Rehearing and Rehearing En Banc Denied March 4, 1977.
GOLDBERG, Circuit Judge:
Glen Herman stands accused of robbing a United States Post Office and killing a postal employee. On the basis of recent
The crime occurred in Orange County, Florida on July 21, 1975. Postal inspectors advised the Columbus, Georgia police department that a warrant had been issued charging Herman with the killing, and Columbus police arrested him.
At the hearing Herman requested that an attorney be appointed to represent him. The magistrate promptly recessed the hearing and left to obtain an attorney. Herman remained in the hearing room with the two postal inspectors. Herman initiated a conversation during which he stated, sometimes in response to Inspector Broadwater's questions, that he was not guilty of and should not be charged with murder, that his alleged partner Brunson had fired the fatal shot, and that only one shot had been fired. Herman also asked who had brought his name into the case, whether Brunson had talked, and whether authorities had recovered Brunson's gun.
At some point during the conversation Herman made the offer that is of crucial importance to this case: he said he would plead guilty to robbery charges and produce the gun if authorities would agree to drop the murder charges. Inspector Crawford testified that the plea offer came near the beginning of the discussion, following only Herman's statement that he should not be charged with murder and his inquiry as to who implicated him. Inspector Broadwater, on the other hand, testified that Herman's plea offer occurred at the end of the discussion. Both inspectors agreed that in response to Herman's plea offer Broadwater said that they were not "in position" to make any deals. Crawford testified that the discussion ended when Herman said he did not want to disclose his gun's location before speaking to an attorney.
On August 27, 1975 a two-count indictment in the United States District Court for the Middle District of Florida charged Herman with killing the postal employee in violation of 18 U.S.C. § 1114 and robbing the post office in violation of 18 U.S.C. § 2114.
We are met at the outset with the issue of our jurisdiction. 18 U.S.C. § 3731 authorizes a government appeal from a pretrial order suppressing evidence "if the
Whether the United States attorney executed the appropriate certificate is unclear from this record. Because the government, as appellant, has the burden of compiling the record on appeal, we could properly hold that the omission of the certificate necessitates dismissal of the appeal. In the unusual circumstances of this case, however, we decline to do so.
Neither party raised the jurisdictional issue, and the absence of the certificate did not come to our attention until this opinion was being prepared. The certificate requirement is meant to protect the defendant by eliminating unjustified delay, but at this stage the delay has already been incurred, and vacating the appeal could not effectuate the congressional purpose. Because we had already resolved to uphold Herman's position, reaching the merits serves to protect, not undermine, Herman's right to a speedy disposition of the charges against him.
Fed.R.Crim.P. 11(e)(6) makes inadmissible any statement made "in connection with" any offer to plead guilty or nolo contendere to the charged crime or to any other crime.
To construe rule 11(e)(6) correctly we must set it in proper perspective. Plea bargaining is a practice many have criticized and few have enthusiastically endorsed. Nevertheless, plea bargaining has become an accepted fact of life. By 1971 the Supreme Court was able to encourage the practice, albeit on grounds of necessity rather than right:
Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).
The legal battleground has thus shifted from the propriety of plea bargaining to how best to implement and oversee the process. Plea bargaining is a tool of conciliation. It must not be a chisel of deceit or a hammered purchase and sale. The end result must come as an open covenant, openly arrived at with judicial oversight. A legal plea bargain is made in the sunshine before the penal bars darken. Accordingly, we must examine plea bargains under the doctrine of caveat prosecutor.
Even before the enactment of rule 11(e)(6), we held that plea-related statements are inadmissible, recognizing the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him. In excluding a defendant's plea-related statements, Judge Coleman wrote:
United States v. Ross, 493 F.2d 771, 775 (5th Cir. 1974). See United States v. Smith, 525 F.2d 1017 (10th Cir. 1975). Cf. Crawford v. United States, 219 F.2d 207 (5th Cir. 1955) (plea related statement held involuntary and thus constitutionally inadmissible). The Ross holding was codified in rule 11(e)(6).
Against this backdrop the inappropriateness of giving the rule an inhospitable reading becomes clear. Excluded statements must be made "in connection with" plea offers, but if we are overly exacting in deciding which statements come within this standard, we will deter the unrestrained candor that often produces effective plea negotiations. Defendants must be free to
Indeed, even settlement negotiations in civil cases have been curtained by evidentiary impenetrability. See, e. g., Fed.R.Ev. 408. The necessity for sanctuaries in plea bargaining in criminal cases is no less compelling. If plea bargaining is pragmatically justified despite its potential for abuse, we should encourage candor by the accused, eschewing an interpretation of the rules that would make the accused less amenable to forthright plea discussions. The accused in the pretrial bargaining should be encouraged by knowledge that the discussions will have a sanctity. Hypertechnical considerations should not determine whether pretrial bargaining may come into the testimony at the trial. Having embarked on the road that permits plea bargaining, the government should be most careful lest it be accused of bad faith in throwing open to the trial matters that the accused thought were not to be used against him or her. To hold otherwise would greatly diminish, if not nullify, the use of plea bargaining.
The government argues, however, that if all such statements are excluded, clever defendants will append plea offers to their incriminating statements and thereby render the statements inadmissible. The government does not explain why clever defendants would not simply refrain from making incriminating statements altogether, nor how the offering of an inadmissible statement will impede the prosecutor's ability independently to assemble a case as he or she always must. The government's speculative concern gives us no cause to subordinate the policy of encouraging open plea discussions or to ignore the rule's plain language. In the long run prosecutors will benefit from the more effective plea negotiating process that today's result will foster.
Moreover, the government's inability to introduce the statements made in a bargaining session does not place it in a worse position than it would occupy if an accused chose not to engage in plea bargaining at all. If we permit the facts concerning a plea bargain to be brought out in evidence, we will have silence on the part of every knowledgeable accused. Discussion will not be worth the price of the potential bargain. An unexpansive reading of relatedness would go to the heart of the rule, which is the protection of plea discussions. The rule's central feature is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement. Such candid discussion will often include incriminating admissions. If we were to follow the government's argument, however, such admissions would be admissible if not accompanied by a preamble explicitly demarcating the beginning of plea discussions. To allow the government to introduce statements uttered in reliance on the rule would be to use the rule as a sword rather than a shield. This we cannot allow; the rule was designed only as a shield.
If Congress had wanted plea bargaining to be formalized, ritualized or structured,
Rule 11(e)(6) recognizes the existence and practice of plea bargaining and is a rule of encouragement. It should not be construed as a tempting rule with built-in deception. It should not be used to seduce confession or admission. It is a rule of evidentiary exclusion, and it should exclude lest it be destructive of the very predicate upon which it was evolved.
What remains is only to measure Herman's statements against the standard we have announced. Herman made the statements during the course of a conversation in which he sought concessions from the government in return for a guilty plea. In particular, Herman sought to have the government drop the murder charges in return for his guilty plea to robbery charges. The rule requires no more; all Herman's statements are inadmissible.
The government argues, however, that Herman's statements could not have been plea-related because the postal inspectors had no authority to negotiate a plea. We reject the government's position. The relevant factor is a defendant's perception of the government official's negotiating authority, not the official's actual authority. The twin goals of encouraging unrestrained plea negotiations and assuring fairness to defendants dictate that any statements made by a defendant as part of an effort to reach a plea agreement must be excluded; it makes no difference that the defendant's efforts are misguided because the official cannot or will not accept the offer.
An accused does not have ready in hand an almanac showing the jurisdictions and powers of the various public officials. Accordingly, the accused often will not know whether the party with whom he or she is speaking has the power to negotiate a plea. Many officers today carry printed forms of the Miranda warnings. Perhaps if the rule the government seeks here were adopted, we would be driven to require an officer entering discussions with an accused to hand out a card saying "no authority to negotiate for a plea." The need to go to such lengths to avoid unfairness under the government's proposed approach convinces us that an officer's actual authority cannot be dispositive. Moreover, if rule 11(e)(6) applied only to officials with actual authority to make a bargain, it would have no scope of operation at all, for only the judge has final authority to approve any recommended bargain.
Finally, the government counters that even under the standard we have announced, Herman's statements are admissible
The district court held Herman's statements plea-related, and only in an egregious case would we overturn such a district court finding. The order suppressing Herman's statements is affirmed.
GEE, Circuit Judge (specially concurring):
I concur in the result reached by the majority, since it seems to me that evidence exists in the record to support a finding by the trial court that the postal inspectors delayed informing Herman that they had no authority to plea-bargain with him until after he had made the incriminating admissions. Therefore, the admissions were properly suppressed under Fed.R.Crim.P. 11(e)(6) or Fed.R.Evid. 410 — which in identical language exclude any statement made "in connection with, and relevant to" a plea bargain. Herman's admissions were both. With entire deference and respect, I observe that the majority opinion decides many points of law not presented by the case in hand and some of them most dubiously, in my view. Being dicta, these expressions will doubtless work little harm, but I cannot join in them. A few illustrations will suffice.
In the text, at note call 6, the majority so entirely reads the congressional language "and relevant to" out of both rules as to omit it from the quotation. The reasons for this presumably appear in footnote 7, where by reference to the legislative history the majority concludes that the phrase is meaningless since Congress did not give reasons there for putting it in. I am not accustomed to treating clear congressional expressions so lightly nor, as I have noted earlier, is there any occasion to do so here, the excluded statements meeting the category on both qualifications. Nor do I agree that, by adding the phrase "and relevant
I also find dubious the court's sweeping observation that, "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." The effect of this exceedingly hospitable reading of the rule is that any and all admissions can be effectively sanitized and retracted by injecting an irrelevant plea demand later in the discussion and after the horse is out of the barn. Thus, we set the stage for such spectacles as prosecutors or investigators decamping after obtaining just enough of an admission to be of use, perhaps pursued by a shouted offer to plead. It is entirely possible that avoiding such ludicrous scenes was another congressional purpose in appending the "and relevant to" qualification to the exclusionary rules' language. Such unqualified and sweeping black-letter generalizations are not necessary to decision of this cause, and I, with all deference, decline to join in them.
Alternatively, we could require the government to produce the certificate at this late date. Such an approach is unacceptable, however, for at least two reasons. First, appellee would suffer further and unjustifiable delay. Second, although other courts have allowed certificates to be filed late, see Meier v. Keller, 521 F.2d 548 (9th Cir. 1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976), United States v. Wolk, 466 F.2d 1143 (8th Cir. 1972); United States v. Welsch, 446 F.2d 220 (10th Cir. 1971), the certificate process cannot serve its function unless the responsible prosecuting official makes a thorough and conscientious analysis of the case before deciding to appeal. The certificate is the official's representation that such an analysis has been made, and we must therefore require the certificates to be filed promptly.
It is unclear whether the § 3731 provision that pending a government appeal a defendant "shall be released in accordance with chapter 207" means that a defendant must always be released or instead incorporates, as appropriate, either the § 3146 discretion in unusual cases to impose conditions with which a defendant may not be able to comply, or the § 3148 discretion to refuse to release a defendant at all. Prior to 1968, § 3731 required the defendant to be "admitted to bail on his own recognizance." In 1968 Congress broadened the category of appealable orders and inserted the reference to chapter 207. See P.L. 90-351. See also H.Rep.No.90-603. In 1970 Congress again amended the statute, expanding the government's ability to appeal and providing that the section "shall be liberally construed to effectuate its purposes." See P.L. 91-644. See also United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). These changes tend to indicate the key phrase in the § 3731 release provision is "in accordance with chapter 207"; on that view the court would maintain its chapter 207 discretion in some cases to impose conditions with which a defendant could not, as a practical matter, comply. On the other hand, that Congress said "shall be released" rather than "shall be treated" in accordance with chapter 207 indicates that the key phrase may be "shall be released." Congress knew how to say "shall be treated" rather than "shall be released" when it wanted to avoid making release mandatory; when it made the § 3146 provisions applicable to some defendants while appealing their convictions, it said those defendants "shall be treated" in accordance with § 3146. See 18 U.S.C. § 3148. If the governing phrase is "shall be released", when the government takes a pretrial appeal the district court must release a defendant on his or her own recognizance or impose conditions with which a defendant can reasonably comply. The prosecutor must decide whether prosecuting the appeal, the effect of which is inevitably to interfere with a defendant's speedy trial interest, is sufficiently important to justify pretrial release.
We decline to decide which of these two interpretations is correct. The issue arose in this case because, as this opinion was being prepared, we received a copy of a letter Herman wrote the district judge protesting the delay in bringing him to trial. The letter indicated Herman is presently incarcerated, but our record is silent on his status. Herman may be incarcerated on additional charges, or the district court may have proceeded pursuant to 18 U.S.C. § 3146 to impose release conditions with which Herman has been unable to comply. As we have indicated, on one reading of § 3731 such conditions would be illegal. Because § 3731 deals only with release pending appeal, however, announcement of our decision will moot the issue. The parties have provided no guidance on the issue, and we are uncertain of Herman's status. Herman will benefit more from expedited rendering of this opinion than from any other steps that we could take. We therefore decline to resolve the § 3731 ambiguity at this stage of the proceedings.
The only difference between original rule 410 and the current rules that could bear on the issue before us is that original rule 410 made inadmissible any statements made "in connection with" plea offers, whereas rule 11(e)(6) and current rule 410 exclude statements made "in connection with, and relevant to" plea offers. In enacting rule 11(e)(6), however, Congress accorded no significance to the difference in terminology. See H.Rep.No.94-414 (thrice saying rule 11(e)(6) excludes statements made "in connection with" plea offers; nowhere referring to "and relevant to" phrase). The rule 11(e)(6) advisory committee notes simply cross-reference the notes to original rule 410; the terminology changes are not even mentioned. In addition, the legislative history of the law conforming rule 410 to rule 11(e)(6) accords no significance to the "and relevant to" phrase. See H.Rep.No.94-599. At any rate, we perceive no difference in the formulas; the same statements fall within both descriptions. The phrases "in connection with" and "relevant to" do not mutually cancel one another. Taken together, they are phrases of expansion, not restriction.