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Self-Incrimination During a Sting Operation and Beyond

By William Peacock, Esq. on February 06, 2013 | Last updated on March 21, 2019

In the criminal case that won't die, Rodney Anton Williamson ("RAW") makes his way to the Fourth Circuit once again - after prevailing somewhat with SCOTUS with a remand order.

Cops caught RAW with kilos of cocaine after using a wired snitch to record a conversation. RAW claimed the conversation -- which occurred after a sealed indictment had been issued -- violated his Sixth Amendment right to counsel and Fifth Amendment right against self-incrimination.

He initially lost that Sixth Amendment claim in the Fourth Circuit. But when it reached SCOTUS, the government conceded the point but argued harmless error.

(We'd bet the Fourth Circuit was delighted by that twist. "Um, we were wrong, so was the Fourth, but uhh ... Whatevz?")

That's now on appeal, along with the eternal Sixth Amendment claim.

Fifth Amendment

The right against self-incrimination is a fundamental tenant of our justice system, but it doesn't apply to someone openly blabbing to a snitch. The police put a wire on RAW's co-conspirator, who flipped after another co-conspirator was indicted. Neither RAW nor the snitch knew about the sealed indictment against RAW. There were also no rehearsed probing questions nor instructions given to the snitch, other than attach the microphone and have lunch.

The voluntariness of his statements depends on whether they were "the product of an essentially free and unconstrained choice by [their] maker" or if, instead, "his will [was] overborne and his capacity for self-determination critically impaired." Taking into account the facts of the sting operation, RAW's statements to his friend did not amount to a Fifth Amendment violation.

Sixth Amendment

Since plain error was already conceded, the question is whether that error harmful enough to warrant reversal?

The four prong test for reversal asks whether "(1) there is an error; (2) the error is plain; (3) the error affects substantial rights; and (4) the court determines, after examining the particulars of the case, that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings."

The determinative factor here is the effect on substantive rights. The government's case consisted of a litany of snitches testifying about buying and selling bulk quantities of coke from RAW. Surveillance of the defendant, done during and after the erroneously-recorded conversation, led to the discovery of bricks of blow. The evidence was overwhelming, with or without the recorded conversation.

Nor did the error affect the fairness or integrity of the judicial proceedings. It was an inadvertent Sixth Amendment violation in a grey area, not a blatant abuse of power.

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