This case thus presents a pure question of law: whether, absent an appearance before a magistrate, the Sixth Amendment right to counsel can ever attach prior to a formal charge. This question becomes ever more salient as pre-indictment plea negotiations become more common. Two panels of this Circuit have now complained of the injustice of a bright-line rule denying Sixth Amendment right to counsel protection pre-indictment.. The panel in United States v. Moody, 206 F.3d 609, 614-615 (6th Cir. 2000), felt bound by Supreme Court precedent; and the panel in the instant case felt bound by Moody. But Supreme Court precedent, properly understood in light of the text and purpose of the Sixth Amendment right to counsel, does not compel the Moody approach. Indeed, it suggests the different approach that the right is triggered whenever a prosecutor gets involved in substantive discussions of the case with defendant, either directly or through counsel. For this reason, this Court should grant en banc review, so that the Court may reconsider the panel decision and join the other Circuits which have ruled that, under the proper circumstances, the Sixth Amendment right to counsel can attach prior to formal charge—particularly where, as here, the prosecutor initiates pre-indictment plea negotiations.
