Amicus Curiae Brief — United States v. Mezzanatto

MOTION FILED

JUL 1 1994

No. 93-1340

-. eg, tf the Supreme Court of the United States

= October Term 1993

United States of America, Petitioner

V.

Gary Mezzanatto, Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOTION FOR LEAVE TO FILE AND THE

BRIEF OF AMICUS CURIAE IN

SUPPORT OF RESPONDENT

National Association of Criminal Defense Lawyers

California Attorneys for Criminal Justice

John J. Cleary, Attorney

Cleary & Sevilla

1010 Second Avenue, Suite 1010

San Diego, California 92101-4906

(619) 232-2222

No. 93-1340

In the Supreme Court of the United States

October Term 1993

United States of America, Petitioner

V.

Gary Mezzanatto, Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPLICATION FOR LEAVE TO FILE BRIEF

OF AMICUS CURIAE IN SUPPORT OF THE

RESPONDENT

National Association of Criminal Defense Lawyers

California Attorneys for Criminal Justice

John J. Cleary

Cleary & Sevilla

1010 Second Avenue,

_ §uite 1010

San Diego, California

92101-4906

(619) 232-2222

Member of the Supreme Court Bar

APPLICATION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE IN SUPPORT OF RESPONDENT BY

THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AND THE CALIFORNIA

ATTORNEYS FOR CRIMINAL JUSTICE

The National Association of Criminal Defense

Lawyers and the California Attorneys for Criminal Justice

request the Court leave to file the amicus brief in support

of respondent pursuant to Rule 37.4. The National

Association of Criminal Defense Lawyers is a national

organization composed of public and private criminal

defense lawyers whose work emphasis is in the area of

federal criminal defense.

The California Attorneys for Criminal Justice

(CACJ) is the second largest criminal defense

organization in the country. CACJ is a California non-

profit organization with approximately 2,700 dues paying

members, primarily criminal defense lawyers, both public

and private, who appear regularly in the state and federal

courts.

Previously, the amici had garnered permission to

file an amicus brief in support of the respondent from

both the Solicitor as well as the respondent. (See

footnote one to the amicus brief, and the copy of the

consent from the Solicitor.) However, just prior to our

filing this brief, the respondent informs us that he has

withdrawn his previously given consent, thus

necessitating this motion for leave to file the brief.

Respondent objects to our including within our

brief an important issue we believe inherent in the

1

question presented by the case, that is, whether the

record reflects any “waiver’ of rights by the respondent

prior to or during the pre-trial settlement discussions.

The amici believe that if the Court were to find that such

“waivers" are permissible prior to a settlement conference,

then no discussion of the question presented could

ensue without both analyzing the nature of admonitions

and waiver required as well as whether such waiver is

supported in this record.

Respondent does not wish this issue presented to

the Court, resulting in his withdrawal of consent to file

the attached brief on his behalf. We strongly believe the

issue we raise concerning respondent's non-waiver of

rights supports respondent and in no way detracts from

his other arguments.

That this issue must be confronted in any analysis

of the question in this case is manifest. Indeed, because

this record contains nothing approaching a waiver of

rights,’ the Court may elect to dismiss this case as

improvidently granted because the record will not support

addressing, except as an advisory opinion, the merits of

the question presented. See Monrosa v. Carbon Black,

Inc., 359 U.S. 180, 184 (1959 ).

As we explain in our brief (pp. 27-30), the

Government has the burden to show that a waiver of

rights was made by respondent prior to the settlement

conference and that it was knowing, intelligent and

" "[Clourts indulge every reasonable presumption against waiver’ of

fundamental constitutional rights." Carniey v. Cochran, 369 U.S.

506, 514 (1962); quoting from Johnson v. Zerbst, 304 U.S. 458,

464-465 (1938).

voluntary. Town of Newton v. Rumery, 480 U.S. 386,

397-398, 399 (1987). Yet, the trial record shows only that

respondent and the one agent to the settiement interview

testified conceming this issue. Nothing respondent

testified to could in the least support either an

understanding of the dangers of making statements, the

constitutional rights which were being sacrificed, or any

knowing and intelligent waiver of those rights.

The Government agent merely testified that the

prosecutor told respondent at the start of the meeting

that if respondent took the stand at trial anything that he

might say at the meeting could be “brought up in a trial

setting." J.A. 97. The agent also testified that respondent

was told that if respondent lied, he would be charged

with false statements. He was told of some Kastigar

matter of which the agent did not recall the details. J.A.

96-97. The agent then moved on to recite what

statements respondent made about the drugs charges.

JA. 97.

Nothing in the agents’ trial testimony shows that

the respondent either received proper wamings,

understood those warnings or knowingly waived them.

A mere admonishment is not a waiver. J.A. 83.

Because the record shows no proper admonition,

or waiver or affirmative agreement to the conditions of the

meeting, this Court has no “waiver issue to assess. Cf.

Boykin v. Alabama, 395 U.S. 238 (1969) (courts cannot

assume from a silent record that a guilty plea had been

voluntarily made or that constitutional rights have been

freely and intelligently waived).

As we note in our brief, the waiver issue in this

3

context is particularly delicate given the dramatic

imbalance of power in the negotiations, the ex parte

nature of the discussions, and the unilateral post-

conference power of the prosecution to inform the

defendant that the Government deems his previously-

made statements false with the consequence that the

statements given may now be used as evidence against

him.

Assuming as a matter of policy this Court permits

“waivers” in settlement negotiations, given the noted

non-reported) nature of these conferences, any “waiver”

must be unequivocally clear and with full disclosure of

fact that the defendant may well be incriminating himself

without the slightest guarantee that his statements will not

be used against him later at atrial. -

Uniess this brief is filed, an important issue

contained within the question presented may go

unaddressed by the parties. We ask leave to file the

attached brief.

DATED: July 1, 1994 John J. Cleary

for the amici

Member of Supreme Court Bar

No. 93-1340

In the Supreme Court of the United States

October Term 1993

United States of America, Petitioner

V.

Gary Mezzanatto, Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE IN

SUPPORT OF RESPONDENT

National Association of Criminal Defense Lawyers

California Attorneys for Criminal Justice

John J. Cleary, Attorney

Cleary & Sevilla

1010 Second Avenue, Suite 1010

San Diego, California 92101-4906

(619) 232-2222

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE............ 1

ADDITIONAL CONSTITUTIONAL PROVISIONS ... 3

STATEMENT OF THE CASE ............50065 4

Supplemental Statement of Facts ....... 4

ARGUMENT ........ cece eee ceccccececees 10

Congress Established A “Free Zone" in

Settlement Negotiations ......... 10

Prosecutorial Primacy in Federal Sentencing:

the Motion to Depart for Substantial

Assistance .........0.eeeeeees 13

Pilea Negotiations in Federal Courts .... 16

Waiver of Congressional Protection of

Settlement Discussions in Criminal

Cases is a General Public Concern,

Rather than a Private Concern, and is

Invalid as Contrary to Public Policy.. 20

Benefit without Bargaining: Post-indictment

Interrogation under Guise of Settlement

1B EIST. coccccccceccecceveces 24

Preclusion of Prosecution Exploitation of

Inconsistencies Will Not Create a

Defendant’s "Right to Lie’. ....... 27

The Government Failed to Prove That There

Was Any Waiver for Impeachment, That

it Was Knowingly and intelligently Made,

or That it Was Voluntary ......... 27

GESTS cc cccceccesecseseccocoeces 30

TABLE OF AUTHORITIES

CASES

Arizona v. Fulminante, 499 U.S. 279 (1991) . 30

Boykin v, Alabama, 395 U.S. 238(1969). .... 2

Brewer v. Williams, 430 U.S. 387 (1977) . . 25

Brooklyn Savings Bank v, O'Neil, 324 U.S. 697 (1945) 22

Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983). . 12

Chapman v. United States, 111 S. Ct. 1919 (1991) . 15

Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) . . 26

Harris v. New York, 401 U.S. 222(1971). . . . . .26

Jencks v. United States, 353 U.S. 657 (1957)... .. 17

Kastigar v. United States, 406 U.S. 441 (1972) . . . 9

Katz v. United States, 389 U.S. 347 (1967) . . 20

Kuhiman v. Wilson, 477 U.S. 436 (1986) . ... . 25

Maine v. Moulton, 474 U.S. 159(1985). ... . .25

Malloy v. Hogan, 378 U.S. 1(1964). .. . .

Massiah v. United States, 377 U.S. 201 (1964) . .. B

McNeil v. Wisconsin, 111 S. Ct. 2204 (1991). . 25

Mincey v. Arizona, 437 U.S. 385 (1978). . . . 30

Mistretta v. United States, 488 U.S. 361 (1989) . . 15

North Carolina v. Alford, 400 U.S. 25 (1970). . . .2, 16

Oregon v. Haas, 420 U.S.714(1975) .. .. . .26

Newton v. Rumery, 480 U.S. 386 (1987) . . . 21, 27

United States v. Gordon, F.3d , 1994 WL

135383 (11th Cir. No. 93-6207 4 May ee 19

United States v. Henry, 447 U.S. 264(1980) . .. . 25

United States v. Keene, 933 F.2d 711 (9th Cir. 1991). 19

United States v. Prantil, 756 F.2d 759 (9th Cir. 1985). 8

Wade v. United States, 112 S. Ct. 1840 (1992). . 2, 8, 16

STATUTES

18 U.S.C. 3553(e) .

18U.S.C.3600. . .

18 U.S.C. 4205(a) [repealed] .

18 U.S.C. 4205(b) (b) —:

18U.S.C.3583 . . .

18 U.S.C. 3624(e) . .

21 U.S.C. 841(a)(1) .

21 U.S.C. 841(b)(1)(A) .

21 U.S.C. 843(b).

21U.S.C. 844 . .

28 U.S.C.994(d). . .

28 U.S.C. 2072, 2073.

42 U.S.C. 1983

FEDERAL RULES

Fed. R. Crim. P. 11(e)(6) .

Fed. R. Crim. P. 32.1.

Fed. R. Crim. P. 35(b) [repealed & present]

Fed. R. Crim. P. 12(i).

Fed. R. Crim. P. 26.2.

Fed. R. Evid. 201.

Fed. R. Evid. 410.

.2, 8, 16

310

INTEREST OF THE AMICI CURIAE’

The National Association of Criminal Defense

Lawyers is the national organization of public and private

criminal defense lawyers with emphasis on federal

criminal practice. The Califomia Attorneys for Criminal

Justice (CACU*) is the second largest criminal defense

organization in the country.

Both organizations are concerned about the forced

waiver of the defendant's rights as an incident of plea

bargaining in the federal courts. Given the shift of

sentencing power to the prosecutor under the Sentencing

Guidelines, the amici are concerned about the ability of

the Government to extract informal ‘waivers" of

constitutional rights at the outset of a prosecution in

settlement negotiations. This situations is so fraught with

the potential for abuse, it is why, as a matter of public

policy, Congress prohibited the evidentiary use of

Statements made during settlement discussions.

Today in federal plea bargaining, the Sentencing

Reform Act of 1984 and draconian minimum mandatory

sentences force the accused federal defendant to con-

* Letters of consent to file this brief have been lodged with the Clerk

of the Court pursuant to Rule 37.3.

* This 34-year-old District of Columbia non-profit corporation has a

membership of 8,000 lawyers and 28,000 affiliate members. It is an

affiliate of the American Bar Association.

* CAC is a California non-profit organization with approximately 2,700

dues paying members, primarily criminal defense lawyers, both public

and private, who appear regularly in the state and federal courts.

1

sider and enter into settlement negotiations. This is so

even for the innocent. North Carolina v. Alford, 400

U.S. 25 (1970). Such "settlement negotiations” currently

take place on a nor-level playing field, in which the

federal prosecutor determines the sentence. Only

prosecution-approved “cooperation™ will be the basis for

the award of a sentence less than statutory minimum

mandatories or a basis for a downward departure. The

prosecution's conditioning participation in settlement on

waiver of basic rights provides neither a voluntary waiver

nor free consent.

In this case, the record shows no attempt by the

Government to fulfill its burden to show waiver of consti-

tutional or statutory rights by respondent. If the Govern-

ment is to be deemed able to extract and use at trial

evidence garnered in settlement discussions, the waiver

of constitutional and statutory rights must be explicit. It

does not exist in this case.

Approximately 90 per cent of all federal criminal

cases are resolved by pleas of guilty. The settlement

process is not one of choice. Because defense counsel

must explore the options to litigation, rules established by

Congress protect this process from exploitation. In any

negotiation, much is unknown, and there may be misun-

derstandings in need of clarification and re-evaluations

based on proffers. To work, the process has to foster an

atmosphere of open-ended “give-and-take." The

“ Even if a defendant provides “substantial assistance” in cooperation

against another, the prosecutor need not make the requisite motion

(18 U.S.C. 3553(e)) to permit the court to impose a sentence less than

the Guidelines or the minimum mandatory. Wade v. United States,

112 S.Ct. 1840 (1992).

“negotiation” cannot be converted into a device for an

extended interrogation by the prosecution agents in

order to obtain information for use at trial. To entice a

defendant into settlement discussions which serve as a

battleground for an eventual evidentiary ambush at trial,

makes the defendant a compelled adverse witness

against himself in violation of the Fifth Amendment.

Further, basic due process and equality of

negotiation position cannot be waiveable without making

the process completely unfair. The Ninth Circuit majority

opinion was correct as a matter of law and policy, a

policy dictated by Congress in the promulgation of the

Rules.* Those Rules create a fair balance in the negotia-

tion process and so encourage settlement.

ADDITIONAL CONSTITUTIONAL PROVISIONS:

Fifth Amendment: . . . “nor shall [any person] be com-

pelied in a criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due

process of law;....

* The two rules, Fed. R. Crim. Proc. 11(e)(6) and Fed. R. Evid. 410,

were promulgated by Congress under its constitutional authority to

constitute tribunals inferior to this Court (Article |, Section 8, clause 9)

and the “necessary and proper” clause. The district court criminal and

proceedings, should not be eroded by an analogy to this Court's

primacy in the interpretation of the rights of individuals under the

E. Cleary, Preliminary Notes on Reading the Rules of

L. Rev. 908, 910 (1978).

!

3

Sixth Amendment: ‘in all criminal prosecutions, the

accused shall enjoy the right . . . to have the assistance

of counsel for his defense."

STATEMENT OF THE CASE >

Supplemental Statement of Facts’

The attorney who represented respondent at the

pre-trial post-indictment interview was not the same

attorney who represented him at trial. J.A. 40.

Trial Testimony

At trial the respondent, an unemployed electrician,

testified in his own behalf. J.A. 14-38, 14-15. Respondent

was hired by Gordon Shuster to do some electrical work

and became his on-call handyman. J.A. 19-20. Shuster

told respondent he was a shipbuilder and a special agent

for the CIA who made plastic explosives.”

° An amplified statement of the facts setting forth the order of

evidence at trial is necessary to demonstrate that the “settlement

interview” was not for a resolution of the case or the exploration of the

“substantial assistance in the investigation or prosecution of another

person,” but a planned interrogation that could be successfully

exploited at trial pitting the agent’s recollection of the events against

that of respondent.

’ The court sustained the prosecution’s objection, on relevancy

grounds, to the presentation of defense witnesses Bernard and Lorene

Cook, who would have testified that Shuster had also told them that

he was making explosives on his property. J.A 86-90, 92-94. The

statements were not offered for the truth of the matter, but to

corroborate the challenged statemant of the respondent that he

believed Shuster’s operation involved explosives, not drugs.

4

ae Oe te Bl

Respondent testified that on the day of his arrest,

1 August 1991, he had a pager that Shuster had in-

structed him to buy so he could be contacted for work.

J.A. 29. Shuster advised him not to have it registered in

his own name because of their connection, and respon-

dent later wrote to the pager company giving them the

name of a fictitious purchaser. J.A. 31.

On 1 August 1991, respondent answered a page

from Shuster who asked him to bring him a sealed and

stapled brown mailer package that Shuster had given

respondent the day before. J.A. 29-32. He was reluctant

to comply because of a prior commitment, but agreed

when Shuster offered him $1,300 for the delivery. J.A. 32-

34. Respondent met Shuster, who had been arrested

earlier that day, at a restaurant. Shuster was now acting

as an informant for the agents. An undercover officer,

posing as Shuster’'s friend, was also there. J.A. 34-35, 36.

Shuster asked him if he had the stuff. Respondent said

the package was in his car. J.A. 35. Shuster suggested

that they check out the stuff. J.A. 36. The officer stated,

“Stuff looks real good and clean," apparently to Shuster.

J.A. 37. Respondent, referring to a glass pipe in the

ashtray, not the package, asked them if they wanted a

hit. J.A. 37. Respondent denied the testimony of the

agent who previously testified that respondent was trying

to get them to test the contents of the package or that he

wanted money to get another pound of drugs. J.A. 38.

One third of the cross-exenination of the respon-

dent by the prosecutor focused on his interview of

respondent in the U. S. Attomey’s Office before trial.

(Total cross: 36 pages. J.A. 38-73. Cross as to interview:

12 pages. J.A. 39-44, 61-67.) At the outset of cross-

examination, the prosecutor inquired about respondent's

meeting with two agents and himself. JA. 39-40.

Respondent stated that at the meeting he knew that

Shuster and Uncle Bob were trafficking in meth-

amphetamine and that he pickes up the package of

methamphetamine on the day of the arrest from Uncle

Bob. J.A. 41-42. When asked whether he stated the

package contained methamphetamine, he testified he

was unaware of it at the time he delivered it. JA. 42. He

denied telling the prosecutor that he dealt in ounce

quantities of methamphetamine prior to his arrest, but

testified that he had told them that the largest amount he

had known to be in transactions were ounces. J.A. 43.

During the interview he stated that although he never

dealt in methamphetamine, he previously had smoked it.

JA. 44.

Redirect examination of the respondent was

devoted almost entirely to the interview with the prosecu-

tor and the agents.* J.A. 74-83. During the meeting, one

of the agents corrected the respondent's error in thinking

he was facing a minimum mandatory five-year sentence.

Rather, he told respondent it was a ten-year minimum

» Ten eee ee

sentencing guidelines, the judge had no contro! over it.”

J.A. 78-79. The atmosphere of the settlement interview

was “intimidating [and] unfriendly." J.A. 79. One agent

called him a liar and accused him of lying about picking

up the package from Uncle Bob, and respondent

admitted that statement was false at the interview. J.A.

80-81. According to respondent, the prosecutor termi-

mated the interview. JA. 81. Respondent, in his /ast

@mswer On re-direct, testified that on the day of his arrest

the did not know what the package contained."° J.A 83.

in rebuttal, the Government called Agent Moreland,

mandatory sentence. 22 Oct 91 R.T. 2-3, 6-9. This judge confirmed

at a court hearing what the prosecutor told respondent — that only the

Government could influence the amount of the sentence: “First of all,

the reason you have plea bargaining is because the Government is in

@ position to manipulate under the Guidelines what the sentence -—

manipulate the mandatory minimum. That's all there is to it." 22 Oct

91 R.T. 9; JA 79.

i iew.”* 06. The

who had been present at the interview. J.A. 95-106.

agent testified that respondent and his attorney had

minutes, total. J.A. 96. Respondent was told that he had

to provide information, that he had to be truthful, that he

could be subject to being charged with false statements,

that if he told one thing at one time and something

contradictory at a later time, that could be brought up in

a trial setting, that if he pleaded guilty, he would receive

some consideration for any truthful information, that if any

information he supplied could be used at a later date he

: call the

"’ afer this witness testified, respondent's attorney asked to

Se oueasel — a. anes 4a 18

lawyer [for the Government J. .

oor of a material witness was violated

another prosecutor to avoid the trial attorney being called as a

me United States v. Prantil, 756 F.2d 759 (9th Cir. 1985).

2 Section 3553(e) of Tite 18 provides: "Upon motion of the

Government, the court shail have the authority to impose a sentence

below a level established by statute as a minimum sentence so as to

would be given consideration, and some reference about

a Kastigar meeting."® J.A. 96-97. According to Agent

Moreland, the prosecutor also told the respondent:

“that none of the information would be used against him

in [the] case in chief, only if he lied and took the stand."

JA. 97.

Respondent denied being apprised of the waiver

permitting his statements to be used for impeachment

purposes. The agent testified only as to the admonition

of the conditions of the interview, but never inquired

whether respondent understood those conditions or

waived any rights.“

Agent Moreland testified that during the interview

respondent started by telling him he had only dealt

ounce quantities prior to the meeting on 1 August. J.A.

97. He admitted knowing the package contained meth-

amphetamine, but said that this was the first time he ever

dealt a pound of methamphetamine. J.A. 98. Respon-

dent stated that he had obtained the pound from Uncle

Bob and did not know anything about the manufacturing.

"* The prosecutor had earlier stated to the judge: “And, third, we made

be to Kastigar v. United States, 406 U.S. 441 (1972),

Moreland testified that the agents thought respondent

was lying and confronted him. J.A. 98. They asked

respondent if his fingerprints were on any of the giass-

ware found at Shuster’s property, and he admitted that

he handied some of the glassware, heiped set it up, and

knew it was a methamphetamine lab." J.A. 98-99.

During the interview, respondent made no mention of

the CIA. J.A. 100.

ARGUMENT

Congress Established A "Free Zone” in Settlement

Negotiations

In 1972, the proposed Federal Rules of Evidence

contained a provision on the inadmissibility of settlement

discussions in a criminal case. Rule 410,"° established

a policy to encourage and protect settlement negotiations

to achieve resolution through compromise, “give and

take," of the majority of cases without formal time-con-

suming litigation.’ The Senate Report adopted a more

limited Government position that statements made in

"* The agent who made a report of the interview made no mention of

the question about fingerprints or respondent's alleged admissions

about the methamphetamine lab. J.A 101. When the agent made the

statement about the respondent’s fingerprints on the glass, he had

no knowledge of the results of any such test. J.A 102-3.

** Rule 410 is set forth in Petitioner's Brief, Appendix 1a-2a.

’ See Notes of the Advisory Committee on 1972 Proposed Rules

(West 1994 Federal Criminal Code and Rules 231): “As with

compromise offers generally, Rule 408, free communication is needed,

and security against having an offer of compromise or related

statement admitted in evidence effectively discourages it.

10

settlement agreements could be used for impeachment

purposes,”* as well as a prosecution for perjury, (No.

93-1277), 1974 Cong. & Admin. News 70*7-7058. By

contrast, the House Report would have preciuded their

use. The Conference Committee adopted the Senate

provision allowing a prosecution for perjury but only

under the most restrictive setting in which the statement

is made on the record, under oath, and with counsel. It

deferred implementation of this rule until the review and

adoption of Federal Rule of Criminal Procedure 11

(e)(6)."° In 1979 Congress clarified Rule 11(e)(6) and

Rule 410 by limiting the application of the rule to settie-

ment negotiations with prosecutors, thereby expressly

making it inapplicable to negotiations with agents. The

Note to the 1979 amendment stated “this history shows

the purpose of Fed. R. Evid. 410 and Fed. R. Crim. P.

11(@)(6) is to permit the unrestrained candor which

produces effective plea discussions” between the

"* The Government's position before Congress was a far more limited

impeachment request. As stated by Assistant Attorney General W.

Vincent Rakestraw: “While we agree that conversations occurring

during informal plea discussions should not be admissible in

parties. The Committee noted, “Moreover, by relating

the statements to ‘plea discussions’ rather than ‘an offer

to plead,’ the amendment ensures ‘that even an attempt

to open plea bargaining [is] covered under the same rule

of inadmissibility.’ United States v. Brooks, 536 F.2d

1137 (6th Cir. 1976)." The 1979 amendment then added

@ second exception ‘to the general rule of

nonadmissibility’: if part of the plea discussions are

properly before the court, then the remaining plea

discussions may be admissible.”

in summary, as a general rule, settlement negotia-

tions between the Government and the accused are

inadmissible. Congress specifically rejected the use of

the Senate’s proposal that such settlement negotiations

could be used to impeach the defendant.” The legisia-

* 1994 Federal Criminal Code and Rules (West) 48.

*" Ibid, 49.

* Settlement negotiations must be fair and, equally important, be

perceived as fair. If petitioner prevails in its position, the bargaining

process will be turned into a process for the accumulation of

devastating trial evidence. Both sides at the settlement table, armed

with tape recorders, wil be waiting for the other to make some

tactical blunder that could be used at trial. It would difficult to call this

a negotiating atmosphere. Wil a defendant be able to use at trial

staternents made by the agents or the prosecutors during negotiations

to show inconsistencies of position or weakness in the case?

Compare Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1963)

(prosecution misconduct suggests weakness in prosecution case).

These are the predictable absurdities which will ensue if petitioner's

position is adopted..

12

eee Se ee Pee eae

tie ati ie a

tive policy is clear and unequivocal.” Except for two

specified, narrow exceptions, settlement discussions

concerning issues of facts, assessment of witnesses,

anticipated legal rulings, probable outcome of the case

(a fact determination made by the jury), and possible

sentence, are inadmissible. Congress has made a

fundamental policy determination and expressly rejected

the exception for the purposes of impeachment of a

defendant at the time of trial.

Prosecutorial Primacy in Federal Sentencing: the

Motion to Depart for Substantial Assistance

Although Congress did not grant prosecutors the

right of impeachment of defendants with their settlement

Statements, Congress has dramatically increased the

power of prosecutors over sentencing. Prior to 1 Novem-

ber 1987, the effective date of the Sentencing Reform Act

of 1984, federal sentencing had a system of checks and

balances. The prosecutor, with the unlimited discretion to

charge offenses, could set the maximum penalty for the

misconduct. The prosecutor could recommend a specific

sentence to the court,** and in 90% of the cases that

recommendation was not exceeded by the judges and

most often followed by them. Under pre-Guidelines law,

the judge had unfettered discretion up to the Statutory

maximum, but had begun to use the Parole Guidelines,

* Petitioner's arguments should be addressed to the Congress or the

Rules Committee.

™ Fed. R. Crim Proc. 11(e)(1)(B).

13

an advisory sentencing matrix.” The judge was a check

on the sentencing power of the prosecutor. If the judge

was arbitrary and excessive, his sentencing decision was

subject to further review by the Parole Commission.

The judge within a short time after sentence was able to

reduce it.” The sentence a prisoner would serve was a

result of the interaction of the three agencies - prosecu-

tor, judge, and parole authority.

The Department of Justice proffered, and Con-

gress accepted, the limit on the discretion of judges at

sentencing and the abolition of parole. Congress had the

right to create a Sentencing Commission, narrow the

discretion of judges at sentencing, and abolish parole.

* Parole Guidelines are similar to Sentencing Guidelines, but not as

offense specific. They also considered age at first offense, drug

addiction, successful performance on probation or parole, and

confinement-free history. USPC Salient Factor Scoresheet.

=G , all were eligible to be paroled after completion

of — of + =e (18 U.S.C. 4205(a) [repealed]), and the

judge could make the prisoner immediately eligible for parole (18

U.S.C. 4205(b)(2) [repealed]).

” Prior to the Guidelines, judges were granted a second4ook and

opportunity to reduce the sentence imposed within 120 days of the

finality of the sentence and conviction (Fed. R. Crim. P. 35(b)

[repealed]). Now a reduction is permitted only if made on the motion

of the Government to reflect "defendant's subsequent, substantial assi-

stance in the investigation of another person.” Fed. R. Crim. P. 35(b).

* Although parole was abolished, Congress created its functional

equivalent named supervised release, which was added to the

sentence. If a violation occurs, the defendant answers to the court

rather than a parole authority. 18 U.S.C. 3583, 3624(e). Fed. R. Crim.

P. 32.1.

14

et OE Ae Tal et ee i tlie at

le ee ee ee ee ee Te eee er ee

oe

Mistretta v. United States, 488 U.S. 361 (1989). Al-

though Congress permitted the Sentencing Commission

to consider the defendant's age, education, mental and

emotional condition, physical condition, previous employ-

ment record, family ties and responsibilities, and commu-

nity ties,” the Sentencing Commission chose to exclude

these factors as irrelevant at sentencing.” The criteria

relevant to federal sentencing today are the nature of the

offense (which may be calculated from the amount of

contraband, i.e. Chapman v. United States, 500 US.

—__, 111 S.Ct. 1919 (1991), or money involved) and

criminal history.*" The elimination of parole and the

substantial curtailment of judicial discretion shifted the

sentencing power to the prosecutor, who still retains

control of sentencing by the charge filed or the charge to

which the defendant will plead guilty.** Under the new

* 28 U.S.C. 994(d). Prior to the Guidelines, these were the usual

factors set forth in the probation officer's presentence report to

provide a comprehensive view of the offender, as well as the offense.

and similar prior good works are not ordinarily relevant. §5H1.11._

*' The Sentencing Commission also lists role in the offense (§ SH1.7)

and dependence upon criminal activity for a livelihood (§ 5H1.9), but

the former relates to the offense and the latter to criminal history.

“ The Sentencing Guidelines do not affect the power of the

Prosecutor to manipulate the charge to a result he approves. A

common example is where a defendant, like respondent, charged

with one pound of methamphetamine faces a mandatory minimum

15

i tekeeper on

sentencing scheme, the prosecutor is the ga

sentence reductions below the Guidelines as well as

ISLA ITS ‘f1- -~1U%(-1h

and prosecution of another. 18 U.S.C 3553, U.S.S.G. §

5K1.1, and Fed. R. Crim. P. 35(b).

A competent federal defense lawyer must seek out

all options, cates avenues of disposition other than trial,

and persuade the prosecutor to make the requisite

motion, without which the cooperation is meaningless

because the court will not be able to consider it. Wade

y. United States, 112 S.Ct. 1840 (1992). Given the

nature of federal sentencing, defense counsel are

forced to seize upon the opportunity for cooperation,

even if the client protests his or her innocence. North

Carolina v. Alford, 400 U.S. 25, 37 (1970). if the lawyer

is to serve the best interest of the client, discussion with

the prosucutor about sentence is obligatory if there is any

chance the defendant will be convicted. The prosecutor

knows that the only “break” in mandatory minimum is in

“cooperation” and has absolute control over the award

of any sentencing departure. The prosecutor knows the

defendant and defense counsel must come to him to

discuss the case.

Plea Negotiations in Federal Courts

sentence (21 U.S.C. 841(b)(1)(A)(vill)). With the

see a of the prosecutor, he could plead guity to a telephone

count (use to facilitate a drug transaction) (21 U.S.C. 843(b)) with a

maximum exposure of four years confinement.

16

Most negotiations, like this case, occur after the

prosecutor has filed a complaint or returned an indict-

ment.” The defendant is fumished with discovery the

prosecutor is willing to part with, for under the law, the

prosecutor need not turn over statements of the witness,

and then only if they are substantially verbatim and

adopted by the witness, until that witness has testified at

trial.* Defense counsel must contact the prosecutor as

soon as possible, for the information his client may have

to offer could become stale or useless if already revealed

by co-defendants. In attempting a compromise short of

formal litigation, the negotiations are often completed

before the filing of motions to avoid unnecessary work.

Defense counsel is forced, often with only limited discov-

ery and little or no investigation, to explore quickly the

range of sentencing options; he is thus handicapped at

the outset of negotiations. Prosecutors are reluctant to

make a commitment until they have had an opportunity

to assess the value of the proffered cooperation. De

fense counsel and the prosecutor will usually discuss in

advance the nature of the cooperation and the individuals

about whom they seek information. it can be either

specific persons by name or other participants, i.e., the

supplier in this or other instances, buyers, sources,

information about other laboratories, transactions wit-

* 18 U.S.C. 3600 (‘The Jencks Act’, so named after Jencks v. United

States, 353 U.S. 657 (1957) (defense entitied to statements of

nessed, and even hearsay about other law violators.

Once the Government believes the proffer has

value, it arranges a scheduled “debriefing” with the

agents, either with or without the prosecutor. At this

"debriefing" the agents go into great detail searching for

every possible fact conceming the activities and identity

of the persons they will investigate or prosecute. Some-

times there are follow-up sessions where the agents want

clarification or seek additional information or assistance.”

lf a concem exists, the prosecutor or the agents may

obtain a sworn statement (i,e., @ written statement made

under oath, or a deposition before a court reporter) or the

prosecutor may take the cooperating defendant before

the grand jury to "lock in* his or her testimony against a

later change of heart.

The Government generally gives no commitnent

on the extent of a downward departure,” for the presecu-

tor reserves the right to not only evaluate the nature of

the cooperation about others but retains the right to

determine its authenticity. After the debriefing(s) and

other assistance, the defendant will enter a plea usually

pursuant to a written plea agreement. Left unti! the time

of sentencing is the prosecution decision on whether the

Government will make a motion for departure or provide

any other favorable sentence recommendation.

* The agents will often ask the cooperating defendant to testify or

work undercover to earn “substantial assistance” for making other

cases.

* In this case, the agent at the interview suggested a possible

sentence or sentence reduction of two years (JA 77) without

knowing what type of information the respondent would furnish.

18

Under the Guidelines, the sentencing procedure is

protracted, and sentencing wil! occur not less than eleven

weeks after the plea of guilty is entered.” In many

instances, the prosecutor reserves the right to make the

motion for cooperation or substantial assistance and the

amount to be credited below the Guidelines or the

minimum mandatory sentence.” The prosecutor will

have substantial time to evaluate the cooperation, and if

misied, may withdraw from any commitment to making

the motion for a departure for cooperation. if the

prosecutor concludes the defendant was = untruthful

during the debriefing, there are other remedies available

other than allowing the inconsistent statements to be

— impeachment when the defendant testifies at

* in the Southern District of California, which is typical of other district

courts, sentencing is scheduled at least 11 weeks after the plea of

Quilty is entered or the verdict or finding of guilt are returned. U.S.

Dist Ct. So. Dist. Calif. General Order 350, dated 16 Mar 93. See

Fed. R. Evid. 201(Judicial Notice).

* if the prosecutor makes the motion, the court may go below the

level or reduction proposed by the prosecutor. United States v.

Keene, 933 F.2d 711 (9th Cir. 1991).

gn A py thy yn F.3d , 1994 WL 135383 (11th Cir.

. 93-620 (defendant's tying during plea agreement

exempted Government from making the motion for departure for

cooperation). The Government's claim that k needs a sanction for the

dishonest “cooperator (Pet. Brief 27) is greatly overstated. Not only

may the Government withdraw from any commitment to move for a

reduction of sentence, but may seek an increased sentence for

obstruction of justice. § 3C1.1.

19

Waiver of Congressional Protection of Settlement

Discussions in Criminal Cases is a General Public

Concern, Rather than a Private Concern, and is invalid

as Contrary to Public Policy.

Not every right may be waived. The Government

should not be able to extract from a criminal defendant

a waiver of the Constitutional protection against cruel and

unusual punishment (Eighth Amendment) or the free-

doms of speech or religion (First Amendment), which are

fundamental protection of society as a whole rather than

limited to the individual holder of the right. The Fourth

Amendment right of privacy consists of two components:

the individual’s expectation of privacy and that which

society deems as a reasonable expectation of privacy.“

The individual may consent to the intrusion of his per-

sonal right of privacy, but his action could not control

what society deems as reasonable, nor could the individ-

ual waive the societal standard of reasonableness so as

to make an otherwise unlawful search valid. Also, the

primary focus of Fourth Amendment protects the individ-

ual from Government intervention, rather than the public

generally. Each Amendment, like each statute, must be

evaluated on its own to determine the public and private

interest protected. The public interest in freedom of

religion and speech and freedom from cruel and unusual

punishment is of paramount concem, for these rules

define who we are as a society. Because of the para-

” The definition now adopted by the court was formulated by Justice

Harlan in his concurring opinion in Katz v. United States, 389 U.S.

347, 361 (1967): *[T}here is a twofold requirement, first that a person

have exhibited an actual (subjective) expectation of privacy and,

second, that the expectation be one that society is prepared to

recognize as ‘reasonable.

20

mount public interest, a waiver of these rights

individual would be invalid. . adeg

The Government, as well as the dissenting judge

below, placed great weight (Pet. Brief 8, 22, 26, 32) on

Town of Newton v. Rumery, 480 U.S. 386 (1987),*’ in

which a knowledgeable defendant in a criminal case after

careful deliberation waived his potential civil rights action

(42 U.S.C. 1983) in return for the dismissal of the criminal

charge. The Court carefully noted this was the surrender

of an uncertain civil judgment in return for a guaranteed

dismissal of the criminal case. Justice O’Connor noted:

“The legitimacy of plea bargaining depends in large mea-

sure upon eliminating extraneous considerations from the

process. [Citations omitted.] No court would knowingly

permit a prosecutor to agree to accept a defendant's plea

to a lesser charge in exchange for the defendant's cash

payment to the police officers who arrested him." 480

U.S. at 400-401. The waiver agreement was written by the

defendant's attorney and considered by him three days

before he signed it. 480 U.S. at 394. The Court noted that

although this release-agreement did not take place under

judicial supervision, plea bargaining generally is subject

to judicial supervision which serves to insulate it from

prosecutorial abuse. 480 U.S. at 400. Because the

majority acknowledged the existence of frivolous civil

rights complaints, there may be a public interest favoring

release agreements. Justice Powell's opinion made it

*' Justice Powell wrote the plurality opinion indicating that Congress

gave the individual the right under 42 U.S.C. 1963, not the public

generally. 480 U.S. at 395. Justice O'Connor wrote the decisive

concurring opinion emphasizing the Government had the burden to

prove “the agreement is neither involuntary nor the product of an

abuse of the criminal process.” 480 U.S. at 399. (Emphasis added.)

21

clear that the resolution affected release of a civil case,

and that this was not a criminal case. 480 U.S. at 397 n.

8.

The most obvious difference between Rumery and

this case is that Congress created an individual right in

42 U.S.C. 1983, but it established a process of settlement

negotiations that governed both the Government and all

defendants prohibiting the use of statements made

during those discussions. The settlement rules apply to

both parties, prosecution and defense, and it was

primarily to protect the process from abuse that caused

Congress to not permit negotiation statements from being

used for impeachment.

An apt analogy is the employer-employee relation-

ship conceming the Congressional regulation of that

superior-inferior relationship. The Government, even

more than the employer, has absolute contro! over the

sentence, and deals with individual defendants one at a

time, unlike the employer whose authority can be coun-

tered by collective bargaining. The Fair Labor Standards

Act of 1938 imposed minimum wages for covered

employees and established liquidated damages against

employers for violations. In Brooklyn Savings Bank v.

O'Neill, 324 U.S. 697 (1945), an employee was given a

check for $423.16 for overtime and as a release for any

claim against the employer bank for liquidated damages.

The Court stated the general principle concerning the

waiver of rights created by Congress:

it has been held in this and other courts that a

statutory right conferred on a private party, but

affecting the public interest, may not be waived or

released if such waiver contravenes the statutory

22

policy. 324 U.S. at 704.

That statute recognized the unequal power of the em-

ployer and employee (324 U.S. at 706-707), much as the

Fed. R. Crim. Proc. 11(e) recognizes the power of the

prosecutor in making non-binding (11(@)(1)(8)) or binding

sentencing recommendations (11(e)(1)(C)).“ The Court

emphasized the unavailability of waiver:

Neither the petitioner nor respondent suggests that

the right to the basic statutory minimum wage

could be waived by any employer subject to the

Act. No one can doubt but that to allow waiver of

Statutory wages would nullify the purposes of the

Act . 327 U.S. at 707.

Substitute Government or prosecutor for employer, and

settlement negotiations for statutory wages, and the

public policy prohibition of waiver of the minimum wage

- @ protection against the abuse of the unequal

bargaining positions of the parties— applies to preciude

waiver of rules that further settlement discussions in

criminal cases.

The power and superior bargaining position of the

prosecutor leads inexorably to the extraction of other un-

reasonable waivers because of the defendant's compul-

sion to seek alleviation from the Guidelines or statutory

minimums. in this case respondent apparently gave up

“ Under Fed. R. Crim. Proc. 11(e)(1)(C) the court may reject the

semtence agreed to by both parties, but then must permit the

defendamt to withdraw the plea of guilty. This rarely occurs. The

prosecutor may also dismiss charges (11(e)(1)(A)), to which the court

usually acquiesces.

23

his Kastigar rights. Thus, even if the privilege against

self-incrimination was violated by coercion, the Govern-

ment precluded any inquiry as to the use or derivative

use of the improper statements secured. What is to pre-

clude the prosecutor from demanding from a defendant

and the defense lawyer that in order to enter into § 5K1.1

negotiations, the defendant would have to give up the

right to trial by jury or any hearsay objection short of a

Confrontation Clause violation.” The right to trial by jury

may be surrendered in open court after a careful exami-

nation of the options, which would be subject to judicial

scrutiny. The advantage the prosecutor has in controlling

the sentence should not be permitted to defeat the policy

established by Congress to foster settlement negotia-

tions.

Benefit Without Bargaining: Post-indictment

Interrogation Under Guise of Settlement Is Error.

The nature and conduct of the pretrial interview

reveals it was a post-indictment interrogation about the

specific offense under the guise of a “proffer’ or plea

bargain for a lesser sentence. Such interrogation is in

violation of the Sixth Amendment right to counsel when

defense counsel does not realize that the "settlement

“ The Government referred to the stipulations agreeing to the waiver

of evidentiary rules. (Pet. Brief 17-18). in the trial of a cese, there will

be many motivations for entering into such stipulations by both sides

that ease the trial of the case and focus on the critical issues. The

settlement conference, f the Government's theory is correct, could

now be used by the prosecutor to secure waivers of the rules of

evidence. It is one thing to stipulate on a level playing field, it Is

another to be forced to surrender every fundamental right to gain the

opportunity to plea bargain.

24

conference" is a post indictment interrogation. Massiah

v. United States, 377 U.S. 201 (1964); Brewer v. Wil-

liams, 430 U.S. 387 (1977); United States v. Henry, 447

U.S. 264(1980); and Maine v. Moulton, 474 U.S. 159

(1985)."" This Court, summarizing the Sixth Amendment

prohibition, stated: “As our recent examination of this

Sixth Amendment issue in Moulton makes clear, the

primary concer of the Massiah line of decisions is

secret interrogation by investigatory techniques that are

the equivalent of direct police interrogation." While the

Massiah line of cases dealt with statements made by a

defendant in absence of his attorney, the principles are

applicable when the attorney is present but is unaware

that an interrogation is taking place. Defense counsel

and respondent did not waive the right to be free from

interrogation, because they did not know the settlement

session was a disguised attempt to elicit statements from

the accused that could be used against him at trial.

. Neither the prosecutor nor the agents sought

information about “another person,™ but focused instead

on the actions and statements of the accused. They

“The actions of the police were designed to

deliberately elicit

incriminating remarks. Kuhiman v. Wilson, 477 U.S. 436 (1986).

Also, the inquiry was directed toward the offense with which

—— McNeil v. Wisconsin, 111 S.Ct. 2204

“ The prosecutor stated that reason for respondent coming to their

office “was to cooperate with the government and provide information

about other traffickers." J.A. 61. Agent Moreland testified that Shuster,

the respondent's alleged source of the methamphetamine, was

arrested, tured Government informant, and agreed to act as a

broker to obtain methamphetamine from the respondent on the day

of his and respondent's arrest. R.T. 101-106, 157-161.

25

accused him of lying, a standard interrogation technique.

They confronted respondent with evidence for the sole

purpose of eliciting impeaching statements. J.A. 98.

They used a ruse of saying his fingerprints were on the

glassware to extract admissions from him about the

knowledge of the laboratory. J.A. 102-103.

All prosecutors and agents know that statements

taken in violation of Miranda wamings may be used to

impeach a defendant if the defendant testifies at the time

of trial. Oregon v. Haas, 420 U.S. 714 (1975); Harris v.

New York, 401 U.S. 222 (1971). The police ere not

allowed to deliberately refrain from Miranda wamings

with the planned expectation to use the statements for

impeachment. See Cooper v. Dupnik, 963 F.2d 1220

(9th Cir. 1992) (en banc). In Cooper the police planned

to arrest a rape suspect and question him without

Miranda warnings until they obtained a confession. The

officers knew that the confession or admissions would be

inadmissible in the prosecutor's case in chief, but they

anticipated they would be used for impeachment. The

police expected the confession would prevent the

defendant from testifying he was innocent or would

hinder an insanity defense. 963 F.2d at 1224. The

officers knew their plan violated the law. 963 F.2d at

1225. The court found that Cooper's Fifth Amendment

privilege against self-incrimination was violated and that

the police conduct shocked the conscience and stated a

cause of action under 42 U.S.C. 1983. 963 F.2d at 1236-

1237.

Public policy, the interplay of the Fifth Amendment

privilege against self incrimination, the right to due

process and the Sixth Amendment right to counsel

preclude the prosecutor from using settlement confer-

26

ences as post-indictment interrogation sessions to

deliberately obtain statements that will be used against

the defendant if he testifies or to keep him off the witness

stand.

Preciusion of Prosecution’s Exploitation of the Incon-

sistencies Will Not Create a Defendant’s "Right to Lie.”

Petitioner's characterization of a "defendant's right

to lie" is an exaggerated prejudgment about the nature of

the inconsistencies in a statement. Many reasons other

than lies could explain inconsistencies. Thus, here, the

failure of respondent to tell the prosecutor and agents at

the settlement interview about his belief that Shuster was

a CIA operative engaged in the manufacture of explosives

was exploited at trial. J.A. 63, 65. Just because respon-

dent may testify differently than what the agents said he

said at the interview is not necessarily a lie. That deter-

mination is one for a jury. It is indelible bias and pre-

judgment to assume every inconsistency is a lie of the

defendant and the truth recounting by the agent. There

is an even greater evil avoided by Congress’ policy

exclusion of such “evidence” — the danger that the jury

would consider the existence of such “plea bargaining" by

a defendant as an admission of guilt.

The Government Failed to Prove That There Was Any

Waiver for impeachment, That it Was Knowingly and

intelligently Made, or That it Was Voluntary.

The Government has the burden to show the

waiver was voluntarily made. Town of Newton v.

Rumery, 480 U.S. 386, 397-398, 399 (1987). Only

respondent and the one agent to the interview testified

conceming this issue. Respondent, whose testimony

27

was unchallenged as to his dealings with defense

counsel, spent only five minutes with him before the

meeting, and had only a vague understanding that the

meeting was to reduce his sentence.” J.A. 74-75. Prior

to the meeting the defense attorney even misinformed

respondent that he faced a five-year minimum mandatory

sentence, when for a pound of methamphetamine it was

ten years.*” Although the agent testified that the prosecu-

tor told respondent at the start of the meeting:

_. . if he decided to later take the stand in his

defense anything that he might say at this meeting

could be used to — basically for perjury reasons.

if he told us one thing at that meeting and later

told us another thing and they were contradictory

to each other, that that could be brought up in a

trial setting.“ J.A. 97.

The agent then testified by reciting what respondent

said. SA. 97. However, nothing in the agents on

imony shows that the respondent either understood

ais Sal r_waiv . The admonishment

with

“ During the meeting the respondent testified he consulted once

his attorney (J.A. 66), but the agent testified he consulted twice with

his attorney (J.A. 100).

a more of methamphe-

21 U.S. C. 041()(1)(A)(HM) (100 grams & agent corrected the

“ Respondent was also told that if he lied he would be charged with

false statements. If he pleaded guilty, he would receive consideration

for truthful testimony. He was told of some Kastigar matter of which

the agent did not recall the details. J.A 96-97.

28

itself by the prosecutor is not a waiver. Respondent had

no recall of ground rules of the meeting, a waiver of

rights, the authority of the Government to unilaterally

determine whether his statements were accurate (and use

them against him at trial if they determined that issue

adversely) or his right not to speak.” J.A. 83. Because

the record shows no waiver or affirmative agreement to

the conditions of the meeting, this Court has no waiver to

assess. Cf, Boykin v. Alabama, 395 U.S. 238 (1969)

(Courts cannot assume from a silent record that a guilty

plea had been voluntarily made or that constitutional

rights have been freely and intelligently waived).

A knowing and intelligent waiver of rights is

fundamental to review of the question presented. Not

existing, there is no basis to determine if an otherwise

proper waiver of rights may be made in the context of

bargain. This petition should be dismissed as having

been improvidently granted.

lf respondent's policy arguments fail, this Court

will have to grapple with the issue of what sort of waiver

will allow Government use at trial of a defendant's

settlement statements. For example, respondent was not

advised of his statutory rights to exclude such statements

under Rule 11(e)(6). Should that not be incorporated in

any “waiver?" Or that the prosecutor unilaterally deter-

mines the truthfulness of the cooperation, and may not

only reject it, but use it against the defendant at trial?

Here, both the agent and respondent knew the

“ Respondent admitted he was told that he had to be truthful (J.A.

64-65), but his only other of “guidelines” (conditions of

the interview) was the Sentencing Guidelines (J.A 75-76).

29

interview was a condition precedent to a lesser sentence.

J.A. 75. Respondent said that the agent “offered me two

years of a reduced sentence for coming in the debriefing

if he accepted my answers of what it was that | was

supposed to answer of his questions." J.A. 77. He knew

the prosecutor had contro! over the sentence that the

judge did not have. J.A. 7879. The meeting was in-

duced by a conditional promise of leniency, which

undermines the voluntariness of the statements. For an

action to be “free and voluntary: that is, it must not be

extracted by any sort of threats or violence, nor obtained

by any direct or implied promises, however slight, nor by

the exertion of any improper influence." Malloy v.

Hogan, 378 U.S. 1, 7 (1964). Also, unlike an improperly

Mirandized statement, an involuntary statement cannot

be used for impeachment. Mincey v. Arizona, 437 U.S.

385, 398 (1978).

CONCLUSION

Because there was no proof of waiver, the petition

should be dismissed as improvidently granted. In the

alternative, the judgment of the lower court should be

affirmed.

Respectfully submitted,

DATED: 30 June 1994

Attorney at Law

© Use against a defendant of his involuntary statement is a denial of

due process of law. Although use of an involuntary confession or

statements does not call for automatic reversal (Arizona v.

Fulminante, 499 U.S. 279 (1991)), the use of the settlement interview

statements here could not be harmless beyond a reasonable doubt.

30

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