David J. D'Addio, Case Comment, United States v. Bird and United States v. Avantis, Dual Sovereignty and the Sixth Amendment Right to Counsel, 113 YALE L.J. 1991 (2004).
(Abstract prepared by James Grimmelmann)
In Texas v. Cobb, the Supreme Court affirmed that the Sixth
Amendment right to counsel is "offense specific" and attaches only to
charged offenses. For double jeopardy purposes, a single criminal act that
violates both state and federal law constitutes two separate offenses,
because it violates the laws of two separate sovereigns. Thus, read literally,
Cobb implies that the right to counsel can attach to a charged offense
against one sovereign, but not to the same (uncharged) offense against a
different sovereign. The Eighth Circuit concluded in United States v.
Bird that Cobb does not strictly require application of the dual sovereignty. The Fifth Circuit's opposite result in United States v. Vantis, although more faithful to the plain language of Cobb,
is problematic because it invites collusion among state and
federal law enforcement during pretrial investigations, creating the potential
for cooperating sovereigns to circumvent a defendant's Sixth Amendment
right to counsel.
This Comment sides with Bird's
outcome, but places the case on a firmer doctrinal foundation, arguing that
the importation of dual sovereignty into Sixth Amendment doctrine runs
counter to both the logic and the history of the post-incorporation Bill of
Rights.