Kennedy v. United States, No. 13-3820 (6th Cir. 2014)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Sixth Circuit U.S. Court of Appeals ?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Sixth Circuit U.S. Court of Appeals . Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Under investigation for drug trafficking, Kennedy learned from his attorney that he might be able to reduce his sentencing exposure by pleading guilty to an information. He consulted a second attorney, who promised to beat the case. Kennedy switched attorneys, heard from his new attorney the government might be bluffing, and decided not to negotiate a plea. The government indicted him on multiple drug-trafficking, firearms, and money-laundering charges and then caught him accepting a marijuana shipment. After changing attorneys twice more, Kennedy pleaded guilty and received a below-guidelines sentence of 180 months. Kennedy later moved to vacate his sentence under 28 U.S.C. 2255, arguing that he would have negotiated a pre-indictment plea and received a lower sentence but for the ineffective assistance of his second attorney. The district court denied the motion based on precedent holding that there is no Sixth Amendment right to counsel in pre-indictment plea negotiations. The Sixth Circuit affirmed. The Sixth Amendment guarantees a right to counsel at critical stages of a criminal proceeding, including some pretrial proceedings, such as post-indictment interrogations, post-indictment identifications, and post-indictment plea negotiations, but the Supreme Court has held that the right to counsel “does not attach until the initiation of adversary judicial proceedings.”
Download PDF
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0130p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ ADAM JEROME KENNEDY, Petitioner-Appellant, v. No. 13-3820 > UNITED STATES OF AMERICA, Respondent-Appellee. Appeal from the United States District Court for the Southern District of Ohio at Columbus. Nos. 2:10-cr-00095-1; 2:12-cv-00365; Edmund A. Sargus, Jr., District Judge.. Decided and Filed: June 24, 2014 Before: ROGERS and COOK, District Judges; MURPHY, District Judge.* _________________ COUNSEL ON BRIEF: Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. Benjamin C. Glassman, UNITED STATES ATTORNEY S OFFICE, Cincinnati, Ohio, for Appellee. _________________ OPINION _________________ MURPHY, District Judge. While being investigated for drug trafficking, Adam Jerome Kennedy learned from his attorney that he might be able to reduce his sentencing exposure by pleading guilty to an information. Unsure of what to do, he sought the advice of a second * The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District of Michigan, sitting by designation. 1 No. 13-3820 Kennedy v. United States Page 2 attorney. This second attorney promised to beat the government s case. Kennedy accordingly switched attorneys, heard from his new attorney the government might be bluffing, and decided not to negotiate a guilty plea. Unfortunately for Kennedy, the government was not bluffing. It soon indicted him on multiple drug-trafficking, firearms, and money-laundering charges and then caught him accepting a marijuana shipment. After changing attorneys twice more, Kennedy pleaded guilty and received a below-guidelines sentence of 180 months. Kennedy later moved to vacate his sentence under 28 U.S.C. § 2255. He argued that he would have negotiated a preindictment plea agreement and received a lower sentence but for the ineffective assistance of his second attorney. The district court denied the motion because United States v. Moody, 206 F.3d 609 (6th Cir. 2000), held that there is no Sixth Amendment right to counsel in preindictment plea negotiations. We affirm. The Sixth Amendment guarantees a right to counsel at critical stages of a criminal proceeding. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). Those critical stages include some pretrial proceedings, such as postindictment interrogations, postindictment identifications, and postindictment plea negotiations. See Massiah v. United States, 377 U.S. 201 (1964) (postindictment interrogations); United States v. Wade, 388 U.S. 218 (1967) (postindictment lineups); Missouri v. Frye, 132 S. Ct. 1399 (2012) (postindictment plea negotiations). But not all pretrial events are included. Guided by the plain language of the Sixth Amendment and its purpose of protecting individuals in adversarial proceedings, the Supreme Court has held that the right to counsel does not attach until the initiation of adversary judicial proceedings. United States v. Gouveia, 467 U.S. 180, 187 90 (1984); see also Moran v. Burbine, 475 U.S. 412, 428 31 (1986) (no right to counsel in preindictment interrogations); Kirby v. Illinois, 406 U.S. 682, 688 90 (1972) (plurality opinion) (no right to counsel at preindictment identifications). Although the Moody panel thought applying this rule to preindictment plea negotiations was unfair, the panel applied it nonetheless. See Moody, 206 F.3d at 612 16. Binding decisions of the Supreme Court and of prior panels of this court prevented it from reaching a contrary result. See id. (citing, among other decisions, Moran, Gouveia, Kirby, United States v. Latouf, 132 F.3d 320 (6th Cir. 1997), and United States v. Myers, 123 F.3d 350 (6th Cir. 1997)). And No. 13-3820 Kennedy v. United States Page 3 these same decisions along with Moody itself constrain us unless and until they are overruled. See Salmi v. Sec y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Recognizing this difficulty, Kennedy argues that Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), reopen the question of when the right to counsel attaches in plea negotiations. To be sure, Frye and Lafler recognize that plea negotiations are central to the American system of criminal justice. See Frye, 132 S. Ct. at 1405 08; Lafler, 132 S. Ct. at 1385 86. And together the decisions make clear that the right to counsel applies in postindictment plea negotiations even if the negotiations have no effect on the fairness of a conviction. See Lafler, 132 S. Ct. at 1385 88 (rejecting arguments that the Sixth Amendment is designed only to guarantee a fair trial and reliable conviction); see also id. at 1391 95 (Scalia, J., dissenting); Frye, 132 S. Ct. at 1412 (Scalia, J., dissenting). But in neither case did the Supreme Court consider the question of whether the right to counsel attached in preindictment plea negotiations. If anything, Frye and Lafler accept the rule that the right to counsel does not attach until the initiation of adversary judicial proceedings. Neither decision expressly abrogates or questions the rule. It would be highly unusual for the Supreme Court to discard or sharply limit a longstanding rule without comment, especially when the rule supposedly abrogated comes from the text of the Sixth Amendment. See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000). Additionally, the dissenting justices did not read the majority opinions as creating a new right to counsel in preindictment plea negotiations. See Lafler, 132 S. Ct. at 1392 (Scalia, J., dissenting) ( Today s opinions deal with only two aspects of counsel s pleabargaining inadequacy . . . . ). And finally, recognizing that the Sixth Amendment guarantees a right to counsel at all critical stages of [a] criminal proceeding[], Frye explained that those critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. Frye, 132 S. Ct. at 1405 (internal quotations omitted) (emphasis added). Had the Supreme Court erased the line between preindictment and postindictment proceedings for plea negotiations, it surely would have said so given its careful attention to the distinction for interrogations and lineups. No. 13-3820 Kennedy v. United States Page 4 Because Moody has not been abrogated or overruled, it remains good law. Kennedy, of course, may be correct that the Supreme Court will eventually extend the right to counsel to preindictment plea negotiations. But a prediction of what the law might (or might not) become does not permit us to disregard binding precedent. See United States v. Talley, 275 F.3d 560, 565 (6th Cir. 2001) ( [T]he Supreme Court has recently reminded us that lower courts should not overrule its decisions, even if later opinions cast doubt on such precedent. ). We accordingly AFFIRM.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
