Tuesday, June 10, 2008
"Against The Defendant": Oklahoma Court To Address Whether Defendant's Wife Can Testify About Rejected Plea Deal
The trial of Oklahoma state auditor and inspector Jeff McMahan has raised an interesting issue under Federal Rule of Evidence 410. McMahan is currently standing trial in an Oklahoma federal district court, facing charges of accepting illegal campaign contributions, trips, and jewelry from a southeast Oklahoma businessman. Specifically, the federal grand jury indictment accused McMahan and his wife, Lori, of benefiting from trips, jewelry, and more than $100,000 in illegal contributions to the auditor's 2002 campaign from Oklahoma businessman Steve Phipps. The indictment claimed that Jeff then returned the favor, sometimes at his wife's urging, by giving special favors to Phipps' abstract companies, which the auditor's office regulated.
The prosecution recently rested its case against Jeff, which has raised the question of whether defense counsel can call Lori to testify that she rejected a plea deal with prosecutors under which she ostensibly would have testified against her husband. Defense counsel wants to use this evidence to establish that Lori had an "innocent state of mind," which obviously would benefit Jeff because it is alleged that Lori also participated in the illegal "you scratch my back, I'll scratch yours" behavior with which her husband is charged. Prosecutors have claimed that a federal rule of evidence prohibits such testimony while defense counsel has countered that appeals courts have allowed it. So, who's right?
Well, Federal Rule of Evidence 410 states, inter alia, that
"Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: * * *
(2) a plea of nolo contendere; * * *
(4) 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for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it." (emphasis added).
As I highlighted above, Rule 410 only prohibits the introduction of statements made during plea discussions against the defendant; it does not explicitly proscribe the introduction of such statements against the prosecution. Thus, Rule 410 should not, per se, preclude a defendant or defense witness from testifying that he or she rejected a plea bargain to prove an innocent state of mind. Indeed, this is exactly what the Second Circuit found in United States v. Biaggi, 909 F.2d 662, 690-91 (2nd Cir. 1990).
Of course, it's important to note that simply finding Rule 410 is inapplicable does not automatically make plea-related statements admissible. Such statements still have to be relevant under Federal Rule of Evidence 401 and pass the balancing test under Federal Rule of Evidence 403. And on that front, the court in Biaggi was equivocal. It noted that a witness rejected an offer of immunity in the case before it and found that rejection of an offer of immunity was clearly admissible as evidence of an innocent state of mind. The court then proceeded to find that "[r]ejection of an offer to plead guilty to reduced charges could also evidence an innocent state of mind, but the inference is not nearly so strong as rejection of an opportunity to preclude all exposure to a conviction and its consequences. A plea rejection might simply mean that the defendant prefers to take his chances on an acquittal by the jury, rather than accept the certainty of punishment after a guilty plea. We need not decide whether a defendant is entitled to have admitted a rejected plea bargain."
Since the Biaggi case, most courts have applied its analysis when confronted with rejected plea deals, but have come to different conclusions as to the ultimate question of admissibility, with many cases turning on their facts. At the same time, some courts, usually relying on the 8th Circuit's opinion in United States v. Verdoon, 528 F.2d 103 (8th Cir. 1976), have found that evidence of statements made during plea discussions are per se inadmissible, regardless of whether they are offered against the defendant or against the prosecution.
In my mind, these courts are reaching a nonsensical result. Why? Well, reconsider the exception from Rule 410 listed above, which allows for, inter alia, statements made during plea discussions to be admissible "against the defendant" if "another statement made in the course of the same plea or plea discussions has been introduced..." Clearly, this exception indicates that statements made during plea discussions are not per se inadmissible, and the Advisory Committee's Note to the 1979 amendment to Federal Rule of Criminal Procedure 11(e)(6) [which is now Rule 11(f) and has been "merged" with Federal Rule of Evidence 410] explains the reason for this exception thusly: "This change is necessary so that, when evidence of statements made in the course of or as a consequence of a certain plea or plea discussions are introduced under circumstances not prohibited by this rule (e.g., not 'against' the person who made the plea), other statements relating to the same plea or plea discussions may also be admitted when relevant to the matter at issue." (emphasis added). In other words, the Advisory Committee's Note clearly indicates that defendants are not categorically proscribed from presenting plea related statements against the prosecution.
My disagreement with this line of case notwithstanding, this still leaves the question of how federal courts in Oklahoma and the Tenth Circuit (which covers federal courts in Oklahoma) have dealt with the issue. Unfortunately, I found no cases where these courts dealt with this precise issue. What I do know, however, is that the Tenth Circuit construes the phrase "against the defendant" in Federal Rule of Evidence 410 in a (too) restructive manner in the context of nolo contendere pleas. A criminal defendant who pleads guilty in a criminal case can have his plea used against him in a subsequent civil or criminal case, and thus criminal defendants typically use nolo contendere pleas (or "no contest" pleas) so that their pleas can't be used against them in subsequent proceedings pursuant to Rule 410. Obviously, Rule 410 protects such criminal defendants when they remain defendants in subsequent criminal or civil trials, but what happens when a pleading criminal defendant becomes a civil plaintiff in a related proceeding? For example, what happens to a criminal defendant who pleads nolo contendere to arson and then brings a civil action against his insurance company for refusing to pay on his insurance policy covering the burned property?
In my mind, the answer is clearly that the plea should be inadmissible, an argument I made in my article, The Best Offense is a Good Defense. The Tenth Circuit, however, is among those courts coming to an opposite conclusion, and the way it achieved this result is through what I have dubbed "semantic gymnastics." According to the Tenth Circuit in Rose v. Uniroyal Goodrich Tire Co., 219 F.3d 1216, 1220 (10th Cir. 2000):
"This case does not present the kind of situation contemplated by Rule 410: the use of a nolo contendere plea against the pleader in a subsequent civil or criminal action in which he is the defendant. In this case,...the persons who entered prior no-contest pleas are now plaintiffs in a civil action. Accordingly, use of the no-contest plea...is not 'against the defendant' within the meaning of Fed.R.Evid. 410. This use would be more accurately characterized as 'for' the benefit of the 'new' civil defendants...." (qutoing Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir. 1988).
As I argued in my article, this alleged dichotomy is nonsensical, but that's a fight for a different day. What the Tenth Circuit's opinion tells us is that it only precludes pleas and plea related statements under Rule 410 in the one scenario where a criminal defendant makes a plea or a plea related statement and is now a defendant in a subsequent proceeding having the plea offered against him. Thus, the court in McMahan's trial should find the wife's rejection of the plea deal admissible.