United States of America v. Mark Moody

*This decision was originally issued as an “unpublished decision”
filed on January 25, 2000.
**The Honorable Thomas A. Wiseman, Jr., United States District
Judge for the Middle District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0088P (6th Cir.)
File Name: 00a0088p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellant,
v.
M ARK M OODY ,
Defendant-Appellee.
;>

1
No. 98-6142
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
Nos. 93-00035; 97-00024—Thomas G. Hull,
District Judge.
Argued: September 24, 1999
Decided and Filed: January 25, 2000*
Before: MERRITT and CLAY, Circuit Judges;
WISEMAN, District Judge.**

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2 United States v. Moody No. 98-6142
_________________
COUNSEL
ARGUED: Michael E. Winck, ASSISTANT UNITED
STATES ATTORNEY, Knoxville, Tennessee, for Appellant.
Nikki C. Pierce, ASSISTANT FEDERAL COMMUNITY
DEFENDER, FEDERAL DEFENDER SERVICES,
Greeneville, Tennessee, for Appellee. ON BRIEF: Michael
E. Winck, ASSISTANT UNITED STATES ATTORNEY,
Knoxville, Tennessee, for Appellant. Nikki C. Pierce,
ASSISTANT FEDERAL COMMUNITY DEFENDER,
FEDERAL DEFENDER SERVICES, Greeneville,
Tennessee, for Appellee.
CLAY, J., delivered the opinion of the court, in which
MERRITT, J., joined. WISEMAN, D. J. (pp. 13-17),
delivered a separate concurring opinion.
_________________
OPINION
_________________
CLAY, Circuit Judge. The government appeals from the
district court’s order denying reconsideration of its order
granting Defendant Mark Moody’s motion to vacate, correct,
or set aside his sentence pursuant to 28 U.S.C. § 2255. The
government also appeals the district court’s orders
resentencing Moody to sixty months of imprisonment for
conspiracy to distribute cocaine in violation of 21 U.S.C.
§ 846. For the reasons set forth below, we REVERSE the
judgment of the district court.
I.
During the late 1980s and early 1990s, Moody participated
in a conspiracy to deal cocaine with two other men. Under
their arrangement, Moody provided one of the men with the
funds to pay for the cocaine, and he would acquire cocaine in
Florida and transport it back to Tennessee. Moody acquired

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No. 98-6142 United States v. Moody 3
1Moody admitted that during the last six months of the conspiracy,
his co-conspirator brought back at least twelve kilograms of cocaine for
distribution by the conspirators.
approximately one-quarter kilogram of cocaine per month for
resale.
On February 2, 1993, agents of the Federal Bureau of
Investigation (“FBI”) executed twenty-five search warrants on
targets of its investigation into this conspiracy, including
Moody’s home and business. The FBI seized one kilogram of
cocaine during these searches, and obtained information
linking Moody to that cocaine. Shortly after the execution of
the search warrants, Moody approached the FBI and offered
to cooperate with FBI agents in their investigation of the drug
conspiracy. During six interviews conducted in February and
March of 1993, Moody, without the assistance of counsel,
voluntarily provided FBI agents with information about the
roles of others in the conspiracy and made numerous self-
incriminating statements.1 The Assistant United States
Attorney for the Eastern District of Tennessee was present
during the first and last of these debriefings.
During their interviews of Moody, government attorneys
offered Moody a deal in which the government would limit
his exposure to a maximum of five years of imprisonment if
Moody agreed to plead guilty to conspiracy in connection
with the one kilogram of cocaine seized by FBI agents on
February 2, 1993, and agreed to continued cooperation,
including testifying at trial. When Moody expressed a
reservation about this, the Assistant United States Attorney
and the FBI Special Agent stated that the offer from the
government was a “good deal,” and also suggested that
Moody seek the advice of an attorney. Moody sought the
services of attorney Richard W. Pectol, paying him $5,000.
Pectol contacted the government for the first time more than
a month later, rejecting the offer on Moody’s behalf. Pectol
did not inquire into the substance of the interviews or the
nature of Moody’s admissions, nor did he obtain copies of
the FBI reports memorializing the interviews.

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4 United States v. Moody No. 98-6142
The government indicted Moody on June 23, 1993,
charging him with conspiring to distribute cocaine in
violation of 21 U.S.C. § 846 and related offenses. By the
time of the indictment, the government had information that
the conspiracy involved eighteen kilograms of cocaine.
Moody again hired Pectol to represent him, and paid him an
additional $10,000. Moody, who was serving time in the
Sullivan County jail for a state misdemeanor charge, had little
to no contact with Pectol. In January of 1994, Pectol advised
Moody that he should plead guilty to the indictment because
there was no way to overcome the self-incriminating
statements Moody had made during his voluntary FBI
interviews. Two of Moody’s co-defendants had also pleaded
guilty to the cocaine conspiracy. Moody entered into a plea
agreement with the government, pleading guilty to the § 846
cocaine conspiracy.
Prior to sentencing, Moody replaced Pectol with attorney
David Beck. Given the increased drug quantity now
attributable to the conspiracy, the Sentencing Guidelines
range for his conviction was from 235 to 293 months of
imprisonment. At sentencing, the government sought a
downward departure for a sentence of 168 months of
imprisonment, stating that the information Moody had given
“assisted the United States in framing the indictment in this
matter and in identifying the various players and their roles.”
The government also credited Moody with providing
information after he gave his plea that was useful in its
indictment of other individuals. The district court granted the
motion for downward departure, and imposed a sentence of
120 months of imprisonment, five years supervised release,
and a special assessment of $50. Following sentencing,
Moody continued to cooperate with the government, agreeing
to testify against other conspirators and actually twice
testifying for the government in its case against the Florida
supplier. Moody did not file a direct appeal.
Moody filed a motion to vacate, set aside, or correct his
sentence with the district court pursuant to 28 U.S.C. § 2255,
alleging that he was deprived of his constitutional rights by
No. 98-6142 United States v. Moody 17
appropriately be considered to be parts of the trial itself”).
The criminal justice system has and is changing so that
defendants now face critical stages of their prosecutions prior
to indictment. The Sixth Amendment’s underlying purpose
is to protect defendants in critical stages of their prosecution.
Thus, the Sixth Amendment should guarantee the right to
counsel during preindictment plea negotiations. Precedent,
however, prevents me from endorsing this position which
logic demands.
I would urge the Supreme Court to reconsider its bright line
test for attachment of the Sixth Amendment right to counsel
enunciated in United States v. Kirby, 406 U.S. 682 (1972),
and United States v. Gouveia, 467 U.S. 180 (1984).

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16 United States v. Moody No. 98-6142
reasons—greater control over the eventual sentence. Gardner
and Rifkind, supra, at 16. For example, plea bargains (pre-
and postindictment) can stipulate both the quantity of a
controlled substance for which the defendant will be held
accountable and the “relevant conduct” that the court may
consider during sentencing. Both of these factors can play a
major role in determining the eventual sentence of a
defendant who, like Mr. Moody, is charged with conspiracy
to distribute illegal drugs.
The incentives to bargain over charges and facts only add
to the already abundant pressure to bargain with prosecutors
as soon as possible in drug conspiracy cases. In practical
terms, drug conspiracy cases have become a race to the
courthouse. When a conspiracy is exposed by an arrest or
execution of search warrants, soon-to-be defendants know
that the first one to “belly up” and tell what he knows receives
the best deal. The pressure is to bargain and bargain early,
even if an indictment has not been filed.
To the extent that preindictment plea bargaining
undermines the intent of Congress as expressed in the
Guidelines, it is not to be condoned. Regardless of its virtue,
such bargaining does occur and will likely continue due to its
advantages for both prosecutors and defendants. While
preindictment plea bargaining continues, it remains a perilous
encounter for defendants. Defendants, or—more
formally—potential defendants, are faced with the loss of
liberty and property. They are faced with a complicated
procedural system and a more knowledgeable adversary. Cf.
Gouveia, 467 U.S. at 189. In short, these defendants need and
should be entitled to counsel in order to navigate these
troubled waters.
The Sixth Amendment right to counsel historically has
evolved to meet the challenges presented by a changing legal
paradigm. See Ash, 413 U.S. at 310 (noting that the extension
of the Sixth Amendment right to counsel resulted from
“changing patterns of criminal procedure and investigation
that have tended to generate pretrial events that might
No. 98-6142 United States v. Moody 5
2The district court found that by the time the government made its
five-year offer, Moody had revealed that the conspiracy transported at
least twelve kilograms of cocaine, and that these admissions alone had
exposed him to at least a ten-year mandatory sentence. The district court
further found that by his admissions, Moody had confessed to more than
twenty-four times the amount of cocaine necessary to fall within a five
year sentencing range.
the ineffective assistance of counsel. Moody attacked the
conduct of Pectol during his first plea negotiation and the
failure of Beck to object to the district court’s reliance on
certain relevant conduct information at sentencing.
The district court held an evidentiary hearing on the § 2255
motion. In an order dated February 6, 1998, the district court
found that Pectol had provided ineffective assistance to
Moody during plea negotiations in early 1993; that but for this
ineffective assistance, Moody would not have rejected the
government’s first offer of a plea agreement; and that Moody
had suffered prejudice by his subsequent exposure to a
substantially higher sentence.2 The district court held that the
appropriate remedy for this violation was to resentence him
in accordance with the original plea agreement. The
government filed a motion for reconsideration on the grounds
that the Sixth Amendment right to counsel does not apply to
pre-indictment negotiations.
Upon reconsideration, the district court affirmed its
conclusion that the Sixth Amendment right to counsel did
apply in this case, and denied the government’s motion. The
district court held another evidentiary hearing, and
resentenced Moody to a term of five years of imprisonment.
The government appealed to this Court.

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6 United States v. Moody No. 98-6142
3We note, however, that in light of our ruling as set forth in this
opinion, the government’s failure to appeal the district court’s ruling as
to Pectol is of no consequence.
II.
In this appeal, the United States challenges only two of the
district court’s rulings. First, the government attacks the
district court’s decision to deny its motion for reconsideration
on the grounds that the Sixth Amendment right to counsel did
not attach during Moody’s plea negotiations with the
government. Second, the government attacks the district
court’s decision to impose the original five-year plea
agreement as a remedy for the ineffective assistance of
counsel. The government does not appeal the finding of the
district court that Pectol provided ineffective assistance of
counsel to Moody under the two-prong test of Strickland v.
Washington, 466 U.S. 668 (1984), and therefore, we do not
address that issue.3
Whether the Sixth Amendment right to counsel attaches in
pre-indictment plea negotiations is a question of law that we
review de novo. See United States v. Latouf, 132 F.3d 320,
330 (6th Cir. 1997); United States v. Doherty, 126 F.3d 769,
777-78 (6th Cir. 1997).
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.” U.S. Const. amend.
VI. Courts recognize that the Sixth Amendment right to
counsel rests on the nature of the confrontation between
defendant and government. The Supreme Court has noted
that the “core purpose” of the Sixth Amendment right to
counsel is to guarantee assistance at trial, “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 Supreme Court has consistently
held that an accused has the right to the effective assistance of
counsel at the “critical stages” in the criminal justice process.
United States v. Wade, 388 U.S. 218, 224 (1967); see Maine
No. 98-6142 United States v. Moody 15
bargaining.
2In 1988, 1989, and 1990 the percentage of convictions obtained by
pleas did decrease each year from a high of 87.479 in 1987 to a low of
86.575 in 1990. As noted above, however, since 1990, the percentage of
convictions obtained by pleas has increased every year. This eight year
increase is the longest span of continual yearly increases in percentage of
convictions by pleas since at least 1945. See Sourcebook [Online], Table
5.21.
pleas relative to the number of overall cases and the number
of convictions has risen during the Guidelines era.2 The
Guidelines’ role in this overarching trend, although not
irrelevant, is immaterial. What is material, however, is the
Guidelines’ role in pressuring prosecutors and defendants to
engage in plea bargaining ever earlier in the criminal process.
As early as 1992 commentators noted that the Guidelines
provide an incentive to engage in pre-indictment plea
bargaining. See David N. Yellen, Two Cheers for a Tale of
Three Cities, 66 S. Cal. L. Rev. 567, 569-70 (1992); William
L. Gardner, David S. Rifkind, A Basic Guide to Plea
Bargaining 7-SUM Crim. Just. 14, 16 (1992). Some studies
indicate that a considerable amount of preindictment plea
bargaining already occurs. See Yellen at 569.
Under the Guidelines, both defendants and prosecutors
benefit from engaging in such bargaining. Preindictment plea
bargaining over charges and facts provides Assistant United
States Attorneys (“AUSAs”) enormous discretion because
such bargaining is much less susceptible to review by
supervisors or courts. See Yellen, supra, at 569-70. Through
such bargaining, AUSAs can more effectively determine the
potential sentence for a defendant. See id.; Gardner and
Rifkind, supra, at 16. By agreeing on the charges to be filed
against the defendant, the prosecutors avoid having to draw
both the court’s and the probation officer’s attention to facts
relevant to other (potential) charges not pleaded to which
might require higher sentencing levels under real offense
sentencing. See Yellen, supra, at 569-70. Defendants also
favor preindictment plea negotiations for basically the same

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14 United States v. Moody No. 98-6142
1It is worth noting that 1948-1952 and 1964-1965 are the only other
consecutive years in which pleas accounted for more than 90% of
convictions. Additionally, 1951 had the highest percentage of all cases
decided by pleas at 83.411%. See Sourcebook [Online], Table 5.21.
Thus, factors other than the Guidelines could (and probably do) favor plea
Richardson, 397 U.S. 759 (1970), the Court indicated that a
defendant had the right to effective assistance of counsel in
his decision to plead guilty. Similarly, in Hill v. Lockhart,
474 U.S. 52, 57 (1985), the Supreme Court indicated that a
defendant had the right to effective assistance of counsel
during the plea process. Finally, the Sixth Circuit made clear
that Sixth Amendment protections also extend to defendants
who decide to reject a plea agreement and stand trial. See
Turner v. Tennessee, 858 F.2d 1201, 1205 (1988), vacated on
other grounds, 492 U.S. 902 (1989). Federal courts have left
no doubt about the importance of plea bargaining in our
system.
What precedent does not do and, thus, constrains us from
doing is formally recognizing that preindictment plea bargains
are just as critical as postindictment plea bargains. Yet, the
Federal Sentencing Guidelines have substantially increased
the importance of preindictment plea bargaining. In terms of
percentages, the number of pleas continues to rise. Each year
since 1990 the percentage of all convictions represented by
pleas of guilty or nolo contendere has increased. See
Kathleen Maguire and Ann L. Pastore, eds. (1999)
Sourcebook of Criminal Justice Statistics 1998 [Online],
Table 5.21(available at http://www.albany.edu/sourcebook)
(visited 11 January 2000). In 1990, 40,452 people pleaded
guilty or nolo contendere; in 1998, 56,256 people so pleaded.
These numbers represent 86.575% and 93.940% of all
convictions during those respective years. The vast majority
of these pleas are the products of plea agreements. See Stith
and Cabranes, supra, at 130.
The Guidelines may or may not have an effect on the trend
of increasing pleas and the concomitant increase in
importance of plea bargains.1 Certainly the percentage of
No. 98-6142 United States v. Moody 7
v. Moulton, 474 U.S. 159, 170 (1985). That right has been
extended to certain pretrial proceedings that “might
appropriately be considered parts of the trial itself,” when the
defendant is “confronted, just as at trial, by the procedural
system, or by his expert adversary, or by both.” Ash, 413 U.S.
at 310. As the Court recognized in Wade, “today’s law
enforcement machinery involves critical confrontations of the
accused by the prosecution at pretrial proceedings where the
results might well settle the accused’s fate and reduce the trial
itself to a mere formality.” 388 U.S. at 224. In reliance upon
this line of reasoning, the district court concluded that the plea
negotiations between Moody and the government in February
and March of 1993 were a “critical stage” of the proceedings
against him, and that therefore Moody possessed a Sixth
Amendment right to counsel when he consulted Pectol for
advice on whether to accept the government’s offer.
Although logic, justice, and fundamental fairness favor the
district court’s position, more recent Supreme Court and Sixth
Circuit cases have interpreted these principles to find that
“critical stages” of criminal proceedings begin only after the
initiation of formal judicial proceedings.
The Supreme Court and this Circuit have reduced the Sixth
Amendment right to counsel to a bright line test; the Supreme
Court has identified with particularity the stages of a criminal
proceeding which are “critical” and thus implicate the right to
counsel. As was noted in United States v. Gouveia, the Court
has now adopted a stance that “foreclose[s] the possibility that
the right to counsel might under some circumstances attach
prior to the formal initiation of judicial proceedings.” 467
U.S. 180, 193 (1984) (Stevens, J., concurring). In Kirby v.
Illinois, 406 U.S. 682, 688 (1972), a plurality of the Supreme
Court recognized that “a person’s Sixth and Fourteenth
Amendment right to counsel attaches only at or after the time
that adversary judicial proceedings have been initiated against
him.” In Gouveia, the Court reaffirmed this bright line test,
holding that “the right to counsel does not attach until the
initiation of adversary judicial proceedings” such as “formal
charge, preliminary hearing, indictment, information, or
arraignment.” 467 U.S. at 188 (citing Kirby, 406 U.S. at 688-

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8 United States v. Moody No. 98-6142
89). The Court continued, “[i]t is only at that time ‘that the
government has committed itself to prosecute, and only then
that the adverse positions of the government and defendant
have solidified.’” Id. at 189 (citing Kirby, 406 U.S. at 689).
Similarly, in Moran v. Burbine, 475 U.S. 412, 430 (1986),
the Supreme Court stated that the Sixth Amendment right to
counsel “becomes applicable only when the government’s
role shifts from investigation to accusation.” The Court
continued, stating that “looking to the initiation of adversary
judicial proceedings, far from being mere formalism, is
fundamental to the proper application of the Sixth
Amendment right to counsel.” Id. at 431. The Court in
Moran rejected arguments that confessions elicited during
police interrogation about crimes not yet charged may well
seal a suspect’s fate, and therefore, the need for an advocate
is great, and noted that it had rejected such arguments before.
See id. at 431-32; compare Kirby, 406 U.S. at 682 (no Sixth
Amendment right to counsel in a pre-indictment line-up); and
Hoffa v. United States, 385 U.S. 293, 308 (1966) (no Sixth
Amendment right to counsel attaches for statements made
post-indictment about a separate uncharged offense); with
United States v. Wade, 388 U.S. 218, 226-27 (1967) (Sixth
Amendment right to counsel attaches to post-indictment line-
up); and Massiah v. United States, 377 U.S. 201, 205-06
(1964) (Sixth Amendment right to counsel attaches to post-
indictment statements about offense with which defendant is
charged).
The Supreme Court’s holding that the Sixth Amendment
right attaches only “at or after the initiation of judicial
criminal proceedings – whether by way of formal charge,
preliminary hearing, indictment, information, or
arraignment,” Kirby, 406 U.S. at 689, is a bright line test; it is
a mandate that “the Sixth Amendment right to counsel does
not attach until after the initiation of formal charges.”
Burbine, 475 U.S. at 431. In light of the Supreme Court’s
stance on this issue, it is beyond our reach to modify this rule,
even in this case where the facts so clearly demonstrate that
the rights protected by the Sixth Amendment are endangered.
No. 98-6142 United States v. Moody 13
_______________________
CONCURRENCE
_______________________
WISEMAN, District Judge, concurring. I concur in Judge
Clay’s excellent opinion in all respects. As Judge Clay makes
clear, justice would be better served if Mr. Moody could be
given the benefit of the bargain he rejected due to the
ineffective assistance of his counsel. Yet, the rule of
law—the greater good of stability within the law—requires
that we follow the trail blazed by the Supreme Court and hold
that without the formal initiation of adversarial proceedings,
Mr. Moody was not constitutionally entitled to the effective
assistance of counsel under the Sixth Amendment.
I write separately only to emphasize the pressures that the
Federal Sentencing Guidelines have brought to bear on the
criminal justice system and why such pressures make our
rigid application of Supreme Court precedent a reluctant
application. Numerous commentators have observed and
written on the complexity of the Sentencing Guidelines, so
there is no need to do so here. Likewise, there is little need to
comment on the discretion the Guidelines provide federal
prosecutors. Thus, I will limit my comments to how the
Guidelines pressure the criminal procedural system towards
preindictment plea bargaining.
Plea bargaining is central to federal criminal law. See, e.g.,
Kate Stith and José A. Cabranes, Fear of Judging 130 (1998).
By extending the protections of the Sixth Amendment right to
counsel to plea negotiations, federal courts have recognized
such encounters as critical pretrial proceedings where the
defendant is confronted by not only the procedural system but
also a learned and experienced adversary, cf. United States v.
Gouveia, 467 U.S. 180, 189 (1984) (citing United States v.
Wade, 388 U.S. 218 (1967); United States v. Ash, 413 U.S.
300 (1973)). In Hamilton v. Alabama, 368 U.S. 52, 55
(1961), the Supreme Court noted that a defendant requires the
presence of counsel to plead intelligently. In McMann v.

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12 United States v. Moody No. 98-6142
because the government had not yet filed formal charges. We
are faced with the ponderable realization that this is an
occasion when justice must of necessity yield to the rule of
law, and therefore we must REVERSE the district court’s
order and reinstate the original sentence.
No. 98-6142 United States v. Moody 9
Although Moody was faced with an expert prosecutorial
adversary, offering him a plea bargain which he needed legal
expertise to evaluate and which would have constituted an
agreement if accepted by him despite the lack of formal
charges, and although by offering the specific deal the
Assistant United States Attorney was committing himself to
proceed with prosecution, we must uphold the narrow test of
the Supreme Court. See Hutto v. Davis, 454 U.S. 370, 375
(1982)(“But unless we wish anarchy to prevail within the
federal judicial system, a precedent of this Court must be
followed by the lower federal courts no matter how misguided
the judges of those courts may think it to be.”).
Indeed, this Court has long recognized that “the Sixth
Amendment right to counsel does not attach until adversary
judicial proceedings have commenced.” United States v.
Howard, 752 F.2d 220, 226 (6th Cir. 1985), vacated on other
grounds, 770 F.2d 57 (6th Cir. 1985). We reiterated more
recently that “the Sixth Amendment right to counsel attaches
only after judicial proceedings have been initiated against a
defendant,” United States v. Myers, 123 F.3d 350, 358 (6th
Cir. 1997), and found that an unindicted defendant who
voluntarily spoke with agents was an “uncharged person”
without the right to effective assistance of counsel. United
States v. Latouf, 132 F.3d 320, 330 (6th Cir. 1997).
More specifically, this Court has rejected the position taken
by the district court in this case. In United States v. Sikora,
635 F.2d 1175 (6th Cir. 1980), this Court summarily
concluded that the defendant’s right to counsel did not attach
during pre-indictment plea negotiations. Id. at 1175-76
(citing Massiah, 377 U.S. at 201, and Brewer v. Williams, 430
U.S. 387 (1977). In a well-reasoned dissent, Judge Wiseman,
sitting by designation, observed:
The Court has extended the right in new contexts that
present the same dangers that gave rise to the right
originally, those dangers being confrontation with the
procedural system, the expert prosecutor, or both. In the
plea bargaining context, the accused is presented with

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10 United States v. Moody No. 98-6142
both of these dangers, and therefore those persons who
enter the plea bargaining process before formal charges
have been filed should have the protection of the Sixth
Amendment. . . . [W]hen the government begins plea
negotiations with a citizen who has not been formally
charged, he is just as surely faced with the ‘prosecutorial
forces of organized society’ as the defendant who has
been formally introduced into the system.
Sikora, 635 F.2d at 1182. Although we find the dissent’s
reasoning convincing, we must follow the precedent of the
Sikora majority. This panel may not overrule the decision of
another panel; the earlier determination is binding authority
unless a decision of the United States Supreme Court
mandates modification or this Court sitting en banc overrules
the prior decision. See Salmi v. Secretary of Health & Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985).
Here, there is no question that at the time Moody consulted
Pectol about the plea offer, the government had not instituted
formal adversary proceedings against him; nor is there any
dispute that Pectol’s behavior met the standard for ineffective
assistance of counsel. Similarly, it is uncontested that the
Assistant United States Attorney presented to Moody a
definite plea bargain which offered a lighter sentence in
exchange for Moody’s continued cooperation. This was not
a casual conversation about a potential plea agreement, but a
formalized offer for a specific term of imprisonment in
exchange for Moody’s cooperation. In this situation, the
onset of plea negotiations begun by the government prior to
indictment raises the specter of the unwary defendant
agreeing to surrender his right to a trial in exchange for an
unfair sentence without the assurance of legal assistance to
protect him. As the Supreme Court recognized, “only the
presence of counsel [permits the] accused to know all the
defenses against him and to plead intelligently.” Hamilton v.
Alabama, 368 U.S. 52, 55 (1961). But for the delay of the
prosecution in filing charges, Moody clearly would have been
entitled to the effective assistance of counsel. Under the
Supreme Court’s and our Circuit’s approach, he is not – even
No. 98-6142 United States v. Moody 11
4Although Moody argues that, in the alternative, this Court should
affirm the district court on the grounds that he suffered a violation of his
Fifth Amendment right to due process here, we are unpersuaded. A party
seeking relief on that basis must demonstrate that the government
compelled his testimony, and must show the presence of custody and
interrogation. See United States v. Latouf, 132 F.3d 320, 330 (6th Cir.
1997). There is no dispute that Moody volunteered his statements to the
FBI; he was therefore not compelled by the government to do anything.
Moreover, Moody offers no support for his broad contention that “due
process requires that effective counsel be provided during plea
negotiations that occur before indictment.”
though the point at which the actions of Moody’s counsel fell
below an objective standard of reasonableness was no less a
“critical stage” of the proceedings against him.
We believe it to be a mere formality that the government
had not indicted Moody at the time that it offered him a deal
and invited him to seek the assistance of counsel. Under
these circumstances, it would indeed “exalt form over
substance to make the right to counsel . . . depend on whether
at the time of the interrogation, the authorities had secured a
formal indictment.” Escobedo v. Illinois, 378 U.S. 478, 486
(1964). However, Escobedo has since been recognized by the
Supreme Court to involve a Fifth Amendment right to counsel
— a right derived from the privilege against self-
incrimination — and not a statement on the Sixth Amendment
right to counsel, and therefore Escobedo cannot buttress
Moody’s claim.4 See United States v. Gouveia, 467 U.S.
180, 188 n.5 (1984); Rhode Island v. Innis, 446 U.S. 291, 300
n.4 (1980).
We do not favor this bright line approach because it
requires that we disregard the cold reality that faces a suspect
in pre-indictment plea negotiations. There is no question in
our minds that at formal plea negotiations, where a specific
sentence is offered to an offender for a specific offense, the
adverse positions of the government and the suspect have
solidified. Indeed, it seems a triumph of the letter over the
spirit of the law to hold that Moody had no right to counsel in
his decision to accept or deny the offered plea bargain only

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