          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                June 26, 2009
                               No. 08-10740
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

STEPHEN MICHAEL EWING, also known as Stephen Michaels,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:07-CR-30-2


Before DAVIS, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
      Stephen Michael Ewing appeals his jury trial convictions for conspiracy
to defraud the Internal Revenue Service and multiple counts of tax evasion, mail
fraud, making a false statement to a government agency, and making false
statements in relation to health care matters. On appeal, Ewing argues only
that his previously retained counsel provided ineffective assistance during pre-
indictment discussions with the Government. Ewing asserts that his counsel



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-10740

failed to advise him of the risks of his cooperation with the Government and
failed to negotiate any sort of immunity agreement in return for his cooperation.
      In the absence of a right to counsel, a defendant has no constitutional right
to the effective assistance of counsel. See Coleman v. Thompson, 501 U.S. 722,
752 (1991); Wainwright v. Torna, 455 U.S. 586, 587-88 (1982). The Supreme
Court has held that the “right to counsel attaches only at or after the initiation
of adversary judicial proceedings against the defendant.”        United States v.
Gouveia, 467 U.S. 180, 187 (1984). Adversary judicial proceedings may begin “by
way of formal charge, preliminary hearing, indictment, information, or
arraignment.” Kirby v. Illinois, 406 U.S. 682, 689 (1972).
      In the instant case, although Ewing was warned in 2004 that he might
have some criminal exposure, “adversary judicial proceedings” did not commence
until an indictment was filed 2007. See Gouveia, 467 U.S. at 187; Kirby, 406
U.S. at 689. Because Ewing’s Sixth Amendment right to counsel had not yet
attached, he had no constitutional right to the effective assistance of counsel
during his pre-indictment discussions with the Government. See Coleman, 501
U.S. at 752.
      AFFIRMED.




                                        2
