Eighth Circuit "Totality Of Circumstances" Underlies FRE 410 Settlement Authority

Does a request to cooperate with the government protect the defendant's subsequent statements made to the government? Eighth Circuit affirms the admission of the defendant’s offer to cooperate with a DEA agent after a search warrant was executed at the defendant's residence (the defendant told the officer that he would consider cooperating with the DEA, claiming “he could in fact arrange a large marijuana transaction," for them, "but wanted to talk to an attorney before deciding whether to proceed”); the statement was not excludable under FRE 410 since the totality of the circumstances showed that the defendant and agent were not engaged in plea discussions, in United States v. McCauley, _ F.3d _ (8th Cir. June 6, 2013) (No. 12–1313)

Last week the Eighth Circuit considered a case in which it applied several factors to determine whether protected plea settlement statements were made under FRE 410. This recent case is of some interest in light of previous Eighth Circuit cases that seemed to get to the same place without applying a specific factor analysis. See, e.g., Rachlin v. United States, 723 F.2d 1373, 1376-77 (8th Cir. 1996) (excluding discussions between defendant, his lawyer, investigating agents and the US Attorney, in which the US Attorney told the defendant that the government was not yet set to bargain in light of the stage the investigation was at, because defendant's statements appeared as offers of total cooperation and not as attempts to bargain with the government). Unlike the situation in Rachlin the more recent Eighth Circuit case United States v. McCauley seems to present a converse situation. While Rachlin concerned a defendant's offer to plea bargain which the government did not accept, the recent McCauley case focuses on an apparent offer by the government "to cooperate" -- one which the defendant did not accept.

In the recent Eighth Circuit case, the defendant was charged with conspiracy to distribute marijuana, possession with intent, and money laundering in the Columbia, Missouri region. At trial, over defendant's objection, a DEA agent testified about his discussion with the defendant following a warranted search of the defendant's premises. These statements expressed an interest in cooperating with authorities, noting the types of criminal activities the defendant could illucidate. The jury convicted the defendant and he appealed contending that the trial judge had improperly allowed the agent's testimony about statements he had made during "settlement discussions" with the agent. The circuit rejected his contention that an FRE 410 settlement discussions had occurred, so that the defendant's statements could not be used in evidence. While the agent did inquire of the defendant's willingness to cooperate and the defendant made a conditional response not rulling out cooperation, the deal had never moved beyond this point and ultimate failed due to the defendant's failure to make an adequate response by the time set by the agent.

DEA Agent Mattas testified at the defendant's trial that:

McCauley acknowledged that he had been involved in marijuana trafficking in the past, but stated that he had gotten out of it several years ago. After initial denials, McCauley admitted that he had $10,000 in cash.... McCauley also admitted that he knew there was marijuana at the other house and that his fingerprints would be on it, but it was not his.... Mattas also testified (over McCauley's objection) that, during the interview, he asked McCauley if he wanted to cooperate. McCauley responded that he was considering it and that he could arrange a 200–pound marijuana transaction, but that he wanted to discuss it with an attorney before proceeding. McCauley was given until the following day to decide....
McCauley, __ F.3d at __. No word came from the defendant the next day. According to circuit, the agent testified that "he did not hear back from McCauley," by the time agreed upon he found that the defendant "had absconded."

The circuit rejected the defendant's contention on appeal that the agent's testimony violated FRE 410's exclusion of evidence of plea or settlement negotiations. The circuit acknowledged that the rule was applicable to "conversations with a government agent who has the 'express authority to act for the prosecuting government attorney,' even if the government attorney is not present at the time of the conversation." Whether a FRE 410 discussion had occurred involved an examination of "the specific facts and totality of the circumstances in deciding whether a statement is made during the course of plea discussions within the meaning of Rule[] ... 410." The circuit then recited five "[f]actors to consider in the 'totality' analysis" including these five "Morgan Factors":

  • Whether a specific plea offer was made
  • Whether a deadline to plead was imposed
  • Whether an offer to drop charges was made
  • Whether discussions of the Sentencing Guidelines occurred, or
  • Whether a defense attorney was retained
McCauley, __ F.3d at __ (citing United States v. Morgan, 91 F.3d 1193, 1195-96 (8th Cir. 1996) (setting out the five factors to consider in assessing FRE 410-qualifying discussions); United States v. Greene, 995 F.2d 793, 799-800 (8th Cir. 1993)(a government agent's representation that he had the authority to negotiate a plea bargain might be sufficient to bring any consequent statements within the purview of Rule 410 and that the government agent's actual authority may be express or implied); United States v. Millard, 139 F.3d 1200, 1205–06 (8th Cir. 1998) (excluding evidence of plea negotiations where the prosecutor was involved, though not always present)).

However, in attempting to use these factors, the circuit suggested that they did not fit:

While it is true that Rule 410 is read broadly by our court, even an expansive view of Rule 410 does not cover the situation described here. McCauley had not been charged or even arrested at the time the statements were made. Although the timing of the conversation before arrest and indictment is not necessarily dispositive, it is certainly a factor in the totality of the circumstances. And, we note that no specific plea offer was made, just an inquiry as to whether McCauley wanted to “help himself out.” There was a deadline imposed, but it was not a deadline to plea, it was a deadline to cooperate. No offer to drop charges was made, obviously, because McCauley had not yet been charged. There is no indication that a discussion of sentencing occurred, and while McCauley indicated he wished to discuss the situation with counsel, it is unlikely he did, as he absconded the next day instead of cooperating. Again, the totality of the circumstances is the ultimate inquiry, but the difficulty of trying to fit the [five] Morgan factors to the situation that occurred here demonstrates the lack of actual plea negotiations. We find that under the totality of the circumstances, plea discussions were not taking place between Mattas and McCauley in February 2007, on the night the search warrant was executed. Accordingly, the district court did not abuse its discretion in refusing to exclude the evidence [in the agent's testimony] pursuant to Rule 410.
McCauley, __ F.3d at __ (citing United States v. Edelmann, 458 F.3d 791, 804–06 (8th Cir. 2006) (holding that Rule 410 did not apply to pre-indictment meetings with government agents whom defendant contacted and met with voluntarily seeking to avoid indictment)).

Although the circuit noted that the defendant's case did not quite fit the Morgan test, the circuit did note some general similarities that would assist in assessing the totality of the circumstances, such as:

Morgan FactorWhether Satisfied In McCauley
Whether a specific plea offer was made"[N]o specific plea offer was made"
Whether a deadline to plead was imposedOnly the "deadline imposed," was "not a deadline to plea, it was a deadline to cooperate"
Whether an offer to drop charges was madeDf not "charged or even arrested at the time the statements were made"
Whether discussions of the Sentencing Guidelines occurred "There is no indication that a discussion of sentencing occurred"
Whether a defense attorney was retained "[W]hile McCauley indicated he wished to discuss the situation with counsel, it is unlikely he did, as he absconded the next day instead of cooperating
McCauley, __ F.3d at __.

As suggested previously, the McCauley case seems to roughly present the reverse to the situation in the Eighth Ciurcuit's disposition of Rachlin v. United States, 723 F.2d 1373, 1376-77 (8th Cir. 1996). Rachlin presented a situation in which FRE 410 did not apply since "[a]t no time did the government make any offer in the way of a bargain to Rachlin or his attorney. At most, the agents may have told Rachlin that his cooperation would be made known to the prosecutor. Defendant could not reasonably view this as a plea offer. Nor was there any offer by Rachlin to plead guilty in exchange for a government concession. We agree with the district court that “[i]nstead of seeking protection [for the statements], total cooperation was offered, without concurrently pursuing a bargain.” Thus, there was no error in excluding discussions between defendant, his lawyer, investigating agents and the U.S. Attorney, in which the U.S. Attorney cautioned the defendant that the prosecution was not ready to bargain because of the early stage of the investigation, noting that the defendant's statements seemed more like offers of total cooperation, not attempts to bargain with the government).

______________________________

Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button

Comments

Post new comment

  • Web page addresses and e-mail addresses turn into links automatically.
  • Lines and paragraphs break automatically.

More information about formatting options

Federal Rules of Evidence
PDF