                            UNPUBLISHED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Vacated and remanded with instructions by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                              2
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

                                              3
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.

                                             7
      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).



                                                  8
     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”




                                            10
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.



                                         11
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.




                                         12
