United States v. Rodney Williamson ( 2011 )

UNPUBLISHED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.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 09-8915)
Argued: May 10, 2011 Decided: August 3, 2011
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded with instructions by unpublished opinion.
Judge Gregory wrote the opinion, in which Judge Duncan and
Senior Judge Hamilton joined.
ARGUED: J. David James, SMITH, JAMES, ROWLETT & COHEN, LLP,
Greensboro, North Carolina, for Appellant. Vijay Shanker,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney,
Sandra J. Hairston, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Appellant challenges the admission of a recorded statement,
made to a confidential informant after Appellant had been
indicted but before he was arrested. Because we find that
recording may have implicated Appellant’s right against self-
incrimination, we vacate and remand to determine if the
Government violated the Fifth Amendment.
I.
This is the second time this case has come before our
Court. We previously summarized the key facts:
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.
United States v. Williamson, 337 Fed. Appx. 288, 289-290 (4th
Cir. 2009) (unpublished, per curiam) (hereinafter, “Williamson
I”).
At trial, the Government sought to introduce, inter alia,
the recorded statement between Appellant and the confidential
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informant, Edison Alberty. The transcript of that recording
goes on for forty pages in the record and contains numerous
allusions to the sale, weights, and transportation of drugs by
various means. J.A. 330-370. The district court noted that the
recording was “very damaging” to Appellant and worried that
parts of the tape were “unintelligible.” J.A. 285, 297, 290.
Although the district court initially offered the Government an
opportunity to redact the recording, Appellant’s trial counsel
asked to play the entire recording anyway. After the district
court suggested Appellant’s trial counsel confirm that decision
with her client, the court proceeded to play the entire
recording for the jury.
Subsequently, Appellant’s trial counsel portrayed the
recording as “complicated” and difficult to understand, and
questioned whether it personally implicated Appellant in drug
dealing. Government’s S.J.A. 10. The Government stressed the
origins and importance of this recording in its closing
argument: “these are the [Appellant]’s own words . . . .”
Appellant’s S.J.A. 20. Rhetorically, the Government asked “[d]o
you need fingerprints? [Appellant] told you he left [the drugs
with a third party].” Id. at 20-21. Regarding the lack of a
paper trail in the case, the Government highlighted that
Appellant “even says during the recording . . . that he didn’t
have any thing [houses or cars] in his name.” Id. at 23. In
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conclusion, the Government emphasized: “He said it. His words.
His organization, his conspiracy.” Id. at 23. Appellant was
subsequently convicted and sentenced to life imprisonment.
In his first appeal, Appellant claimed that the admission
of the recording violated his right to counsel under the Sixth
Amendment. In an unpublished, per curiam decision, our Court
found that this admission did not constitute plain error, namely
because we had previously “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.” Williamson I, 337 Fed. Appx. at 291
(citations omitted). 1
Appellant petitioned for certiorari. The Government then
conceded that the Sixth Amendment did attach upon the issuance
of the sealed indictment, but maintained that Appellant could
not show the error seriously affected the fairness, integrity,
or public reputation of the judicial proceedings. On June 21,
2010, the Supreme Court vacated and remanded in light of the
Solicitor General’s brief. Williamson v. United States, 130 S.
1
We found meritless Appellant’s other claims about the
substitution and effectiveness of his trial counsel. Williamson
I, 337 Fed. Appx. at 291. Those issues are no longer in
contention.
4
Ct. 3461 (2010). Chief Justice Roberts along with Justice
Scalia, Justice Thomas, and Justice Alito dissented for the
reasons stated in Nunez v. United States, 554 U.S. 911 (2008)
(Scalia, J. dissenting). The dissent in Nunez primarily
contended that the Court has “no power to set aside (vacate)
another court’s judgment unless we find it to be in error.” Id.
at 912.
II.
A.
Since Appellant’s trial counsel failed to raise any
constitutional issues at trial, we continue to review for plain
error. Williamson I, 337 Fed. Appx. at 289.
The parties now agree that introducing the recording
violated the Sixth Amendment because the right to counsel
attached when Appellant was indicted. Massiah v. United States,
377 U.S. 201 (1964). But the parties disagree about whether
that constituted harmless error -- and focus on the importance
of Alberty’s recording and the reliability of cooperating
witness testimony. We need not delve into the net effects of
the Sixth Amendment violation, however, because this case
involves another unresolved constitutional issue.
The Fifth Amendment establishes that no person “shall be
compelled in any criminal case to be a witness against himself .
5
. . .” U.S. Const. amend. V. This “basic,” “[c]ardinal”
guarantee requires that “men are not to be exploited for the
information necessary to condemn them before the law, [and] that
. . . a prisoner is not ‘to be made the deluded instrument of
his own conviction.’” Culombe v. Connecticut, 367 U.S. 568, 581
(1961) (quoting 2 Hawkins, Pleas of the Crown 595 (8th ed.
1824)). “The privilege against self-incrimination guaranteed by
the Fifth Amendment is a fundamental trial right of criminal
defendants.” United States v. Verdugo-Urquidez, 494 U.S. 259,
264 (1990).
This right “was hard-earned by our forefathers,” Quinn v.
United States, 349 U.S. 155, 161-62 (1955), and reflects “many
of our fundamental values and most noble aspirations,” including
a “preference for an accusatorial rather than an inquisitorial
system of criminal justice,” “our sense of fair play,” and our
“fear that self-incriminating statements will be . . . abuse[d]”
and untrustworthy. Murphy v. Waterfront Commission, 378 U.S.
52, 84 (1964); see also Winthrow v. Williams, 507 U.S. 680(1993) (citing Murphy, 378 U.S. at 55). Therefore, the Fifth
Amendment “must be accorded liberal construction in favor of the
right it was intended to secure . . . . [T]o treat it as a
historical relic, at most merely to be tolerated [] is to ignore
its development and purpose.” Quinn, 349 U.S. at 161-62.
6
“[S]ince at least as long ago as 1807, when Chief Justice
Marshall first gave attention to the matter in the trial of
Aaron Burr, all have agreed that a necessary element of
compulsory self-incrimination is some kind of compulsion.”
Hoffa v. United States, 385 U.S. 293, 303-304 (1966).
Appellants’ statements, elicited via confidential informants,
can violate the Fifth Amendment if they “rise to the level of
compulsion or coercion” or are not voluntary. Illinois v.
Perkins, 496 U.S. 292, 297 (1990). Perkins also noted that the
degree of compulsion in that case was diminished because “no
charges had been filed on the subject of the interrogation
. . . .” Id. at 299. In turn, “a confession obtained by
compulsion must be excluded whatever may have been the character
of the compulsion, and whether the compulsion was applied in a
judicial proceeding or otherwise.” Wan v. United States, 266
U.S. 1, 14-15 (1924) (citing Bram v. United States, 168 U.S. 532(1897)).
When a defendant incriminates him or herself outside the
presence of counsel, the Fifth and Sixth Amendments can become
closely intertwined. Namely, excluding counsel and eliciting an
incriminating statement often occur simultaneously or
proximately. Furthermore, the remedy for improper self-
incriminating statements and for statements made without counsel
is often the same: exclusion of that evidence.
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The Supreme Court has recognized this conceptual overlap:
In Maine v. Moulton, the Court acknowledged the close
relationship between excluding attorneys and eliciting self-
incriminating statements. 474 U.S. 159 (1985). Moulton also
involved a defendant who had already been indicted and a
confidential informant. The Court held that the “knowing
exploitation by the State of an opportunity to confront the
accused without counsel being present is as much a breach of the
State’s obligation not to circumvent the right to the assistance
of counsel as is the intentional creation of such an
opportunity.” Id. at 176 (emphasis added).
More recently, in Kansas v. Ventris, the Court explicitly
noted that its Fifth and Sixth Amendment jurisprudence shared a
common foundation. In that case, which involved a Sixth
Amendment challenge to jailhouse informants, the Supreme Court
concluded that its “opinions under the Sixth Amendment, as under
the Fifth, have held that the right covers pretrial
interrogations to ensure that police manipulation does not
render counsel entirely impotent--depriving the defendant of
‘effective representation by counsel at the only stage when
legal aid and advice would help him.’” 129 S. Ct. 1841, 1845
(2009) (quoting Massiah, 377 U.S. at 204 (internal quotation
marks and citations omitted)) (emphasis added).
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And in Massiah itself, the Court pointed out that a
defendant who is recorded by a confidential informant is “more
seriously imposed upon . . . because he did not even know that
he was under interrogation by a government agent.” 377 U.S. at
206 (citations omitted). Massiah involved Fourth, Fifth, and
Sixth Amendment challenges when a federal agent surreptitiously
elicited statements from an indicted defendant. Id. at 204.
The Court held that it violated “the basic protections of [the
Sixth Amendment] guarantee when there was used against him at
his trial evidence of his own incriminating words, which federal
agents had deliberately elicited from him after he had been
indicted and in the absence of his counsel.” Id. at 206(emphasis added). Massiah also pointed out that “if such a rule
is to have any efficacy it must apply to indirect and
surreptitious interrogations as well as those conducted in the
jailhouse.” Id. (citations omitted) (emphasis added).
B.
This case potentially implicates Fifth Amendment issues,
since it involves a lengthy recitation of Appellant’s own words,
elicited after Appellant had been indicted, by a confidential
informant who was cooperating with the Government. Appellant’s
incriminating statements, which the district court found to be
“very damaging” to him, J.A. 287, 290, were then directly used
9
against Appellant and introduced as evidence during the
government’s case in chief.
Because this issue has not been fully briefed before this
Court or addressed by the district court, we vacate and remand
so that the district court can determine if there has been a
Fifth Amendment violation. While the “‘ultimate constitutional
question’ of the admissibility of a confession was a ‘mixed
[question] of fact and law’ subject to plenary federal review,”
this case involves “subsidiary factual questions” beyond our
Court’s jurisdiction. Miller v. Fenton, 474 U.S. 104, 112
(1985) (citations omitted). Indeed, “we do not resolve any of
the disputed questions of fact relating to the details of what
transpired within the confession . . . or whether [Appellant]
actually did confess.” Ashcraft v. Tennessee, 322 U.S. 143, 152
(1944). In comparable constitutional contexts, whether
something was “‘voluntary’ or was the product of duress or
coercion, express or implied, is a question of fact to be
determined from the totality of all the circumstances.”
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
On remand, the district court should determine if
Appellant’s statements were subject to “some kind of compulsion”
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or “were the product of any sort of coercion, legal or factual.” 2
Hoffa, 385 U.S. at 304. The district court should also consider
whether the “fil[ing of charges] on the subject of the
interrogation” affected the degree of compulsion. Perkins, 496
U.S. at 299. Voluntariness, in turn, should be “assessed
[using] the totality of all the surrounding circumstances --
2
We are mindful of the Supreme Court’s additional guidance
in this area: In Massiah, the Court pointed out that a
defendant is “more seriously imposed upon . . . because he did
not even know that he was under interrogation by a government
agent” in the first place. 377 U.S. at 206 (citations omitted).
Notably, Perkins distinguished itself from Massiah on the basis
that “[i]n the instant case no charges had been filed on the
subject of the interrogation . . . .” 496 U.S. at 299. Perkins
itself concerned the broader issue of whether jailhouse
informants must give Miranda warnings. In that context, Perkins
distinguished a jailhouse interview by an IRS agent on the
grounds that “[w]here the suspect does not know that he is
speaking to a government agent there is no reason to assume the
possibility that the suspect might feel coerced.” 496 U.S. at
299. More generally,
[a]lthough [] decisions [about the propriety of
interrogation techniques have] framed the legal
inquiry in a variety of different ways, usually
through the ‘convenient shorthand’ of asking whether
the confession [is] ‘involuntary,’ Blackburn v.
Alabama, 361 U.S. 199, 207 (1960), the Court’s
analysis has consistently been animated by the view
that ‘ours is an accusatorial and not an inquisitorial
system,’ Rogers v. Richmond, 365 U.S. 534, 541 (1961),
and that, accordingly, tactics for eliciting
inculpatory statements must fall within the broad
constitutional boundaries imposed by the Fourteenth
Amendment’s guarantee of fundamental fairness.
Id. at 301 (Brennan, J., concurring) (citing Miller v. Fenton,
474 U.S. 104, 109-110 (1985)). We defer to the district court
for its initial consideration of the circumstances surrounding
Appellant’s conversation with confidential informant Alberty.
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both the characteristics of the accused and the details of the
interrogation.” Schneckloth, 412 U.S. at 226. Towards this
end, the district court should make any necessary factual
findings and might consider the following factors and the
extent, if any, to which they affected Appellant’s encounter
with Alberty: (1) the degree of police involvement in eliciting
Appellant’s statement; (2) Alberty’s knowledge of the impending
criminal prosecutions and his relationship to Appellant; (3) the
nature of Alberty’s questions and demeanor; and (4) the
character of Appellant’s statement and responses. See id. at
298, 300 (examining “[un]equal” power dynamics; “intimidat[ion]
by the atmosphere;” “questions that may elicit an incriminating
response;” and whether defendant felt that his interrogator “had
any legal authority to force him to answer questions” or had the
ability to “affect [his] future treatment”); Schneckloth, 412
U.S. at 218 (considering the age and education of the accused
and the nature of the questioning in assessing voluntariness).
III.
For the reasons stated above, this case is
VACATED AND REMANDED WITH INSTRUCTIONS.
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