The Fourth Circuit today issued a unanimous, unpublished opinion in United States v. Williamson, a case dealing with the admissibility of a recorded statement made to a confidential informant. Most unanimous unpublished opinions raise no noteworthy issue. But Williamson seems unusual because the court injected a Fifth Amendment issue into a case that came on remand from the Supreme Court after a procedural history that focused everyone’s attention on a Sixth Amendment issue. Moreover, the Fourth Circuit’s decision to highlight a potential new issue for review is difficult to understand because it appears to make little practical difference to how the case will ultimately be resolved (at least so far as this non-specialist in criminal procedure can tell).
More after the jump.
In the drug conspiracy trial of Rodney Anton Williamson, the government introduced a recorded statement made by the defendant to a confidential informant after the government had obtained an indictment against Williamson but before it had arrested him. The defense did not object to the admission of the recording at trial, but actually asked the court to play the entire recording–which the government did after Williamson’s counsel (at the court’s suggestion) confirmed with Williamson the decision to have the entire recording played for the jury.
On appeal, Williamson argued that admission of the recording violated the Sixth Amendment, because the right to counsel had attached and the government used the confidential informant to elicit information about the charged offense. The Fourth Circuit, relying on the government’s briefing, rejected this argument. Williamson sought certiorari. The government confessed error, but argued that the error did not necessarily require a different judgment. Because the defense did not object at trial, Williamson must show plain error. Among other things, that means Williamson bears the burden of showing that the error affected his substantial rights and seriously affected the fairness, integrity or public reputation of judicial proceedings. The government contended that Williamson would not be able to show plain error, but that the question should be decided in the first instance by the court of appeals. The Supreme Court, over the dissent of four Justices, GVR’d (granted, vacated, and remanded).
Going into the Fourth Circuit once again, the parties understandably focused on assessing the prejudicial effect of the Sixth Amendment violation. In an unpublished opinion by Judge Gregory, joined by Judge Duncan and Senior Judge Hamilton, the Fourth Circuit decided not to “delve into the net effects of the Sixth Amendment violation” because the admission of the recording also may have violated the Fifth Amendment. The court vacated and remanded with instructions to the district court to determine whether the Fifth Amendment had been violated.
Criminal procedure is not my specialty, but this decision is confusing to me for two reasons that I will lay out (though I’m happy to stand corrected by those who know better).
First, the potential Fifth Amendment violation does not seem apparent from the few facts given in this opinion. The government’s elicitation of incriminating information through the confidential informant does not appear to be “custodial” interrogation nor does there appear to be any coercion or compulsion. (Again, this is all subject to the qualification that I am speaking only with respect to the scant facts laid out in this opinion.)
Second, and more fundamentally, even if there were a Fifth Amendment violation, it would not seem to make a difference as long as admission of the recording in violation of the Fifth Amendment is also subject to plain error review. Because that review needs to be undertaken for the Sixth Amendment violation, and the Fifth Amendment plain error review would be identical with respect to the last, most difficult to satisfy prong of plain error review, it is difficult to discern how this disposition advances the ultimate resolution of the case.
Any criminal procedure experts care to weigh in?