Sunday, May 30, 2010
Proper Proffer: Second Circuit Construes Scope Of Substantive Rebuttal Waiver Provision Under Rule 410
Federal Rule of Evidence 410(4) indicates 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:
(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for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Since the Supreme Court's decision in United States v. Mezzanatto, 513 U.S. 196 (1995), however, it is well established that prosecutors can get criminal defendants to waive the protections of this Rule. But if a defendant signs a waiver allowing for the use of his statements made during plea discussions as substantive evidence to rebut evidence offered or elicited or factual assertions made by or on behalf of him at trial, what exactly has he waived? That was the question addressed by the Second Circuit in its recent opinion in United States v. Oluwanisola, 2010 WL 2011317 (2nd Cir. 2010).
In Oluwanisola, Olawale Lateef Oluwanisola was convicted of conspiring to import heroin into the United States, conspiring to possess with intent to distribute heroin, and possessing heroin with intent to distribute. Before the commencement of plea bargaining, Oluwanisola signed a proffer agreement, which provided that the government would not use any of Oluwanisola's statements against him, except:
[T]he Office may use any statements made by [Oluwanisola]...as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Oluwanisola] at any stage of a criminal prosecution....
During the ensuing proffer sessions, Oluwanisola admitted that he knew that envelopes he had when he was apprehended
contained heroin and that he was part of a heroin smuggling operation. With respect to the quantity of heroin, Oluwanisola admitted to receiving envelopes containing heroin well in excess of one kilogram.
Thereafter, the government determined that Oluwanisola was not fully truthful regarding the scope of his involvement with the conspiracy and did not offer him a cooperation agreement. At trial, the judge informed defense counsel that if he wanted to prevent the admission of Oluwanisola's incriminatory statements during the proffer sessions he had to limit his opening statement to generalized statements concerning the government's burden of proof and the jury's responsibilities; he could not reference certain elements of the crime and argue that the government would be unable to sustain its burden of proof as to those elements.
Later at trial, postal worker Dennis Coleman testified that he had seen Oluwanisola picking up mail at one of the suspect addresses and had reported the suspicious behavior to his supervisor. Defense counsel then asked whether there was a written report, which he explained to the court was relevant because it would “establish the date” of Coleman's observation of Oluwanisola. This date was relevant to whether the government could tie over one kilogram of heroin to deliveries picked up by Oluwanisola because the government's argument was based, in part, on the fact that Oluwanisola had been observed picking up deliveries for several months.
The court held, however, that defense counsel could not ask about the written report without opening the door to the proffer statements because the sole purpose of verifying the date would be to question the credibility of the witness.
After he was convicted, Oluwanisola appealed, claiming, inter alia, that both of these rulings were erroneous, and the Second Circuit agreed. With regard to the first ruling, the Second Circuit held that the issue was governed by its prior decision in United States v. Barrow, 400 F.3d 109 (2nd Cir. 2005). And, according to the court,
In this case, the district court made a distinction between "generally tell[ing] the jury about the burden of proof and the necessity of the government proving all elements of the crime" and arguing that "specific elements of the crime [have] not be[en] met," ruling that while the former would not trigger the waiver provision, the latter would. Barrow did not make such a distinction and we can think of no rationale that would compel such a result. Under the district court's interpretation of Barrow, even if the government failed to introduce any evidence on a certain element, defense counsel would not be permitted to draw the jury's attention to the lack of evidence in his opening statement without triggering the waiver provision in the proffer agreement. Interpreting the waiver provision to permit such a result would leave the defendant, for all practical purposes, defenseless. As the record makes clear, Mr. Nobel was compelled by the court's ruling to limit his opening statement to generalized statements concerning the government's burden of proof and the jury's responsibilities. Under Barrow, however, Mr. Nobel should have been permitted during his opening statement to reference certain elements of the crime and argue that the government would be unable to sustain its burden of proof as to those elements.
And, with regard to the latter ruling, the Second Circuit did
not believe that defense counsel's question c[ould] be construed as an implicit factual assertion that Oluwanisola did not pick up mail at that address. Under the government's construction of the waiver provision, defense counsel would be prohibited from asking a witness any question during cross examination about his testimony on direct-even if the testimony was misleading, weak, or contradictory-because the only plausible reason to do so would be to call into question the witness's credibility. We do not read the language in the waiver provision to prohibit Oluwanisola from placing the government's evidence in context, even if that context is that a government witness is not credible.
Accordingly, the Second Circuit vacated Oluwanisola's conviction.