                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            SEPT 8, 2008
                             No. 07-15714                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 07-60149-CR-JIC

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RICKY JACKSON,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (September 8, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Ricky Jackson appeals his conviction for possession of a firearm by a

convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal,

Jackson argues that the district court erred in denying his motion to suppress

statements made by Jackson to federal agents, because his Sixth Amendment right

to counsel had attached in a state proceeding for the same offense, and, therefore,

the federal agents violated his Sixth Amendment rights when they questioned him

at length. We conclude that Jackson’s right to counsel had not attached in the

federal case against him when he made incriminating statements to federal

authorities, thus his Sixth Amendment right to counsel was not violated.

Moreover, Jackson had initiated that conversation with federal agents. Thus, the

district court did not err when it denied Jackson’s motion to suppress those

statements. Accordingly, we AFFIRM.

                                I. BACKGROUND

      Jackson was indicted for possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Jackson filed a pre-trial motion to

suppress physical evidence seized on 3 April 2007 and 21 June 2007, as well as

statements that he made to law enforcement officers on 3 April 2007, 1 June 2007

and 21 June 2007, and also requested an evidentiary hearing. Jackson argued in

his motion that his statements made to federal agents on 1 June 2007 during the



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canvassing of his neighborhood and after his arrest on federal charges on 21 June

2007 are inadmissible, since they were made after his Sixth Amendment right to

counsel had attached in a state case based upon the same offense. Jackson also

raised arguments concerning the admissibility of evidence seized and statements

made to Florida state police officers on 3 April 2007, which are not raised on

appeal.

      At the evidentiary hearing before a magistrate judge concerning Jackson’s

motion to suppress, Florida Police Officer Aaron Burk testified that on 3 April

2007 he went to the area of Jackson’s residence in response to a 911 call

concerning a gun being fired outside of a residence. Officer Burk testified that

Jackson flagged him down, and following a conversation concerning a .38 that

Jackson said he had shot in the air, Jackson was placed in handcuffs and advised of

his Miranda1 rights, which Jackson waived. The officer said Jackson consented to

a search with Jackson of his residence for injured persons, during which the officer

saw the grip of a shotgun protruding from underneath the bedsheets. A

background check by the officer revealed Jackson was a convicted felon. Jackson

went to state court the day after the shooting, was appointed counsel to represent

him in the pending state matter on 16 May 2007, and the state charges were not



      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

                                           3
dismissed until 29 June 2007.

      Federal Special Agent DeVito testified that, during her investigation of

Jackson for the Bureau of Alcohol , Tobacco, Firearms and Explosives (“ATF”) for

a firearms violation by a felon, she went to Jackson’s neighborhood on 1 June 2007

to canvas the neighbors concerning the shooting described above, without

intending to contact the defendant. Agent DeVito testified that, while she was

speaking to the neighbor who lived directly across from Jackson, Jackson exited

his residence and approached the group. She testified that she did not call him over

to them, and when he was a few feet away she asked him whether he was Ricky

Jackson, which he confirmed. Agent DeVito identified herself as an agent with the

ATF and told him they were in the neighborhood to find out if anyone had

witnessed what happened April 3rd regarding a shooting in his backyard, to which

he replied “oh, you mean, when I shot in my backyard?” R3 at 51-52. Agent

DeVito testified that he admitted to shooting a shotgun into the air, hiding the gun

completely under his bedspread, speaking to police officers that arrived on the

scene, and allowing them to go into his house to look for injured people, after he

had initially refused saying they needed a search warrant to go in the house. He

also told her that the police officers found the gun during the walk-through. She

did not take him into custody during this conversation, which primarily took place



                                          4
in front of his residence. Jackson invited the federal agents into his backyard and

residence to show them how and where the events of April 3rd had occurred.

Agent DeVito testified that (1) she did not ask him whether he had a lawyer, (2)

call his lawyer, or (3) advise him he had the right to have a lawyer present while

she questioned him, and it did not occur to her that he may have a lawyer until after

she left his residence, although she was aware there was a state proceeding going

on against him.

      Agent DeVito also testified concerning the arrest of Ricky Jackson on

federal charges on 21 June 2007, stating that, after he was taken into custody by

the ATF, he was advised of his rights, which he waived by signing a form. Agent

DeVito testified that, following the execution of the form, Jackson did not indicate

that he no longer wished to speak with police. She testified that, while Jackson

was in custody, he discussed in more detail the events on the night of the shooting,

describing how he shot his shotgun into the air once to scare loiterers away, that he

made up the story he told to the Florida police officers about having a .38, how he

agreed to allow the police officers to go into his house to look for injured people,

and that he also saw a portion of the shotgun sticking out of the bedspread when he

went through the house with the police officer. She testified that Jackson told the

federal agents about two boxes of ammunition he had purchased and signed a form



                                           5
consenting to the search of his residence for the ammunition, which federal agents

retrieved from his residence.

      Jackson testified that when Agent DeVito visited his neighborhood on 1

June 2007, he walked over to Agent DeVito to get a closer look at her. He said

that, when he walked over to Agent DeVito, she asked him whether he minded

answering a few questions, and he said he would answer any question she wanted.

When Jackson was asked about signing the waiver form given to him by federal

agents on 21 June 2007, Jackson testified that he would do anything with her, and

that, yes, he signed the form.

      At the hearing Jackson, through counsel, argued that the statements he made

to federal agents must be suppressed, since the federal and state charges were

identical and concerned the same offense, his right to counsel attached to the

offense and the federal agent knew or should have known that he was already

represented by counsel for this offense. Jackson also argued that it was not

sufficient to “Mirandize” him on 21 June 2007, since he was represented by

counsel, and they should have specifically discussed the fact he had a lawyer and

ask him whether he wanted that lawyer present. Id. at 131-132. In a “Notice of

Supplemental Authority in Support of Motion to Suppress,” which was filed after

the evidentiary hearing, Jackson noted that the Supreme Court held in Texas v.



                                          6
Cobb, 532 U.S. 162, 172-173, 121 S. Ct. 1335, 1343 (2001), that the Sixth

Amendment right to counsel attaches to offenses that, even if not formally charged,

would be considered the same offense under Blockburger v. United States, 284

U.S. 299, 304, 52 S. Ct. 180, 182 (1932).

      The magistrate issued a report and recommendation (“R&R”),

recommending, among other matters, the denial of Jackson’s motion to suppress

his statements to federal agents on 1 June 2007 and 21 June 2007, since Jackson’s

right to counsel had attached only in connection with the state charges and Jackson

had initiated the June 1 conversation with the federal agents. Jackson objected to

the magistrate judge’s findings, arguing that at the time he was questioned by

federal agents his right to counsel had attached in connection with the state and

federal charges, since both charges had essentially the same elements. The

government responded, urging the application of dual sovereignty to the Sixth

Amendment right to counsel issue.

      The district court adopted the R&R and denied Jackson’s motion to

suppress, since his right to counsel had only attached in the state case. Jackson

pled guilty in the federal case to possession of a firearm by a convicted felon,

reserved the right to appeal the adverse determination of his Motion to Suppress,

and was sentenced to 180 months of imprisonment.



                                            7
                                  II. DISCUSSION

      On appeal, Jackson argues that the district court erred in denying his motion

to suppress statements made by Jackson to federal agents, since his Sixth

Amendment right to counsel had attached in a state proceeding for the same

offense; therefore, the federal agents violated his Sixth Amendment rights when

they questioned him at length about the same offense. Jackson notes that the

Second Circuit held that “[n]owhere in Cobb, either explicitly or by imputation, is

there support for a dual sovereignty exception to its holding that when the Sixth

Amendment right to counsel attaches, it extends to offenses not yet charged that

would be considered the same offense under Blockberger,” United States v. Mills,

412 F.3d 325, 330 (2d Cir. 2005). Jackson recognizes that his position is barred by

our holding in U.S. v. Burgest, 519 F.3d 1307, 1310 (11th Cir. 2008); however, he

raises it on appeal in order to preserve it for further review by the Supreme Court.

      When considering a district court’s denial of a motion to suppress, we

review its findings of fact for clear error and its application of the law to those facts

de novo. United States v. Newsome, 475 F.3d 1221, 1223 (11th Cir.) (per curiam),

cert. denied, 128 S. Ct. 218 (2007). We construe all facts in the light most

favorable to the prevailing party, in this case, the government. Id. at 1223-24. Any

evidence obtained by unconstitutional searches and seizures is inadmissible. Mapp



                                            8
v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691 (1961). Although the doctrine

initially was applied in the context of the Fourth Amendment, it also applies to

evidence seized in contravention of the Fifth and Sixth Amendments. United

States v. Terzado-Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990).

      “The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the

accused shall enjoy the right ... to have the Assistance of Counsel for his defence.’”

See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991)

(quoting U.S. Const. amend. VI). The Sixth Amendment right to counsel “is

offense specific.” McNeil, 501 U.S. at 175, 111 S. Ct. at 2207. “It cannot be

invoked once for all future prosecutions, for it does not attach until a prosecution is

commenced, that is, at or after the initiation of adversary judicial criminal

proceedings – whether by way of formal charge, preliminary hearing, indictment,

information, or arraignment.” Id. (quotations and citations omitted).

“Incriminating statements pertaining to other crimes, as to which the Sixth

Amendment right has not yet attached, are, of course, admissible at a trial of those

offenses.” Id. at 176, 111 S. Ct. at 2208 (quotations and citations omitted).

“[W]here conduct violates laws of separate sovereigns, the offenses are distinct for

purposes of the Sixth Amendment right to counsel.” United States v. Burgest, 519

F.3d 1307, 1310 (11th Cir. 2008) (holding that questioning by federal agents did



                                           9
not violate the defendant’s Miranda rights, because, at the time of the questioning,

he had only been charged under state law, not federal law). In Burgest, we adopted

the First Circuit’s reasoning in United States v. Coker, 433 F.3d 39, 44 (1st Cir.

2005):

      [a]fter carefully examining Cobb, we conclude that the dual
      sovereignty doctrine applies for the purposes of defining what
      constitutes the same offense in the Sixth Amendment right to counsel
      context. In doing so, we reject the reasoning of the Second Circuit in
      Mills and adopt the reasoning of the Fifth Circuit in Avants. The
      court in Mills stated that “[n]owhere in Cobb, either explicitly or by
      imputation, is there support for a dual sovereignty exception” in the
      Sixth Amendment right to counsel context. Mills, 412 F.3d at 330.
      This statement, in our view, does not give adequate consideration to
      the Court’s statement that it saw “no constitutional difference between
      the meaning of the term ‘offense’ in the contexts of double jeopardy
      and of the right to counsel.” Cobb, 532 U.S. at 173, 121 S. Ct. 1335,
      149 L.Ed.2d 321. If the Court intended to incorporate only the
      Blockburger test into its Sixth Amendment jurisprudence, then its
      statement in Cobb would make no sense, as there would be a
      difference in the meaning of the term “offense” in the contexts of
      double jeopardy and of the right to counsel.

519 F.3d at 1310. In a later case, we cited Burgest in holding that the defendant’s

statements to federal agents, after he had been assigned an attorney for state

charges, need not be suppressed, since under Burgest the dual sovereignty doctrine

applied; therefore, his Sixth Amendment counsel rights had not been violated.

United States v. Harris, 526 F.3d 1334, 1340 (11th Cir. 2008) (per curiam).

      In the absence of questioning by law enforcement, the we have held that



                                          10
“[v]oluntary and spontaneous comments by the accused, even after Miranda rights

are asserted, are admissible evidence.” Cannady v. Dugger, 931 F.2d 752, 754

(11th Cir. 1991). Further, “[i]ncriminating statements made in the course of casual

conversation are not products of a custodial interrogation.” United States v.

Satterfield, 743 F.2d 827, 849 (11th Cir. 1984). We will consider a

communication initiated by the accused where the accused’s agent approaches the

police. See United States v. Gonzalez, 183 F.3d 1315, 1324 (11th Cir. 1999)

(finding no Sixth Amendment violation), overruled on other grounds, United States

v. Diaz, 248 F.3d 1065, 1107 (11th Cir. 1999).

      In this case, it is undisputed that Jackson’s Sixth Amendment right to

counsel attached to the state court proceeding for the felon-in-possession of a

firearm charge at the time the federal agents interviewed him on 1 June 2007 and

21 June 2007; however, Jackson’s prior right to counsel for the charged state

offense did not attach to Jackson’s uncharged federal felon-in-possession of a

firearm charge, since the federal offense was separate from the state offense under

the dual sovereignty doctrine, which Burgest held applies in the Sixth Amendment

context. 519 F.3d at 1310. Consequently, the district court did not err when it

admitted (1) Jackson’s statements to Agent DeVito on 1 June 2007, (2) his

statements to federal agents on 21 June 2007, and (3) the ammunition federal



                                          11
agents seized from his home, since Jackson’s Sixth Amendment rights had not yet

attached to the federal offense the agents were investigating.

      Assuming, arguendo, that we were to conclude that the district court erred in

finding that Jackson’s Sixth Amendment right to counsel had not attached to the

federal offense, we would hold that the district court did not err in denying

Jackson’s motion to suppress his incriminating statements to Agent Devito on 1

June 2007, since his statements were otherwise admissible. Jackson’s statements

to Agent Devito on 1 June 2007 may be considered under our ruling in Gonzalez,

since Jackson, on his own initiative, approached Agent Devito, who identified

herself as a federal agent. 183 F.3d at 1324. His voluntary and spontaneous

incriminating statements during that conversation are admissible under Cannady.

931 F.2d at 754. Additionally, since this conversation was not the product of a

custodial interrogation—during the entire conversation he was free to leave and at

no time did he indicate he wished to end the conversation – the incriminating

statements he made during that conversation are admissible under Satterfield. 743

F.2d at 849.

      Finally, even if we were to conclude that the district erred in denying

Jackson’s motion to suppress his incriminating statements, the error was harmless

beyond a reasonable doubt. See United States v. Turner, 871 F.2d 1574, 1581-82



                                          12
(11th Cir.1989). In light of the record, even in the absence of his statements to

federal agents, the evidence against Jackson would have been sufficient to support

his conviction. Jackson does not challenge on appeal that a Florida police officer

found a shotgun in plain view in Jackson’s apartment during a voluntary search of

his apartment and a record check established that Jackson was a felon. Thus,

because the record demonstrates that the evidence of guilt was overwhelming, any

error in admitting Jackson’s statements to federal agents was harmless.

                                III. CONCLUSION

      For the reasons stated above, we hold that the district court did not err when

it denied Jackson’s motion to suppress incriminating statements that he made to

federal agents. Accordingly, we AFFIRM.




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