State, Federal Charges Arising from Same Act Are Not "Same Offense" Under Sixth Amendment

US v. Alvarado: Alvarado came to the attention of authorities during surveillance by Virginia police of a potential drug conspiracy. Assisting the Virginia police was an ATF agent. After the state officers arrested Alvarado and another man, the ATF agent questioned Alvarado because the agent spoke Spanish and Alvarado spoke Spanish but not English. Based on the statements from Alvarado and the other man, they were charged in Virginia with possession with intent to deliver cocaine and conspiracy to deliver cocaine. Alvarado asked for and was appointed counsel to represent him in state court. At a preliminary hearing two months later, Virginia dropped the charges against Alvarado.

Once the state charges were dropped, Alvarado was immediately arrested by the ATF agent on a warrant obtained the day before based on a criminal complaint. Alvarado (who, we are told was "glad to see" the ATF agent) gave an incriminating statement after being given Miranda warnings by the ATF agent. Alvarado was eventually indicted for distributing cocaine and conspiring to distribute cocaine. At trial, the ATF agent testified about the incriminating statements Alvarado made following his federal arrest. Alvarado moved to have the statements suppressed, arguing that the federal charges were the "same offense" for Sixth Amendment purposes and the ATF agent should not have questioned him without the attorney appointed in state court present. The district court rejected that argument and the jury convicted Alvarado on both counts.

The Fourth Circuit upheld Alvarado's conviction on several grounds. First, the Court held that the Sixth Amendment right to counsel is case specific and that state and federal prosecutions are, by definition, separate cases, under the separate sovereignty doctrine. The fact that a federal agent was involved in the state arrest and charges is irrelevant, as "such collaborative efforts can hardly be dispositive of government misconduct." Second, the Court held that even if such a categorical rule was not appropriate, an examination of the state and federal charges showed them to be different offenses (the dates of the two charged conspiracies, in particular, were different). Finally, the Court held that Alvarado's Sixth Amendment right to counsel in federal court did not kick in with the filing of a criminal complaint because "[t]he filing of a federal criminal complaint does not commence a formal prosecution" and that the use of "such a complaint is to establish probable cause."

Alvarado's sentence was remanded for resentencing in light of Booker.