BOWNES, Circuit Judge.
Defendant-appellant Jose Rafael Perez-Franco appeals the sentence he was given pursuant to the new Sentencing Guidelines. He claims that the district court incorrectly calculated his offense level by refusing to give him credit for acceptance of responsibility as provided for under the Guidelines. We hold that a defendant needs to accept responsibility only for the counts to which he is pleading guilty. We remand.
The defendant was indicted on five counts: Count I charged conspiracy to deliver and possess with intent to distribute heroin; Count II charged delivery of heroin on October 16, 1987; Count III charged delivery of heroin on October 26, 1987; Count IV charged possession with intent to distribute one kilogram or more of heroin; and Count V charged possession with intent to distribute 100 grams or more of heroin. The defendant entered into a plea agreement with the government under which he would plead guilty to Count IV in exchange for the government dismissing Counts I, II, and III, and agreeing to recommend a sentence of ten years imprisonment, the statutory minimum, for Count IV. Count V had been dismissed prior to the plea agreement.
As part of the preparation for the presentence report, the United States probation officer asked the defendant to explain his involvement in the offense. The defendant responded that: "Wiley gave me heroin
During the sentencing hearing, defense counsel maintained that the defendant "should not disclose the information relating to Counts I, II, III and V because to do so would cause him to incriminate himself in a situation where we have a conditional plea agreement." He went on to argue that if the judge were "to reject this [plea] agreement out of hand today at sentencing, [the defendant] would have incriminated himself on counts in which he still maintains a not guilty plea." Defense counsel summed up his argument by stating that "the only thing [the defendant] needs to accept responsibility for is the count he's pleading on, unless he otherwise has some guarantee that he will never be prosecuted for the other counts in the indictment."
The government was in complete agreement with the defendant on this issue, and also urged the court to grant the defendant the two point reduction. At the sentencing hearing, the prosecutor asserted:
The prosecution also agreed with the defendant that the counts that they had agreed to dismiss as part of the plea negotiations "technically ... [were] still pending."
The district court rejected the arguments of both the defense and prosecution, and ruled that the Sentencing Guidelines required a defendant to admit responsibility for all his criminal activity, not just the counts to which he was pleading guilty, even if that meant incriminating himself on the other counts. The court reiterated this position on several occasions during the sentencing proceedings:
The court made its reasons for refusing the two point reduction very clear:
The district court, however, did acknowledge that there was some merit in the argument of the defendant and government that the defendant was not required to incriminate himself on the counts to which he was not pleading guilty, and that the issue could only be resolved by this Court of Appeals.
After the district court made clear that it was going to require acceptance of responsibility on all the charges in the indictment, not just the one that the plea agreement covered, the defendant, during allocution, did in fact accept responsibility for his acts in Counts I, II and III, as well as those in Count IV. The court, nevertheless, ruled that it would not reduce the defendant's offense level, and, using the Guideline level of 32, sentenced the defendant to 135 months imprisonment.
The defendant appealed on the grounds: (i) that the court had improperly applied the Sentencing Guidelines by denying him credit for acceptance of responsibility based on his statements concerning Count IV to the probation officer; and, (ii) that his in-court statement during allocution covering all the counts entitled him to credit for acceptance of responsibility.
II. THE SENTENCING GUIDELINES
We first look to the actual language of the Sentencing Guidelines. Section 3E1.1 deals with credit to be given a defendant for acceptance of responsibility:
United States Sentencing Guidelines, § 3E1.1 (January 15, 1988) (emphasis added).
This current version was amended from the previous version of October, 1987, in which subsection (a) stated that the defendant had to accept personal responsibility for "the offense of conviction," rather than for "his criminal conduct." The district court ruled, and the government now argues in this appeal,
We find that the Sentencing Guidelines cannot be interpreted to mean what the government now urges. If a defendant's "criminal conduct" is interpreted to mean literally "all of his criminal conduct," then not only does it include counts for which he was indicted and to which he has not pleaded guilty, but also must include criminal activity relating to the current offense for which he may not have been indicted, as well as any past criminal conduct. This reading could not possibly have been what the drafters intended. Nor can we accept the government's argument that "criminal conduct" means "all criminal conduct," while at the same time limiting "all criminal conduct" to mean only that included in the original indictment. The government has offered us no reason to adopt this particular interpretation — in our view, a strained one — of "all criminal conduct."
Once "criminal conduct" is seen as not meaning literally "all criminal conduct," then the basis for the government's position disappears, and we are left to appropriately interpret the Guideline's meaning. We conclude that the only plausible reading of the Guidelines for cases in which a plea agreement has been made, is that "acceptance of personal responsibility for his criminal conduct" means the criminal conduct to which the defendant pleads guilty. In the instant case, this means that the Guidelines require acceptance of responsibility for the criminal conduct which forms the basis of Count IV of the indictment.
Moreover, while there is surely merit to the argument that the drafters amended the original wording for a reason, we do not believe that the only possible reason is the one advanced by the government — that it was done to ensure that a defendant accept responsibility for all of his alleged criminal activity, as opposed to just the counts to which he is pleading guilty. An equally plausible rationale for the amendment is that the original "offense of conviction" language was believed to be ambiguous, because on its face it implies the restrictive interpretation that a defendant actually had to be tried and convicted of an offense. Such a reading would incorrectly exclude guilty pleas, where no trial occurs. It is instructive to take cognizance of what the Sentencing Commission itself had to say regarding the amended wording: "Section 3E.1(a) is amended by deleting `the offense of conviction' and inserting in lieu thereof `his criminal conduct.' The purpose of this amendment is to clarify the guideline." Appendix C: Amendments to the Sentencing Guidelines Manual of October 1987. (Emphasis added). This is the only comment we could find on the reasons for the amendment. There may have been clarifying reasons other than the ones discussed above, but we have been unable to think of any.
III. POSSIBLE USE OF DEFENDANT'S STATEMENTS IN FUTURE TRIALS
The defendant argues that if he had answered questions regarding acceptance of responsibility for the unpled counts, he would have incriminated himself and that his statements could have been used against him in a subsequent trial. The government's current position is that while it is true that other counts against the defendant were still pending at the time of the interview with the probation officer, it is at best a technical argument because the government had agreed to dismiss those counts at the time of sentencing. We find
Not only is it error for the government to ignore the chances of a plea bargain falling apart, it is equally erroneous for it to fail to acknowledge that certain statements made by the defendant during plea negotiations are admissible in other litigation. It is well established that statements made for the purpose of one case are not necessarily immunized from use in other trials. For example, unwithdrawn guilty pleas in a state court have been admitted for their evidentiary value in subsequent federal prosecutions involving the same event. See J. Weinstein & M. Berger, Weinstein's Evidence, ¶ 410 at 410-47 (1988). And statements relating to guilty pleas made in one state court can also be used in trials in a different state. See, e.g., United States v. Benson, 640 F.2d 136, 138 (8th Cir.1981) (statements made in connection with a guilty plea in a Texas district court were admissible in trial in a North Dakota district court). Moreover, statements made in connection with criminal pleas might be able to be used in subsequent civil proceedings. See Weinstein, ¶ 410 at 410-44.
Since statements made in plea negotiations may be admissible in other litigation, we must inquire whether statements made to a probation officer in preparation for a presentence report are admissible. We conclude that Fed.R.Evid. 410
Thus, while the cases do not specifically address the question of whether, under Rule 410, a defendant's comments to a probation officer for his presentence report are admissible in subsequent proceedings, the cases are unambiguous that any statements made by the defendant relating to plea negotiations must be made to the prosecuting attorney himself in order to be protected. Rule 410, therefore, would appear to offer a defendant no automatic protection from self-incriminating statements made to a probation officer concerning counts which are to be dropped as part of a plea agreement, should the plea agreement fall through.
IV. FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
Because the federal rules do not explicitly proscribe use in subsequent trials of self-incriminating statements made by a defendant to a probation officer concerning crimes to which he is not pleading guilty, we must ask if there are any constitutional provisions which would bar the solicitation or use of such statements under the circumstances of this case.
If, however, a person chooses to answer, it is deemed voluntary because he was free to assert the privilege and would suffer no penalty by so doing. See Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984). Thus, if a person "desires the protection of the privilege, he must claim it or he will not be considered to have been `compelled' within the meaning of the Amendment." United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376 (1943). The key to this general rule, that the privilege must be claimed when self-incrimination is threatened, is that no penalty accompany the assertion of the privilege. If, however, some identifiable factor is held to deny the individual a "free choice to admit, to deny, or to refuse to answer," that is, if the assertion of the privilege is penalized so as to "foreclos[e] a free choice to remain silent, and therefore ... compe[l] ... incriminating testimony," Garner v. United States, 424 U.S. 648, 657, 661, 96 S.Ct. 1178, 1186, 1186, 47 L.Ed.2d 370 (1976), then the general rule is no longer applicable. See also Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166 (1941). In such situations the incriminating disclosures are considered compelled, despite a failure to claim the privilege. See Garner, 424 U.S. at 656-57, 96 S.Ct. at 1183-84.
There are a series of such "penalty" cases, in which the government tried to induce a person to waive his fifth amendment privilege by threatening him with economic or other sanctions. The Supreme Court has repeatedly held that such penalties are unconstitutional. In Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967), the Court held that in the context of threats of removal from office, a police officer's potentially incriminating responses to questions concerning police corruption were not voluntary and did not constitute an effective waiver of the privilege against self-incrimination, and that "the protection of the individual ... against coerced statements prohibits [their] use in subsequent criminal proceedings." A free choice to remain silent had been foreclosed, and the penalty of discharge had the effect of compelling self-incriminating testimony. In Garner v. Broderick, 392 U.S. 273, 278-79, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the Court concluded that the state had attempted to coerce a waiver of a police officer's fifth amendment privilege on the penalty of loss of employment, and held that he could not be terminated for refusing to waive his constitutional privilege. In Uniformed Sanitation Men v. Commissioner of Sanitation, 392 U.S. 280, 284, 88 S.Ct. 1917,
Thus, the Supreme Court repeatedly has made it quite clear that the government cannot impose penalties because a person elects to exercise his fifth amendment right not to give incriminating testimony against himself. As was summed up in Cunningham, 431 U.S. at 806, 97 S.Ct. at 2136, the cases "settle that government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony which has not been immunized."
Yet, that is precisely what the government is urging us to do in its interpretation of the Sentencing Guidelines in the instant case. The government maintains that the Guidelines require a defendant to make self-incriminatory statements concerning criminal charges which are to be dismissed as part of a plea agreement. If the defendant does not make such statements, he will suffer the penalty of not receiving a reduction in his offense level, resulting in a longer prison sentence. There are no guarantees given the defendant that such statements will not be used against him in subsequent proceedings. Such a situation is indistinguishable from the cases discussed supra in which the Supreme Court has ruled that the imposition of a penalty to compel non-immunized testimony is a violation of the fifth amendment. Clearly, a defendant does not have "a free choice to admit, to deny, or to refuse to answer" if he knows he will be incarcerated for a longer period of time if he does not make the incriminating statements. The touchstone of the fifth amendment is compulsion, and the Supreme Court has recognized that imprisonment is one of a wide variety of penalties which can serve to trigger a constitutional violation. See Cunningham, 431 U.S. at 806, 97 S.Ct. at 2136 ("direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the [Fifth] Amendment forbids").
Thus, the interpretation urged upon us by the government would make the acceptance of responsibility section of the Sentencing Guidelines unconstitutional. We conclude, however, that the Guidelines represent a very different mandate from the one currently espoused by the government. Given both the language of the Guidelines and the constitutional restrictions, the acceptance of responsibility section can only be interpreted to mean that a defendant who has made a plea agreement must accept responsibility solely for the counts to which he is pleading guilty.
V. TIMELINESS OF ACCEPTANCE OF RESPONSIBILITY
The defendant makes the additional argument that he in fact did accept full responsibility for all the counts in the indictment, not just the count to which he pled guilty, during allocution in the sentencing proceedings. The judge, however, did not find these statements satisfactory, presumably because they were made too late.
On the issue of timeliness, we hold that the district court judge has substantial discretion. This conclusion is supported by the Commentary Notes accompanying the Acceptance of Responsibility Section of the Sentencing Guidelines which state that: "1. In determining whether a defendant qualifies for this provision, appropriate considerations include, but are not limited to, the following: ... (g) the timeliness of the defendant's conduct in manifesting the acceptance of responsibility."
The claim that the defendant's acceptance of responsibility during allocution requires the district judge to give the defendant the two point reduction, is not supported by the apparent intent of the drafters. We conclude that while the district court could have granted the reduction to the defendant based on those statements, it was not required to do so, because the statements were made at the very end of the proceedings.
Thus, any reduction in the offense level in the instant case must be based upon the defendant's acceptance of responsibility for Count IV.
Given both the language of the Sentencing Guidelines and the many Supreme Court decisions proscribing threats of penalties for the exercise of fifth amendment rights, we hold that a defendant cannot have a reduction in sentence predicated upon his making self-incriminating statements relating to counts to which he has not pled guilty and which are to be dismissed as part of a plea agreement.
It is not clear from the record of the sentencing hearing whether the district court found that defendant's statement to the probation officer constituted an acceptance of responsibility as to Count IV. We, therefore, remand to the district court which shall first determine if defendant accepted responsibility for Count IV. If the court finds that the defendant did, then he shall be entitled to the two point reduction.
The judgment of conviction of the district court is affirmed and the case is remanded to the district court as to the sentencing in accordance with the opinion filed this day.
It should be noted that Fed.R.Evid. 410 conforms to Fed.R.Crim.P. 11(e)(6).