UNPUBLISHED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Vacated and remanded with instructions by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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 selfincrimination, 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Cir. 2009) (unpublished, per curiam) (hereinafter, “Williamson 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 
3

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 
4

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.
5

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 .
6

. . .” 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.
7

“[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 selfincriminating statements and for statements made without counsel 

is often the same: exclusion of that evidence.
8

The Supreme Court has recognized this conceptual overlap: 

In Maine v. Moulton, the Court acknowledged the close 

relationship between excluding attorneys and eliciting selfincriminating 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).
9

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 
10

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” 
11

or “were the product of any sort of coercion, legal or factual.”2

 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,

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 --

[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.
12

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.