EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, October 6, 2008

The Time Has Come Today: 3rd Circuit Becomes Latest Court To Find That A Criminal Defendant Can Waive The Substantive Protections Of Rule 410

Based upon its recent opinion in United States v. Hardwick, 2008 WL 4444294 (3rd Cir. 2008), the Third Circuit has become the latest court to find that a criminal defendant can waive the protections of Federal Rule of Evidence 410 to such an extent that his plea/statements can be used not only for impeachment purposes, but also substantively.

The opinion in Hardwick was based upon the following facts.  The "Perez Organization" was led by Enrique "Ricky" Perez, a cooperating witness, and defendants Bernard "B-Nice" Murray and Allen "Tito Allen" Resto.  Meanwhile, defendant Lorenzo "Fu Quan" Hardwick managed one of the drug corners controlled by the Perez Organization, and defendant Jose G. Rodriguez was one of the primary "baggers" for the gang, responsible for processing the drugs into individual bags for street sale. Various disputes erupted between members of the Perez Organization and competing drug dealers, resulting in three individuals being shot to death and several others being badly injured.  A federal grand jury in Camden, New Jersey subsequently issued an eight count Superseding Indictment naming Murray, Resto, Hardwick, and Rodriguez as defendants.

During the investigation before trial, Murray entered into a proffer agreement (a/k/a a "queen for a day" agreement) with the government.  Under this proffer agreement, Murray agreed to cooperate with the investigators by answering questions truthfully and completely, and the government agreed not to use these statements against him at trial in its case-in-chief. The proffer agreement provided for an exception, however, if the government needed "to rebut any evidence or arguments offered on [Murray's] behalf."  When Murray was interviewed under this agreement, he admitted to planning and participating in the slaying of two individuals, Hiram "Chubby" Rosa and Kenneth "Smoochie" Allen

At trial, Murray did not testify in his own behalf, but during cross-examination of witnesses for the prosecution, Murray's attorney raised questions that were designed to support the inference that Perez and possibly Mark Lee, the leader of another drug gang, were responsible for the murders of Rosa and Allen.  Because these questions were also designed to support the inference that Murray was not responsible for these murders, they were also contrary to the statements Murray made under the proffer agreement.  Accordingly, the trial court found that, pursuant to the terms of the proffer agreement, the prosecution could present Murray's admissions as substantive evidence of his guilt during its case-in-chief.

On appeal, Murray claimed that the prosecution improperly introduced his admissions, which led the Third Circuit, inter alia, to consider whether the waiver contained in the proffer agreement was enforceable.  The Third Circuit began by recognizing that Murray's admission would ordinarily be inadmissible under Federal Rule of Evidence 410, which states in relevant part 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:

          (1) a plea of guilty which was later withdrawn;

          (2) a plea of nolo contendere;

          (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

          (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."

But, the Third Circuit noted that in its landmark ruling in United States v. Mezzanatto, 513 U.S. 196, 210 (1995), the Supreme Court concluded that a criminal defendant can waive the protections of Federal Rule of Evidence 410 pursuant to a proffer agreement (a/k/a a "queen for a day" agreement) as long as there is no "affirmative indication that the agreement [to waive] was entered into unknowingly or involuntarily."  Importantly, however, the Third Circuit also recognized that "the Mezzanatto Court only considered the enforceability of proffer waivers for impeachment purposes, and five justices expressed doubt as to whether a waiver could be used to admit the defendant's statement in the Government's case-in-chief."

Indeed, in their concurring opinion, Justices Ginsburg, O'Connor, and Breyer found that:

     "The Court holds that a waiver allowing the Government to impeach with statements made during plea negotiations is compatible with Congress' intent to promote plea bargaining. It may be, however, that a waiver to use such statements in the case in chief would more severely undermine a defendant's incentive to negotiate, and thereby inhibit plea bargaining. As the Government has not sought such a waiver, we do not here explore this question."

Meanwhile, in their prophetic dissenting opinions, Justices Souter and Stevens argued that:

     "The second consequence likely to emerge from today's decision is the practical certainty that the waiver demanded will in time come to function as a waiver of trial itself. It is true that many (if not all) of the waiver forms now employed go only to admissibility for impeachment. But although the erosion of the Rules has begun with this trickle, the majority's reasoning will provide no principled limit to it. The Rules draw no distinction between use of a statement for impeachment and use in the Government's case in chief. If objection can be waived for impeachment use, it can be waived for use as affirmative evidence, and if the Government can effectively demand waiver in the former instance, there is no reason to believe it will not do so just as successfully in the latter. When it does, there is nothing this Court will legitimately be able to do about it. The Court is construing a congressional Rule on the theory that Congress meant to permit its waiver. Once that point is passed, as it is today, there is no legitimate limit on admissibility of a defendant's plea negotiation statements beyond what the Constitution may independently impose or the traffic may bear."

And indeed, this is exactly what happened, with the Third Circuit recognizing that several other circuit courts had enforced proffer agreements under which criminal defendants authorized the admission of their incriminatory statements as substantive evidence during the prosecution's case-in-chief.  And the Third Circuit decided to join these courts and thus affirmed the trial court's decision to allow the prosecution to introduce evidence of Murray's incriminatory statements as substantive evidence during its case-in-chief.

All of this leads me to think that it is time for the Supreme Court to grant cert in one of these cases.  As noted, Mezzanatto did not answer the question of whether a criminal defendant's incriminatory statements can be used as substantive evidence based upon a proffer agreement, and five justices expressed doubt on the issue.  This being the case, there seems to me to be a decent chance that the Supreme Court would find this practice unconstitutional, and it certainly seems to be an issue of such importance that the Court should resolve it.



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