Opinion
Case No. 01-40098-01-JAR.
February 15, 2002
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO SUPPRESS STATEMENTS
Defendant Marcus J. Wilkerson moves to suppress all statements he made to law enforcement officers and agents while he was incarcerated at the Shawnee County Jail. The defendant contends that all of these statements were made in the course of plea negotiations and are thus inadmissible under Fed.R.Crim.P. 11(e)(6)(D) and Fed.R.Evid. 410. The government responds that the defendant's statements are admissible for two reasons: 1) the statements were not made in the course of plea negotiations; and 2) by breaching the plea agreement, the defendant's statements are not protected.
The defendant's statements on four separate occasions are at issue: an October 3, 2000 videotaped interview; a letter defendant wrote to Detective Biggs sometime after the October 3 interview; and interviews on or about October 26, 2000 and November 1, 2000.
The October 3, 2000 videotaped interview
While the defendant was incarcerated on pending burglary charges, he agreed to be interviewed by Topeka police officers. The officers read the defendant his Miranda rights; he did not request an attorney nor invoke the right to remain silent. This interview was videotaped and admitted into evidence as Government Exhibit 1. Having viewed the pertinent parts of the interview, the Court finds that the defendant was interviewed by several police officers from about 4:00 to 11:30 p.m. with two breaks totaling 35 minutes. Although the defendant claims that he was tired and hungry after this lengthy interview, the videotape proves that at the end of the interview the defendant was alert, talkative and in good humor. Near the end of the interview an officer offered the defendant some pretzels; the defendant joked that the officer was "drying me out."
Several times during the interview, the defendant asked or mentioned that he wanted to know what he would get for cooperating. At one point, the defendant asked, "what am I getting out of this?" The officers told him they could make no promises, but would tell the Assistant District Attorney ("ADA") that he was cooperating. One of the officers told the defendant that the ADA had the authority to decide whether the defendant could work with law enforcement. The officer repeatedly advised the defendant that the ADA would not be interested in working with the defendant unless the defendant proved to be credible and reliable. To that end, the officers questioned the defendant about crimes known to the officers in order to test the defendant's credibility. The officers asked the defendant about a burglary of firearms. The defendant was willing to talk about the burglary of firearms, but reluctant to implicate himself. An officer called the ADA at least twice during the interview, asking him to join the interview, but the ADA was unavailable. At some point during the interview, the officer told the defendant, ". . . you already told us enough to put you in prison, but that is not what we are trying to do."
The officers and the defendant did not discuss any terms of a plea or non-prosecution or immunity agreement. Instead, they talked in vague generalities. The defendant offered that he had enough information to get a "walk" on the charges. The officers responded that the defendant knew enough information, to "be good for a bunch." The officers made it clear that the ADA negotiated agreements, not them. Rather than discuss terms of a plea agreement, the defendant, officers and a federal agent discussed the procedure for approving the defendant as a confidential informant, and the general methodology to be employed to have the defendant make controlled buys of drugs on behalf of law enforcement.
Defendant's letter to Detective Biggs
During the interview on October 3, 2000, the defendant indicated that he was not telling the officers everything because he wanted to see what he might receive in consideration of his cooperation. He told them he had an `"ace in the hole." The officers thought the defendant meant information that might incriminate him in another crime, but the defendant meant information about an unsolved homicide. Sometime after the October 3, 2000 interview, the defendant wrote a letter to Detective Biggs, in which he offered information on the homicide in exchange for consideration on his pending charges.
Negotiations on October 26, 2000
On October 26, 2000, the ADA, Detective Hill of the Topeka Police Department, and an attorney with the Shawnee County public defender's office representing the defendant on the pending state charges, met to negotiate the defendant's cooperation with the government. According to Special Agent Stukey of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), defense counsel, the ADA, Detective Hill and Stukey had met and negotiated on October 19, 2000, but Stukey wasn't present during the October 26 negotiations.
According to Detective Hill's testimony, the attorneys agreed that the defendant would cooperate by providing information about the homicide as well as his own involvement in the burglary of firearms; in exchange, the burglary charges would remain in state court and not be referred for filing in federal court. According to Detective Hill, the parties agreed that the information provided by the defendant must be truthful and "validated." This oral agreement was never reduced to writing. There was no other evidence presented about the terms of this agreement. There was no direct evidence of the consequences or remedies of the defendant's breach of this agreement, nor of the use of defendant's incriminating statements against the defendant.
Statement on October 26, 2000
Detective Hill testified that on October 26, 2000, after the deal was "finalized" between counsel and defendant had agreed to it, he debriefed the defendant. The defendant gave him information about the homicide as well as about burglaries that the defendant was involved in.
Interview on November 1, 2000
Special Agent Stukey had previously met with defense counsel on October 19, 2000, and thought he could interview the defendant without first contacting defense counsel. When Stukey commenced his interview with the defendant, the defendant immediately protested that he was unaware that he would have to speak to an ATF agent, and that he wanted Stukey to confirm this with defense counsel. Stukey tried calling counsel, but was unable to reach her, which he advised the defendant. Stukey then Mirandized the defendant and the defendant indicated that he waived his Miranda rights. The interview proceeded. In the middle of the interview, the defendant again asked Stuckey to contact his lawyer. Again, Stukey tried unsuccessfully to reach her by phone, but this time left counsel a detailed message. Stukey continued with the interview until defense counsel called. Stukey told her that he needed to solve a burglary of a federal firearms dealer. Defense counsel responded that she understood the deal, but was concerned about the defendant because he had talked to everybody yet had not received anything in return. She directed Stukey to cease interviewing the defendant and Stukey complied. The defendant told Stukey he would continue the interview in the future, if defense counsel told him to.
Later, police officers determined that the defendant's information about the homicide was a fabrication, and the defendant's tape-recorded conversation with the identified "suspect" was a charade. Considering this a breach of their agreement with the defendant, state and federal authorities apparently agreed to refer these charges to federal court, where the defendant now finds himself. Analysis
The defendant argues that his statements in the letter and on October 3, October 26 and November 1, 2000, were made during the course of plea negotiations and are thus not admissible under Fed.R.Crim.P. 11(e)(6)(D) and Fed.R.Evid. 410.
Fed.R.Crim.P. 11(e)(6) and Fed.R.Evid. 410 are substantively identical. Rule 410 states: 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.
The defendant never made any statement to a government attorney, neither the ADA nor a federal prosecutor. All of his statements were made to law enforcement officials. The statements he made during the October 3, 2000 interview and in the letter to Detective Biggs preceded the plea or proffer negotiations conducted by defense counsel and the ADA on October 19 and 26, 2000. Nothing in the record supports the defendant's assertion that his October 3 interview and his letter were plea negotiations with a government lawyer.
Moreover, the police officers and federal agents with whom the defendant spoke with on October 3, 2000, were not authorized to negotiate a plea with the defendant. As the officers stated several times to the defendant, they were without authority to negotiate pleas; all they could do was convey to the ADA, who had such authority, that the defendant was being cooperative.
Before parties negotiate and finalize a plea agreement, they will often enter into a proffer agreement, covering that stage of the process in which the defendant provides information in an attempt to convince law enforcement that he is credible and has such valuable information that they ought to consider a plea agreement or nonprosecution agreement. Proffer agreements commonly include terms concerning the use of any incriminating statements made by defendant during the proffer. But nothing in the record suggests that a proffer agreement, oral or written, was entered into in this case. In fact, there is nothing in the record to suggest there were any proffer or plea negotiations between defense counsel and the ADA or even the defendant and the ADA before the October 3 interview and subsequent letter. Thus, the Court must conclude that the defendant's statements on October 3 and in the letter were neither plea nor proffer negotiations within the meaning of Fed.R.Crim.P. Rule 11(e)(6) and are not inadmissible under Fed.R.Evid. 410.
By the time the defendant's statements were made on October 26, 2000, however, defense counsel and the ADA had engaged in negotiations concerning the defendant's cooperation. According to the officers and agent who testified, an agreement was reached on October 26, 2000, before the defendant was interviewed that day. The only direct evidence of the terms of that agreement is that the defendant agreed to provide truthful information about the homicide and about a burglary of firearms that involved the defendant, and that the government would retain the state charges against the defendant and not refer the case for filing of federal charges. Again, there is no direct evidence of any other terms of the agreement, such as the use of the defendant's statements in the event he did not plead, or in the event he breached his agreement with the government.
The Court is compelled to comment on the conduct in this investigation and case prior to its filing in federal court. The parties dispute whether the incriminating statements the defendant made to law enforcement while in custody on state charges are admissible. The so-called plea agreement entered into by the ADA and defense counsel in state court is oral. The defendant is now represented by an Assistant Federal Public Defender and this case is prosecuted by an Assistant United States Attorney, neither of whom were involved in the oral negotiations and agreement reached in the state proceeding. Yet, this Court is called upon to divine what the terms of the oral agreement were, if any, concerning use of the defendant's incriminating statements, as well as the consequences of a breach of the oral agreement.
By entering into a proffer agreement or plea agreement, a defendant is waiving fundamental constitutional and legal rights. The plea agreement should be memorialized in a carefully drafted document, reviewed and signed by government and defense counsel. Whether the parties have entered into a proffer agreement, plea agreement or non-prosecution agreement, there are serious expectations, risks and interests at stake. Because of the gravity of the expectations, risks and interests, these types of agreements should always be reduced to writing. While principles of contract law generally apply to such agreements, the constitutional ramifications of these agreements require judicial supervision in order to safeguard a defendant's rights.
United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir.), cert. denied, 454 U.S. 831 (1982) (citations omitted).
Although statements made during a plea colloquy or pursuant to a plea or proffer agreement are generally inadmissible against a defendant, the defendant may waive the right to have some or all of these statements excluded from evidence, so long as such waiver is knowingly and voluntarily made. As the court noted in United States v. Griffin, plea or proffer agreements often immunize a defendant from the statements he or she gives in the course of cooperation, but allow the government to use those statements to impeach the defendant's contradictory testimony or evidence in the event the defendant goes to trial.
United States v. Mezzanatto, 513 U.S. 196, 210 (1995).
84 F.3d 912, 919, 922-923 (7th Cir. 1996).
Now that the defendant is facing trial on the federal charges, the parties dispute the admissibility of the statements he made during the interviews. There is no direct evidence of the terms of the agreement as relating to the admissibility of defendant's incriminating statements. There is no written proffer agreement or plea agreement, nor any testimony about such terms of either agreement. There is circumstantial evidence in the record, however, of the parties' understanding of the use of the defendant's statements.
During the interview on October 3, 2000, an officer tells the defendant, "you already told us enough to put you in prison, but that is not what we are trying to do." Of course, this statement preceded the negotiations and agreement struck by counsel on October 19 and 26, 2000, and is not evidence of any agreement concerning the use of the defendant's statements. It does illustrate, however, that absent any agreement, the officers understood that the defendant's statements could be used against him. This of course, is the general rule. The defendant was interviewed while in custody, but was first Mirandized and waived those rights. Thus, his interview on October 3 is admissible, unless the statements were in the nature of plea or proffer negotiations. As discussed above, no negotiations occurred on October 3, because the government's attorney, the only authorized negotiator, was not present; further, the officers did not act as if they had authority to negotiate and thereby manipulate the defendant into thinking he was negotiating for himself. Apparently, this was the defendant's understanding as well, when he indicated later in the October 3 interview that he wouldn't tell all until he saw what consideration he would get. Thus, any statements made by the defendant prior to the negotiations on October 19 and 26, 2000, are not protected under the rules of criminal procedure or rules of evidence.
What about the statements the defendant made on October 26, after the deal had been finalized earlier that day? Since the statements were made after an agreement was struck, they cannot be said to be made in the course of negotiations. Rather, they are made in response to, and under whatever protection is provided in the agreement. Again, since the agreement was oral and no one testified concerning any agreement about the use of the defendant's statements, the Court considers the circumstantial evidence in the record. The state public defender apparently had the understanding that the defendant's statements could be used against him, at least in some circumstances. In her discussion with Special Agent Stukey on November 1, 2000, counsel acknowledged that the agreement was that the defendant would cooperate, but that she was "worried" for the defendant because he had taken the risk of talking to various law enforcement officers without any assurance or consideration. Defense counsel's statements indicate a general understanding that after the October 26, 2000 agreement, the defendant's statements were not fully protected by any agreed immunity. What is not clear from defense counsel's statements to Stukey, however, is when and under what circumstances such statements could be used against the defendant. Was it only in the event that the defendant breached the agreement? Was it only if the defendant testified in his own behalf, and inconsistently with his prior statements? If the defendant did not plead and went to trial, could the prosecution use the statements in its case in chief?
As the Supreme Court expressed in United States v. Mezzanatto, a defendant may waive his rights in the proffer agreement under the federal rules of criminal procedure and evidence to allow the use of his proffered statements to impeach his contradictory testimony or evidence at trial. Yet, as the Tenth Circuit cautioned in United States v. Calabrese, contractual waivers should be reviewed with great care, in order to safeguard a defendant's rights. In United States v. Ready, the Second Circuit similarly warned that
513 U.S. 196(199 5)(Ginsburg, J., concurring) (O'Connor, J., and Breyer, J., join concurrence, expressing grave concern about a waiver that would permit the government to use the defend ant's proffer statements in its case in chief). But see United States v. Dortch, 5 F.3d 1056, 1067-69 (7th Cir. 1993), cert. denied, 510 U.S. 1121 (1994) (allowing use of proffer statements to impeach a defense witness who provided testimony inconsistent with the proffer). See also United States v. Burch, 156 F.3d 1315, 1320-22 (D.C. Cir. 1998) and United States v. Krilich, 159 F.3d 1020, 1024-26 (7th Cir. 1998), cert. denied, 528 U.S. 810 (1999) (proffer agreements that permitted defendant's proffer statements to be used for more than impeachment purposes are enforceable).
645 F.2d 1379, 1390 (10th Cir. 1981), cert. denied, 454 U.S. 831 (1982).
82 F.3d 551, 556 (2d Cir. 1996).
Even in the context of plea agreements, which include the safeguard of judicially supervised allocutions, the Second Circuit scrutinizes waivers closely and construes them narrowly, especially when they implicate essential rights (citations omitted).
The Ready court goes on to note that proffer agreements are to be construed even more strictly than plea agreements because proffer agreements are not subject to judicial scrutiny before being effectuated; are sometimes made without the scrutiny of defense and government counsel; may ultimately have as significant an effect as a plea agreement, including effectively foreclosing the defendant from testifying or putting on a defense; and because the government has "certain awesome advantages in bargaining power." As another court put it, "[a]fter signing the standard proffer agreement, the terms of which are dictated by the government, the only thing that a defendant is guaranteed is the chance to convince the prosecutor to enter a deal. At the same time, the defendant bears all of the risk."
Id. at 559.
United States v. Duffy, 133 F. Supp.2d 213, 217-218 (E.D.N.Y. 2001).
Although this Court is convinced that the agreement did not grant the defendant blanket immunity, as evidenced by the articulated concern of defense counsel about the ATF interviewing the defendant, without any more evidence of the agreed use of the defendant's statements, the government has failed its burden of proving that the statements are not protected by the agreement in whole or part. The issue of the breach of the agreement, however, is a separate issue that is discussed below.
Before turning to the effect of the breach of the agreement, the Court must address the defendant's statements given to Special Agent Stukey on November 1, 2000. Although the issue of any agreed immunity concerning these statements is at issue, the far graver concern is that Stukey continued to interview the defendant after he twice invoked his constitutional rights. Before the interview even commenced, the defendant told Stukey he did not want to speak to Stukey without first checking with his attorney. Stukey called defense counsel and was unable to reach her, which he conveyed to the defendant. Stukey then Mirandized the defendant, the defendant "waived" his rights and the interview commenced. But once an individual in custody invokes his right to an attorney, all questioning by law enforcement officers must stop until an attorney is present. Even if the accused is thereafter advised of his rights and responds to further police initiated interrogation, that does not effect an unequivocal waiver of the rights. "[U]nless the accused himself initiates further communication, exchanges, or conversations with the police," there is no valid waiver of rights under those circumstances.
Hawkins v. Hannigan, 185 F.3d 1146, 1152-1153 (10th Cir. 1999) (citing Miranda v. Arizona, 384 U.S. 436, 474 (1966); United States v. Roman-Zarate, 115 F.3d 778, 782 (10th Cir. 1997); United States v. Giles, 967 F.2d 382, 385 (10th Cir. 1992).
Giles, 967 F.2d at 385 (quoting Edwards v. Arizona, 451 U.S. 477, 484 (1981)).
Edwards, 451 U.S. at 484-85.
There is nothing in the record that demonstrates the defendant initiated communication with Special Agent Stukey. Rather, Stukey's report reflects that after Stukey tried to contact defense counsel, he told the defendant that he had not reached her by phone, then proceeded to Mirandize the defendant. Thus, the communication was police initiated. The fact that the defendant did not unequivocally waive his rights is borne out when he tried again, in the middle of the interview, to invoke his right to counsel. Stukey again unsuccessfully attempted to contact defense counsel, and Stukey advised the defendant that he was unable to contact her. Stukey then proceeded to interview the defendant. The record does not reflect that the defendant initiated this new segment of the interview.
Under these circumstances, the Court concludes that the November 1, 2000 interview must be suppressed. Because the defendant not once, but twice invoked his right to counsel, followed by further questioning that was initiated by law enforcement, the entire interview must be suppressed. The existence and scope of a proffer or plea agreement, as well as the consequences of a breach of such agreement do not change this result.
Finally, the government argues that even if the defendant's statements were subject to immunity by virtue of an agreement, any such protection was forfeited when the defendant materially breached the agreement by feeding law enforcement false statements and fabricated evidence about the homicide. The defendant does not dispute that he lied about the homicide and the Court thus concludes as a matter of law that he breached the agreement.
Calabrese, 645 F.2d at 1390 (where the facts are not in dispute, the court may determine breach as a matter of law).
The lack of a written agreement or any testimony about the consequences of the defendant's breach of the oral agreement means there is no direct evidence of whether the parties had an agreement about the consequences of the defendant's breach. There is circumstantial evidence, as described above, that the defendant, defense counsel and law enforcement knew that defendant's incriminating statements placed him at some risk. Although it is impossible to ascertain all of the bargained-for circumstances in which the defendant's incriminating statements could be used against him, common sense supports a conclusion that if the statements could ever be used against him, it would be in the event he breached the agreement.
The government argues convincingly that the defendant should not profit from his deceitful and manipulative fabrication of information about the unsolved homicide. This Court agrees. Proffer or plea agreements "cannot be unilaterally broken with impunity or without consequence." Having materially breached the agreement by providing false and fabricated information about the unsolved homicide, the Court concludes that to whatever extent and degree the agreement limited the government's use of the defendant's statements, the defendant is no longer entitled to the benefit of that bargain.
See, e.g., United States v. Reynoso, 239 F.3d 143, 148 (2d Cir. 2000) (Congress did not intend to reward a defendant who trades on false information); United States v. Castelbuono, 643 F. Supp. 965, 969-70 (E.D.N.Y. 1986) (suppressing statements of defendant who breached cooperation agreement would result in bad public policy; defendants might attempt to manipulate investigations and prosecutions without fear of any consequences).
United States v. Reardon, 787 F.2d 512, 516 (10th Cir. 1986) (citing Calabrese, 645 F.2d at 1390).
IT IS THEREFORE ORDERED that the defendant's Motion to Suppress Statements made on October 3 and October 26, 2000, and in defendant's letter to Detective Biggs, is DENIED.
IT IS FURTHER ORDERED that the defendant's Motion to Suppress Statements made on November 1, 2000, is GRANTED.
IT IS SO ORDERED.