United States v. Moody

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 10, 2000
• Docket: 98-6142
• Status: Published

Opinion

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

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

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

* This decision was originally issued as an “unpublished decision” filed on January 25, 2000.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

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

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

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

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

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

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

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

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

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

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

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