Opinion
No. 10-0357-cr.
May 18, 2011.
Appeal from the United States District Court for the Southern District of New York (Batts, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said district court be and hereby is AFFIRMED.
Alice Fontier, Joshua L. Dratel, Law Offices of Joshua L. Dratel, P.C., New York, NY., David A. Ruhnke, Ruhnke Barrett, Montclair, NJ., for Appellant.
Michael M. Rosensaft, Jesse M. Furman, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY., for Appellee.
Present: RALPH K. WINTER, ROSEMARY S. POOLER, BARRINGTON D. PARKER, Circuit Judges.
SUMMARY ORDER
Appellant Bing Yi Chen appeals an order of the district court denying his motion to suppress certain post-arrest, inculpatory statements that he alleges were given in violation of his Sixth Amendment right to counsel. Specifically, although Chen executed a written Miranda waiver, he argues that the waiver could not have been "knowing and intelligent" because he was not informed, at the time he gave the statements, that he had been "indicted."
In reviewing the denial of a motion to suppress evidence, we review the district court's conclusions of law de novo and its findings of fact for clear error, taking those facts in the light most favorable to the government. United States v. Lucky, 569 F.3d 101, 105-06 (2d Cir. 2009). "[W]e may affirm on any basis for which there is sufficient support in the record, including grounds not relied on by the District Court." Ferran v. Town of Nassau, 471 F.3d 363, 365 (2d Cir. 2006).
The Sixth Amendment right to counsel attaches upon indictment; it "does not arise at the time of arrest upon a warrant following the filing of a complaint." United States v. Smith, 778 F.2d 925, 932 (2d Cir. 1985) (citing United States v. Duvall, 537 F.2d 15, 22 (2d Cir. 1976)); see also Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) ("We have, for purposes of the right to counsel, pegged commencement to the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." (internal quotation marks omitted).) In this case, although the district court did not consider the timing of the indictment, the record makes clear that Chen was indicted on July 2, 2003, one month after he was questioned. Accordingly, he had no Sixth Amendment right to counsel when he was questioned and his appeal would fail on this basis alone.
However, even if Chen had been indicted at the time he gave the statements, the law in this jurisdiction does not require that an indicted defendant be given notice of the indictment at the time of questioning. As we explained in United States v. Charria, 919 F.2d 842, 848 (2d Cir. 1990), "giving an indicted defendant Miranda warnings is sufficient to make a `knowing and intelligent' waiver of the sixth amendment right to counsel, even if the defendant has not been expressly informed of the indictment pending against him." Id.
Chen's argument that Charria is not good law in this jurisdiction is misplaced. Although a panel of this Court in United States v. Mohabir, 624 F.2d 1140 (2d Cir. 1980), imposed requirements in addition to Miranda that had to be completed before a Sixth Amendment waiver could be effectuated, the Supreme Court in Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), rejected the central holding in Mohabir. 487 U.S. at 295 n. 8, 108 S.Ct. 2389. The Patterson Court did not address the question of whether an indicted defendant was entitled to be informed of the fact of an indictment before a Sixth Amendment waiver could be considered valid, see id.; however, as we made clear in Charria, "Patterson's pragmatic approach supersede[d] the previous rulings of this circuit which, based on the concept of a hierarchy of constitutional rights, called for a higher `knowing and intelligent' standard for sixth amendment waivers than for other waivers." 919 F.2d at 847. Requiring that an indicted defendant be informed of the indictment pending against him before a Sixth Amendment waiver could be effective was part of that hierarchy, and the Charria Court correctly rejected it on those grounds.
We have considered Appellant's remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.