United States District Court, D. MassachusettsJul 17, 2001
CRIMINAL NO. 00-10363-GAO, 1:00-m-00128 (D. Mass. Jul. 17, 2001)

CRIMINAL NO. 00-10363-GAO, 1:00-m-00128

July 17, 2001

James L. Sultan Defendant Rankin Sultan, Boston, MA.

U.S. Attorneys: Emily R. Schulman, Boston, MA


Rana Nazar Hussain and Muhammad Abbas have been charged with conspiracy to import heroin in violation of 21 U.S.C. § 963 and importation of heroin in violation of 21 U.S.C. § 952 and 18 U.S.C. § 2. Hussain has moved to suppress statements he made to government agents while he was in their custody. After an evidentiary hearing and review of the written submissions of the parties, the motion to suppress the defendant's statements is GRANTED IN PART and DENIED IN PART.


Hussain and Abbas were passengers on an international flight which arrived in Boston from London on the afternoon of September 12, 2000. During a customs inspection of Abbas' luggage, officials of the United States Customs Service discovered and seized approximately 27.9 pounds of heroin that was hidden inside 30 ornamental vests.

Customs agents had reason to believe that Hussain and Abbas were traveling together, and Hussain's answers to a Customs inspector's questions about his travel plans and luggage increased the suspicion that he was involved with Abbas in the attempt to smuggle heroin. After he had been advised of his Miranda rights by a special agent, Hussain agreed to answer questions and made incriminating statements. He also agreed to assist agents in attempting to set up a controlled delivery of the heroin. To that end, he spent the night of September 12 at a hotel in the custody of the agents.

The next day, Hussain was brought before a magistrate judge for an initial appearance on the criminal complaint that had been issued against him. He was not represented by counsel at the initial appearance. In lieu of detention, at the Government's request the magistrate judge released Hussain, with his consent, to the custody of Customs agents to continue the attempt at a controlled delivery of the heroin. The attempt ultimately proved unsuccessful, and Hussain has been detained pending trial.

Hussain seeks to suppress his custodial statements to authorities because he contends that:"(1) he did not knowingly, intelligently, and voluntarily waive his constitutional right against self-incrimination prior to making any custodial statements; (2) his statements were involuntary and the result of coercive law enforcement tactics which overbore his will in violation of due process; and (3) his right to counsel during the hearing held before the [m]agistrate [j]udge on September 13 was violated both because his assertion of the right to counsel was ignored and because the hearing constituted a `critical stage' entitling him to counsel under the Sixth Amendment and relevant statutory provisions." Def.'s Post-Hr'g Mem., at 1.


A. Knowing and Voluntary Waiver of Rights and Consent to Interrogation

Hussain asserts that his waiver of his rights guaranteed under Miranda v. Arizona, 384 U.S. 436, 444 (1966), was not informed and voluntary. The applicable law is familiar: The government must establish by a preponderance of the evidence that the defendant knowingly, intelligently and voluntarily waived his rights. See Colorado v. Connelly, 479 U.S. 157, 168 (1986); Moran v. Burbine, 475 U.S. 412, 421 (1986). Whether a waiver was given knowingly and voluntarily is judged by "the totality of the circumstances and the facts surrounding the particular case including the background experience and conduct of the accused." United States v. Rosario-Diaz, 202 F.3d 54, 69 (1st Cir. 2000) (quoting United States v. Garcia, 983 F.2d 1160, 1169 (1st Cir. 1993) (internal quotations and citations omitted).

It is undisputed that Special Agent Donald Lenzie of the Customs Service read Hussain the Miranda rights, and that the defendant signed a form indicating that he waived those rights. While a written waiver of such rights is typically persuasive evidence tending to show the validity of the waiver, in some circumstances more must be shown to find that the defendant knowingly and voluntarily waived his rights. See North Carolina v. Butler, 441 U.S. 369, 373 (1979). Hussain contends that his difficulty understanding the English language made it impossible for him to waive his Miranda rights effectively.

I am satisfied by the evidence that Hussain knowingly, intelligently and voluntarily waived his rights and agreed to cooperate with the agents. I find the following facts:

When Hussain's flight from London landed at Logan Airport, he had to pass through Customs. Consistent with normal customs procedures, Hussain had an encounter with a Customs inspector, Donald Curtin, who asked him a number of questions in English to which Hussain gave responsive answers. He had no apparent difficulty in filling out a Customs declaration form that was written in English.

After suspicion had specifically focused on Hussain, Special Agent Lenzie advised Hussain of his Miranda rights and presented a form, written in English, for Hussain to sign. Lenzie testified, credibly, that Hussain appeared to understand his questions in English, and that Hussain responded in English. Nevertheless, Lenzie also enlisted the assistance of an employee of Lufthansa Airlines who worked at the airport, Bhanucumar Das, to act as an ad hoc translator. Das, a native of India, spoke to Hussain in Hindi. Although Hussain speaks Punjabi and Urdu, languages of his native Pakistan, and does not speak Hindi, according to Das's testimony there is a sufficient similarity between Hindi and Urdu that a speaker of one has some ability to understand the other. In any event, Das testified that Hussain mostly answered him in English. With Das's assistance, Lenzie went through each of the sentences on the Miranda form one by one and asked whether Hussain understood each in turn, and Hussain said that he did. Demonstrating an understanding not only of the meaning of the English words but also their significance, Hussain asked Lenzie if he would be able to terminate any questioning once he had begun to answer questions, and Lenzie told him he could. Hussain did not at any time object that he did not understand, or that he was having difficulty following either Lenzie's English or Das's Hindi translations, or that he was otherwise confused or uncertain. He signed the written waiver, and his signature was witnessed by Lenzie, a second Customs agent, and Das.

After the interrogation at the airport, Hussain voluntarily accompanied the agents to a hotel for the night. The agents continued to converse successfully with him in English. As noted above, the next day Hussain appeared before a magistrate judge. He responded to the magistrate judge's questions in English, though the transcript indicates his English was somewhat halting, and made no protest about an inability to understand.

I have also listened to the audio tape recording of the initial appearance before the magistrate judge. Though Hussain's English is less than fluent and heavily accented, it is not quite as poor as the transcript in some places indicates. The tape supports the conclusion that Hussain knew English well enough to follow the colloquy intelligently.

After his release to the custody of the agents, he went with them to New Jersey to try to accomplish the controlled delivery of the heroin. Throughout, he gave no indication of an inability to comprehend what the agents were saying to him in English. Agent Lenzie even instructed him as to what he should say when he called the contact in Pakistan who was directing the delivery of the drugs, and Hussain wrote down Lenzie's proposed script in English in his own handwriting on a pad. His note was in evidence. Govt.'s Ex. 4. Throughout the events of September 12 and 13, Hussain behaved in a way fully consistent with his having understood English sufficiently to appreciate the meaning and significance of what he heard and read.

Hussain's testimony that he did not write the English himself, but merely copied over in his own handwriting words that Lenzie had written on a pad is unbelievable. The two men were together in a hotel room, and if Lenzie had written the English script on a pad, the easiest thing for him to do would have been simply to hand Hussain the pad so he could refer to it as he spoke to the man in Pakistan. There would have been no purpose to Hussain's copying Lenzie's notes in English onto a second pad. It might have made sense for Hussain to have separately written down an Urdu or Punjabi version of what Lenzie had written in English, since the telephone conversation was to be in one of those languages. But it made no sense for Hussain simply to write a second copy of the English words. Moreover, the note contains grammatical and spelling errors that it is unlikely Lenzie would have made. On the contrary, the manner of expression of the phrases in the note is fully consistent with Hussain's having made notes as Lenzie spoke. Interestingly, even Hussain's version implies that he had the sufficient understanding of English to read the words on the pad and translate them to Urdu or Punjabi for purposes of the telephone conversation.

At the hearing on the motion to suppress, Hussain presented the testimony of an expert in theoretical linguistics, Professor Flynn, who offered the opinion that Hussain's ability to speak or understand English was comparable to that of a three-year-old first language learner. She further testified to her opinion that he did not understand the Miranda warnings in English or other important aspects of what the agents were saying to him.

I have considered Professor Flynn's evidence carefully, but I am not persuaded by it to conclude that Hussain was unable to understand English sufficiently to know and appreciate the meaning and significance of his consent to interrogation and cooperation. Her minimization of Hussain's ability to comprehend English is belied not only by Hussain's behavior during the interrogation, but by other evidence that Professor Flynn probably was unaware of when she formed her opinion. Besides the events of September 12 and 13 as they appeared from the evidence of other witnesses, there was additional evidence that Hussain was able to understand English well enough to communicate as necessary. A Pretrial Services Officer who interviewed Hussain after his arraignment testified that Hussain answered all his questions in English. He was also interviewed in English when he was processed at the Wyatt Detention Center, and in response to a specific question by a staff member there he answered that he could read and write English. See Def.'s Ex. 10, "Mental Health Assessment/Evaluation." Moreover, the health records from the detention facility contain a number of notes in English that it may be inferred were written by Hussain seeking attention to various matters, such as requests for medicine and dental care. See Def.'s Ex. 10.

The testimony did not explore the question, but it seems reasonable to think there is a pertinent distinction to be observed between the language ability of a three-year-old and the intellectual ability of a three-year-old. I take it that Professor Flynn's opinion about Hussain referred to limited language ability in a person of mature intellectual ability. The comparison of a mature person with limited language ability to a immature child with both limited language and intellectual ability is not very helpful. Among other things, the mature person will recognize the language limitation and, if it is important to do so, make it known and seek a strategy for correcting or compensating for it. Professor Flynn did not opine that a person of mature intellectual ability who had a three-year-old's language ability would be unable to make his difficulty in understanding known to the people trying to communicate with him.

The inference is based on the content of the notes and on the similarity of the handwriting to the note that he acknowledged was written by him. Govt.'s Ex. 4.

It is important to note that Hussain is no naïf. He is a businessman and an experienced international traveler. He told Customs personnel that the purpose of his trip to the United States was to buy movies for distribution in Pakistan. It is virtually impossible to believe that a person such as Hussain would have meekly concealed the fact that he could not understand what the Customs officials were saying to him or what they were asking him to sign, if that was a fact. Hussain's responsive English answers to questions put by Lenzie (and before him Curtin), as well as the utter absence of any protest that he did not understand, leave me convinced that Hussain fully understood what Lenzie said to him and, in particular, what was written on the Miranda form.

At the hearing, Hussain offered two other reasons why this appearance of understanding on his part should be disregarded. First, he argued that as a citizen of Pakistan, he was familiar with oppressive police tactics commonly employed in that country, and he kept his lack of understanding of his rights to himself because he feared the agents would beat him if he did not do what they asked him to do. In support of this cultural argument, he also presented the testimony of an expert in Indo-Muslim culture, who confirmed the characterization of police practices in Pakistan as arbitrary and oppressive.

A necessary premise of this argument is that a man of Hussain's experience and station would have assumed that police practices in the United States were — as a general matter, since that is what he asserts — as oppressive as those in Pakistan. That premise is not self-evidently true, any more than it is self-evident that an American traveler would assume that the criminal justice regime of another country would be the same as our own. It is at least as likely that such a person would not make such an assumption. Hussain asserted it was true — that he did fear that the Customs agents would be as brutal and arbitrary as police he was familiar with in Pakistan — but his testimony, on this topic and on most others, was not credible.

Hussain made a couple of attempts to bolster the theory by giving concrete examples of how the Customs agents bullied or mistreated him. He testified that while he was being questioned in a relatively small interrogation room, one of the agents took out his pistol and put it on the table where both the agents and Hussain were sitting. That testimony is incredible, not so much because it is hard to imagine an agent having an intent to intimidate, which is what Hussain suggests, but because such reckless handling of a weapon would be contrary to the agent's training, good sense, and self interest. Similarly, Hussain's testimony that he was strip searched and left naked for an extended period is not credible. Inspector Curtin described a thorough pat-down he gave Hussain while Hussain was fully clothed (except for his sport jacket) that was, as Curtin put it, "a little personal," but denied there was a strip search. Based on my evaluation of the testimony, I find Curtin's evidence credible, not Hussain's.

Second, Hussain argued that the effects of medication he took for a diabetic condition caused him to lack the cognitive ability to appreciate what was going on during his interview and subsequent interrogation by Customs officials. He presented the testimony of an expert on diabetes concerning the possible consequences of hypoglycemia on his ability to understand the significance of his waiver of rights.

The expert described generally the types of effects hypoglycemia might have, but he did not have a basis for a particular opinion about what Hussain's actual condition was on the afternoon of September 12, 2000, that did not depend on acceptance of Hussain's after-the-fact assertion that he had a "feeling of numbness in [his] head" while he was being detained at the airport. The expert's opinion was that Hussain "might very well have been experiencing the symptoms of hypoglycemia." Tr., April 25, 2001, at 37, 68. That is not a very probative opinion. It is a statement of possibility, not probability.

As a clinician, the expert might have been willing, in the absence of evidence to the contrary, to accept Hussain's assertion that he was feeling ill at the time. As finder of fact, I do not accept it as credible. First, I find that most of the material testimony given by Hussain was not credible. My judgment is that throughout his testimony he was providing the facts that were crucial to each expert's opinion because they were crucial, not because they were true. In addition, as with the question of his understanding of English, I accord significance to the complete absence of any protest by Hussain at the time of the events. He did not complain of feeling ill at the time, and in particular did not ask for food, which would have ameliorated any hypoglycemia brought on by his medication.

Finally, Hussain argues that the circumstances of the Customs detention were so coercive that his will was effectively overborne, with the consequence that his waiver of Miranda rights and subsequent cooperation were not truly voluntary. See Connelly, 479 U.S. at 167; United States v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990). As noted above, however, I reject as incredible Hussain's testimony that the agents attempted to intimidate him by brandishing a pistol or subjecting him to a humiliating strip search. There are no other circumstances credibly shown in the evidence upon which an inference of coercion could be based, and I draw no such inference.

I conclude that Hussain's waiver of rights was knowing and voluntary. Accordingly, his motion to suppress his statements made to the agents prior to his initial appearance before the magistrate judge must be denied.

B. Right to Counsel At and After Initial Appearance

Because the Customs interview and interrogation finished late in the afternoon on September 12, Hussain was not taken before a magistrate judge until the next day. On September 13, a criminal complaint charging Hussain with unlawful importation of heroin was issued, and he was brought before a magistrate judge for an initial appearance on that complaint, in accordance with Fed.R.Crim.P. 5.

Under Fed.R.Crim.P. 5(a), a person arrested without a warrant must be taken before a judicial officer "without unnecessary delay." Hussain does not argue that the overnight delay itself was unlawful.

At the hearing, the magistrate judge apprised Hussain of the charge against him and the potential penalty he faced. After the magistrate judge said to him, "You could go to jail for the rest of your life," Hussain began to ask, "So, if I cooperate with these people, then —" The magistrate judge interrupted and said, "I understand the reason we're having this hearing is that you indicated an intention to cooperate. . . . I can't tell you if that's going to help you or hurt you, and, frankly, that's none of my business. If you wish to cooperate with the Government . . . that's a matter between you and Agent Houghton and the Customs Service and the United States Attorney's office. . . . To what extent they give you any credit for that cooperation is, once again, a matter between Mr. Houghton — not Mr. Houghton — Ms. Schulman, the prosecutor . . . and you. I have no role in that at this time; do you understand that?" Hussain responded, "I understand that." Def.'s Ex. 12B at 4-5.

The magistrate judge asked the prosecutor for the Government's position on bail. The Assistant United States Attorney replied that the Government would move for detention and ask for a three-day continuance, pursuant to 18 U.S.C. § 3142(f). The prosecutor then said, "In this case, your Honor, the Government is, also, asking that this defendant be released to the custody of the United States Customs Service until such time as your Honor schedules that detention hearing." Def.'s Ex. 12B at 6.

The magistrate judge then explained to Hussain that "the first time you appear before a judge, such as me . . . the question is whether or not a defendant should be released on bail or whether or not that defendant has to stay in jail until trial." Hussain interrupted and asked, "If, if the Government that — if I, if you provide me a lawyer, then is possible for this bail?" The magistrate judge answered that Hussain would be represented by a lawyer at the detention hearing, and that after the hearing, the magistrate judge would decide whether to release him on bail or detain him. Hussain responded, "Oh, after that. . . . So, but this provide me a lawyer?" The magistrate judge replied, "Well, you'll need a lawyer, but the question is, you'll need a lawyer for that hearing, and we'll, if you can't afford a lawyer, we're going to give you a lawyer." After Hussain said that he did not have the money to afford a lawyer, the magistrate judge continued, "Okay. We'll get back to that. Right now, however, instead of asking me to put you in jail, the Government has requested that you be put in the custody, so to speak, of the United States Customs Service because you have indicated to them, or so I'm told, that you wish to cooperate." Id. at 7-8. There was some further colloquy, and Hussain reiterated that he was willing to cooperate with the Customs agents pending his reappearance for the detention hearing. Id. at 8-10.

Hussain now argues that any statements made after his initial appearance before the magistrate judge should be suppressed because he was denied his right to counsel guaranteed by the Fifth and Sixth Amendments to the United States Constitution.

Both Amendments serve to guarantee a criminal defendant's right to the advice and assistance of counsel in certain circumstances, but the substance and the doctrinal basis of each guarantee is different. See McNeil v. Wisconsin, 501 U.S. 171 (1991). The Fifth Amendment's protection against compelled self-incrimination gives a defendant or suspect the right to counsel in connection with a custodial interrogation by law enforcement officers. See Edwards v. Arizona, 451 U.S. 477 (1981); Miranda, 384 U.S.at 436. The Sixth Amendment's guarantee that a criminal defendant will have the assistance of counsel for his defense assures a right to counsel once a prosecution has been commenced, see McNeil, 501 U.S. at 175; United States v. Gouveia, 467 U.S. 180, 188 (1984), at every "critical stage" of the judicial proceedings. See Coleman v. Alabama, 399 U.S. 1, 7 (1970). The Supreme Court has made clear that the two guarantees, while similar and perhaps in some circumstances congruent, are distinct and require separate analysis. McNeil, 501 U.S. at 177.

1. Fifth Amendment Right to Counsel

The Fifth Amendment requires that before a suspect may be subjected to custodial interrogation, he must be advised, among other things, that he has the right to have counsel. Edwards, 451 U.S. at 481-82; Miranda, 384 U.S. at 479. A person so advised may waive that right and consent to the interrogation without counsel, so long as the waiver is given knowingly, intelligently and voluntarily. See Moran, 475 U.S. at 421. If a suspect wishes to have the assistance of counsel with respect to an interrogation after he has validly waived the right, the burden is on him to reassert it. See McNeil, 501 U.S. at 179. If he does so, interrogation must cease until counsel has been made available to him, or until he himself initiates the encounter. Edwards, 451 U.S. at 484-85; see also Minnick v. Mississippi, 498 U.S. 146, 146 (1990).

As discussed in the first part of this opinion, Hussain effectively waived his Miranda rights and voluntarily consented to cooperate with the Customs agents. He contends, however, that his colloquy with the magistrate judge should be understood as a request for counsel to assist him as he carried out that cooperation. It was certainly not an unambiguous request, and in the absence of an unambiguous request for counsel, the prior waiver of counsel for the agents' interrogation continued to be effective for Fifth Amendment purposes. Davis v. United States, 512 U.S. 452, 459-62 (1994); see also Bui v. DiPaolo, 170 F.3d 232, 239-40 (1st Cir. 1999).

Of course, the ambiguity called for resolution. When the defendant raised the question of counsel, even if it seemed to pertain to the expected detention hearing and not his cooperation, it would have been preferable for the authorities — whether the magistrate judge himself, the prosecutor, or the agents — to have clarified the defendant's state of mind on the question. See Davis, 512 U.S. at 461. If, as the Government contends, the decision to cooperate was still the defendant's voluntary choice, there could not have been any harm in asking him to confirm that.

In fact, however, he did confirm it, although the confirmation also was not unambiguous. At the end of his colloquy with the magistrate judge, Hussain reiterated his willingness to cooperate with the agents. Def.'s Ex. 12B at 9-10. Under all the circumstances, I conclude that, in light of his prior effective waiver and consent, and in the absence of an unambiguous request for counsel with respect to any resumed interrogation, there was no violation of Hussain's right to counsel as guaranteed by the Fifth Amendment by reason of continued custodial interrogation.

2. Sixth Amendment Right to Counsel

"The Sixth Amendment right to effective assistance of counsel inheres at all `critical stages' of a criminal proceeding unless competently waived." United States v. Sanchez-Barreto, 93 F.3d 17, 20 (1st Cir. 1996). The Sixth Amendment right to counsel "is not contingent upon a request by the defendant; rather, `we presume that the defendant requests the lawyer's services at every critical stage of the prosecution.'" Id. (quoting Michigan v. Jackson, 475 U.S. 625, 633 n. 6 (1986)).

The pivotal question in this case is whether Hussain's initial appearance before the magistrate judge ought to be characterized as a "critical stage" of the prosecution against him. If it is so characterized, then Hussain was entitled to the assistance of counsel whether he requested it or not, unless he unequivocally waived it.

Some support for the conclusion that an initial appearance can be considered a "critical stage" of a criminal case is found in Fed.R.Crim.P. 44(a), which provides: "Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent that defendant at every stage of the proceedings from initial appearance before the federal magistrate judge or the court through appeal, unless the defendant waives such appointment." Taken literally, the rule "entitles" a defendant to the presence of counsel at the initial appearance. On the other hand, the rule can also be read as primarily addressing the administrative matter of the appointment of counsel for indigent defendants, rather than the scope of any defendant's right to the assistance of counsel. The Advisory Committee Notes indicate that the rule is intended to reflect, not expand, the scope of the Sixth Amendment right to counsel.

The case law on the precise question at hand is sparse. The government says that it is "well-pleaded" that an initial appearance is not a "critical stage" of a prosecution such that the Sixth Amendment right to counsel attaches, citing two cases from other circuits. Such limited authority hardly makes the matter "well-settled," even if the two cases can be read as endorsing the broad principle that an initial appearance can never be considered a "critical stage" of the proceedings for Sixth Amendment purposes. I do not think the cases cited establish any such categorical rule.

In United States v. Perez, 776 F.2d 797, 800 (9th Cir. 1985), the court found the Sixth Amendment right to counsel had not attached at a non-adversarial initial appearance at which the indictment was read and the defendant was asked his name. In United States v. Mendoza-Cecelia, 963 F.2d 1467, 1474 (11th Cir. 1992), the court found no violation of the Sixth Amendment right to counsel where an unrepresented defendant "without prompting" made damaging admissions to the magistrate judge at an initial appearance. The court characterized the initial appearance as "largely administrative." Id. at 1473. Significantly, in each case, the court emphasized that the defendant had been given Miranda warnings in the course of the appearance, which did not occur at Hussain's appearance. See Perez, 776 F.2d at 799-800; Mendoza-Cecelia, 963 F.2d at 1473.

The Supreme Court's formulations of the Sixth Amendment right have not specifically addressed whether a rule 5 initial appearance may or should be considered a "critical stage" of a criminal prosecution. The Court has said that the right attaches "at or after the initiation of adversary judicial proceedings against the defendant." Gouveia, 467 U.S. at 187. That formulation certainly does not rule out the attachment of the right at an initial appearance. It could even be read to require it, because with the issuance of the complaint, "adversary judicial proceedings" have been initiated.

The Court's elaboration of the policies underlying its Sixth Amendment jurisprudence is instructive. In United States v. Wade, 388 U.S. 218, 227 (1967), the Court recognized a judicial obligation to "scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial. . . . [and] to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." (emphasis in original).

In Wade, the Court held that the defendant was entitled to the presence of counsel at a pretrial identification lineup. The defendant in that case had counsel, and the question was whether he was entitled to have his lawyer present at the lineup. While Wade did not concern a temporal element — when the Sixth Amendment right first attaches — it is pertinent in its evaluation of what kinds of "confrontations" should be considered "critical stages" of the proceedings.

The Court has repeatedly expressed concern that uncounseled persons may, because of a lack of understanding of either the formal or informal aspects of prosecutions, make decisions prejudicial to their interests that they would not have made if counseled. "[A]fter a formal accusation has been made — and a person who had previously been just a `suspect' has become an `accused' within the meaning of the Sixth Amendment — the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation." Jackson, 475 U.S. at 632. Once a prosecution has begun, the Court has noted, the defendant "finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." Kirby v. Illinois, 406 U.S. 682, 689 (1972). The "assistance of counsel" that the Sixth Amendment guarantees is needed "when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U.S. 300, 309 (1973).

The intricacies facing an uncounseled defendant pertain importantly not only to the trial process of determining guilt or innocence, but also to the post-conviction determination of sentence. Indeed, "intricacies" seems a particularly apt word to describe the reticulated (and to a lay person, abstruse) provisions of the United States Sentencing Guidelines.

These principles lead to the conclusion that Hussain's right to the assistance of counsel under the Sixth Amendment attached at his initial appearance before the magistrate judge. The initial appearance occurred "at or after the initiation of adversary judicial criminal proceedings." Gouveia, 467 U.S. at 188. At the initial appearance, Hussain found himself "confronted with both the intricacies of the law and the advocacy of the public prosecutor." Ash, 413 U.S. at 309. The prosecuting attorney asked the magistrate judge to release Hussain to the custody of the Customs agents in lieu of detaining him pending his arraignment and a detention hearing. Hussain was called upon to decide whether to accompany the agents or accept detention in jail. Though he was told he would have a lawyer for the later detention hearing, the implication by omission of that advice could easily have been understood by him to mean that he did not have the right to counsel concerning his decision whether to cooperate.

The question is not whether Hussain's decision to cooperate and be released to the agents' custody was a good or bad decision for him. Nor is the question whether his decision was voluntary in the way necessary for Fifth Amendment purposes. Rather, the question is whether, because of the setting and circumstances under which he was asked to make it, the decision was one as to which the Sixth Amendment guaranteed him the assistance of counsel. The answer to that question, I am satisfied, is affirmative.

The Supreme Court's decision in Patterson v. Illinois, 487 U.S. 285 (1988), does not detract from this analysis because of a crucial factual difference from the present case.
In Patterson, after he was indicted, the defendant had waived his Miranda rights and confessed his participation in the crime first to a police officer and then to a state's attorney. At the time he had not been appointed a lawyer, and he had not requested one. The Court concluded that his knowing and voluntary waiver was adequate to waive his Sixth Amendment right to counsel with respect to the interrogations, as well as his Fifth Amendment right, even though the Sixth Amendment right had not been specifically called to his attention.
Though the Sixth Amendment right attached when he was indicted, the right was waivable. Before the post-indictment interrogation, the police and prosecutor advised him of his Miranda rights, including the right to have counsel during the interrogation, and he voluntarily waived that right. It was not significant, the Court concluded, that he was not told explicitly that the Sixth Amendment, as well as the Fifth Amendment, guaranteed him the right to counsel. What was important was that as a matter of fact, he had considered whether to "face the State's officers during questioning with the aid of counsel, or go it alone. If an accused `knowingly and intelligently' pursues the latter course, we see no reason why the uncounseled statements he then makes must be excluded at trial." Patterson, 487 U.S. at 291.
The defendant in Patterson unambiguously waived his right to counsel after his Sixth Amendment right had attached. In this case, there was no waiver after the Sixth Amendment right had attached. Once it attaches, a waiver of a defendant's Sixth Amendment right must be unambiguous. Sanchez-Barreto, 93 F.3d at 20; see also McNeil, 501 U.S. at 179. Patterson neither says nor implies that waiver of Fifth Amendment Miranda rights by a suspect prior to the initiation of the criminal case is sufficient to waive the defendant's Sixth Amendment right to the assistance of counsel at critical stages of judicial proceedings when it later attaches. See Jackson, 475 U.S. at 632. Hussain's prior waiver, while still effective for Fifth Amendment purposes, was not clear enough to waive the newly attached Sixth Amendment right.

To resolve the present motion it is unnecessary to decide, and I do not, whether the right to counsel under the Sixth Amendment attaches at every initial appearance. The Supreme Court has required analysis of the particular circumstances of each case to determine whether the event under scrutiny should be characterized as a "critical stage" of the proceedings. See Coleman, 399 U.S. at 7.

Unlike many cases, Hussain did not suffer an immediate prejudice from the Sixth Amendment violation. There is no judicial action to be vacated and redone. Rather, the prejudice to him is prospective — the potential use of information obtained by the Government as a consequence of his uncounseled decision to consent to cooperate with the agents rather than be detained in jail. That prejudice can be avoided by precluding the Government from using such evidence against him at his trial.


For the reasons set forth above, the defendant's motion to suppress custodial statements he made to agents prior to his initial appearance before the magistrate judge is DENIED. His motion to suppress statements made after the initial appearance is GRANTED.