EvidenceProf Blog

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

Tuesday, October 4, 2011

In Rebuttal: 2nd Circuit Finds Rebuttal Waiver Triggered In American Airlines/Cocaine Case

Federal Rule of Evidence 410 states 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(1) a plea of guilty which was later withdrawn;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for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

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, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). Thereafter, every court that has addressed the issue has found that a prosecutor can force a defendant to sign a "rebuttal waiver" to get to the plea bargaining table, pursuant to which a the proseuctor can introduce the defendant's statements during plea discussions if the defendant presents any contradictory evidence, testimony, or arguments at trial. But when is such a waiver triggere? That was the question addressed by the recent opinion of the Second Circuit in United States v. Roberts, 2011 WL 4489813 (2nd Cir. 2011).

In Roberts, O'Neal Roberts was convicted of crimes committed while working for American Airlines at John F. Kennedy International Airport, specifically, conspiracy to import and actual importation of five or more kilograms of cocaine and conspiracy and attempt to distribute and possess with intent to distribute the same quantity of cocaine.

Before trial and before plea bargaining, Roberts signed a rebuttal waiver permitting the government to use statements made by Roberts during plea discussions as substantive evidence to "rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Roberts] at any stage of a criminal prosecution." During plea discussions, Roberts thereafter, inter alia, admitted that he was present during the unloading of the November 5th flight from Barbados in which the cocaine was discovered.

Thereafter, at trial, Roberts did not testify, but defense counsel presented arguments, evidence, and testimony which the Second Circuit found sufficient to trigger the rebuttal waiver and allow for the admission of some of Roberts' statements during plea discussions.

After he was convicted, Roberts appealed, claiming, inter alia, that this decision was erroneous. The Second Circuit disagreed, concluding that

On this record, we identify no merit in Roberts's contention that the district court abused its discretion in finding that his attorney's actions triggered the waiver provision of his proffer agreement. To the extent defense counsel used argument and cross-examination to imply facts contradicted by Roberts's proffer statements, the district court was prepared to address such conduct simply through jury instructions advising that attorney statements were not evidence. Defense counsel, however, went further, insisting that documentary evidence be put before the jury that strongly implied that Beckford could not have been at the gate on November 5 when the Barbados flight was offloaded. Passenger-list documents showed that Beckford's flight from Miami to New York did not land at JFK until 9:38 p.m., while swipe-card records showed, in defense counsel's own characterization, that Beckford "did not swipe into work until November 6th at three minutes after midnight."...Had counsel limited his proffer to the flight information, his argument that the proof impeached only Beckford's testimony that he had been working at JFK on the afternoon of November 5 might have been more convincing. But that representation is undermined by counsel's simultaneous proffer of the swipe-card evidence. Roberts had no reason to offer those documents except to suggest that Beckford did not report for work at JFK until just after midnight on November 6, by which time it would have been too late to witness events occurring more than an hour earlier with respect to the offloading of the Barbados flight. Indeed, in his closing argument to the jury, defense counsel used the documentary evidence to urge just such a factual inference.



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