Recorded Statements By Cellmate Violate Fifth Amendment, But Harmlessly

US v. Holness: Holness and his wife were driving from her home in New York to his in Maryland (it was a "marriage of convenience," according to the court) when they were allegedly set upon by a carjacker.  As a result, Holness wound up dazed, wet, and bloody on the porch of a stranger's house and his wife lay dead in a field, stabbed to death.  After initial investigation cast doubt on Holness's carjacking story he was arrested by Maryland authorities and charged with murder.  While Holness was in custody his cellmate contacted police with information about the killing.  Eventually, the cellmate was given a recording device that he used while assisting Holness in writing a letter (never actually sent) to a local newspaper that was to have been written by the alleged carjacker.

For reasons that are unclear from the opinion, Holness was charged in federal court with interstate domestic violence, attempted witness intimidation, and two other offenses.  Prior to trial he sought to exclude any statements he made to his cellmate and any evidence obtained as a result of those statements.  The motion was denied and the cellmate testified at trial, relating for the first time that Holness told him where he had disposed of the murder weapon.  Holness was convicted of the domestic violence and witness intimidation charges and sentenced to life in prison.

On appeal, Holness challenged his convictions, arguing that the police's use of his cellmate to gather information on him was done after he had been appointed counsel on the state murder charge and therefore violated his Sixth Amendment right to counsel.  The Fourth Circuit disagreed, finding that there was no Sixth Amendment issue in the federal prosecution because at the time of the statements Holness had only been charged in state court.  Noting that the Sixth Amendment right to counsel is "offense specific," the court concluded that the federal charges were different from the state charges.  The court rejected Holness's argument under Elkins that the state should not be allowed to collude with the federal government to avoid the ramifications of their potentially unconstitutional acts.

However, the Fourth Circuit did conclude that, while the Sixth Amendment was not implicated by the use of the cellmate's statements, the Fifth Amendment's protections against self incrimination may have been violated.  Because the issue "fairly arises from the face of the record" the court addressed it as well, even though Holness had not raised the issue.  The court noted that, although the Sixth Amendment right to counsel is offense specific, the Fifth Amendment protections are not.  Ultimately, the court assumed (rather than remand for factual findings) that Holness's Fifth Amendment rights were violated, but found the violation to be harmless error beyond a reasonable doubt.