# Amicus Curiae Brief — United States v. Mezzanatto > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0495%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1995 - **Citation:** 513 U.S. 196 ## Text 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 ag Noone (OO we" " TS 7y”. a | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0495%3A09. Public record. Not legal advice.