United States v. Jim

• Decision Date: 06 January 2012
• Docket Number: No. CR 10–2653 JB.,CR 10–2653 JB.
• Citation: 839 F.Supp.2d 1157
• Parties: UNITED STATES of America, Plaintiff, v. Derrick Ivan JIM, Defendant.
• Court: U.S. District Court — District of New Mexico

839 F.Supp.2d 1157

UNITED STATES of America, Plaintiff,

v.Derrick Ivan JIM, Defendant.

No. CR 10–2653 JB.

United States District Court,

D. New Mexico.

Jan. 6, 2012.

Kenneth J. Gonzales, United States Attorney, Jack Burkhead, Mark T. Baker, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for the Plaintiff.

Lawrence E. Chacon, Albuquerque, NM, for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Derrick Ivan Jim's Opposed Motion in Lemini [sic] to Exclude All Admissions and Statements Made by Defendant in the Course of His Change of Plea to Guilty to Judge Paglisi [sic], in His Plea Agreement and to Probation, filed December 20, 2011 (Doc. 72) (“Motion”). The Court held a hearing on December 30, 2011. The primary issue is whether the Court should exclude at trial Jim's statements: (i) in the Plea Agreement; (ii) during the plea colloquy; and (iii) to the United States Probation Office (“USPO”). The Court will deny Jim's Motion. The Court finds plea agreement provisions that waive the protections of rule 410 of the Federal Rules of Evidence are permissible. With respect to Jim's waiver, the Court finds that he has not presented an affirmative indication that his plea was unknowing or involuntary. Furthermore, the Court concludes that rule 410 does not apply to statements made to the USPO, such that Jim's acceptance of responsibility statement would not be barred under rule 410 regardless of the validity of Jim's waiver in his plea agreement. Even if rule 410 covers such statements, the Court does not believe, under Supreme Court of the United States and United States Court of Appeals for the Tenth Circuit case precedent, that rule 410 prohibits these statements because Jim waived rule 410 protections.

PROCEDURAL BACKGROUND

On August 30, 2011, Jim was arrested for the sexual assault of Krystal Tsosie. See Memorandum Opinion and Order, filed November 22, 2011, 2011 WL 6013093 (Doc. 53)(“MOO”). A federal grand jury indicted Jim on one count of aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(a)(1), and 2246(2)(A). See Redacted Indictment, filed September 16, 2010 (Doc. 13) (“Indictment”). On February 8, 2011, Jim and Plaintiff United States of America entered into a plea agreement. See Plea Agreement at 1, filed February 8, 2011 (Doc. 25). The Plea Agreement included a provision which states:

Except under certain circumstances where the Court, acting on its own, fails to accept this plea agreement, the Defendant agrees that, upon the Defendant's signing of this plea agreement, the facts that the Defendant has admitted under this plea agreement as set forth above, as well as any facts to which the Defendant admits in open court at the Defendant's plea hearing, shall be admissible against the Defendant under Federal Rule of Evidence 801(d)(2)(A) in any subsequent proceeding, including a criminal trial, and the Defendant expresslywaives the Defendant's rights under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 with regard to the facts the Defendant admits in conjunction with this plea agreement.

Plea Agreement ¶ 10(c), at 5. Additionally, in the Plea Agreement, Jim asserts that he is pleading guilty because he is, in fact, guilty, and admits several facts explaining his offense. See Plea Agreement ¶ 8, at 3–4. Jim states:

I specifically admit the following facts related to the charges against me, and declare under penalty of perjury that all of these facts are true and correct:

I, Derrick Ivan Jim, am an enrolled member of the Navajo Nation and hold myself out as an Indian. On the evening of August 12, 2010, I [was taken to] the house of Krystal Tsosie to hang out and drink alcohol with Krystal and some of her friends. Prior to August 12th, I did not know Krystal or her friends. Krystal's house is located in Fruitland, New Mexico within the exterior boundaries of the Navajo Nation. At one point in the early morning hours of August 13, 2010 Krystal went into the house and I followed her. She laid down on the couch in her living room. I then dragged her to a back bedroom of her house. I then engaged in both vaginal and anal intercourse with Krystal against her will and by using force. She fought me off and I left the house.

Plea Agreement ¶ 8, at 3–4 (the word “went” struck and replaced with “was taken to,” and initialed).

Jim then pled guilty to the Indictment in a plea colloquy before the Honorable Richard Puglisi, Chief United States Magistrate Judge. At the plea colloquy on February 8, 2011, Jim appeared with his counsel, Assistant Federal Public Defender James Loonam. See Transcript of the Hearing at 3:8–11 (February 8, 2011)(Loonam)(“Feb. 8, 2011 Tr.”). At the plea colloquy, after Jim was sworn in, Chief Judge Puglisi had the following exchange with Jim:

Court: Mr. Jim, Mr. Loonam has provided me with a number of documents. First is the consent to proceed here this morning and next is the nine-page Plea Agreement. Did you go over these documents with Mr. Loonam?

Defendant: Yes, sir.

Court: And did you read them yourself?

Defendant: Yes, sir.

Court: And after you did all that do you feel that you understand these documents?

Defendant: Yes, sir.

Court: Do you have any questions about anything?

Defendant: No, sir.

Court: Did you sign the documents?

Defendant: Yes, sir.

Feb. 8, 2011 Tr. at 4:8–21 (Chief Judge Puglisi, Jim). Jim also asserted that he was satisfied with Mr. Loonam as his attorney. See Feb. 8, 2011 Tr. at 4:22–24 (Chief Judge Puglisi, Jim). Chief Judge Puglisi further inquired: (i) whether anyone had attempted to force Jim to plead guilty, to which Jim replied no; and (ii) whether he was pleading guilty of his own free will because he was in fact guilty, to which Jim replied yes. See Feb. 8, 2011 Tr. at 5:10–15 (Chief Judge Puglisi, Jim). Jim indicated that he understood that, under the Plea Agreement, he would get a sentence between 151 and 181 months. See Feb. 8, 2011 Tr. at 6:2–3 (Chief Judge Puglisi, Jim). He also informed Chief Judge Puglisi that he understood that he would be waiving his rights to appeal. See Feb. 8, 2011 Tr. at 6:9–17 (Chief Judge Puglisi, Jim).

When Chief Judge Puglisi asked whether Jim affirmed the facts set forth in the Plea Agreement, Jim informed Chief Judge Puglisi that he thought there was an error in the factual recitation which stated “I went to the house,” because he was taken to the house. Feb. 8, 2011 Tr. at 6:24–7:12 (Chief Judge Puglisi, Loonam). As Chief Judge Puglisi asked Jim about the factual basis for his plea, Jim admitted to the elements of the offense. See Feb. 8, 2011 Tr. at 8:5–25 (Chief Judge Puglisi, Jim). With respect to pertinent jurisdictional facts, Jim agreed that he was physically present in Indian Country on August 13, 2010, and that he is a Navajo Indian. See Feb. 8, 2011 Tr. at 8:5–12 (Chief Judge Puglisi, Jim). After conferring with counsel, Jim also stated that he knowingly engaged or attempted to engage in a sexual act with Jane Doe. See Feb. 8, 2011 Tr. at 8:13–16 (Chief Judge Puglisi, Jim). Jim also admitted that he engaged in that sexual act through the use of force. See Feb. 8, 2011 Tr. at 8:17–19 (Chief Judge Puglisi, Jim). When asked whether he knew what he was doing on the evening in question, Jim again conferred with counsel. See Feb. 8, 2011 Tr. at 9:8–12 (Chief Judge Puglisi). Jim's counsel, Mr. Loonam, then informed Chief Judge Puglisi:

Your Honor, I think Mr. Jim's hesitation is he had some alcohol blackout for some period of time and we've gone over this extensively—there were several individuals there besides the individual named in the plea and we've gone over all of the evidence, but he doesn't—he cannot say that he has specific memory in great detail of what occurred between him and the woman referred to as Jane Doe, but he is—I—he is aware that he was there with her when her description of the events took place and there is no doubt it was him, but he has some issue with saying that because of the rather severe alcohol consumption.

Feb. 8, 2011 Tr. at 9:13–23 (Loonam). Chief Judge Puglisi inquired whether this conduct affects Jim's ability to admit that he knowingly engaged in or attempted to engage in a sexual act with Jane Doe. Feb. 8, 2011 Tr. at 9:24–10:1 (Chief Judge Puglisi). Mr. Loonam responded:

I think he believes that knowingly applies to his behavior and could be proved beyond a reasonable doubt to a jury. And that is how I have suggested to him he wants to think about the inciden[t]. It's—there's many—there are so many statements, they're in great detail ... that I believe that he does feel that knowingly would apply to the facts as they would go to a jury and could be proven beyond a reasonable doubt.

Feb. 8, 2011 Tr. at 10:2–12 (Loonam). Jim stated that he agreed with Mr. Loonam's comments. See Feb. 8, 2011 Tr. at 10:13–15 (Chief Judge Puglisi, Jim). After conferring further with counsel, Jim admitted that alcohol had no effect whether he knowingly acted on August 13, 2010. See Feb. 8, 2011 Tr. at 10:16–24 (Chief Judge Puglisi, Jim).

Responding to Jim's earlier objection to the statement that he “went to the house,” the United States agreed to amend the Plea Agreement to reflect that Jim was taken to the house. Feb. 8, 2011 Tr. at 11:6–11 (Rozzoni). After the change was made and the parties initialed it, Chief Judge Puglisi asked how Jim pled to the single count of the Indictment. See Feb. 8, 2011 Tr. at 12:20–13:5 (Chief Judge Puglisi, Loonam, Jim). Jim responded that he pled guilty. See Feb. 8, 2011 Tr. at 13:6(Jim). Chief Judge Puglisi accepted the plea, finding that it was knowingly and voluntarily made. See Feb. 8, 2011 Tr. at 13:7–14:24 (Chief Judge Puglisi, Jim, Rozzoni, Loonam). Chief Judge Puglisi did not use the word trial once throughout the colloquy.

On May 2, 2011, the Court received a letter from Jim stating: “I would like to...