U.S. v. Hardwick

• Decision Date: 03 October 2008
• Docket Number: No. 06-2571.,No. 06-3061.,No. 06-2541.,No. 06-5051.,06-2541.,06-2571.,06-3061.,06-5051.
• Citation: 544 F.3d 565
• Parties: UNITED STATES of America v. Lorenzo HARDWICK, a/k/a "Fu Quan," Appellant in No. 06-2541. United States of America v. Jose G. Rodriguez, Appellant in No. 06-2571. United States of America v. Bernard Murray, a/k/a "B-Nice," Appellant in No. 06-3061. United States of America v. Allen Resto, a/k/a "Tito Allen," Appellant in No. 06-5151.
• Court: U.S. Court of Appeals — Third Circuit

544 F.3d 565

UNITED STATES of America v. Lorenzo HARDWICK, a/k/a "Fu Quan," Appellant in No. 06-2541.

United States of America v. Jose G. Rodriguez, Appellant in No. 06-2571.

United States of America v. Bernard Murray, a/k/a "B-Nice," Appellant in No. 06-3061.

United States of America v. Allen Resto, a/k/a "Tito Allen," Appellant in No. 06-5151.

No. 06-2541.

No. 06-2571.

No. 06-3061.

No. 06-5051.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1(a) September 23, 2008.

Opinion Filed: October 3, 2008.

Christopher J. Christie, United States Attorney, George S. Leone, Chief, Appeals Division, Eric H. Jaso, Assistant United States Attorney, Newark, NJ, for Appellee.

Jerome A. Ballarotto, Trenton, NJ, for Appellant Lorenzo Hardwick.

Catherine M. Brown, Morristown, NJ, for Appellant Jose G. Rodriguez.

Michael E. Riley, Law Offices of Michael E. Riley, LLC, Mount Holly, NJ, for Appellant Bernard Murray.

Brian S. O'Malley, Haddon Heights, NJ, for Appellant Allen Resto.

Before: BARRY, AMBRO and GARTH, Circuit Judges.

OPINION

GARTH, Circuit Judge:

The four defendants in this case filed separate appeals that were consolidated upon motion by the Government. Although the defendants raise numerous arguments on appeal, only two questions warrant discussion.¹ We address whether a waiver in a proffer agreement that allows the Government to use a defendant's proffer statements² as part of its case-in-chief at trial is valid and enforceable. We also consider whether admission of that proffer statement violated the Confrontation Clause rights of other defendants who were implicated in that proffer statement. As discussed below, we find no reversible error and affirm all four convictions.

I.

This case involves various criminal acts related to drug dealings in Camden, New Jersey. Without delving into the details of each criminal act, it is enough to know that this case concerns a gang called the Perez Organization. From January 1998 to September 2002, this gang was led by Enrique "Ricky" Perez, a cooperating witness, and defendants Bernard "B-Nice" Murray and Allen "Tito Allen" Resto. Defendant Lorenzo "Fu Quan" Hardwick managed one of the drug corners (or "sets") controlled by the Perez Organization, and defendant Jose G. Rodriguez was one of the primary "baggers" for the gang, responsible for processing the drugs into individual bags for street sale. Various disputes erupted between members of the Perez Organization and competing drug dealers. Three individuals were shot to death, and several others were badly injured.

On February 22, 2005, a federal grand jury in Camden, New Jersey, issued an eight count Superseding Indictment naming Murray, Resto, Hardwick, and Rodriguez as defendants.³ The charges in the indictment included conspiracy to distribute and possess narcotics, and possession and brandishing of firearms while engaging in that conspiracy.⁴ Trial commenced on April 18, 2005, and on June 6, 2005, a jury returned a guilty verdict on all counts. Rodriguez received a 360-month sentence; Hardwick, Murray, and Resto received life sentences on the conspiracy count, and additional consecutive sentences for their 18 U.S.C. § 924(c) convictions.

The defendants appealed on numerous grounds,⁵ the most salient of which was whether the admission into evidence of a redacted proffer statement, after the close of the Government's case-in-chief, violated defendants' constitutional rights under the Confrontation Clause. Because we find that the use of the proffer statement was harmless error, and we find no merit in the other issues brought on appeal, we affirm. The Government concedes, however, that the sentences for Hardwick, Murray, and Resto should be reduced to only one § 924(c) conviction each; accordingly, we remand for appropriate resentencing of these three defendants on their § 924(c) counts.

II.

During the investigation before trial, Murray entered into a proffer agreement with the Government. Under this proffer agreement, Murray agreed to cooperate with the investigators by answering questions truthfully and completely, and the Government agreed not to use these statements against him at trial in its case-in-chief. The proffer agreement provided for an exception, however, if the Government needed "to rebut any evidence or arguments offered on [Murray's] behalf." Murray App. 89. Murray was interviewed under this agreement on October 11, 2002, and October 23, 2002. During these interviews, he admitted to planning and participating in the slaying of two individuals, Hiram "Chubby" Rosa and Kenneth "Smoochie" Allen.

After the close of its case-in-chief, the Government filed a motion in limine to introduce Murray's proffer statements. Although Murray did not testify at trial, the Government argued that Murray had breached the proffer agreement by attempting to elicit contradictory evidence (i.e., that Murray had a lesser role in those killings) through cross-examination.

The District Court granted the Government's motion, finding that the cross-examinations conducted by Murray's counsel contradicted the proffer statements and thus triggered the waiver. To allay any Confrontation Clause concerns, the District Court ordered that all references to Murray's co-defendants be redacted and replaced with neutral references such as "others" or "another person." In addition, the District Court instructed the jury that it could consider the proffer statements only to assess Murray's guilt, and not the guilt of any other defendant.

Murray challenges the District Court's ruling on two grounds. First, he argues that he did not trigger the waiver because his cross-examinations only impeached the credibility of the Government's cooperating witnesses, without contradicting his proffer statements. Second, he contends that, even if the waiver was triggered, the Government waived its ability to introduce the proffer statements because it did not object contemporaneously to the cross-examinations or make a timely motion to admit rebuttal evidence. Additionally, Hardwick, Resto, and Rodriguez complain that the admission of Murray's proffer statements after the close of the Government's case-in-chief violated their rights under the Confrontation Clause of the Sixth Amendment.

A. The Enforceability of the Waiver

As a threshold matter, we consider whether the waiver clause in Murray's proffer agreement was enforceable before determining whether it was properly invoked. Ordinarily, the Federal Rules of Evidence prohibit the use of statements made by a defendant during plea negotiations. Specifically, Federal Rule of Evidence 410 provides:

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: ... (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

See also Fed.R.Crim.P. 11(f) (providing that the admissibility of any plea, plea discussion, or related statement is governed by Rule 410).

In United States v. Mezzanatto, 513 U.S. 196, 210, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), the Supreme Court held that a defendant could waive his rights under Rule 410 and Rule 11 as long as there is no "affirmative indication that the agreement [to waive] was entered into unknowingly or involuntarily." But the Mezzanatto Court only considered the enforceability of proffer waivers for impeachment purposes, and five justices expressed doubt as to whether a waiver could be used to admit the defendant's statement in the Government's case-in-chief. Id. at 211, 115 S.Ct. 797 (Ginsburg, J., concurring) (warning that "a waiver to use such statements in the case in chief would more severely undermine a defendant's incentive to negotiate, and thereby inhibit plea bargaining"); id. at 218, 115 S.Ct. 797 (Souter, J., dissenting) (expressing concern that a defendant who gives such a waiver "will be unable even to acknowledge his desire to negotiate a guilty plea without furnishing admissible evidence against himself then and there").

Nevertheless, circuit courts that subsequently have considered the question have upheld the use of proffer waivers at trial. See United States v. Velez, 354 F.3d 190, 196 (2d Cir.2004); United States v. Krilich, 159 F.3d 1020, 1025-26 (7th Cir.1998); see also United States v. Rebbe, 314 F.3d 402, 407 (9th Cir.2002) (upholding admission of proffer statements in rebuttal); United States v. Burch, 156 F.3d 1315, 1321-22 (D.C.Cir.1998) (extending the majority opinion in Mezzanatto to allow the admission of plea statements in the case-in-chief). We are persuaded by the reasoning of these courts and find that the waiver agreement at issue in this case was enforceable.

B. Triggering the Waiver

Determining whether Murray triggered the waiver requires an analysis of the terms of the waiver. A proffer agreement is a contract and its terms must be read to give effect to the parties' intent. United States v. Barrow, 400 F.3d 109, 117 (2d Cir.2005) (quoting United States v. Liranzo, 944 F.2d 73, 77 (2d Cir.1991)); see also United States v. Williams, 510 F.3d 416, 421-22 (3d Cir.2007) (stating that plea agreements are analyzed "according to contract law principles"); United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998) ("Plea agreements, although arising in the criminal context, are analyzed under contract law standards."). Because the interpretation of a contract generally is a question of law, we review the District Court's interpretation of the terms of the waiver de novo. Barrow, 400 F.3d at 117; see also United States v. Bernard, 373 F.3d 339, 341 (3d Cir.2004) ("We exercise plenary review over the question of whether the terms of a plea agreement have been violated."). If the waiver applies to...