United States v. Williamson , 337 F. App'x 288 ( 2009 )

Vacated by Supreme Court, June 21, 2010
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4055
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RODNEY ANTON WILLIAMSON,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:06-cr-00474-NCT-1)
Submitted: July 9, 2009 Decided: July 20, 2009
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. David James, SMITH JAMES ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Sandra J. Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Anton Williamson was indicted, along with
others, and charged with one count of conspiracy to distribute
five kilograms or more of a mixture and substance containing a
detectable amount of cocaine, in violation of 21 U.S.C. § 846(2006). The sealed indictment was issued December 18, 2006, and
a warrant for Williamson’s arrest was issued the following day.
In January 2007, a confidential informant, acting in concert
with law enforcement agents, met with Williamson while wearing a
recording and transmitting device. At the conclusion of the
meeting, law enforcement attempted to arrest Williamson on the
outstanding warrant; however, he successfully evaded arrest.
Williamson was eventually apprehended and arraigned on
June 12, 2007, and received court-appointed counsel. However,
Williamson retained counsel who entered his appearance the
following week. Williamson’s case was called for jury selection
on August 13, 2007. On that date, Williamson informed the court
that, during the preceding weekend, he had retained different
counsel and wanted his first retained attorney dismissed. After
substitute retained counsel indicated that he was prepared to
try Williamson’s case two days after jury selection, the
district court granted Williamson’s motion to dismiss his first
retained counsel.
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At the conclusion of his jury trial, Williamson was
convicted of the sole count in the indictment. Williamson was
subsequently sentenced to life imprisonment.
On appeal, Williamson first claims the district court
erred in admitting the recording of his meeting with the
confidential informant. Williamson’s claim is raised for the
first time on appeal and is therefore reviewed for plain error.
Plain error requires Williamson to establish that: (1) there was
error; (2) the error was “plain;” and (3) the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). Even if he makes this showing, “Rule 52(b) leaves the
decision to correct the forfeited error within the sound
discretion of the court of appeals, and the court should not
exercise that discretion unless the error seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quoting United States v. Young, 470 U.S. 1,
15 (1985) (internal quotations omitted)). Williamson fails to
establish that error occurred or that any error was “plain.”
Williamson argues that, because a sealed indictment
had been issued against him, introduction of his recorded
conversation with an informant acting at the direction of law
enforcement officers violated his right to counsel under the
Sixth Amendment. In support for his argument, Williamson relies
principally on Massiah v. United States, 377 U.S. 201 (1964),
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and Brewer v. Williams, 430 U.S. 387 (1986). Williamson cites
Brewer for the proposition that “[w]hatever else it may mean,
the right to counsel granted by the Sixth and Fourteenth
Amendments means at least that a person is entitled to the help
of a lawyer at or after the time that judicial proceedings have
been initiated against him ‘whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment’.”
Brewer, 430 U.S. at 398 (quoting Kirby v. Illinois, 406 U.S. 682(1972)).
However, Williamson’s selective quotation of Brewer
fails to support his position. The State in Brewer did not
contest the fact that judicial proceedings had begun against the
defendant when he was questioned by the police without counsel
present. Brewer, 430 U.S. at 399. Therefore, the question of
precisely when judicial proceedings are instituted against a
defendant was not before the Court. See Michigan v. Jackson,
475 U.S. 625, 629 (1986) (stating that the arraignment signals
the initiation of adversary judicial proceedings and thus the
attachment of the Sixth Amendment right to the assistance of
counsel) (internal quotations omitted). Moreover, Brewer and
Massiah are factually distinct from Williamson’s case as
officers in both cases interrogated the defendants after their
respective arraignments. Brewer, 430 U.S. at 390-92; Massiah,
377 U.S. at 202.
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In contrast, at the time of Williamson’s conversation
with the informant, all that had occurred was the issuance of a
sealed indictment and arrest warrant. This court has held that
the Sixth Amendment right to counsel does not attach even after
a defendant has been arrested based on the filing of a criminal
complaint nor is the right triggered during the period between a
defendant’s arrest and his arraignment. United States v.
Alvarado, 440 F.3d 191, 200 (4th Cir. 2006); United States v.
D’Anjou, 16 F.3d 604, 608 (4th Cir. 1994). Accordingly, in
light of Alvarado and D’Anjou, Williamson fails to demonstrate
any error by the district court in admitting the recording of
his conversation with the informant or that any such error was
“plain” or “clear” under current law. United States v. Brewer,
1 F.3d 1430, 1435 (4th Cir. 1993).
Williamson next contends that the district court
abused its discretion by requiring his substitute retained
counsel to go forward with the trial two days after he was
retained in exchange for granting Williamson’s motion to
withdraw his first retained counsel. Williamson appears to
allege that the district court abused its discretion by denying
his implicit motion for a continuance. Williamson’s argument is
without merit. First, both attorneys expressed to the district
court that they were prepared to try Williamson’s case two days
after jury selection. Additionally, the facts in the record,
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including that Williamson did not request substitute counsel
until the day of jury selection, indicate simply an eleventh
hour attempt at delay by a defendant wishing to avoid having to
face a potential life sentence. Therefore, the district court
did not err in granting Williamson’s motion to substitute
counsel and denying Williamson’s implicit motion for a
continuance.
Finally, Williamson suggests his trial counsel
rendered ineffective assistance. Claims of ineffective
assistance of counsel are not cognizable on direct appeal unless
the record conclusively establishes that counsel provided
ineffective assistance. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). The record here does not conclusively
establish trial counsel’s ineffective assistance.
Accordingly, we deny Williamson’s motion to file a pro
se supplemental brief and affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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