United States v. Mark Moody

CLAY, Circuit Judge. government appeals

The from the dis- denying trict court’s order reconsideration order Mark granting of its Defendant vacate, correct, Moody’s motion to or set pursuant aside his sentence 28 U.S.C. § 2255. The also appeals court’s resentencing orders sixty months of for con- spiracy to cocaine violation of distribute U.S.C. 846. For set reasons below, forth judgment REVERSE the the district court. * ** Wiseman, Jr., originally issued as an "un- Honorable Thomas A. decision published January Judge filed decision” United District for the Middle Tennessee, sitting by designation. District

I. gested Moody seek the advice anof attorney. Moody sought the services of 1990s, During early the late 1980s and attorney Pectol, Richard W. paying Moody participated conspiracy to deal $5,000. Pectol contacted the with two other men. Under their cocaine later, for the first time more than a month arrangement, Moody provided one of the rejecting Moody’s the offer on behalf. cocaine, pay with the men funds to for Pectol did into inquire the substance of in acquire and he would cocaine Florida Moody’s the interrievvs or the of nature transport and it back to Tennessee. admissions, nor copies did he obtain Moody acquired of the approximately one-quar- kilogram per reports ter of cocaine month re- FBI memorializing the interviews. sale. government Moody indicted on 2, 1993, February agents On 23, 1993, June him charging conspir- with (“FBI”) Investigation Federal Bureau of ing to in distribute cocaine violation of 21 twenty-five executed search on warrants § U.S.C. 846 and related offenses. theBy targets investigation of its into this con- indictment, time of government Moody’s spiracy, including home and busi- had information that in- conspiracy The FBI kilogram ness. seized one of volved eighteen kilograms of cocaine. searches, during cocaine and ob- Moody again represent hired Pectol Moody tained information linking to that him, $10,000. and paid an additional Shortly cocaine. after the of execution Moody, in serving who was time Sulli- warrants, search Moody approached jail County van for a state misdemeanor the FBI and to cooperate offered with charge, had little with contact Pectol. agents FBI in investigation their January of Pectol Moody advised drug conspiracy. During six interviews plead guilty that he should to the indict- February in conducted and March of way ment because there was no to over- 1993, Moody, without the assistance of self-incriminating come the statements counsel, voluntarily FBI provided agents Moody during voluntary had made his FBI with information about the roles of others Two Moody’s interviews. of co-defendants conspiracy in the and made numerous also pleaded guilty had to the cocaine con- self-incriminating statements.1 The Assis- Moody into a spiracy. agree- entered Attorney tant United States for the East- government, pleading ment with the guilty ern District of present Tennessee was conspiracy. 846 cocaine during the first and last of these debrief- ings. sentencing, Moody replaced Prior attorney Pectol with David Beck. Given

During their Moody, gov- interviews of drug quantity now increased attribut- attorneys Moody ernment offered a deal conspiracy, Sentencing able government which the limit ex- would his range Guidelines for his conviction was posure years to a maximum of five imprisonment. to 293 months Moody agreed plead sentencing, government sought At guilty conspiracy in connection with the departure for a downward sentence of kilogram one of cocaine seized FBI imprisonment, stating months of agents February agreed and Moody given “assisted the cooperation, including information testifying continued framing the indictment Moody expressed trial. When a reser- this, identifying this matter and in the various vation about the Assistant United government their Attorney Special players and the FBI and roles.” The Agent Moody providing stated that offer infor- gov- from the also credited deal,” ernment a “good sug- gave and also mation his that was after kilograms Moody brought co- admitted that the last six back at least twelve conspirators. conspiracy, co-conspirator months of the his caine for distribution reconsideration, the district court Upon individu- indictment other in its useful affirmed its conclusion that granted the motion als. The district did apply to counsel imposed departure, for downward case, government’s imprisonment, denied months sentence release, special The district court held another years supervised motion. five sentencing, evidentiary hearing, and resentenced Following assessment of $50. years imprison- cooperate with the tó a term of five Moody continued to testify against agreeing appealed ment. The government, twice actually testi- Court. conspirators in its case fying II. supplier. did Florida appeal.

not file a direct appeal, the United States chal- In this lenges only of the district court’s rul- two vacate, Moody filed a motion to set First, the ings. government the attacks aside, with the or correct his sentence deny to its motion district court’s decision 28 pursuant to U.S.C. district grounds on the that the reconsideration deprived alleging § that not right Sixth Amendment to counsel did by ineffective rights his constitutional the plea negotiations during Moody’s attach attacked the Moody assistance of counsel. Second, govern- with the government. the of Pectol his first ne- conduct the district court’s decision to ment attacks object and the failure of Beck to gotiation impose original five-year plea agree- the certain to the district court’s reliance on the remedy ineffective assis- ment as conduct at relevant information sentenc- The government tance of counsel. does ing. finding the of the district court appeal evidentiary The held an district court provided that Pectol ineffective assistance 2255 motion. an or- hearing on Moody to the two-prong of counsel under 6, 1998, the February der dated Washington, test v. of Strickland had provided court found that Pectol inef- (1984), 674 104 S.Ct. 80 L.Ed.2d Moody during plea to fective assistance therefore, we do not address that is- 1993; negotiations early that but for sue.3 assistance, Moody this ineffective would the Sixth Amendment Whether rejected government’s first right pre-indictment to counsel attaches in agreement; offer a plea and that question that plea negotiations law prejudice by subsequent had suffered his v. review de novo. See United States exposure substantially higher to a sen- (6th Cir.1997); Latouf, F.3d tence.2 The district court held that Doherty, v. 126 F.3d remedy for violation was appropriate Cir.1997). 777-78 to resentence him in accordance original that plea agreement. provides The The Sixth Amendment prosecutions, filed all criminal the accused “[i]n a motion for reconsideration ... grounds enjoy right that shall to have Assis- right the Sixth Amendment to for his apply pre-indictment does tance of Counsel defense.” U.S. counsel Const, recognize that negotiations. amend. VI. Courts year sentencing essary to fall a five The district court found that time the within 2. offer, five-year made its range. conspiracy transported had revealed that cocaine, kilograms least twelve that note, however, light ruling that of our exposed him at these admissions alone had government’s opinion, as set forth ten-year mandatory least a sentence. The dis- ruling appeal the district court’s failure trict his court further found admis- consequence. Pectol sions, Moody had confessed to more than twenty-four cocaine times the amount of nec- test; to a bright the Sixth counsel counsel the Su- of the preme rests on nature confrontation has identified with particular- government. between defendant and ity stages The of a criminal proceeding Supreme Court has noted that the “core which are “critical” and thus implicate the of the purpose” Sixth Amendment right to counsel. As was noted in United trial, to guarantee counsel is assistance at States v. the Court has now “when the confronted with [is] accused adopted a pos- stance “foreclosed intricacies the law and sibility that might advocacy public prosecutor.” Unit- under some circumstances attach prior to 300, 309, ed U.S. judicial the formal initiation of proceed- L.Ed.2d 619 ings.” consistently Court has held that (1984) (Stevens, J., L.Ed.2d concur- accused effective Illinois, ring). Kirby assistance the “critical 688, stages” justice process. the criminal plurality Court recognized Wade, 218, 224, United States v. person’s “a Fourteenth (1967); L.Ed.2d see counsel attaches Moulton, Maine 106 at judicial or after the time adversary That proceedings against have been initiated right been pretrial has extended to certain him.” In the Court reaffirmed proceedings “might that appropriately be test, bright holding right that “the itself,” parts considered the trial when to does not counsel attach until the initi- “confronted, just defendant as at adversary judicial ation of proceedings” trial, by procedural system, or by his such preliminary as “formal charge, hear- expert adversary, by or both.” 413 indictment, ing, information, arraign- or 310, U.S. at 93 S.Ct. 2568. As Court 188, ment.” 467 U.S. at 104 S.Ct. 2292 Wade, recognized “today’s law enforce- (citing Kirby, 688-89, at ment machinery involves critical confronta- 1877). continued, The Court is only “[i]t by prosecution tions of accused at at that time ‘that the has com- pretrial proceedings where the results mitted to prosecute, only itself then might well settle the fate accused’s that positions govern- the adverse trial formality.” reduce the itself a mere ” ment and defendant have solidified.’ Id. 224, 388 at U.S. 87 S.Ct. 1926. In reliance (citing Kirby, 104 S.Ct. 2292 406 upon this line of reasoning, the district 1877). U.S. at 92 S.Ct. negotiations court concluded that the plea between Burbine, Similarly, in Moran v. February and a March 1993 were “criti- 412, 430, him, cal stage” proceedings against Supreme Court stated that the and that Moody possessed therefore a right Sixth Amendment “be- right Sixth Amendment to counsel when applicable only comes when govern- he consulted Pectol for advice on whether ment’s investigation role shifts from to ac- to accept government’s Al- offer. continued, stating cusation.” The Court though logic, justice, and fundamental fair- “looking adversary the initiation of position, ness favor the district court’s judicial being proceedings, far mere Supreme more recent Court and Sixth Cir- formalism, is proper fundamental cuit have interpreted principles cases application of the right Sixth Amendment to find that “critical stages” of criminal Id. at 106 counsel.” S.Ct. 1135. proceedings only begin after the initiation rejected The arguments Court Moran judicial of formal proceedings. during police confessions elicited in- terrogation yet charged The and this about Circuit crimes fate, have right may reduced the Sixth Amendment well a there- suspect’s seal 614 system, precedent a of this Court must

fore, great, and cial need for advocate is rejected arguments it be the lower federal courts noted that followed 1135; 431-32, 106 misguided judges id. at S.Ct. before. See how those matter be.”). 92 S.Ct. compare Kirby, may U.S. courts think (no to coun right Amendment Sixth Indeed, long recognized this Court line-up); and pre-indictment sel in a Hoff right to coun- that “the Sixth Amendment States, v. United adversary judicial attach until sel does not (1966) (no have commenced.” proceedings United to counsel attaches right Amendment (6th Howard, v. F.2d States about post-indictment made statements Cir.1985), grounds, vacated offense); uncharged with United separate Cir.1985). (6th F.2d 57 reiterated 226-27, Wade, recently more “the Sixth Amendment (1967) (Sixth 18 L.Ed.2d judicial to counsel attaches after attaches to initiated proceedings been and Massiah v. post-indictment line-up); defendant,” Myers, 123 United States v. 201, 205-06, States, United (6th Cir.1997), and found F.3d (1964) (Sixth 1199, 12 L.Ed.2d 246 who that an unindicted defendant volun- counsel attaches agents an “un- tarily spoke offense post-indictment statements about person” without the effec- charged charged). with which defendant is assistance of counsel. United States tive holding Court’s Cir.1997). Latouf, 132 F.3d only “at Sixth Amendment attaches judicial the initiation of criminal after specifically, Court has More by way of formal proceedings —whether rejected taken position indictment, hearing, charge, preliminary this case. information, arraignment,” Kirby, 406 or (6th Sikora, Cir.1980), F.2d 1175 this 1877, 689, bright U.S. at S.Ct. a summarily Court concluded the defen test; it is a mandate “the Sixth right attach dant’s to counsel did not dur right counsel does not at- pre-indictment plea negotiations. Id. ing the tach until after initiation of formal Massiah, (citing 1175-76 Burbine, 475 U.S. at charges.” 201, 84 and Brewer v. S.Ct. light Supreme Williams, issue, beyond on this it is Court’s stance (1977)). In a L.Ed.2d 424 well-reasoned rule, modify our this even this reach Wiseman, dissent, sitting by desig Judge clearly case the facts so demon- where nation, observed: rights by protected strate that the the The Court has extended the in new are Al- endangered. Sixth Amendment present the dangers contexts that same expert was faced with an though gave originally, rise the right adversary, offering him a prosecutorial dangers being confrontation with those he legal exper- which needed plea bargain system, procedural expert prose- the the which tise evaluate and would have con- cutor, plea bargaining In the both. agreement accepted stituted context, is presented the accused with charges, of formal despite the lack dangers, of these therefore by offering specific the deal the although enter persons plea those who the bar- Attorney Assistant United States was com- gaining charges before formal proceed process mitting prosecu- himself tion, protec- the have been filed should have uphold we must the narrow test of Davis, tion the Sixth Amendment.... Supreme the Court. Hutto v. See plea ne- government begins [WJhen (1982)(“But with a citizen gotiations L.Ed.2d 556 unless we wish who has just anarchy prevail judi- formally charged, within the federal been surely L.Ed.2d 114 But “prosecutorial faced with for the delay organized society” as the de- forces of prosecution filing charges, Moody formally fendant who has been intro- clearly would have been entitled to the system. duced into effective assistance of counsel. Under our Sikora, Supreme ap- Court’s and Circuit’s Although 635 F.2d at 1182. we proach, he is reasoning though point not—even convincing, find dissent’s at which the precedent Moody’s must follow Sikora actions of counsel fell majority. panel may This not overrule the an objective below standard of reasonable- of another panel; decision the earlier de stage” ness was no less a “critical binding authority termination is a unless against him. proceedings decision of

Court mandates modification or to be believe it a mere formali sitting prior en bane overrules the deci ty that the had not indicted Secretary sion. See Salmi v. & Health Moody at the time that it offered him Servs., Human 774 F.2d deal invited him to seek the assistance Cir.1985). circumstances, of counsel. Under these Here, question there is no that at would indeed “exalt form over substance to time consulted Pectol about the make the to counsel depend ... offer, insti- at the interrogation, whether time adversary proceedings tuted formal the authorities had secured a formal indict him; nor against any dispute is there Illinois, ment.” Escobedo v.

Pectol’s behavior met standard for in- 486, L.Ed.2d Similarly, effective assistance of counsel. However, recog Escobedo has been since it is that the uncontested Assistant United nized Court to involve Attorney presented Moody a def- Fifth to counsel—a plea bargain lighter inite offered a which derived the privilege self- Moody’s sentence in exchange contin- incrimination'—and statement on cooperation. ued not a casual counsel, Sixth Amendment conversation about a potential agree- therefore Escobedo cannot buttress ment, but a a specific formalized offer for Moody’s claim.4 See United States term of in exchange for 188 n. situation, Moody’s cooperation. (1984); Rhode Island negotiations of plea begun by onset the Innis, 291, 4, v. 446 U.S. 300 n. 100 S.Ct. government prior to indictment raises the 1682, 64 L.Ed.2d 297 specter of unwary agreeing the defendant ap- do this bright not favor trial to surrender his to a in ex- requires proach because that we disre- change for an unfair sentence without the gard the a reality suspect cold that faces legal to protect assurance of assistance plea negotiations. pre-indictment There is Supreme him. As recognized, the Court question in our no minds that formal “only the presence [permits the] of counsel plea negotiations, specific where a accused to know all sen- the defenses is for a plead intelligently.” specif- him and to tence offered an offender Hamilton 52, 55, 157, Alabama, offense, v. positions 368 7 ic U.S. adverse that, 320, 1997). Although Moody argues There alterna- F.3d 330 Cir. is tive, affirm Court should the district court dispute that volunteered his state grounds a of on that he suffered violation FBI; he was therefore not ments com process his Fifth here, due government pelled by anything. do unpersuaded. seeking party we are A Moreover, Moody support offers no for his relief on that basis must demonstrate that the process requires that "due broad contention government compelled testimony, his provided during plea effective counsel be that presence custody must show the of and inter- negotiations that occur before indictment.” Latouf, rogation. See United States v. 132 616 pro- pretrial as critical such encounters suspect have solidi- Indeed, ceedings defendant is confront- triumph of where the it seems a

fied. system that but procedural of the law hold spirit ed letter over experienced adversary, his deci- a counsel also learned and Moody had no 180, deny the offered accept or v. 467 U.S. sion to cf. (1984) 146 only because 104 81 L.Ed.2d bargain S.Ct. Wade, faced We are charges. filed formal v. yet (citing States United (1967); this is 218, realization that ponderable with the L.Ed.2d 1149 S.Ct. necessity justice must of when occasion United law, (1973)). and therefore yield to the rule S.Ct. court’s order Alabama, the district must REVERSE Hamilton v. U.S. original sentence. (1961), and reinstate the 7 L.Ed.2d Su- that defendant re- Court noted preme WISEMAN, Judge, concurring. District presence plead of counsel quires the Richardson, opin- intelligently. McMann v. Judge Clay’s I excellent concur makes respects. Judge Clay As ion in all (1970), indicated that a defen-

clear, be Mr. the Court justice would better served had the to effective assistance given could be the benefit dant plead guilty. in his rejected due to the ineffective decision bargain Yet, Lockhart, in Hill Similarly, counsel. the rule his assistance (1985), stability within 88 L.Ed.2d greater good law—the that a the trail Court indicated defen- requires we follow law— hold had the to effective assistance of Supreme Court and dant blazed plea process. Finally, formal initiation of adver- that without the Moody was not the Sixth Circuit made clear proceedings, sarial Mr. as- extend de- constitutionally protections entitled to the effective also reject plea agree- under the Sixth fendants who decide to sistance of counsel ment trial. See Turner Ten- and stand Amendment. nessee, F.2d vacated separately only emphasize I write grounds, Sentencing pressures the Federal 3208, 106 L.Ed.2d 559 Federal brought to bear on have Guidelines about the impor- courts have left no doubt justice system why criminal system. bargaining tance of in our rigid application make our pressures ap- precedent reluctant and, thus, does do precedent What plication. Numerous commentators doing formally recog- us from constrains on the complexity written observed nizing preindictment plea bargains Guidelines, so there is no Sentencing just postindictment plea critical as are Likewise, to do here. there need so Yet, bargains. Sentencing the Federal to comment on discretion little need substantially have increased Guidelines prosecutors. provide federal Guidelines preindictment importance plea bargain- of Thus, my to how the I will limit comments In of ing. percentages, terms number pressure the criminal procedur- Guidelines pleas year of continues to rise. Each since preindictment bar- plea al towards system rep- of all convictions percentage gaining. by pleas guilty resented of or nolo conten- Maguire bargaining is central to federal dere increased. See Kathleen Plea (1999) Pastore, See, e.g., and Ann L. eds. Source- criminal law. Kate Stith and Josi Cabranes, Judging A. Fear book Criminal Justice Statistics 5.21(available [Online], By extending protections of the Sixth Table (visited plea nego- http://www.albany.edu/sourcebook) 2000). 1990, 40,452 tiations, people In recognized January have federal courts contendere; in pleaded guilty potential or nolo determine the sentence for a 56,256 people pleaded. id.-, These so numbers defendant. See Gardner and Rif- kind, all represent 86.575% and 93.940% of con- supra, By at 16. agreeing on the respective years. during charges defendant, victions those to be filed majority pleas The vast of these are the prosecutors having avoid to draw products plea agreements. See Stith both the court’s and probation offi- Cabranes, supra, and at 130. cer’s attention to facts relevant to other (potential) charges pleaded not to which may may have The Guidelines an might require higher sentencing levels on the of increasing pleas effect trend and under real sentencing. offense See Yel- in importance the concomitant increase len, supra, at 569-70. Defendants also plea bargains.1 Certainly percentage preindictment favor plea negotiations for of pleas relative to the number of overall basically greater the same con- reasons — cases and the number of convictions has trol over the eventual sentence. Gardner risen the Guidelines era.2 The Rifkind, and supra, at 16. For example, trend, in Guidelines’ role overarching plea bargains and (pre postindictment) irrelevant, although is immaterial. can stipulate both the quantity of a con- material, however, What is is the Guide- trolled substance which the defendant prosecutors role in pressuring lines’ and will be held accountable and the “rele- in engage bargaining defendants to vant conduct” may that the court consid- ever process. earlier in the criminal As er during sentencing. Both of fac- as 1992 early commentators noted that the major play tors can in determining role provide Guidelines an incentive engage the eventual sentence of defendant in pre-indictment plea bargaining. See who, like Moody, charged Mr. is Yellen, N. David Two Cheers a Tale conspiracy to distribute illegal drugs. Cities, Three S. L.Rev. 66 Cal. 569-70 Gardner, (1992); William L. David S. Rif- to bargain charges incentives over kind, A Basic Guide to Plea Bargaining only already facts add abundant pressure 7-SUM Crim. Just. bargain Some with prosecutors as studies indicate a considerable amount soon possible drug conspiracy as cases. terms, of preindictment plea bargaining already practical drug conspiracy cases occurs. See Yellen 569. a race become to the courthouse. When a is conspiracy exposed arrest Guidelines, Under defendants warrants, or execution of search soon-to-be from prosecutors engaging benefit defendants know that the first one to “bel- such bargaining. Preindictment bar ly tell up” and what he knows receives the gaining charges over provides facts best pressure bargain deal. The is (“AU- Attorneys Assistant United States bargain early, even an indictment has SAs”) enormous discretion because such filed. been bargaining is much susceptible less re by supervisors view or courts. preindictment plea See Yel To the extent that len, supra, at Through bargaining 569-70. undermines the intent of Con- Guidelines, bargaining, effectively gress expressed AUSAs can more noting 1. percentage It worth that 1948-1952 and and 1990 the by pleas convictions obtained each did decrease 1964-1965 are the other consecutive high year to a of 87.479 years pleas in which accounted for more than above, low of 86.575 in 1990. As noted how- Additionally, convictions. 1951 had 90% ever, percentage of convic- since highest percentage of all cases decided pleas every tions obtained has increased [Online], pleas at See 83.411%. Sourcebook year. eight longest year increase is the Thus, 5.21. Table factors other than the span yearly percent- of continual increases in (and do) probably Guidelines could favor age by pleas since at least convictions bargaining. [Online], 1945. See Sourcebook Table 5.21. of its Regardless be condoned. DETROIT, Plaintiff-Appellant virtue, and will does occur TCG bargaining (98-2034), (98-2035), advantages for to its Plaintiff likely continue due While prosecutors and defendants. continues, it bargaining preindictment DEARBORN, Defendant-Ap CITY OF encounter defen- perilous remains (98-2034), Third-Party pellee Plain Defendants, formally— or—more dants. (98-2035), tiff-Appellant Ameritech defendants, are faced with potential Third-Party Michigan, Incorporated, They are liberty property. loss of (98-2035). Defendant-Appellee sys- a complicated procedural faced with adversary. knowledgeable a more tem and 98-2034, Nos. 98-2035. Gouveia, Cf. Appeals, United States Court of short, these defendants need 2292. In Sixth Circuit. to counsel order should be entitled navigate these waters. troubled 5, 1999 Argued: Nov. to counsel

The Sixth Amendment and Filed: March Decided meet chal- historically has evolved to Rehearing En Banc Rehearing and lenges by changing legal para- presented 1,May Denied U.S. at digm. See (noting the extension of the Sixth right to resulted from patterns procedure of criminal “changing gen- tended investigation that have pretrial might appropri-

erate events trial

ately parts considered to be be

itself’). justice system The criminal now changing so defendants prosecutions

face critical stages their Amend-

prior to indictment. The Sixth purpose protect

ment’s is to underlying their stages prose-

defendants critical Thus,

cution. the Sixth Amendment dur- guarantee

should to counsel

ing preindictment Pre- plea negotiations.

cedent, however, prevents me from en- position

dorsing logic which demands. urge

I to re- would bright

consider its line test for attachment Illinois, in Kirby

enunciated

and United

Case Details

Case Name: United States v. Mark Moody

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 25, 2000

Citation: 206 F.3d 609

Docket Number: 98-6142

Court Abbreviation: 6th Cir.