U.S. v. Doe, 79-1379
| Citation | 655 F.2d 920 |
| Decision Date | 02 April 1981 |
| Docket Number | No. 79-1379,79-1379 |
| Parties | 8 Fed. R. Evid. Serv. 247 UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Judith E. Bendich, Seattle, Wash., for defendant-appellant.
Jerry Diskin, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before SNEED and FLETCHER, Circuit Judges, and JAMESON, * District Judge.
John Doe, 1 defendant-appellant, was convicted of possession of heroin with intent to distribute and importation of heroin. The issues on this appeal relate primarily to alleged errors with respect to the pretrial suppression hearing and the sentencing proceeding. We affirm the conviction, but remand for resentencing.
On December 22, 1978, Doe was aboard an airline flight from Seoul, Korea, to Seattle, Washington. He was accompanied by Richard Roe. 2 Both had been drinking during the flight. While in flight Roe offered a serviceman $500 to carry a duffel bag through customs. This offer was overheard by another passenger. The serviceman accepted the offer and upon landing in Seattle passed through a United States Customs checkpoint with the bag. Customs officers had been informed of the inflight conversation, however, and the serviceman was stopped and taken to an examination room by an inspector. An inspection of the bag revealed ten packages of white powder which later proved to be approximately eight pounds of 92% heroin. When the serviceman observed the contents of the duffel bag he immediately implicated Doe and Roe, who were taken into custody, removed to a secondary examination room, and advised of their Miranda 3 rights. No questioning took place.
The Drug Enforcement Administration (DEA) was notified and took primary responsibility for the subsequent investigation. When Special Agent Boggs of the DEA took custody of Doe he was informed by the Customs officers that Doe had been advised of his rights. Doe interjected that he wanted an attorney. Boggs told Doe he did not want to question him then, to "sit tight until we get some things straightened out," and left the room. Doe was not questioned. The request for counsel was repeated.
Shortly thereafter, Special Agent Snyder of the DEA, after again advising Doe of his constitutional rights, asked Doe whether he was willing to cooperate in the DEA's investigation of the drug smuggling scheme. Doe did not demand to see an attorney or exercise his right to remain silent. Rather, he stated that he had been in prison before, that cooperation meant nothing, and that there was nothing the agent could do for him. No questioning was carried out at this time, and Doe was transported to the Port of Seattle Police Office.
Approximately one-half hour later Doe asked to talk to Roe. Roe was brought to Doe and the two were allowed to confer within the agents' hearing. The agents testified at the suppression hearing that after talking with Roe, Doe turned to the agents and stated that the heroin was his. Doe denied making this statement. The agents advised Doe that since he had requested an attorney, no questioning could occur until one was present. Doe then expressed an interest in cooperating in the DEA's investigation, waived his right to an attorney, and answered the agents' questions concerning his participation in the heroin importation scheme. The agents informed Doe that they had no authority to enter into a plea bargain.
Doe and Roe were transported to the United States Attorney's office in Seattle. During the ride Doe inquired about possible sentences for those who cooperated. Upon arrival Doe met with Assistant United States Attorney Sim. Doe agreed to cooperate in the DEA's investigation of the importation scheme and to take the drugs to San Francisco to set up their delivery. Government witnesses testified at the suppression hearing that Doe attempted to negotiate Roe's immediate release, but did not ask for any consideration of his own case. This was denied by Doe who now contends that as a part of his alleged agreement the Government would recommend a reduced sentence for him.
Doe was brought before a United States Magistrate where he waived his right to an attorney, and indicated a desire to cooperate with the authorities. He was released to the custody of DEA agents and taken to a motel room where he was questioned and plans for delivery of the heroin to the intended recipients in California were discussed. While his story apparently changed some in the retelling, it is admitted that he cooperated with the DEA in all respects. The plans to carry out a controlled delivery were aborted when agents became concerned about the safety of the operation.
In an indictment returned on January 16, 1979, Doe and Roe were charged with conspiring to violate 21 U.S.C. § 841(a) by possessing heroin with intent to distribute (Count I), possession of heroin with intent to distribute (Count II), and importing heroin (Count III).
Doe filed pretrial motions to (1) dismiss the indictment for failure to comply with a plea bargain, or, in the alternative, enforce the plea bargain; (2) to suppress statements made to DEA agents at the airport and (3) to sever the defendants' trials. Following an evidentiary hearing on February 26, 1979, the three motions were denied.
On March 8, 1979, prior to trial, the court heard additional arguments regarding the alleged plea bargain and Doe's motion to suppress statements, rejected offers of proof, and again denied Doe's motions. After the Government rested its case, the motion for severance was renewed. At that time Doe made a pro se statement to the court that he had a "moral obligation" to testify as a witness in defense of Roe, and that the court's order denying severance "put(s) me in the position of forcing me to take the stand, or have a miscarriage of justice happening here." The motion to sever was again denied. Doe was called to testify by counsel for Roe. Doe fully incriminated himself and testified that Roe knew nothing of the heroin. Doe was acquitted on Count I and found guilty on Counts II and III. Roe was acquitted on all counts.
At the sentencing hearing on March 11, 1979, the court refused a request of the prosecuting attorney to address the court. The court imposed consecutive sentences of eight years on Count II and seven years on Count III.
Doe contends on appeal that (1) a new evidentiary hearing is required because (a) the trial court "improperly excluded testimony relevant to the substance of the plea agreement", and (b) he was denied counsel during plea negotiations; (2) the trial court abused its discretion in refusing a severance; and (3) Doe was denied his due process right to a fair sentencing hearing.
Doe contends that there was a plea agreement, i. e., "that in exchange for his cooperation, charges would be dropped against Roe 4 and the Government would recommend a reduced sentence for Doe." 5 The Government contends that there was no plea agreement, calling attention to the testimony of the Assistant United States Attorney that Doe "never once even suggested that anything be done for his case, always it was Roe's case."
In support of his contention that there was a plea agreement, Doe attempted to introduce the testimony of his brother relative to a conversation between the brother and Agent Boggs. In an offer of proof, counsel stated, inter alia, that the brother would testify that "Agent Boggs had indicated that with John Doe's cooperation they were working out an agreement with regard to the disposition of the case against Mr. Roe, and they were recommending a reduced sentence with regard to John Doe." The court rejected the offer of proof on the grounds that it was inadmissible hearsay and that Federal Rule of Criminal Procedure 11(e)(1) contemplates that only government attorneys could enter into plea bargains. 6
While there may be merit in appellant's contention that the testimony of Doe's brother was admissible as an exception to the hearsay rule under Federal Rule of Evidence 801(d)(2)(D) 7 and that the trial court read Rule Fed.R.Crim.P. 11(e)(1) too narrowly, we cannot agree with appellant that he was prejudiced by the exclusion of his brother's testimony.
Appellant argues that his brother's testimony would have shown that he was engaged in plea negotiations and that his statements accordingly were inadmissible under Fed.R.Crim.P. 11(e)(6), which provides that evidence of "statements made in connection with, and relevant to" a plea of guilty or an offer to plead guilty are "not admissible in any civil or criminal proceeding against the person who made the plea or offer." See also Fed.R. of Evid. 410. This court, following United States v. Robertson, 582 F.2d 1356, 1366 (5 Cir. 1978) (en banc), has adopted a bifurcated test to establish the admissibility of statements made during what are assertedly plea negotiations:
(t)he trial court must apply a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused's expectation was reasonable given the totality of the objective circumstances.
United States v. Pantohan, 602 F.2d 855, 857 (9 Cir. 1979); United States v. Castillo, 615 F.2d 878, 885 (9 Cir. 1980).
While the record is replete with references to "plea bargaining", we find nothing to show Doe ever pled or offered to plead guilty. He was not engaged in plea negotiations, but rather was attempting to exculpate Roe by inculpating himself, making the best of a bad situation by cooperating in the DEA investigation. 8 At most he...
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