Rachlin v. U.S., 83-1250

• Decision Date: 09 December 1983
• Docket Number: No. 83-1250,83-1250
• Citation: 723 F.2d 1373
• Parties: 14 Fed. R. Evid. Serv. 1325 Martin M. RACHLIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1373

723 F.2d 1373

14 Fed. R. Evid. Serv. 1325

Martin M. RACHLIN, Appellant, v. UNITED STATES of America, Appellee.

No. 83-1250.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 16, 1983.

Decided Dec. 9, 1983.

David W. Russell, Kansas City, Mo., for appellant.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

HENLEY, Senior Circuit Judge.

This is a direct appeal from Martin M. Rachlin's conviction for passing a counterfeit bill in violation of 18 U.S.C. Sec. 472. Rachlin contends that certain oral and written statements made by him should have been suppressed by the district court. He contends the statements are inadmissible because they were made as a part of plea negotiations under Fed.R.Crim.P. 11(e)(6)(D), that the statements were made involuntarily, and were made because of ineffective assistance of counsel. In addition, Rachlin claims the government failed to introduce sufficient corroborative evidence to justify a finding of guilt. We reject his arguments and affirm the judgment of the district court. ¹

BACKGROUND

In the fall of 1981 the United States Secret Service was investigating the passing of counterfeit Federal Reserve Notes in Kansas and Missouri. An informant advised the Secret Service that Rachlin was involved and had counterfeit bills in his possession. Two special Secret Service Agents went to Rachlin's house in Prairie Village, Kansas on February 26, 1982 and spoke with him. During the course of this discussion Rachlin admitted having received a couple of bogus bills. These admissions are not the subject of this appeal.

Subsequently, Rachlin's attorney, Mark Slatkin, set up a meeting with an Assistant United States Attorney, Amanda Meers, in order to discuss his client's situation. On March 8, 1982 Slatkin met with Meers and two Secret Service Agents. The record is clear that Meers informed Slatkin at that time that the government was not prepared to plea bargain since Meers knew very little about the case at that point (prior to March 8, it appears that Meers had no knowledge of the Rachlin investigation).

Later, Rachlin's attorney set up another meeting, and on March 12, 1982 Rachlin, with his attorney Slatkin, met with Secret Service Agents. ² After signing a waiver of rights form and in the presence of counsel, Rachlin admitted his involvement with counterfeit money in a detailed statement in which he named his source, listed the businesses where he made passes and the denominations of the bills passed at each. One of the businesses where Rachlin admitted passing a $100.00 counterfeit bill in September, 1981 was Woolf Brothers on the Plaza in Kansas City, Missouri. This negotiation was later corroborated by the testimony of a bank teller who discovered a counterfeit $100.00 bill in a deposit belonging to Woolf Brothers.

Rachlin also placed telephone calls on March 12, 15 and 16 to an individual to whom Rachlin had supplied counterfeit bills. These calls were made from the Secret Service Field Office in Kansas City and taped with Rachlin's knowledge and permission.

Plea negotiations eventually did take place and culminated with a proposed agreement being sent to defense counsel. Rachlin decided not to enter the agreement, however, and was subsequently indicted on October 6, 1982 for the one-note pass at Woolf Brothers. Rachlin moved to suppress all his written and oral statements. At a joint suppression hearing and trial ³ held on November 9 and 10, 1982, the district court denied Rachlin's motion and found him guilty as charged in the indictment. Rachlin was sentenced to fifteen months imprisonment to be served as a split sentence under 18 U.S.C. Sec. 3651. Rachlin was to be confined for thirty days and then placed on probation for three years.

PLEA NEGOTIATIONS

Rachlin contends that the statements he made on March 12, 15 and 16 are inadmissible Fed.R.Crim.P. 11(e)(6)(D) and Fed.R.Evid. 410 have been the subject of much litigation. See, e.g., Annot., 60 A.L.R.Fed. 854 (1982); United States v. Grant, 622 F.2d 308 (8th Cir.1980); United States v. Robertson, 582 F.2d 1356 (5th Cir.1978); United States v. Levy, 578 F.2d 896 (2d Cir.1978); United States v. Herman, 544 F.2d 791 (5th Cir.1977); United States v. Brooks, 536 F.2d 1137 (6th Cir.1976); United States v. Verdoorn, 528 F.2d 103 (8th Cir.1976). Despite some lack of uniformity as to its application, however, the purpose of Rule 11(e)(6) is relatively clear. The goal of the rule is to "promote active plea negotiations" and to "encourage 'frank discussions in plea bargaining negotiations.' " United States v. Grant, 622 F.2d at 312. Part of the difficulty in applying Rule 11(e)(6) was due to confusion about whether the rule was intended to apply only to formal plea bargaining between the prosecuting attorney and the defendant or whether it could also apply to informal bargaining between law enforcement officials and the defendant. See Weinstein's Evidence p 410 (applies only to formal bargaining); Wright & Graham, Federal Practice and Procedure: Evidence Sec. 5347, at 382-89 (disagrees with Weinstein view); United States v. Grant, 622 F.2d at 313. This confusion has been eliminated ⁵ by the adoption of the 1979 amendments to Rule 11(e)(6)(D) which substantially incorporate the Weinstein approach by limiting the rule's application to plea negotiations between the defendant or his attorney and an "attorney for the government." ⁶ Fed.R.Crim.P. 11(e)(6)(D).

                because they were made as a part of plea negotiations and hence should have been suppressed under Fed.R.Crim.P. 11(e)(6)(D). 4   The government responds by stating that Rule 11(e)(6)(D) only prohibits statements made during negotiations with an attorney for the government, and since the statements at issue here were made to Secret Service Agents Rule 11 is not applicable
                

We carved out an exception to this rule, however, "where the law enforcement official is acting with express authority from a government attorney." United States v. Grant, 622 F.2d at 313. In Grant, the law enforcement agent was given authority by the United States Attorney to tell the defendant that the prosecutor would let him plead to a one-count indictment in exchange for the defendant's cooperation. We held the defendant's statements in response to this offer were inadmissible under Rule 11(e)(6) even though the United States Attorney was not physically present when the offer was made. We recognized that "[w]ithout such an exception, government attorneys might attempt to avoid the operation of the rules by authorizing law enforcement officials to conduct plea negotiations." Id.

Here, however, the exception is inapplicable. Rachlin was never told by the Secret Service Agents that they had authority to plea bargain. More importantly, the Secret Service made no offer of any "deal" to Rachlin at the time of his statements and were not relaying a prosecution offer, as was the case in Grant. In contrast to the Rachlin attempts to get around the fact that no attorney for the government was present at the time of the admissions by putting forth a theory of ongoing negotiations. This theory is that plea negotiations began on March 8 when defense counsel met with Amanda Meers, the prosecutor. These alleged negotiations, it is contended, carried over to the meetings defendant had with the Secret Service Agents on March 12, 15 and 16. We reject this theory.

situation in Grant, there is no evidence that any Assistant United States Attorney ever gave the agents any authority to bargain with Rachlin.

Even assuming the parties were negotiating a plea or were attempting to open negotiations at the March 8 meeting, nothing which occurred in these conversations was ever used or quoted by the government. More importantly, the Assistant United States Attorney was in no way involved in arranging the March 12 meeting where the incriminating statements were given. Rachlin's attorney independently initiated the meeting with the Secret Service Agents. The action taken by defendant was not a prescheduled continuation of the March 8 meeting, but instead was a decision by defense counsel to take some action in the hope of inducing leniency from the government. We hold that in these circumstances, Rule 11(e)(6)(D) is not available to suppress Rachlin's statements on March 12, 15 and 16. ⁷ See United States v. Grant, 622 F.2d at 316; United States v. Ceballos, 706 F.2d 1198, 1203 (11th Cir.1983).

VOLUNTARINESS

Having decided that Rachlin's statements on March 12, 15 and 16 are not excludable under Rule 11, we must determine if the statements were made voluntarily. The test that has evolved views the totality of the circumstances and considers whether the statement was voluntarily made or whether the defendant was somehow overreached. See, e.g., Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957). The issue is whether the confession was "extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence." Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897); see also United States v. Grant, 622 F.2d at 316. Using the flexible totality of the circumstances approach requires the reviewing court to consider the specific tactics utilized by the police in eliciting the admissions, the details of the interrogation, see, e.g., Haynes v. Washington, 373 U.S. 503, 508-10, 83 S.Ct. 1336, 1340-41, 10 L.Ed.2d 513 (1963); Spano v. New York, 360 U.S. 315, 321, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 (1959); Ashcraft v. Tennessee, 322 U.S. 143, 152-54, 64 S.Ct. 921, 925-26, 88 L.Ed. 1192 (1944), and the characteristics of the accused, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2046-47, 36 L.Ed.2d 854 (1973); Davis v. North Carolina, 384 U.S....