FRE 410 And A Defendant's "Reasonable Expectations"

A defendant’s statements to the case agent during a meeting were not barred by FRE 410, as part of plea discussions with the prosecutor because there was no "reasonable basis" for the defendant to believe the case agent’s remarks were made by or on behalf of the prosecutor, in United States v. Olson, __ F.3d __ (7th Cir. May 12, 2006) (Nos. 01-1772, 01-1800, 01-1891, 01-1949 & 01-2065)

FRE 410 generally excludes evidence concerning four categories of evidence concerning guilty pleas and related statements, unless three identified exceptions apply. The four categories of plea statements, include: (a) guilty pleas later withdrawn, (b) pleas of nolo contendere, (c) statements made during plea hearings, and (d) statements "made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea." A case reviewed by the Seventh Circuit several years ago set out some of the parameters in applying the rule. The bulk of the Circuit opinion in United States v. Olson in discussing FRE 410 focused on whether the issue of when plea discussions or statements fell under the fourth category involving the plea negotiations.

In the case, five defendants, along with twenty-six others, were members of the Milwaukee Chapter of the Latin Kings, a national criminal organization. They were convicted for racketeering, murder and drug trafficking charges after a jury trial. On appeal, one defendant raised as an evidence issue that the trial judge failed to exclude statements he made to an agent during what he thought were protected plea discussions.

The alleged plea discussion occurred when a FBI agent brought the defendant to the U.S. Attorney’s Office for an interview. The prosecutor did not participate in the interview while it was being determined whether the defendant was represented by counsel. According to the defendant, the agent discussed the cooperation by Sammy “The Bull” Gravano, a notorious underboss who cooperated against crime boss John Gotti. In interviewing the defendant, the agent mentioned the possibility of a ten-year plea; and the interest of another prosecutor in the agent’s recommendation. The defendant was not represented on the pending charges but was represented on other matters.

This first meeting with the agent occurred on April 28. Its status under FRE 410 was complicated by a second meeting two days later as the meeting was held at the U.S. Attorney’s Office with the defendant to explore his cooperation. Two prosecutors and an agent were present. The meeting was about ten or fifteen minutes long. The defendant asked to speak off the record but a prosecutor said the meeting was on the record. A second prosecutor made no promises or threats and indicated that no plea bargaining would occur. The district court initially referred the matter to a magistrate judge. The district court ultimately concluded there was no reasonable belief that a plea bargain was being considered. The district court made a finding of fact that the prosecutor never told the defendant that his comments would be off the record.

Defendant Martinez was one of five defendants who did not agree to cooperate with the government. He was charged with racketeering involving the murder of several individuals and with conspiring to distribute controlled substances. The jury found the defendant guilty as charged and the court sentenced him. He appealed, contending that the trial judge had erred under FRE 410 in admitting evidence of statements the defendant made during the meetings with the case agent.

The circuit affirmed the admission of the defendant’s statements. As a matter of deference, the circuit found no reason to question the district court’s finding of fact that there was never a promise that the defendant's comments would be off the record. In addition, the circuit was persuaded that because the defendant asked for more time to consider matters, this would only reinforce the conclusion that there had been no plea negotiations planned or conducted.

The circuit affirmed this conclusion. Even had the agent made the statement the defendant now reported, the bar under FRE 410 was expressly limited to “any statement made in the course of plea discussions with an attorney for the prosecuting authority.” It could not apply to an agent. As the circuit concluded:

[Case] Agent Craft was not an attorney for a prosecuting authority and did not purport to be speaking on behalf of the United States Attorney. To the contrary, Agent Craft made clear that he could, at most, recommend a plea agreement to [prosecutor] Moreno-Taxman and that she trusted him. He made the general kinds of statements that law enforcement agents commonly make, that cooperation will likely lead to a better outcome for the defendant. Martinez himself, when he interrupted Agent Craft to recite his Miranda rights, stated that he knew that anything he said could be used against him. In short, nothing either the prosecutors or Agent Craft did or said to Martinez led him to reasonably believe that the April 30 meeting was a plea discussion. The court was correct to deny the motion to suppress on that basis.
Olson, __ F.3d __ (citing United States v. Brumley, 217 F.3d 905, 910 (7th Cir. 2000) (“Here, the agents made general statements that law enforcement officers commonly make, that cooperation would likely lead to a better outcome for the defendant. These statements were both true and innocuous.”)).

In rejecting the defense argument, the circuit found little in either what the prosecutors or Agent did or said to defendant Martinez that could lead him to "reasonably believe" that the April 30 meeting was a plea discussion. In reaching this determination, the circuit's finding was generally consistent with that of other circuits that have considered the matter in the past. Indeed, many of those circuits recognized FRE 410, as a counterpart to Fed. R. Crim. P. 11(f) (formerly Fed. R. Crim. P. 11(e)(6)). The criminal rule permits the admission of statements the defendant made to agents. See, e.g., United States v. Lewis, 117 F.3d 980, 984 (7th Cir.) (“Rule 410(4) and [former Fed. R. Crim. P.] 11(e)(6) only apply to statements made to government attorneys. They do not cover those made to law enforcement agents.”), cert. denied, 522 U.S. 1035 (1997); United States v. Aponte-Suarez, 905 F.2d 483, 493 (1st Cir.) (“Arocho’s statement was made to government agents, not to an attorney. That alone removes the statement from the purview of Rule 410(4).”), cert. denied, 498 U.S. 990 (1990); United States v. Porter, 821 F.2d 968, 976-77 (4th Cir. 1987) (statements made to customs officer during telephone conversations initiated by defendant were not barred by Rule 410 since they were not made to the prosecuting attorney and were not made during plea negotiations).

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Federal Rules of Evidence