            RECOMMENDED FOR FULL-TEXT PUBLICATION
                 Pursuant to Sixth Circuit Rule 206
         ELECTRONIC CITATION: 2000 FED App. 0088P (6th Cir.)
                     File Name: 00a0088p.06


UNITED STATES COURT OF APPEALS
                   FOR THE SIXTH CIRCUIT
                     _________________


                                 ;
                                  
 UNITED STATES OF AMERICA,
                                  
          Plaintiff-Appellant,
                                  
                                  
                                      No. 98-6142
           v.
                                  
                                   >
 MARK MOODY,                      
          Defendant-Appellee. 
                                 1
      Appeal from the United States District Court
  for the Eastern District of Tennessee at Greeneville.
      Nos. 93-00035; 97-00024—Thomas G. Hull,
                     District Judge.
                   Argued: September 24, 1999
              Decided and Filed: January 25, 2000*
          Before: MERRITT and CLAY, Circuit  Judges;
                  WISEMAN, District Judge.**




    *
      This decision was originally issued as an “unpublished decision”
filed on January 25, 2000.
    **
     The Honorable Thomas A. Wiseman, Jr., United States District
Judge for the Middle District of Tennessee, sitting by designation.

                                  1
2    United States v. Moody                     No. 98-6142

                   _________________
                        COUNSEL
ARGUED: Michael E. Winck, ASSISTANT UNITED
STATES ATTORNEY, Knoxville, Tennessee, for Appellant.
Nikki C. Pierce, ASSISTANT FEDERAL COMMUNITY
DEFENDER, FEDERAL DEFENDER SERVICES,
Greeneville, Tennessee, for Appellee. ON BRIEF: Michael
E. Winck, ASSISTANT UNITED STATES ATTORNEY,
Knoxville, Tennessee, for Appellant. Nikki C. Pierce,
ASSISTANT FEDERAL COMMUNITY DEFENDER,
FEDERAL DEFENDER SERVICES, Greeneville,
Tennessee, for Appellee.
  CLAY, J., delivered the opinion of the court, in which
MERRITT, J., joined. WISEMAN, D. J. (pp. 13-17),
delivered a separate concurring opinion.
                   _________________
                       OPINION
                   _________________
  CLAY, Circuit Judge. The government appeals from the
district court’s order denying reconsideration of its order
granting Defendant Mark Moody’s motion to vacate, correct,
or set aside his sentence pursuant to 28 U.S.C. § 2255. The
government also appeals the district court’s orders
resentencing Moody to sixty months of imprisonment for
conspiracy to distribute cocaine in violation of 21 U.S.C.
§ 846. For the reasons set forth below, we REVERSE the
judgment of the district court.
                              I.
  During the late 1980s and early 1990s, Moody participated
in a conspiracy to deal cocaine with two other men. Under
their arrangement, Moody provided one of the men with the
funds to pay for the cocaine, and he would acquire cocaine in
Florida and transport it back to Tennessee. Moody acquired
No. 98-6142                          United States v. Moody           3

approximately one-quarter kilogram of cocaine per month for
resale.
   On February 2, 1993, agents of the Federal Bureau of
Investigation (“FBI”) executed twenty-five search warrants on
targets of its investigation into this conspiracy, including
Moody’s home and business. The FBI seized one kilogram of
cocaine during these searches, and obtained information
linking Moody to that cocaine. Shortly after the execution of
the search warrants, Moody approached the FBI and offered
to cooperate with FBI agents in their investigation of the drug
conspiracy. During six interviews conducted in February and
March of 1993, Moody, without the assistance of counsel,
voluntarily provided FBI agents with information about the
roles of others in the conspiracy   and made numerous self-
incriminating statements.1 The Assistant United States
Attorney for the Eastern District of Tennessee was present
during the first and last of these debriefings.
  During their interviews of Moody, government attorneys
offered Moody a deal in which the government would limit
his exposure to a maximum of five years of imprisonment if
Moody agreed to plead guilty to conspiracy in connection
with the one kilogram of cocaine seized by FBI agents on
February 2, 1993, and agreed to continued cooperation,
including testifying at trial. When Moody expressed a
reservation about this, the Assistant United States Attorney
and the FBI Special Agent stated that the offer from the
government was a “good deal,” and also suggested that
Moody seek the advice of an attorney. Moody sought the
services of attorney Richard W. Pectol, paying him $5,000.
Pectol contacted the government for the first time more than
a month later, rejecting the offer on Moody’s behalf. Pectol
did not inquire into the substance of the interviews or the
nature of Moody’s admissions, nor did he obtain copies of
the FBI reports memorializing the interviews.

    1
      Moody admitted that during the last six months of the conspiracy,
his co-conspirator brought back at least twelve kilograms of cocaine for
distribution by the conspirators.
4    United States v. Moody                      No. 98-6142      No. 98-6142                      United States v. Moody       17

   The government indicted Moody on June 23, 1993,                appropriately be considered to be parts of the trial itself”).
charging him with conspiring to distribute cocaine in             The criminal justice system has and is changing so that
violation of 21 U.S.C. § 846 and related offenses. By the         defendants now face critical stages of their prosecutions prior
time of the indictment, the government had information that       to indictment. The Sixth Amendment’s underlying purpose
the conspiracy involved eighteen kilograms of cocaine.            is to protect defendants in critical stages of their prosecution.
Moody again hired Pectol to represent him, and paid him an        Thus, the Sixth Amendment should guarantee the right to
additional $10,000. Moody, who was serving time in the            counsel during preindictment plea negotiations. Precedent,
Sullivan County jail for a state misdemeanor charge, had little   however, prevents me from endorsing this position which
to no contact with Pectol. In January of 1994, Pectol advised     logic demands.
Moody that he should plead guilty to the indictment because
there was no way to overcome the self-incriminating                 I would urge the Supreme Court to reconsider its bright line
statements Moody had made during his voluntary FBI                test for attachment of the Sixth Amendment right to counsel
interviews. Two of Moody’s co-defendants had also pleaded         enunciated in United States v. Kirby, 406 U.S. 682 (1972),
guilty to the cocaine conspiracy. Moody entered into a plea       and United States v. Gouveia, 467 U.S. 180 (1984).
agreement with the government, pleading guilty to the § 846
cocaine conspiracy.
   Prior to sentencing, Moody replaced Pectol with attorney
David Beck. Given the increased drug quantity now
attributable to the conspiracy, the Sentencing Guidelines
range for his conviction was from 235 to 293 months of
imprisonment. At sentencing, the government sought a
downward departure for a sentence of 168 months of
imprisonment, stating that the information Moody had given
“assisted the United States in framing the indictment in this
matter and in identifying the various players and their roles.”
The government also credited Moody with providing
information after he gave his plea that was useful in its
indictment of other individuals. The district court granted the
motion for downward departure, and imposed a sentence of
120 months of imprisonment, five years supervised release,
and a special assessment of $50. Following sentencing,
Moody continued to cooperate with the government, agreeing
to testify against other conspirators and actually twice
testifying for the government in its case against the Florida
supplier. Moody did not file a direct appeal.
   Moody filed a motion to vacate, set aside, or correct his
sentence with the district court pursuant to 28 U.S.C. § 2255,
alleging that he was deprived of his constitutional rights by
16   United States v. Moody                       No. 98-6142      No. 98-6142                          United States v. Moody            5

reasons—greater control over the eventual sentence. Gardner        the ineffective assistance of counsel. Moody attacked the
and Rifkind, supra, at 16. For example, plea bargains (pre-        conduct of Pectol during his first plea negotiation and the
and postindictment) can stipulate both the quantity of a           failure of Beck to object to the district court’s reliance on
controlled substance for which the defendant will be held          certain relevant conduct information at sentencing.
accountable and the “relevant conduct” that the court may
consider during sentencing. Both of these factors can play a         The district court held an evidentiary hearing on the § 2255
major role in determining the eventual sentence of a               motion. In an order dated February 6, 1998, the district court
defendant who, like Mr. Moody, is charged with conspiracy          found that Pectol had provided ineffective assistance to
to distribute illegal drugs.                                       Moody during plea negotiations in early 1993; that but for this
                                                                   ineffective assistance, Moody would not have rejected the
   The incentives to bargain over charges and facts only add       government’s first offer of a plea agreement; and that Moody
to the already abundant pressure to bargain with prosecutors       had suffered prejudice by his      subsequent exposure to a
as soon as possible in drug conspiracy cases. In practical         substantially higher sentence.2 The district court held that the
terms, drug conspiracy cases have become a race to the             appropriate remedy for this violation was to resentence him
courthouse. When a conspiracy is exposed by an arrest or           in accordance with the original plea agreement. The
execution of search warrants, soon-to-be defendants know           government filed a motion for reconsideration on the grounds
that the first one to “belly up” and tell what he knows receives   that the Sixth Amendment right to counsel does not apply to
the best deal. The pressure is to bargain and bargain early,       pre-indictment negotiations.
even if an indictment has not been filed.
                                                                     Upon reconsideration, the district court affirmed its
   To the extent that preindictment plea bargaining                conclusion that the Sixth Amendment right to counsel did
undermines the intent of Congress as expressed in the              apply in this case, and denied the government’s motion. The
Guidelines, it is not to be condoned. Regardless of its virtue,    district court held another evidentiary hearing, and
such bargaining does occur and will likely continue due to its     resentenced Moody to a term of five years of imprisonment.
advantages for both prosecutors and defendants. While              The government appealed to this Court.
preindictment plea bargaining continues, it remains a perilous
encounter for defendants.            Defendants, or—more
formally—potential defendants, are faced with the loss of
liberty and property. They are faced with a complicated
procedural system and a more knowledgeable adversary. Cf.
Gouveia, 467 U.S. at 189. In short, these defendants need and
should be entitled to counsel in order to navigate these
troubled waters.
  The Sixth Amendment right to counsel historically has                2
evolved to meet the challenges presented by a changing legal             The district court found that by the time the government made its
paradigm. See Ash, 413 U.S. at 310 (noting that the extension      five-year offer, Moody had revealed that the conspiracy transported at
of the Sixth Amendment right to counsel resulted from              least twelve kilograms of cocaine, and that these admissions alone had
                                                                   exposed him to at least a ten-year mandatory sentence. The district court
“changing patterns of criminal procedure and investigation         further found that by his admissions, Moody had confessed to more than
that have tended to generate pretrial events that might            twenty-four times the amount of cocaine necessary to fall within a five
                                                                   year sentencing range.
6       United States v. Moody                            No. 98-6142        No. 98-6142                           United States v. Moody           15

                                   II.                                       pleas relative to the number of overall cases and the number
                                                                             of convictions has risen during the Guidelines era.2 The
  In this appeal, the United States challenges only two of the               Guidelines’ role in this overarching trend, although not
district court’s rulings. First, the government attacks the                  irrelevant, is immaterial. What is material, however, is the
district court’s decision to deny its motion for reconsideration             Guidelines’ role in pressuring prosecutors and defendants to
on the grounds that the Sixth Amendment right to counsel did                 engage in plea bargaining ever earlier in the criminal process.
not attach during Moody’s plea negotiations with the                         As early as 1992 commentators noted that the Guidelines
government. Second, the government attacks the district                      provide an incentive to engage in pre-indictment plea
court’s decision to impose the original five-year plea                       bargaining. See David N. Yellen, Two Cheers for a Tale of
agreement as a remedy for the ineffective assistance of                      Three Cities, 66 S. Cal. L. Rev. 567, 569-70 (1992); William
counsel. The government does not appeal the finding of the                   L. Gardner, David S. Rifkind, A Basic Guide to Plea
district court that Pectol provided ineffective assistance of                Bargaining 7-SUM Crim. Just. 14, 16 (1992). Some studies
counsel to Moody under the two-prong test of Strickland v.                   indicate that a considerable amount of preindictment plea
Washington, 466 U.S.     668 (1984), and therefore, we do not                bargaining already occurs. See Yellen at 569.
address that issue.3
                                                                               Under the Guidelines, both defendants and prosecutors
  Whether the Sixth Amendment right to counsel attaches in                   benefit from engaging in such bargaining. Preindictment plea
pre-indictment plea negotiations is a question of law that we                bargaining over charges and facts provides Assistant United
review de novo. See United States v. Latouf, 132 F.3d 320,                   States Attorneys (“AUSAs”) enormous discretion because
330 (6th Cir. 1997); United States v. Doherty, 126 F.3d 769,                 such bargaining is much less susceptible to review by
777-78 (6th Cir. 1997).                                                      supervisors or courts. See Yellen, supra, at 569-70. Through
                                                                             such bargaining, AUSAs can more effectively determine the
   The Sixth Amendment provides that “[i]n all criminal                      potential sentence for a defendant. See id.; Gardner and
prosecutions, the accused shall enjoy the right . . . to have the            Rifkind, supra, at 16. By agreeing on the charges to be filed
Assistance of Counsel for his defense.” U.S. Const. amend.                   against the defendant, the prosecutors avoid having to draw
VI. Courts recognize that the Sixth Amendment right to                       both the court’s and the probation officer’s attention to facts
counsel rests on the nature of the confrontation between                     relevant to other (potential) charges not pleaded to which
defendant and government. The Supreme Court has noted                        might require higher sentencing levels under real offense
that the “core purpose” of the Sixth Amendment right to                      sentencing. See Yellen, supra, at 569-70. Defendants also
counsel is to guarantee assistance at trial, “when the accused               favor preindictment plea negotiations for basically the same
[is] confronted with both the intricacies of the law and the
advocacy of the public prosecutor.” United States v. Ash, 413
U.S. 300, 309 (1973). The Supreme Court has consistently
held that an accused has the right to the effective assistance of            bargaining.
counsel at the “critical stages” in the criminal justice process.                2
United States v. Wade, 388 U.S. 218, 224 (1967); see Maine                         In 1988, 1989, and 1990 the percentage of convictions obtained by
                                                                             pleas did decrease each year from a high of 87.479 in 1987 to a low of
                                                                             86.575 in 1990. As noted above, however, since 1990, the percentage of
    3                                                                        convictions obtained by pleas has increased every year. This eight year
      We note, however, that in light of our ruling as set forth in this     increase is the longest span of continual yearly increases in percentage of
opinion, the government’s failure to appeal the district court’s ruling as   convictions by pleas since at least 1945. See Sourcebook [Online], Table
to Pectol is of no consequence.                                              5.21.
14       United States v. Moody                           No. 98-6142        No. 98-6142                       United States v. Moody        7

Richardson, 397 U.S. 759 (1970), the Court indicated that a                  v. Moulton, 474 U.S. 159, 170 (1985). That right has been
defendant had the right to effective assistance of counsel in                extended to certain pretrial proceedings that “might
his decision to plead guilty. Similarly, in Hill v. Lockhart,                appropriately be considered parts of the trial itself,” when the
474 U.S. 52, 57 (1985), the Supreme Court indicated that a                   defendant is “confronted, just as at trial, by the procedural
defendant had the right to effective assistance of counsel                   system, or by his expert adversary, or by both.” Ash, 413 U.S.
during the plea process. Finally, the Sixth Circuit made clear               at 310. As the Court recognized in Wade, “today’s law
that Sixth Amendment protections also extend to defendants                   enforcement machinery involves critical confrontations of the
who decide to reject a plea agreement and stand trial. See                   accused by the prosecution at pretrial proceedings where the
Turner v. Tennessee, 858 F.2d 1201, 1205 (1988), vacated on                  results might well settle the accused’s fate and reduce the trial
other grounds, 492 U.S. 902 (1989). Federal courts have left                 itself to a mere formality.” 388 U.S. at 224. In reliance upon
no doubt about the importance of plea bargaining in our                      this line of reasoning, the district court concluded that the plea
system.                                                                      negotiations between Moody and the government in February
                                                                             and March of 1993 were a “critical stage” of the proceedings
  What precedent does not do and, thus, constrains us from                   against him, and that therefore Moody possessed a Sixth
doing is formally recognizing that preindictment plea bargains               Amendment right to counsel when he consulted Pectol for
are just as critical as postindictment plea bargains. Yet, the               advice on whether to accept the government’s offer.
Federal Sentencing Guidelines have substantially increased                   Although logic, justice, and fundamental fairness favor the
the importance of preindictment plea bargaining. In terms of                 district court’s position, more recent Supreme Court and Sixth
percentages, the number of pleas continues to rise. Each year                Circuit cases have interpreted these principles to find that
since 1990 the percentage of all convictions represented by                  “critical stages” of criminal proceedings begin only after the
pleas of guilty or nolo contendere has increased. See                        initiation of formal judicial proceedings.
Kathleen Maguire and Ann L. Pastore, eds. (1999)
Sourcebook of Criminal Justice Statistics 1998 [Online],                        The Supreme Court and this Circuit have reduced the Sixth
Table 5.21(available at http://www.albany.edu/sourcebook)                    Amendment right to counsel to a bright line test; the Supreme
(visited 11 January 2000). In 1990, 40,452 people pleaded                    Court has identified with particularity the stages of a criminal
guilty or nolo contendere; in 1998, 56,256 people so pleaded.                proceeding which are “critical” and thus implicate the right to
These numbers represent 86.575% and 93.940% of all                           counsel. As was noted in United States v. Gouveia, the Court
convictions during those respective years. The vast majority                 has now adopted a stance that “foreclose[s] the possibility that
of these pleas are the products of plea agreements. See Stith                the right to counsel might under some circumstances attach
and Cabranes, supra, at 130.                                                 prior to the formal initiation of judicial proceedings.” 467
                                                                             U.S. 180, 193 (1984) (Stevens, J., concurring). In Kirby v.
  The Guidelines may or may not have an effect on the trend                  Illinois, 406 U.S. 682, 688 (1972), a plurality of the Supreme
of increasing pleas and the     concomitant increase in                      Court recognized that “a person’s Sixth and Fourteenth
importance of plea bargains.1 Certainly the percentage of                    Amendment right to counsel attaches only at or after the time
                                                                             that adversary judicial proceedings have been initiated against
                                                                             him.” In Gouveia, the Court reaffirmed this bright line test,
     1
     It is worth noting that 1948-1952 and 1964-1965 are the only other
                                                                             holding that “the right to counsel does not attach until the
consecutive years in which pleas accounted for more than 90% of              initiation of adversary judicial proceedings” such as “formal
convictions. Additionally, 1951 had the highest percentage of all cases      charge, preliminary hearing, indictment, information, or
decided by pleas at 83.411%. See Sourcebook [Online], Table 5.21.            arraignment.” 467 U.S. at 188 (citing Kirby, 406 U.S. at 688-
Thus, factors other than the Guidelines could (and probably do) favor plea
8     United States v. Moody                        No. 98-6142      No. 98-6142                      United States v. Moody       13

89). The Court continued, “[i]t is only at that time ‘that the                       _______________________
government has committed itself to prosecute, and only then
that the adverse positions of the government and defendant                               CONCURRENCE
have solidified.’” Id. at 189 (citing Kirby, 406 U.S. at 689).                       _______________________
   Similarly, in Moran v. Burbine, 475 U.S. 412, 430 (1986),           WISEMAN, District Judge, concurring. I concur in Judge
the Supreme Court stated that the Sixth Amendment right to           Clay’s excellent opinion in all respects. As Judge Clay makes
counsel “becomes applicable only when the government’s               clear, justice would be better served if Mr. Moody could be
role shifts from investigation to accusation.” The Court             given the benefit of the bargain he rejected due to the
continued, stating that “looking to the initiation of adversary      ineffective assistance of his counsel. Yet, the rule of
judicial proceedings, far from being mere formalism, is              law—the greater good of stability within the law—requires
fundamental to the proper application of the Sixth                   that we follow the trail blazed by the Supreme Court and hold
Amendment right to counsel.” Id. at 431. The Court in                that without the formal initiation of adversarial proceedings,
Moran rejected arguments that confessions elicited during            Mr. Moody was not constitutionally entitled to the effective
police interrogation about crimes not yet charged may well           assistance of counsel under the Sixth Amendment.
seal a suspect’s fate, and therefore, the need for an advocate
is great, and noted that it had rejected such arguments before.         I write separately only to emphasize the pressures that the
See id. at 431-32; compare Kirby, 406 U.S. at 682 (no Sixth          Federal Sentencing Guidelines have brought to bear on the
Amendment right to counsel in a pre-indictment line-up); and         criminal justice system and why such pressures make our
Hoffa v. United States, 385 U.S. 293, 308 (1966) (no Sixth           rigid application of Supreme Court precedent a reluctant
Amendment right to counsel attaches for statements made              application. Numerous commentators have observed and
post-indictment about a separate uncharged offense); with            written on the complexity of the Sentencing Guidelines, so
United States v. Wade, 388 U.S. 218, 226-27 (1967) (Sixth            there is no need to do so here. Likewise, there is little need to
Amendment right to counsel attaches to post-indictment line-         comment on the discretion the Guidelines provide federal
up); and Massiah v. United States, 377 U.S. 201, 205-06              prosecutors. Thus, I will limit my comments to how the
(1964) (Sixth Amendment right to counsel attaches to post-           Guidelines pressure the criminal procedural system towards
indictment statements about offense with which defendant is          preindictment plea bargaining.
charged).
                                                                       Plea bargaining is central to federal criminal law. See, e.g.,
   The Supreme Court’s holding that the Sixth Amendment              Kate Stith and José A. Cabranes, Fear of Judging 130 (1998).
right attaches only “at or after the initiation of judicial          By extending the protections of the Sixth Amendment right to
criminal proceedings – whether by way of formal charge,              counsel to plea negotiations, federal courts have recognized
preliminary hearing, indictment, information, or                     such encounters as critical pretrial proceedings where the
arraignment,” Kirby, 406 U.S. at 689, is a bright line test; it is   defendant is confronted by not only the procedural system but
a mandate that “the Sixth Amendment right to counsel does            also a learned and experienced adversary, cf. United States v.
not attach until after the initiation of formal charges.”            Gouveia, 467 U.S. 180, 189 (1984) (citing United States v.
Burbine, 475 U.S. at 431. In light of the Supreme Court’s            Wade, 388 U.S. 218 (1967); United States v. Ash, 413 U.S.
stance on this issue, it is beyond our reach to modify this rule,    300 (1973)). In Hamilton v. Alabama, 368 U.S. 52, 55
even in this case where the facts so clearly demonstrate that        (1961), the Supreme Court noted that a defendant requires the
the rights protected by the Sixth Amendment are endangered.          presence of counsel to plead intelligently. In McMann v.
12   United States v. Moody                    No. 98-6142     No. 98-6142                      United States v. Moody       9

because the government had not yet filed formal charges. We    Although Moody was faced with an expert prosecutorial
are faced with the ponderable realization that this is an      adversary, offering him a plea bargain which he needed legal
occasion when justice must of necessity yield to the rule of   expertise to evaluate and which would have constituted an
law, and therefore we must REVERSE the district court’s        agreement if accepted by him despite the lack of formal
order and reinstate the original sentence.                     charges, and although by offering the specific deal the
                                                               Assistant United States Attorney was committing himself to
                                                               proceed with prosecution, we must uphold the narrow test of
                                                               the Supreme Court. See Hutto v. Davis, 454 U.S. 370, 375
                                                               (1982)(“But unless we wish anarchy to prevail within the
                                                               federal judicial system, a precedent of this Court must be
                                                               followed by the lower federal courts no matter how misguided
                                                               the judges of those courts may think it to be.”).
                                                                 Indeed, this Court has long recognized that “the Sixth
                                                               Amendment right to counsel does not attach until adversary
                                                               judicial proceedings have commenced.” United States v.
                                                               Howard, 752 F.2d 220, 226 (6th Cir. 1985), vacated on other
                                                               grounds, 770 F.2d 57 (6th Cir. 1985). We reiterated more
                                                               recently that “the Sixth Amendment right to counsel attaches
                                                               only after judicial proceedings have been initiated against a
                                                               defendant,” United States v. Myers, 123 F.3d 350, 358 (6th
                                                               Cir. 1997), and found that an unindicted defendant who
                                                               voluntarily spoke with agents was an “uncharged person”
                                                               without the right to effective assistance of counsel. United
                                                               States v. Latouf, 132 F.3d 320, 330 (6th Cir. 1997).
                                                                  More specifically, this Court has rejected the position taken
                                                               by the district court in this case. In United States v. Sikora,
                                                               635 F.2d 1175 (6th Cir. 1980), this Court summarily
                                                               concluded that the defendant’s right to counsel did not attach
                                                               during pre-indictment plea negotiations. Id. at 1175-76
                                                               (citing Massiah, 377 U.S. at 201, and Brewer v. Williams, 430
                                                               U.S. 387 (1977). In a well-reasoned dissent, Judge Wiseman,
                                                               sitting by designation, observed:
                                                                 The Court has extended the right in new contexts that
                                                                 present the same dangers that gave rise to the right
                                                                 originally, those dangers being confrontation with the
                                                                 procedural system, the expert prosecutor, or both. In the
                                                                 plea bargaining context, the accused is presented with
10   United States v. Moody                      No. 98-6142      No. 98-6142                            United States v. Moody           11

  both of these dangers, and therefore those persons who          though the point at which the actions of Moody’s counsel fell
  enter the plea bargaining process before formal charges         below an objective standard of reasonableness was no less a
  have been filed should have the protection of the Sixth         “critical stage” of the proceedings against him.
  Amendment. . . . [W]hen the government begins plea
  negotiations with a citizen who has not been formally              We believe it to be a mere formality that the government
  charged, he is just as surely faced with the ‘prosecutorial     had not indicted Moody at the time that it offered him a deal
  forces of organized society’ as the defendant who has           and invited him to seek the assistance of counsel. Under
  been formally introduced into the system.                       these circumstances, it would indeed “exalt form over
                                                                  substance to make the right to counsel . . . depend on whether
Sikora, 635 F.2d at 1182. Although we find the dissent’s          at the time of the interrogation, the authorities had secured a
reasoning convincing, we must follow the precedent of the         formal indictment.” Escobedo v. Illinois, 378 U.S. 478, 486
Sikora majority. This panel may not overrule the decision of      (1964). However, Escobedo has since been recognized by the
another panel; the earlier determination is binding authority     Supreme Court to involve a Fifth Amendment right to counsel
unless a decision of the United States Supreme Court              — a right derived from the privilege against self-
mandates modification or this Court sitting en banc overrules     incrimination — and not a statement on the Sixth Amendment
the prior decision. See Salmi v. Secretary of Health & Human      right to counsel,4 and therefore Escobedo cannot buttress
Servs., 774 F.2d 685, 689 (6th Cir. 1985).                        Moody’s claim. See United States v. Gouveia, 467 U.S.
                                                                  180, 188 n.5 (1984); Rhode Island v. Innis, 446 U.S. 291, 300
   Here, there is no question that at the time Moody consulted    n.4 (1980).
Pectol about the plea offer, the government had not instituted
formal adversary proceedings against him; nor is there any          We do not favor this bright line approach because it
dispute that Pectol’s behavior met the standard for ineffective   requires that we disregard the cold reality that faces a suspect
assistance of counsel. Similarly, it is uncontested that the      in pre-indictment plea negotiations. There is no question in
Assistant United States Attorney presented to Moody a             our minds that at formal plea negotiations, where a specific
definite plea bargain which offered a lighter sentence in         sentence is offered to an offender for a specific offense, the
exchange for Moody’s continued cooperation. This was not          adverse positions of the government and the suspect have
a casual conversation about a potential plea agreement, but a     solidified. Indeed, it seems a triumph of the letter over the
formalized offer for a specific term of imprisonment in           spirit of the law to hold that Moody had no right to counsel in
exchange for Moody’s cooperation. In this situation, the          his decision to accept or deny the offered plea bargain only
onset of plea negotiations begun by the government prior to
indictment raises the specter of the unwary defendant
agreeing to surrender his right to a trial in exchange for an         4
                                                                        Although Moody argues that, in the alternative, this Court should
unfair sentence without the assurance of legal assistance to      affirm the district court on the grounds that he suffered a violation of his
protect him. As the Supreme Court recognized, “only the           Fifth Amendment right to due process here, we are unpersuaded. A party
presence of counsel [permits the] accused to know all the         seeking relief on that basis must demonstrate that the government
defenses against him and to plead intelligently.” Hamilton v.     compelled his testimony, and must show the presence of custody and
Alabama, 368 U.S. 52, 55 (1961). But for the delay of the         interrogation. See United States v. Latouf, 132 F.3d 320, 330 (6th Cir.
                                                                  1997). There is no dispute that Moody volunteered his statements to the
prosecution in filing charges, Moody clearly would have been      FBI; he was therefore not compelled by the government to do anything.
entitled to the effective assistance of counsel. Under the        Moreover, Moody offers no support for his broad contention that “due
Supreme Court’s and our Circuit’s approach, he is not – even      process requires that effective counsel be provided during plea
                                                                  negotiations that occur before indictment.”
