Sentencing Allocution Not A "Statement During Plea Discussions" Under FRE 410(a)(4)

In child pornography sentencing, FRE 410(a)(4) did not preclude the court's use of the defendant's “pre-sentencing [hand-]written allocution" to the sentencing judge, which contained the “most damning evidence of distribution” to support "aggravation of his sentence”; the defendant's “letter to the District Judge could be used in evidence because it was not ‘a statement made during plea discussions with’ the prosecutor” under FRE 410, in United States v. Schuster, _ F.3d _ (7th Cir. Feb. 4, 2013) (No. 11-3338)

FRE 410(a)(4) restricts the admissibility of statements a defendant makes in the course of plea discussions "with an attorney for the prosecuting authority." These statements in the plea negotiation process cannot later be used in the defendant's trial. The rule is usually strictly construed. As illustrated by a recent Seventh Circuit decision, evidence that was not part of an eligible proffer was not precluded from adverse use, as well as evidence that failed FRE 410's requirement that the statement was made as part of plea discussions with’ the prosecutor.

In the case, defendant Schuster "pleaded guilty to knowingly using a minor to produce child pornography." However, he challenged his sentence, arguing in part that the trial judge erred in finding that he had distributed the pornography he had produced, thereby increasing his Sentencing Guideline offense level to which he was exposed. The circuit rejected that this was an error, noting that the "most damning evidence" the trial court received of the defendant's distribution of the pornography had been provided by the defendant himself.

According to the circuit, this evidence came in the form of a letter the defendant sent to the sentencing judge the day before sentencing. The letter "was in the nature of a pre-sentencing written allocution, wherein Schuster discussed the crime and his personal reactions to what he had done." The letter not only admitted that the defendant had taken the charged photos, but the letter noted that he had been "physically ill about doing this [taking the child pornographic photos] after sending the pictures to the requesting person." (emphasis added by court). Schuster, _ F.3d at _ (emphasis added by the circuit court). "Not suprisingly," noted the circuit, "the district court relied on that admission in finding that Schuster distributed the series" and so the court sentenced the defendant on the Guidelines not only for producing the pictures, but with distributing them, adding two offense levels to his sentence.

The circuit cited a number of reasons to reject the defendant's contention that the trial court erred in using the letter in determining the defendant's sentencing level. But the circuit did note without much exploration that it fell well outside the scope of FRE 410:

To the extent that Schuster also premises his argument on Federal Rule of Evidence 410(a), for the same reason we reject the proffer-protection agreement, we conclude that the letter to the District Judge was not "a statement made during plea discussions with” the prosecutor. Fed. R. Evid. 410(a)(4).
Schuster, _ F.3d at _ n.3 (citing FRE 410(a)(4)).

The result in Schuster largely turned on when and to whom the statement was made. If the same statement had been made to the prosecutor and was covered by the terms of FRE 410(a)(4), the prosecutor could not admit the statement against the defendant at trial. However, because the statement was made by the defendant post-plea to the court, it was not barred by FRE 410(a)(4).

There is a separate evidence issue that was not directly presented in Schuster. FRE 1101(d)(3) provides that the FRE do not apply at sentencing. Part of the rationale for this rule is that the sentencing court should be able to consider a broad range of information before imposing a sentence. If a statement otherwise covered by FRE 410(a)(4) would not be barred at sentencing by operation of FRE 1101(d)(3), could and should the sentencing court be allowed to consider it? This is an issue that may arise on another day.

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