fascinating issue this case raises, even if the court found it forfeited and declined to address it in this case, is whether U.S. v. Booker, 125 S.Ct. 738 (2005) has any effect on U.S. v. Brimah, 214 F.3d 854 (7th Cir. 2000).

Booker, of course, held the federal sentencing guidelines unconstitutional, because they permit sentences to be increased based on facts, other than a prior conviction, that have not been admitted by the defendant, or found by a jury beyond a reasonable doubt.

Brimah holds that the exclusionary rule is inapplicable at sentencing, subject to one very narrow exception.

Arguably, the two holdings are irreconcilable. Suppose the court had decided the Sixth Amendment question in Krueger’s favor, and held his interrogation unlawful (and that no other evidence would have supported a finding that Krueger distributed more than 100 kilograms of marijuana, but only three kilograms).

The confession would have to be suppressed at any trial, and it would thus be a judicial impossibility for any jury to have found Krueger responsible for 100 kilograms. Brimah thus appears to no longer be valid law.

Ultimately, however, the argument must fail, because of the remedial holding in Booker — that the remedy for the mandatory guidelines being unconstitutional is to treat them as advisory.

The sentencing court is free to impose a sentence below the guideline range dictated by the 100 kilogram judicial finding. Thus, the judicial finding does not run afoul of the holding in Booker that the guidelines are unconstitutional.

Nevertheless, a defendant in Krueger’s position does have one argument that could pass muster — that, post-Booker, the appropriate guideline range may no longer be based on unlawfully seized evidence, even though such evidence may be used by the court to impose a sentence above the guidelines in its discretion.

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Brimah holds that the exclusionary rule does not bar the introduction of the fruits of illegal searches and interrogations. 18 U.S.C. 3661 permits sentencing judges to consider the broadest possible array of information about the defendant.

However, there is a difference between a rule that the court may consider evidence, and a rule that such evidence must be used in determining the presumptive guideline range. In light of Booker, a reasonable argument can be made that, in determining the presumptive guideline range, the court may not consider illegally obtained evidence that could not have been used by the jury to find the defendant guilty, but it may only be considered by the court as a basis to impose a sentence above the presumptive guideline range.

The argument was forfeited in this case, but should not be in future ones.

– David Ziemer

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David Ziemer can be reached by email.

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