Triggering Waiver Of The FRE 410 Protections

After the defense presented documentary evidence that a key government witness was not present during the commission of the alleged drug importation, the government could use the defendant’s proffer statements, which were otherwise protected under FRE 410, to rebut the defense factual assertions at trial, in United States v. Roberts, _ F.3d _ (2d Cir. Sept. 29, 2011) (No. 10-1230-CR)

FRE 410 generally bars admitting against a defendant “any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.” The protections under this rule may be waived. See generally United States v. Mezzanatto, 513 U.S. 196 (1995) (recognizing that statements barred under FRE 410 may be waived). The Second Circuit recently considered whether the waiver of FRE 410 was triggered under the terms of a proffer agreement.

The case involved an investigation which revealed that airline employees used their access at John F. Kennedy International Airport (JFK) to import cocaine. Defendant Roberts was observed offloading items from a flight from Barbados. Upon further review, agents discovered one canvas bag had more than five kilograms of cocaine. Another airline ramp agent, Beckford, implicated Roberts and two others in a smuggling scheme that spanned over a six year period. Before trial, defendant Roberts entered into a proffer agreement in which he admitted his involvement as the participation of Beckford. The proffer agreement included a waiver which allowed the use of any statements made during the proffer session “as substantive evidence to ‘rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Roberts] at any stage of a criminal prosecution.’” Roberts, _ F.3d at _.

At trial, Beckford testified about the details of the smuggling operation. In defense, Roberts’s counsel asserted that Beckford was not present when the cocaine was seized by agents. The trial court then permitted an agent to testify about proffer statements Roberts had made, which “conclusively refuted defense counsel’s implicit assertion that Beckford was not present for the unloading of the Barbados flight.” The jury convicted defendant Roberts.

No Economic Coercion Under The Fifth Amendment

On appeal, the Second Circuit affirmed the admission of the proffer statement. First, the defendant claimed that the statements “were induced by economic coercion, specifically, by threats that he would lose his job at the airport unless he provided federal authorities with information about criminal activity at JFK.” In a separate hearing, the trial court had determined that the “government’s [six] witnesses [were] entirely credible, but found Roberts, who was caught in numerous lies and contradictions during the hearing, ‘unworthy of belief.’”

The Second Circuit noted that a defendant’s statements could not be compelled based on the threat of “economic or other sanctions capable of forcing the self-incrimination which the [Fifth] Amendment forbids.” Roberts, _ F.3d at _ (quoting Minnesota v. Murphy, 465 U.S. 420, 434 (1984) (internal quotation marks omitted)). The defendant claimed coercion based on an agent’s representation “that if his cooperation ended, [Immigration and Customs Enforcement] ICE agents would be required to report his arrest to [United States Customs and Border Protection] CBP, the agency charged with deciding who had access to restricted airport areas.” Roberts, _ F.3d at _. In reviewing the totality of the circumstances, the claim of economic coercion was unfounded:

The district court did not err in concluding that advising Roberts of the required agency procedures of both ICE and CBP, made without any reference to adverse economic consequences for Roberts, did not so plainly threaten Roberts’s employment as to deprive him of free choice in deciding whether to speak with government authorities. … [N]o credited evidence indicates that American Airlines would necessarily fire an employee for losing ramp access. … Moreover, quite apart from any agent’s mention of future CBP-approved ramp access, Roberts had to have known that his continued employment at American Airlines was in jeopardy from the moment he was implicated in a scheme to use that company’s planes to smuggle drugs. So too was his liberty. Whether Roberts’s interests in his liberty and his employment were best served by maintaining his innocence or negotiating a plea agreement, by remaining silent or cooperating, undoubtedly presented him with hard choices. But the Fifth Amendment “does not protect against hard choices.” United States v. Solomon, 509 F.2d [863,] 872 [(2d Cir. 1975)]. It protects against coercion that deprives a defendant of the opportunity to make such choices for himself.

Roberts, _ F.3d at _.

Waiver Of The Proffer Agreement

The Second Circuit also concluded that the waiver terms of the proffer agreement had been triggered by the defense at trial. At trial, the government asserted that the waiver occurred based on the opening statement of defense counsel, the cross-examination of Beckford, and also based on documentary evidence.

First, in the opening statement, defense counsel asserted that the government “engag[ed] in a ‘reckless’ prosecution of his client based on ‘bad information’ that it had failed to corroborate.“ The trial court declined to admit the proffer statements based on the opening statement alone, and warned the defense that further similar claims would permit the government to renew its motion to admit the defendant’s proffer statements. Based on this exercise of discretion by the trial court, the circuit found it unnecessary to decide whether waiver had resulted.

Second, during cross-examination of cooperating witness Beckford , defense counsel tried “to impeach Beckford’s testimony that he was working at JFK on November 5, 2005, the date drugs were seized from the Barbados flight, with questions suggesting that he was, in fact, in Miami.” Roberts, _ F.3d at _. The trial court again denied the government’s motion to admit the defendant’s proffer statements based on the cross-examination and warned defense counsel about crossing the line. On this record, the circuit declined to rule whether the cross-examination had permitted admission of the proffer statements.

Finally, defense counsel offered two exhibits on whether Beckford had been in Miami and not JFK, including: “(1) American Airlines flight lists showing that Beckford had traveled from Jamaica to Miami and from Miami to JFK on November 5, 2005, arriving in New York at 9:38 p.m.; and (2) American Airlines records showing that Beckford first “swiped into work” that night at 12:03 a.m., i.e., very early on November 6, and well after the Barbados flight was unloaded.” Roberts, _ F.3d at _. Based on the defense insistence in admitting the two documents, the trial court provided the parties with some options:

(1) the defense could have the record custodian, then in court, return on a later date so that the documents could be put into evidence on the defense case; (2) the defense could call the witness out of order that day; (3) the government could call the witness and introduce the documents; or (4) the parties could stipulate to the documents’ admissibility. When the government expressed a preference for the third option “if the defense is intent on having these exhibits come in,” Roberts’s counsel voiced no objection to that procedure, simply reiterating, “I do want the documents in evidence.”

Roberts, _ F.3d at _. The government introduced the documents and then called an agent to testify about the statements defendant Roberts made during his proffer session, including that the defendant admitted calling Beckford to assist in removing bags from the Barbados flight.



The circuit found that the trial court properly concluded that defense counsel had triggered the waiver terms of the proffer agreement. The admission of the exhibits “strongly implied that Beckford could not have been at the gate on November 5 when the Barbados flight was offloaded.” The proffer statemetns were properly used to rebut this claim at trial.

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