Turner v. United States (885 F.3d 949, 2018)

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, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Cobb , 532 U.S. at 173, 121 S.Ct. 1335. "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, 52 S.Ct. 180. 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, 121 S.Ct. 1335.

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).

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, 121 S.Ct. 1335, 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, 106 S.Ct. 433, 88 (L.Ed.2d 387 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 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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ).

III.

For the foregoing reasons, we AFFIRM the judgment of the district court.

JOHN K. BUSH, Circuit Judge, concurring dubitante.

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, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye , 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (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). But 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 , --- U.S. ----, 135 S.Ct. 2652, 2671-72, 192 L.Ed.2d 704 (2015) ; District of Columbia v. Heller , 554 U.S. 570, 603-14, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; Marsh v. Chambers , 463 U.S. 783, 787-91, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (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, 115 S.Ct. 1842, 131 L.Ed.2d 881 (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, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Call this the "What did the ratifiers think that James Madison was thinking?" approach.

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, 128 S.Ct. 2783 ("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," 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." 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." 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 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, 128 S.Ct. 2783 (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, 132 S.Ct. 945, 181 L.Ed.2d 911 (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, 110 S.Ct. 3157, 111 L.Ed.2d 666 (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.

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."

As for the four prevailing legal English dictionaries of the Founding era, one does not define "accuse" (or related words) at all; 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." 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." This definition contemplates a broad meaning of "prosecution"-something reminiscent of its etymological meaning of pursuing a goal. The dictionaries also include more specific secondary definitions such as "a process at law" and a "suit against a man in a criminal cause." Nor do the legal dictionaries 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." 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.

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, 103 S.Ct. 3330.

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.

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. 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 Jefferson's administration.) 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)). 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 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. 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 in the early days of the Republic," 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. 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). From first-hand experience serving as counsel to prisoners in such examining courts, 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.

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, 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.

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, 2 L.Ed. 495 (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.

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. 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.

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-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, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) ; Frye , 566 U.S. at 138, 132 S.Ct. 1399. 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.

CLAY, Circuit Judge, concurring in the judgment only.

CONCURRENCE IN THE JUDGMENT

Because Kirby v. Illinois , 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) and United States v. Gouveia , 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (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 .

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, 92 S.Ct. 1877 (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, 92 S.Ct. 1877. 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, 92 S.Ct. 1877.

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, 104 S.Ct. 2292. 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, 104 S.Ct. 2292. 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, 104 S.Ct. 2292 (quoting Kirby , 406 U.S., at 689, 92 S.Ct. 1877 ). 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, 104 S.Ct. 2292 (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, 104 S.Ct. 2292 (Stevens, J., concurring)). Because " 'the right to counsel does not attach until the initiation of adversary judicial proceedings' such as 'formal charge, preliminary hearing, 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, 104 S.Ct. 2292 ). 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, 106 S.Ct. 1135, 89 L.Ed.2d 410 (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 [102 S.Ct. 703, 70 L.Ed.2d 556] (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 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, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (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, 104 S.Ct. 2292. 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.

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, 132 S.Ct. 1399 ; Lafler , 566 U.S. at 162, 132 S.Ct. 1376. 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, 128 S.Ct. 2578, 171 L.Ed.2d 366 (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 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, 121 S.Ct. 1335, 149 L.Ed.2d 321 (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, 121 S.Ct. 1335. The defendant confessed to 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, 121 S.Ct. 1335. 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, 121 S.Ct. 1335. 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, 111 S.Ct. 2204, 115 L.Ed.2d 158 (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, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Cobb , 532 U.S. at 173, 121 S.Ct. 1335. 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, 52 S.Ct. 180 ). 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, 121 S.Ct. 1335. 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 "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, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) ; Abbate v. United States , 359 U.S. 187, 194, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) ; United States v. Lanza , 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (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 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 [80 S.Ct. 1437, 4 L.Ed.2d 1669] (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 [84 S.Ct. 1594, 12 L.Ed.2d 678] (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 [80 S.Ct. 1437]. 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 [84 S.Ct. 1199, 12 L.Ed.2d 246] (1964) ; Gideon v. Wainwright , 372 U.S. 335, 343-44 [83 S.Ct. 792, 9 L.Ed.2d 799] (1963) ;

Johnson v. Zerbst , 304 U.S. 458, 462-63 [58 S.Ct. 1019, 82 L.Ed. 1461] (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 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 [121 S.Ct. 1335]. 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, 121 S.Ct. 1335. 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., 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, 121 S.Ct. 1335 (quoting Blockburger , 284 U.S. at 304, 52 S.Ct. 180 ). "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, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (footnote omitted); see also Illinois v. Vitale , 447 U.S. 410, 417, 419-20, 100 S.Ct. 2260, 65 L.Ed.2d 228 (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 offenses are the "same offense" for double jeopardy purposes); Brown v. Ohio , 432 U.S. 161, 167, 97 S.Ct. 2221, 53 L.Ed.2d 187 (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) A