Recorded Lunch Conversation Poses No Sixth, Fifth Amendment Problems

US v. Williamson: Williamson was charged in an indictment with conspiracy to distribute more than five kilograms of cocaine.  Following the indictment, but prior to Williamson's arrest, one of his associates, Alberty, contacted investigators offering to cooperate.  Agents sent Alberty to a previously scheduled lunch meeting with Williamson and recorded their conversation.  Williamson was arrested months later.  At trial, the Government introduced the recording as evidence (in addition to the testimony of two codefendants and three other coconspirators) and Williamson was convicted.  He was sentenced to life in prison.

Williamson's conviction and sentence were initially affirmed on appeal when the Fourth Circuit found that it was not plain error to introduce the recorded conversation, even though it was made without counsel present following the return of an indictment.  However, when Williamson sought cert from the Supreme Court, the Government shifted gears and admitted it was plain error, although one that should not be noticed.  The Supreme Court remanded.  The Fourth Circuit than held that issue in abeyance and remanded to the district court for consideration of whether the use of the recorded conversation violated the Fifth Amendment as well.  The district court found no problem, holding that Williamson's statement was given voluntarily.  Along the way, Williamson filed a motion for a new trial based on newly discovered evidence, which the district court denied without appointed counsel.

The Fourth Circuit dealt with all three issues - the Sixth Amendment, due process, and new trial - in a single consolidated appeal, in which it again affirmed Williamson's conviction and sentence.  On the Sixth Amendment issue (the "most enduring issue," according to the court), the court accepted the Government's confessing that the use of the recording was error and that it was plain, but concluded that it did not affect Williamson's substantial rights by altering the outcome of the trial.  The court cataloged the other evidence against Williamson and concluded that while the conversation was "surely damaging, Williamson has not shown that its absence would alter the outcome of his trial."  On the Fifth Amendment issue, the court concluded that Williamson's statement was not the product of compulsion or coercion, noting that Williamson was unaware that Alberty was working with law enforcement and that Alberty's only instructions were to "put on a wire and have lunch."  Finally, on the motion for a new trial issue, the court concluded that Williamson's motion, filed while appellate proceeding were underway, was a collateral proceeding at which he had no right to counsel.  Therefore, it affirmed the district court's dismissal.