United States v. Ryan Holness , 706 F.3d 579 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4631
RYAN HOLNESS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(1:09-cr-00611-WMN-1)
Argued: October 4, 2012
Decided: February 11, 2013
Before KING, KEENAN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Keenan and Judge Thacker joined.
COUNSEL
ARGUED: Jonathan Alan Gladstone, Annapolis, Maryland,
for Appellant. John Francis Purcell, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. HOLNESS
OPINION
KING, Circuit Judge:
Following a jury trial in the District of Maryland, Ryan
Holness was convicted of interstate domestic violence and
attempted witness intimidation. Holness appeals, contending
that the district court erred by declining to suppress certain
aspects of the government’s evidence which, Holness alleges,
were obtained in deprivation of his Sixth Amendment right to
the assistance of counsel. Although the facts underlying his
claim of error fail to sustain Holness’s proffered Sixth
Amendment theory, the record indicates a potential abridge-
ment of his privilege against self-incrimination and concomi-
tant right to counsel, as secured by the Fifth Amendment.
Further factual development would permit a definitive resolu-
tion of the matter, but remand is unnecessary in this instance
because any Fifth Amendment error was harmless beyond a
reasonable doubt. We therefore affirm Holness’s convictions.
I.
About ten minutes before six o’clock in the morning on
June 5, 2009, dispatchers received a 911 call alerting them of
a carjacking on Route 290 near Crumpton, Maryland, on the
state’s Eastern Shore. The caller related that a woman had
possibly been stabbed in connection with the incident. Deputy
Amanda Knox of the Kent County Sheriff’s Office responded
to the residence of John and Kim Rolfe, where she encoun-
tered Holness on the front porch. It had been raining, and Hol-
ness was wet, shoeless, and shaking, with a wadded loop of
duct tape drooped around his neck. Knox asked about the
woman reported stabbed, but Holness stood mute. Mr. Rolfe
spoke up, informing the deputy that Holness had earlier vol-
unteered that the woman was his wife, and that she was in a
field off the road, about 500 yards south. With Maryland State
Troopers Sayles and Forte, who had just arrived on the scene,
Knox went to check on the woman.
UNITED STATES v. HOLNESS 3
Nearing their destination, the officers observed a number of
items strewn across the road, including a purse, a paperback
book, a tennis shoe, a woman’s sandal, Holness’s drivers
license, his military ID, and a roll of duct tape. The woman,
Serika Dunkley, lay dead in the field, having sustained eleven
stab wounds and several dozen cuts, including four to her
hands while defending the attack. The most serious wounds
were to Dunkley’s neck, critically compromising her left
internal jugular vein, her trachea, and her thyroid gland.
A.
Holness, born in Jamaica, immigrated to the United States
in 2001 and enlisted in the Navy the following year. In June
2003, he entered into a marriage of convenience with Dunk-
ley, his distant cousin, who then left Jamaica to live with Hol-
ness’s mother and brother in Brooklyn, New York. Holness
resided in an apartment in Lexington Park, Maryland, near his
duty station at the Patuxent River Naval Air Station. On
November 5, 2008, while accessing the internet with his
roommate’s computer, Holness used Dunkley’s personal
information to obtain a $500,000 insurance policy on her life.
Holness named himself as the policy’s beneficiary, charging
the monthly premiums of $74.37 to his personal credit card.
Holness’s landlord received federal tax credits from partici-
pating in a housing program, which permitted it to accord
Holness a rent reduction of $200 per month so long as Dunk-
ley’s name was also on the lease. The applicable regulations,
however, required Dunkley to execute the lease and any
renewals in person. Dunkley’s presence being required in
Maryland to execute a renewal, she departed from Brooklyn
with Holness in his blue Honda Accord on the evening of
June 4, 2009, unaware that the trip — and her life — would
come to an abrupt end in Crumpton a few hours later.
4 UNITED STATES v. HOLNESS
B.
1.
Deputy Knox and Trooper Forte returned to the Rolfe resi-
dence to interview Holness, who explained that he and Dunk-
ley had been accosted and carjacked by a masked male at a
rest area off the New Jersey Turnpike. Holness showed Knox
a four-centimeter laceration on his left wrist, and he described
the Honda to Forte. Holness was transported to a local hospi-
tal for treatment, where Dr. Deborah Davis diagnosed a non-
displaced rib fracture. Dr. Davis sutured and stapled Hol-
ness’s wrist laceration, recommending ibuprofen for the pain.
Holness remained at the hospital until mid-morning, when
two members of the Maryland State Police homicide unit,
Sergeant Stephen Hall and Sergeant Michael Smith, picked
him up and drove him to their barrack.
Prior to questioning him, the homicide officers informed
Holness of his rights in accordance with Miranda v. Arizona,
384 U.S. 436 (1966). See J.A. 78.1 Holness agreed to answer
questions without resort to counsel, telling a far more detailed
story than the one he recited to Deputy Knox. A gasoline
receipt revealed, and Holness confirmed, that he and Dunkley
had stopped at the Turnpike rest area around 11:15 p.m.
According to Holness, the carjacker brandished a firearm,
wore a ski mask, and used a voice modulator. Absent instruc-
tions to the contrary, Holness continued from the rest area
south toward Lexington Park until, at about 1:30 a.m., he was
directed to pull off the road onto an adjacent farm lane.
As the carjacker was binding Holness’s hands with duct
tape, Dunkley fled. The assailant pursued and Holness tried to
follow, hearing Dunkley’s alarmed protests: "He’s cutting me,
he’s cutting me." J.A. 311. The carjacker returned, slashed
1
Citations herein to "J.A. ___" refer to the contents of the Joint Appen-
dix filed by the parties to this appeal.
UNITED STATES v. HOLNESS 5
Holness on the forearm, then pushed him to the ground, kick-
ing him in the ribs. Holness said that he was ultimately
knocked unconscious by a kick to the jaw. He awakened four
hours later to find his ankles and wrists bound by duct tape,
with a black bandana stuffed in his mouth. Upon freeing him-
self, Holness walked north to the Rolfe residence to seek
assistance.
2.
At about 2 o’clock in the afternoon, as Sergeant Hall and
Sergeant Smith were winding down the initial interview of
Holness, their colleague, Corporal Colleen McCurdy, arrived
at the crime scene with her bloodhound, Lojack. McCurdy
took Lojack to a spot near where Dunkley’s body was found
and allowed him to sniff Holness’s socks, which had been
placed on the ground. Lojack began to track Holness’s path
— not north toward the Rolfe residence, but south toward the
Chester River. After a bit, Lojack veered off the road diago-
nally across a field toward a modular home, where he jumped
on the front door and then ran around to the back door before
retreating down a driveway back to Route 290.
From that location, Lojack continued south until he got to
the river, which he repeatedly attempted to enter. Corporal
McCurdy took Lojack onto the bridge, but he kept trying to
jump up on the rail, more interested in the water below. The
track ended at the river, so McCurdy and Lojack retraced their
steps to the point of origin. Once there, the dog crossed to the
opposite side of the road and began to whine, indicating that
he detected a powerful scent. McCurdy and Lojack then left.2
2
Corporal McCurdy testified that, consistent with her regular practice,
she was told nothing about the case upon her arrival other than where the
body was found. This explains, perhaps, why McCurdy did not attempt to
have Lojack pick up Holness’s scent heading north from the crime scene,
toward the Rolfe residence.
6 UNITED STATES v. HOLNESS
Holness returned to the crime scene shortly thereafter,
accompanied by Sergeant Hall and Sergeant Smith. Holness
had terminated his initial interview with the police and had
requested an attorney, but subsequently reinitiated contact for
the purpose of offering to physically reenact his version of
what had occurred. Upon again being advised of his Miranda
rights, see J.A. 83-84, Holness surveyed the scene and more
or less repeated his earlier story. Holness explained that he
had lost his shoe in the mud upon exiting the Honda, and that,
once he regained consciousness after being attacked, he real-
ized that he had somehow wound up on the opposite side of
the road.
Holness reiterated that, upon awakening, he immediately
headed north and sought assistance at the Rolfe residence, and
he categorically denied having walked south toward the river
and the bridge. Nevertheless, a resident of the modular home,
Cassandra Lupton, told the police that someone had knocked
on her front and back doors just before 3:30 a.m., when Hol-
ness was supposed to have been unconscious. Moreover, Dr.
Davis found no evidence of head trauma consistent with Hol-
ness having lost consciousness. The police returned Holness
to the barrack, where he again invoked his right to silence and
requested counsel. See J.A. 84.
Additional details gleaned from the investigation persisted
in rendering Holness’s story suspect. At about 5:00 or 5:15
a.m., during the latter stages of Holness’s purported incapac-
ity, Erin Boulter was delivering newspapers in the immediate
vicinity of the crime scene. Boulter swerved to miss an
African-American man with "something silver on his wrists,"
J.A. 659, standing in the road near the bridge. Though a crime
scene technician observed tape residue around Holness’s
neck, she found none around his wrists or ankles nor on his
clothing, and there was no cut on Holness’s long-sleeved shirt
to match the laceration on his forearm. Forensic investigators
did find Holness’s DNA at various locations on the roll of
unused duct tape, however, and, on Holness’s clothing, they
UNITED STATES v. HOLNESS 7
discovered chips of what they suspected (but could not con-
firm) was Dunkley’s fingernail polish.3
The police broadcast an interagency lookout for the Honda,
and, later that evening, the vehicle was located on H Street in
Washington, D.C., about an hour and twenty minutes away
from Crumpton. In the car, blood was found matching the
DNA profiles of Holness, Dunkley, and a third person denom-
inated "unknown Male 1." J.A. 674-75. The mystery man’s
blood also turned up on Dunkley’s sandal, her purse, and the
paperback book. An examination of the computer in Hol-
ness’s apartment revealed that, less than a week prior to the
trip, someone made search engine inquiries for Apex and
Greyhound websites. An Apex bus stop is located on H Street
in Washington, D.C., about a block from where the Honda
was recovered.
C.
1.
Holness’s story failed to convince the police, which
arrested and confined him on suspicion of involvement in
Dunkley’s killing. The grand jury for the state judicial district
in Maryland indicted Holness on July 2, 2009, charging him
with first- and second-degree murder. During his time in the
county detention center, Holness shared a cell with Stephen
McGrath, a contractor previously convicted of doing unli-
censed work and jailed ninety days in mid-July for failing to
fulfill his restitution obligations.
McGrath sent a letter dated August 18, 2009, to the Kent
County prosecutor, in which he asserted that he had "come
across some unique information regarding Ryan Holness."
Gov’t Exhibit No. 94-A. McGrath maintained that Holness
3
Dunkley’s cell phone signal registered on a tower in Crumpton at 1:23
a.m., but neither the phone nor the murder weapon has ever been found.
8 UNITED STATES v. HOLNESS
had told him "some interesting stuff which led me to believe
he actually killed his wife." Id. According to McGrath, Hol-
ness recalled that he and Dunkley had argued bitterly earlier
in the evening, that the couple "had stopped at a rest area,"
where, McGrath seemed to imply, Holness intended to physi-
cally confront Dunkley, but "something wasn’t right there."
Id. Holness thus "decided to head down to the Crumpton
area," having become familiar with the route on his numerous
trips to New York. Id. McGrath said that Holness confided
that he "almost got seen by a passing car as he was popping
the trunk" while the Honda was parked along Route 290, and
that he mentioned "something about going to someone’s
house for help but eventually changed his mind." Id.McGrath observed that Holness "is very much a loner and
keeps to himself much as I do," speculating that "this is the
reason why I believe he shared his secret with me." Gov’t
Exhibit No. 94-A. McGrath requested that the prosecutor let
him know whether his information was helpful, offering that
"[m]aybe if possible you can not object to my modification
[for a reduced sentence]. Not that I’m asking to make a deal
it’s just I’d rather not be in here if what I’ve learned has
helped you as I’m sure his lawyer will notify him of [this] let-
ter." Id. McGrath explained that he "just wanted to set the
record straight as honestly my children play in Crumpton and
I think what he did was awful." Id. McGrath signed the letter;
then, seemingly as an afterthought, he appended a postscript
in which his narrative became far less vague and oblique:
P.S. In short he killed his wife cause she found out
he was cheating, and his brother helped him. Also he
said his defense was planned from the beginning by
parking the car in a location where the alle[ged] car-
jacker would have been seen on tape leaving the car.
He told me that today after his Attorney obtained
discovery and he found out apparently that the foot-
age was dumped after 10 days and now his defense
UNITED STATES v. HOLNESS 9
is in jeopardy. It wasn’t never about the life insur-
ance.
Id.Sergeant Hall met with McGrath on August 31, 2009.
McGrath reiterated much of what he had set forth in the letter,
but he acknowledged that Holness had "never told him the
full story." Gov’t Exhibit No. 101-D. Indeed, McGrath related
to Hall that Holness had "never made a specific admission to
murdering his wife." Id. The "something" that "wasn’t right"
at the rest stop evidently turned out to refer to McGrath’s
impression of Holness’s forthrightness concerning one aspect
of the latter’s account, namely, that Holness "went out of his
way to urinate" in a secluded part of the parking lot "instead
of going in the store," just before the carjacker appeared. Id.McGrath did add, however, that Holness had expressed worry
over some of the physical evidence, including the blood found
in the Honda and the lack of duct tape residue on his arms.
With respect to the postscript, McGrath clarified that the
rather stark conclusions drawn therein were "strictly his inter-
pretation based on the information and statements Holness has
provided." Gov’t Exhibit No. 101-D. The meeting resulted in
no agreement for a reduction of sentence, with McGrath not-
ing that "he only had 40 days left to serve and wasn’t too con-
cerned about whether the judge grants [the motion for
modification] or not." Id. Sergeant Hall invited McGrath to
reinitiate contact if Holness volunteered additional informa-
tion, but cautioned him to not ask any direct questions.
Not long thereafter, Holness asked McGrath to help him
write a letter, which Holness planned to have delivered to the
Washington Post and other area newspapers. The letter, with
the anonymous (yet remorseful) carjacker as its purported
author, was designed to divert suspicion from Holness by sug-
gesting that the real culprit in Dunkley’s murder was yet at
large. McGrath forwarded news of the plan to Sergeant Hall,
10 UNITED STATES v. HOLNESS
who, on September 15, 2009, provided McGrath with a
recording device, which McGrath kept hidden in his pillow.
At first, Holness dictated the contents of the letter for
McGrath to transcribe, but Holness became dissatisfied with
the effort. Thereafter, Holness himself composed, then
destroyed, a second draft of the letter, of which McGrath was
able to retain one page and recite the remainder into the
recorder. At a meeting on October 1, 2009, McGrath provided
Sergeant Hall with the letter fragment and the recorder. Hall
used the information to obtain a search warrant for the cell,
which was executed on October 6, 2009. Among the items
recovered was the intact initial draft of the letter in McGrath’s
handwriting.
McGrath was released from custody thirteen days early, on
October 10, 2009, but only as the result of accumulated good-
time credits; the prosecutor had filed an opposition to
McGrath’s motion for a reduced sentence, and the motion was
denied. Shortly after McGrath’s release, Holness was found in
possession of a shank and placed in solitary confinement. On
the wall of his new cell, he scrawled "Stephen Scott McGrath,
rat snitch," together with McGrath’s home address and phone
number.
2.
At about the same time, on October 13, 2009, Sergeant Hall
met with representatives of the United States Attorney’s
office in Baltimore to explore transferring the case for prose-
cution. The discussion proved fruitful, as a federal grand jury
returned a single-count indictment against Holness on
November 24, 2009. Six days later, on the prosecution’s
motion, the state court charges were dismissed. See J.A. 112.
The operative Second Superseding Indictment, filed March 1,
2011, charged Holness with interstate domestic violence
(Count One), attempted obstruction of an official proceeding
UNITED STATES v. HOLNESS 11
(Count Two), attempted witness intimidation (Count Three),
and fraudulent misuse of a passport (Count Four).4
Holness moved the district court to suppress all statements
he made to McGrath and any evidence obtained as a result.
The court conducted a pretrial motions hearing on March 14,
2011, at the conclusion of which it denied the motion to sup-
press, but granted Holness’s motion to sever Count Four. A
jury was then empaneled, which, over the following two
weeks, heard the trial evidence as set forth above.
In addition, when McGrath took the stand, the jurors heard
something new. On its direct examination, the government
inquired of McGrath, "Do you recall Mr. Holness ever telling
you anything . . . about what happened to the murder
weapon?" J.A. 508. McGrath acknowledged in the affirma-
tive: "He just kind of said, ‘Well, I threw them in the river.’"
Id. After permitting the jury a few minutes to process that
information, the government reinforced the point as McGrath
was invited to explain various aspects of his August 18, 2009
letter. The government asked McGrath, "[W]hat particular
secret is it that you were relating to when you said that Mr.
Holness shared his secret with me?" Id. at 516. McGrath
4
The Second Superseding Indictment alleged with regard to Count One
that Holness "traveled in interstate commerce with the intent to kill and
injure a spouse . . . and in the course of and as a result of such travel, com-
mitted and attempted to commit a crime of violence against that spouse,"
J.A. 41, in violation of 18 U.S.C. § 2261(a)(1). Count Two, stemming
from the letter-writing scheme with McGrath, asserted that Holness "did
corruptly attempt to obstruct, influence, and impede an official proceed-
ing," J.A. 42, as proscribed by 18 U.S.C. § 1512(c)(2). The "outing" of
McGrath via the cell graffiti resulted in Count Three, which charged that
Holness "did knowingly attempt to intimidate and threaten a witness . . .
with the intent to influence, delay, and prevent the testimony of S.M. in
an official proceeding," J.A. 43, in contravention of 18 U.S.C.
§ 1512(b)(1). Count Four related to a January 2008 incident whereby Hol-
ness reported his daughter’s passport lost in order to obtain a duplicate that
he hoped would allow his son to enter the country from Jamaica, see J.A.
44, conduct alleged to have run afoul of 18 U.S.C. § 1544.
12 UNITED STATES v. HOLNESS
responded, "The fact that he said he threw the knives in the
river, the knife in the river." Id.5
At the conclusion of trial, on March 28, 2011, the jury
returned a guilty verdict on the three counts. On June 9, 2011,
the district court entered judgment on the verdict, sentencing
Holness to life imprisonment on Count One, with a 240-
month concurrent term on Count Three. Pursuant to the gov-
ernment’s motion, the court dismissed Count Two and Count
Four. Holness appeals.
II.
Absent clear error, we will not disturb any findings of fact
made by the district court in support of its ruling on a motion
to suppress. See United States v. Davis, 690 F.3d 226, 233
(4th Cir. 2012). The court’s legal conclusions, however, are
reviewed de novo. See id. Where, as here, the challenged rul-
ing entails the denial of a criminal defendant’s motion to sup-
press, we view the evidence in the light most favorable to the
government. See id. Though a trial error be of constitutional
dimension, "an otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the whole
record, that [it] was harmless beyond a reasonable doubt."
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); see
Chapman v. California, 386 U.S. 18, 24 (1967).
III.
Holness maintains that the district court erroneously "fail-
[ed] to suppress evidence which flowed from Stephen
McGrath’s activities after speaking with the police," that is,
Sergeant Hall, on August 31, 2009. Br. of Appellant 15.
McGrath, Holness contends, became an agent of the police as
5
McGrath’s revelation of Holness’s previously undisclosed admission
regarding the murder weapon appears to have initially been made before
the grand jury. See J.A. 552.
UNITED STATES v. HOLNESS 13
a result of the August 31 meeting. Holness had by then
retained the services of a public defender in connection with
the state murder charge, and that lawyer was not present dur-
ing his subsequent jail cell conversations with McGrath.
These conversations, according to Holness, amounted to
police interrogation in contravention of the Sixth Amendment,
which assures that "[i]n all criminal prosecutions," the
accused shall "have the assistance of counsel for his defense."
U.S. Const. amend. VI; see Miranda v. Arizona, 384 U.S.
436, 465 n.35 (1966) (observing that the denial to an accused
of access to his attorney, "[i]ndependent of any other constitu-
tional proscription, . . . constitutes a violation of the Sixth
Amendment right to the assistance of counsel and excludes
any statement obtained in its wake" (citation omitted)).
A.
Holness’s argument finds its genesis in Massiah v. United
States, 377 U.S. 201 (1964), in which the Supreme Court held
that the defendant "was denied the basic protections" of his
Sixth Amendment right to counsel by the admission of
uncounseled post-indictment statements obtained from a lis-
tening device supplied by the police to a cooperating codefen-
dant. Id. at 206. These statements were the product of active
interrogation, according to the Court, in that they had been
"deliberately elicited" by the government. Id.Some years later, we found occasion to apply Massiah in
the prison environment. In Henry v. United States, 590 F.2d
544 (4th Cir. 1978), the government enlisted an inmate infor-
mant to engage the defendant, who proceeded to make incrim-
inating statements concerning his participation in an armed
robbery for which he was awaiting trial. When trial arrived,
the government relied on the statements to secure a guilty ver-
dict against the defendant. We set aside the conviction, deter-
mining that the government’s actions in obtaining the
statements breached the defendant’s Sixth Amendment right
to counsel, as set forth in Massiah. See 590 F.2d at 546-47.
14 UNITED STATES v. HOLNESS
The Supreme Court accepted certiorari and affirmed. See
United States v. Henry, 447 U.S. 264 (1980).
In confirming that Massiah controlled, the Supreme Court
eschewed the notion that the government had not deliberately
elicited the statements at issue merely because it had cau-
tioned the informant "not to question Henry about the rob-
bery." Henry, 447 U.S. at 270. The Court instead considered
it more significant that the informant was facilitating the gov-
ernment’s agenda and being compensated therefor, that the
resultant agency relationship had not been disclosed to the
defendant, and that the defendant was susceptible to the pres-
sures of confinement while under indictment. See id. at 270-
74.
Here, the government strives to distinguish Massiah and
Henry by attempting to persuade us that McGrath was merely
a "‘listening post’" stationed in Holness’s cell. See Muehle-
man v. Florida, 484 U.S. 882, 885 (1987) (quoting Kuhlmann
v. Wilson, 477 U.S. 436, 456 n.19 (1986)). Consistently there-
with, the government describes its star witness’s conduct as
strictly passive and therefore not interrogation geared toward
deliberately eliciting statements such as the ones Holness
sought to suppress.
Putting aside, for the time-being, the accuracy of the gov-
ernment’s portrayal, we observe that Holness’s pursuit of
relief pursuant to the Sixth Amendment encounters a road-
block not confronted by the defendants in Massiah or Henry.
Although those prior cases arose in the same procedural pos-
ture as Holness’s, that is, they involved appeals stemming
from federal prosecutions, a critical distinguishing feature
here is that the actions alleged to have resulted in a constitu-
tional violation were taken by state authorities prior to the
defendant’s indictment on federal charges. Had Holness pro-
ceeded to trial in state court, the Sixth Amendment issue
would have been squarely presented.6 However, the right to
6
The right to counsel afforded federal defendants by the Sixth Amend-
ment applies with equal force to state criminal proceedings by virtue of its
UNITED STATES v. HOLNESS 15
counsel secured by the Sixth Amendment has been deemed
"offense specific," i.e., "[i]t cannot be invoked once for all
future prosecutions, for it does not attach until a prosecution
is commenced." McNeil v. Wisconsin, 501 U.S. 171, 175
(1991).
To illustrate, in Texas v. Cobb, 532 U.S. 162 (2001), the
defendant reported his wife and infant daughter missing in the
aftermath of a supposed burglary of the family’s home. The
defendant eventually confessed to the burglary, for which he
was indicted and given a lawyer. With his counsel present, the
defendant was twice interrogated concerning the disappear-
ances, but he denied any involvement. Later, the defendant
was arrested on suspicion of murder in connection with the
disappearances, given Miranda warnings, and, after waiving
his rights, confessed to killing his family.
On state appellate review, the defendant obtained reversal
of his conviction and resultant death sentence, but the
Supreme Court reinstated the trial court’s judgment. In so rul-
ing, the Court concluded that the defendant’s invocation of his
Sixth Amendment right to counsel, while effective with
respect to the initial burglary prosecution, was ineffective as
to the subsequent murder proceedings because the charged
offenses were different, namely, burglary and murder, each of
which "‘requires proof of a fact which the other does not.’"
Cobb, 532 U.S. at 174 (quoting Blockburger v. United States,
284 U.S. 299, 304 (1932)).
B.
1.
In the case before us, Holness seeks to attack the validity
of his federal conviction for interstate domestic violence
incorporation through the Fourteenth Amendment. See Gideon v. Wain-
wright, 372 U.S. 335, 342-45 (1963).
16 UNITED STATES v. HOLNESS
based on the invocation of his Sixth Amendment right to
counsel in connection with a prior state charge of murder. To
convict Holness of murder in the first degree, the State of
Maryland would have had to prove that he committed "a
deliberate, premeditated, and willful killing." Md. Code,
Crim. Law, § 2-201(a)(1). Holness’s conviction on the federal
charge of interstate domestic violence, on the other hand, was
contingent on the government showing that he
travel[led] in interstate or foreign commerce . . . with
the intent to kill, injure, harass, or intimidate a
spouse, intimate partner, or dating partner, and . . .
in the course of or as a result of such travel, commit-
[ted] or attempt[ed] to commit a crime of violence
against that spouse, intimate partner, or dating part-
ner.
18 U.S.C. § 2261(a)(1).
The two offenses, when juxtaposed, fail the Blockburger
test for identity. One readily discernible difference is that a
conviction for first-degree murder in Maryland requires proof
of a "killing," while the victim’s death is not a prerequisite for
a conviction under § 2261(a)(1); conversely, interstate travel
must be shown in connection with the federal offense, but no
such condition adheres to the state offense. Even were the
contrast not so stark, "federal and state crimes are not the
same offense, no matter how identical the conduct they pro-
scribe." United States v. Alvarado, 440 F.3d 191, 196 (4th
Cir. 2006) (citations omitted); see United States v. Coker, 433
F.3d 39 (1st Cir. 2005).
In Alvarado, the defendant was arrested on state drug
charges after waiving his Miranda rights and answering ques-
tions. The state provided Alvarado with a lawyer, but then
dismissed the charges following his preliminary hearing,
releasing him to ATF custody in response to a federal crimi-
nal narcotics complaint. After again being given Miranda
UNITED STATES v. HOLNESS 17
warnings, Alvarado, without counsel present, made incrimi-
nating statements. Applying Cobb, we rejected Alvarado’s
constitutional challenge to his conviction, concluding that
"the Sixth Amendment right to counsel in the state proceed-
ings did not survive the dismissal of state charges. [The]
defendant’s state and federal offenses were inherently distinct
under the dual sovereignty doctrine." See 440 F.3d at 198.
Coker clearly illustrates the proper application of Cobb in
the dual-sovereignty context. In Coker, the defendant was
arraigned in state court and appointed a lawyer to defend him
on arson and injury-to-property charges stemming from a
dwelling fire ignited by a Molotov cocktail. The fire depart-
ment alerted the ATF, which led to Coker being questioned
by federal authorities outside the presence of counsel after
receiving Miranda warnings and giving his consent to pro-
ceed. During the interview, Coker confessed to setting the
fire, after which he was indicted by a grand jury and con-
victed in federal court of attempted arson. The court of
appeals rejected Coker’s Sixth Amendment challenge, noting
that although the state and federal arson charges "both . . .
involved the same essential elements of proof," see 433 F.3d
at 42, "the dual sovereignty doctrine applies for the purposes
of defining what constitutes the same offense" for right-to-
counsel purposes, id. at 44.
2.
Holness nonetheless insists that the strictures of Cobb and
Alvarado must yield to and be interpreted in light of Elkins v.
United States, 364 U.S. 206 (1960). In Elkins, state law
enforcement officers executed a search warrant at a suspicious
residence, expecting to seize pornography. There was no por-
nography, but there was wiretapping paraphernalia. The state
instituted criminal proceedings, but the trial court granted the
defendants’ motion to suppress the seized evidence on the
ground that the search was unlawful. Meanwhile, federal
authorities executed their own search warrant on the safety
18 UNITED STATES v. HOLNESS
deposit box where the state had placed the evidence. The state
charges were abandoned, but, shortly thereafter, the defen-
dants were indicted by a grand jury and convicted of federal
wiretap offenses after the district court denied their suppres-
sion motion. The court of appeals affirmed the convictions,
deeming irrelevant the lawfulness of the state search and sei-
zure "because there had been no participation by federal offi-
cers." Elkins, 364 U.S. at 208.
The Elkins Court vacated and remanded, ruling that, as dic-
tated by the Fourth Amendment’s applicability to the states by
virtue of its Fourteenth Amendment incorporation, "evidence
obtained by state officers during a search which, if conducted
by federal officers, would have violated the defendant’s
immunity from unreasonable searches and seizure . . . is inad-
missible over the defendant’s timely objection in a federal
criminal trial." 364 U.S. at 223. The Court noted that a con-
trary rule "implicitly invites federal officers . . . at least tacitly
to encourage state officers in the disregard of constitutionally
protected freedom," providing an "inducement to subterfuge
and evasion with respect to federal-state cooperation in crimi-
nal investigation." Id. at 221-22.
We perceive no urgency in this case prompting us to
employ Elkins to craft an exception through which the Sixth
Amendment right to counsel might apply beyond its offense-
specific limitations. There is certainly no suggestion in the
record before us that the state authorities engaged in any mis-
conduct for which they might seek, through collusion with the
federal government, to avoid the attendant ramifications.
Moreover, as we explain in Part V, infra, the Fifth Amend-
ment affords us ample opportunity to analyze and evaluate the
conduct of which Holness complains, i.e., his police-
prompted interaction with McGrath while detained on the
authority of the State of Maryland.
It comes as no surprise, then, that at the suppression hear-
ing, the district court dutifully applied Cobb and Alvarado,
UNITED STATES v. HOLNESS 19
observing that "there was no involvement of the federal gov-
ernment" in advance of the August 31, 2009 meeting between
McGrath and Sergeant Hall. J.A. 119. The court thus arrived
at the inevitable conclusion that "the Sixth Amendment right
simply did not attach" to the federal charges. Id. Grounded in
the cited precedents, the court’s ruling on the discrete issue
before it was quite obviously correct, but we confront uncom-
mon circumstances here that necessitate further inquiry.
IV.
Mindful of our role as arbiter and not advocate, we make
no habit of venturing beyond the confines of the case on
appeal to address arguments the parties have deemed unwor-
thy of orderly mention or, perhaps, not contemplated at all.
Our general disdain for the helter-skelter manifests itself in
myriad specific ways, such as the oft-cited "rule that conten-
tions not raised in the argument section of the opening brief
are abandoned." United States v. Al-Hamdi, 356 F.3d 564,
571 n.8 (4th Cir. 2004). We have implemented a similar rule
with respect to arguments raised solely in amicus briefs, on
the ground that such issues have "plainly been waived by the
only party entitled to pursue" them. Snyder v. Phelps, 580
F.3d 206, 216 (4th Cir. 2009), aff’d, 131 S. Ct. 1207 (2011).
Abandonment and waiver are therefore prominent concepts,
and we strive to apply their implementing rules on a consis-
tent basis, because they facilitate the Court’s business and
provide a substantial measure of fairness and certainty to the
litigants who appear before us.
These "rules," however, are not jurisdictional in the sense
that they encroach in any fashion upon our inherent authority
to consider and decide pertinent matters that otherwise may
be ignored as abandoned or waived. Thus, we possess the dis-
cretion under appropriate circumstances to disregard the par-
ties’ inattention to a particular argument or issue. See Rice v.
Rivera, 617 F.3d 802, 808 n.4 (4th Cir. 2010) (citing A Help-
ing Hand, LLC v. Balt. Cnty., Md., 515 F.3d 356, 369 (4th
20 UNITED STATES v. HOLNESS
Cir. 2008)). One factor that may militate in favor of exercis-
ing that discretion exists when the facts have been sufficiently
developed to readily permit evaluation of an alternative legal
theory. See New Amsterdam Cas. Co. v. Waller, 323 F.2d 20,
24-25 (4th Cir. 1963) (declining on remand to construe as
judicial admission counsel’s prior legal stipulation disproved
on appeal, as informed by modern pleading practice that "a
party’s misconception of the legal theory of his case does not
work a forfeiture of his legal rights"), cited in Rice, 617 F.3d
at 808 n.4.
Other factors include enhancing the efficiency of the deci-
sionmaking process and the conservation of scarce judicial
resources. See LaBruna v. U.S. Marshal, 665 F.2d 439, 442
(2d Cir. 1981) (deviating from "customary rule" to consider
argument not presented to district court insofar as appellate
ruling would "promote interest of judicial economy since the
record is already adequate to permit a determination," and
remand "would further postpone the ultimate resolution of"
the petitioner’s underlying claim for relief). The court of
appeals in United States v. Giovannetti, 928 F.2d 225 (7th Cir.
1991), recognized that it could, on its own accord and not-
withstanding the government’s failure to raise the issue,
assess the harmlessness of an error in a criminal trial. To
determine whether it should exercise such discretion, the Sev-
enth Circuit identified "the controlling considerations" as the
size of the record and its complexity, the degree to which the
court could be certain of its resultant legal analysis, and
whether avoiding the issue would "result in protracted, costly,
and ultimately futile proceedings in the district court." Id. at
227.
In Holness’s case, we discern the need to evaluate the mer-
its of the constitutional implications of his interactions with
McGrath following the latter’s meeting with Sergeant Hall.
We have already concluded that no acts imputable to the State
of Maryland worked any deprivation of Holness’s Sixth
Amendment right to counsel with respect to the federal
UNITED STATES v. HOLNESS 21
charges of which he stands convicted. A substantial question
remains, however, as to whether those same acts contravened
Holness’s Fifth Amendment rights. We think the issue fairly
arises from the face of the record, and that it may be defini-
tively resolved thereon. That record, though voluminous, has
not been rendered inscrutable by its length. Evaluating on
direct appeal the application of the Fifth Amendment is likely
to promote judicial economy, insofar as our disposition now
will conserve the time and effort that would otherwise be
expended in the inevitable habeas corpus proceeding to
develop a claim that counsel was ineffective for neglecting to
bring the matter to our attention.
V.
A.
1.
The Fifth Amendment provides, among other things, that
no one "shall be compelled in any criminal case to be a wit-
ness against himself." U.S. Const. amend. V. This "privilege
against self-incrimination," Miranda v. Arizona, 384 U.S.
436, 478 (1966), is safeguarded in part by the familiar pro-
phylactic warnings given to arrestees that, for example, they
have the right to remain silent and the right to the presence of
an attorney — the latter at public expense, if necessary, see
id. at 479. Thus, although the text of the Amendment does not
specifically confer any entitlement to legal representation in
criminal cases, the Supreme Court, through its implementing
decisions, has "declared that an accused has a Fifth and Four-
teenth Amendment right to have counsel present during custo-
dial interrogation." Edwards v. Arizona, 451 U.S. 477, 482
(1981).
Though deriving from the privilege against self-
incrimination, the Fifth Amendment right to counsel is dis-
crete therefrom, as signified by the means the police must
22 UNITED STATES v. HOLNESS
employ in response to the invocation of either. See Edwards,
451 U.S. at 482 ("If the accused indicates that he wishes to
remain silent, the interrogation must cease. If he requests
counsel, the interrogation must cease until an attorney is pres-
ent."). The right to counsel embodied in the Fifth Amendment
is likewise distinct from its Sixth Amendment counterpart.
Whereas the Sixth Amendment entitlement attaches only in
"criminal prosecutions," i.e., upon indictment or other com-
mencement of formal proceedings, the Fifth Amendment right
may arise beforehand, whenever a suspect is taken into cus-
tody and questioned.
The interplay is perhaps best illustrated in McNeil v. Wis-
consin, 501 U.S. 171 (1991). The suspect in that case, upon
arrest for an armed robbery during a burglary near Milwau-
kee, refused to answer any questions but failed to request an
attorney; he was nonetheless assigned a public defender at his
initial appearance. Remaining in custody through the follow-
ing week, the suspect was thrice questioned concerning differ-
ent offenses (an armed robbery and murder in Racine
County), and he waived his Miranda rights on all three occa-
sions. Based in part on his statements, the suspect was for-
mally charged with the Racine crimes.
The Supreme Court determined that the suspect having
availed himself of his Sixth Amendment right to counsel in
connection with the Milwaukee robbery charge did not render
his subsequent uncounseled statements concerning the Racine
offenses "the invalid product of impermissible approaches" by
the police. McNeil, 501 U.S. at 177. Justice Scalia, writing for
the Court, explained:
The purpose of the Sixth Amendment counsel guar-
antee . . . is to protect the unaided layman at critical
confrontations with his expert adversary, the govern-
ment, after the adverse positions of government and
defendant have solidified with respect to a particular
alleged crime. The purpose of the Miranda-Edwards
UNITED STATES v. HOLNESS 23
guarantee, on the other hand . . . is to protect a quite
different interest: the suspect’s desire to deal with
the police only through counsel.
Id. at 177-78 (citations, internal quotation marks, and alter-
ations omitted). The Fifth Amendment right to counsel
applies in a narrow sense "only to custodial interrogation," but
it broadly "relates to interrogation regarding any suspected
crime and attaches whether or not the adversarial relationship
produced by a pending prosecution has yet arisen." Id. at 178(internal quotation marks omitted). Thus, although the Sixth
Amendment right to counsel is offense-specific, the similar
right derived from the Fifth Amendment is not. See id. at 177.7
2.
The threshold question, then, is whether Holness had
invoked, and not waived, his entitlements under the Fifth
Amendment — either his right to counsel or his privilege
against self-incrimination — at the time he made his incrimi-
nating statements in McGrath’s presence. Holness had earlier
waived both rights, first at his initial interview and then again
that same day upon reinitiating contact with Sergeant Hall and
Sergeant Smith for the purpose of returning to the crime scene
to reenact his version of events. See Edwards, 451 U.S. at
484-85 (explaining that, upon accused’s invocation of Fifth
Amendment right to an attorney, uncounseled interrogation
must cease "unless the accused himself initiates further com-
munication, exchanges, or conversations with the police"). At
7
It follows that "[t]o invoke the Sixth Amendment interest is, as a matter
of fact, not to invoke the Miranda-Edwards interest. One might be quite
willing to speak to the police without counsel present concerning many
matters, but not the matter under prosecution." McNeil, 501 U.S. at 178.
Justice Scalia concluded, "To find that the defendant invoked his Fifth
Amendment right to counsel on the present charges merely by requesting
the appointment of counsel at his arraignment on the unrelated charge is
to disregard the ordinary meaning of that request." Id. at 178-79 (citations,
internal quotation marks, and alterations omitted).
24 UNITED STATES v. HOLNESS
the hearing on the suppression motion, however, it was estab-
lished that once Holness realized that the police would not be
persuaded of his innocence, he reasserted his Fifth Amend-
ment protections:
[SERGEANT HALL]: I readvised him [of his
Miranda rights] before the reenactment.
[DEFENSE COUNSEL]: Before the reenactment?
A: Yes.
Q: When you returned to the Centerville barracks,
. . . was there another advisement of rights at that
point?
A: No.
Q: And then that interview lasted a while longer
and then eventually Mr. Holness again requested —
A: Yes.
Q: — counsel?
A: Yes. He asked for an attorney, yes.
***
Q: Okay. And it’s your testimony that he stopped,
I mean you stopped the interview immediately upon
him asking for an attorney?
A: The second time, yes.
J.A. 83-84, 86.8
8
An assistant public defender entered his appearance on behalf of Hol-
ness in the Kent County District Court on June 15, 2009. See J.A. 105.
UNITED STATES v. HOLNESS 25
Holness’s request for counsel was ultimately honored, and
he was never again questioned by the police prior to being
indicted in July 2009 by the State of Maryland, or, thereafter,
up to the time that McGrath returned to their shared cell upon
meeting with Sergeant Hall in August 2009, or, following
McGrath’s release, before the dismissal of the state charges
upon return of the federal indictment in November 2009.
After his initial appearance before the district court, Holness
was in short order provided with an attorney under the Crimi-
nal Justice Act, see J.A. 4, and there is no indication that he
was ever interviewed by the federal authorities.
Holness’s deliberate invocation of his Fifth Amendment
rights distinguishes his situation from that of the defendant in
Illinois v. Perkins, 496 U.S. 292 (1990). In Perkins, the
police, upon receiving a tip that a prison inmate awaiting trial
on an unrelated charge had committed an unsolved murder,
placed an undercover officer in the inmate’s cellblock. The
inmate was charged with the murder after he confided his
involvement to the officer. The statements, however, were
suppressed by the trial court, and that ruling was upheld on
initial challenge, with the state court of appeals concluding
that Miranda "prohibits all undercover contacts with incarcer-
ated suspects that are reasonably likely to elicit an incriminat-
ing response." Perkins, 496 U.S. at 295 (citation and internal
quotation marks omitted).
The Supreme Court disagreed and reversed, observing that
"[c]onversations between suspects and undercover agents do
not implicate the concerns underlying Miranda." Perkins, 496
U.S. at 296. The Court continued: "The essential ingredients
of a police-dominated atmosphere and compulsion are not
present when an incarcerated person speaks freely to someone
The same attorney continued to represent Holness in the Kent County Cir-
cuit Court after the state indictment and until the state charges were dis-
missed. Id. at 105, 112.
26 UNITED STATES v. HOLNESS
whom he believes to be a fellow inmate." Id. (citations and
internal quotation marks omitted). The Fifth Amendment
privilege against self-incrimination, the Court recalled, is trig-
gered by custodial interrogation, but the "custody in a techni-
cal sense" to which prisoners are routinely subjected, see id.
at 297, is not the coercive custody contemplated by Miranda.
See Perkins, 496 U.S. at 296-97; see also Howes v. Fields,
132 S. Ct. 1181, 1189 (2012) (explaining that "custody," in
the Miranda context, "is a term of art that specifies circum-
stances that are thought generally to present a serious danger
of coercion"); Montejo v. Louisiana, 556 U.S. 778, 795
(2009) (emphasizing that "[i]f the defendant is not in custody
then" Miranda and Edwards "do not apply").
In effect, then, it was irrelevant in Perkins that the incrimi-
nating statements were made in prison, as the same result
would have obtained had the suspect’s dialogue with the
undercover officer taken place at the local tavern. In neither
case would the police have been operating under the encum-
brance of a preexisting invocation of the suspect’s Fifth
Amendment rights. Justice Brennan, writing separately in
Perkins, acknowledged as much:
Nothing in the Court’s opinion suggests that, had
respondent previously invoked his Fifth Amendment
right to counsel or right to silence, his statements
would be admissible. If respondent had invoked
either right, the inquiry would focus on whether he
subsequently waived the particular right.
496 U.S. at 300 n.* (Brennan, J., concurring in the judgment)
(citations omitted). Justice Brennan surmised, without contra-
diction from the majority, that "[s]ince respondent was in cus-
tody on an unrelated charge when he was questioned, he may
be able to challenge the admission of these statements if he
previously had invoked his Miranda rights with respect to that
charge." Id. (citation omitted).
UNITED STATES v. HOLNESS 27
Justice Brennan’s observation makes sense generally, on
the one hand, given the Supreme Court’s pronouncement in
Arizona v. Roberson, 486 U.S. 675 (1988), that the Fifth
Amendment entitlement to counsel applies not only to the
offense with respect to which it is first invoked, but also to
circumstances "in which the police want to interrogate a sus-
pect about an offense that is unrelated to the subject of their
initial interrogation." Id. at 677. In Roberson, the suspect was
arrested for burglary, and, upon being advised of his Miranda
rights by the arresting officer, requested a lawyer. Three days
later, another officer arrived at the jail to question the suspect
concerning a different burglary. Although the second officer
again administered Miranda warnings, the incriminating
statements obtained as the result of the interrogation were
adjudged properly suppressed in light of the Edwards rule
that, absent initiation of contact by the suspect, questioning
could only have recommenced after counsel had been pro-
vided. See Roberson, 486 U.S. at 683 ("[T]he presumption
raised by a suspect’s request for counsel — that he considers
himself unable to deal with the pressures of custodial interro-
gation without legal assistance — does not disappear simply
because the police have approached the suspect, still in cus-
tody, still without counsel, about a separate investigation.").
On the other hand, it is difficult to square Justice Brennan’s
ruminations with the particular facts before the Court in Per-
kins, being mindful of the majority’s focus on custody (or
lack thereof) as the determinative factor. Regardless of
whether the inmate had previously invoked his Fifth Amend-
ment right to counsel, he simply was not in custody in the
same sense as the suspect in Roberson, whom, though also
residing in jail, had been isolated by the police for question-
ing.
3.
Seeking elucidation, we look to the Supreme Court’s recent
decision in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 121328 UNITED STATES v. HOLNESS
(2010). In Shatzer, the suspect was serving a sentence for sex-
ual abuse, and the police attempted to question him twice —
two and a half years apart — in the course of investigating a
different abuse allegation. The suspect was segregated in a
room away from the general prison population on both occa-
sions. On the first attempt, in 2003, the suspect refused to
speak without his attorney present; on the second, in 2006, the
suspect waived his right to counsel and made statements
implicating himself. As a result of the interrogation, the sus-
pect was charged with sexual abuse and convicted at a bench
trial after the trial judge denied suppression of the incrimina-
tory statements.
The Supreme Court deemed that ruling correct, concluding
that the Edwards rule is not of infinite duration, but may be
disregarded "when a suspect who initially requested counsel
is reinterrogated after a break in custody that is of sufficient
duration to dissipate its coercive effects." Shatzer, 130 S. Ct.
at 1222. The Court chose to set that "sufficient duration" at
fourteen days, a period affording "plenty of time for the sus-
pect to get reacclimated to his normal life, to consult with
friends and counsel, and to shake off any residual coercive
effects of his prior custody." Id. at 1223. The Court clarified,
however, that imposition of the two-week dissipation period
is not an engraved invitation for the authorities to pepper
incarcerated suspects with repeated runs at uncounseled inter-
rogation: "[W]e are not talking about ‘reinterrogating’ the
suspect; we are talking about asking his permission to be
interrogated." Id. at 1225.
Shatzer, then, and Roberson before it, are most instructive
concerning overt attempts at questioning suspects at jail,
while Perkins, in light of its facts, is probably more informa-
tive with respect to clandestine, covert attempts. In both situa-
tions, however, the presence or absence of custodial
interrogation is the key — as it always has been — in deter-
mining whether, with respect to questioning conducted out-
side the presence of counsel, the Edwards rule demands the
UNITED STATES v. HOLNESS 29
fruits thereof be suppressed. In Perkins, the suspect was never
in coercive custody, while in Shatzer, the requisite coercive
aspect had long dissipated, rendering valid the suspect’s Fifth
Amendment waiver. The Roberson interrogation, by contrast,
occurred well within the two-week custody barrier established
in Shatzer.
4.
Sergeant Hall, it goes without saying, never asked permis-
sion to station McGrath in Holness’s cell for the purpose of
recording any inculpatory statements regarding the death of
Serika Dunkley. The arrangement between Hall and McGrath
was instead a covert attempt to elicit incriminating informa-
tion from Holness, meaning that we should look primarily to
Perkins for guidance. In consideration of the views expressed
by Justice Brennan in his separate opinion — left unchal-
lenged by the majority — we are unprepared to say that the
Supreme Court in Perkins held for all time that suspects in
prison can under no circumstances be in coercive custody in
the presence of an unknown police agent. We are particularly
reluctant to so conclude in a case where, as here, the authori-
ties are fully aware that the suspect has invoked his Fifth
Amendment rights.
To be sure, a suspect in Holness’s shoes faces formidable
obstacles to establishing the requisite "police-dominated
atmosphere." Perkins, 496 U.S. at 296. The existing record
would support a conclusion that McGrath became an agent of
the police as a result of his August 31, 2009 meeting with Ser-
geant Hall. The record does not disclose, however, precisely
how long each day Holness was compelled to remain in
McGrath’s company throughout the critical month following.
We might assume that Holness and McGrath were apart at
least some of the time — perhaps for meals, showers, exer-
cise, and the like — though it seems clear that the relationship
between the two was considerably closer than that between
the suspect and government agent in Perkins. Although the
30 UNITED STATES v. HOLNESS
latter was referred to by the Perkins Court as the "cellmate"
of the former, 496 U.S. at 298, the agent was in fact stationed
only in the same cellblock as the suspect. See id. at 294.
Further, in light of McGrath’s observation as expressed in
his letter to Sergeant Hall that Holness "is very much a loner,"
it could reasonably be inferred that Holness may have relied
on McGrath almost exclusively for basic human contact. It is
not inconceivable that further development of the record
might reveal that the personal dynamic between Holness and
McGrath "generate[d] ‘inherently compelling pressures which
work[ed] to undermine [Holness’s] will to resist and to com-
pel him to speak where he would not otherwise do so freely.’"
Perkins, 496 U.S. at 296 (quoting Miranda, 384 U.S. at 467).
The question of whether McGrath’s conversations with
Holness constituted interrogation could also be resolved on
remand. The district court touched upon the matter briefly at
the suppression hearing, but the court’s comments could
hardly be construed as findings. The court mused:
[F]rom the evidence that I heard from Sergeant
Hall’s testimony and the recording of what we heard
in terms of what he, in fact, told Mr. McGrath,
although he may not have told him to be a listening
post, he made it clear to him that he could not be
a[n] interrogator. So that from Sergeant Hall’s per-
spective there was no violation that would attach to
the government.
J.A. 120 (emphasis added). The court at that point had not
heard from McGrath, who testified at trial that he "listened to
[Holness a] majority of the time. I mean, unless he asked me,
something required me to ask him a question, then I never
asked him a question." Id. at 582-83.
Remand to develop the material facts relating to custody
and interrogation, however, is unnecessary. We will presume,
UNITED STATES v. HOLNESS 31
for purposes of our analysis, that any statements or acts attrib-
utable to Holness after McGrath’s meeting with Sergeant Hall
on August 31, 2009, were obtained in contravention of the
Fifth Amendment. As explained below, we nevertheless con-
clude that any Fifth Amendment error was, under the circum-
stances of this case, harmless beyond a reasonable doubt. See
Chapman v. California, 386 U.S. 18, 24 (1967).
B.
1.
In order for the Chapman harmless-error standard to be sat-
isfied, we need be convinced that the constitutional error "‘did
not contribute’" to Holness’s conviction. Arizona v. Fulmi-
nante, 499 U.S. 279, 296 (1991) (quoting Chapman, 386 U.S.
at 26). To put it another way, we must "be able to say with
fair assurance, after pondering all that happened without strip-
ping the erroneous action from the whole, that the judgment
was not substantially swayed by the error." United States v.
Abu Ali, 528 F.3d 210, 256 (4th Cir. 2008) (citation and inter-
nal quotation marks omitted). It is therefore not enough that
Holness’s jury could have found him guilty absent the sup-
posed constitutional violation, for "[s]uch an analysis improp-
erly conflates sufficiency-of-the-evidence review with the
appropriate Chapman standard." Virgin Islands v. Martinez,
620 F.3d 321, 338 (3d Cir. 2010).
Nonetheless, the relative prominence and effect of the pre-
sumed Fifth Amendment error cannot be assessed in isolation,
without an examination of the totality of the evidence before
the jury. We begin by acknowledging that the government’s
case was predominantly circumstantial. The third person in
the Honda that evening, i.e., "unknown Male 1," was not
apprehended or identified; consequently, there were no wit-
nesses who directly testified to Holness’s involvement. The
murder weapon was not recovered. Absent a signed confes-
sion from Holness, a guilty verdict depended in significant
32 UNITED STATES v. HOLNESS
part on the jury disbelieving his version of events as demon-
strably inconsistent with some of the physical evidence. In
counterpoint — and of considerable importance here — the
government was not required to prove that Holness actually
killed Dunkley, but only that he aided or abetted his alleged
accomplice, or procured the commission of the murder. See
18 U.S.C. § 2(a).
2.
Assuming, for the sake of argument, that all evidence of
any interaction between Holness and McGrath subsequent to
the latter’s meeting with Sergeant Hall should have been
excluded, that ruling would have pertained in relevant part to
the discussion and efforts concerning the proposed letter to
the Washington Post, McGrath’s aborted draft, the recovered
remains of Holness’s draft, and McGrath’s recording of the
remainder. By introducing this evidence of desperate mea-
sures on the part of Holness, the government obviously
intended for the jury to infer that his desperation was moti-
vated by having actually caused Dunkley’s death. The desired
inference was far from being compelled, however, in that
Holness’s actions plausibly could also have been those of an
innocent man who, realizing that juries are not infallible, was
preoccupied with the practical possibility that he was going to
be imprisoned for the rest of his life for a crime he did not
commit. The defense did not so portray the challenged evi-
dence, but the competing inferences are apparent enough to
have hardly escaped the jury’s notice.9
9
We would be remiss if we neglected to point out that, in arguing for
a judgment of acquittal on the obstruction count at the close of all the evi-
dence, defense counsel characterized Holness’s draft as "the document
that has become the centerpiece of this trial." Transcript of Proceedings,
March 25, 2011, at 7. We have independently reviewed the record, and
though we have nothing but the utmost respect for the viewpoints and
observations of the tireless advocates tasked with preserving the liberty of
those accused of crimes (and who are actually present to observe the
events in question), we think it unwise to uncritically credit the apparent
spontaneous hyperbole of counsel, begat in the heat of battle.
UNITED STATES v. HOLNESS 33
Exclusion of the letter scheme would not have required the
trial court to also bar evidence of Holness having subse-
quently decorated the wall of his cell with graffiti labeling
McGrath a "snitch," and McGrath would certainly have been
permitted to offer his testimony concerning anything he
observed prior to contacting Sergeant Hall. The majority of
those observations were detailed in McGrath’s letter, kernels
of fact among the chaff of opinion. These include the revela-
tions that: (1) Holness and Dunkley were fighting to the
extent that Dunkley mentioned the possibility of divorce; (2)
it was Holness’s decision (and not the carjacker’s) to drive to
Crumpton; (3) Holness was almost seen, and by implication
did not wish to be, as the Honda was pulled to the side of
Route 290 with its trunk open; (4) Holness changed his mind
about going to someone’s house for help; and (5) Holness
conspired with the carjacker to dispose of the Honda in a
manner that would deflect suspicion from himself.
Moreover, the physical evidence consistently indicated that
Holness did not tell the truth to the police. Dr. Davis diag-
nosed no injury that would have supported Holness’s conten-
tion that he lost consciousness, an assertion likewise belied by
Lojack’s tracking path and the corroborating testimony of
Lupton and Boulter. Holness maintained that he had been
bound by duct tape, yet his clothing bore no tape residue. The
wound on Holness’s arm was superficial, no matching rend or
tear was revealed on his clothing, and his DNA was found on
the tape roll, all of which suggests that Holness used the duct
tape and the unrecovered blade on himself. Finally, that the
Honda was recovered near an Apex bus stop, correlating to an
internet search made shortly before on a computer to which
Holness had unfettered access, is simply too tantalizing a hap-
penstance to discount.
3.
Most damning of all, however, was McGrath’s revelation
at trial that Holness admitted to having thrown in the river the
34 UNITED STATES v. HOLNESS
weapon or weapons used to murder Serika Dunkley. As
McGrath clarified through his testimony, this "secret," alluded
to in his August 31, 2009 letter to Sergeant Hall, was dis-
closed to him by Holness prior thereto. Inasmuch as there was
no evidence of McGrath having received anything of value in
exchange for implicating Holness, the jury was entitled to
accord his testimony significant weight unless there was some
justification for discrediting it. Holness’s admission, if cred-
ited, was far more directly probative of his guilt than his
belated attempt to engineer an ambiguously motivated clumsy
scheme to deflect the investigators’ suspicions.10
Beyond the potential risk of taint presented by portions of
McGrath’s testimony, the evidence of Holness’s guilt went far
beyond mere sufficiency. Given the entirety of the circum-
stances, we are satisfied to say that the district court’s judg-
ment, entered on the jury’s guilty verdict, could not have been
substantially swayed by the evidence that may have been
admitted in violation of the Fifth Amendment. That being the
case, we are convinced that any constitutional error in Hol-
ness’s trial did not contribute to his convictions and was
therefore harmless.
10
Defense counsel, perhaps out of tactical concerns of overemphasis,
did not cross-examine McGrath on the murder weapon bombshell and why
he failed to specifically mention such an important point in his letter to
Sergeant Hall, or even in the follow-up interview. Instead, counsel tried
to suggest that McGrath learned everything he knew about the case from
discovery materials provided to Holness in his cell, and from the publicly
available Statement of Charges filed in the state murder proceeding. On
redirect, the prosecutor returned to the issue of the knife and McGrath’s
testimony that Holness had thrown it in the river, asking: "[Y]ou didn’t get
that out of the Statement of Charges, did you?" J.A. 600. After McGrath
answered in the negative over Holness’s objection, the prosecutor fol-
lowed up: "Where did you get that?" Id. McGrath responded, "From Mr.
Holness." Id. at 601.
UNITED STATES v. HOLNESS 35
VI.
Pursuant to the foregoing, the judgment of the district court
is affirmed.
AFFIRMED