# United States v. Andrew Jackson Robertson

> Court of Appeals for the Fifth Circuit · December 1, 1977 · 560 F.2d 647

URL: https://www.frixlaw.com/law-library/cases/9464036

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Andrew Jackson ROBERTSON, Defendant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 1, 1977
- **Citations:** 560 F.2d 647; 1977 U.S. App. LEXIS 5386
- **Precedential status:** Published
- **Opinion:** Dissent by Morgan
- **Judges:** Morgan, Hill, Noel
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

LEWIS R. MORGAN, Circuit Judge,
dissenting:
The majority holds that because defendant Robertson received the object of his initial bargaining — the Government’s “going easy” on his wife — admissions made by defendant during the course of this bargaining could be introduced as evidence of his guilt. Because I believe that Fed.R. Crim.P. 11(e)(6) 1 and two opinions handed down by this court — United States v. Ross, 493 F.2d 771 (5th Cir. 1974) and United States v. Herman, 544 F.2d 791 (5th Cir. 1977) — compel a different result, I respectfully dissent. In Ross , we held that remarks uttered during the course of plea bargaining could not be used against the defendant at trial. 493 F.2d at 775 . While that panel did observe that the bargain was not consummated, in that the Government prosecuted the women friends of the defendant, it did not condition its holding on this narrow factual base. In United States v. Herman, supra, this court was even more explicit on this issue: “Statements are inadmissible if made at any point during a discussion in which the defendant seeks to obtain concessions from the government in return for a plea.” 544 F.2d at 797 .
Rule 11(e)(6) 2 also provides that any statement made in connection with an offer to plead guilty is not admissible in a criminal proceeding against the person who made the offer. The majority states that Rule 11 is inapplicable because the defend *652 ant “was not negotiating his own plea, but was instead negotiating for leniency for a third person.” Yet, nowhere do I read any language that qualifies the rule according to the motives of the person offering to plead. Thus, whether that person is offering to plead guilty in order to be tried for a lesser crime or to gain leniency for a third person is of no importance in analyzing Rule 11. Rather, once an offer to plead guilty is withdrawn, whatever the motives for the offer, Rule 11 prohibits the use against the defendant of any statement made in connection with that offer. Of' course, one could contend that no offer to plead guilty was made in this case. While it is true that defendant made no such explicit offer, the only reasonable interpretation that one can attach to his offer to “tell everything” if the Government would go easy on his wife is that this statement was in effect an offer to plead guilty. Accordingly, Rule 11(e)(6) would prevent the use against defendant of statements made during the course of this offer. Therefore, for the above reasons, I dissent.
. Fed.R.Ev. 410 contains the same language found in Fed.R.Crim.P. 11(e)(6).
. Rule 11(e)(6) provides:
Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of state *652 ments made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime is admissible 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464036. Public record. Not legal advice.