                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 18a0058p.06

                          UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT



 JOHN R. TURNER,                                                  ┐
                                       Petitioner-Appellant,      │
                                                                  │
                                                                   >        No. 15-6060
            v.                                                    │
                                                                  │
                                                                  │
 UNITED STATES OF AMERICA,                                        │
                                      Respondent-Appellee.        │
                                                                  ┘

                                Appeal from the United States District Court for
                                 the Western District of Tennessee at Memphis.
                 Nos. 2:12-cv-02266; 2:08-cr-20302-1—Samuel H. Mays, Jr., District Judge.

                                         Argued: October 11, 2017

                                    Decided and Filed: March 23, 2018

             Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS,
            ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE,
                   STRANCH, DONALD, THAPAR, and BUSH, Circuit Judges.*
                                      _________________

                                                  COUNSEL

ARGUED EN BANC: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee,
for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY’S OFFICE, Memphis,
Tennessee, for Appellee. ON SUPPLEMENTAL BRIEF: Robert L. Hutton, GLANKLER
BROWN, PLLC, Memphis, Tennessee, for Appellant. Kevin G. Ritz, Murrell G. Martindale,
UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee. Steven J.
Mulroy, UNIVERSITY OF MEMPHIS, Memphis, Tennessee, Stephen Ross Johnson, RITCHIE,
DILLARD, DAVIES & JOHNSON, P.C., Knoxville, Tennessee, Adam Lamparello, Newport,
Kentucky, for Amici Curiae.

     BATCHELDER, J., delivered the opinion of the court in which GIBBONS, ROGERS,
SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, THAPAR, and BUSH, JJ., joined,

        *
         The clerk submitted this case to the en banc panel of the Sixth Circuit Court of Appeals before Judge Joan
L. Larsen received her commission on November 8, 2017.
 No. 15-6060                        Turner v. United States                               Page 2


and CLAY and WHITE, JJ., joined in the result. BUSH, J. (pp. 9–22), delivered a separate
dubitante opinion in which KETHLEDGE, J., joined. CLAY, J. (pp. 23–37), delivered a
separate concurrence in the judgment only in which WHITE, J., joined in Part I. WHITE, J.
(pp. 38–39), delivered a separate concurrence in the judgment only. STRANCH, J. (pp. 40–48),
delivered a separate dissent, in which COLE, C.J., and MOORE and DONALD, JJ., joined.

                                      _________________

                                           OPINION
                                      _________________

       ALICE M. BATCHELDER, Circuit Judge. Appellant John Turner asks us to overrule
nearly four decades of circuit precedent holding that the Sixth Amendment right to counsel does
not extend to preindictment plea negotiations. See United States v. Moody, 206 F.3d 609, 614–
15 (6th Cir. 2000) (citing United States v. Sikora, 635 F.2d 1175 (6th Cir. 1980)). We decline to
do so. Our rule—copied word for word from the Supreme Court’s rule—is that the Sixth
Amendment right to counsel attaches only “at or after the initiation of judicial criminal
proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or
arraignment.” Id. at 614 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion));
see also United States v. Gouveia, 467 U.S. 180, 188 (1984). The district court followed this
rule, and we AFFIRM.

                                                I.

       In 2007, after appellant John Turner robbed four Memphis-area businesses at gunpoint,
he was arrested by a Memphis police officer who was part of a joint federal-state “Safe Streets
Task Force.” Turner hired an attorney. A Tennessee grand jury indicted Turner on multiple
counts of aggravated robbery, and Turner’s attorney represented him in plea negotiations with
state prosecutors.

       During the state proceedings, the state prosecutor informed Turner’s attorney that the
United States Attorney’s Office planned to bring federal charges against Turner. Turner’s
attorney contacted the Assistant United States Attorney (“AUSA”) responsible for Turner’s case,
who confirmed that the United States planned to bring federal robbery and firearms charges that
could result in a mandatory minimum of eighty-two years’ imprisonment for the firearms
 No. 15-6060                          Turner v. United States                              Page 3


charges alone.     The AUSA conveyed to Turner’s attorney a plea offer of fifteen years’
imprisonment which would expire if and when a federal grand jury indicted Turner.

       Turner’s attorney says that he correctly and timely relayed the federal plea offer to
Turner, but that Turner refused it. Turner disputes this. In any event, Turner did not accept the
federal plea offer before the federal grand jury in the United States District Court for the Western
District of Tennessee indicted him in 2008. Turner hired a new attorney and negotiated a plea
deal which resulted in twenty-five years’ imprisonment. As part of Turner’s plea agreement, he
waived his right to file a direct appeal.

       In 2012, Turner filed a 28 U.S.C. § 2255 motion alleging that his original attorney
rendered constitutionally ineffective assistance during the federal plea negotiations. The district
court, following Sixth Circuit and Supreme Court precedent, found that Turner’s Sixth
Amendment right to counsel had not yet attached during his preindictment federal plea
negotiations and denied his motion.

       A panel of this court affirmed the district court. Turner v. United States, 848 F.3d 767
(6th Cir. 2017). Turner then filed a petition for rehearing en banc, which this court granted.
Turner v. United States, 865 F.3d 338 (6th Cir. 2017).

                                                 II.

       Turner raises two issues: (1) whether the Sixth Amendment right to counsel extends to
preindictment plea negotiations; and (2) whether an indictment in a state prosecution triggers a
criminal defendant’s Sixth Amendment right to counsel for the purposes of forthcoming federal
charges based on the same underlying conduct. Both of these issues are questions of law that we
review de novo. See Moody, 206 F.3d at 612.

                                                 A.

       “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defen[s]e.” U.S. CONST. amend. VI. The Sixth Amendment right to counsel
“does not attach until a prosecution is commenced.” Rothgery v. Gillespie Cty., 554 U.S. 191,
198 (2008) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)). A prosecution commences
 No. 15-6060                        Turner v. United States                              Page 4


only at or after “the initiation of adversary judicial criminal proceedings—whether by way of
formal charge, preliminary hearing, indictment, information, or arraignment.”       Id. (quoting
Gouveia, 467 U.S. at 188).

       Once the Sixth Amendment right to counsel attaches, criminal defendants have a right to
the assistance of counsel during “critical stages” of the prosecution. Missouri v. Frye, 566 U.S.
134, 140 (2012); Montejo v. Louisiana, 556 U.S. 778, 786 (2009). The “core purpose” of the
Sixth Amendment right to counsel was to ensure that criminal defendants could receive
assistance of counsel “at trial,” United States v. Ash, 413 U.S. 300, 309 (1973), but the Supreme
Court has “expanded” the right to certain pretrial “trial-like confrontations” that present “the
same dangers that gave birth initially to the right itself.” Id. at 311–12. These critical stages
include “arraignments, postindictment interrogations, postindictment lineups, and the entry of a
guilty plea.” Frye, 566 U.S. at 140.

       Six years ago, in Missouri v. Frye, 566 U.S. at 144, and Lafler v. Cooper, 566 U.S. 156,
162 (2012), the Supreme Court extended the Sixth Amendment right to counsel to a new critical
stage: plea negotiations.    It did so because plea negotiations have become “central to the
administration of the criminal justice system” and because they frequently determine “who goes
to jail and for how long,” making them potentially “the only stage when legal aid and advice
would help” many criminal defendants. Frye, 566 U.S. at 143–44 (citations omitted). In both
Frye and Lafler, however, the plea negotiations occurred after the criminal defendants had been
formally charged. See id. at 138; Lafler, 566 U.S. at 161. Neither Frye nor Lafler specifically
addresses attachment, but they are critical-stage cases which we have found “accept the rule that
the right to counsel does not attach until the initiation of adversary judicial proceedings.”
Kennedy v. United States, 756 F.3d 492, 493 (6th Cir. 2014).

       Turner argues that the Supreme Court’s reasoning for holding that postindictment plea
negotiations are critical stages applies equally to preindictment plea negotiations. But Turner
makes the fundamental “mistake” of confusing the “critical stage question” with the “attachment
question.” Rothgery, 554 U.S. at 211 (internal quotation marks omitted). These questions must
be kept “distinct.” Id. at 212 (citation omitted). That is why the Supreme Court has repeatedly
rejected attempts by criminal defendants to extend the Sixth Amendment right to counsel to
 No. 15-6060                         Turner v. United States                            Page 5


preindictment proceedings, even where the same proceedings are critical stages when they occur
postindictment.    Compare United States v. Wade, 388 U.S. 218, 236–37 (1967) (Sixth
Amendment right to counsel in postindictment lineups), with Kirby, 406 U.S. at 690 (plurality
opinion) (no Sixth Amendment right to counsel in preindictment lineups); compare Massiah v.
United States, 377 U.S. 201, 205–06 (1964) (Sixth Amendment right to counsel in
postindictment interrogations), with Moran v. Burbine, 475 U.S. 412, 431–32 (1986) (no Sixth
Amendment right to counsel in preindictment interrogations).

       The Supreme Court’s attachment rule is crystal clear. It is “firmly established” that a
person’s Sixth Amendment right to counsel “attaches only at or after the time that adversary
judicial proceedings have been initiated against him.” Gouveia, 467 U.S. at 187. Because the
Supreme Court has not extended the Sixth Amendment right to counsel to any point before the
initiation of adversary judicial criminal proceedings, we may not do so. See Moody, 206 F.3d at
614. We therefore reaffirm our long-standing rule that the Sixth Amendment right to counsel
does not extend to preindictment plea negotiations.

       Turner argues that other circuits extend the Sixth Amendment right to counsel to
preindictment “adversarial confrontations,” but no other circuit has definitively extended the
Sixth Amendment right to counsel to preindictment plea negotiations. Only one circuit has
implied that the Sixth Amendment right to counsel extends to preindictment plea negotiations,
but that opinion was non-precedential and the issue of when the Sixth Amendment right to
counsel attaches was not before the court in that case. See United States v. Giamo, 665 F. App’x
154, 156–57 (3d Cir. 2016). A minority of circuits have also discussed the “possibility that the
right to counsel might conceivably attach before any formal charges are made, or before an
indictment or arraignment.” Roberts v. Maine, 48 F.3d 1287, 1291 (1st Cir. 1995); see Perry v.
Kemna, 356 F.3d 880, 895–96 (8th Cir. 2004) (Bye, J., concurring) (collecting cases). None of
these circuits, however, has extended the Sixth Amendment right to counsel to preindictment
plea negotiations. There is therefore no circuit split on this issue.
 No. 15-6060                        Turner v. United States                                Page 6


                                                B.

       Turner also argues that even if the Sixth Amendment right to counsel does not ordinarily
attach to preindictment plea negotiations, an indictment in a state prosecution triggers a criminal
defendant’s Sixth Amendment right to counsel for the purposes of forthcoming federal charges
based on the same underlying conduct.

       Turner appears to have waived this argument, because he did not make this argument to
the district court or to the panel on appeal. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552
(6th Cir. 2008). However, the government has not argued waiver. Additionally, where a newly-
raised issue is “purely one of law requiring no new or amplified factual determination” and has
been “fully briefed and argued,” we may exercise our discretion to deviate from the general
waiver rule. Taft Broad. Co. v. United States, 929 F.2d 240, 244–45 (6th Cir. 1991) (citations
omitted). We do so here and address Turner’s argument on the merits.

       The Sixth Amendment right to counsel is “offense specific.” McNeil, 501 U.S. at 175.
“It cannot be invoked once for all future prosecutions,” id., or once for all “factually related”
offenses. Texas v. Cobb, 532 U.S. 162, 168–69 (2001). Turner is therefore correct only if both
the state and federal governments prosecuted him for the “same offense.” Id. at 173.

       In determining what constitutes the “same offense,” the Supreme Court has instructed us
to apply the test in Blockburger v. United States, 284 U.S. 299 (1932). Cobb, 532 U.S. at 173.
“The applicable rule is that, where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does not.”
Blockburger, 284 U.S. at 304. This test applies to the Sixth Amendment right to counsel because
the Supreme Court “see[s] 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.

       The circuit courts are split on whether the Supreme Court in Cobb “incorporated all of its
double jeopardy jurisprudence (including the dual sovereignty doctrine)” into its Sixth
Amendment right-to-counsel jurisprudence “or [incorporated] merely the Blockburger test.”
United States v. Coker, 433 F.3d 39, 43 (1st Cir. 2005).
 No. 15-6060                         Turner v. United States                              Page 7


       The majority view is that when a criminal defendant’s conduct violates both state and
federal law, that defendant commits two separate offenses, even when the state and federal
offenses contain the same essential elements. Id. at 43–45; United States v. Holness, 706 F.3d
579, 590–91 (4th Cir. 2013); United States v. Burgest, 519 F.3d 1307, 1310 (11th Cir. 2008);
United States v. Avants, 278 F.3d 510, 517 (5th Cir. 2002). Because the Supreme Court 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, these circuits apply the dual
sovereignty doctrine from the double-jeopardy context to the Sixth Amendment right-to-counsel
context. Under that doctrine, when a defendant “in a single act violates the ‘peace and dignity’
of two sovereigns by breaking the laws of each, he has committed two distinct ‘offen[s]es.’”
Heath v. Alabama, 474 U.S. 82, 88 (1985) (citation omitted).

       The minority view is that when a criminal defendant’s conduct violates both state and
federal law, the defendant nevertheless commits only one offense when the state and federal
offenses contain the same essential elements. See United States v. Mills, 412 F.3d 325, 330 (2d
Cir. 2005); United States v. Red Bird, 287 F.3d 709, 715 (8th Cir. 2002). These circuits interpret
Cobb to incorporate only the Blockburger test and not the dual-sovereignty doctrine into the
Sixth Amendment right-to-counsel context.

       We join the majority view because it more closely follows Supreme Court precedent than
does the minority view. Using the dual-sovereignty doctrine to determine the meaning of the
term “offense” in the double-jeopardy context but not in the Sixth Amendment right-to-counsel
context would create a constitutional difference where the Supreme Court saw none. See Coker,
433 F.3d at 44. We therefore hold that when a criminal defendant’s conduct violates both state
and federal law that defendant commits two separate offenses, even when the essential elements
of the state and federal offenses are the same.

                                                  C.

       Turner’s sole basis for relief in his 28 U.S.C. § 2255 motion was that his original attorney
provided constitutionally ineffective assistance during Turner’s preindictment federal plea
negotiations. But Turner’s Sixth Amendment right to counsel had not yet attached during those
 No. 15-6060                       Turner v. United States                           Page 8


preindictment plea negotiations.   There can be no constitutionally ineffective assistance of
counsel where there is no Sixth Amendment right to counsel in the first place. Smith v. Ohio
Dep’t of Rehab. & Corr., 463 F.3d 426, 433 (6th Cir. 2006) (citing Coleman v. Thompson,
501 U.S. 722, 752 (1991)).

                                              III.

       For the foregoing reasons, we AFFIRM the judgment of the district court.
 No. 15-6060                              Turner v. United States                                         Page 9


                                             _________________

                                                 DUBITANTE
                                             _________________

        JOHN K. BUSH, Circuit Judge, concurring dubitante. History sometimes reveals more
import to words than they at first seem to have. And faithful adherence to the Constitution and
its Amendments requires us to examine their terms as they were commonly understood when the
text was adopted and ratified, rather than applying meaning derived years later that may weaken
constitutional rights. This case calls for such an examination.

        The Sixth Amendment states in pertinent part: “In all criminal prosecutions, the accused
shall enjoy the right . . . to have the assistance of counsel for his defence.” We must decide
whether a criminal suspect, having received from a federal prosecutor an offer to enter into a
plea agreement that requires pre-indictment acceptance, is an “accused” in a “criminal
prosecution[]” and therefore entitled to a constitutional right to counsel.

        We know that it is settled that the substantive right to counsel includes the right to
communication of a favorable plea offer: the Supreme Court made that clear in Lafler v. Cooper,
566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S. 134 (2012). So no one disputes that
defendant-appellant John Turner’s right of “assistance of counsel for his defence” includes his
counsel’s communicating the offer, assuming the right has attached. Our task, therefore, is to
decide only whether that substantive right did attach to Turner upon or before the federal
prosecutor’s presentment of the plea offer—that is, whether Turner was then an “accused” in a
“criminal prosecution.”

        The majority is correct that we are bound to affirm because of Supreme Court precedents
holding that the Sixth Amendment right to counsel attaches only “at or after the initiation of
criminal proceedings—whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” United States v. Moody, 206 F.3d 609, 614 (6th Cir. 2000).1 But


        1
          I note that the Court’s precedents do not expressly state that only a “formal charge, preliminary hearing,
indictment, information, or arraignment” may trigger the attachment of the right to counsel. Cf. Rothgery v.
Gillespie Cty., 554 U.S. 191, 213 (2008) (holding right to counsel attached to Texas defendant when he was brought
before a magistrate for a probable-cause hearing the day after arrest). This leaves open the possibility that the
 No. 15-6060                              Turner v. United States                                       Page 10


the original understanding of the Sixth Amendment gave larger meaning to the words “accused”
and “criminal prosecution” than do these precedents, and for that reason, I write separately.

        As discussed below, the greater weight of the Founding-era evidence appears to support
the propositions that Turner was an “accused” even though he had not yet been indicted
federally, and that the communication of an exploding plea-agreement offer by a federal
prosecutor that would, if accepted, all but end Turner’s criminal litigation, was part of a
“criminal prosecution” as those terms were used in the Sixth Amendment. In light of this history
of the original meaning of the Sixth Amendment text, the Supreme Court might wish to
reconsider its right-to-counsel jurisprudence.

                                                        I

                  A. The Search for “Original Meaning” in the Historical Record

        The Supreme Court routinely looks to Founding-era dictionaries, acts of the First
Congress, early decisions of the federal judiciary, records of the Constitutional Convention and
state ratifying conventions, and other Founding-era documents as sources that shed light on the
original meaning of constitutional provisions. See, e.g., Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2671–72 (2015); District of Columbia v. Heller,
554 U.S. 570, 603–14 (2008); Marsh v. Chambers, 463 U.S. 783, 787–91 (1983).

        Sometimes the Court has relied on such sources to determine what the Framers intended
the provision to mean—or, more specifically, what a provision’s drafter intended it to mean.
See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800 (1995). Call this the “What was
James Madison thinking?” approach.                  Yet another method has been to ascertain the
understanding of those who ratified the text (in the case of the original Constitution) or
amendment (as here). See, e.g., Alden v. Maine, 527 U.S. 706, 716–19 (1999). Call this the
“What did the ratifiers think that James Madison was thinking?” approach.


prosecutor’s presentment of the plea offer was itself an “initiation of criminal proceedings.” Moody, 206 F.3d at
614. Nevertheless, because the Court’s precedents imply that attachment of the right to counsel requires at least
some post-arrest formalization of the criminal case such as by indictment or magistration, and because there was no
such formalization in Turner’s case, a reversal here would appear to contravene the Court’s attachment
jurisprudence.
 No. 15-6060                                 Turner v. United States                                        Page 11


        A third approach, and the one this opinion follows, is to look to the original public
meaning of a provision in the Constitution, as distinct from the perhaps more technical
understanding of the provision that a constitutional drafter or a delegate to a ratifying convention
might have held. See, e.g., Heller, 554 U.S. at 576–77 (“In interpreting this text, we are guided
by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and
phrases were used in their normal and ordinary as distinguished from technical
meaning.’ . . . Normal meaning may of course include an idiomatic meaning, but it excludes
secret or technical meanings that would not have been known to ordinary citizens in the founding
generation.”).

        Gouverneur Morris, “from whose pen” (according to Madison) came “[t]he finish given
to the style and arrangement of the [C]onstitution,”2 aptly acknowledged: “It is not possible for
me to recollect with precision all that passed in the Convention while we were framing the
Constitution; and, if I could, it is most probable that a meaning may have been conceived from
incidental expressions different from that which they were intended to convey, and very different
from the fixed opinions of the speaker.”3 The same could be said of those who drafted and
edited the Bill of Rights. Accordingly, as Justice Joseph Story emphasized, it should be the
objective meaning of the constitutional text, not the drafter’s, editor’s, or ratifier’s subjective
intention, that is to be ascertained, for “[t]he people adopted the [C]onstitution according to the
words of the text in their reasonable interpretation, and not according to the private interpretation
of any particular men.”4 Call this the “What did the average Joe (or Josephine) from the
Founding era understand the words to mean?” approach.

        This latter method, like most searches for word meaning, begins with the dictionary.
Cf. Ariz. State Legislature, 135 S. Ct. at 2671. Accordingly, I will first consult the prevailing lay
and legal dictionaries of the time period when the Sixth Amendment was adopted. Second, I will


        2
          Letter from James Madison to Jared Sparks (Apr. 8, 1831), reprinted in Gouverneur Morris, The Diary
and Letters of Gouverneur Morris, vol. 1, at 17 (Anne Cary Morris ed. 1888).
        3
         Letter from Gouverneur Morris to Henry W. Livingston (Nov. 25, 1803), reprinted in Gouverneur Morris,
The Diary and Letters of Gouverneur Morris, vol. 2, at 441–42 (Anne Cary Morris ed. 1888).
        4
            Joseph Story, Commentaries on the Constitution of the United States, vol. I, book III, § 407.
 No. 15-6060                         Turner v. United States                                Page 12


look to Founding-era statutes and legal decisions interpreting the words “accused” and “criminal
prosecution” to see whether these words were likely used and understood by the Framers and
their contemporaries in a manner consistent with their dictionary definitions and not in some
narrower sense. Finally, after articulating how the words “accused” and “criminal prosecution”
were likely understood in the Founding era, I will apply that understanding by analogy to the
facts of the case before us.

       This last step warrants brief explanation. Sometimes the Supreme Court articulates the
original meaning of a constitutional provision with sufficient specificity that it applies directly to
the facts of the case being decided. See, e.g., Heller, 554 U.S. at 624–27 (explaining meaning of
the right to bear arms such that the firearms regulation at issue could not then withstand any level
of judicial scrutiny). But sometimes the Court articulates a more general understanding of such a
provision, which it then applies inductively, whether by analogy or otherwise, to the case before
it. See, e.g., United States v. Jones, 565 U.S. 400, 411 (2012) (applying “an 18th-century
guarantee against unreasonable searches” to the government’s use of GPS monitoring to track a
criminal suspect).

       The latter approach is appropriate where, as in Jones and as in this case, the Framers
could not have foreseen the twenty-first-century context to which the constitutional provision in
question would be applied. Indeed, charge bargaining was as unknown to the Framers as GPS
technology. See generally Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L.
Rev. 1 (1979). So, rather than ask whether the Founding generation understood the right to
counsel to apply during pre-indictment charge bargaining (a question as misguided as asking
whether the Founding generation understood the right to privacy to preclude warrantless GPS
tracking), one should ask how the Framers and their contemporaries understood the right to
counsel to operate in the contexts that they knew, and then apply that understanding by analogy
to the present-day charge-bargaining context. Cf. Maryland v. Craig, 497 U.S. 836, 862–70
(1990) (Scalia, J., dissenting) (interpreting Confrontation Clause and applying that interpretation
to address whether a child witness could testify by one-way closed-circuit television). This is the
method that I will now employ.
 No. 15-6060                                Turner v. United States                                         Page 13


  B. Historical Evidence of the Original Understanding of the Scope of the Right to Counsel

                                         1. Founding-Era Dictionaries

         Contrary to what one might surmise from Supreme Court precedents, Founding-era
dictionaries offer no reason to suppose either that “accused” as used in the Sixth Amendment
was commonly understood to mean “indicted” or that it was a term of art understood by the
legally trained to mean “indicted.” Of the nine prevailing general English dictionaries (that is,
non-legal dictionaries) of the Founding era, eight define “accuse” as some version of “to charge
with a crime; to blame or censure,” and all nine offer a definition much broader than “to indict.”5




         5
           Five dictionaries provide a definition of “accuse” that is the same as or nearly identical to “to charge with
a crime; to blame or censure.” John Ash, New & Complete Dictionary of the English Language (London,
Edward & Charles Dilly 1775), available at https://books.google.com/books?id=LDNAAAAAYAAJ&q=accuse#v=
snippet&q=accuse; Samuel Johnson, A Dictionary of the English Language (London, J. F. & C. Rivington et al., 7th
ed. 1785), available at https://books.google.com/books?id=j-UIAAAAQAAJ&q=accuse#v=snippet&q=accuse;
William Perry, The Royal Standard English Dictionary (Worcester, 1st Am. ed. 1788), available at
https://books.google.com/books?id=OpkRAAAAIAAJ&q=accuse#v=snippet&q=accuse;                      Thomas        Sheridan,
A Complete Dictionary of the English Language (London, Charles Dilly, 3d ed. 1790), available at
https://books.google.com/books?id=pBFJAAAAcAAJ&q=accuse#v=snippet&q=accuse; John Walker, A Critical
Pronouncing Dictionary (London, G.G.J. & J. Robinson, & T. Cadell, 1791), available at
https://books.google.com/books?id=DaURAAAAIAAJ&q=accuse#v=snippet&q=accuse.
         Two dictionaries add a few more verbs. Rev. James Barclay, Complete & Universal English Dictionary
(London, J.F. & C. Rivington et al. 1792), available at https://books.google.com/books?id=yeUIAAAAQAAJ&q=a
ccuse#v=snippet&q=accuse (“To charge with a crime; to inform against, indict, or impeach; to censure.”); Thomas
Dyche & William Pardon, A New General English Dictionary (London, Toplis & Bunney, 18th ed. 1781), available
at https://books.google.com/books?id=xOcIAAAAQAAJ&q=accuse#v=snippet&q=accuse (“To indict, impeach,
charge with a fault.”).
         One dictionary defines “accusation” as “the intending a criminal action against any one, either in one’s own
name, or that of the publick.” Nathan Bailey, New Universal Etymological English Dictionary (London,
T. Waller, 4th ed. 1756), available at https://books.google.com/books?id=HXQSAAAAIAAJ&q=accuse#v=snippet
&q=accuse. All these dictionaries generally define “charge” as “to impute, to put to any one’s account,” or
something substantially similar. The only dictionary that offers a more detailed definition of “accuse” than the eight
above-cited dictionaries was Noah Webster’s 1828 American Dictionary of the English Language: “To charge with,
or declare to have committed a crime, either by plaint, or complaint, information, indictment, or impeachment; to
charge with an offense against the laws, judicially or by a public process; as, to accuse one of a high crime or
misdemeanor.” Available at https://archive.org/stream/americandictiona01websrich#page/104/mode/2up. But even
Webster’s definition contemplates that an individual may be an “accused” without being indicted. Moreover,
Webster offers an expansive definition of “charge”: “10. To load or lay on in words, something wrong, reproachful
or criminal; to impute to; as, to charge a man with theft. 11. To lay on in words; to impute to; followed by on before
the person; as, to charge a crime on the offender . . . .”
 No. 15-6060                              Turner v. United States                                         Page 14


        As for the four prevailing legal English dictionaries of the Founding era, one does not
define “accuse” (or related words) at all;6 the other three define “accusation” by example, citing
Clause 39 of the Magna Carta: “By Magna Charta, no man shall be imprisoned or condemned
on any accusation, without trial by his peers, or the law.”7 One can draw two conclusions:
“accused” was a word in general usage (not a term with peculiar meaning in the law), and
“accused” had a meaning that was broader than “indicted.”

        Likewise with the Sixth Amendment’s reference to “criminal prosecutions”: Although
there is no particular definition of that phrase, eight of the nine general English dictionaries cited
above do define the word “prosecution,” and seven of the eight give a primary definition of that
term such as “[a] pursuit, an endeavor to carry on any design.”8 This definition contemplates a
broad meaning of “prosecution”—something reminiscent of its etymological meaning of
pursuing a goal.9 The dictionaries also include more specific secondary definitions such as “a
process at law” and a “suit against a man in a criminal cause.”10 Nor do the legal dictionaries

        6
         Richard Burn & John Burn, A New Law Dictionary (London, A. Strahan & W. Woodfall 1792), available
at https://books.google.com/books?id=LoxRAAAAYAAJ&q=accuse#v=snippet&q=accuse (next entry after
“account” is “ac etiam”).
        7
           See Thomas Potts, A Compendious Law Dictionary (London, T. Ostell 1803), available at
https://books.google.com/books?id=4rQ3AQAAMAAJ&q=accuse#v=snippet&q=accuse; Timothy Cunningham,
A New and Complete Law Dictionary (London, S. Crowder et al. 1764), available at
https://books.google.com/books?id=Y580AQAAMAAJ&q=accuse#v=snippet&q=accuse; Giles Jacob, A New Law
Dictionary (The Savoy, Henry Lintot, 6th ed. 1750), available at https://books.google.com/books?id=zdED1S0lCoA
C&q=accuse#v=snippet&q=accuse.
        8
         See Ash, supra n.5, available at https://books.google.com/books?id=jjNAAAAAYAAJ&q=prosecute#v=s
nippet&q=prosecute; Dyche & Pardon, supra n.5, available at https://books.google.com/books?id=xOcIAAAAQA
AJ&q=pro#v=snippet&q=pro; Sheridan, supra n.5, available at https://books.google.com/books?id=rBFJAAAAcA
AJ&q=pro#v=snippet&q=pro; Walker, supra n.5, available at https://books.google.com/books?id=DaURAAAAIA
AJ&q=pro#v=snippet&q=pro; Barclay, supra n.5, available at https://books.google.com/books?id=yeUIAAAAQA
AJ&q=pro#v=snippet&q=pro; Johnson, supra n.5, available at https://books.google.com/books?id=j-
UIAAAAQAAJ&q=prosecute#v=snippet&q=prosecute; and Webster, supra n.5, available at http://archive.org/strea
m/americandictiona02websrich#page/n373/mode/2up.
        9
          Indeed, Webster offers the following as the primary definition of prosecution: “1. The act or process of
endeavoring to gain or accomplish something; pursuit by efforts of body or mind; as the prosecution of a scheme,
plan, design or undertaking; the prosecution of war or of commerce; the prosecution of a work, study, argument or
inquiry.”
        10
           One dictionary defines prosecution only as “a criminal or civil suit.” Perry, supra n.5, available at
https://books.google.com/books?id=OpkRAAAAIAAJ&q=prosecute#v=snippet&q=prosecute. And one dictionary
does not define prosecution (or related words) at all. Bailey, supra n.5, available at https://books.google.com/books
?id=HXQSAAAAIAAJ&q=pro#v=onepage&q=prosecute (next entry after “prosa” is “proselytes”).
 No. 15-6060                              Turner v. United States                                         Page 15


give reason to define a “prosecution” as occurring only post-indictment: of the four prevailing
dictionaries, three do not define the word (or related words) at all—and the one legal dictionary
that defines “prosecutor” does so only as “he that follows a cause in another’s name.”11 From
this evidence, one may draw two conclusions: “prosecution” was in general usage, and it was
understood to have a broader meaning than referring only to the post-indictment critical stages of
a judicial criminal action.

        One also notes that nowhere else in the original Constitution or the Amendments does
either “accused” or “criminal prosecution” (or a related word) appear except in the Sixth
Amendment. In particular, the Sixth Amendment’s unique use of the words “[i]n all criminal
prosecutions” (emphasis added) to demarcate its rights prompts this question: if Sixth
Amendment rights were to attach only after indictment, why didn’t the Sixth Amendment state
that it applied in a “criminal case” (as used in the Fifth Amendment) or in all criminal “Cases”
(as used along with “Controversies” in Article III)?                  It is arguable that “[i]n all criminal
prosecutions” as used in the Sixth Amendment imparted temporally broader meaning than would
have been imparted by the words “[i]n all criminal cases.” This word choice was consistent with
the Founding-era dictionaries discussed above and other sources discussed below indicating that
a “criminal prosecution,” indeed, could begin before a “criminal case” commenced.12




        11
            The three dictionaries that do not define “prosecutor” or related words are Burn & Burn, supra n.6,
available at https://books.google.com/books?id=eAVAAAAAYAAJ&q=pro#v=onepage&q=prosecute (next entry
after “prorogue” is “protection”); Jacob, supra n.7, available at https://books.google.com/books?id=zdED1S0lCoA
C&q=pro#v=snippet&q=pro (same); and Potts, supra n.7, available at https://books.google.com/books?id=4rQ3AQ
AAMAAJ&q=prosecute#v=snippet&q=prosecute (same). The dictionary that defines prosecutor is Cunningham,
supra n.7, available at https://books.google.com/books?id=spc0AQAAMAAJ&q=pro#v=snippet&q=pro.
        12
             The Supreme Court wrote in Counselman v. Hitchcock, 142 U.S. 547, 563 (1892), “A criminal
prosecution under article 6 of the amendments is much narrower than a ‘criminal case,’ under article 5 of the
amendments.” The Court there did not address the temporal distinction between the “prosecution” and “case” in
light of any Founding-era sources. Rather, it was discussing the difference in the amendments’ scope in terms of to
whom they applied: whereas Sixth Amendment rights applied only to one who was subject to a criminal prosecution
(i.e., a defendant himself), the Fifth Amendment right against self-incrimination applied more broadly, such as to
testifying witnesses. That distinction, of course, has no bearing on the timing question or on this opinion’s
observation that a federal “criminal prosecution,” as originally understood, may begin well in advance of indictment.
 No. 15-6060                               Turner v. United States                                         Page 16


                         2. The Crimes Act of 1790 and the Trial of Aaron Burr

         Next, to corroborate the dictionary evidence as probative of the original understanding of
“accused” and “criminal prosecution,” I will examine other relevant uses and interpretations of
those words from the Founding era. Cf., e.g., Marsh, 463 U.S. at 787–91.

         One of the many significant accomplishments of the First Congress was to enact the
Crimes Act of 1790, which was the first comprehensive federal criminal statute. The Act’s
principal author was Senator (and later Chief Justice) Oliver Ellsworth, who was also familiar
with the text of the Bill of Rights that the First Congress approved in September 1789.13

         Some provisions of the Act apply to one who has been “accused and indicted” (emphasis
added), such as the right to “have a copy of the indictment, and a list of the jury and witnesses.”
Crimes Act of 1790 § 29. But elsewhere, the Act uses “accused or indicted” (emphasis added) in
setting forth the rights to present evidence, call witnesses, and to compel the appearance of
witnesses. Id.14 These semantics indicate that a person could be considered to be in the general
category of an “accused” prior to being put in the more particular subcategory of an “indicted.”

         And indeed, that is what Chief Justice John Marshall recognized in 1807 when he sat as
circuit judge in the criminal matter of Aaron Burr, who stood accused—but not yet indicted—of
treason, for allegedly conspiring to provoke insurrection out West in Spanish territory. (Burr,
after his term as Vice President ended in 1805, had been in contact with the Spanish, and rumors
spread that Burr was perhaps seeking to form an independent republic, or to overthrow Thomas

         13
            As an aside, the Bill of Rights as approved by the First Congress and submitted to the state legislatures
for ratification had twelve—not ten—“articles.” (Indeed, the version initially approved by the House of
Representatives contained seventeen articles, twelve of which were approved by the Senate.) The third through
twelfth of these articles became the first through tenth amendments—that is, the Bill of Rights as we know it—when
they were ratified in 1791. The first article concerned congressional apportionment and was never ratified. The
second article was ratified two centuries later in 1992 as the Twenty-Seventh Amendment. The remaining articles
were renumbered respectively, resulting in the phenomenon that many early legal decisions refer not to the Sixth
Amendment but to the “eighth article” or “eighth amendment.”
         14
            Notably, at least some state statutes of the Founding era use similar language for similar provisions. See,
e.g., S.C. Pub. Laws Act of Aug. 20, 1731, No. 552, para. XLIII (“[A]ll and every person and persons that shall be
accused and indicted . . . shall have a true copy of the whole indictment . . . ; and in case any person or persons so
accused or indicted, shall desire council [sic], the court . . . shall and is hereby authorized . . . to assign to such
person and persons, such and so many council [sic], not exceeding 2, as the person or persons shall desire, to whom
such council [sic] shall have free access at all seasonable times.” (emphases added)).
 No. 15-6060                             Turner v. United States                                      Page 17


Jefferson’s administration.)15 One question that arose was whether Burr was entitled to the Sixth
Amendment right to compulsory service of process—a right bounded by the same modifiers as
the right to counsel, insofar as it applies only to an “accused” in a “criminal prosecution.” Burr
had moved for a subpoena duces tecum to obtain a copy of General James Wilkinson’s letter to
President Jefferson accusing Burr of treason and a copy of the President’s response. The
prosecutor argued in opposition that Burr’s right to such process did not accrue “until the grand
jury shall have found a true bill.” United States v. Burr, 25 F. Cas. 30, 32 (C.C. Va. 1807).

        Chief Justice Marshall ruled that Burr was entitled to the Sixth Amendment right to
compulsory service of process. Id. at 33 (“What can more effectually elude the right to a speedy
trial than the declaration that the accused shall be disabled from preparing for it until an
indictment shall be found against him?” (emphases added)).16 The Chief Justice undergirded his
reasoning by emphasizing that “accused” meant something entirely different than “indicted” in
the Crimes Act of 1790:

        The words of the law are, “and every such person or persons accused or indicted
        of the crimes aforesaid, (that is, of treason or any other capital offence,) shall be
        allowed and admitted in his said defence to make any proof that he or they can
        produce by lawful witness or witnesses, and shall have the like process of the
        court where he or they shall be tried, to compel his or their witnesses to appear at
        his or their trial as is usually granted to compel witnesses to appear on the
        prosecution against them.” This provision is made for persons accused or
        indicted. From the imperfection of human language, it frequently happens that
        sentences which ought to be the most explicit are of doubtful construction; and in
        this case the words “accused or indicted” may be construed to be synonymous, to
        describe a person in the same situation, or to apply to different stages of the
        prosecution. The word “or” may be taken in a conjunctive or a disjunctive sense.
        A reason for understanding them in the latter sense is furnished by the section
        itself. It commences with declaring that any person who shall be accused and
        indicted of treason shall have a copy of the indictment, and at least three days
        before his trial. This right is obviously to be enjoyed after an indictment, and

        15
          See generally Albert J. Beveridge, 3 The Life of John Marshall 274–469 (Houghton Mifflin Co. 1919);
Mary K. Bonsteel Tachau, Federal Courts in the Early Republic: Kentucky, 1789-1816, at 127–48 (Princeton Univ.
Press 1978).
        16
           For his part, President Jefferson complied with the subpoena duces tecum issued by Chief Justice
Marshall. See United States v. Burr, 25 F. Cas. 55, 65 (C.C. Va. 1807). And, despite its age, the Burr case
continues to receive favorable citation. See, e.g., United States v. Hubbell, 530 U.S. 27, 54 (2000) (Thomas, J.,
concurring); Clinton v. Jones, 520 U.S. 681, 703–04 (1997); Franklin v. Massachusetts, 505 U.S. 788, 826 (1992).
 No. 15-6060                              Turner v. United States                                         Page 18


        therefore the words are, “accused and indicted.” So with respect to the
        subsequent clause, which authorizes a party to make his defence, and directs the
        court, on his application, to assign him counsel. The words relate to any person
        accused and indicted. But, when the section proceeds to authorize the compulsory
        process for witnesses, the phraseology is changed. The words are, “and every
        such person or persons accused or indicted,” &c., thereby adapting the expression
        to the situation of an accused person both before and after indictment.

Ibid. (emphases added).

        Chief Justice Marshall thus understood Burr to be “accused” before he was “indicted.”
Though Marshall addressed those terms as used in the Crimes Act, the clear implication of
Burr’s reasoning for the Sixth Amendment was that Burr, though not yet indicted, was
nonetheless an “accused” in a “criminal prosecution” for purposes of the Sixth Amendment right
to compulsory process.17 And because the right to compulsory process is constrained by the
same terms as the right to counsel, it is reasonable to accord significant weight to Chief Justice
Marshall’s analysis in the Burr case as evidence of the Founding-era understanding of “accused”
and “criminal prosecution” as those terms constrain the right to counsel as well.

        Indeed, in the above-quoted passage from Burr, Chief Justice Marshall noted that under
the Crimes Act of 1790, the statutory right of a party to apply for the court “to assign him
counsel” under that Act did not accrue until the party was both “accused and indicted” (emphasis
added). In contrast, a person’s constitutional right under the Sixth Amendment to retain an
attorney through his own efforts and receive “assistance of counsel for his defence” could accrue
prior to indictment (i.e., when the person was only “accused”).

        Chief Justice Marshall’s holding in Burr also recognized that a “criminal prosecution”
could exist prior to an indictment. Although “[f]ederal criminal prosecutions were relatively rare


        17
            The Burr “court held that a defendant’s right of compulsory process attaches as soon as the defendant has
an interest in preparing his defense, and that in Burr’s case, this occurred upon his arrest.” Jean Montoya, A Theory
of Compulsory Process Clause Discovery Rights, 70 Ind. L. J. 845, 869 (Summer 1995); see also Phyllis Goldfarb,
When Judges Abandon Analogy: The Problem of Delay in Commencing Criminal Prosecutions, 31 Wm. & Mary L.
Rev. 607, 636 (Spring 1990) (“Chief Justice Marshall, the preeminent constitutional jurist of early America, rejected
the notion that sixth amendment trial rights take effect only after indictment. Although he was speaking specifically
of compulsory process rights, Marshall viewed the sixth amendment as protecting the preparation and presentation
of a defense, such that if events preceding indictment impaired this preparation or presentation, the sixth amendment
would be transgressed.”).
 No. 15-6060                               Turner v. United States                                        Page 19


in the early days of the Republic,”18 Marshall, Madison, and other Founding-generation
Virginians were aware of Virginia state criminal proceedings that began—prior to any
indictment—with an examination of evidence by one or more magistrates, or “gentlemen
justices,” who were often non-lawyers, to determine whether the suspect should be committed
for trial or released from custody.19 Virginia law provided that, if a single justice determined
that the offense “ought to be examined into by the county court,” a court with additional justices
would then be convened—again, prior to any indictment—to “consider whether, as the case may
appear to them, the prisoner may be discharged from farther [sic] prosecution, may be tried in
the county, or must be tried in the general court . . . .” An act for establishing a General Court,
October 2, 1777, chap. XVII, § LVII (reprinted in William Waller Hening, The Statutes at Large,
vol. IX (J. & G. Cochran 1821)) (emphasis added).20 From first-hand experience serving as
counsel to prisoners in such examining courts,21 Marshall could confirm that a suspect could in
fact be considered an “accused” in a “criminal prosecution,” within the common meaning of
those words, well before any indictment was returned.




         18
            Roger A. Fairfax, Jr., The Jurisdictional Heritage of the Grand Jury Clause, 91 Minn. L. Rev. 398, 413
(2006) (citing Erwin C. Surrency, History of the Federal Courts 281 (2002); Adam H. Kurland, First Principles of
American Federalism and the Nature of Federal Criminal Jurisprudence, 45 Emory L.J. 1, 57 (1996)).
         19
            See J.A.G. Davis, A Treatise on Criminal Law, with an Exposition of the Office and Authority of Justices
of the Peace in Virginia 110 (C. Sherman & Co. 1838) (“When an accused person has been arrested . . . and carried
before a justice of the peace, the latter must then examine into the nature and grounds of the accusation; and
discharge the prisoner, or else bail or commit him.”); id. at 416 (noting that “the examination of the prisoner by the
examining court, should precede his indictment; and . . . he cannot be tried upon an indictment found before such
examination”); A.G. Roeber, Faithful Magistrates and Republican Lawyers 122 (Univ. of N.C. Press 1981) (noting
that justices in many counties were known to be “not practicing lawyers”).
         20
            See also Bailey’s Case, 3 Va. 258, 261 (1798) (Tucker, J.) (noting that an examining court’s discharge of
a prisoner examined for a particular crime bars “further prosecution” through an indictment for that crime); Sorrell’s
Case, 3 Va. 253, 255 (1786) (Tazewell, J.) (referring to the examining court’s proceeding as a “criminal
prosecution”).
         21
           In the 1780s and 1790s, prior to joining the bench, Chief Justice Marshall served as counsel representing
unindicted individuals before examining courts. See, e.g., The Papers of John Marshall, vol. II, at 161–78 (Charles
T. Cullen & Herbert A. Johnson eds., Univ. of N.C. Press 1977).
 No. 15-6060                                Turner v. United States                                          Page 20


                                       3. Other Federal Court Decisions

         A few other federal court decisions shed additional light on the meaning of “accused” and
“criminal prosecution.” The United States Circuit Court for the Third Circuit,22 for example,
both recognized the right of a defendant to compulsory process before indictment and grappled
with whether a defendant’s failure to exercise that right before indictment was a failure of due
diligence sufficient to forfeit the right after indictment. United States v. Moore, 26 F. Cas. 1308,
1 Wall Cir. Ct. 23 (1801). The court ruled that it was not, but it stands out that no judge
appeared to question the notion that the Sixth Amendment right to compulsory process, though it
extends only to an “accused” in a “criminal prosecution,” extended to pre-indictment
defendants.23

         Likewise, in Ex parte Burford, Chief Justice Marshall, this time writing for the Supreme
Court, granted a writ of habeas corpus ordering the release of a prisoner who had been jailed
based only on a warrant stating that he was “not of good name and fame, nor of honest
conversation, but an evil doer,” and thus had an obligation to put up a $4000 surety against his
inevitable bad behavior. Ex parte Burford, 3 Cranch (7 U.S.) 448, 450–52 (1806). The Chief
Justice held that the Sixth Amendment right “to be informed of the nature and cause of the
accusation” applied to the prisoner even though he had been apprehended based only on a
warrant and not formally charged with any crime. Id. at 452. Again, Marshall interpreted the
Sixth Amendment to grant rights that attached pre-indictment.




         22
           This extinct court should not be confused with the existing United States Court of Appeals for the Third
Circuit. The Circuit Court for the Third Circuit existed only from 1801 to 1802, and it had three judges: Chief Judge
William Tilghman, Judge Richard Bassett, and Judge William Griffith.
         23
            A subsequent decision of the Georgia Supreme Court confronted the same questions. See Allen v. State,
10 Ga. 85, 90–91 (1851) (adopting the position that “so soon as a party is charged with a crime and bound to answer,
or committed for it, that it becomes then, a public prosecution, and that the indictment is but a continuation of it; and
that from that stage of it he is entitled to compulsory process for his witnesses”).
 No. 15-6060                              Turner v. United States                                         Page 21


                               C. Applying the Evidence to Turner’s Case

        To be sure, the sources cited above are not conclusive, and I do not purport to have
explored all relevant sources as to when the Sixth Amendment right to counsel attaches.24 But
the Founding-era sources I have considered may be useful for future development of right-to-
counsel jurisprudence even if they do not decide Turner’s case.                      Whatever the bounds of
“accused” and “criminal prosecution” may be, the Founding generation quite possibly would
have understood Turner to be an “accused.” And though the Framers had no understanding of
modern-day charge bargaining, it takes no stretch of logic to conclude that, in Turner’s case, the
prosecutor’s presentment of an offer to enter into an agreement that would functionally
terminate the judicial proceedings against him came during rather than prior to a “criminal
prosecution” as those words were originally understood.25

        Nor does the fact that charge bargaining was alien to the Framers preclude our
application of their understanding of the Sixth Amendment to the modern-day charge-bargaining
context. As in cases like Jones and Crawford, see Part I.A, supra, the Supreme Court routinely
applies Founding-era precepts to then-unknowable modern-day scenarios. And twenty-first-

        24
           Blackstone’s Commentaries on the Law of England is intentionally omitted because in England there was
no analogous right to counsel; in many criminal cases, especially before the Treason Act of 1695, the defendant was
prohibited outright from employing counsel, and even when counsel was permitted, he could argue only points of
law and not facts. See generally William Merritt Beaney, Right to Counsel in American Courts (Univ. of Mich.
Press 1955). To be sure, Blackstone is a useful source of insight into eighteenth-century English legal practice,
which greatly influenced the Framers’ understanding of the common law. And members of the Supreme Court have
on occasion looked to Blackstone in Sixth Amendment cases. See, e.g., Powell v. Alabama, 287 U.S. 45, 60–61
(1932); Rothgery, 554 U.S. at 219–21 (Thomas, J., dissenting). But, as Justice Thomas recently wrote, “the Sixth
Amendment was designed to abolish” rather than reify such English common-law practices as the denial of counsel
in felony prosecutions. Luis v. United States, 136 S. Ct. 1083, 1098 (2016) (Thomas, J., concurring). And the
American states resoundingly rejected the English system in their constitutions and statutes by recognizing a general
right to be heard by means of counsel and without a law-versus-facts distinction. See Beaney, supra, at 29.
Accordingly, I do not rely on Blackstone’s Commentaries as probative evidence of the Founding-era understanding
of “accused” and “criminal prosecution” as those words constrain the Sixth Amendment right to counsel.
        25
            It is beyond the ambit of this opinion to determine exactly what the bounds of these words are.
One might argue that the presentment of the plea offer itself made Turner an “accused” and served as an “initiation,”
United States v. Gouveia, 467 U.S. 180, 188 (1984) (citation omitted), of a “criminal prosecution.” Or one might
argue that the presentment of the offer was the sort of prosecutorial act that could have happened only after Turner
had become an “accused” in a “criminal prosecution,”—that is, only after “the government ha[d] committed itself to
prosecute [and] the adverse positions of government and defendant ha[d] solidified.” Kirby v. Illinois, 406 U.S. 682,
690 (1972). But I reach neither of those conclusions; instead, my conclusion is simply that the analysis of Turner’s
claim should begin with evidence of the original meaning of these words, and that the next time a court considers the
Sixth Amendment right to counsel anew, that court’s analysis should likewise begin with such evidence.
 No. 15-6060                         Turner v. United States                                 Page 22


century federal charge bargaining—a process for determining which crimes are to be formally
charged—is analogous, for example, to the examination process under eighteenth-century
Virginia law in which it was determined which crimes would or would not be allowed to proceed
to trial. Thus, it makes sense to look to sources like those cited above as a starting point in
analyzing Turner’s right-to-counsel claim, and, should the Supreme Court wish to reconsider its
right-to-counsel jurisprudence, these important and frequently overlooked sources may prove
relevant to that task as well.

                                                 III

        It is difficult to imagine that any jurist today would quibble much with Turner’s right to
retain counsel in Turner’s circumstances. Surely what has prompted this en banc review is not
Turner’s right to retain counsel but rather his right to free, effective counsel. But those rights are,
the Supreme Court has told us, one and the same. See, e.g., Martinez v. Ryan, 566 U.S. 1, 19–20
(2012); Frye, 566 U.S. at 138. So, even though Turner seeks to pursue an ineffective-assistance
claim, our task is the same as it would be if Turner had been without counsel altogether.

        The extant historical record includes significant evidence suggesting that the Framers and
their contemporaries would not deny Turner the right to retain counsel on the facts before us.
That evidence is important and should not be relegated to an afterthought. Thus, because we are
bound by Supreme Court decisions that do not fully engage with that evidence, I concur in
today’s opinion only after expressing my doubts about the precedents that bind us.
 No. 15-6060                        Turner v. United States                              Page 23


                      ___________________________________________

                           CONCURRENCE IN THE JUDGMENT
                      ___________________________________________

       CLAY, Circuit Judge, concurring in the judgment only.           Because Kirby v. Illinois,
406 U.S. 682 (1972) and United States v. Gouveia, 467 U.S. 180 (1984) remain governing law
for the issue before the Court, I agree with the en banc majority that the judgment of the district
court should be affirmed. I nevertheless write separately to express my reluctance in joining the
judgment of the en banc court. The rule that we affirm today creates pernicious consequences,
as persuasively articulated by the dissent. Nonetheless, I believe our hands as a Court are tied
and that Supreme Court precedent prevents me from joining the dissent. I also write to express
my disagreement with the en banc court’s contention that the dual sovereignty doctrine from the
double-jeopardy context applies to the Sixth Amendment right-to-counsel context.

       On appeal, Turner argues that the right to counsel attached during his pre-indictment
federal plea negotiations because: (i) at that time, he and the federal government were in a
sufficiently adversarial posture to trigger the Sixth Amendment’s protections; and, (ii) prior to
the negotiations, he had already been charged in state court for the same underlying offense, and
thus his right to counsel had already attached. I address each of these arguments in turn.

I.     The Right to Counsel during Pre-Indictment Plea Negotiations

       Turner argues that the right to counsel can attach during pre-indictment federal plea
negotiations because those negotiations are a critical stage of the criminal process during which a
defendant needs counsel in order to protect his rights against experienced professional
prosecutors.

       The Constitution’s Sixth Amendment provides that in “all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. The Supreme Court established the point at which the Sixth Amendment’s right to
counsel attaches in two seminal cases: Kirby and Gouveia.
 No. 15-6060                        Turner v. United States                               Page 24


       In Kirby, the Court confronted the question of whether the right to counsel attaches after
a defendant is arrested, but prior to the initiation of formal charges. Kirby, 406 U.S. at 686
(explaining that the Court granted certiorari to consider whether the right to counsel attaches to
“preindictment confrontations” with the police and prosecutors). A plurality of the Court held
“that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the
time that adversary judicial proceedings have been initiated against him.”             Id. at 688.
The plurality surveyed the Court’s precedents, and found that in every case where the right to
counsel had been recognized, the right had attached “by way of formal charge, preliminary
hearing, indictment, information, or arraignment.” Id. at 689.

       In Gouveia, a majority of the Court adopted the Kirby plurality’s reasoning in full and
clarified that the Sixth Amendment’s right to counsel attaches only upon the formal initiation of
adversarial judicial criminal proceedings. 467 U.S. at 187–89. The Court quoted the language
from Kirby, and said, “[t]he view that the right to counsel does not attach until the initiation of
adversary judicial proceedings has been confirmed by this Court in cases subsequent to Kirby.”
Id. at 188. The Court concluded, “given the plain language of the Amendment and its purpose of
protecting the unaided layman at critical confrontations with his adversary, our conclusion that
the right to counsel attaches at the initiation of adversary judicial criminal proceedings ‘is far
from a mere formalism.’” Id. at 189 (quoting Kirby, 406 U.S., at 689). In a concurring opinion,
Justice Stevens criticized the Court for adopting a rule that “foreclose[d] the possibility that the
right to counsel might under some circumstances attach prior to the formal initiation of judicial
proceedings.” 467 U.S. at 193 (Stevens, J., concurring).

       Following Kirby and Gouveia, this Court held in United States v. Moody, 206 F.3d 609
(6th Cir. 2000), and then again in Kennedy v. United States, 756 F.3d 492 (6th Cir. 2014), that
the Sixth Amendment right to counsel does not attach during pre-indictment plea negotiations.
Moody, 206 F.3d at 612; Kennedy, 756 F.3d at 494. In Moody, we held that Gouveia “forecloses
the possibility that the right to counsel might under some circumstances attach prior to the formal
initiation of judicial proceedings.” 206 F.3d at 613 (alteration omitted) (quoting Gouveia,
467 U.S. at 193 (Stevens, J., concurring)). Because “‘the right to counsel does not attach until
the initiation of adversary judicial proceedings’ such as ‘formal charge, preliminary hearing,
 No. 15-6060                        Turner v. United States                               Page 25


indictment, information, or arraignment,’” we reluctantly held that the Sixth Amendment right to
counsel did not attach when the government offered the defendant a pre-indictment plea deal. Id.
at 613, 615–16 (quoting Gouveia, 467 U.S. at 188). We said this “is a bright line test; it is a
mandate that ‘the Sixth Amendment right to counsel does not attach until after the initiation of
formal charges.’” Id. at 614 (quoting Moran v. Burbine, 475 U.S. 412, 431 (1986)).

       Writing for the panel in Moody, I expressed my concerns with the rule that we were
required to announce:

       In light of the Supreme Court’s stance on this issue, it is beyond our reach to
       modify this rule, even in this case where the facts so clearly demonstrate that the
       rights protected by the Sixth Amendment are endangered. Although [Defendant]
       was faced with an expert prosecutorial adversary, offering him a plea bargain
       which he needed legal expertise to evaluate and which would have constituted an
       agreement if accepted by him despite the lack of formal 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.”).
                                         .      .        .

       We do not favor this bright line approach because it requires that we disregard the
       cold reality that faces a suspect in pre-indictment plea negotiations. There is no
       question in our minds that at formal plea negotiations, where a specific sentence is
       offered to an offender for a specific offense, the adverse positions of the
       government and the suspect have solidified. Indeed, it seems a triumph of the
       letter over the spirit of the law to hold that [Defendant] had no right to counsel in
       his decision to accept or deny the offered plea bargain only because the
       government had not yet filed formal charges. We are faced with the ponderable
       realization that this is an occasion when justice must of necessity yield to the rule
       of law, and therefore we must REVERSE the district court’s order and reinstate
       the original sentence.

Id. at 614–16.

       District Judge Wiseman’s concurrence in Moody contained the same sentiment. He said,
“the rule of law . . . requires that we follow the trail blazed by the Supreme Court. . . . I would
urge the Supreme Court to reconsider its bright line test for attachment of the Sixth Amendment
 No. 15-6060                          Turner v. United States                           Page 26


right to counsel . . . .”   Id. at 616, 618 (Wiseman, J., concurring).    Judge Wiseman wrote
separately to “to emphasize the pressures that the Federal Sentencing Guidelines have brought to
bear on the criminal justice system and why such pressures make our rigid application of
Supreme Court precedent a reluctant application.” Id. at 616. He concluded:

        The Sixth Amendment right to counsel historically has evolved to meet the
        challenges presented by a changing legal paradigm. The criminal justice system
        has and is changing so that defendants now face critical stages of their
        prosecutions prior to indictment. The Sixth Amendment’s underlying purpose is
        to protect defendants in critical stages of their prosecution. Thus, the Sixth
        Amendment should guarantee the right to counsel during preindictment plea
        negotiations. Precedent, however, prevents me from endorsing this position
        which logic demands.

Id. at 618 (internal citation omitted).

        We reaffirmed Moody in Kennedy, noting that no subsequent Supreme Court case law
had overruled or limited Gouveia’s clear holding. Kennedy, 756 F.3d at 493–94.

        Turner argues that for decades, Courts across the country have been misinterpreting
Kirby. Instead, Turner reasons that when Kirby was listing the events that could trigger the right
to counsel—a formal charge, a preliminary hearing, an indictment, an information, or an
arraignment—it was merely listing representative examples, and not categorically holding that
the right to counsel never vests prior to the initiation of formal criminal proceedings. Rather,
Turner argues that because pre-indictment plea negotiations are a critical stage of the criminal
adversary process, as the Supreme Court recognized in Missouri v. Frye, 566 U.S. 134 (2012)
and Lafler v. Cooper, 566 U.S. 156 (2012), the right to counsel must necessarily attach during
such negotiations.

        Although Turner’s argument has a great deal of logical appeal, it is foreclosed by
Gouveia. Gouveia held in no uncertain terms “that the right to counsel does not attach until the
initiation of adversary judicial proceedings.” 467 U.S. at 188. The Gouveia Court’s holding is
crystal clear, drawing a definitive line, and leaving little room for parsing or interpretation.
Gouveia did not state or imply any exceptions to this rule and it has not been abridged, modified,
or overruled by any subsequent Supreme Court cases.
 No. 15-6060                        Turner v. United States                              Page 27


       While Frye and Lafler held that the right to counsel attaches during plea negotiations
because such negotiations represent a “critical” stage of criminal proceedings, both of those
cases involved negotiations that occurred after the defendant was formally charged. Frye,
566 U.S. at 138; Lafler, 566 U.S. at 162. The Court did not cite, much less overrule Gouveia,
because the question of whether the right to counsel had attached at all was not at issue. Indeed,
the Court has held that it is a “mistake” to merge “the attachment question (whether formal
judicial proceedings have begun) with the distinct ‘critical stage’ question (whether counsel must
be present at a postattachment proceeding unless the right to assistance is validly waived).”
Rothgery v. Gillespie Cty., 554 U.S. 191, 211 (2008). As the Kennedy panel correctly explained:

       To be sure, Frye and Lafler recognize that plea negotiations are central to the
       American system of criminal justice. And together the decisions make clear that
       the right to counsel applies in postindictment plea negotiations even if the
       negotiations have no effect on the fairness of a conviction. But in neither case did
       the Supreme Court consider the question of whether the right to counsel attached
       in preindictment plea negotiations.
       If anything, Frye and Lafler accept the rule that the right to counsel does not
       attach until the initiation of adversary judicial proceedings. Neither decision
       expressly abrogates or questions the rule. It would be highly unusual for the
       Supreme Court to discard or sharply limit a longstanding rule without comment,
       especially when the rule supposedly abrogated comes from the text of the Sixth
       Amendment. Additionally, the dissenting justices did not read the majority
       opinions as creating a new right to counsel in preindictment plea negotiations.
       And finally, recognizing that the Sixth Amendment guarantees a right to counsel
       at “all critical stages of [a] criminal proceeding [ ],” Frye explained that those
       critical stages include “arraignments, postindictment interrogations,
       postindictment lineups, and the entry of a guilty plea.” Frye, 132 S. Ct. at 1405
       (internal quotations omitted) (emphasis added). Had the Supreme Court erased
       the line between preindictment and postindictment proceedings for plea
       negotiations, it surely would have said so given its careful attention to the
       distinction for interrogations and lineups.

Kennedy, 756 F.3d at 493–94 (citations omitted).

       By all rights, the right to counsel should attach during pre-indictment plea negotiations
just as it does during post-indictment plea negotiations. But Gouveia is still good law that
squarely stands in the way of Turner’s argument. And Moody and Kennedy correctly stated and
 No. 15-6060                         Turner v. United States                              Page 28


applied that governing law. Consequently, we are required to reject Turner’s argument that the
Sixth Amendment right to counsel generally attaches during pre-indictment plea negotiations.

       Once again, I express the identical concerns that I did in Moody. There is still no
question in my mind that during pre-indictment plea negotiations where a specific sentence is
offered to a suspect for a specific offense, “the adverse positions of the government and the
suspect have solidified.” Moody, 206 F.3d at 615–16. This result remains “a triumph of the
letter over the spirit of the law,” but I recognize once more that “this is an occasion when justice
must of necessity yield to the rule of law.” Id. at 616.

II.    The Right to Counsel in Joint Federal-State Prosecutions

       Turner’s second argument is that even if the Sixth Amendment’s right to counsel does not
generally attach during pre-indictment plea negotiations, it attached in this case because Turner
had already been indicted in Tennessee state court for the same offense at issue in his
negotiations with the federal government at the time of those negotiations, and was being
prosecuted pursuant to a joint federal-state task force. In other words, Turner argues that where,
as here, a defendant is being jointly investigated and prosecuted by both state and federal
authorities for the same crimes, and is indicted by one jurisdiction, the right to counsel attaches
as to all charges stemming from the defendant’s conduct in all jurisdictions. Contrary to the
majority opinion, I agree with Turner that when a defendant is indicted first in state court, and is
later indicted for the same offense in federal court, the right to counsel attaches after the first
state court indictment and covers all interactions with prosecutors related to the later federal
indictment. In this case, however, Turner is not entitled to relief because he was not prosecuted
for the “same offense” in both state and federal court as that term is defined in federal law.
See Texas v. Cobb, 532 U.S. 162, 173 (2001).

       The Supreme Court has never addressed when the right to counsel attaches during joint
federal-state prosecutions. However, the Court’s opinion in Texas v. Cobb is highly relevant.
Cobb involved whether the Sixth Amendment right to counsel attaches as to uncharged crimes
when a defendant is already in custody for a different offense. There, the defendant was arrested
for crimes stemming from a home invasion. Cobb, 532 U.S. at 165. The defendant confessed to
 No. 15-6060                        Turner v. United States                               Page 29


burglarizing the home, but denied involvement in the disappearance of the home’s occupants.
The defendant was indicted for the burglary, and received state-appointed counsel. Id. Once in
custody, the defendant waived his Miranda rights, confessed to murdering the home’s occupants,
and was convicted of capital murder. Id. at 165–66. On appeal, the defendant argued that his
confession was obtained in violation of his Sixth Amendment right to counsel, which attached
when he was indicted for burglary. Id. at 166. By contrast, the state argued that, at the time of
the confession, the defendant’s right to counsel had attached only as to the burglary charges, and
not as to the murder charges, because the defendant had not yet been charged with murder. See
McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (holding that the Sixth Amendment’s right to
counsel is “offense specific,” and once invoked, does not automatically apply to all future
charges.)

       The Court held “that when the Sixth Amendment right to counsel attaches, it does
encompass offenses that, even if not formally charged, would be considered the same offense
under the” test articulated in Blockburger v. United States, 284 U.S. 299 (1932). Cobb, 532 U.S.
at 173. Under Blockburger, “where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does not.” Id.
(quoting Blockburger, 284 U.S. at 304).       In Cobb, the Supreme Court concluded that the
defendant’s Sixth Amendment rights had not attached when he confessed to the murders
because, at the time of the confession, he had only been indicted for burglary, and under Texas
law, burglary and murder are separate offenses. Id.

       Turner argues that his indictment for aggravated robbery in Tennessee encompassed the
same offenses as the federal Hobbs Act robbery charges under the Blockburger test, and
therefore, pursuant to Cobb, Turner’s right to counsel attached after the Tennessee charges were
filed. The government, by contrast, argues that Turner’s analysis is incomplete. The Supreme
Court explained in Cobb that there is “no constitutional difference between the meaning of the
term ‘offense’ in the contexts of double jeopardy and of the right to counsel.” Id. at 173.
The government points out that in the double jeopardy context, under the “dual sovereignty
doctrine,” the Supreme Court has repeatedly held that federal and state crimes never constitute
 No. 15-6060                        Turner v. United States                               Page 30


“the same offense,” no matter how identical the elements of the crimes are. See, e.g., Heath v.
Alabama, 474 U.S. 82, 88–89 (1985); Abbate v. United States, 359 U.S. 187, 194 (1959); United
States v. Lanza, 260 U.S. 377, 382 (1922). The government therefore argues that: (i) Cobb
implicitly imports the dual sovereignty doctrine in the Sixth Amendment’s right to counsel
analysis; and (ii) under the dual sovereignty doctrine, the state and federal robbery crimes
charged against Turner were not “the same offenses” as a matter of law.

       This Court’s sister circuits are divided as to whether Cobb imported the dual sovereignty
doctrine into the Sixth Amendment right to counsel analysis. The Second and Eighth Circuits
have held that when the federal and state governments concurrently prosecute a defendant for the
same offense conduct, the right to counsel attaches after the first indictment is filed, and applies
to both the federal and state prosecutions. See United States v. Mills, 412 F.3d 325, 330 (2d Cir.
2005); United States v. Red Bird, 287 F.3d 709, 715 (8th Cir. 2002); see also United States v.
Coker, 433 F.3d 39, 49 (1st Cir. 2005) (Cyr, J., dissenting in part). The First, Fourth, Fifth, and
Eleventh Circuits have held that the dual sovereignty doctrine applies in the Sixth Amendment
context, and that therefore when a defendant is jointly prosecuted by state and federal authorities,
the right to counsel does not attach in each prosecution until after separate formal charging
documents are filed. See United States v. Burgest, 519 F.3d 1307, 1311 (11th Cir. 2008); United
States v. Alvarado, 440 F.3d 191, 197 (4th Cir. 2006); Coker, 433 F.3d at 47; United States v.
Avants, 278 F.3d 510, 517–18 (5th Cir. 2002).

       Though in the minority, the Second and Eighth Circuits have the better end of the
argument. As the Second Circuit has persuasively explained in rejecting the same arguments
advanced by the government here:

       Nowhere 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 Blockburger. Cobb makes clear that Sixth Amendment
       violations are offense specific and, consequently, evidence obtained in violation
       of the Sixth Amendment is not admissible in subsequent prosecutions for the
       “same offense” as defined by Blockburger. The fact that Cobb appropriates the
       Blockburger test, applied initially in the double jeopardy context, does not
       demonstrate that Cobb incorporates the dual sovereignty doctrine: The test is used
       simply to define identity of offenses. Where, as here, the same conduct supports a
 No. 15-6060                        Turner v. United States                               Page 31


       federal or a state prosecution, a dual sovereignty exception would permit one
       sovereign to question a defendant whose right to counsel had attached, to do so in
       the absence of counsel and then to share the information with the other sovereign
       without fear of suppression. We easily conclude that Cobb was intended to
       prevent such a result.

Mills, 412 F.3d at 330 (footnote omitted). Equally persuasive is Judge Cyr’s dissent in Coker,
which comprehensively explains why importing the dual sovereignty doctrine into the Sixth
Amendment context makes little sense and would undermine the right to counsel:

       Prior to Cobb, there was no question but that the “separate sovereign” doctrine,
       pursuant to which federal and state prosecutions for the same offense were not
       deemed offensive to the Fifth Amendment double jeopardy clause, had no
       application outside the double jeopardy context. For instance, the separate
       sovereign doctrine neither applies to the Fourth Amendment protection from
       unreasonable searches and seizures, see Elkins v. United States, 364 U.S. 206, 208
       (1960) (“[A]rticles obtained as a result of an unreasonable search and seizure by
       state officers, without involvement of federal officers,” cannot “be introduced in
       evidence against a defendant over his timely objection in a federal criminal trial”),
       nor to the Fifth Amendment privilege against self-incrimination, see Murphy v.
       Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 55 (1964) (stating that the
       policy reasons underlying the self-incrimination prohibition are “defeated when a
       witness can be whipsawed into incriminating himself under both state and federal
       law even though the constitutional privilege against self-incrimination is
       applicable to each”). Elkins and Murphy wisely recognized that allowing the
       separate sovereign doctrine to operate in the context of these important
       constitutional protections would encourage collusion between the federal and
       state sovereigns, one sovereign obtaining evidence in violation of defendants’
       constitutional rights, then passing the evidence on a “silver platter” to the other
       sovereign, which would then be free to utilize the tainted evidence in its own
       prosecution with no risk of suppression. Elkins, 364 U.S. at 208. Obviously, no
       comparable policy concerns regarding evidence-gathering are presented in the
       double jeopardy context.
       Read properly, Cobb does not compel the anomaly which the majority now
       countenances, viz., permitting federal and state authorities to violate a defendant’s
       Sixth Amendment right to counsel where they are prohibited from undertaking
       similar collusive actions with respect to Fourth Amendment and Fifth
       Amendment rights. Indeed, the Sixth Amendment right to counsel has been long
       recognized as among the constitutional protections most critical to ensuring the
       conduct of fair criminal trials. See Massiah v. United States, 377 U.S. 201, 205
       (1964); Gideon v. Wainwright, 372 U.S. 335, 343–44 (1963); Johnson v. Zerbst,
       304 U.S. 458, 462–63 (1938). In Cobb, the federal government was not involved.
       Rather, the State indicted Cobb for burglary, later interrogated him, without the
       aid of counsel, concerning a murder committed during that burglary, and used his
 No. 15-6060                        Turner v. United States                              Page 32


       incriminating statements during that post-indictment interview to indict him for
       that murder. On appeal, the question was whether the burglary and murder were
       the same “offense.” Although some courts had devised a test which considered
       two crimes the same if they were factually related (e.g., committed on the same
       day), the Court imported the Blockburger test from the double jeopardy definition
       of “offense,” and held that two offenses are not the same for Sixth Amendment
       purposes if each requires proof of a fact that the other does not. Cobb, 532 U.S. at
       173. It was in this straitened context that the Court stated that “[w]e see no
       constitutional difference between the meaning of the term ‘offense’ in the
       contexts of double jeopardy and of the right to counsel.” Id.
       Here, there is no question but that Coker was questioned after his indictment
       regarding the “same offense,” and under Cobb and the Blockburger test, his Sixth
       Amendment right to counsel had attached. In order to find otherwise, one must
       assume that the Court held that, the particular facts of the case before it
       notwithstanding, it meant to decide that henceforth there would be no conceivable
       differences between the term “offense” in the double jeopardy and Sixth
       Amendment contexts. The Court in Cobb did not even consider the policy issues
       raised in Elkins and Murphy, for a simple reason: the case before it did not
       involve separate sovereigns.
                                         .        .       .

       Especially in light of Elkins and Murphy, and their focus upon the important
       policy of preventing collusive end-runs around constitutional safeguards, there
       remains considerable doubt whether the Court, if and when confronted with a
       separate sovereign case, would hold that the Sixth Amendment right to counsel
       should be treated less cordially than the Fourth and Fifth Amendment rights,
       absent some compelling reason for doing so. See United States v. Mills, 412 F.3d
       325, 329–30 (2d Cir. 2005) (holding that Cobb did not intend to import separate
       sovereign doctrine into Sixth Amendment context); cf. United States v. Red Bird,
       287 F.3d 709, 715 (8th Cir. 2002) (refusing to apply separate sovereign doctrine
       to Sixth Amendment right to counsel in joint federal-tribal crime investigation).

Coker, 433 F.3d at 49–51 (Cyr, J., dissenting in part).

       The four circuits that import the dual sovereignty doctrine into the Sixth Amendment
context all place heavy emphasis on Cobb’s statement that that there is “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. But that statement is ambiguous in context; the
Supreme Court was not confronted with the question of whether the dual sovereignty doctrine
applies in the Sixth Amendment context, and there is no other discussion in the opinion that
sheds light on the question before the en banc Court here. See Coker, 433 F.3d at 49–51 (Cyr, J.,
 No. 15-6060                        Turner v. United States                               Page 33


dissenting). And as the Second Circuit noted in Mills, applying the dual sovereignty doctrine
under the circumstances presented by this case would lead to illogical and perverse results. By
accepting the government’s position, the Court allows federal authorities to speak to defendants
who have been indicted in state court pursuant to a joint federal-state investigation without
counsel present, and then both relay all of the information they have obtained to state prosecuting
authorities and also use that information in a separate federal prosecution for the same offense
conduct. In effect, the Court is sanctioning an end-run around the Sixth Amendment’s right to
counsel by federal-state task forces. This result surely was not envisioned when the Sixth
Amendment was drafted, because until recently there was “little, if any, official coordination”
between state and federal law enforcement authorities. See Thomas White, Limitations Imposed
on the Dual Sovereignty Doctrine by the Federal and State Governments, 38 N. KY. L. REV. 173,
205 & n.223 (2011). The Court should not reach this dubious result absent an express and
unambiguous command by the Supreme Court.

        Accordingly, the en banc Court should have held that: (i) when a defendant is
concurrently prosecuted by state and federal authorities for the “same offense,” as that term is
defined by Blockburger, the Sixth Amendment right to counsel attaches for both prosecutions
whenever either state or federal authorities first file a formal judicial charging document; and
(ii) the dual sovereignty doctrine is completely inapplicable in the Sixth Amendment context.

        Under this analysis, the question would be whether Turner’s Tennessee aggravated
robbery charges and federal Hobbs Act charges were for the “same offense” under the
Blockburger test. Under Blockburger, “where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other does
not.”   Cobb, 532 U.S. at 173 (quoting Blockburger, 284 U.S. at 304).              “In subsequent
applications of the [Blockburger] test,” the Supreme Court has “concluded that two different
statutes define the ‘same offense[]’” when “one is a lesser included offense of the other.”
Rutledge v. United States, 517 U.S. 292, 297 (1996) (footnote omitted); see also Illinois v. Vitale,
447 U.S. 410, 417, 419–20 (1980) (holding that a defendant’s conviction of a lesser included
offense prohibits prosecution on a greater offense, and vice-versa, because the greater and lesser
 No. 15-6060                         Turner v. United States                               Page 34


offenses are the “same offense” for double jeopardy purposes); Brown v. Ohio, 432 U.S. 161,
167 (1977) (“As is invariably true of a greater and lesser included offense, the lesser offense . . .
requires no proof beyond that which is required for conviction of the greater . . . . The greater
offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser
offense included in it.”).

        Turner argues that: (i) the elements of his conviction for Hobbs Act robbery are identical
to the elements for simple robbery under Tennessee law; (ii) simple robbery is a lesser included
offense of aggravated robbery; (iii) his federal Hobbs Act robbery charges were accordingly a
lesser included offense of his Tennessee aggravated robbery charges; and therefore (iv) the
federal and state prosecutions charged the “same offense” under the Blockburger test. This is
tortured syllogism.

        Tennessee defines aggravated robbery as follows:

        (a) Aggravated robbery is robbery as defined in § 39-13-401:
               (1) Accomplished with a deadly weapon or by display of any article used or
                   fashioned to lead the victim to reasonable believe it to be a deadly weapon; or
               (2) Where the victim suffers serious bodily injury.

TENN. CODE ANN. § 39-13-402(a). Simple robbery is defined as “the intentional or knowing
theft of property from the person of another by violence or putting the person in fear.” Id. § 39-
13-401(a).

        18 U.S.C. § 1951 defines Hobbs Act robbery as:

        (a) Whoever in any way or degree obstructs, delays, or affects commerce or the
            movement of any article or commodity in commerce, by robbery . . . shall be fined
            under this title or imprisoned not more than twenty years, or both.
        (b) As used in this section—
                1. The term “robbery” means the unlawful taking or obtaining of personal
                   property from the person or in the presence of another, against his will, by
                   means of actual or threatened force, or violence, or fear of injury, immediate
                   or future, to his person or property, or property in his custody or possession,
                   or the person or property of a relative or member of his family or of anyone in
                   his company at the time of the taking or obtaining.
 No. 15-6060                           Turner v. United States                                   Page 35


        Because the federal and Tennessee definitions of simple robbery are substantially the
same, compare Tenn. Code Ann. § 39-13-401, with 18 U.S.C. § 1951(b)(1), the elements of
these statutes can be usefully summed up for present purposes as follows: Tennessee aggravated
robbery is (1) simple robbery plus (2a) the use of deadly weapon or (2b) that results in serious
bodily harm, while Hobbs Act robbery is (1) simple robbery that (2) obstructs interstate
commerce. As this formulation makes clear, each statute has an element that the other does not.
To wit, Tennessee aggravated robbery requires either the use of a weapon or resulting great
bodily harm, while Hobbs Act robbery requires neither of those things, and Hobbs Act robbery
requires that the robbery have affected interstate commerce,1 while Tennessee aggravated
robbery has no such element. Therefore, (i) the two crimes are not the “same offense” under the
Blockburger test, and (ii) under Cobb, Turner’s Sixth Amendment right to counsel was not
triggered with respect to federal authorities when he was indicted by Tennessee for aggravated
robbery.

        Turner’s arguments to the contrary essentially ignore the interstate commerce element of
Hobbs Act robbery. As recited earlier, Turner implicitly assumes that the government must only
prove the elements of simple robbery in order to make out a Hobbs Act charge, and that therefore
Hobbs Act robbery is essentially a lesser included offense of Tennessee aggravated robbery. But
the interstate commerce element is not merely window dressing; if the government fails to prove
it, the defendant is entitled to acquittal as a matter of law. See United States v. Wang, 222 F.3d
234, 240–41 (6th Cir. 2000) (reversing Hobbs Act robbery conviction where the government
failed to prove that the robbery had more than a de minimis effect on interstate commerce).

        Accordingly, Hobbs Act robbery is not merely a lesser version of Tennessee aggravated
robbery, but a separate offense with different substantive elements. Under Cobb, that conclusion
compels the related conclusion that Turner’s right to counsel was not triggered during his pre-
indictment federal plea negotiations.




        1
           Otherwise, the Hobbs Act would not be a valid exercise of Congress’s Commerce Clause powers under
Article I of the Constitution.
 No. 15-6060                            Turner v. United States                                    Page 36


III.    Summary

        Because the Supreme Court’s opinion in Gouveia expressly held that Sixth Amendment
rights do not attach until formal judicial adversarial proceedings are commenced and because the
Supreme Court has never overruled or revised Gouveia, I join that part of the judgment of the en
banc court. This Court could not hold that the right to counsel attaches during pre-indictment
plea negotiations without squarely violating the holding in Gouveia.

        However, I disagree with the en banc court that the dual sovereignty doctrine from the
double-jeopardy context applies to the Sixth Amendment right-to-counsel context. When pre-
indictment plea negotiations with the federal government occur after the defendant has been
indicted in state court for the same offense at issue in the federal negotiations, the right to
counsel protects the defendant in his interactions with the government. But in this case, Turner
had not been indicted for the “same offense” in state court as that term is used in federal law, and
therefore his right to counsel had not attached during his federal pre-indictment plea
negotiations.

        Although today we hold otherwise, the right to counsel should attach during pre-
indictment plea negotiations. The current rule leads to unduly harsh consequences for criminal
defendants.     It allows prosecutors to exploit uncounseled criminal defendants, and leaves
counseled defendants, just like Turner, without a claim for ineffective assistance of counsel when
their attorneys render deficient performance.2 The purpose of the Sixth Amendment right to
counsel is to protect the “unaided layman at critical confrontations with his adversary.” Gouveia,
467 U.S. at 189. During pre-indictment plea negotiations, a defendant is confronted by “an
expert [prosecutorial] adversary,” “in a situation where the results of the confrontation might
well settle [his] fate and reduce the trial itself to a mere formality.” Id. (citations and internal
quotation marks omitted).        During these negotiations, by offering a specific plea deal, the
government has “committed itself to prosecute,” solidifying “the adverse positions of



        2
         See Steven J. Mulroy, The Bright Line’s Dark Side: Pre-Charge Attachment of the Sixth Amendment Right
to Counsel, 92 WASH. L. REV. 213, 213 (2017).
 No. 15-6060                        Turner v. United States                              Page 37


government and defendant.” Id. It should not matter that in this context the defendant has yet to
be formally charged or indicted.

       The Supreme Court’s current bright line test as set out in Kirby and Gouveia runs afoul of
the purposes of the right to counsel. The rule is arbitrary and unjust. It does not account for the
realities of today’s criminal prosecutions and “their heavy reliance on plea bargaining”; and it
requires that defendants “navigate the complex web of federal sentencing guidelines,
computations that confound even those who work with them often.” Turner v. United States,
848 F.3d 767, 773 (6th Cir.), reh’g en banc granted, opinion vacated, 865 F.3d 338 (6th Cir.
2017). The purposes of the right to counsel as articulated by the Supreme Court support a more
flexible approach. I strongly urge the Supreme Court to reconsider this bright line test for
attachment of the Sixth Amendment right to counsel.
 No. 15-6060                        Turner v. United States                              Page 38


                      ___________________________________________

                           CONCURRENCE IN THE JUDGMENT
                      ___________________________________________

       HELENE N. WHITE, Circuit Judge, concurring. I concur in the judgment only. I also
concur in Part I of Judge Clay’s concurrence. I write separately to briefly address why I
conclude that Rothgery v. Gillespie Cty., 554 U.S. 191 (2008), the only case relied on by the
dissent that found a pre-indictment right to counsel, does not provide authority to depart from
Kirby v. Illinois’s bright-line rule, 406 U.S. 682, 689 (1972), and apply a circumstance-specific
approach to whether the right to counsel attached.

       In the forty-six years since Kirby, every Supreme Court decision analyzing when the
Sixth Amendment right to counsel attaches has adhered to the bright-line rule that a “formal
charge, preliminary hearing, indictment, information, or arraignment” triggers the attachment of
the right to counsel. Id. The dissent, however, argues that Kirby and progeny authorize, indeed
require, this court to engage in a “case-by-case,” “circumstance-specific inquiry,” “evaluating
both the relationship of the state to the accused and the potential consequences for the accused.”
(Dissent at 6.)

       The dissent relies heavily on Rothgery in concluding that the Supreme Court applies a
“circumstance-specific” analysis to determine whether the right to counsel has attached. (Id.)
But, although Rothgery identified the circumstance-specific facts relied on by the dissent—“if
the accused is ‘headed for trial and needs to get a lawyer working, whether to attempt to avoid
that trial or to be ready with a defense when the trial date arrives’” or “when ‘the machinery of
prosecution [is] turned on,’” (id. at 5 (quoting Rothgery, 554 U.S. at 208, 210))—Rothgery did so
in the context of applying Kirby’s bright-line rule to an initial arraignment, a proceeding already
recognized by Kirby as triggering the right to counsel. The question in Rothgery was whether
Rothgery’s initial appearance before a magistrate qualified as an “arraignment,” although it
preceded any prosecutorial involvement. The Supreme Court adhered to its decisions in Kirby,
Brewer v. Williams, 430 U.S. 387 (1977), and Michigan v. Jackson, 475 U.S. 625 (1986), all
holding that an initial arraignment triggers the right to counsel, and rejected the argument that
attachment of the right at the initial arraignment also requires that a prosecutor be aware of the
 No. 15-6060                        Turner v. United States                             Page 39


defendant’s appearance before a judicial officer. Thus, Rothgery simply reaffirmed Kirby’s
bright-line rule.

        Unconstrained by the Supreme Court’s consistent application of Kirby’s bright-line rule, I
would find the dissent, Judge Bush’s concurrence, and Judge Clay’s pertinent concluding
observations persuasive on the merits.
 No. 15-6060                         Turner v. United States                           Page 40


                                       _________________

                                            DISSENT
                                       _________________

       JANE B. STRANCH, Circuit Judge, dissenting. The majority opinion declares itself
bound by “four decades of circuit precedent holding that the Sixth Amendment right to counsel
does not extend to preindictment plea negotiations,” reciting as its basis for this rule language
from the 1972 Supreme Court case, Kirby v. Illinois, 406 U.S. 682, 689 (1972). This reasoning
misses the point of the case before us in several important ways. By elevating general language
to a static rule, it disregards the Supreme Court’s development across time of the law governing
Sixth Amendment claims, particularly the Court’s practical recognition of the changing criminal
justice system and its responsive jurisprudence extending the right to counsel to events before
trial. This reasoning also ignores the purpose of an en banc court—to determine whether
existing circuit caselaw has failed to correctly understand or apply legal principles or Supreme
Court precedent. Finally and as ably explicated by Judge Bush’s historical analysis, relying on a
rigid, mechanical approach closes the door to the apparent understanding of our Founders,
including the authors of the Sixth Amendment, that Turner would have been recognized as an
“accused.”

       Instead of presuming a rule-bound outcome, this case calls upon us to answer a question
that the Supreme Court has not yet had the occasion to address: Does the Sixth Amendment
right to counsel attach to preindictment plea negotiations when a prosecutor has presented a
formal plea deal for specific forthcoming charges? The Supreme Court’s Sixth Amendment
precedent supports holding that such a plea offer qualifies as an adversary judicial proceeding
and therefore triggers the accused’s right to counsel. The failure to grapple with this precedent
and engage in the requisite fact-intensive inquiry gives license to a system in which individuals
are confronted with criminal charges and coerced into signing away their liberty without access
to legal representation. Because I believe that the Sixth Amendment prohibits this kind of
prosecutorial end run around the right to counsel, I respectfully dissent.
 No. 15-6060                            Turner v. United States                                   Page 41


                                                    ***

        The Supreme Court has described the Sixth Amendment right to counsel as “embod[ying]
a realistic recognition of the obvious truth that the average defendant does not have the
professional legal skill to protect himself when brought before a tribunal with power to take his
life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
Johnson v. Zerbst, 304 U.S. 458, 462–63 (1938). Over the years, the Supreme Court has
incrementally extended right to counsel beyond trial itself to encompass certain pretrial
proceedings. In extending the right, the Court has instructed courts to “scrutinize any pretrial
confrontation of the accused to determine whether the presence of his counsel is necessary to
preserve the defendant’s basic right to a fair trial.” United States v. Wade, 388 U.S. 218, 227
(1967) (applying the right to counsel to post-indictment lineups); see also United States v. Ash,
413 U.S. 300, 313 (1973) (“This review of the history and expansion of the Sixth Amendment
counsel guarantee demonstrates that the test utilized by the Court has called for examination of
the event in order to determine whether the accused required aid in coping with legal problems or
assistance in meeting his adversary.”). The Supreme Court explained that “[t]his extension of
the right to counsel to events before trial has resulted from changing patterns of criminal
procedure and investigation that have tended to generate pretrial events that might appropriately
be considered to be parts of the trial itself.” Ash, 413 U.S. at 310.

        The Supreme Court has relied on the same type of scrutiny to determine both when the
right to counsel has been triggered and when a confrontation qualifies as a “critical stage.”1 It
first began to speak of this determination as “attachment” in Kirby v. Illinois, where it held that
the right to counsel “attaches only at or after the time that adversary judicial proceedings have
been initiated against” an accused. 406 U.S. 682, 688 (1972). As the majority stated, Kirby
noted that this may happen “by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” Id. at 689. But this list is only half of the story. The Kirby Court
also set out the elements that define a proceeding for attachment purposes:


        1
          The Supreme Court’s “critical stages” cases address not at what point the right to counsel is first
triggered—i.e. “attaches”—but whether the presence of counsel is necessary during a pretrial confrontation to
preserve the fairness of the trial itself. See Wade, 388 U.S. at 227.
 No. 15-6060                         Turner v. United States                                Page 42


       The initiation of judicial criminal proceedings is far from a mere formalism. It is
       the starting point of our whole system of adversary criminal justice. For it is only
       then that the government has committed itself to prosecute, and only then that the
       adverse positions of government and defendant have solidified. It is then that a
       defendant finds himself faced with the prosecutorial forces of organized society,
       and immersed in the intricacies of substantive and procedural criminal law. It is
       this point, therefore, that marks the commencement of the “criminal prosecutions”
       to which alone the explicit guarantees of the Sixth Amendment are applicable.

Id. at 689–90. Whether adversary judicial proceedings have been initiated—and thus whether
the right to counsel has attached—therefore depends on both the nature of the relationship
between the government and the accused and the implications of the confrontation.

       Kirby itself illustrates how the Supreme Court has put these principles into practice.
There, police officers arrested the petitioner and a companion after finding stolen traveler’s
checks in their possession. Id. at 684. The officers immediately summoned to the police station
the owner of the checks, who had reported a robbery the prior day, and he identified the
petitioner and his companion. Id. at 684–85. The petitioner asserted that the Sixth Amendment
afforded him the protection of counsel during the identification. The Kirby Court zeroed in on
the fact that the identification at issue took place during “a routine police investigation . . . that
took place long before the commencement of any prosecution whatever.” Id. at 690. The Court
also noted that other constitutional protections were in place at the investigatory stage and
discussed the “constitutional balance between the right of a suspect to be protected from
prejudicial procedures and the interest in society in the prompt and purposeful investigation of an
unsolved crime.” Id. at 691. Notably, the Supreme Court did not limit its analysis to the lack of
an indictment, but rather engaged in a practical evaluation of the facts and circumstances. Id. at
689–91.

       This practical evaluation is the thread that binds the Supreme Court’s attachment
jurisprudence.   For example, the Supreme Court has emphasized the moment “when the
government’s role shifts from investigation to accusation. For it is only then that the assistance
of one versed in the intricacies of law is needed to assure that the prosecution’s case encounters
the crucible of meaningful adversarial testing.” Moran v. Burbine, 475 U.S. 412, 430 (1986)
(alteration, citation, and internal quotation marks omitted) (quoting United States v. Cronic,
 No. 15-6060                       Turner v. United States                              Page 43


466 U.S. 648, 656 (1984)) (finding that the right had not attached during a pre-arraignment
interrogation, even though the defendants’ sister had already retained counsel on his behalf). In
United States v. Gouveia, 467 U.S. 180 (1984), the Supreme Court addressed the claims of
several inmates who were placed in the Administrative Detention Unit while prison officials
investigated their involvement in the murders of other inmates. Id. at 183–84. A federal
magistrate did not appoint counsel until many months later, after a federal grand jury returned
indictments. Id. at 183. At issue was “whether the Sixth Amendment requires the appointment
of counsel before indictment for indigent inmates confined in administrative detention while
being investigated for criminal activities.” Id. at 185. The Supreme Court began by clarifying
the type of pretrial proceedings that touch Sixth Amendment concerns—those including
confrontations with the “procedural system” or an “expert adversary,” situations which “might
well settle the accused’s fate.” Id. at 189 (quoting Ash, 413 U.S. at 310; Wade, 388 U.S. at 224).
The Court then examined the interests that the prisoners sought to protect and found that the
investigation alone did not raise “concerns implicating the right to counsel” and thus did not
trigger attachment of the right. Id. at 191. But again, it reached this conclusion only after
evaluating the circumstances, invoking Kirby’s caution against “mere formalism,” and focusing
on the “core purpose of the counsel guarantee.” Id. at 188–89.

       More recently, the Supreme Court considered whether the right to counsel had attached
during a preindictment probable cause hearing with a magistrate. Rothgery v. Gillespie Cty.,
554 U.S. 191 (2008). Under Texas law, such hearings did not involve prosecutors and therefore,
Gillespie County argued, the government had not yet committed to prosecute the case. Id. at
209–10. Finding the involvement of a prosecutor unnecessary for attachment purposes, the
Supreme Court explained that the right to counsel applies if, “without a change of position,” the
accused is “headed for trial and needs to get a lawyer working, whether to attempt to avoid that
trial or to be ready with a defense when the trial date arrives.” Id. at 210; see also id. at 208
(holding that the attachment question is driven by when “the machinery of prosecution [is]
turned on,” and not by whom). In addition, the Court held that “[t]he County . . . ma[de] an
analytical mistake in its assumption that attachment necessarily requires the occurrence or
imminence of a critical stage.” Id. at 212. Rothgery recognizes that it is not a critical stage
“[w]hen a prosecutor walks over to the trial court to file an information,” but implies that this
 No. 15-6060                             Turner v. United States                                       Page 44


may constitute attachment. Id. Rothgery also rejected the County’s attempt to characterize its
caselaw as creating a “general rule.” Id. at 211 (“[A]ccording to the County, our cases . . .
actually establish a ‘general rule that the right to counsel attaches at the point that . . . formal
charges are filed’ . . . . We think the County is wrong both about the clarity of our cases and the
substance that we find clear.”). The Supreme Court’s circumstance-specific inquiry in Rothgery
again reflects its commitment to a practical, case-by-case resolution of attachment questions.

        The majority opinion concludes that the “attachment rule is crystal clear” because the
right to counsel does not attach until the initiation of adversary judicial proceedings. But this
conclusion begs the question because it fails to engage with what the Court means by adversary
judicial proceedings. The Supreme Court has never applied a mechanical, indictment-based rule
in its attachment cases. It has instead repeatedly scrutinized the confrontation, evaluating both
the relationship of the state to the accused and the potential consequences for the accused. Based
on this longstanding and explicit practice, it falls on us to apply the paradigm first set forth in
Kirby and reiterated numerous times since: We must scrutinize Turner’s formal federal plea
offer to determine whether it marked the initiation of adversary judicial proceedings.

        I think it clear that a formal plea offer on specific forthcoming charges contains all of the
trappings of an adversary judicial proceeding. First and foremost, an individual who receives a
formal plea offer has become an accused.2 Prosecutors do not make plea offers to all suspects,
only those who face impending charges. It would be an ethical violation for a prosecutor to
make a formal plea offer if she did not intend to bring charges or if she lacked the factual or legal
basis to do so. Cf. Am. Bar Ass’n, Criminal Justice Standards for the Prosecution Function,
Standard 3-5.6(g) (4th ed. 2015); U.S. Dep’t of Justice, U.S. Attorneys’ Manual § 9-27.430
(2017). Thus, when a prosecutor extends a formal plea offer for specific charges, she has
cemented her position as a defendant’s adversary and she has committed herself to prosecute.
Even if a police investigation remains ongoing, by communicating a formal and specific plea
offer, the prosecutor signals that an individual has transitioned from a mere suspect to an


        2
           I find persuasive Judge Bush’s exploration of the historically broad meaning of the word “accused.” His
explanation of the contemporaneous understanding of the Framers and the American people supports attaching the
right to counsel in this case.
 No. 15-6060                           Turner v. United States                           Page 45


accused. Formal plea offers also undoubtedly expose individuals to the intricacies of substantive
and procedural law. This is precisely the sort of confrontation at which an inexperienced
defendant who lacks legal skill risks signing away his liberty to a savvy and learned prosecutor.

         Turner’s case well illustrates this point. When the federal prosecutor communicated the
plea offer to Turner’s attorney, Turner already faced state robbery charges.          The federal
prosecutor had already committed himself to prosecute Turner—he had plans to present the
federal charges to a grand jury if Turner did not accept the preindictment plea offer. Without
question, that prosecutor was acting as Turner’s adversary and exposing him to a minimum of
more than eighty years in prison, a de facto life sentence. Turner, meanwhile, was confronted
with the prosecutorial forces of organized society. To meaningfully evaluate the plea deal,
Turner had to understand the charges he faced, the punishments prescribed for those charges, the
defenses available to him, the strength of the case against him, and the risks of proceeding to
trial.   Evaluating the offer also required fluency in the complexities of the United States
Sentencing Guidelines, a task that is challenging even to experienced attorneys. In sum, when
scrutinizing the formal federal plea offer Turner received—as we must—I am persuaded that it
marked the initiation of “adversary judicial proceedings.” Turner’s Sixth Amendment right to
counsel had attached.

         My conclusion is buttressed by the Supreme Court’s analysis of post-indictment plea
negotiations in Missouri v. Frye, 566 U.S. 134 (2012) (plurality opinion) and Lafler v. Cooper,
566 U.S. 156 (2012) (plurality opinion). Frye and Lafler hold that because plea negotiations
might resolve an accused’s fate entirely, they are critical stages encompassed by the Sixth
Amendment’s right to counsel. These cases had no occasion to address preindictment pleas;
rather, they are critical-stage cases in which attachment was undisputed. But while criticality
and attachment are distinct concepts, see Rothgery, 554 U.S. at 211–12, there is overlap between
the factors used to analyze them, such as adversity. Thus, the logical underpinnings of Frye and
Lafler reinforce the conclusion that preindictment plea negotiations contain all of the hallmarks
of adversarial judicial proceedings.

         In Frye, an attorney failed to communicate a plea offer to an individual who had been
indicted on felony driving charges. 566 U.S. at 138–39. The individual later pleaded guilty
 No. 15-6060                         Turner v. United States                              Page 46


without the benefit of a plea deal and received a harsher sentence than he would have if he had
accepted the offer. Id. at 139. On a motion for post-conviction relief, he asserted a Sixth
Amendment violation, arguing that he would have accepted the first plea offer had it been
properly communicated to him.        Id.     The Court considered whether post-indictment plea
negotiations, which often take place absent formal court proceedings and without judicial
involvement, are a critical stage.         Id. at 140, 143–44.    Citing statistics regarding the
overwhelming percentage of criminal cases that are resolved through plea bargains, the Court
noted:

         The reality is that plea bargains have become so central to the administration of
         the criminal justice system that defense counsel have responsibilities in the plea
         bargain process, responsibilities that must be met to render the adequate
         assistance of counsel that the Sixth Amendment requires in the criminal process at
         critical stages.

Id. at 143. The Court seemed persuaded by the reality that plea negotiations have functionally
replaced trials, and thus are critical stages of a prosecution. Id. at 144. To deny counsel during
plea negotiations “might deny a defendant effective representation by counsel at the only stage
when legal aid and advice would help him.” Id. (citations and internal quotation marks omitted).
The Court explicitly held that, “as a general rule, defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and conditions that may be
favorable to the accused.” Id. at 145 (noting that the offer facing the accused was formal and had
a fixed expiration date).

         In Lafler, a companion case to Frye, the Court emphasized that plea negotiations are a
critical stage in a case in which an individual rejected two plea offers and was subsequently
convicted at trial by a jury. 566 U.S. at 161. In reiterating the holding of Frye, the Court
focused on the underlying purpose of the Sixth Amendment, which has guided the Court’s
incremental application of the right to counsel. Id. at 165. It applied the protections to those
pretrial stages of a criminal proceeding “in which defendants cannot be presumed to make
critical decisions without counsel’s advice.” Id. (clarifying that the right’s protections are “not
designed simply to protect the trial,” as evidenced by the fact that the right to counsel extends to
 No. 15-6060                               Turner v. United States                                         Page 47


criminal appeals).3 In its analysis, the Supreme Court also emphasized that plea negotiations
reflect deliberate state action. Id. at 168 (“When a State opts to act in a field where its action has
significant discretionary elements, it must nonetheless act in accord with the dictates of the
Constitution.” (alterations and citation omitted)).

         The reasoning relied on by the Supreme Court in Frye and Lafler logically applies to
preindictment plea offers, perhaps with even greater force. When plea negotiations take place
before an indictment, they may be an accused’s only adversarial confrontation. Denying an
accused the right to counsel during preindictment plea negotiations therefore all but ensures that
his window of exposure to the criminal justice system will open with the prosecutor and close in
the prison system.         Evaluating a formal plea offer, which reflects deliberate state action,
moreover, requires the guidance of legal counsel just as much before an indictment as after an
indictment. Accordingly, the logic animating Lafler and Frye’s conclusion that plea negotiations
are a critical stage supports a determination that the right to counsel attaches when the
prosecution makes a preindictment plea offer.

         I find today’s decision particularly concerning for two additional reasons. First, it will
leave unprotected whole hosts of defendants. As the Lafler Court emphasized, “[c]riminal
justice today is for the most part a system of pleas, not a system of trials.” Lafler, 566 U.S. at
170. Indeed, one of our own cases made this same observation nearly two decades ago:

         Yet, the Federal Sentencing Guidelines have substantially increased the
         importance of preindictment plea bargaining. In terms of percentages, the number
         of pleas continues to rise. Each year since 1990 the percentage of all convictions
         represented by pleas of guilty or nolo contendere has increased. In 1990, 40,452
         people pleaded guilty or nolo contendere; in 1998, 56,256 people so pleaded.
         These numbers represent 86.575% and 93.940% of all convictions during those
         respective years. The vast majority of these pleas are the products of plea
         agreements.

United States v. Moody, 206 F.3d 609, 616–17 (6th Cir. 2000) (Wiseman, J. concurring)
(citations omitted). Judge Wiseman, a district court judge sitting by designation, also explained

         3
          As the Lafler Court noted, the Sixth Amendment includes the right to counsel at not only critical pretrial
stages, but also on appeal and at sentencing in both capital and noncapital cases. 566 U.S. at 165 (citations omitted).
These applications of the right to counsel confirm that the Supreme Court has not rigidly applied the text of the
Sixth Amendment, but rather has evaluated the practical implications of the adversarial confrontation.
 No. 15-6060                            Turner v. United States                            Page 48


that the advent of the Guidelines has resulted in increased pressure on “prosecutors and
defendants to engage in plea bargaining ever earlier in the criminal process. As early as 1992
commentators noted that the Guidelines provide an incentive to engage in pre-indictment plea
bargaining.” Id. at 617 (citations omitted). This remains true: At oral argument the parties and
this court acknowledged the heavy reliance on preindictment plea bargaining, and the value of
having counsel involved in that process. Although we increasingly normalize and depend on
preindictment plea negotiations, today’s decision insulates those confrontations from the
constitutional protections on which our criminal justice system ordinarily relies. They are
likewise insulated from constitutional review. As Turner’s case teaches, even those who have
representation during preindictment plea negotiations are now foreclosed from bringing claims
of ineffective assistance of counsel.

       Second, the majority’s wooden adherence to its attachment-only-on-indictment rule raises
the specter of prosecutorial manipulation. (Turner himself was offered a plea deal that exploded
on indictment, betraying an effort to bypass entirely the traditional criminal process.) If the right
to counsel does not attach before indictment, prosecutors can simply delay indicting people to
extract unfavorable and uncounseled plea agreements. When 93.9% of all convictions in 1998
resulted from pleas, and that percentage apparently continues to increase, we are consigning the
vast majority of citizens exposed to the American justice system to navigate the confines of an
adversarial and critical plea bargaining process without legal representation.           The Sixth
Amendment does not countenance giving hostages to fortune in this way.

                                                  ***

       The Supreme Court has expressly instructed courts to place criminal confrontations under
the microscope and to apply a flexible, fact-specific analysis, but the majority opinion instead
turns a blind eye to the practical realities of the situation in which Turner and multitudes of other
citizens find themselves. Turner stood accused of a crime by an experienced federal prosecutor,
yet today’s decision condemns him and the ever-growing number of those similarly situated to
confront such accusations without the professional legal skills necessary to protect them from the
unwarranted loss of their liberty. Zerbst, 304 U.S. at 462–63. I believe that this result violates
the Sixth Amendment. I therefore respectfully dissent.
