D. South Dakota Notes Split Re Whether Dual Sovereign Doctrine Should Apply in the Sixth Amendment Context
Per U.S. v. Killeaney, Slip Copy, 2007 WL 4459348 (D.S.D. Dec. 17, 2007):
The court notes the circuits are split as to whether the dual sovereign doctrine should apply in the Sixth Amendment right to counsel context. Of the circuits that have addressed the issue, three have applied the doctrine to the Sixth Amendment, two have declined to, and one chose not to address the issue. See United States v. Alvarado, 440 F.3d 191, 194 (4th Cir.2006) (holding that “federal and state crimes are necessarily separate offenses for the purposes of the Sixth Amendment, because they originate from autonomous sovereigns that each have the authority to define and prosecute criminal conduct”); United States v. Coker, 433 F.3d 39, 44 (1st Cir.2005) (stating that “the dual sovereignty doctrine applies for the purpose of defining what constitutes the same offense in the Sixth Amendment right to counsel context”); United States v. Avants, 278 F.3d 510, 517 (5th Cir.2002) (stating “[i]t is plain to see that the federal and state murder prosecutions against Avants are not the ‘same offense’ under the Sixth Amendment because each was initiated by a separate sovereign”); United States v. Mills, 412 F.3d 325, 327 (2d Cir.2005) (stating “the Sixth Amendment right of counsel extends to offenses considered to be the ‘same offense’ as those to which the right has already attached even when they are prosecuted by different sovereigns”); United States v. Red Bird, 287 F.3d 709,715 (8th Cir.2002) (stating “the federal and tribal complaints charge the same offense for Sixth Amendment purposes”); and United States v. Krueger, 415 F.3d 766, 768 (7th Cir.2005) (determining that it did not have to reach the issue because the case could be decided on other grounds). See also Charles Morrison, The Supreme Court May Have Meant What It Said, But It Needs To Say More: A Comment on The Circuit Split Regarding the Application of the Dual Sovereignty Doctrine To the Sixth Amendment Right to Counsel, 39 U. Tol. L.Rev. 153, 183-84 (2007) (arguing that the dual sovereignty doctrine should be applied to the Sixth Amendment because there are considerations related to connecting the federal government's prosecutorial efforts to the quality of a state's previous investigation and courts should respect the United States Supreme Court's adherence to the multi-sovereign nature of the Constitution as well as its belief that the Fifth and Sixth Amendment rights to counsel are designed to serve different purposes).