U.S. v. Orlandez-Gamboa

• Decision Date: 20 February 2003
• Docket Number: Docket No. 02-1674.
• Citation: 320 F.3d 328
• Parties: UNITED STATES of America, Appellant, v. Alberto ORLANDEZ-GAMBOA, aka "Caracol," aka "Chiriqui," Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

320 F.3d 328

UNITED STATES of America, Appellant, v. Alberto ORLANDEZ-GAMBOA, aka "Caracol," aka "Chiriqui," Defendant-Appellee.

Docket No. 02-1674.

United States Court of Appeals, Second Circuit.

Argued: January 27, 2003.

Decided: February 20, 2003.

Roberto Finzi, Assistant United States Attorney, for James B. Comey, United States Attorney for the Southern District of New York, (Mark F. Mendelsohn, Andrew Ceresney, Assistant United States Attorneys, of counsel) New York, New York, for Appellant.

Pery D. Krinsky, Paul R. Warburgh, James M. LaRossa, Michael S. Ross, New York, New York, for Defendant-Appellee.

Before: OAKES, CALABRESI, and SACK, Circuit Judges.

CALABRESI, Circuit Judge.

This is an interlocutory appeal from an order of the federal district court for the Southern District of New York (Griesa, J.) declaring inadmissible statements made by Defendant-Appellee Alberto Orlandez-Gamboa to Colombian prosecutors.¹ The signed statements at issue were made by Gamboa in the course of the Colombian equivalent of plea negotiations with respect to Gamboa's alleged drug trafficking. We are asked whether admission of this evidence is barred by Federal Rule of Evidence 410(4), as the district court held, or, in the alternative by the Fifth Amendment. We answer both questions in the negative.

Facts

Colombia issued a warrant for Gamboa's arrest in 1997 on charges of kidnaping and murder and arrested him in June 1998. A year later, in an interview with Colombian authorities attended by his attorney, Gamboa claimed he was a legitimate businessman who had been wrongly accused. About the same time, the United States indicted Gamboa on charges that, at least from 1996 to 1999, Gamboa was the leader of a Colombian drug cartel that shipped large quantities of cocaine to locations which included the United States. Several months later, the United States sought Gamboa's extradition.

After the U.S. indictment and a month before the extradition request was made, Gamboa held the first of a series of meetings with Colombian prosecutors. These meetings were held pursuant to Article 37 of Colombia's Criminal Code, referred to in the proceedings below as Colombia's "anticipated sentencing process." Article 37 provides criminal defendants with an opportunity for reduced sentences in exchange for acceptance of charges. As a result of these meetings, Gamboa signed eight statements that "include detailed descriptions of Gamboa's drug trafficking activities."

At the conclusion of this series of meetings, Colombia amended its charges against Gamboa to include only drug activities that had occurred before 1996, that is, prior to the period covered by the U.S. indictment. Significantly, Colombian law permits extradition of a Colombian citizen unless the foreign government's allegations form the basis of charges already pending in Colombia. Thus, after the change in the Colombian charges against him, Gamboa would have remained eligible for extradition whether he accepted those charges or not. He refused to do so and was extradited to the United States to stand trial.

In the district court, Gamboa moved to suppress the statements he had made to Colombian prosecutors, arguing that they were part of Colombia's anticipated sentencing process and had been issued in an attempt to reduce his sentence and to resolve Colombia's charges against him. Because they were made in the course of negotiations concerning sentence, Gamboa contended, the statements were inadmissible under Rule 410(4).

The district court held an evidentiary hearing on the matter, receiving testimony as to whether the Colombian procedure is akin to plea bargaining and whether statements made in the course of that procedure are later admissible in Colombian courts. While the evidence was not entirely conclusive, the district court did find that the anticipated sentencing process was a form of plea bargaining, that Gamboa's statements were "made in contemplation of a possible plea of guilty," and that there was not "the slightest indication that the defendant was making these statements for any other reason whatever than to obtain" a reduced sentence and resolution of the charges. Rejecting the government's contention that Rule 410 has no extraterritorial effect, the court concluded that because the statements were made in the course of and for the purpose of negotiating a plea, they were not admissible under Rule 410(4).

On appeal, the government does not dispute the district court's determination that the statements were made as part of what would qualify as a "plea negotiation" under Rule 410. Rather, the government asserts that the text of Rule 410, its historical development, and its purpose make clear that the rule does not apply to statements made to prosecuting authorities of foreign jurisdictions. Gamboa, obviously, disagrees, but also asserts that his Fifth Amendment right against self-incrimination and principles of fundamental fairness bar admission of the statements. In reply, the government contends that the rule excluding statements made during plea negotiations is not a constitutional rule of evidence, that there is no evidence that Gamboa was subject to coercion in making the statements, and that the government's use of the evidence does not shock the conscience.

Discussion

Rule 410

Our conclusion that Gamboa's statements are admissible under Federal Rule of Evidence 410 is dictated by an analysis of the rule's text, context, and purpose. We begin our de novo review by looking at the language of the rule. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988); United States v. Figueroa, 165 F.3d 111, 114 (2d Cir.1998) (citation omitted). That language, in relevant part, reads:

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:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(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.

Fed.R.Evid. 410 (2003). Gamboa argues that his statements to Colombian prosecutors in the course of plea negotiations are inadmissible under Rule 410(4). Conceding on appeal that the statements were made in the course of plea discussions, the government maintains that Colombian prosecutors are not meant to be covered by the phrase "attorney for the prosecuting authority."

As the government acknowledges, "attorney for the prosecuting authority" is not a phrase that is helpful to its position. Read in isolation, as "text" standing alone, it does not exclude foreign prosecutors, though it does not expressly mention them either. In plain words, it is inconclusive. As a result, if we are honestly to determine its meaning, we must, as is often the case, analyze the context in which the phrase is used. We must first examine its statutory setting, and, if that leaves any doubt, look to the history and primary purpose of the rule. See Connecticut ex rel. Blumenthal v. United States Dep't of the Interior, 228 F.3d 82, 89 (2d Cir.2000); see also Benjamin v. Jacobson, 172 F.3d 144, 191 (2d Cir.1999) (en banc) (Calabresi, J., concurring) (noting the traditional practice of English courts, even when barred from citing parliamentary materials, to focus on "the mischief" a statute sought to cure in cases where the text of a statute left the courts uncertain as to its meaning). In all that, we must take care to choose an interpretation of the rule that "does not lead to anomalous or unreasonable results." Connecticut ex rel. Blumenthal v. United States Dep't of the Interior, 228 F.3d at 89.

The text of the preceding rule, Rule 410(3), is much clearer and is plainly addressed only to plea allocutions made in federal proceedings under Rule 11 or made in state proceedings under a "comparable state procedure." That portion of the rule cannot comfortably be read to exclude from evidence in domestic trials statements made during an allocution taking place in a foreign court according to that land's criminal procedures. It makes little sense, however, to interpret the other provisions of Rule 410 to have greater scope than Rule 410(3). To conclude that an allocution in a foreign court may be admitted as evidence in a domestic trial but that statements made in the course of negotiating a plea may not is to interpret Rule 410 to make a distinction unrelated to any discernible purpose of the rule.

There is, in fact, nothing in Rule 410 that evinces an intent to make such a distinction. In a domestic context, which is the context that was plainly of principal concern to Congress when the rule was adopted and amended, allocutions and plea negotiations are expressly treated alike. And there is no reason, adduced or apparent, to suggest that Congress would have wanted to make such a distinction solely as to foreign countries. For, the distinction between foreign and domestic jurisdictions has no obvious bearing on the distinction between allocutions and plea negotiations. See Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982) ("Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible.").

If, moreover, we turn to the aims of Rule 410, we find nothing that undermines the conclusion we have drawn from the rule's language read contextually. In proposing the rule's adoption, the Advisory Committee² stated that the "[e]xclusion of offers to plead guilty or nolo has as its purpose the promotion of disposition of...