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Univ. of South Carolina School of Law

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Monday, May 28, 2012

Plea Plea Me: Plea Allocution & Waiver Triggers Rule 410(a)(3) & 410(b)(1) In Arson Case

Federal Rule of Evidence 410(a)(3) provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:...

a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure....

Rule 410(a)(3) explains why incriminatory statements that Volkan Mergen made during a plea allocution ould have been inadmissible against him in United States v. Mergen, 2010 WL 395974 (E.D.N.Y. 2010), if he hadn't signed a waiver. That waiver explains why his statements were admissible against him. And Federal Rule of Evidence 410(b)(1) likely explains why the defendant could place his statements in context.

In Mergen, Volkan Mergen was suspected of committing an arson and related crimes. The AUSA assured Mergen that if he entered a guilty plea in connection with the arson, the AUSA would file a 5K1.1 departure with the court; if not, Mergen could face a sentence of up to 25 years. Mergen agreed to plead guilty, and during the plea allocution, the defendant gave the following testimony under oath:

"I traveled with others by car from Staten Island to New Jersey to obtain gasoline to be used to set fire to a house. In New Jersey, we obtained gasoline and then traveled by car to Staten Island. In Staten Island, we drove to a house and one of the individuals set fire to the house using the gasoline. At the time of these events, I was cooperating with the government but I did not have authorization to set fire to a house or to obtain gasoline for that purpose."

Mergen thereafter withdrew his guilty plea, and his case proceeded to trial. And, as the Eastern District of New York noted, if Mergen hadn't signed a waiver, his plea allocution statements would have been inadmissible under Rule 410(a)(3). That's because the language of Rule 410(a)(3) clearly covers plea allocutions. See United States v. Orlandez-Gamboa, 320 F.3d 328, 331 (2nd Cir. 2003). The right to allocute, to address the court on any subject, prior to the imposition of sentence, is “ancient in law,” United States v. Behrens, 375 U.S. 162, 165 (1963), and currently codified in Federal Rule of Criminal Procedure 32(i)(4)(A)(ii), which provides that "[b]efore imposing sentence, the court must…address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence."

If during a plea allocution, the defendant makes incriminatory statements, those statements will not be admissible against the defendant in a subsequent criminal or civil proceeding pursuant to Rule 410(a)(3). For instance, in United States v. Udeagu, 110 F.R.D. 172 (E.D.N.Y. 1986), the defendant pleaded guilty to knowing and intentional importation of heroin and possession with intent to distribute and then described his participation in the crime in detail during a plea allocution. See id. The defendant thereafter withdrew his guilty plea and filed a successful motion in limine to preclude the prosecution from presenting his plea allocution statements into evidence pursuant to Rule 410(a)(3). See id.

But Mergen did sign a waiver, which stated that

"Any prosecution resulting from the defendant's failure to comply with the terms of this agreement may be premised upon, among other things: (a) any statements made by the defendant to the Office or to other law enforcement agents on or after January 26, 2005; (b) any testimony given by him before any grand jury or other tribunal, whether before or after the date this agreement is signed by the defendant; and (c) any leads derived from such statements or testimony. Prosecutions that are not time-barred by the applicable statutes of limitation on the date this agreement is signed may be commenced against the defendant in accordance with this paragraph, notwithstanding the expiration of the statutes of limitation between the signing of this agreement and the commencement of any such prosecutions. Furthermore, the defendant waives all claims under the United States Constitution, Rule 11(f) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence, or any other federal statute or rule, that statements made by him on or after January 26, 2005, or any leads derived therefrom, should be suppressed."

Because Mergen's withdrawal of his guilty plea constituted failure to comply, the prosecution was allowed to admit his plea allocution, but the Eastern District of New York found that the prosecution could not admit those statements in "bare-bones fashion," as asserted by the Government. Instead,

Contrary to the Government's assertion, the circumstances surrounding the statements are not irrelevant. The statements were made in the context of a guilty plea that was subsequently withdrawn. Should Defendant introduce evidence that contradicts the sworn statements he made during his allocution, the jury will have to make credibility determinations and weigh the conflicting evidence. Thus, the context in which Defendant made the statements could certainly be relevant to a jury deciding how much weight to accord the statements. Moreover, if the Government introduces Defendant's plea allocution statements, fairness dictates that Defendant be permitted to put the statements before the jury in context. Accordingly, although the court will enforce the waiver and allow the Government to introduce the plea allocution statements in its case-in-chief, it will not preclude Defendant from providing context for those statements.

While the court did not explicitly say so, it seems clear that in reaching this conclusion, it was relying upon Federal Rule of Evidence 410(b)(1), which provides that

The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together....

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/05/federal-rule-of-evidence-4103provides-that-in-a-civil-or-criminal-case-evidence-of-the-following-is-not-admissible-agains.html

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