The opinion
RUIZ, Associate Judge,
dissenting:
Although I am in agreement with most of the court’s opinion, I disagree with the majority’s reasoning that appellant’s Fifth Amendment right to counsel was not violated. The underlying facts are that police questioned appellant about the murder of Day without the presence of counsel, while appellant was in custody after having been arrested for that murder. The police undertook that interrogation notwithstanding that appellant’s counsel had two days earlier, with appellant by his side, asserted his Fifth Amendment right to counsel upon being informed during a court hearing that appellant was about to be arrested for the murder. I conclude that, on the facts of this case, appellant’s Fifth Amendment right to counsel was properly asserted and *1163 that the police-initiated interrogation violated appellant’s right to the assistance of counsel “in dealing with custodial interrogation by the police.” McNeil v. Wisconsin, 501 U.S. 171, 178 , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991). As a result, appellant’s statements to the police admitting that he shot Day (albeit in self-defense) should have been suppressed. As the erroneous admission of the statement was not harmless beyond a reasonable doubt, the judgment of conviction should be reversed and the case remanded for a new trial without appellant’s confession. 1
As a preliminary matter, although the majority states that it “need not decide whether an attorney can invoke the Fifth Amendment rights of his client while representing him in a separate matter,” see ante at 1156, the Supreme Court has already settled that the offense-specific analysis applicable to the Sixth Amendment right to counsel does not apply in the Fifth Amendment context. See Arizona v. Roberson, 486 U.S. 675, 685 , 108 S.Ct. 2093 , 100 L.Ed.2d 704 (1988). As the Court explained, there is a “difference between the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination.” Id.
The former [Sixth Amendment right] arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a state apparatus that has been geared up to prosecute him. The latter [Fifth Amendment right] is protected by the prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges.
Id. 2
Because of the difference in the constitutional source and purpose of the two, the Court has held that “[o]nce a suspect invokes [under the Fifth Amendment] the Miranda right 3 to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present.” McNeil v. Wisconsin, 501 U.S. at 177 , 111 S.Ct. 2204 (citing Roberson, 486 U.S. at 675 , 108 S.Ct. 2093 ). Once the right is asserted, no interrogation is permitted “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981); see also Michigan v. Jackson, 475 U.S. 625, 626 , 106 S.Ct. 1404 , 89 L.Ed.2d 631 (1986) (extending the Edwards rule, but limited to the charged offense, to requests for counsel under Sixth Amendment). Moreover, even if a suspect is *1164 subsequently advised of his Miranda rights, any purported waiver is ineffective because
if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the “inherently compelling pressures” [of custodial interrogation] and not the purely voluntary choice of the suspect.
Roberson, 486 U.S. at 681 , 108 S.Ct. 2093 ; cf. id. at 683 , 108 S.Ct. 2093 (distinguishing “a suspect’s decision to cut off questioning, [which] unlike his request for counsel, does not raise the presumption that he is unable to proceed without a lawyer’s advice”) (citing Michigan v. Mosley, 423 U.S. 96 , 101 n. 7, 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975); id. at 110 n. 2, 96 S.Ct. 321 (White, J., concurring in result)). It is of “no significance” whether the interrogating officers in fact knew that a suspect has asserted his right to have counsel present so long as notice of the assertion has been given. Roberson, 486 U.S. at 687 , 108 S.Ct. 2093 . Once Edwards applies to prohibit any police-initiated interrogation, whether the interrogation “concerns the same or a different offense, or whether the same or different law enforcement authorities are involved in the second investigation, the same need to determine whether the suspect has requested counsel exists. The police department’s failure to honor that request cannot be justified by the lack of diligence of a particular officer.” Id. at 687-88, 108 S.Ct. 2093 . See Jackson, 475 U.S. at 634 , 106 S.Ct. 1404 (stating, with respect to Sixth Amendment right to counsel, that “[o]ne set of state actors (the police) may not claim ignorance of defendants’ unequivocal request for counsel to another state actor (the court).”). 4
The question that does need to be decided in this case is whether the assertion of appellant’s Fifth Amendment right to counsel was ineffective because it was premature. The majority holds and the trial court concluded that “[b]ecause the invocation of his Fifth Amendment rights was made before they were legally available— i.e., before [appellant] was in custody in this case and subject to interrogation — no possible violation of those rights occurred.” See ante at 1156-57. This is an issue that the Supreme Court has not settled. See id. at 630 n. 4, 106 S.Ct. 1404 (expressing “no comment” on the validity of the argument that “defendants’ request to the arraigning magistrate for appointment of counsel implicated only their Sixth Amendment right to counsel [and not the Fifth Amendment right to counsel] because the request was not made during custodial interrogation”). The statement in the McNeil footnote relied upon by the majority, that the Miranda right, like “[m]ost rights[,] must be asserted when the government seeks to take the action they protect against,” is preceded by the recognition that the Court has not determined whether “a person can invoke his Miranda rights anticipatorily.” McNeil, 501 U.S. at 182 n. 3, 111 S.Ct. 2204 . This dictum in the Court’s opinion was in response to the dissent’s observation that McNeil’s holding *1165 that the Sixth Amendment right to counsel is offense-specific — with which the dissent disagreed — would have “slight impact” because “[i]n future preliminary hearings, competent counsel can be expected to make sure that they, or their clients, make a statement on the record that will obviate” the offense-specific limitation of the Sixth Amendment right announced in McNeil by asserting the right to counsel under the Fifth Amendment — the situation that obtained in this case. Id. at 183-84 , 111 S.Ct. 2204 (Stevens, J., dissenting); see Alston v. Redman, 34 F.3d 1237, 1246 (3d Cir.1994) (noting that although McNeil footnote is “essentially diet [um ] being a response to a hypothetical posed by the dissent, we must consider it with deference”).
The limitation that the majority would place on assertion of the Fifth Amendment right to counsel as available only at the time of actual custodial interrogation is at odds with the multilayered “prophylactic” protections added by the Supreme Court after Miranda in cases such as Edwards and Roberson . Moreover, since those cases, the Court has made clear that the rights specified in Miranda — the right to be advised of the right to remain silent, the right to counsel and the right of indigent suspects to appointed counsel — “announced a constitutional rule” which it declined to overrule. Dickerson v. United States, 530 U.S. 428, 444 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000). Although the government relies on the formulation that for “Miranda rights” to apply, there must be both custody and interrogation, see, e.g., Illinois v. Perkins, 496 U.S. 292, 297 , 110 S.Ct. 2394 , 110 L.Ed.2d 243 (1990) (“It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation”), 5 its brief recognizes, as do most *1166 courts that have addressed the issue in the context of the McNeil footnote, that assertion of Fifth Amendment rights is valid if custodial interrogation is “imminent” or “impending.” Alston, 34 F.3d at 1245, 1249 (finding assertion premature because interrogation not “imminent” when prisoner signed form letter invoking right to counsel while sitting in his jail cell speaking with a representative of the Public Defender’s office and interrogation occurred three days later); United States v. LaGrone, 43 F.3d 332, 339 (7th Cir.1994) (“[F]or a defendant to invoke his Miranda rights ... interrogation must be imminent”); United States v. Grimes, 142 F.3d 1342, 1348 (11th Cir.1998) (finding Alston’s and LaGrone’s reasoning persuasive); United States v. Thompson, 35 F.3d 100, 104 (2d Cir.1994) (recognizing invocation of Fifth Amendment right to counsel can be made in face of imminent custodial interrogation, but mere filing of “notice of appearance” to obtain defendant’s records not valid assertion); United States v. Wright, 962 F.2d 953, 956 (9th Cir.1992) (assertion of right to counsel at plea hearing ineffective when suspect questioned a few weeks later about different crime; court left open whether right can be asserted when suspect and counsel expect interrogation about a different offense); State v. Torres, 330 N.C. 517 , 412 S.E.2d 20, 25 (1992) (“[Although an individual cannot waive her right to counsel prior to receiving Miranda warnings, a suspect in custody can certainly assert her right to have counsel present during her impending interrogation prior to Miranda warnings and the actual onset of questioning.”); see also United States v. Cooper, 85 F.Supp.2d 1, 24 (D.D.C.2000) (finding it unnecessary to reach the issue of whether suspect had reasonable expectation of continued interrogation when right to counsel asserted by his lawyer at extradition hearing, and whether this expectation would satisfy any “imminent interrogation standard” because it was suspect who initiated discussions with police); United States v. Barnett, 814 F.Supp. 1449, 1453-54 (D.Aaska 1992) (invocation of rights at grand jury proceedings and appointment of lawyer insufficient to assert Fifth Amendment right).
The facts of record in this case show that appellant was in custody and his interrogation was not only foreseeable but fast approaching when appellant’s rights were asserted by counsel. 6 According to *1167 the trial court, 7 at the time appellant’s Fifth Amendment rights were asserted, the judge in the probation revocation hearing had already decided appellant would be held without bond based on a report of violations of the conditions of probation (including a recent drug and firearms arrest in Maryland). 8 In addition, because the probation officer had announced that appellant was also subject to arrest for the murder of Day, the trial judge noted, “the Marshals had an obligation to secure [appellant’s] presence as a result.” 9 In other words, there were two separate grounds for holding appellant in custody: for violating the terms of probation and on the murder arrest warrant. Appellant was in uninterrupted custody from the hearing on November 10, when his probation was revoked (and his Fifth Amendment rights asserted); he continued to be detained at the Marshal’s cell block in the courthouse on the 11th, and was picked up from there by Detective Sauls and taken to the First District police station on the morning of November 12, where he was arrested, booked, and interrogated about the murder while chained to the floor in the interview room. Counsel’s prompt assertion of appellant’s Fifth Amendment rights upon being informed that appellant was about to be arrested for murder can only be understood as having advised the government that it should not interrogate appellant without the presence of counsel in the reasonable expectation that the police *1168 would seek to interrogate appellant about the murder as, in fact, happened within less than forty-eight hours. See Roberson, 486 U.S. at 686 , 108 S.Ct. 2093 (noting that where “a period of three days elapsed between the unsatisfied request for counsel and the interrogation about a second offense, there is a serious risk that the mere repetition of the Miranda warnings would not overcome the presumption of coercion that is created by prolonged police custody”). It would be passing strange if assertion of the Fifth Amendment right to counsel, which is meant to secure the presence of a lawyer during custodial interrogation, were ineffective because it is asserted by counsel who acts to protect the right of a suspect whom counsel has every reason to expect is about to be subjected to the coercive pressures Miranda intended to counteract. To rule that assertion of appellant’s rights was premature under these circumstances raises a concern the Supreme Court has voiced, “that the suspect whose counsel is prompt would lose the protection of Edwards , while the one whose counsel is dilatory would not.” Minnick, 498 U.S. at 155, 111 S.Ct. 486 (rejecting proposed exception to Edwards rule that police may initiate questioning without counsel present after assertion of Fifth Amendment rights if suspect has had prior consultation with counsel). It also would make the validity of a suspect’s assertion of the right to counsel contingent on the vagaries of police schedules and internal rules or efficiency — all outside the control or likely knowledge of a suspect and (except in certain cases) his alert counsel. 10
I therefore disagree that the assertion of appellant’s Fifth Amendment rights was anticipatory and ineffective, because on this record appellant’s rights were asserted at a time when custodial interrogation was imminent. The police were thereafter prohibited from initiating any custodial interrogation without counsel, and appellant’s statements in response to interrogation at the police station in breach of that safeguard must be suppressed. 11
. The government, which bears the burden of showing that any error was harmless, has not attempted to argue that admission of appellant’s confession meets Chapman's constitutional harmless error test. See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).
. For this reason I agree with the majority that appellant had no right to counsel with respect to the murder charge under the Sixth Amendment because the government had not yet initiated "criminal proceedings by way of formal charge, preliminary hearing, indictment, information or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972). Appellant was not presented to the court on the murder charge until November 13, when a complaint was filed, three days after assertion of his right to counsel.
. Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).
. In this case, Detective Sauls, the officer who initiated the questioning of appellant, testified that although he knew that defendants are entitled to counsel at a probation revocation hearing, he did not know-nor did he inquire of the U.S. Attorney’s office or appellant-whether appellant had counsel. He also knew that appellant had been arrested and was locked up in jail on another charge. As defense counsel argued to the trial court during the motion to suppress, Detective Sauls would or should have known that appellant was represented by counsel.
. It is important to bear in mind that what Miranda requires is that a suspect be advised of his rights. See 384 U.S. at 444 , 86 S.Ct. 1602 . The underlying right to remain silent, however, arises under the Fifth Amendment's Self-Incrimination Clause, see Bram v. United States, 168 U.S. 532, 564 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897), and Malloy v. Hogan, 378 U.S. 1, 8 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964) (applying privilege to states under Fourteenth Amendment) (quoted in Missouri v. Seibert, 542 U.S. 600, 607 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004)), and had been recognized long before, and exists independent of, the court’s ruling in Miranda. See Miranda, 384 U.S. at 441 , 86 S.Ct. 1602 (stating that Court was concerned with "the problems ... of applying the privilege against self-incrimination to in-custody interrogation) (quoted in Dickerson, 530 U.S. at 439 , 120 S.Ct. 2326 ) (emphasis added).” In other words, what Miranda established is the right to be advised of rights and the consequence — generally exclusion of the suspect’s statement in the government’s prosecution — that flow from the violation of that right. See Miranda, 384 U.S. at 444 , 86 S.Ct. 1602 ; see also Harris v. New York, 401 U.S. 222, 226 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971) (permitting use for impeachment); New York v. Quarles, 467 U.S. 649, 649 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984) (recognizing limited exception for questioning to protect public safety); United States v. Patane, 542 U.S. 630, 630 , 124 S.Ct. 2620 , 159 L.Ed.2d 667 (2004) (excepting physical evidence obtained as a result of suspect’s unwarned but voluntary statements). Since Dickerson’s announcement that Miranda's protections are constitutionally grounded, the question arises whether the right to require the presence of counsel (whether retained or appointed), like the right to remain silent, also is deemed to be independent of the right to be advised that such a right exists, and whether the Court will countenance a prophylactic cushion for this right as well. If so, it would be the right to be advised (and not the suspect’s right to assert his underlying right to counsel) that would be triggered only when a suspect is at risk of the coercive pressure of custodial interrogation. As the right to counsel under the Fifth Amendment is meant to protect the privilege against self-incrimination, logic would dictate that they would be concurrent and not dependent on the confluence of custody and interrogation that calls for the advice of rights. There is no need to anticipate the Court’s answer to these ques *1166 tions in this case, however, because even assuming that the Fifth Amendment right to counsel itself — not just the right to be advised of it — is part of the “Miranda rights” triggered by custodial interrogation, the assertion of Fifth Amendment rights in this case came within Edwards’s protection because, as discussed in the text, appellant was in custody and interrogation was imminent.
. Unlike the Sixth Amendment right to counsel, which is triggered by the government’s institution of formal proceedings, see note 2, supra, the right to counsel under the Fifth Amendment must be “actually invoked,” see Smith v. Illinois, 469 U.S. 91, 95 , 105 S.Ct. 490 , 83 L.Ed.2d 488 (1984) (per curiam), by making a statement "that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” McNeil, 501 U.S. at 178 , 111 S.Ct. 2204 ; Davis v. United States, 512 U.S. 452, 459 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994) (holding that Edwards is triggered only when the suspect "unambiguously” requests the presence or assistance of counsel). At the suppression hearing in this case, the lawyer who represented appellant at the probation revocation hearing testified that, “I addressed the Court for the record, noting that government counsel was present, that I was asserting [appellant’s] Fifth and Sixth Amendment rights in the drug [murder] matter that they were making reference to.” The government does not argue that the assertion was ineffective because it was counsel and not appellant personally who asserted appellant's Fifth Amendment rights, nor does it contend that it did not meet Davis’s requirement that the assertion be unambiguous. Although in most cases it is to be expected that *1167 it will be the unrepresented suspect in police custody who invokes the right to counsel, there is no reason to disregard the usual premise that counsel speaks for the client. In this case, in particular, appellant was present when counsel asserted appellant’s Fifth Amendment rights, and the reasonable inference is that counsel was voicing his client’s choice. Cf. Moran v. Burbine, 475 U.S. 412, 422 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986) (noting, in case where appellant did not contend that he had asserted his Fifth Amendment right, that “[ejvents occurring outside the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right”). Recognizing the validity of counsel's assertion of a suspect’s Fifth Amendment rights, moreover, does not contravene society’s interest in securing reliable confessions that are free of government coercion, because, should the suspect change his mind, Edwards "does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities.” Minnick v. Mississippi, 498 U.S. 146, 156 , 111 S.Ct. 486 , 112 L.Ed.2d 489 (1990). It is only those statements made in response to interrogation initiated by the government that may not be used at trial. See Edwards, 451 U.S. at 484-85 , 101 S.Ct. 1880 .
. Although the transcript of the probation revocation hearing was introduced as an exhibit at the suppression hearing, it is not part of the record on appeal, so we do not have a transcript of what counsel actually said at the probation revocation hearing nor the sequence of events. Therefore, I rely on the testimony during the hearing on the motion to suppress and the trial court’s findings, which are not disputed by the government.
. As the government’s brief acknowledges:
[T]he trial court found that (1) appellant's probation officer in the drug case had already issued a violation report and that Judge Canan had determined that appellant would be held without bond based on that report and that he also would be held in connection with a show cause order issued by another Superior Court judge; (2) Judge Canan's deputy clerk subsequently told the court about the pending murder arrest warrant; and (3) Judge Canan did not conduct any proceedings with respect to the arrest warrant but rather "it was just made known to him because the Marshals had an obligation to secure [appellant’s] presence as a result.”
(Emphasis added).
. Although the trial judge found that appellant was in custody, she ruled that the assertion of his Fifth Amendment rights was "anticipatory” because he was not yet subjected to custodial interrogation.
. In this case, for example, Detective Sauls learned on November 11 that appellant had been arrested and was "locked up at the D.C. jail,” and on the 12th he took appellant to the First District police station from the courthouse cell block, because “we wanted to question [appellant]” about the murder of Day and the police are not permitted to interview prisoners in the U.S. Marshal’s cellblock in the D.C. courthouse. Otherwise, it would appear, the police interrogation would have taken place in the courthouse cell block the day after he was taken into custody.
. As noted, the trial judge did not address this precise question because she considered that the right to counsel may be asserted only when a suspect is actually being interrogated. See note 9, supra. Therefore, with my colleagues’ concurrence, I would have remanded for the trial judge to address in the first instance whether interrogation was "imminent.” Based on the record and the trial court’s findings, however, it is clear that appellant was in custody when the right to counsel was asserted and that the interrogation that in fact occurred two days later was foreseeable at the time the right was asserted.