In trial for concealing a material fact and making a false statements to the Nuclear Regulatory Commission, a divided Sixth Circuit panel affirms the trial court’s denial of the defense motion to admit evidence of the defendant’s rejection of a pre-indictment deferred prosecution agreement to show his state of mind, in United States v. Geisen, _ F.3d _ (6th Cir. July 15, 2010) (No. 08-3655)
FRE 408 excludes evidence regarding offers to compromise a dispute when used “to prove liability for or invalidity of the claim or its amount” and excludes “[e]vidence of conduct or statements made in compromise negotiations.” Evidence regarding offers to compromise a dispute may be offered for other limited purposes “such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” The circuits have taken different positions on whether a defendant may admit evidence that he declined a plea offer, or related immunity offers, to show state of mind. The Sixth Circuit recently turned to this open issue in the context of a deferred prosecution agreement (DPA).
In the case, defendant Geisen served as the manager of design basis engineering at a nuclear power facility. The defendant assisted in preparing documents submitted to the Nuclear Regulatory Commission in support of a delayed inspection. The case was based on a series of misstatements that were made by the defendant and others after safety concerns arose and during request by the facility to delay any inspection. Four facility employees signed deferred prosecution agreements. The government also offered defendant Geisen a deferred prosecution agreement in which the government agreed to “refrain from seeking an indictment or otherwise initiating criminal prosecution of . . . Geisen” and the defendant would “admit[] that between September 3, 2001, and November 28, 2001, he knowingly and deliberately caused false representations to be made to the NRC in the course of attempting to persuade the NRC that [the facility] was safe to operate beyond December 31, 2001.” The DPA further provided that “Geisen would waive the statute of limitations for future prosecution based on a breach of the DPA, cooperate in criminal and administrative proceedings related to the incident, and agree that the stipulated facts could be used against him in any proceeding should he breach the DPA.” Geisen, _ F.3d at _. Defendant Geisen rejected the deferred prosecution agreement and was indicted with two others for making material misstatements to the commission.
The central trial issue was whether the defendant had the requisite intent to make the alleged false statements. On this issue, the defense moved to admit evidence that the defendant declined a deferred prosecution agreement as “probative of his state of mind because an innocent person is more likely to reject a DPAthan is a guilty one.” The trial court denied the motion. Later, during the trial, the defense renewed its effort to admit the evidence “to counter impeachment evidence offered by the government regarding [the same] prosecution agreements offered to four testifying witnesses.” While noting some probative value, the trial court concluded the evidence would complicate the issues as it would be difficult for the jury to assess the many reasons for which the deferred prosecution agreement may have been denied.
A majority of panel of the Sixth Circuit found no abuse of discretion in excluding the evidence. The majority reviewed the positions of other circuits on this issue, including the Second Circuit Biaggi decision which had recognized that evidence of a rejected immunity offer may be admissible. The cases included:
- Second Circuit: United States v. Biaggi, 909 F.2d 662, 691 (2d Cir. 1990) (noting that rejection of an immunity offer may be admitted so long as it is not otherwise “outweighed by the danger of unfair prejudice, confusion, or delay” under Rule 403);
- Fifth Circuit: United States v. Maloof, 205 F.3d 819, 824 (5th Cir. 2000) (following Biaggi);
- Eighth Circuit: United States v. Greene, 995 F.2d 793, 798 (8th Cir. 1993) (rejecting Biaggi and relying on United States v. Verdoorn, 528 F.2d 103, 107 (8th Cir. 1976) (excluding evidence about the government’s proposals during plea negotiations based on “the rationale” of FRE 408, “which relates to the general inadmissibility of compromises and offers to compromise”)).
After reviewing these cases, the Sixth Circuit found it unnecessary to reach the open issue based on the facts of the case. Biaggi involved a reject immunity offer, which would have “preclude[d] all exposure to a conviction and its consequences.” Biaggi, 909 F.2d at 691-92. In contrast, the Sixth Circuit noted, a DPA “does not foreclose all exposure to a conviction and its consequences in the same way, especially given the implications for [defendant] Geisen’s employment. Refusing to accept the DPA, therefore, is not as probative of a ‘consciousness of innocence’ as the immunity offer at issue in Biaggi.” Geisen, _ F.3d at _. Additionally, the trial court could exclude the evidence under FRE 403, since any probative value was “outweighed by the considerable avenues of inquiry that would be opened by admitting the evidence.” In particular, the trial court “expressed concern that prejudice to the government would result because ‘too many variables [existed] other than the explanation which would be permitted to the defendants on closing argument that that represented his denial of guilt’ and that much relevant testimony would be privileged.” Geisen, _ F.3d at _.
Circuit Judge Merritt concurred in part and dissented in part. He would have allowed the deferred prosecution evidence to be admitted. He concluded the evidence was admissible for two reasons:
“First is the inference that [defendant] Geisen argued in his pretrial motion: his rejection of the offer shows ‘consciousness of innocence’ because a jury could fairly infer that an innocent person was more likely to reject this conditional dismissal of all charges than a guilty person.”; “The second inference that a jury might make from [defendant] Geisen’s submitted evidence is drawn not from his rejection of the deal, but from the fact that it was offered to him by the government. The offering of the deal raises an inference that Geisen was of no greater culpability than the four witnesses, and hence had not been singled out as more guilty than the others whom the government has let go.”
Geisen, _ F.3d at _ (Merritt, J., concurring and dissenting in part).
The Sixth Circuit highlights some of the concerns in admitting evidence concerning rejected plea offers. The case also highlights that there are differences between a DPA and immunity offers which may bear on whether this type of evidence may be admitted.
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