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NARROWING THE RIGHT TO COUNSEL: PROBLEMS OF THE OFFENSESPECIFIC REQUIREMENT OF THE SIXTH AMENDMENT I. INTRODUCTION In United States v. Holness,1 the Fourth Circuit held that the Sixth Amendment right to counsel is offense specific and attaches only to charged offenses.2 The test set out in Blockburger v. United States3 is applied to determine whether, for the purposes of the Sixth Amendment, related offenses should be deemed the same as the charged offenses.4 Two offenses are not the same if each offense "requires proof of a fact which the other does not."5 Accordingly, the Fourth Circuit held that Ryan Holness could not attack the validity of his federal conviction even if he had invoked his Sixth Amendment right to counsel in connection with a prior state charge of murder, because the right to counsel did not attach to the federal charges.6 This Note argues that the offense-specific nature of the Sixth Amendment right to counsel invites, at least implicitly, police manipulation and induces state and federal officers to collude to evade the constitutional limitations set out in the Sixth Amendment.7 The Fifth Amendment right to counsel likely cannot completely curb this evasion, because it differs in several ways from its

1 United States v. Holness, 706 F.3d 579 (4th Cir. 2008). 2 Id. at 589. 3 Blockburger v. United States, 284 U.S. 299 (1932). 4 Holness, 706 F.3d at 590. 5 Blockburger, 284 U.S. at 304. 6 Holness, 706 F.3d at 591. 7 See infra Part V.A.

Sixth Amendment counterpart.8 The offense-specific requirement of the right to counsel places suspects and their attorneys in a precarious position.9 Further, the use of the Blockburger test in Sixth Amendment cases is particularly problematic; therefore, the alternative "closely related" test may be more appropriate.10 II. FACTS Ryan Holness and his wife, Serika Dunkley, were both from Jamaica and married in June

2003.11 In late 2008, Holness purchased a $500,000 life insurance policy for Dunkley and named himself as the beneficiary.12 Dunkley travelled to Maryland in 2009 with Holness, and was killed by Holness and an unknown accomplice.13 Holness claimed that he and Dunkley had been carjacked.14 Holness's story, however, did not hold up: A police bloodhound tracked his scent to a nearby river that he denied having walked toward, and his claimed unconsciousness could not be substantiated medically.15

8 See id. 9 See infra Part V.B. 10 See infra Part V.C. 11 Holness, 706 F.3d at 583. 12 Id. 13 Id. 14 Id. 15 Id. at 584. 2

Holness's story failed to convince the investigators, and he was arrested and charged with first- and second-degree murder for the death of Dunkley.16 While Holness was in the county detention center, he shared information about the murder with his cellmate, Stephen McGrath, who came to believe that Holness had murdered his wife.17 McGrath wrote a letter to the Kent County prosecutor in which he stated that Holness confronted Dunkley when she found out that he was cheating, but "something wasn't right there."18 After sending the letter, McGrath met with Sergeant Hall, who invited McGrath to continue talking to Holness to seek more information, but advised that he could not ask Holness any questions.19 McGrath testified that, not long thereafter, Holness asked him to help write a confession letter purportedly by the carjacker to the Washington Post in order to divert police suspicion from Holness.20 McGrath informed Sergeant Hall of Holness's plan and was given a recording device to record future conversations with Holness.21 McGrath composed a first letter for Holness, but Holness was dissatisfied with it.22 Holness later composed on his own a second letter that was never sent, but McGrath saved part

16 Id. at 585. 17 Id. 18 Id. at 585-86. 19 Id. at 586. 20 Id. 21 Id. 22 Id. 3

of the second letter and recited the remainder of it into the recorder.23 McGrath gave the letter fragment and the recorder to Sergeant Hall in a later meeting.24 The state murder charge was later dismissed, and Holness was then charged with interstate domestic violence (Count One), attempted obstruction of an official proceeding (Count Two), attempted witness intimidation (Count Three), and fraudulent misuse of a passport (Count Four).25 Holness moved to exclude evidence from McGrath; the district court denied the motion and severed Count Four.26 The jury returned a guilty verdict on the remaining three counts.27 Holness was ultimately sentenced to life imprisonment on Count One, with a 240-month concurrent term on Count Three.28 The remaining counts were dismissed pursuant to the government's motion.29

23 Id. 24 Id. 25 Id. at 587. 26 Id. 27 Id. 28 Id. at 588. 29 Id. 4

III. LEGAL BACKGROUND A. Sixth Amendment right to counsel and its offense-specific nature The Sixth Amendment explicitly states the right to counsel: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."30 The genesis of the right lies in Massiah v. United States,31 in which the Court held that the uncounseled statements of the defendant were inadmissible.32 The Sixth Amendment right to counsel functions to "protect the unaided layman at critical confrontations with his expert adversary, the government, after the adverse positions of government and defendant have solidified with respect to a particular alleged crime."33 The Sixth Amendment right to counsel is "offense-specific."34 It does not attach until the initiation of a prosecution and "cannot be invoked once for all future prosecutions."35 Accordingly, only incriminating statements obtained from the accused regarding a pending charge are inadmissible at the trial for the same charge.36 B. "Same offense" exception and the dual-sovereignty doctrine

30 U.S. CONST. amend. VI. 31 Massiah v. United States, 377 U.S. 201 (1964). 32 Id. at 206. 33 McNeil v. Wisconsin, 501 U.S. 171, 171 (1991). 34 Id. at 175. 35 Id. 36 Maine v. Moulton, 474 U.S. 159, 180 (1985). 5

The definition of an "offense," however, is "not necessarily limited to the four corners of a charging document."37 The Sixth Amendment right to counsel can be extended to a "related offense" when this offense would be deemed the same as the charged offense under the Blockburger test.38 Two offenses are not the same under the test if a fact is needed to prove one offense but not the other.39 Federal and state crimes, however identical the conduct they prescribe, are not considered the same for Sixth Amendment purposes.40 State and federal offenses are "inherently distinct" under the dual sovereignty doctrine.41 Even if the state and federal charges both require proof of the same essential elements, the dual sovereignty doctrine controls, for right-to-counsel purposes, in determining what constitutes the same offense.42 C. Fifth Amendment right to counsel The Fifth Amendment states that no one "shall be compelled in any criminal case to be a witness against himself."43 In the most significant case on the Fifth Amendment right to counsel,

37 Texas v. Cobb, 532 U.S. 162, 162 (2001). 38 Id. at 168-69. 39 Blockburger v. United States, 284 U.S. 299, 304 (1932). 40 United States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006). 41 Id. at 198. 42 See United States v. Coker, 433 F.3d 39, 47 (1st Cir. 2005) (holding that state and federal

arson charges are not the same offense for Sixth Amendment purposes under the dual sovereignty doctrine). 43 U.S. CONST. amend. V. 6

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