No. 99-1702 

In the Supreme Court of the United States 

TEXAS, PETITIONER 

v. 

RAYMOND LEVI COBB 

ON WRIT OF CERTIORARI 
TO THE COURT OF CRIMINAL APPEALS OF TEXAS 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONER 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
JAMES K. ROBINSON 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
LISA SCHIAVO BLATT 

Assistant to the Solicitor 

General 
DEBORAH WATSON 

Attorney 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

The United States will address the following ques- 
tion: 

Whether the Sixth Amendment rule announced in 
Michigan v. Jackson, 475 U.S. 625 (1986), which bars an 
officer from approaching a defendant to interrogate him 
on a charged offense when he has invoked the right to 
counsel, also applies to interrogation on a factually 
related but uncharged offense. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 1 

Summary of argument .................................................................. 

5 

Argument ........................................................................................ 8 

Michigan v. Jackson does not bar the admission of 
respondent’s confession to the then-uncharged 

offense of capital murder ..................................................... 
8 

A. Respondent’s Sixth Amendment right to counsel 
had attached on the offense of burglary ..................... 
8 

B. Respondent had no right to counsel on the un- 
charged offense of capital murder when he 
confessed to that offense ............................................... 
10 

C. The Sixth Amendment’s purposes do not support 
extension of Michigan v. Jackson to an uncharged 
offense that is factually related to a charged 

offense ............................................................................... 14 

D. This Court’s decisions do not support a Sixth 

Amendment exception for factually related 

offenses ............................................................................. 19 

E. An exception for factually related offenses would 
be unworkable and would impose unjustified 

costs ................................................................................... 24 

Conclusion ....................................................................................... 29 

TABLE OF AUTHORITIES 

Cases: 

Arizona v. Roberson, 486 U.S. 675 (1988) ......................... 
17 

Blockburger v. United States, 284 U.S. 299 (1932) .... 
6, 12, 14 

Brecht v. Abrahamson, 507 U.S. 619 (1993) ..................... 
21 

Brewer v. Williams, 430 U.S. 387 (1977) .......... 
7, 8, 19, 20, 22 

Brown v. Ohio, 432 U.S. 161 (1977) .................................... 12 

(III) 

IV 

Cases—Continued: Page 

Colorado v. Connelly, 479 U.S. 157 (1986) ........................ 
27 

Edwards v. Arizona, 451 U.S. 773 (1985) .......................... 
8, 9 

Garrett v. United States, 471 U.S. 773 (1985) ................ 
12, 23 

Grady v. Corbin, 495 U.S. 508 (1990) ................................. 
23 

Hendricks v. Vasquez, 974 F.2d 1099 (9th Cir. 
1992) ......................................................................................... 15-16 

Hoffa v. United States, 385 U.S. 293 (1966) ...................... 

11 

Hopkins v. Reeves, 524 U.S. 88 (1998) ............................... 
24-25 

Iannelli v. United States, 420 U.S. 770 (1975) ................. 
12-13 

Illinois v. Perkins, 496 U.S. 292 (1990) ........................... 
19, 20 

Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 
2000) ......................................................................................... 13 

Kirby v. Illinois, 406 U.S. 682 (1972) ................................. 

8, 17 

Kuhlmann v. Wilson, 477 U.S. 436 (1986) ....................... 
11 

Maine v. Moulton, 474 U.S. 159 (1985) ........... 
7, 10, 11-12, 16, 

19, 21, 22, 26 
Massiah v. United States, 377 U.S. 201 (1964) ............... 

11, 26 

McNeil v. Wisconsin, 501 U.S. 171 (1991) ..................... 
passim 

Michigan v. Harvey, 494 U.S. 344 (1990) .................... 
8, 18, 27 

Michigan v. Jackson, 475 U.S. 625 (1986) .............. 
1, 4, 5, 8-9, 

17-18, 26 
Miranda v. Arizona, 384 U.S. 436 (1966) .......................... 

3, 6 

Moran v. Burbine, 475 U.S. 412 (1986) ...................... 
8, 11, 18, 

22, 27 

Nichols v. United States, 511 U.S. 738 (1994) ................... 
16 
Oregon v. Elstad, 470 U.S. 298 (1985) ................................ 
27 

Patterson v. Illinois, 487 U.S. 285 (1988) .................... 
9-10, 16 

People v. Clankie, 530 N.E.2d 448 (Ill. 1988) ................... 
19 

Rios v. State, 846 S.W.2d 310 (Tex. Crim. App. 1992), 
cert. denied, 507 U.S. 1051 (1993) ....................................... 
13 

Rutledge v. United States, 517 U.S. 292 (1996) ................ 
12 

Schmuck v. United States, 489 U.S. 705 (1989) ................. 
24 

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ............. 27 

V 

Cases—Continued: Page 

United States v. Arnold, 106 F.3d 37 (3d Cir. 
1997) ...................................................................... 
14-15, 19, 25, 28 

United States v. Ash, 413 U.S. 300 (1973) ......................... 
16-17 

United States v. Calandra, 414 U.S. 338 (1974) ............... 
27 

United States v. Carpenter, 963 F.2d 736 (5th Cir.), 
cert. denied, 506 U.S. 927 (1992) ......................................... 
19 

United States v. Cooper, 949 F.2d 737 (5th Cir. 
1991), cert. denied, 504 U.S. 975 (1992) ............................ 
25-26 

United States v. Covarrubias, 179 F.3d 1219 (9th 

Cir. 1999) ........................................................................ 
14, 19, 25 

United States v. Dixon, 509 U.S. 688 (1993) ............. 
12, 23-24 

United States v. Doherty, 126 F.3d 769 (6th Cir. 
1997), cert. denied, 524 U.S. 917 (1998) .............. 
14, 19, 20, 28 

United States v. Gouveia, 467 U.S. 180 (1984) ........... 
8, 17-18 

United States v. Havens, 446 U.S. 620 (1980) ................... 
27 

United States v. Janis, 428 U.S. 433 (1976) ...................... 
27 

United States v. L.A. Tucker Truck Lines, Inc., 
344 U.S. 33 (1952) ................................................................... 
21-22 

United States v. Melgar, 139 F.3d 1005 (4th Cir. 
1998) ....................................................................................... 
19, 28 

United States v. Morrison, 449 U.S. 361 (1981) ................ 
26-27 

United States v. Verdugo-Urquidez, 494 U.S. 259 
(1990) ........................................................................................ 21 

United States v. Washington, 431 U.S. 181 (1977) .......... 

27 

Whittlesey v. Maryland, 665 A.2d 223 (Md. 1995), 
cert. denied, 516 U.S. 1148 (1996) ....................................... 
15 

Constitution and statutes: 

U.S. Const.: 

Amend. V ................................................................. 

17, 18, 24, 26 

Double Jeopardy Clause ......................................... 
6, 7, 12, 13, 23 

Self-Incrimination Clause ................................................. 
8, 17 

Amend. VI .......................................................................... 
passim 

Texas Penal Code Ann. (West 1994): 
§ 19.03(a)(2) ............................................................................. 3 

VI 

Statutes—Continued: Page 

§ 19.03(7)(A) ...................................................................... 
3, 13, 15 

§ 30.02(a)(1) ........................................................................... 
13, 15 

Miscellaneous: 

5 William Blackstone, Blackstone’s Commentaries 
(Tucker ed. 1996) ................................................................... 14 

In the Supreme Court of the United States 

No. 99-1702 

TEXAS, PETITIONER 

v. 

RAYMOND LEVI COBB 

ON WRIT OF CERTIORARI 
TO THE COURT OF CRIMINAL APPEALS OF TEXAS 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONER 

INTEREST OF THE UNITED STATES 

The question in this case is whether the police violated 
respondent’s Sixth Amendment rights under Michigan v. 
Jackson, 475 U.S. 625 (1986), by eliciting incriminating state- 
ments about respondent’s murder of two individuals after 
respondent had been charged with the burglary of the indi- 
viduals’ home and was represented by counsel on that 
charge. The Court’s resolution of that question will affect 
the conduct of interrogations by federal law enforcement 
officers and the admissibility in federal prosecutions of 
voluntary statements taken in comparable circumstances. 

STATEMENT 

1. On December 27, 1993, respondent stabbed and killed 
Margaret Owings while burglarizing her home. Respondent 
carried Margaret Owings’ body to a wooded area near the 
home. Respondent then went back to the Owings’ residence 

(1) 

2 

where he saw Margaret Owings’ sixteen-month-old daugh- 
ter, Kori Rae Owings, sleeping in her bed. Respondent 
carried the child, who was still sleeping, to the woods where 
he had left her mother’s body. After retrieving a shovel 
from his residence, which was located across the street from 
the Owings’ residence, respondent returned to the woods 
where he began digging a hole. The child subsequently 
awoke, started to approach her mother, and fell into the hole. 
Respondent buried Margaret Owings together with her 
daughter, who thereafter died of suffocation. Pet. App. A3, 
A4-A5, A9-A10. Respondent returned to the Owings’ resi- 
dence and removed a stereo, VCR, videotapes, and a bottle 
of tequila. Pet. 4-5. 

Later that day, Margaret Owings’ husband, Lindsey 
Owings, notified the Walker County, Texas, Sheriff ’s Office 
that his wife and daughter were missing and that some of his 
property had been stolen from his home. In February 1994, 
the sheriff ’s office received an anonymous tip that respon- 
dent might have been involved in the burglary. Walker 
County investigators questioned respondent about the 
burglary, but respondent denied any involvement. On July 
15, 1993, respondent, while under arrest on unrelated 
charges, executed a written statement confessing to the 
burglary, but he denied any knowledge of or involvement in 
the disappearances of Margaret and Kori Rae Owings. A 
Walker County grand jury subsequently indicted respondent 
for the burglary. Pet. App. A4. 

In August 1994, an attorney, Hal Ridley, was appointed to 
represent respondent on the burglary charge.1 Shortly 
thereafter, Walker County investigators sought and 
obtained Ridley’s permission to question respondent about 

1 The attorney apparently was appointed by letter from the court 
before respondent’s arraignment on the burglary charge. Pet. App. B1- 
B3, B5. 

3 

the disappearances of Margaret and Kori Rae Owings. 
Investigators then questioned respondent, who denied any 
involvement in the disappearances. On September 13, 1995, 
investigators, after consulting with Ridley, again questioned 
respondent, who maintained that he was not involved in the 
disappearances. Pet. App. A4-A5. 

Thereafter, respondent, who was free on bail with respect 
to the burglary charge, began residing with his father in 
Odessa, Texas. On November 11, 1995, respondent’s father 
telephoned the Walker County Sheriff ’s Office and reported 
that respondent had confessed to him that respondent had 
murdered Margaret Owings in the course of burglarizing her 
home. Walker County investigators obtained an arrest war- 
rant, which they sent by telecopier to Odessa police for 
execution. The Walker County investigators did not inform 
the Odessa police that respondent was represented by coun- 
sel in connection with the burglary charge. Pet. App. A5. 

On November 12, 1995, Odessa police arrested respon- 
dent, who waived his rights under Miranda v. Arizona, 384 
U.S. 436 (1966), and gave police a written confession to the 
murders of both Margaret and Kori Rae Owings. Pet. App. 
A5. Respondent thereafter led investigators to the location 
where he had buried the victims’ bodies. Pet. 6. 

2. Respondent was charged with the capital offense of 
intentionally killing two persons in the same criminal trans- 
action, in violation of Texas Penal Code Ann. § 19.03(a)(7)(A) 
(West 1994).2 

Before trial, respondent moved to suppress 
his murder confession on the ground that it was obtained by 

2 The indictment also charged respondent with the capital offense of 
murder in the course of committing a burglary, in violation of Texas Penal 
Code Ann. § 19.03(a)(2) (West 1994). Before trial, however, the State 
abandoned that charge and proceeded against respondent solely on the 
charge of capital murder under Section 19.03(a)(7)(A). Pet. App. D4. The 
record does not reflect whether respondent was ever tried in a separate 
proceeding for burglary. 

4 

the Odessa police in violation of his Sixth Amendment right 
to counsel. After a hearing, the trial court denied the motion 
to suppress. Pet. App. D1-D7. The court concluded that 
respondent had waived his Miranda rights, voluntarily 
confessed to the murders, and led police to the area where he 
had buried Margaret and Kori Rae Owings. Id. at D3, D4. 
The court also observed that, although in August 1994 an 
attorney had been appointed to represent respondent on the 
burglary charge, that attorney conceded at the suppression 
hearing that “he was not [respondent’s] attorney on the 
Capital Murder” charge when respondent confessed to the 
murders. Id. at D6. 

3. By a 6-3 vote, the Court of Criminal Appeals of Texas 
reversed respondent’s conviction. Pet. App. A1-A27. The 
court observed that the right to counsel guaranteed by the 
Sixth Amendment “attaches at the initiation of adversarial 
proceedings.” Id. at A6. Under this Court’s decision in 
Michigan v. Jackson, 475 U.S. 625, 636 (1986), the court 
noted, “once the right to counsel has attached and has been 
invoked, any subsequent waiver [of the right to counsel] 
during police-initiated interrogation is ineffective unless 
counsel has first given his permission for the interrogation.” 
Pet. App. A6. The court also found “relevant to this case 

* * * the Sixth Amendment rule that once the right to 
counsel attaches to the offenses charged, it also attaches to 
any other offense that is very closely related factually to the 
offense charged.” Ibid. 

Applying those principles, the court held that “[o]nce 
[respondent] was indicted for the Owings burglary, his Sixth 
Amendment right to counsel attached to that offense and to 
the capital murder offense, which was factually interwoven 
with the burglary.” Pet. App. A7. The court further held 
that respondent asserted his right to counsel “by accepting 
Ridley’s appointment as his counsel.” Ibid. The court 
therefore concluded that, “before the Odessa police could 

5 

lawfully question [respondent] about the disappearances of 
the Owings, they were under an obligation to contact Ridley 
and get his permission.” Ibid. Because police failed to take 
those steps, the court ruled that the fruits of the interview, 
including respondent’s written confession, were inadmissible 
in the prosecution’s case-in-chief. Ibid. 

Three judges dissented. Pet. App. A8-A27. In their view, 
the officers reasonably viewed the conduct of respondent’s 
attorney as indicating his unqualified and continuing consent 
to the questioning of respondent as long as respondent did 
not object. Id. at A11-A16. They also expressed the view 
that respondent’s acceptance of counsel was not an un- 
equivocal assertion of his right to counsel sufficient to invoke 
the rule of Michigan v. Jackson. Id. at A21-A25. 

SUMMARY OF ARGUMENT 

A. The Sixth Amendment right to counsel is triggered by 
the initiation of adversary judicial proceedings in a criminal 
case. The rule of Michigan v. Jackson, 475 U.S. 625 (1986), 
protects a defendant whose Sixth Amendment right has 
attached and been invoked. In order to safeguard the 
defendant’s ability to deal with the State on a charged crime 
through counsel, the Court concluded that a defendant’s 
waiver of his right to counsel in police-initiated interrogation 
is invalid. One requirement for the application of Michigan 

v. Jackson is that the accused have previously invoked his 
right to counsel. A question in this case is whether respon- 
dent’s acceptance of counsel on his burglary charge consti- 
tuted the request for the help of a lawyer envisioned in 
Jackson. But whatever the answer to that question, the 
conclusive fact here is that the statements respondent gave 
were introduced, not on the then-pending burglary charges, 
but on capital murder charges that had not been brought at 
the time of the interrogation. The Sixth Amendment right 

6 

to counsel therefore had not attached on the murder charges, 
and Michigan v. Jackson does not bar use of the statements. 

B. In McNeil v. Wisconsin, 501 U.S. 171, 175 (1991), this 
Court made clear that the Sixth Amendment right to counsel 
is “offense specific”; thus, “its Michigan v. Jackson effect of 
invalidating subsequent waivers in police-initiated inter- 
views is [also] offense specific.” The proper test to apply to 
the “offense specific” Sixth Amendment right is the same- 
elements test of Blockburger v. United States, 284 U.S. 299 
(1932), that the Court applies in Fifth Amendment Double 
Jeopardy analysis. That test asks whether each offense con- 
tains an element that the other does not. If each does, they 
are not the same offense. The test yields predictable results 
and can be readily applied to determine which offenses are 
the subject of a pending prosecution (for which the right to 
counsel has attached) and which are not. 

C. An extension of the rule of Michigan v. Jackson to 
uncharged, but closely factually related offenses, is not 
justified. There is no reason to hold that the offenses 
involved in a “criminal prosecution[]” under the Sixth 
Amendment embrace uncharged offenses that have different 
elements. The purpose of the Sixth Amendment is to ensure 
that the defendant, in responding to formal accusations that 
have been brought in court, has the assistance of counsel to 
guide him through the intricacies of the criminal legal 
process. But that purpose does not extend to uncharged 
crimes that may be under investigation, even if they are 
factually related to the charged crimes. As to those offenses, 
the Sixth Amendment right has not even attached. The 
suspect is thus as capable as any other suspect of making a 
knowing and voluntary decision whether to assert his Fifth 
Amendment rights to silence and counsel under Miranda v. 
Arizona, 384 U.S. 436 (1966), or alternatively, to speak to 
law enforcement unaided. 

7 

D. This Court’s decisions in Brewer v. Williams, 430 U.S. 
387 (1977), and Maine v. Moulton, 474 U.S. 159 (1985), do not 
support the extension of Michigan v. Jackson to factually 
related crimes. In Williams and Moulton, the Court did 
reverse convictions because, after Sixth Amendment rights 
had been invoked on certain crimes, statements were im- 
properly elicited on then-uncharged crimes. But whether 
the Sixth Amendment right had “attached” on those 
uncharged offenses when the statements were elicited was 
neither briefed nor argued, and it was not mentioned in 
either case. Those decisions thus do not control the question 
that now is squarely presented. And developments since 
that time—including the “offense specific” interpretation of 
the Sixth Amendment in McNeil and the adoption of an “ele- 
ments” rather than a “same conduct” test under the Double 
Jeopardy Clause—undermine whatever precedential force 
Williams and Moulton might otherwise have had on the 
issue. 

E. Finally, extension of Michigan v. Jackson to “factually 
related” but uncharged crimes would impose unjustified 
costs on society. Not only would such a test defy consistent 
and predictable application, but it would also result in the 
loss of some voluntary confessions obtained after compliance 
with the Miranda safeguards. A rule that suppresses such 
statements requires a substantial justification. Such a rule 
was found justified in Michigan v. Jackson to preserve the 
right to counsel once formal charges have been brought. But 
there is no similar justification when the State has neither 
formally charged a suspect with the offense about which he 
is asked nor attempted to use the suspect’s incriminating 
statements in prosecuting the suspect on a charged offense. 
Extension of the prophylaxis of Michigan v. Jackson to 
uncharged offenses is thus unwarranted. 

8 

ARGUMENT 

MICHIGAN v. JACKSON DOES NOT BAR THE 
ADMISSION OF RESPONDENT’S CONFESSION TO 

THE THEN-UNCHARGED OFFENSE OF CAPITAL 
MURDER 

A. Respondent’s Sixth Amendment Right To Counsel 

Had Attached On The Offense Of Burglary 

The Sixth Amendment guarantees that “[i]n all criminal 
prosecutions, the accused shall enjoy the right * * * to 
have the Assistance of Counsel for his defence.” U.S. Const. 
Amend. VI. As the text of the Sixth Amendment itself 
suggests, the right to counsel “does not attach until a 
prosecution is commenced, that is, at or after the initiation of 
adversary judicial criminal proceedings—whether by way of 
formal charge, preliminary hearing, indictment, information, 
or arraignment.” McNeil v. Wisconsin, 501 U.S. 171, 175 
(1991) (internal quotations marks and citation omitted); 
accord Moran v. Burbine, 475 U.S. 412, 428 (1986); United 
States v. Gouveia, 467 U.S. 180, 188 (1984); Brewer v. Wil- 
liams, 430 U.S. 387, 398 (1977); Kirby v. Illinois, 406 U.S. 
682, 689 (1972) (plurality opinion). 

In Michigan v. Jackson, this Court established a pro- 
phylactic rule under the Sixth Amendment that, “if police 
initiate interrogation after a defendant’s assertion, at an 
arraignment or similar proceeding, of his right to counsel, 
any waiver of the defendant’s right to counsel for that police- 
initiated interrogation is invalid.” 475 U.S. at 636; see 
Michigan v. Harvey, 494 U.S. 344, 345 (1990). The Court 
observed that it previously had held in Edwards v. Arizona, 
451 U.S. 477 (1981), that, under the Fifth Amendment’s Self- 
Incrimination Clause, “an accused person in custody who has 
‘expressed his desire to deal with the police only through 
counsel, is not subject to further interrogation by the 

9 

authorities until counsel has been made available to him, 
unless the accused himself initiates further communication, 
exchanges, or conversations with the police.’ ” 
475 U.S. at 

626 (quoting Edwards, 451 U.S. at 484-485). The Court in 
Jackson concluded that, because “the reasons for prohibiting 
the interrogation of an uncounseled prisoner who has asked 
for the help of a lawyer are even stronger after he has been 
formally charged with an offense than before[,] * * * the 
Sixth Amendment right to counsel at a postarraignment 
interrogation requires at least as much protection as the 
Fifth Amendment right to counsel at any custodial inter- 
rogation.” Id. at 631, 632. If a defendant requests a lawyer 
with respect to a pending charge, the Court held, it would 
“presume that the defendant requests the lawyer’s services 
at every critical stage of the prosecution,” including police 
interrogation. Id. at 633. 

The Michigan v. Jackson rule applies only when an 
accused invokes or asserts his Sixth Amendment right to 
counsel. In Patterson v. Illinois, 487 U.S. 285, 290 (1988), 
the Court declined to apply Michigan v. Jackson to suppress 
incriminating statements made by an accused who had been 
indicted and was in custody on murder charges, but who “at 
no time sought to exercise his right to have counsel present.” 
The Court explained that its “decision in Jackson * * * 
turned on the fact that the accused ‘ha[d] asked for the help 
of a lawyer’ in dealing with the police” and that “[p]reserving 
the integrity of an accused’s choice to communicate with po- 
lice only through counsel is the essence of Edwards and its 
progeny—not barring an accused from making an initial 
election as to whether he will face the State’s officers during 
questioning with the aid of counsel, or go it alone.” Id. at 291 
(quoting Jackson, 475 U.S. at 631). The Court in Patterson 
noted, however, that it was “significan[t] that petitioner had 
not retained, or accepted by appointment, a lawyer to repre- 
sent him at the time he was questioned by authorities,” 

10 

explaining that “[o]nce an accused has a lawyer, a distinct set 
of constitutional safeguards aimed at preserving the sanctity 
of the attorney-client relationship takes effect.” 487 U.S. at 
290 n.3 (citing Maine v. Moulton, 474 U.S. 159, 176 (1985)). 

In this case, when respondent was formally charged with 
the offense of burglary, his Sixth Amendment right to coun- 
sel attached with respect to that offense. See McNeil, 501 
U.S. at 175. The first question presented by the petition 
(Pet. i) is whether respondent invoked the protections of 
Michigan v. Jackson by accepting the appointment of coun- 
sel. Regardless of the resolution of that issue, however, 
Michigan v. Jackson did not bar the admission of respon- 
dent’s statements. A critical fact is that respondent was not 
charged with the murders at the time of his interrogation. 
The state court therefore erred, as a threshold matter, in 
holding that the attachment of respondent’s Sixth Amend- 
ment right to counsel with respect to the burglary offense 
extended as well to the then-uncharged offense of capital 
murder. 

B. Respondent Had No Right To Counsel On The 

Uncharged Offense Of Capital Murder When He 

Confessed To That Offense 

1. In McNeil v. Wisconsin, 501 U.S. at 175, this Court 
held that the Sixth Amendment right to counsel is “offense 
specific.” That right therefore “cannot be invoked once for 
all future prosecutions, for it does not attach until a prosecu- 
tion is commenced, that is, at or after the initiation of 
adversary judicial criminal proceedings.” Ibid. (internal 
quotation marks and citation omitted). The Court in McNeil 
also stated that “just as the [Sixth Amendment] right is 
offense specific, so also its Michigan v. Jackson effect of in- 
validating subsequent waivers in police-initiated interviews 
is offense specific.” Ibid. 

11 

In McNeil, those principles led the Court to hold that 
officers did not violate the defendant’s Sixth Amendment 
rights when they questioned him about uncharged offenses 
of murder, attempted murder, and armed burglary while he 
was in custody and under indictment for armed robbery. 501 
U.S. at 175-176. The Court explained that, “[b]ecause peti- 
tioner provided the statements at issue here before his Sixth 
Amendment right to counsel with respect to the [uncharged] 
offenses had been (or even could have been) invoked, that 
right poses no bar to the admission of the statements in this 
case.” Id. at 176 (emphasis omitted). 

Earlier, in Maine v. Moulton, 474 U.S. at 180 n.16, the 
Court made clear that, where the government used an un- 
dercover agent to investigate the ongoing or future commis- 
sion of crimes by an indicted defendant, “[i]ncriminating 
statements pertaining to other crimes, as to which the Sixth 
Amendment has not yet attached, are, of course, admissible 
at trial of those offenses.” That holding necessarily entails 
the proposition that the Sixth Amendment protections on an 
indicted offense do not extend to all other crimes by the 
same defendant. See also Moran v. Burbine, 475 U.S. at 431 
(interpreting Moulton to hold that “evidence concerning the 
crime for which the defendant had not been indicted * * * 
would be admissible at a trial limited to those charges”); 
Kuhlmann v. Wilson, 477 U.S. 436, 458 n.21 (1986) (same); 
cf. Massiah v. United States, 377 U.S. 201, 206-207 (1964) 
(proper for government to continue investigation of sus- 
pected criminal activities of a defendant, even though the 
defendant already had been indicted and had retained 
counsel for pending charges); accord Hoffa v. United States, 
385 U.S. 293, 308 (1966). The rationale for the offense- 
specific rule under the Sixth Amendment is well-settled: “to 
exclude evidence pertaining to charges as to which the Sixth 
Amendment right to counsel had not attached at the time 
the evidence was obtained, simply because other charges 

12 

were pending at that time, would unnecessarily frustrate the 
public’s interest in the investigation of criminal activities.” 
Maine v. Moulton, 474 U.S. at 180. 

2. Those principles dictate the conclusion that respon- 
dent’s Sixth Amendment right to counsel had not attached 
with respect to the offense of capital murder when he con- 
fessed to that crime on November 12, 1995. At that time, 
although the State had charged respondent with burglary, 
the State had not charged him with capital murder or 
otherwise initiated formal adversary proceedings with 
respect to that offense. Thus, unless capital murder and bur- 
glary are the same “offense” for purposes of the Sixth 
Amendment, the Sixth Amendment and its protections 
under Michigan v. Jackson posed no bar to the admission of 
respondent’s voluntary confession to the murders at his 
murder trial. 

This Court has not defined what constitutes an “offense” 
for purposes of the Sixth Amendment. The Court’s prece- 
dents firmly establish, however, that the question whether 
two factually related crimes constitute the same “offense” 
under the Fifth Amendment’s Double Jeopardy Clause is 
determined by applying the “same elements” test set forth in 
Blockburger v. United States, 284 U.S. 299, 304 (1932). See 
Rutledge v. United States, 517 U.S. 292, 297 (1996); United 
States v. Dixon, 509 U.S. 688 (1993); cf. Garrett v. United 
States, 471 U.S. 773, 779, 790 (1985). If “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.” Block- 
burger, 284 U.S. at 304. “This test emphasizes the elements 
of the two crimes. ‘If each requires proof of a fact that the 
other does not, the Blockburger test is satisfied, notwith- 
standing a substantial overlap in the proof offered to 
establish the crimes.’ ” Brown v. Ohio, 432 U.S. 161, 166 

13 

(1977) (quoting Iannelli v. United States, 420 U.S. 770, 785 n. 
17 (1975)). 

While the Sixth Amendment refers to “criminal prosec- 
tions,” and the Double Jeopardy Clause to the “same of- 
fence,” a single test should logically apply in both settings to 
determine whether an uncharged offense constitutes the 
same crime as the offense under indictment. The Block- 
burger test, moreover, is familiar to the courts and creates a 
bright-line rule that is easily administrable by judges, 
prosecutors, and law enforcement officers. Because it turns 
on the elements of the offenses charged in the indictment, it 
is of particular value to law enforcement officers who must 
decide at the outset of an investigation whether they may 
quesion an indicted suspect, after he has obtained counsel, 
about uncharged offenses. 

Under Blockburger’s same elements test, the offenses of 
burglary and capital murder constitute separate offenses. 
To establish the crime of burglary under Texas Penal Code 
Ann. § 30.02(a)(1) (West 1994), the State must prove that a 
defendant entered a habitation, without the effective consent 
of the owner, with the intent to commit a felony or theft. By 
contrast, the offense of capital murder for the killing of two 
persons in a single criminal transaction under Texas Penal 
Code Ann. § 19.03(a)(7)(A) (West 1994) requires proof that 
the defendant committed murder by intentionally or know- 
ingly causing the death of more than one individual during “a 
continuous and uninterrupted chain of conduct occurring 
over a very short period of time * * * in a rapid sequence 
of unbroken events.” Jackson v. State, 17 S.W.3d 664, 669 
(Tex. Crim. App. 2000) (quoting Rios v. State, 846 S.W.2d 
310, 311-312 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 
1051 (1993)).3 Because burglary and capital murder each 

3 The fact that burglary and capital murder contain dissimilar ele- 
ments reflects the state legislature’s view that the two crimes protect 

14 

“require[] proof of a fact which the other does not,” 
Blockburger, 284 U.S. at 304, the two crimes are distinct 
offenses. Respondent’s Sixth Amendment right to counsel 
with respect to the burglary charge therefore did not carry 
over to the capital murder charge, which had not been 
brought when respondent confessed to the murder. 

C. The Sixth Amendment’s Purposes Do Not Support 

Extension Of Michigan v. Jackson To An Uncharged 

Offense That Is Factually Related To A Charged 

Offense 

1. In holding that “[o]nce [respondent] was indicted for 
the Owings burglary, his Sixth Amendment right to counsel 
attached * * * to the capital murder offense,” Pet. App. A7, 
the state court relied (id. at A6-A7) on the decisions of lower 
courts that have concluded that there is an “exception” to 
the Sixth Amendment’s offense-specific rule when police 
question a suspect about uncharged offenses that are 
“closely related” to or “inextricably intertwined” with the 
pending charges for which the defendant has invoked his 
Sixth Amendment right to counsel. See, e.g., United States 

v. Covarrubias, 179 F.3d 1219 (9th Cir. 1999); United States 

v. Arnold, 106 F.3d 37, 40-41 (3d Cir. 1997); see also United 
States v. Doherty, 126 F.3d 769, 776 (6th Cir. 1997) (collecting 
federal and state cases), cert. denied, 524 U.S. 917 (1998). In 
applying that exception, courts have examined the conduct, 
time, place, motive, and victim with respect to an uncharged 
offense to determine whether it “arises from the same acts 

distinct societal interests. Whereas the offense of capital murder is 
proscribed under Title 5 of the Texas Penal Code, entitled “Offenses 
Against The Person,” burglary is proscribed under Title 7, entitled 
“Offenses Against Property.” See generally 5 William Blackstone, Black- 
stone’s Commentaries 177, 220 (Tucker ed. 1996) (explaining that homicide 
is a offense “injurious to the persons of private subjects” while burglary is 
an offense against the “habitations of individuals”). 

15 

and factual predicates on which the pending charges were 
based.” Arnold, 106 F.3d at 41; accord Whittlesey v. Mary- 
land, 665 A.2d 223, 234 (Md. 1995), cert. denied, 516 U.S. 
1148 (1996). 

In this case, respondent’s burglary and capital murder 
offenses did occur on the same day. But there was only a 
partial overlap in the place of the crimes and the victims. 
The burglary and the murder of one of the victims, Margaret 
Owings, occurred in the Owings’ residence, while the murder 
of Kori Rae Owings occurred in the nearby woods. And the 
victims of the murders were Margaret and Kori Rae Owings, 
while the victims of the burglary were Margaret Owings and 
her husband, Lindsey Owings, who presumably owned the 
property taken from the residence. Pet. App. A3-A4, A9- 
A10. Importantly, respondent’s conduct constituting each 
offense was distinct. Respondent committed burglary when 
he entered the Owings’ residence with the intent to remove 
the stereo and other property from the residence. Texas 
Penal Code Ann. § 30.02(a)(1) (West 1994). Respondent com- 
mitted capital murder when he stabbed Margaret Owings in 
her home, carried her body into the woods, returned to her 
home to retrieve her sixteen-month-old daughter, and buried 
the child alive along with her mother in the woods. Texas 
Penal Code Ann. § 19.03(a)(7)(A) (West 1994). Finally, 
respondent’s motives for the two crimes were different. Re- 
spondent committed the burglary offense in order to obtain 
property from the Owings’ residence. Respondent murdered 
Margaret and Kori Rae Owings because they witnessed the 
burglary. Br. in Opp. 14.4 On balance, the distinctions 

4 Respondent contends (Br. in Opp. 14) that the two crimes are 
inextricably intertwined because the burglary “was the precipitating 
event which resulted in the murders, and was the clear motive for these 
killings, i.e., to escape detection for said burglary.” But “committing a 
crime is separate from an attempt to avoid responsibility for it.” 
Whittlesey, 665 A.2d at 236; see also Hendricks v. Vasquez, 974 F.2d 1099, 

16 

between the two offenses—different conduct, different mo- 
tive, and a lack of symmetry in the victims and location— 
should lead to the conclusion that respondent’s burglary 
offense was not, as the court below held (Pet. App. A7), 
“factually interwoven” with respondent’s capital murder 
offense. 

2. Our fundamental submission, however, is that a mul- 
tifactored approach of this character should be rejected. The 
Sixth Amendment’s text and purpose do not justify barring 
police from questioning a suspect about an uncharged 
offense simply because it is closely related factually to a 
charged offense. 

Under the Sixth Amendment, an “accused” has the right 
to counsel to assist in his defense of a “criminal prosecu- 
ion[].” Thus, once any suspect is charged with an offense, 
the Sixth Amendment right to counsel attaches with respect 
to that offense.5 See p. 8, supra. Assuming that the accused 
thereafter invokes his right to counsel (see Patterson, 
supra), the Sixth Amendment as amplified by Michigan v. 
Jackson bars the police from initiating questioning concern- 
ing that offense. See McNeil v. Wisconsin, 501 U.S. at 180; 
Maine v. Moulton, 474 U.S. at 180. With respect to un- 
charged, albeit closely related, offenses, however, the State 
has not initiated formal adversary proceedings, and thus 
there is no “prosecution” to which the right to counsel can 
attach. See United States v. Ash, 413 U.S. 300, 321-322 

1104 (9th Cir. 1992) (concluding murder charges and a charge of interstate 
flight to avoid prosecution for the murder charges “were separate inci- 
dents” and were “neither ‘inextricably intertwined’ * * * nor did they 
arise from the same conduct). 

5 In felony cases, the Sixth Amendment entitles an indigent defendant 
to appointment of counsel in any felony case, while in a misdemeanor case, 
appointed counsel is required only if the charge results in a sentence of 
imprisonment. See Nichols v. United States, 511 U.S. 738, 743 & n.9 
(1994). 

17 

(1973) (Stewart, J., concurring) (“The requirement that there 
be a ‘prosecution,’ means that this constitutional ‘right to 
counsel attaches only at or after the time that adversary 
judicial proceedings have been initiated against [an ac- 
cused.]”) (quoting Kirby v. Illinois, 406 U.S. at 688 (plurality 
opinion)). 

This Court has recognized that “[t]he purpose of the Sixth 
Amendment counsel guarantee * * * is to ‘protect the 
unaided layman at critical confrontations’ with his ‘expert 
adversary,’ the government, after ‘the adverse positions of 
government and defendant have solidified’ with respect to a 
particular alleged crime.” McNeil v. Wisconsin, 501 U.S. at 
177-178 (brackets omitted) (quoting Gouveia, 467 U.S. at 
189); see also Arizona v. Roberson, 486 U.S. 675, 685 (1988) 
(Sixth Amendment right to counsel “arises from the fact that 
the suspect has been formally charged with a particular 
crime and thus is facing a state apparatus that has been 
geared up to prosecute him”).6 Indeed, in Michigan v. 
Jackson, the Court emphasized the “significance of the for- 
mal accusation, and the corresponding attachment of the 
Sixth Amendment right to counsel,” and acknowledged that 
the Amendment’s purpose is not triggered unless the State 
has accused an individual of committing a specific offense: 

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 adver- 

6 By contrast, the Court has explained that the protection of the Fifth 
Amendment’s Self-Incrimination Clause is “broader” than the Sixth 
Amendment right to counsel to the extent that the Fifth Amendment 
“relates to interrogation regarding any suspected crime and attaches 
whether or not the ‘adversarial relationship’ produced by a pending 
prosecution has yet arisen.” McNeil v. Wisconsin, 501 U.S. at 178; see 
also Arizona v. Roberson, 486 U.S. at 685. 

18 

sary proceedings ‘is far from a mere formalism.’ Kirby v. 
Illinois, 406 U.S., at 689. It is only at that time ‘that the 
government has committed itself to prosecute, and only 
then that the adverse positions of government and 
defendant have solidified. It is then that a defendant 
finds himself faced with the prosecutorial forces of orga- 
nized society, and immersed in the intricacies of 
substantive and procedural criminal law.’ 

475 U.S. at 631 (quoting Gouveia, 467 U.S. at 189). 

Absent the considerations present when a State has 
brought charges against a suspect alleging a specific offense, 
the purposes of the Sixth Amendment do not support a rule 
that prevents the police from approaching a suspect who can 
then “mak[e] an initial election as to whether he will face the 
State’s officers during questioning with the aid of counsel, or 
go it alone.” Patterson v. Illinois, 487 U.S. at 291; see also 
McNeil v. Wisconsin, 501 U.S. at 178 (“One might be quite 
willing to speak to the police without counsel present 
concerning many matters, but not the matter under prosecu- 
tion.”); Michigan v. Harvey, 494 U.S. at 353 (“Although a 
defendant may sometimes later regret his decision to speak 
with police, the Sixth Amendment does not disable a 
criminal defendant from exercising his free will.”); Moran v. 
Burbine, 475 U.S. at 430 (“The Sixth Amendment’s intended 
function is not * * * to protect a suspect from the 
consequences of his own candor.”). 

Moreover, if the suspect is in custody, the Fifth Amend- 
ment as interpreted by Miranda requires police to advise 
the suspect of his right to counsel, which the suspect may 
invoke at any time to cause the police to cease their 
questioning. As this Court in McNeil v. Wisconsin, ex- 
plained: 

If a suspect does not wish to communicate with the police 
except through an attorney, he can simply tell them that 

19 

when they give him the Miranda warnings. There is not 
the remotest chance that he will feel “badgered” by their 
asking to talk to him without counsel present, since the 
subject will not be the charge on which he has already 
requested counsel’s assistance (for in that event Jackson 
would preclude initiation of the interview) and he will not 
have rejected uncounseled interrogation on any subject 
before (for in that event, Edwards would preclude 
initiation of the interview). 

501 U.S. at 180. Thus, in the absence of any indication by the 
defendant that he does not want to talk to police about an 
uncharged offense, even one that is factually related to a 
pending charge, Michigan v. Jackson’s prophylactic rule 
should not be extended to exclude a defendant’s voluntary 
confession to the uncharged offense. 

D. This Court’s Decisions Do Not Support A Sixth 

Amendment Exception For Factually Related 
Offenses 

Many lower courts have reasoned that an exception to the 
Sixth Amendment’s offense-specific rule for factually related 
crimes is supported by this Court’s decisions in Brewer v. 
Williams, supra, and Maine v. Moulton, supra, in which the 
Court reversed convictions on charges that had not been 
brought against the defendants in those cases at the time the 
incriminating statements at issue were made. See, e.g., 
Covarrubias, 179 F.3d at 1223-1224; United States v. Melgar, 
139 F.3d 1005, 1011-1014 (4th Cir. 1998); Doherty, 126 F.3d at 
776; Arnold, 106 F.3d at 40-41; United States v. Carpenter, 
963 F.2d 736, 740 (5th Cir.), cert. denied, 506 U.S. 927 (1992); 
People v. Clankie, 530 N.E.2d 448, 462-463 (Ill. 1988).7 

7 In finding that the Sixth Amendment right to counsel attaches with 
respect to factually related uncharged offenses, the Sixth Circuit in 
Doherty, 126 F.3d at 776, also relied on this Court’s decision in Illinois v. 
Perkins, 496 U.S. 292 (1990). In Perkins, the Court held that the Sixth 

20 

In Brewer, a defendant who had been formally charged 
with a child’s abduction, and who had retained counsel with 
respect to that charge, was being transported by police from 
the city where he had surrendered to the city where the 
abduction had occurred. A detective traveling with the 
defendant elicited from the defendant the location of the 
child’s body by expressing the view that the parents were 
entitled to a “Christian burial” for their child. 430 U.S. at 
390-394. On habeas review of the defendant’s conviction on 
murder charges, the Court held that the police violated the 
defendant’s Sixth Amendment right to counsel when police 
questioned him outside the presence of his attorneys, rea- 
soning that the police “purposely sought during Williams’ 
isolation from his lawyers to obtain as much incriminating 
information as possible.” Id. at 399. The Court further held 
that the defendant did not intentionally relinquish his right 
to counsel, explaining that his “consistent reliance upon the 
advice of counsel in dealing with the authorities refutes any 
suggestion that he waived that right.” Id. at 404. 

In Moulton, the defendant was indicted on, and retained 
counsel with respect to, four counts of theft of vehicles and 
automotive parts. Thereafter, a co-defendant, Colson, began 

Amendment did not bar the State’s use of an undercover agent to question 
the defendant about a murder while he was imprisoned on an unrelated 
battery conviction, reasoning that “[i]n the instant case no charges had 
been filed on the subject of the interrogation, and our Sixth Amendment 
precedents are not applicable.” Id. at 299 (emphasis added). Focusing on 
the highlighted language, the court in Doherty concluded that “it is the 
subject matter of the interrogation, and not any formal distinction in the 
elements of the underlying charges, that is relevant for Sixth Amendment 
purposes.” 126 F.3d at 776. The highlighted language is most naturally 
read, however, to mean that, had the defendant been formally charged 
with offenses relating to the murder, and had the defendant invoked his 
right to counsel for those charges, the State would have been barred from 
seeking incriminating statements about those charges without the pre- 
sence of counsel. 

21 

cooperating with police and secretly tape-recorded con- 
versations with the defendant in which the defendant made 
incriminating statements about the thefts as well as the 
defendant’s plan to kill one of the witnesses on the theft 
charges. 474 U.S. at 162-166. In holding that “the State vio- 
lated Moulton’s Sixth Amendment right when it arranged to 
record conversations between Moulton and its undercover 
informant, Colson,” the Court reasoned that “[t]he police 
thus knew that Moulton would make statements that he had 
a constitutional right not to make to their agent prior to 
consulting with counsel.” Id. at 176, 177. The Court rejected 
the contention that the police conduct was excused because 
the police were investigating the defendant’s attempts to kill 
the witness to the theft charges. Id. at 178-180. The Court 
therefore affirmed the state court’s decision, which had 
reversed the defendant’s conviction for theft as well as a 
burglary offense that the State had charged after Colson 
began cooperating with the authorities. Id. at 167, 180. 

Although the Court in Brewer and Moulton reversed con- 
victions with respect to offenses that had not been charged 
at the time that the defendant made incriminating statments 
(the offense of murder in Brewer and of burglary in 
Moulton), neither decision actually addressed the issue of 
whether the Sixth Amendment attaches to uncharged, factu- 
ally related offenses, and it does not appear that the State 
raised the point in either case. The Court in this case accord- 
ingly is “free to address the issue on the merits.” Brecht v. 
Abrahamson, 507 U.S. 619, 631 (1993); see also United States 

v. Verdugo-Urquidez, 494 U.S. 259, 272 (1990) (“The Court 
often grants certiorari to decide particular legal issues while 
assuming without deciding the validity of antecedent propo- 
sitions, * * * and such assumptions * * * are not binding 
in future cases that directly raise the questions.”); United 
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 
(1952) (stating that prior decision is not controlling when 

22 

issue “was not there raised in briefs or argument nor dis- 
cussed in the opinion of the Court”). Indeed, the Court in 
Moulton explicitly limited the reach of its decision to the 
State’s obtaining of incriminating evidence that pertained to 
pending charges to which the Sixth Amendment had 
attached at the time that the police obtained the evidence. 
474 U.S. at 180 n.16 (“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.”); see also Moran v. Burbine, 475 U.S. at 431 (“The 
Court [in Moulton] made clear * * * that the evidence 
concerning the crime for which the defendant had not been 
indicted * * * would be admissible at a trial limited to 
those charges.”). In suggesting that the State could have 
used the incriminating statements made by the defendant in 
a prosecution for the defendant’s attempt to kill a witness to 
the charged theft offenses, 474 U.S. at 179-180 & n.16; see 
also id. at 185 (Burger, C.J., dissenting), the Court implicitly 
rejected the principle that the Sixth Amendment attaches to 
all offenses that have some factual relationship to the 
charged offense.8 

In any event, both Brewer and Moulton predate McNeil, 
in which the Court expressly articulated the principle that 

8 Brewer also involved the distinguishing feature that the police 
deliberately circumvented the defendant’s Sixth Amendment right to 
counsel with respect to the abduction charge by breaching an agreement 
with the defendant’s attorneys that police would not question the defen- 
dant while they transported him across the state. See 430 U.S. at 404-405; 
id. at 413-414 n.2 (Powell, J., concurring) (“Here, we have a * * * case 

* * * in which the police deliberately took advantage of an inherently 
coercive setting in the absence of counsel, contrary to their express agree- 
ment.”); id. at 415 (Stevens, J., concurring) (“If, in the long run, we are 
seriously concerned about the individual’s effective representation by 
counsel, the State cannot be permitted to dishonor its promise to this 
lawyer.”). 

23 

the Sixth Amendment right to counsel is “offense specific.” 
501 U.S. at 175. McNeil, of course, did involve factually un- 
related offenses. The accused in that case had invoked his 
Sixth Amendment right to counsel on a pending armed rob- 
bery charge, while the police questioned him about un- 
charged murder and burglary offenses that had occurred in a 
town different from where armed robbery had occurred. Id. 
at 173-174. Nothing in the Court’s opinion in McNeil, 
however, suggests that the Court’s holding turned on the 
fact that the uncharged and charged offenses were factually 
unrelated, or even that the Court deemed it relevant that 
the two offenses were unrelated. Rather, the Court relied 
solely on the fact that the accused had “provided the state- 
ments at issue * * * before his Sixth Amendment right to 
counsel with respect to the [uncharged] offenses had been 
(or even could have been) invoked.” Id. at 176 (emphasis 
omitted). 

Similarly, both Brewer and Moulton were decided before 
Dixon, supra, which adopted Blockburger’s “same elements” 
test to determine whether a defendant is being subjected to 
successive punishment or prosecutions for the same criminal 
offense, in violation of the Fifth Amendment’s Double Jeop- 
ardy Clause. 509 U.S. at 703-704; cf. Garrett v. United 
States, supra. In reaching that conclusion, the Court in 
Dixon, 509 U.S. at 709, overruled its decision in Grady v. 
Corbin, 495 U.S. 508 (1990), which had held that, in addition 
to the same-elements test, a subsequent prosecution must 
satisfy a “same-conduct” test that barred the State from 
bringing “a subsequent prosecution if, to establish an essen- 
tial element of an offense charged in that prosecution, the 
government w[ould] prove conduct that constitute[d] an 
offense for which the defendant ha[d] already been prose- 
cuted.” Id. at 510. The Court in Dixon concluded that it was 
“compellingly clear” that Grady “was a mistake,” reasoning 
that the same-conduct test “proved unstable in application” 

24 

and was “a continuing source of confusion.” 509 U.S. at 709- 
711. Now that the Court has adopted the same-elements 
test in interpreting the word “offense” under the Fifth 
Amendment, it would be highly anomalous for the Court to 
conclude that the Sixth Amendment’s offense-specific rule is 
to be applied not only by examining the elements of the 
charged and uncharged offenses, but also by asking whether 
the offenses are “very closely related factually.” Pet. App. 
A6. 

E. An Exception For Factually Related Offenses Would 
Be Unworkable And Would Impose Unjustified Costs 

1. This Court’s adverse experience with the “same con- 
duct” test of Grady v. Corbin strongly counsels in favor of 
adopting the same-elements test as the exclusive test to 
determine whether the Sixth Amendment permits police to 
question a suspect about uncharged offenses. Indeed, in two 
other instances, this Court has recognized the practical dif- 
ficulties created by rules—other than an elements test—for 
determining the requisite degree of relationship between 
two offenses. In Schmuck v. United States, 489 U.S. 705, 709 
(1989), the Court rejected an “inherent relationship” test 
that would have required an offense to be submitted to jury 
as lesser-included offense when “two offenses relate[d] to 
the protection of the same interests and the proof of the 
greater offense [could] generally be expected to require 
proof of the lesser offense.” The Court explained that the 
“inherent relationship” test is “rife with the potential for 
confusion,” while the elements test “promotes judicial econ- 
omy by providing a clearer rule of decision.” Id. at 720-721. 
Similarly, in Hopkins v. Reeves, 524 U.S. 88, 97 (1998), the 
Court held that the Constitution does not require state trial 
courts to instruct juries in capital cases on a “‘lesser related 
offense’—when no lesser included offense exists.” Such an 
instruction, the Court reasoned, would be “unworkable,” 

25 

because “there would be no basis for determining the of- 
fenses for which instructions are warranted.” Ibid. 

Like the tests rejected in Grady, Schmuck, and Reeves, 
the test applied by the decision below—whether an un- 
charged offense is “factually interwoven with” or “very 
closely related factually to the offense charged” (Pet. App. 
A6, A7)—is too imprecise and indeterminate to support a 
workable rule to govern police interrogations. The courts 
that have embraced an exception to the Sixth Amendment’s 
offense-specific rule have looked to a wide variety of factors, 
none of which is necessarily controlling in a given case. As 
the Ninth Circuit has explained: 

Deciding whether the exception is applicable requires an 
examination and comparison of all the facts and circum- 
stances relating to the conduct involved, including the 
identity of the persons involved (including the victim, if 
any), and the timing, motive, and location of the crimes. 
No single factor is ordinarily dispositive; nor need all of 
the factors favor application of the exception in order for 
the offenses to be deemed inextricably intertwined or 
closely related. 

Covarrubias, 179 F.3d at 1225. 

Because of the sheer number of factors that bear on 
whether an uncharged offense “is very closely related factu- 
ally to the offense charged” (Pet. App. A6), it is difficult for 
courts to fashion a coherent body of law that achieves similar 
outcomes on comparable facts. Compare Arnold, 106 F.3d at 
42 (witness intimidation charge based on defendant’s threat 
to a witness and attempted murder charge based on 
defendant’s subsequent hiring of a hit man to kill the witness 
were “sufficiently related for purposes of the Sixth Amend- 
ment exception” because the defendant’s “central purpose 
and the intended results of both offenses were the same”), 
with United States v. Cooper, 949 F.2d 737, 744 (5th Cir. 

26 

1991) (rejecting claim that state offense of aggravated rob- 
bery was inextricably intertwined with federal offense of 
possession of an unregistered weapon, because two crimes 
“concern different conduct, although, efficiently for the gov- 
ernments, both prosecutions could use much of the same 
evidence”), cert. denied, 504 U.S. 975 (1992). 

Furthermore, because law enforcement officials must 
determine in advance whether they may question an accused 
about uncharged offenses, a Sixth Amendment exception for 
“very closely related” crimes (Pet. App. A6) poses even more 
difficulties in application than the same-conduct test that 
this Court in Dixon rejected under the Fifth Amendment. 
In many instances, officers will not know, before approach- 
ing a suspect to ask about an unindicted crime, all of the 
factual circumstances that could render that crime “closely 
related” to or “inextricably intertwined” with the charged 
crime. As a result, the question whether a court later will 
conclude that the right to counsel on the earlier crime 
extended to uncharged crimes will be unpredictable. The 
approach embraced by the decision below therefore would 
have the adverse practical effect of discouraging law en- 
forcement officers from approaching a suspect about criminal 
activity and thereby would “unnecessarily frustrate the 
public’s interest in the investigation of criminal activities.” 
McNeil, 501 U.S. at 176 (quoting Maine v. Moulton, 474 U.S. 
at 180); see also Massiah, 377 U.S. at 207. At a minimum, 
the exception to the offense-specific rule obscures the “clear, 
‘bright line’ ” that Michigan v. Jackson intended to create so 
that police may conform their conduct accordingly. 475 U.S. 
at 634. 

2. The intrusion on police investigatory work is not justi- 
fied by any countervailing considerations. “Cases involving 
Sixth Amendment deprivations are subject to the general 
rule that remedies * * * should not unnecessarily infringe 
on competing interests.” United States v. Morrison, 449 

27 

U.S. 361, 364 (1981); see also Michigan v. Harvey, 494 U.S. at 
346 (declining to bar the State from using a statement taken 
in violation of Michigan v. Jackson to impeach a defendant’s 
false or inconsistent testimony). In this case, extending the 
rule of Michigan v. Jackson to factually related uncharged 
offenses would impose serious costs without providing a suf- 
ficient benefit. 

The Court repeatedly has observed that the exclusion of a 
voluntary confession deprives the trier of fact of “what con- 
cededly is relevant evidence.” Colorado v. Connelly, 479 
U.S. 157, 166 (1986) (quoting United States v. Janis, 428 U.S. 
433, 449 (1976)); see also United States v. Havens, 446 U.S. 
620, 627 (1980); United States v. Calandra, 414 U.S. 338 
(1974). The Court likewise has made clear that “the ready 
ability to obtain uncoerced confessions,” far from being an 
evil, is an “unmitigated good.” McNeil v. Wisconsin, 501 
U.S. at 181. Thus, as the Court in Moran v. Burbine ob- 
served: “Admissions of guilt are more than merely ‘desir- 
able’ * * * they are essential to society’s compelling inter- 
est in finding, convicting, and punishing those who violate 
the law.” 475 U.S. at 426 (quoting United States v. Washing- 
ton, 431 U.S. 181, 186 (1977)); see also Oregon v. Elstad, 
470 U.S. 298, 305 (1985); id. at 312 (the loss of “highly 
probative evidence of a voluntary confession” is a “high cost 
to legitimate law enforcement activity”); Schneckloth v. 
Bustamonte, 412 U.S. 218, 225 (1973) (noting the “acknowl- 
edged need for police questioning as a tool for the effective 
enforcement of criminal laws”). Confessions, if obtained by 
fair methods that guarantee their reliability, result in the 
resolution of many cases that could not otherwise be solved, 
ensure confidence in the accuracy of criminal judgments, re- 
duce the risk of prosecuting or convicting innocent persons, 
and alleviate burdens on all segments of the criminal justice 
system. Ibid. Extension of Michigan v. Jackson to un- 
charged offenses, with the effect of excluding voluntary, re- 

28 

liable confessions from evidence, therefore would require a 
substantial justification. 

No such justification is present here. Courts have pur- 
ported to justify the application of Michigan v. Jackson to 
factually related offenses because “to hold otherwise would 
allow the government to circumvent the Sixth Amendment 
right to counsel merely by charging a defendant with addi- 
tional related crimes after questioning him without counsel 
present.” Arnold, 106 F.3d at 41 (internal brackets and 
quotation marks omitted); see also Melgar, 139 F.3d at 1013; 
Doherty, 126 F.3d at 776; Pet. App. A7.9 That reasoning, 
however, presupposes that a suspect has a Sixth Amend- 
ment right to counsel with respect to offenses for which he 
has not been formally charged. That conclusion is incorrect. 
See pp. 10-12, 16-19, supra. In any event, there is no indic- 
ation in this case that the State attempted to circumvent 
respondent’s right to counsel on the burglary offense when 
police questioned him about the murder offenses on 
November 12, 1995, and later charged him with the murder 
that he confessed to committing. 

10 Respondent at that time 

9 The state court also asserted that the exception “prevents the 
government from circumventing the Sixth Amendment right to counsel 
merely * * * by charging predicate crimes with the purpose of ques- 
tioning a suspect on an aggravated crime.” Pet. App. A7 (internal quota- 
tion marks and citation omitted). Under Blockburger’s same-elements 
test, however, an aggravated offense would be the same offense as the 
predicate crime and the State thus would be precluded under Michigan v. 
Jackson from approaching the suspect about either offense. 

10 Nor is there any reason to believe that the police believed that they 
had enough evidence to charge respondent with the offense of capital 
murder when he was indicted for burglary. Pet. App. B3-B4, B7. More 
generally, applying the rule of Michigan v. Jackson to closely related 
uncharged offenses cannot be justified in order to prevent police from 
deliberately filing only a subset of the provable charges in the hopes of 
circumventing an indicted defendant’s right to counsel. For purposes of 

29 

had already confessed to the burglary, Pet. App. A4, and the 
State was not continuing its investigation of the charged 
burglary offense under the guise of investigating uncharged 
crimes. Nor did the State use any of the incriminating 
statements that respondent made on November 12, 1995, to 
prosecute respondent for the offense of burglary. Cf. note 2, 
supra. There is therefore no basis for applying Michigan v. 
Jackson’s prophylactic rule to exclude respondent’s 
voluntary confession to the capital murder offense. 

CONCLUSION 

The decision of the Court of Criminal Appeals of Texas 
should be reversed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 
JAMES K. ROBINSON 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
LISA SCHIAVO BLATT 

Assistant to the Solicitor 

General 
DEBORAH WATSON 

Attorney 

AUGUST 2000 

bail and plea bargaining, officials typically have an incentive to bring the 
most serious charges that would support an indictment against an accused.