U.S. v. Geders, 77-5037

• Decision Date: 31 January 1978
• Docket Number: No. 77-5037,77-5037
• Citation: 566 F.2d 1227
• Parties: 2 Fed. R. Evid. Serv. 952 UNITED STATES of America, Plaintiff-Appellee, v. John A. GEDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1227

566 F.2d 1227

2 Fed. R. Evid. Serv. 952

UNITED STATES of America, Plaintiff-Appellee, v. John A. GEDERS, Defendant-Appellant.

No. 77-5037.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1978.

Arnold D. Levine, Tampa, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Anthony J. LaSpada, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BROWN, Chief Judge, DYER, and FAY, Circuit Judges.

FAY, Circuit Judge:

After remand from the United States Supreme Court, ¹ the defendant-appellant, John A. Geders, was tried with several co-defendants and was convicted of conspiracy to import marijuana, importation of marijuana, and possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 952(a), 960(b), and 841(a)(1). Geders testified in his own behalf at the trial and raised the defense of entrapment. The government was permitted to cross-examine Geders and to introduce rebuttal testimony concerning post-indictment statements made by Geders at a meeting with the Assistant United States Attorney and federal investigators in May, 1973 in order to establish his predisposition to engage in narcotic-related activities and to attack his credibility as a witness. Geders vigorously objected to the use of statements made by him during this meeting on the ground that such statements were made during the early stages of the plea bargaining process.

We have concluded that the trial court erroneously permitted use of statements made by Geders during the meeting in May of 1973, and because introduction of these statements was not harmless beyond a reasonable doubt, we remand the case to the trial court for further proceedings consistent with this opinion.

I. FACTS

The facts, considered in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), indicate that the defendant Geders was involved in a conspiracy with Randy Kilgore, James Mahoney, Michael Fink, Fred Fink, and Stephen Patrick to transport a substantial quantity of marijuana into the United States from Colombia, South America. Formation of the conspiracy and acts in furtherance thereof took place between September 1, 1972, and November 26, 1972.

During October and November of 1972 the participants in the conspiracy traveled from Tampa, Florida, to Jacksonville and Daytona Beach, Florida, to ready plans for importation of the marijuana. Geders also flew to Colombia, South America, to meet with Pedro Davilla, the contact abroad, who was a Colombian citizen and a fugitive from United States jurisdiction. In late October or early November Randy Kilgore met with an individual named David Butler in Miami, Florida, and agreed to pay Butler $10,000 if he would pilot a small plane to Colombia to pick up the marijuana. Unbeknownst to the conspirators, Butler was a government informant and immediately informed Customs officials of the proposed plan. Butler was instructed to cooperate in the plan and to keep Customs informed. The conspirators agreed that the plane would depart from Tampa on November 26, 1972, and would land in Lehigh Acres, Florida, later the same day upon return from Colombia.

The plane departed from Tampa at approximately 5:00 A.M. on November 26, 1972, with Geders and James Mahoney accompanying Butler, the pilot-informant. The plane flew to Colombia, and, after loading approximately 1000 pounds of marijuana, returned to Lehigh Acres between 8:00 P.M. and 9:00 P.M. on the evening of the 26th. While the plane was en route to Colombia, Customs officials began surveillance of the landing area at Lehigh Acres in preparation for seizure of the contraband and the participants upon their return from Columbia. All of the conspirators were in custody by the following day.

The meeting between Geders, Assistant United States Attorney Oscar Blasingame, Customs officer Lowell Miller, Charles Hudson of the Bureau of Alcohol, Tobacco, and Firearms, and certain other government officials took place in May of 1973. Although the meeting took place after indictment at a time when Geders was represented by counsel, his attorney was not present at his insistence. ² Blasingame informed Geders of his Miranda rights and that the government wished to discuss the activities of Pedro Alvarez and did not wish to discuss Geders' pending case. Specifically, Blasingame informed Geders that "there would be no discussion about any matters related to the pending case." Geders then related to the investigators that he had traveled to New York to convert large bills into small bills for Alvarez and that title to a Porsche automobile owned by Alvarez had been placed in his name.

Prior to testifying on his own behalf, Geders moved in limine to exclude any cross-examination concerning statements made by him during the meeting in May of 1973. The court deferred ruling on the motion until completion of direct examination, in which Geders set forth the defense of entrapment. The court then denied Geders' motion and permitted cross-examination concerning statements made by him during the meeting as evidence for the jury to consider regarding the issue of whether Geders possessed a predisposition to commit the offenses in question and to attack his credibility. The court also permitted the government to introduce rebuttal testimony by Assistant United States Attorney Blasingame and Special Agent Hudson concerning statements made by Geders at the May, 1973, meeting.

II. MERITS

The parties to this appeal have vigorously contested the defendant's contention that the district court erred in permitting the use of plea-related discussions, and clash head on as to the applicability of Santobello v. New York, ³ United States v. Herman, ⁴ and Rule 11 of the Federal Rules of Criminal In Herman, this court was confronted with the issue of whether Rule 11(e)(6) of the Federal Rules of Criminal Procedure should be construed to exclude statements made by an accused murderer to postal inspectors to the effect that he would plead guilty to robbery and produce the gun if the murder charges would be dropped. ⁶ The focal issue in Herman, as in the case at bar, was whether the defendant's statements were in connection with and relevant to the plea bargaining process. Judge Goldberg, in his well reasoned opinion held ⁷ that:

Procedure ⁵ to the facts of this case. When pared to the core, the government's argument is that statements made by the defendant at the meeting in May of 1973 are admissible because the statements were not in connection with nor relevant to a plea or an offer to plead guilty, and that no agreement was struck with the defendant prior to the meeting as to the use of statements made by him during the meeting. It is necessary to closely analyze the teachings of Herman and Santobello before assessing the merits of the parties' contentions.

. . . . Statements are inadmissible if made at any point during a discussion in which the defendant seeks to obtain concessions from the government in return for a plea. 544 F.2d at 797.

The Court further stated that whether statements are made during the plea bargaining process is not to be determined according to hypertechnical distinctions and that the defendant need not accompany all admissions with a "preamble explicitly demarcating the beginning of plea discussions." Id. at 797.

As Judge Goldberg so aptly stated:

If Congress had wanted plea bargaining to be formalized, ritualized or structural, the rules could have so provided. But Congress, believing that plea bargaining is a necessary ingredient in criminal prosecutions of the magnitude we face, wanted an accused freely to discuss his or her plight, the probability of punishment and the possible range thereof. Having embarked on the plea bargaining route, Congress did not intend the accused to be convicted by the bargaining words Congress had encouraged him or her to utter. We cannot ascribe to Congress any intention to sandbag an accused in his or her plea bargaining sessions. The government, as one of the dancing partners, should not be able to lead its partner to a trap door on the dance floor.

Id. at 797, 798.

The rationale supporting a liberal interpretation of when plea bargaining commences is justified by the desire to encourage free and candid discussion between the The Supreme Court in Santobello expressly recognized that promises made by the government must be fulfilled. Accord, United States v. Millet, 559 F.2d 253 (5th Cir. 1977). In Santobello, the defendant was indicted on two gambling charges to which he entered pleas of not guilty. The Assistant District Attorney then agreed that if the defendant would plead guilty to a lesser-included offense the prosecutor would make no recommendation as to the sentence to be imposed. Pursuant to the agreement the defendant withdrew his not guilty pleas and entered a plea of guilty to the lesser-included offense. At the sentencing hearing, a new prosecutor replaced the Assistant District Attorney and recommended the maximum sentence. The sentencing judge imposed the maximum sentence, stating on the record that the sentence was arrived at independent of the prosecutor's recommendation. Notwithstanding the effort by the trial judge to alleviate the effect of the broken promise, the Supreme Court vacated the judgment and remanded the case to the state court for further proceedings. The court specifically held that if the government makes promises or inducements which result in a guilty plea, the promises must be fulfilled. The premise underlying this rule of law as we understand it, is that all admissions made by the defendant during the course of negotiations are conditioned upon the defendant receiving that which he has bargained for.

government and the accused and to prevent plea bargaining from being used as a trap for the...