Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING GOVERNMENT’S AMENDMENT TO NOTICE OF INTENT TO USE EVIDENCE AND DEFENDANT’S MOTION TO SUPPRESS EVIDENCE BENNETT, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION.1031 A. Factual Background.1031 1. The first indictment and Johnson’s arrest.1031 2. The informant and his “deliberate elicitation” of incriminating statements .1032 3. The second indictment.1033 B. Framing Of The Suppression Issues.1034 1. The original notice of intent to use evidence.1034 2. The amended notice of intent to use evidence.1034 II. LEGAL ANALYSIS. 1035 A. Preliminary Issues. 1036 1. Nature of dispute and burden of proof 1036 2. “Ripeness” issues. 1037 a. Effect of consolidation of trials ... 1037 b. Effect of rulings on motions for a bill of particulars and to dismiss indictment . 00 CO © 1 — I B. Scope Of The Right To Counsel Under Moulton.1039 C. The “Texas v. Cobb” or “Blockburger” Issue ..1040 1. Texas v. Cobb.1040 a. The question and the holding. 1040 b. The starting point: McNeil v. Wisconsin. 1041 c. Brewer and Moulton. 1041 d. Rejection of dire predictions. 1042 e. Blockburger and the definition of “offense specific”.. 1042 f. Application of the test. 1042 2. The Blockburger test. 1043 a. The same or separate offenses?. 1043 b. “Lesser-included” offenses . 1045 c. “Predicate” offenses. 1046 3. Application of Texas v. Cobb and Blockburger. 1048- a. Johnson’s “discussion/interrogation” argument. 1048 b. Comparison of statutorg elements. 1050 i. Elements of charges in the ftrst indictment. 1050 ii. Elements of charges in the second indictment .. 1057 Hi. Are the offenses “the same” under Blockburger? 1060 c. Johnson’s reliance on factual relationships . 1060 d. Johnson’s reliance on Red Bird. 1062 e. “Predicate offense” analgsis. 1063 i. Is the § 371 conspiracy a predicate offense of the § 848 offenses?. 1063 ii. Are the § 1512 offenses predicate offenses of the § 848 offenses?. o D. Johnson’s Additional Grounds For Suppression. o III. CONCLUSION . .1068 This ruling involves the “second front” in a battle over whether the constitutional rights of a defendant accused of crimes carrying the federal death penalty were violated by a jailhouse informant’s acquisition of self-incriminating statements from the defendant. The “first front” opened with the government’s original notice of intent to use the informant’s evidence as to the seven charges in the original indictment against the defendant and her responsive motion to suppress that evidence on the basis of a “Massiah violation” of her Sixth Amendment right to counsel. This court suppressed use of the jailhouse informant’s evidence as to the crimes charged in the first indictment, see United States v. Johnson, 196 F.Supp.2d 795 (N.D.Iowa 2002) (Johnson I), ending the battle on the “first front,” at least in this court. However, while the “Massiah issue” as to the charges in the first indictment was being litigated, the government effectively opened a “second front” by obtaining a second indictment against the defendant, which charged her with ten more death-penalty-eligible offenses, then filing an amended notice of its intent to use the jailhouse informant’s evidence as to those “new” charges as well. In its ruling suppressing the informant’s evidence as to the charges in the first indictment, the court left open for further briefing the question of whether that evidence should also be suppressed as to the charges in the second indictment. Battle was joined in earnest on that issue in a series of supplemental briefs, with a final skirmish by way of oral arguments, and the time is now ripe for the court to attempt to resolve that question. I. INTRODUCTION A. Factual Background 1. The first indictment and Johnson’s arrest Defendant Angela Johnson is being held in the Linn County Jail pending trial on two separate indictments involving charges that grew out of a continuing investigation of the criminal conduct, including drug trafficking, of Johnson’s sometime boyfriend, Dustin Honken, and his associates. The first seven-count indictment against Johnson, in Case No. CR 00-3034-MWB, filed on July 26, 2000, charges her with five counts of aiding and abetting the murder of witnesses, one count of aiding and abetting the solicitation of the murder of witnesses, and one count of conspiracy to interfere with witnesses. A warrant issued for Johnson’s arrest on these charges on the same day that the indictment was filed. Johnson was arrested on this federal warrant by officers with the Iowa Department of Criminal Investigation (DCI) on July 30, 2000, the following Sunday. At the request of the Assistant United States Attorney who had obtained the indictment against her, the arresting officers placed Johnson in the Benton County Jail, in Vinton, Iowa, instead of the Linn County Jail, which is just blocks from the federal courthouse in Cedar Rapids, Iowa, where Johnson would ordinarily have been taken. On Monday, July 31, 2000, Johnson was arraigned before a federal magistrate judge in Cedar Rapids. At the time of her arraignment, while represented by court-appointed counsel, Johnson entered a plea of not guilty to all of the charges then made against her. At the arraignment on July 31, 2000, a detention hearing was set for August 2, 2000, and the Clerk of Court was directed to appoint other counsel to represent Johnson in further proceedings. Johnson was returned to the Benton County Jail where she remained incarcerated, except when she appeared in court, until October 3, 2000, when she was transferred to the Black Hawk County Jail in Waterloo, Iowa. 2. The informant and his “deliberate elicitation” of incriminating statements When Johnson was placed in the Benton County Jail, Robert McNeese, the jailhouse informant in these cases, was already incarcerated there. McNeese was a longtime, thoroughly seasoned informant, known to government officials, including the prosecutor in Johnson’s first case, to have a track record of obtaining incriminating evidence from associates and, more specifically, from fellow inmates, even where government officials were ignorant of the persons or incidents involved prior to McNeese’s revelations. Moreover, unlike the circumstances in the Linn County Jail, male and female inmates in the small Benton County Jail, with its single cell-block, were able to have direct contacts, including face-to-face conversations and note-passing, some of which were facilitated by jail staff. True to form, while Johnson was incarcerated in the Benton County Jail, McNeese, acting as a government agent, deliberately elicited incriminating statements from her in the course of extensive contacts beginning shortly after Johnson arrived at the jail. Although McNeese told government officials that he was having contact with Johnson and obtaining incriminating statements from her in early August, no effective measures were taken to stop such contacts at any time, nor was McNeese given “listening post” instructions, which explained what he could and could not do to obtain information from Johnson without violating her Sixth Amendment rights, until September 11, 2000. McNeese’s contacts with Johnson lasted until October 3, 2000, when McNeese ceased to be cooperative with investigators, at which time government officials pulled the plug by sending Johnson and McNeese to separate jails. The circumstances of Johnson’s placement in the Benton County Jail, McNeese’s “ré-sumé” of cooperation with prosecutors and law enforcement officers as an informant, and the extensive contacts between Johnson and McNeese are examined in considerably more detail in the court’s ruling on the “Massiah violation” as to charges in the first indictment. See Johnson I, 196 F.Supp.2d at 800-26. 3. The second indictment On August 30, 2001, based in part on evidence provided by McNeese or obtained as a result of information that he provided, a grand jury returned a second indictment against Angela Johnson, the indictment in Case No. CR 01-3046-MWB. The second indictment charges Johnson with five counts of killing witnesses while engaging in a drug-trafficking conspiracy, and five counts of killing witnesses in furtherance of a continuing criminal enterprise (CCE). The government acknowledges that the “conspiracy murder” charges in the first five counts of this second indictment are “lesser-included offenses” of the “CCE murder” charges in the second five counts. One of the critical issues in this case, as shall be explained in more detail below, is the relationship between the charges in the first indictment and the charges in the second indictment, where most of the charges in the two indictments allege Angela Johnson’s involvement in the murders of the same five people. B. Framing Of The Suppression Issues 1. The original notice of intent to use evidence On November 14, 2000, the government filed its original Notice of Intent to Use Evidence in Case No. CR 00-3034-MWB, which notified the court and the defendant of the government’s intent to introduce at trial evidence of incriminating statements Angela Johnson made to Robert McNeese, along with evidence derived from those statements, including the bodies of five alleged murder victims. The government requested an order finding that the evidence obtained from McNeese would be admissible at Angela Johnson’s trial on the charges pending in Case No. CR 00-3034-MWB, that is, the first seven-count indictment against Johnson. The essence of the government’s argument, submitted in a brief in support of the Notice, was that the information provided by McNeese had not been obtained in violation of Johnson’s Sixth Amendment right to counsel. Johnson filed an initial resistance to use of McNeese’s jailhouse informant evidence on November 27, 2001. She eventually filed a brief in response to the government’s Notice of Intent to Use Evidence on April 6, 2001, in which she asserted that McNeese’s acquisition of incriminating statements from her violated her Sixth Amendment right to counsel within the meaning of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and its progeny. Johnson, therefore, requested that the statements and evidence flowing from those statements be suppressed. At this point, the court and the parties agreed that the issue of the admissibility of McNeese’s evidence, at least as to the charges in the first indictment, had “morphed” into Johnson’s motion to suppress evidence based on a “Massiah violation.” On April 11, 12, and 13, 2001, the court held the first of two evidentiary hearings on the alleged “Massiah violation.” Further episodic submissions of the parties on the “Massiah issue” as to the first indictment continued through the next year, including submission of post-hearing briefs, a further hearing on additional evidence, and, finally, oral arguments on January 15, 2002. Disposition of the “Massiah issue” as to the first indictment culminated in a lengthy order, dated April 23, 2002, in which the court denied the government’s Notice of Intent to Use Evidence from the jailhouse informant in Case No. CR 00-3034-MWB, to the extent that it sought an order permitting use of such evidence as to charges in the first indictment, and granted Johnson’s responsive motion to suppress such evidence, to the extent explained in that ruling, on the basis of a “Massiah violation” of Johnson’s Sixth Amendment right to counsel. See Johnson I, 196 F.Supp.2d at 904. The court suppressed all of Johnson’s incriminating statements, including statements that the witnesses were dead and indicating Johnson’s involvement in the killings, as well as statements revealing the location of the murder victims’ bodies, the bodies themselves, and other evidence of the crimes charged in the first indictment derived from recovery of the bodies. See id. at 902-04 (explaining the grounds for suppression in more detail). 2. The amended notice of intent to use evidence That ruling did not completely dispose of the question of what use the government could make of McNeese’s evidence, however. On October 29, 2001, prior to the oral arguments on the “Massiah issue” as to the first indictment, the government filed an Amendment to Government’s Notice of Intent to Use Evidence. In that Amendment, the government advised the defendant and the court of the government’s intent to use the evidence obtained by McNeese against Johnson on the charges contained in the second indictment, which had been filed on August 30, 2001, under the authority of the Supreme Court’s decision in Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). In the litigation of the “Massiah issue” in Johnson’s case, this court found that the parties made at least passing arguments regarding the scope of preclusion of evidence as the result of a “Massiah violation” based on Texas v. Cobb. However, before considering whether evidence from McNeese should also be precluded as to charges in the second indictment, the one in Case No. CR 01-3046-MWB, in light of the court’s finding in Case No. CR 00-3034-MWB that there had been a “Massi-ah violation,” the court believed that further briefing of the issue was necessary. Therefore, at the conclusion of its ruling on the “Massiah issue” with regard to the first indictment, the court established a briefing schedule concerning whether evidence obtained from Johnson by McNeese should also be precluded in Case No. CR 01-3046-MWB. It is the government’s Amendment to its Notice of Intent to Use Evidence, regarding use of McNeese’s testimony at a trial on the charges in the second indictment, and the parties’ arguments thereon made in supplemental briefs filed at the court’s direction, that are now before the court. Some extensions of the original briefing schedule became necessary, but on May 22, 2002, Johnson filed her Supplemental Brief and Argument, seeking suppression of McNeese’s evidence as to the charges in the second indictment. The government filed its Supplemental Memorandum Regarding Admissibility of Evidence on June 14, 2002, in which the government incorporated by reference the arguments in its October 29, 2001, Amendment to Government’s Notice of Intent to Use Evidence, as well as responses to Johnson’s arguments for suppression of that evidence in her May 22, 2002, supplemental brief. On June 24, 2002, Johnson filed her Reply to Government’s Supplemental Memorandum Regarding Admissibility of Evidence. By order dated July 22, 2002, the court scheduled telephonic oral arguments for August 2, 2002, on the question of whether McNeese’s evidence should also be suppressed as to charges in the second indictment. The court heard those oral arguments as scheduled. Therefore, the question of whether or not the jailhouse informant’s evidence must be suppressed as to the charges in the second indictment, as it has been with respect to the charges in the first indictment, is now fully submitted. II. LEGAL ANALYSIS Johnson’s contentions in the present dispute regarding the violation of her constitutional rights as to the charges in the second indictment range well beyond a “Massiah violation” of her Sixth Amendment right to counsel and the related “Texas v. Cobb issue” presaged in briefing before the court suppressed McNeese’s evidence as to charges in the first indictment. Her contentions also include, among other issues, the following arguments: (1) that McNeese deliberately interfered with her attorney-client relationship by making derogatory remarks about the legal abilities of her principal counsel and attempting to supplant her attorney’s advice with his own; (2) that McNeese interrogated her in the absence of counsel, and without obtaining any waiver of her right to counsel, in violation of her rights as established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Bd.2d 694 (1966), Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); and (3) that government counsel violated disciplinary rule DR7-104, which concerns communication by counsel with a party known to be represented by other counsel regarding the subject of representation. The court will consider, to the extent necessary, Johnson’s various grounds for suppression of the evidence obtained by McNeese as to the charges in the second indictment. However, the court must first resolve some preliminary issues, which include the question of whether the court should even address, at this time, the issue of suppression of McNeese’s evidence as to the charges in the second indictment. A. Preliminary Issues 1. Nature of dispute and burden of proof The government fired the opening salvo on the question of whether the government can use evidence from McNeese, the jailhouse informant, against Johnson in attempting to prove the charges in the second indictment when it filed its October 29, 2001, Amendment to Government’s Notice of Intent to Use Evidence. Nevertheless, the court concludes that this issue, like the question of the use of the informant’s evidence as to the charges in the first indictment, has “morphed” into Johnson’s motion to suppress the evidence. This is so, in light of Johnson’s contentions in her Supplemental Suppression Brief and Argument, filed May 22, 2002, that McNeese’s evidence should also be suppressed as to the charges in the second indictment, owing to various violations of her constitutional rights and ethical standards by the government. As this court noted in Johnson I, “ ‘[generally, on a motion to suppress, the defendant has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of her constitutional rights.’ ” Johnson I, 196 F.Supp.2d at 841 (quoting United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir.2001), cert. denied, 534 U.S. 1113, 122 S.Ct. 919, 151 L.Ed.2d 884 (2002)). This court also noted that “‘[tjhere are situations, however, where the burden shifts to the government.’ ” Id. (again citing Guen-ero-Barajas, 240 F.3d at 432). In Johnson I, this court concluded that it need not decide the question of whether an alleged “Massiah violation” presents one of those situations in which the burden shifts to the government on a motion to suppress evidence, because Angela Johnson’s counsel expressly conceded that Johnson bears the burden of proving a “Massiah violation” by the preponderance of the evidence, and the government had not contested either that allocation or quantification of the burden of proof. Id. Thus, in Johnson I, the court proceeded on the assumption that, on a pre-trial motion to suppress evidence, Johnson bore the burden of proving her claim of a “Massiah violation” by the preponderance of the evidence. Although there was no such concession regarding the allocation and quantification of the burden of proof with regard to the present dispute, and even though the present dispute involves a different set of charges in a second indictment, and hence may involve substantially different issues, the court concludes that the present dispute is really a continuation of the dispute about whether McNeese’s evidence of Johnson’s self-incriminating statements must be suppi'essed. Therefore, the court finds that it is appropriate to allocate the burden of proof once again to the defendant. However, the court also notes that it has already engaged in all or nearly all of the necessary factfinding, concerning McNeese’s “agency” and the manner in which he obtained the self-incriminating statements from Johnson. Therefore, the issues presented with regard to suppression of the informant’s evidence as to charges in the second indictment are primarily legal, rather than factual. 2. “Ripeness” issues a. Effect of consolidation of trials At the oral arguments on August 2, 2002, Johnson reiterated an argument, first raised in response to the court’s order for further briefing, that the court need not reach the question of the admissibility of McNeese’s evidence as to the second indictment, because the two indictments had been consolidated for a single trial. When she first raised the argument, Johnson asserted that, because (1) the two cases have been consolidated and set for trial together, (2) the court’s suppression order of April 23, 2002, renders the suppressed evidence inadmissible in any trial of any offenses to which Johnson’s Sixth Amendment right to counsel had attached, and (3) the government has not moved to sever trial on the two indictments, “there would appear to be nothing further that the defendant could request from the court that has not already been granted.” Therefore, Johnson argued that the court should require the government to proceed first in the supplemental briefing, thereby giving the defendant something to respond to. At the oral arguments on August 2, 2002, Johnson again argued that there is no authority for using evidence tainted as to one set of charges solely as to other charges, where all of the charges have been consolidated for a single trial, and until and unless the government moves to sever the trials on the two indictments, there is really nothing to be decided regarding use of McNeese’s evidence as to the charges in the second indictment. The court finds these arguments unpersuasive for the same reasons that the court rejected them the first time around. As the court’s order of April 23, 2002, should have made clear, McNeese’s evidence has not been suppressed as to the charges in Case No. CR 01-3046-MWB, because the court declined to address that question without further briefing. Johnson appears to confuse the question of admissibility of the evidence at a consolidated trial on both indictments, where the evidence has been suppressed on constitutional grounds as to the charges in only one indictment — a question controlled primarily by Rule 403 of the Federal Rules of Evidence — with the question of whether the evidence must by suppressed in the later case as well as the earlier one — a question governed by Sixth Amendment "standards as embodied in Massiah and its progeny, including Texas v. Cobb, and other constitutional and ethical principles that "Johnson now asserts for the first time. Moreover, at the oral arguments, the government pointed out that the two cases have only been provisionally consolidated, for the purposes of efficient trial preparation, but that the consolidation was subject to later motions to sever by either party. The government also represented that it would move to sever, should it be necessary to permit use of McNeese’s evidence at the trial of the charges in the second indictment. Indeed, a determination on the constitutionality question may well determine whether it is necessary for the government to move to sever the trial on the charges in the two cases to preserve the admissibility of the evidence at trial of the charges in Case No. CR 01-3046-MWB, even if the court determines that the evidence need not be suppressed in that case on constitutional grounds; conversely, no motion to sever is required if the evidence is suppressed in both cases. In United States v. McAllister, 225 F.3d 982 (8th Cir.2000), the Eighth Circuit Court of Appeals set out the standards for determination of the “ripeness” of a constitutional question, as follows: As we have previously explained, [i]n order to establish that a claim is ripe for judicial review, a plaintiff must meet two requirements. First, it must demonstrate a sufficiently concrete case or controversy within the meaning of Article III of the Constitution. Bob’s Home Service, Inc. v. Warren County, 755 F.2d 625, 627 (8th Cir.1985). Second, prudential considerations must justify the present exercise of judicial power. Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269, 1272-73 (8th Cir. 1994). “The basic inquiry is whether the ‘conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.’ ” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), quoting Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945); see Vorbeck v. Schnicker, 660 F.2d 1260, 1266 (8th Cir.1981) (noting that only “a definite and concrete controversy” satisfies the requirements of Article III). McAllister, 225 F.3d at 989. The court concludes that there is a “live” controversy here concerning whether Johnson’s constitutional rights were violated by McNeese’s acquisition of evidence regarding the offenses later charged in the second indictment. Because any violation has already occurred, what is presented is a concrete case or controversy, in which the parties plainly have conflicting contentions and adverse legal interests, and the purported violations still threaten dire consequences to Johnson, making the controversy considerably more than “hypothetical” or “abstract,” so that the present exercise of judicial power to determine the constitutional issues is justified. Id. The court can — indeed, it must — address the question of whether McNeese’s evidence can be used as to the charges in the second indictment without violating constitutional principles before the charges in the second indictment can be brought to trial. b. Effect of rulings on motions for a bill of particulars and to dismiss indictment By order dated June 21, .2002, this court granted Johnson’s motion for a bill of particulars with regard to all ten counts of the second indictment, on appeal of a magistrate judge’s Report and Recommendation recommending a bill of particulars only as to the first five counts. See United States v. Johnson, 225 F.Supp.2d 982 (N.D.Iowa 2002) (Johnson II). Subsequently, by order dated June 24, 2002, this court dismissed Counts 6 through 10 of the second indictment, on the ground that those counts failed to meet applicable requirements for pleading “CCE murder.” See United States v. Johnson, 225 F.Supp.2d 1009 (N.D.Iowa 2002) (Johnson III). However, the dismissal of Counts 6 through 10 of the second indictment was expressly stated to be “without prejudice to a superseding indictment satisfying the requirements stated herein for pleading such charges.” Johnson III, 225 F.Supp.2d at 1022 (emphasis in the original). Furthermore, the charges in Counts 1 through 5 of the second indictment are purportedly “lesser-included offenses” of the charges in Counts 6 through 10 of the second indictment. Consequently, if Counts 1 through 5 charge only the “same offenses” as are charged in the first indictment, the same would necessarily be true of Counts 6 through 10. Therefore, the court concludes that whether or not McNeese’s evidence must be suppressed as to any or all of the charges in the second indictment still presents a “live” controversy. With these matters resolved, the court turns to the question of whether the evidence in question was obtained in violation of Johnson’s constitutional rights with respect to the charges in the second indictment. B. Scope Of The Right To Counsel Under Moulton As this court explained in Johnson I, analysis of the question of the government’s ability to use McNeese’s jailhouse informant evidence against Johnson at trial of the charges in the second indictment at least begins with the Supreme Court’s decision in Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985): [I]n its discussion of attachment of the defendant’s Sixth Amendment right [above], the court pointed out that Sixth Amendment rights are “offense-specific,” and that Johnson’s Sixth Amendment rights had attached only to the offenses charged in the first indictment at the time McNeese deliberately elicited incriminating statements from her. The specific holding on this point in Moulton, this court noted, was as follows: “[Ijncriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel,” but “incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.” [Moulton, 474 U.S.] at 180 n. 16, 106 S.Ct. 477 (emphasis added). Johnson I, 196 F.Supp.2d at 895-96; see also id. at 843-46 (also discussing this portion of the Moulton decision). At least in the first instance, this court noted that Moulton had the following impact on the attachment of Johnson’s Sixth Amendment right to counsel: At the time that McNeese obtained purportedly incriminating statements from Johnson, she had been charged with the following offenses in the indictment filed July 26, 2000: Five counts of killing witnesses in violation of 18 U.S.C. §§ 1512(a)(1)(A) and/or (C), 1512(a)(2)(A), 1111, and 2; one count of soliciting a violent felony (the murder of witnesses to prevent them from testifying in federal proceedings), in violation of 18 U.S.C. §§ 373(a)(1) and 2; and one count of conspiring to commit the substantive offenses charged, in violation of 18 U.S.C. § 371. It is these offenses as to which Johnson’s Sixth Amendment right to counsel had attached at the time she had any contact with Robert McNeese, as required for proof of the first prong of her alleged “Massiah violation.” On the other hand, at the time she had contact with Robert McNeese, Johnson’s Sixth Amendment right to counsel had not attached as to the ten counts of the indictment filed almost a year later in Case No. CR 01-3046-MWB on August 30, 2001.[T]he second indictment charges five counts of killing witnesses while engaging in a drug-trafficking conspiracy, and five counts of killing witnesses in furtherance of a continuing criminal enterprise. Johnson I, 196 F.Supp.2d at 846 (footnote and internal cross-references omitted). Indeed, were Moulton the last word on the matter, applying what appears to be its simple “charged-uncharged” or “pending charges-other crimes” dichotomy for attachment of the Sixth Amendment right to counsel, it appears that the government would be able to use McNeese’s evidence against Johnson on the charges in the second indictment, because those charges were not pending at the time that McNeese deliberately elicited incriminating statements from Johnson in violation of her Sixth Amendment right to counsel. However, Moulton actually framed the issue in terms of using “[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached.” Moulton, 474 U.S. at 180 n. 16, 106 S.Ct. 477 (emphasis added). Moulton was not the last word on what offenses constitute “other crimes ... as to which the Sixth Amendment right to counsel has attached,” as the parties have recognized in their various arguments. Rather, the primary contentions of both parties concerning use of McNeese’s evidence as to charges in the second indictment center on the impact of the Supreme Court’s more recent decision in Texas v. Cobb, 582 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001), which takes up the issue identified, but not specifically addressed, in Moulton: To what crimes other than those identified in pending charges has a defendant’s Sixth Amendment right to counsel already attached? Therefore, like the parties, the court will continue its analysis with consideration of the Supreme Court’s decision in Texas v. Cobb. C. The “Texas v. Cobb” or “Blockburger” Issue 1. Texas v. Cobb a. The question and the holding In Texas v. Cobb, the Supreme Court “granted certiorari to consider ... whether the Sixth Amendment right to counsel extends to crimes that are ‘factually related’ to those that have actually been charged,” a question the Court answered “in the negative.” Texas v. Cobb, 532 U.S. at 167, 121 S.Ct. 1335. Rather, the Court held “that our decision in McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), meant what it said, and that the Sixth Amendment right is ‘offense specific.’” Texas v. Cobb, 532 U.S. at 164, 121 S.Ct. 1335. However, the Court also concluded that the Sixth Amendment right to counsel does extend to offenses that, even if not formally charged, would be considered the “same offense” under the “Blockburger test” established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See, e.g., Texas v. Cobb, 532 U.S. at 173,121 S.Ct. 1335. Thus, in this sense, Texas v. Cobb takes up where the Supreme Court’s decision in Moulton left off on the question of what charges fall within the scope of a defendant’s Sixth Amendment right to counsel: While Moulton considered attachment of the Sixth Amendment right to counsel primarily in terms of whether the offenses had been charged or not, leaving open the question of what other charges might fall within the scope of the right to counsel, the Court’s decision in Texas v. Cobb considered that open question directly, recognizing that the Sixth Amendment right to counsel has also attached to a subsequently charged offense, if that subsequently charged offense is really the “same offense” as a previously charged offense to which the right to counsel has already attached. b. The starting point: McNeil v. Wisconsin In arriving at its answer to the question presented in Texas v. Cobb, the Court began by reiterating its holding in McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), that the Sixth Amendment right to counsel is “offense specific,” such that “a defendant’s statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses.” See Texas v. Cobb, 532 U.S. at 167-68, 121 S.Ct. 1335 (citing McNeil, 501 U.S. at 175-76, 111 S.Ct. 2204). The Court in Texas v. Cobb observed that “[sjome state courts and Federal Courts of Appeals ... have read into McNeil’s offense-specific definition an exception for crimes that are ‘factually related’ to a charged offense.” Id. at 168, 121 5.Ct. 1335. As framed by the Texas Court of Appeals in the decision below, the “factually related” test extended the Sixth Amendment right to counsel to include, besides charged offenses, “any other offense that is very closely related factually to the offense charged,” or “factually interwoven with” the charged offense. See id. at 167, 121 S.Ct. 1335. However, in Texas v. Cobb, the Supreme Court specifically declined to adopt such a rule. Id. at 168, 121 S.Ct. 1335. Thus, while Texas v. Cobb confirmed that the right to counsel attaches to “other crimes” beyond those already charged — a possibility recognized in Moulton — -it rejected a broader test applied by some lower courts for determining what those “other crimes” might be. c. Brewer and Moulton In Texas v. Cobb, the Court explained that the reliance that courts espousing the “factually related” rule had placed on two of the Court’s pre-McNeil decisions— Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and Moul-ton — was misplaced. More specifically, the Court rejected the respondent’s suggestion “that Brewer implicitly held that the right to counsel attached to the factually related murder when the suspect was arraigned on the abduction charge.” Texas v. Cobb, 532 U.S. at 169, 121 S.Ct. 1335. Rather, the Court explained in Texas v. Cobb that “[t]he Court’s opinion [in Brewer],.. simply did not address the significance of the fact that the suspect had been arraigned only on the abduction charge, nor did the parties in any way argue this question.” Id. The Court also concluded that Moulton was “unhelpful,” notwithstanding the respondent’s contention in Texas v. Cobb that, “in affirming reversal of both the theft and burglary charges, the Moulton Court must have concluded that Moulton’s Sixth Amendment right to counsel attached to the burglary charge.” Texas v. Cobb, 532 U.S. at 169-70, 121 S.Ct. 1335. The Court in Texas v. Cobb explained that “the Moulton Court did not address the question now before us, and to the extent Moulton spoke to the matter at all, it expressly referred to the offense-specific nature of the Sixth Amendment right to counsel.” Id. at 170-71, 106 S.Ct. 477 (quoting Moulton, 474 U.S. at 179-80, 106 S.Ct. 477, and also citing id. at 168, 177,106 S.Ct. 477). d. Rejection of dire predictions The Court in Texas v. Cobb was equally unmoved by the respondent’s prediction “that the offense-specific rule will prove ‘disastrous’ to suspects’ constitutional rights and will ‘permit law enforcement officers almost complete and total license to conduct unwanted and uncounselled interrogations.’ ” Id. at 171, 121 S.Ct. 1335 (quoting respondent’s brief). The Court concluded that the respondent “fails to appreciate the significance of two critical considerations,” which are (1) that “there can be no doubt that a suspect must be apprised of his rights against compulsory self-incrimination and to consult with an attorney before authorities may conduct, custodial interrogations,” id. at 171, 121 S.Ct. 1335 (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)); and (2) that “it is critical to recognize that the Constitution does not negate society’s interest in the ability of police to talk to witnesses and suspects, even those who have been charged with other offenses.” Id. at 171-72, 121 S.Ct. 1335. It is worth mentioning that, in the present case, Johnson also alleges a violation of Miranda and related principles, so that she contends that the alternative protection identified by the Court in Texas v. Cobb was not available to her. However, for now, the court will not pursue that tangent, but will instead continue to focus on the “Texas v. Cobb issue.” e. Blockburger and the definition of “offense specific” Having rejected one test, the Court in Texas v. Cobb next turned to identification of the proper test of “offense specific” attachment of the Sixth Amendment right to counsel: Although it is clear that the Sixth Amendment right to counsel attaches only to charged offenses, we have recognized in other contexts that the definition of an “offense” is not necessarily limited to the four corners of a charging instrument. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), we explained 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.” Id., at 304, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. We have since applied the Blockburger test to delineate the scope of the Fifth Amendment’s Double Jeopardy Clause, which prevents multiple or successive prosecutions for the “same offence.” See, e.g., Brown v. Ohio, 432 U.S. 161,164-166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). We see no constitutional difference between the meaning of the term “offense” in the contexts of double jeopardy and of the right to counsel. Accordingly, we hold 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 Blockburger test. Texas v. Cobb, 532 U.S. at 172-73, 121 S.Ct. 1335 (emphasis added). Next, the 5-4 majority in Texas v. Cobb rejected the arguments of the dissenters: While simultaneously conceding that its own test “lacks the precision for which police officers may hope,” post, at 1350, the dissent suggests that adopting Blockburger’s definition of “offense” will prove difficult to administer. But it is the dissent’s vague iterations of the “ ‘closely related to’ ” or “ ‘inextricably intertwined with’ ” test, post, at 1350, that would defy simple application. The dissent seems to presuppose that officers will possess complete knowledge of the circumstances surrounding an incident, such that the officers will be able to tailor their investigation to avoid addressing factually related offenses. Such an assumption, however, ignores the reality that police often are not yet aware of the exact sequence and scope of events they are investigating — indeed, that is why police must investigate in the first place. Deterred by the possibility of violating the Sixth Amendment, police likely would refrain from questioning certain defendants altogether. Id. at 173-74,121 S.Ct. 1335. f. Application of the test Finally, the Court applied Blockburger to the question of whether the burglary offense with which the defendant in Texas v. Cobb was originally charged was the “same offense” as the murders with which he was subsequently charged and to which he confessed, prior to indictment, during interrogation in the absence of counsel: At the time he confessed to Odessa police, respondent had been indicted for burglary of the Owings residence, but he had not been charged in the murders of Margaret and Kori Rae. As defined by Texas law, burglary and capital murder are not the same offense under Block-burger. Compare Texas Penal Code Ann. § 30.02(a) (1994) (requiring entry into or continued concealment in a habitation or building) with § 19.03(a)(7)(A) (requiring murder of more than one person during a single criminal transaction). Accordingly, the Sixth Amendment right to counsel did not bar police from interrogating respondent regarding the murders, and respondent’s confession was therefore admissible. Texas v. Cobb, 532 U.S. at 174, 121 S.Ct. 1335. Because the application of the Blockburger test in Texas v. Cobb is so strikingly brief, but its impact can be so significant, this court finds that it is appropriate to consider the Blockburger test in more detail. 2. The Blockburger test a. The same or separate offenses? As noted in Texas v. Cobb, 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 one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (deriving this test from Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911), and holding that the defendant committed two offenses, even though there was only one sale of narcotics, because the two sections of the statute that were violated defined separate offenses under this test); see also Texas v. Cobb, 532 U.S. at 173, 121 S.Ct. 1335 (quoting this language from Block-burger). Thus, “[i]f each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied [and the offenses are not the ‘same offense’], notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). Moreover, “[t]his holds true despite the fact that [the offenses] arose out of the same course of conduct.” United States v. Gardner, 65 F.3d 82, 85 (8th Cir.1995), cert. denied, 516 U.S. 1064, 116 S.Ct. 748,133 L.Ed.2d 696 (1996). Just as the Court in Texas v. Cobb held that the Blockburger test was applicable to determination of the scope of the Sixth Amendment right to counsel, thereby rejecting the “factually related” test, the Court had previously held that the Block-burger test was applicable to the determination of the scope of the double jeopardy clause, also thereby rejecting a different test. As the Eighth Circuit Court of Appeals explained in United States v. Turner, 130 F.3d 815, (8th Cir.1997), cert, denied, 524 U.S. 909, 118 S.Ct. 2071, 141 L.Ed.2d 147 (1998), in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), “the Supreme Court declared that the double jeopardy clause bars a subsequent prosecution if, ‘to establish an essential element of [the] offense charged in [the second] prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.’ ” Turner, 130 F.3d at 818 (quoting Grady, 495 U.S. at 510, 110 S.Ct. 2084). However, the Turner court explained, in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), the Supreme Court “squarely overruled the principle announced in Grady.” Turner, 130 F.3d at 818. Instead, “[i]n an extended discussion [in Dixon], the Supreme Court established that the ‘only ... test,’ Dixon, 509 U.S. at 708, 113 S.Ct. at 2862 (emphasis in original), for double jeopardy purposes when the offenses are alleged to be the ‘same’ — and no issue of lesser included charges is involved, id. at 705-07, 707 n. 11, 113 S.Ct. at 2860-61 n. 11 — is the ‘same-elements test [from Blockburger ], ... [which] inquires whether each offense contains an element not contained in the other,’ id. at 696,113 S.Ct. at 2855.” Turner, 130 F.3d at 818 (citing Blockburger, 284 U.S. at 304, 52 S.Ct. 180, and Gavieres, 220 U.S. at 344-45, 31 S.Ct. 421); accord McIntyre v. Caspañ, 35 F.3d 338, 340 (8th Cir.1994) (also recognizing that Dixon overruled the Grady test as “unworkable,” making clear that the proper test is the Blockburger “same elements” test), cert, denied, 514 U.S. 1077, 115 S.Ct. 1724, 131 L.Ed.2d 582 (1995). It follows that the “same-conduct test” of Grady, see McIntyre, 35 F.3d at 340 (so describing the defunct test from Grady), is also inapplicable to determination of the scope of the Sixth Amendment right to counsel, in light of the Supreme Court’s selection of Blockburger as the appropriate test in that context, as well, in Texas v. Cobb, particularly when the Court observed that it could “see no constitutional difference between the meaning of the term ‘offense’ in the contexts of double jeopardy and of the right to counsel.” Texas v. Cobb, 532 U.S. at 173,121 S.Ct. 1335. Similarly, the conclusion of the Eighth Circuit Court of Appeals that there never has been a “same evidence test” for double jeopardy purposes seems equally forceful in the context of the Sixth Amendment right to counsel. In United States v. Rodgers, 18 F.3d 1425 (8th Cir.1994), the Eighth Circuit Court of Appeals rejected the defendants’ double-jeopardy argument that the government used the same evidence against them at both trials, because “[t]here is no ‘same-evidence’ test to prohibit the government from using the same evidence to prove two different offenses.” See Rodgers, 18 F.3d at 1429. Indeed, the court wrote, “Even Grady’s same-conduct test (now overruled) did not amount to a same-evidence test,” id. (citing Grady, 495 U.S. at 521, 110 S.Ct. 2084), and the court was instead “bound by Dixon to follow the [Blockburger] ‘same elements’ test.” Id.; cf. Iannelli, 420 U.S. at 785 n. 17, 95 S.Ct. 1284 (“substantial overlap” in proof does not establish that offenses are the “same offense”). This court believes itself to be equally bound to reject a “same evidence” test for purposes of the Sixth Amendment right to counsel, based on the Supreme Court’s selection, in Texas v. Cobb, of the Blockburger “same elements” test as applicable in that context. Moreover, the Eighth Circuit Court of Appeals and the Supreme Court have both recognized that “[a] single transaction comprising a conspiracy can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause.” United States v. Holloway, 128 F.3d 1254, 1257 (8th Cir.1997) (citing Al-bemaz v. United States, 450 U.S. 333, 339-40, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), as holding that a single conspiracy, which included both importation and distribution of marijuana, could be charged as two distinct offenses). In Holloway, the Eighth Circuit Court of Appeals applied this rule to a defendant’s double jeopardy argument regarding charges of conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846 (Count One), and conspiracy to provide a controlled substance (heroin) to an inmate in a federal prison, in violation of 18 U.S.C. § 371 (Count Three). Id. at 1255. In other words, the two conspiracies at issue involved precisely the same goal, distribution of heroin, and as a matter of fact, both involved distribution of heroin to an inmate in a federal prison. Nevertheless, after identifying the elements of the two conspiracy offenses charged in the indictment, the court concluded that they were not the “same offense”: In this case, the underlying offense to Count One, unlike that of Count Three, required the knowing and unlawful possession of a controlled substance. Count Three, on the other hand, required proof of an overt act and the presence of a scheme to provide a prohibited object to a federal inmate. Reciprocally distinguishable and independent conspiracies, regardless of their overlapping goals, do not offend Block-burger principles. American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). Holloway, 128 F.3d at 1257-58. Again, the reasoning of Texas v. Cobb would make this conclusion under Blockbwrger equally applicable to the scope of the Sixth Amendment right to counsel. Thus, this court concludes that, for purposes of determining the scope of either the double jeopardy clause or the Sixth Amendment right to counsel, offenses in separate charges or separate indictments are not the “same offense” simply (1) because they are “factually related,” or arise from the same transaction or course of conduct, see Texas v. Cobb, 532 U.S. at 167-71, 121 S.Ct. 1335 (rejecting the “factually-related” test); Blockbwrger, 284 U.S. at 304, 52 S.Ct. 180 (same transaction), Gardner, 65 F.3d at 85 (same course of conduct); (2) because proof of an element of one offense is based on conduct that constitutes an offense for which the defendant has already been charged or prosecuted, see Dixon, 509 U.S. at 708, 113 S.Ct. 2849 (expressly overruling the same-conduct test from Grady)', Turner, 130 F.3d at 818; McIntyre, 35 F.3d at 340; (3) because proof of the two offenses uses the same or substantially overlapping evidence, see Iannelli, 420 U.S. at 785 n. 17, 95 S.Ct. 1284 (“substantial overlap”); Rodgers, 18 F.3d at 1429 (same evidence); or (4) because the same transaction allegedly was part of two charged conspiracies. See Holloway, 128 F.3d at 1257-58. b. “Lesser-included” offenses On the other hand, “[i]n subsequent applications of the [BlocMmrger] test, [the Supreme Court has] often concluded that two different statutes define the ‘same offense,’ typically because one is a lesser included offense of the other.” Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); see also Turner, 130 F.3d at 818 (describing the elements of the lesser-included offense as a “subset” of the elements of the greater offense). Thus, while it may be “perfectly clear that [the second] offense requires proof of a number of elements that need not be established in [the first offense], ... [t]he Blockbwrger test requires [the court] to consider whether the converse is also true — whether the [first] offense requires proof of any element that is not part of the [second] offense.” Rutledge, 517 U.S. at 298, 116 S.Ct. 1241. The Supreme Court’s decision in Rutledge demonstrates this principle by applying it to two kinds of offenses of interest here, conspiracy in violation of 21 U.S.C. § 846, and a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. Rutledge, 517 U.S. at 294, 116 S.Ct. 1241. The Court noted that, in the case before it, “[t]he ‘in concert’ element of [the] CCE offense was based on the same agreement as the § 846 conspiracy.” Id. However, the Court rejected the government’s argument that the “in concert” requirement of the CCE offense might be satisfied by something less than the actual agreement required by the conspiracy offense. Id. at 298-99, 116 S.Ct. 1241. Instead, the Court held, “For the reasons set forth in Jeffers [v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977) ], and particularly because the plain meaning of the phrase ‘in concert’ signifies mutual agreement in a common plan or enterprise, ... this element of the CCE offense requires proof of a conspiracy that would also violate § 846.” Id. at 299, 116 S.Ct. 1241. Once the Court had established that the “in concert” element of the CCE offense and the “agreement” element of the conspiracy offense were the same, the Court’s “same offense” analysis consisted of the following: Because § 846 does not require proof of any fact that is not also a part of the CCE offense, a straightforward application of the Blockburger test leads to the conclusion that conspiracy as defined in § 846 does not define a different offense from the CCE offense defined in § 848. Furthermore, since the latter offense is the more serious of the two, and because only one of its elements is necessary to prove a § 846 conspiracy, it is appropriate to characterize § 846 as a lesser included offense of § 848. Rutledge, 517 U.S. at 299, 116 S.Ct. 1241; United States v. Jefferson, 215 F.3d 820, 823 (8th Cir.) (a drug conspiracy is, as a matter of law, a lesser-included offense of a CCE offense based on drug-trafficking), cert, denied, 531 U.S. 911, 121 S.Ct. 261, 148 L.Ed.2d 189 (2000). Thus, a “lesser-included offense” is the “same offense” as a “greater” offense, and vice versa, for double jeopardy purposes, and may not be prosecuted in consecutive trials. Pursuant to Texas v. Cobb, they are also the “same offense” for purposes of the Sixth Amendment, such that the right to counsel attaches to both the lesser offense and the greater offense at the time that either offense is charged. c. “Predicate” offenses In United States v. Allen, 247 F.3d 741 (8th Cir.2001), cert. granted and judgment vacated on other grounds, — U.S.-, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), the Eighth Circuit Court of Appeals considered application of the Blockburger test to another category of offenses, “predicate” offenses. The court finds that Allen is of particular interest here. In Allen, the court considered whether armed bank robbery by force or violence in which a killing occurred, as defined by 18 U.S.C. §§ 2113(a) and (e), and carrying or using a firearm during a crime of violence and committing murder, as defined by 18 U.S.C. § 924(c)(1) and (j)(l), were the “same offense” under Blockburger. Allen, 247 F.3d at 755. In Allen, the court noted that, on the face of the statutes defining the offenses, the § 924 firearm offense requires proof of a fact that the § 2113 offense does not, “namely, that a firearm was used or carried during the commission of a violent crime and that a murder occurred by use of the firearm.” Id. at 767. The court found that the more difficult question was the “converse” issue, of whether the § 2113 offense required an element that the § 924 offense did not, because “[i]t is not exactly clear how predicate offenses are to be treated for purposes of Blockburger.” Id. at 767-68. The court observed, “There is some indication from the Supreme Court that Block-burger is simply a rule of statutory construction which is neither intended nor designed to apply to the particular facts of a case.” Id. at 768 (citing Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), and Blockburger, 284 U.S. at 304, 52 S.Ct. 180). If Blockburger was applied in that way, “[Booking solely at the elements of the offenses,” the court in Allen concluded that the § 2113 offense was not the same as the § 924 offense, because the § 924 offense “does not require proof of a taking of bank property by force or violence or intimidation, but rather only proof of some underlying crime of violence which could be armed robbery or any other violent felony.” Id. “On the other hand,” the court in Allen observed, “the Supreme Court has applied Blockburger by considering the nature of the underlying felony in a felony-murder indictment rather than based only on the elements of the statutes at issue.” Id. (citing Whalen v. United States, 445 U.S. 684, 694-95,100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), which found that rape and killing in the course of a rape, expressly defined as a species of felony murder under the laws of the District of Columbia, were not separate offenses under the Blockburger test, because rape was a lesser included offense of killing in the course of a rape). The court in Allen reasoned that, “[ujnder this interpretation of Blockburger, predicate offenses which form the basis of other statutory offenses would always fail the Block-burger test.” Id. More specifically, the court in Allen noted, “In the present case, the underlying bank robbery satisfies the ‘crime of violence’ element of §§ 924(c) and (]'). By definition, therefore, there is no fact that must be proved in § 2113 that is different from the elements required to be proved for conviction under §§ 924(c) and CD.” Id. In Allen, the court concluded, “In light of these conflicting views of how to apply the Blockburger test to two statutes where one can be a predicate offense for the other, we think it best to err on the side of leniency by finding that the Blockburger test has not been satisfied.” Id. That meant that the § 2113 and § 924 offenses at issue in that case were, indeed, the “same offense” for double jeopardy purposes, even if they failed a straight-forward comparison of elements as defined by their respective statutes. Id. Thus, under Allen, predicate offenses present a special corollary to the Blockbur-ger “same elements” test drawn from the Supreme Court’s application of the Block-burger test in Whalen: A predicate offense and a greater offense are the “same offense” under Blockburger, even if they each require proof of an element that the other does not in a straight-forward comparison of elements, because the predicate offense is one way to satisfy the element of the greater offense that requires commission of a certain category of offense. 3. Application of Texas v. Cobb and Blockburger a. Johnson’s “discussion/interrogation” argument Before applying the Blockburger “same elements” test to the charges in the two indictments in this case, the court believes that it must address Johnson’s reading of Texas v. Cobb as establishing a test of the scope of the Sixth Amendment right to counsel that focuses on “the subject of the discussion/interrogation.” This is so, at least in part, because this contention concerning the interpretation of Texas v. Cobb was the central argument that Johnson asserted at the oral arguments on August 2, 2002. In support of this “subject of the discussion/interrogation” test, Johnson points out that, after holding “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 Blockburger test,” the Court in Texas v. Cobb opined, In this sense, we could just as easily describe the Sixth Amendment as “prosecution specific,” insofar as it prevents discussion of charged offenses as well as offenses that, under Blockburger, could not be the subject of a later prosecution. And, indeed, the text of the Sixth Amendment confínes its scope to “all criminal prosecutions.” Id. at 172-73 n. 3 (with emphasis as it appears in Johnson’s Supplemental Suppression Brief and Argument at 8). Based on this language, and the application of the Blockburger test in the case before it, Johnson argues that what was significant to the Court’s conclusion in Texas v. Cobb was “the subject of the discussion/interrogation” in the absence of counsel and the relationship of the “discussion/interrogat