Appeal from the United States District Court for the District of Oregon. D.C. No. CR-90-00273-OMP. Owen M. Panner, Chief Judge, Presiding. Original Opinion Reported at,
Before: James R. Browning, Dorothy W. Nelson and William C. Canby, Jr., Circuit Judges. Opinion by Judge Canby; Dissent by Judge D.w. Nelson.
AMENDED OPINION AND ORDER
This is an interlocutory appeal by the United States of an order suppressing a statement that defendant Jose Flores Martinez made to federal investigators. The central issue is whether Martinez's request for counsel in his state proceedings prohibited a subsequent interrogation by federal officials outside the presence of counsel after the state charges were dismissed. We conclude that the resolution of this question depends on the degree of cooperation between federal and state authorities, which is not clear from the record before us. We therefore remand.
Martinez was arrested in March 1990 and was subsequently charged in the Circuit Court for Wasco County, Oregon with possession of a firearm by a convicted felon, theft of a firearm, and possession of a controlled substance. At his arraignment, he requested an attorney and completed a form entitled "Affidavit of Indigence and Order for Appointment of Counsel." The state charges were dismissed, however, so no attorney was appointed. Martinez nonetheless remained in state custody, because his pre-existing parole had been revoked as a result of his arrest.
On September 4, 1990, two days before Martinez's custodial time on the parole violation was scheduled to elapse, a federal criminal complaint was filed alleging possession of a firearm by Martinez, a convicted felon. On September 6, state authorities released him into federal custody. The federal agents advised Martinez of his Miranda rights, which he waived, and then questioned him about the gun at issue. During that interrogation, Martinez admitted that he had knowingly purchased the handgun, and he executed an affidavit to that effect. On the same day, Martinez made his first appearance in federal court and counsel was appointed. After he was indicted, Martinez moved to suppress his statement to the federal agents, arguing that their initiation of interrogation after his request for counsel on the state charges violated his rights under the Fifth and Sixth Amendments. No evidence was introduced about the relationship between the state and federal investigations. The district court granted Martinez's motion, and the United States now appeals.*fn1
The issue in this case is relatively straightforward: Did Martinez's request for counsel at his arraignment on state charges preclude the federal officers from questioning him outside the presence of counsel on federal charges arising from the same incident, when the state charges had been dismissed? Martinez suggests two possible bases for an answer in the affirmative: the Miranda rights under the Fifth Amendment and the Sixth Amendment right to counsel.
Martinez argues that his request for an attorney at the state arraignment, which clearly triggered his Sixth Amendment right to counsel for the state charges, also invoked his Fifth Amendment right to an attorney under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), thereby preventing the federal agents (as well as the state officials) from questioning him about any offense outside the presence of counsel. Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988) (if suspect invokes Miranda right to counsel, police cannot reapproach regarding different offense unless counsel is made available). The district court ruled in favor of Martinez on the Miranda ground. In doing so, however, the district court did not have the benefit of the later decision of the Supreme Court in McNeil v. Wisconsin, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). In that case, McNeil requested an attorney at a bail hearing on an armed robbery charge (arising out of an incident in West Allis, Wisconsin), thereby triggering his Sixth Amendment right to counsel. Police subsequently interrogated him (after properly advising him of his Miranda rights) about a murder in Caledonia, Wisconsin, and he made several incriminating statements about the Caledonia crime. McNeil contended that his request for counsel at the bail hearing invoked both his Sixth and Fifth Amendment rights to counsel, and that the court accordingly should have suppressed the evidence arising out of the interrogations on the Caledonia murder. The Supreme Court rejected that argument, holding that McNeil's invocation of his Sixth Amendment right to counsel did not also invoke his Fifth Amendment right to counsel. In so ruling, the court stated that application of Miranda and Edwards "requires, at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction." McNeil, 111 S. Ct. at 2209 (emphasis in original). Martinez gives us no reason to distinguish his invocation of his Sixth Amendment right at his arraignment from McNeil's similar invocation at his bail hearing, and there appears to be none. In both cases, the suspect requested assistance of counsel in defending himself at trial, and in neither case did the suspect express his "desire for the assistance of an attorney in dealing with custodial interrogation by the police." We conclude, therefore, that McNeil applies to Martinez's Fifth Amendment argument and compels us to reject Martinez's assertion that the federal authorities' interrogation violated his right to counsel under the Fifth Amendment. It was accordingly error for the district court to suppress Martinez's statement on Miranda grounds.
In Michigan v. Jackson, 475 U.S. 625, 636, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), the Supreme Court 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 police-initiated interrogation is invalid." The Court in Jackson had no occasion to consider the question of an interrogation for another crime, but the Supreme Court discussed the issue in Maine v. Moulton, 474 U.S. 159, 179-80, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985), and ruled on it in McNeil. In the latter case, as we noted above, McNeil had requested (and received) assistance of counsel with respect to the West Allis charge but was later interrogated about the Caledonia murder outside the presence of counsel. The Supreme Court found that the statements McNeil gave in the interrogations did not fall under the Jackson rule, because they concerned separate offenses. The Court stated that both the Sixth Amendment right and "its ...