IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 99-20665
                         _____________________


UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus

ALAN WHITELAW,

                                             Defendant-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
               Southern District of Texas, Houston
                      USDC No. H-98-CR-450-1
_________________________________________________________________
                         December 21, 2000
Before JOLLY and DAVIS, Circuit Judges, and RESTANI, Judge.*

PER CURIAM**:

      Alan Whitelaw appeals his conviction and sentence for various

federal criminal offenses related to a check counterfeiting scheme.

At   a pretrial    hearing,   Whitelaw   urged   the   district   court   to

suppress 84 incriminating tape recordings of conversations between

Whitelaw and John Irwin, a government informant. Whitelaw contends

that the government’s actions violated his rights under the Fifth

and Sixth Amendments. When the district court denied his motion to

      *
      Judge, U.S.     Court    of    International     Trade,   sitting   by
designation.
      **
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
suppress, Whitelaw entered a conditional guilty plea.                        Whitelaw

also appeals the length of his sentence, arguing that the district

court miscalculated the amount of loss attributable to him and that

the amount of loss was an essential element of the offense and

should have been proved beyond a reasonable doubt.                         Finding no

error by the district court, we affirm the conviction and sentence.

                                          I

     Alan      Whitelaw      was   involved   in       a    check     counterfeiting

operation.      According to the district court, Whitelaw typically

would open a bank account using an alias, then deposit stolen or

forged checks into the new account, and withdraw funds from the new

account before the theft was detected.             Whitelaw’s activities led

to both state and federal criminal charges.

     Whitelaw was indicted on state charges in June 1998.                            The

indictment alleged that between October 6, 1996 and November 14,

1996, Whitelaw committed the offense of theft of money in an amount

exceeding $200,000.       He was tried and convicted on July 16, 1998,

and was sentenced to 60 years in the Texas Department of Criminal

Justice.

     While     Whitelaw      was   in   custody   on       the    state   charges,    he

arranged additional fraudulent transactions.                     From July 2, 1998 to

September 5, 1998, Whitelaw made numerous telephone calls to John

Irwin,   who    had   been    involved     with   Whitelaw’s         other   schemes.




                                          2
Unknown to Whitelaw, Irwin had become a government informant1 and

had agreed to record his telephone conversations with Whitelaw.

Because the Harris County, Texas prison does not accept incoming

calls to prisoners, all conversations were initiated by Whitelaw.

      Whitelaw was indicted by a federal grand jury in November

1998.     The federal indictment alleged bank fraud, possession of

counterfeit securities, and conspiracy. Whitelaw filed a motion to

suppress     the   recorded      conversations     on    the   grounds    that    the

government had violated his Sixth Amendment right to counsel, his

Fifth Amendment privilege against self-incrimination, and his Fifth

Amendment right to due process.            After a suppression hearing, the

district     court   denied      his   motion.      Whitelaw     then    entered   a

conditional plea of guilty to one count of aiding and abetting bank

fraud.     In return, the government agreed to dismiss the remaining

counts. The plea agreement expressly allows Whitelaw to appeal the

court’s denial of the motion to suppress as well as any sentencing

issues.

      The Pre-Sentencing Report determined that the guideline range

of imprisonment was 46 to 57 months. This determination was based,

in   part,   on    the   assumption      that    Whitelaw’s     criminal    history

category was       “III”   and    that   Whitelaw       was   accountable   for    an

intended loss of $1,188,618. Whitelaw filed objections to the PSR.

At sentencing, the district court sustained Whitelaw’s objection to

      1
      Irwin entered into agreements with agents from both federal
and state governments.

                                          3
the criminal history category and reduced it to “I”.      However, the

court   denied   Whitelaw’s   challenge   to   the    calculation   of

attributable intended loss.   With a revised guideline range of 37

to 46 months, the district court sentenced Whitelaw to 46 months’

imprisonment, to run concurrently with his state sentence.

     Whitelaw filed a timely notice of appeal, challenging the

district court’s decisions as to the motion to suppress and to the

intended loss calculation during sentencing.         Whitelaw has also

raised an objection to his sentence based upon the Supreme Court’s

recent decision in Apprendi v. New Jersey.     According to Whitelaw,

the amount of loss was an essential element of the offense and

should have been proved beyond a reasonable doubt.

                                 II

     We turn now to Whitelaw’s motion to suppress the recorded

conversations.   In reviewing a district court’s ruling on a motion

to suppress, we review questions of law de novo and accept the

court’s findings of fact unless they are clearly erroneous.         See

United States v. Castro, 

, 731-33 (5th Cir. 1999) (en

banc); United States v. Muniz-Melchor, 

, 1433-34 (5th

Cir. 1990).

     Whitelaw presents three arguments for suppressing his recorded

conversations with Irwin, the government informant.           Whitelaw

argues that the government’s act of recording these conversations

violates his Sixth Amendment right to assistance of counsel, his



                                 4
Fifth Amendment privilege against self-incrimination, and his Fifth

Amendment right to due process.             We address each argument in turn.

                                         A

                                        (1)

     The Sixth Amendment right to counsel attaches only when the

government initiates adversarial criminal proceedings.                       United

States    v.   Laury,    

,    150   (5th    Cir.   1995).     Once

proceedings have been initiated, law enforcement officials may not

confront the accused or elicit incriminating information regarding

the charged offenses without counsel being present.                     Maine v.

Moulton, 

, 176 (1985). It must be emphasized, however,

that the Sixth Amendment is offense-specific; that is, the right to

counsel applies only “to the specific offense with which the

suspect has been charged.”           United States v. Carpenter, 

, 739 (5th Cir. 1992).            Consequently, if a criminal defendant

makes incriminating statements pertaining to some other offense to

which    the   Sixth    Amendment     has    not    yet   attached,   then   those

statements are admissible at a trial for that offense.                  

& n.16 (“[T]o exclude evidence pertaining to

charges as to which the Sixth Amendment right to counsel had not

attached at the time the evidence was obtained, simply because

other charges were pending at that time, would unnecessarily

frustrate the public’s interest in the investigation of criminal

activities.”).



                                         5
     This circuit has carved out a narrow exception to the general

rule: “If the charged and uncharged offenses are ‘so inextricably

intertwined’    or       ‘extremely   closely   related,’   then     the   Sixth

Amendment   .   .    .    prohibits   interrogation   about    the   uncharged

offense.”    

; see also United States v.

Cooper, 

, 743-44 (5th Cir. 1991).          To determine whether

criminal    offenses       are   sufficiently   intertwined,   this    circuit

focuses on the specific facts underlying the charged and uncharged

offenses.   As this court recently explained, the relevant question

is “whether the conduct leading to each offense is the same.”

United States v. Walker, 

, 529-30 (5th Cir. 1998)

(holding that firearms possession and subornation of perjury are

not inextricably intertwined charges because they were “distinctly

separate offenses . . . [that] did not occur within a close

temporal proximity”).            The rule in this circuit is accurately

stated as follows:         The right to counsel carries over “only where

the new charge arises from the same acts and factual predicates on

which the pending charges were based.           In determining whether the

same acts and factual predicates underlie both the pending and the

new charges, courts have looked for similarities of time, place,

person and conduct.”        United States v. Arnold, 

, 41 (3d

Cir. 1997) (citing 

-41); see also 

; United States v. Williams, 

, 456-57

(5th Cir. 1993); 

.



                                        6
     If a court finds that two charges are inextricably intertwined

and, consequently, that the invocation of the Sixth Amendment right

on the pending charge is sufficient to invoke the right on the

subsequent charge, the court must then determine whether the

government’s actions violated the defendant’s right to counsel. It

is well established that the government may not circumvent the

Sixth     Amendment    right   to   counsel     by    having    an    informant

deliberately elicit and record incriminating conversations with a

suspect. See 

; United States v. Henry, 

, 265-68 (1980); Massiah v. United States, 

,

202-03 (1964).

                                     (2)

     In    the   present   case,    federal    proceedings      had   not    been

initiated    against   Whitelaw     at   the   time   Irwin    recorded     their

telephone conversations.        Therefore, Whitelaw’s Sixth Amendment

right to counsel had not yet attached to the federal charges unless

those federal charges were “inextricably intertwined” with or

“extremely closely related” to the pending state charges.

     The district court concluded that the federal and state

charges were not so intertwined or closely related as to invoke the

right to counsel for the federal charges.             The court reasoned as

follows:

     While Whitelaw may have employed the same method or modus
     operandi for defrauding the federal victims as he did
     when he defrauded the state victims, he has not been
     charged in the federal indictment for the same criminal
     conduct alleged and proven at the state trial. As is

                                         7
     apparent from the state and federal indictments . . . ,
     the criminal conduct charged in the federal indictment
     was not charged or prosecuted in any of Whitelaw’s
     previous state indictments, particularly the indictment
     which ultimately led to his conviction. The conspiracy
     charge in the federal indictment does not rely on or even
     mention any of the criminal events covered by Whitelaw’s
     state trial as acts in furtherance of the criminal
     conspiracy. The bank fraud and possession of counterfeit
     securities charges allege difference victims, events,
     dates, and amounts stolen than those covered in
     Whitelaw’s state case.

     Our review of the law confirms that the district court clearly

understood and applied the proper standard by focusing on the

specific underlying conduct, the time frame for the criminal

offenses, and the identity of the perpetrators and victims.                Our

review of the record also confirms that the factual bases of the

district court’s conclusion are sound.

     Whitelaw does not argue that the district court erred in

finding that the charges involved different acts, done at different

times,   in    different   places,   with    different    perpetrators    and

victims, and with different amounts stolen.             Rather, he suggests

obliquely that the district court misconstrued the law.                   The

relevant      issue,   Whitelaw   insists,   is   the    “type   of   conduct”

underlying the charges.      Viewed in this light, the acts underlying

the federal charges are part of a larger “ongoing scheme” of

fraudulent activities. He argues that the

     alleged conduct is the same: steal a valid check or
     account number, counterfeit a check, open an account,
     deposit the counterfeit or stolen check, place the
     proceeds into other accounts . . . , then proceed back to
     step one. This is the scheme or relevant conduct in both
     the state and federal case.

                                      8
Whitelaw’s argument is based on a fundamental misreading of one

sentence in the Walker opinion.

     As we explained above, the court in Walker insisted that the

correct question in this type of case is “whether the conduct

leading to each offense is the same.”       

.

The court then observed in passing that subornation of perjury and

possession of a firearm are “two distinct types of conduct, the one

not leading necessarily to the other.”       

not question

Walker’s premise that two criminal charges are less likely to be

“inextricably intertwined” if they involve different “types of

conduct.”   But nothing in the Walker court’s opinion suggests that

the general type of conduct involved (such as check counterfeiting,

for example) should be the primary factor in the analysis.        To the

contrary, the Walker opinion places itself squarely within the

framework   established   in   earlier   cases.    The   Walker   court,

therefore, relies heavily on two other considerations: The two

criminal charges were “distinctly separate offenses,” which means

that they involved different underlying facts; and the two offenses

“did not occur in a close temporal proximity.”           

Walker throws additional light upon one factor--the general type of

activity involved--but it surely cannot be read to supersede or

overrule prior decisions addressing this issue of whether criminal

offenses are “inextricably intertwined” for the purposes of the

Sixth Amendment right to counsel.

                                  (4)

                                   9
     For     the     reasons     outlined    above,    we    reject      Whitelaw’s

contentions and adopt the reasoning of the district court.                   As the

district     court     explained,      the     criminal      charges      are    not

“inextricably intertwined” because the specific conduct, victims,

and time frame are all very different.           It is true, of course, that

both crimes involve the same type of fraudulent conduct (a check-

counterfeiting scheme).          While the type of conduct is relevant to

the analysis, the fact that the criminal activities are similar in

nature     cannot,    by   itself,    establish       that   the    charges     are

intertwined.2

                                        B

     As an alternative ground for suppressing the tape-recorded

statements, Whitelaw argues that the government’s conduct violated

his Fifth Amendment privilege against self-incrimination under

Miranda v. Arizona, 

(1966).

     The Supreme Court held in Illinois v. Perkins, 

,

294 (1990), that “Miranda warnings are not required when the

suspect is unaware that he is speaking to a law enforcement officer

and gives     a    voluntary     statement.”     The    Court   explained       that

“[c]onversations between suspects and undercover agents do not

implicate     the     concerns    underlying     Miranda.          The    essential


     2
      Because we hold that Whitelaw’s right to counsel had not
attached to the federal charges, we do not reach the other question
addressed by the district court, namely, whether Irwin deliberately
elicited Whitelaw’s incriminating statments and thereby caused the
government to violate the Sixth Amendment right to counsel.

                                        10
ingredients of a ‘police-dominated atmosphere’ and compulsion are

not present” in such cases.          

       Whitelaw has not presented any evidence suggesting that his

conversations with Irwin were coerced.                 To the contrary, Whitelaw

spoke    voluntarily      with   Irwin      and,     in   fact,    initiated    every

telephone conversation.            For these reasons, Whitelaw’s Miranda

argument fails.

                                           C

       As    a   third    ground     for       suppressing      the     tape-recorded

conversations, Whitelaw argues that his Fifth Amendment right to

due process has been violated.

       This question was not addressed by the district court.                  In his

briefs,      Whitelaw’s   only     legal    authority      is   Justice    Brennan’s

concurring opinion in Illinois v. 

.                     In

Justice Brennan’s view, when the government obtains incriminating

information from suspects in custody, the government’s actions are

arguably incompatible with a system “‘that presumes innocence and

assured that a conviction will not be secured by inquisitorial

means.’” 

(Brennan, J., concurring in the judgment)

(quoting Miller v. Fenton, 

, 116 (1985)).                    Whatever the

merits of Justice Brennan’s argument, it is clear that a single-

Justice opinion is not binding precedent.                  See, e.g., Hopwood v.

State of Texas, 

, 944 (5th Cir. 1996).                     Moreover, cases

such    as   Miller   involve      “forms       of   physical     and   psychological

torture,” 

, which plainly are not present in

                                           11
Whitelaw’s case.      Applying the law to the facts of this case, we

conclude that Whitelaw’s due process argument is without merit.

                                   III

       Whitelaw also appeals his sentence of 46 months’ imprisonment.

He contends that the district court erred in its loss calculation

under the Sentencing Guidelines and that his sentence was imposed

in violation of Apprendi v. New Jersey, 

(2000).

                                     A

       Whitelaw   argues   that   the    district     court     erred    in   its

calculation of the loss attributable to his conduct under U.S.

Sentencing Guidelines Manual § 2F1.1(b).            He asserts that the loss

from   his   state   offenses   should   not   be    included    in     the   loss

calculation because the district court found that his state and

federal offenses were not “inextricably intertwined” for Sixth

Amendment purposes.

       The sentencing court’s calculation of loss is a factual

finding and is reviewed for clear error.            The court’s methodology

by which losses are determined, however, involves an application of

the Sentencing Guidelines and is reviewed de novo.                    See United

States v. Saacks, 

, 542-43 (5th Cir. 1997).

       Under § 2F.1.1(b), the offense level of a defendant convicted

of crimes of fraud or deceit is increased in accordance with the

amount by which the loss attributable to the defendant exceeds

$2,000.      If the loss is between $800,000 and $1.5 million, the

guidelines warrant an 11 level increase in the offense level.

                                    12
U.S.S.G. § 2F.1.1(b)(1)(L) (2000).              Under the guidelines, “if an

intended loss that the defendant was attempting to inflict can be

determined, this figure will be used if it is greater than the

actual loss.”      U.S.S.G. § 2F1.1, comment n.8.

      In the context of “a criminal plan, scheme, endeavor, or

enterprise undertaken by the defendant in concert with others,”

relevant     conduct    for     sentencing        includes     “all    reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.”             U.S.S.G. § 1B1.3(a)(1)(B).

A district court’s finding that conduct was within the scope of

jointly undertaken criminal activity is a finding of fact and is

reviewed for clear error.        See United States v. Smith, 

,

865 (5th Cir. 1994).          The district court held that Whitelaw was

accountable for $1,188,618.65 in intended and actual losses, that

all such losses resulted from jointly undertaken criminal activity,

and that the conduct of Whitelaw’s co-conspirators was reasonably

foreseeable.

      Whitelaw’s     argument     that    the     district     court   erred   in

calculating the loss attributable to him is without merit.                 First,

a   review   of   the   PSR    reveals    that    the   loss   attributable    to

Whitelaw’s state offenses was not included in the total loss

calculation.      See PSR ¶ 22 (noting that Whitelaw had already been

sanctioned for the state offenses).              Thus, it is evident that the

PSR’s calculated loss did not include the 1996 counterfeit checks

relied upon in the state court prosecutions.             The sentencing court

                                         13
fully recognized this, noting that Whitelaw “is responsible for all

of the checks listed on Attachment A, except the 1996 counterfeit

State of Texas checks.”

     Moreover, even if the PSR’s $1,188,618.65 calculated loss does

include the $261,775 loss from the state offenses, Whitelaw is

still   accountable    for     $926,843.65     in    losses.         Under

§ 2F1.1(b)(1)(L), he would still be subject to the same 11-level

offense level increase.     Therefore, any error here is harmless in

that “the district court would have imposed the same sentence”

absent the error.   United States v. Kay, 

, 101 (5th Cir.

1996) (finding remand unnecessary where sentencing error was found

to be harmless by reviewing court).

     Whitelaw’s   primary    argument   is   that   the   district   court

contradicted itself by finding that (1) his state and federal

offenses were not inextricably intertwined, and (2) the loss from

both the state and federal offenses was attributable to him as

relevant conduct. Because, as noted above, the loss from his state

offenses was not attributed to him in the calculation of his

offense level, this argument is without merit.

                                   B

     Whitelaw further asserts that, under Apprendi v. New Jersey,

(2000), the amount of loss attributable to him was

an essential element of his offense and therefore should have been

submitted to a jury and established beyond a reasonable doubt.

Under Apprendi, “any fact [other than a prior conviction] that

                                  14
increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.”     

(emphasis added).                           The

prescribed statutory maximum sentence for bank fraud of $1 million

is 30 years’ imprisonment.             18 U.S.C. § 1344.               The guideline

imprisonment      range    for    Whitelaw’s        offense,      given     the    loss

attributable to him and his criminal history, was 37 to 46 months

imprisonment,     and     the   guideline        fine   range   was    $7,500     to    $1

million.     See PSR ¶ 120.           Because the amount of loss did not

increase    the   penalty       for   the    offense     beyond       the   applicable

statutory maximum, Apprendi is inapplicable to Whitelaw’s appeal.

                                            IV

     For the reasons set forth above, the district court did not

err in denying Whitelaw’s motion to suppress nor in sentencing him

to 46 months’ imprisonment. Whitelaw’s conviction and sentence are

therefore

                                                                  A F F I R M E D.




                                            15