In a public corruption case, the Fourth Circuit rejects defense claim that counsel’s assertion of the defendant’s constitutional rights before charges were filed should bar the admission of the defendant’s inculpatory statements to a government informant, in United States v. Hornsby, _ F.3d _ (4th Cir. Jan. 25, 2012) (No. 08-5267)
When a defendant is aware of an investigation, can the government direct an informant to talk with the defendant before formal charges and can those statements be used at trial. The Fourth Circuit recently considered this issue.
In the case, defendant Hornsby, the chief executive officer of the Prince George’s County Public Schools in Maryland was prosecuted following a public corruption investigation based on his involvement in two contracts concerning school supplies and services. During the investigation, his attorney sent a letter to the government “asserting Hornsby’s constitutional rights as well as his desire not to have any contact with Government agents.” Hornsby, _ F.3d at _. About a year later, the defendant was charged with honest-services wire fraud and tampering and obstruction counts. Before trial, the defendant moved in limine to exclude his statements to an undercover government informant before charges had been filed. As one example, after the investigation commenced, the FBI instructed an employee of the defendant’s private consulting business, to inform Hornsby that her husband received a subpoena for Hornsby’s computer files that were in her possession. On February 7, 2005, the employee informed Hornsby of the subpoena and that she possessed his computer containing information regarding the contract. Hornsby instructed the undercover government informant to "get [the computer] out of there totally."
The trial court denied the defense motion. The first trial resulted in a mistrial. The second jury returned convictions on several but not all of the counts. On appeal, one challenge asserted “that the Government blatantly disregarded [the defendant’s] rights by instructing [the undercover government informant] to speak with him and in doing so violated his Fifth, Sixth, and Fourteenth Amendment rights.”
The Fourth Circuit concluded no constitutional rights had been violated “by his communications with [the undercover government informant] ... after the Government’s receipt of his counsel’s letter.” Hornsby, _ F.3d at _.
Fifth Amendment Right
First, under the Fifth Amendment, the government may not compel “self-incrimination during custodial interrogation without advice that the suspect has the right to remain silent and the right to the presence of an attorney. Absent custodial interrogation, there is no infringement on the suspect’s Fifth Amendment rights.” Hornsby , _ F.3d at _ (citing Edwards v. Arizona , 451 U.S. 477, 481-82, 486 (1981) (noting “that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation”; noting without custodial interrogation there is no infringement of the Fifth Amendment right to counsel)).
The “use of an undercover government agent before charges are filed does not implicate a suspect’s Fifth Amendment rights because there is no potential for compulsion.” Hornsby , _ F.3d at _ (citing United States v. Henry, 447 U.S. 264, 272 (1980) (“It is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed.”)). The discussion with the informant occurred on the telephone and there was no custodial interrogation.
Sixth Amendment Right
Under the Sixth Amendment , the right to counsel applies "at or after the time that judicial proceedings have been initiated . . . ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’" Hornsby , _ F.3d at _ (quoting Fellers v. United States , 540 U.S. 519, 523 (2004) (quoting Brewer v. Williams , 430 U.S. 387, 398 (1977))).
At the time of the communication between the defendant and the informant, no judicial proceedings had been initiated. In fact, the communications occured about one year before the indictment was returned by the grand jury. As the circuit noted, “we conclude that the letter written by Hornsby’s counsel to the Government inquiring about the investigation does not afford Hornsby constitutional protection in this context and Hornsby has not directed this Court to any case law that holds this proposition.” Hornsby , _ F.3d at _.
Fourteenth Amendment Due Process Clause
Finally, the Fourteenth Amendment applied to state action. Hornsby, _ F.3d at _ (citing McDonald v. City of Chicago, 130 S. Ct. 3020, 3031-36 (2010) (thoroughly discussing the Fourteenth Amendment’s scope and application to state action)). The limitation on state conduct by the Fourteenth Amendment did not apply to the federal government. Instead, the Fifth Amendment due process protections applied and none were implicated.
The Hornsby case provides a useful overview on the implication some significant constitutional rights and highlights the use of a government informant during an ongoing investigation prior to the invocation of those rights.
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