United States v. John A. Geders

FAY, Circuit Judge: After remand from the United States Supreme Court,1 the defendant-appellant, Geders, John A. was tried with several co- defendants and was convicted of conspiracy to import marijuana, importation of mari- juana, and possession marijuana intent to distribute in violation of 21 U.S.C. 952(a), 960(b), 841(a)(1). §§ and Geders tes- tified in his own behalf at the trial and raised the defense of entrapment. permitted to cross-exam- ine Geders and to introduce rebuttal testi- mony concerning post-indictment ments made by Geders at a meeting with the Assistant United States Attorney and investigators federal in May, 1978 in order to establish his predisposition engage narcotic-related activities and to attack his credibility as a witness. Geders vigorously objected to the use of statements him during this meeting on ground such statements were the ear- ly stages bargaining process. We have concluded that the trial court erroneously permitted use of statements made Geders during the meeting May 1973, and because introduction of these beyond harmless a rea- doubt, sonable we remand the case to the trial court for further proceedings consist- ent opinion. with this

I. FACTS facts, light considered most favorable to the government, Glasser v. Fla., Levine, for de- Tampa, Arnold D. States, 60, 457, 315 62 U.S. S.Ct. fendant-appellant. (1942), L.Ed. 680 indicate that the defend- ant Geders was involved in a conspiracy Jacksonville, Briggs, Atty., John L. U. S. Randy Kilgore, James Mahoney, Mi- Fla., Anthony Atty., J. Asst. LaSpada, U. S. Fink, Fink, chael Stephen Fred and Patrick Fla., Tampa, plaintiff-appellee. transport quantity substantial of mari-

juana into the United States from Colom- bia, South America. Formation con- spiracy and acts furtherance thereof took BROWN, DYER, Judge, place 1, 1972, Before Chief September between and No- FAY, and Judges. 26, Circuit vember arising 1. The defendant’s first conviction from assistance of counsel in violation of the Sixth States, the facts of this case was reversed Amendment. Geders v. United Supreme deprived (1976). Court because he was 47 L.Ed.2d 592 indictment at place took after of 1972 November During October represented by a time when Geders was traveled conspiracy in the participants counsel, present was not attorney Florida, to Jacksonville Tampa, Blasingame insistence.2 informed Geders Florida, Beach, ready plans Daytona rights govern- of his Miranda also marijuana. Geders importation of the of ment wished to discuss activities America, Colombia, to meet South to flew and did not wish to discuss Pedro Alvarez abroad, who Davilla, contact the with Pedro pending Specifically, case. Blasin- Geders’ fugitive and a citizen Colombian was a “there would be informed Geders that game In late jurisdiction. from United States any to no discussion about matters related Randy Kilgore early November October to pending case.” Geders then related the David Butler named an individual met with to investigators the that he had traveled Florida, Butler agreed pay Miami, in and bills into small large New York to convert plane to $10,000 a small pilot if he would a Porsche Alvarez and that title to bills for marijuana. the Unbe- pick up Colombia by owned Alvarez had been automobile Butler was conspirators, knownst placed in his name. in- immediately and informant proposed behalf, formed Customs officials his testifying Prior to on own in cooperate plan. Butler instructed to exclude Geders moved limine informed. keep the and Customs plan concerning statements cross-examination plane the conspirators agreed The May the of by during meeting him 26, Tampa on November depart from ruling 1973. The court deferred on Acres, Flor- 1972, Lehigh and would land completion motion until of direct examina- ida, day from tion, the same return later in which Geders set forth the defense of The then entrapment. Colombia. denied Ged- ers’ and cross-examina- permitted motion Tampa ap- departed from plane The concerning by tion statements made him 26, on November 5:00 A.M. proximately jury as evidence for during meeting 1972, Mahoney ac- and James with Geders the issue of whether regarding to consider Butler, pilot-informant. companying to commit possessed predisposition Geders Colombia, and, after load- flew to plane attack his the offenses in marijua- pounds 1000 ing approximately permitted the credibility. The court also between 8:00 na, Lehigh Acres returned to to introduce rebuttal evening of P.M. and 9:00 P.M. Attorney Assistant United States Blasin- en route plane While 26th. game Special Agent concerning Hudson surveil- Colombia, began officials Customs statements made May, Geders at Acres in Lehigh area at landing lance of 1973, meeting. the contraband for seizure preparation upon their return participants and the II. MERITS were conspirators All of the Columbia. following day.

custody appeal vigorously have parties to this contention Geders, Assistant contested meeting between permitting the court erred in Blasingame, the district Attorney Oscar United States discussions, and Miller, clash plea-related Hud- use of officer Lowell Charles Customs Alcohol, Tobacco, applicability head as the Bureau of son of Herman,4 Firearms, government of- v. New York3 United States and certain Although May of the Federal Rules Crimi- place took and Rule 11 ficials attorney present voluntarily counsel, not opine Geders did want his be- waived might danger argument cause he feared that he if waiver of counsel does not relate to attorney meeting primary knew since he be- issue before this court. attorney represented lieved also Pedro 30 L.Ed.2d 427 Alvarez, primary whose activities were the (1971). govern- subject discussion. ment endeavors establish (5th 1977). 4. 544 F.2d 791 facts of this nal Procedure5 to the Court further stated that whether core, government’s pared during When are made the plea bar- the' argument gaining process is that statements is not to be determined meeting May defendant at the according hypertechnical distinctions and the statements are admissible because that the defendant need not accompany all to a in connection with nor relevant admissions with a “preamble explicitly de- guilty, and that no plead or an offer to marcating the beginning of plea discus- with the defendant agreement was struck sions.” Id. at 797. use of state- prior to As Judge Goldberg aptly so stated: meeting. It ments made If Congress had wanted teachings analyze necessary closely formalized, to be structural, ritualized or assessing before of Herman and Santobello the rules could have provided. so But contentions. parties’ the merits of the Congress, believing plea bargaining is a necessary ingredient in pros criminal Herman, confronted this court was In ecutions of the magnitude face, we want 11(e)(6) of whether Rule with the issue of ed an freely accused to discuss his her or Procedure Rules of Criminal the Federal plight, the probability punishment and statements construed to exclude should be possible the range Having thereof. em postal to by made an accused murderer route, barked on plea bargaining the Con plead that he to the effect would inspectors gress did not intend the accused to be gun if produce and guilty robbery convicted by bargaining words Con dropped.6 charges would be the murder gress had or encouraged him her to utter. Herman, as in case at The focal issue We cannot Congress ascribe to inten any bar, was whether tion to sandbag an accused in his or her and relevant in connection with ments were plea bargaining govern sessions. The Judge plea bargaining process. ment, as one of dancing partners, Goldberg, opinion in his well reasoned held7 should not be able to lead its partner to a

that: trap door on the dance floor. Id. at 798. . Statements are inadmissible if made at any point during a discussion The supporting rationale a liberal inter- in which the defendant seeks to pretation obtain plea bargaining when com- concessions government from the justified mences is by re- the desire to encour- turn for a plea. age 544 F.2d at free and candid discussion between the inspectors 5. Rule 410 of the Federal Rules of Evidence is could not have been in connection wording. provide: identical These rules plead guilty an offer to because the in- spectors authority Except negotiate lacked provided para- as otherwise such a plea. rejected graph, guilty, government’s plea evidence later with- of a ar- gument contendere, drawn, holding plea dispositive or or of a of nolo an issue is plead guilty perceived whether offer to or nolo contendere to the defendant crime, charged any possessed crime or other or of state- negotiating officials au- with, thority ments made in connection and relevant they actually and not pos- whether to, offers, any foregoing pleas authority. or is not opine sessed such it can any proceeding disputed admissible in civil or criminal not perceived be that Geders that the against person plea who made the or Attorney possessed Assistant United States au- However, offer. evidence of a thority statement negotiate. with, to, made in connection relevant withdrawn, plea guilty, plea later of nolo Judge Gee, specially Herman, concurring contendere, plead guilty or an offer to or nolo Judge Goldberg’s stated that much of majority charged contendere to the crime opinion pure is express dicta. we no crime, proceeding is admissible in a criminal opinion validity Judge Gee’s assess- perjury or false statement if the state- Herman, majority opinion ment of the we oath, by ment was made the defendant under accept Judge Goldberg’s language because his record, presence and in the of counsel. reasoning compelling is and because the issue by argued contrary hand has not in Herman been foreclosed authority. postal statements made the defendant prevent during accused and the the defendant course made trap as a being used the de- conditioned plea negotiations are mind, goals With these unwary. he has receiving that which bar- fendant when say that Herman to interpret we gained for. discuss and the defendant apply is to The task now at hand entertaining activities, each side criminal the law to the facts of this ease. At quo, quid pro receive the desire outset, govern confronted with the are its own risk so at does ment’s contention that because Geders did not will made statements not at the actually plead guilty offer trial. The him at be admissible 11(e)(6) nor meeting Herman Rule bargain- neither contention government’s evaluated Rules of Criminal Procedure be the Federal commenced not ing has prose- of “caveat case. We hold that this applicable the standard to this according to is without merit because we do cutor”.8 contention line so not choose to draw the hard ex- in Santobello Court Supreme To fast. hold that promises recognized pressly govern Accord, fulfilled. must only plea-related if the ment officials are (5th Millet, 559 F.2d 253 States actually offers enter a Santobello, 1977). In encourage charges “shouted offer gambling two was indicted guilty. pleas of “after the horse is out plead”9 only entered which he Attorney agreed then Judge District by Assistant barn”10 Gee in his denounced plead guilty to would if the defendant that in Herman and the concurring opinion prosecutor the offense a lesser-included importantly, brief. More government in its no recommendation make would holding such a would elevate form over to the Pursuant imposed. be sentence substance. the facts of Santobel withdrew his agreement guilty plea, lo an the likewise evince actual guilty to plea of and entered guilty pleas holding of that the sentenc- offense. At the the lesser-included the is its defend agreement bound the replaced prosecutor a new ing hearing, the regardless ant should whether apply Attorney recom- District Assistant plead guilty. offered to has sen- sentence. maximum the mended Having concluded that statements sen- the maximum imposed tencing judge protected by can be made sen- that the record tence, stating on the the forbidding rule the use of statements the independent of arrived tence was during plea bargaining though even Notwith- recommendation. prosecutor’s plead appears no in the actual offer judge the trial effort standing the record, to the we turn whether promise, broken of the the effect alleviate pro are entitled to such Geders’ statements judgment vacated the Court Supreme the disputed tection. It can not Geders court the state case to and remanded meeting with the attended the desire specifi- The court proceedings. for further something receive in return for infor makes if cally held government. he mation to the supplied in a which result inducements concerning is the nature of promises record unclear fulfilled. must be to the defendant carrot held out as promises guilty plea, law as government’s rule of witnesses is this underlying premise event, it is not our dispute,11 but admissions it, is that all we understand phrase by my Attorney coined learned col- This Assistant United States Blasin league, Judge Goldberg, game willing at 544 F.2d 796 and to dis testified that Geders was prosecutor beware.” Alvarez “let the cuss activities Pedro because means avoid indictment for these Alva he wanted to F.2d at 800. 9. 544 Blasingame rez-related further testi activities. promises fied that no Geders Id. other than there would be no discussion dispute. It this factual to resolve duty connected with and relevant however, to determine responsibility, our bargaining process they are within the had commenced. whether ambit of 11(e)(6) Rule of the Federal Rules so, inculpatory If the defendant’s of Criminal Procedure as interpreted in this inadmissible ments are Herman.12 The application of meeting exacting with the more standard attended could greatly Geders de- in re- receiving something expectation utility crease the of the plea bargaining willing the information he was turn for process, recognized in Santobello as being evidence in the give. There is insufficient an component essential of the administra- the likelihood that dispel record to justice. tion of criminal We therefore con- have reduced clude district court permit- erred in or even dropped Geders charges against ting use of Geders’ statements as these he suffi- altogether provided if had charges statements were any pur- inadmissible for good against to build evidence cient pose in this case.13 Alvarez. Customs officer Miller testified conclude that even if we were We further he one of understood Geders’ motives position to take the that Geders’ statements attending meeting help to be to and relevant were not connection with pending in his case. With this fac- himself conviction plea bargaining, mind, tual it clear that setting must be reversed because the the admissions elicited Santobello principle violated the basic give- in the against were utilized Geders using against his statements him. The negotiating and-take room. We government acknowledged in their brief to use require refuse to and at the trial with Ged- beginning preamble to demarcate arranged per- ers was so that information clearly This de- plea bargaining. taining activities of Pedro Alvarez nounced in Herman. Measured acquired. could be wanted prosecutor, caveat standard of conclude the investigatory process by short-cut were sufficiently that Geders’ statements taking advantage the information Geders 11(e)(6) pending officer Miller testi his case. Customs Crim.P. inadmissible and Fed.R.Ev. 410 render specifical testimony although relating nego- he could not recall fied that ly such tiations, negotiations prior if the promised to the meet fail and the he Geders de- what goes fendant anything, practice trial. 560 F.2d at 651. ing, to in his usual if although cooperating defendant that form the government’s argu- 13. We find no merit in the any promises, the defendant’s couldn’t make he ment that the statements are admissible for cooperation to the Unit would made known impeachment purposes under Harris v. New Attorney’s Contrary office. to Bla ed States York, 28 L.Ed.2d 1 understanding why singame’s as to Geders was (1971), progeny. only and its The instances in Alvarez, willing his to discuss activities plea-related which are Rule statements are admissible testified that he understood Geders’ mo prescribed Miller 11(e)(6). in Fed.R.Crim.P. First, be two-fold. Geders wanted provides pertinent tivation to to part: in case, pending help 'and himself out in his However, . . . evidence of a statement second, against Al wanted to retaliate Geders with, to, made in connection and relevant a falling out which had occurred varez due between plea contendere, guilty, withdrawn, of later a of nolo his them. testified that sole Geders plead guilty or an offer to or nolo help his himself out in motivation was to present charged any contendere to the crime other crime, case. proceeding admissible in a criminal perjury for ment was made or false statement if the state- States v. recent case of United 12. This court’s oath, the defendant under Robertson, (5th 1977), is 560 F.2d 647 Cir. record, presence and in the of counsel. inculpatory distinguishable because the Nor can the find solace in the Robertson in ments made provision proposed broader Rule 410 of the leniency obtaining purpose for a were for the third supersed- Federal Rules of Evidence which was party and not for the defendant. 11(e)(6) ed Rule of the Federal Rules of in connection with thus were not statements and relevant to Criminal Procedure and never came into effect. bargaining. court did This Martinez, See United States v. 536 F.2d 1107 recognize that: in Robertson (5th 1976). enters into In situations where the plea, Fed.R. negotiations about his own statements, we cannot conclude meth- supply. This is a commendable Geders’ could bar, testimony alone would be suffi- but, as in case at is often that this od entrapment government making upon conditioned cient to rebut stated, in return. As we have concessions defense. in dispute precise

the evidence is as has raised several The defendant inducement, any, if offered to nature of the He appeal. this contends other issues in dispute, not does Geders. in denying district court erred his however, promised that Geders deposition of pretrial to take the motion would not be discussed at the case pending resided outside United firmly opinion that witness who meeting. We are case, States, him refusing permit present in the facts wherein under with the and in testimony, denying met Assistant surrebuttal in- Attorney to alleged prosecu States for mistrial due motion giving infor- purpose vestigators failing produce ma misconduct in torial wanted which mation Randy bearing Kilgore’s terial status as pro for a compelling Way quid return informant. The crux of this confidential promising pending him his quo, that is that he was deprived final contention indistinguishable not be discussed Kilgore. cross-examination of We effective says he anything him promising in defendant’s contention that find no merit against will not be used him at the refusing his mo court erred district left Santobello in order to take the tion for continuance binding prom- as nature of no doubt not de deposition. need reach pretrial in return ises made that the district court fendant’s contention The rule of dic- guilty plea. refusing permit present erred in likewise be tates as have deter we surrebuttal by its statements made promises bound made Geders mined that the statements defendant will be used by the inadmissible, course, will like merely application This is of San- him. proceedings. further wise be barred setting in a factual divorced from tobello opinion Finally, express no plea bargaining the confines of and serves alleged to make the disclosure as to failure promote fairness in administration of Kilgore’s as a confidential informant status justice. criminal as the defendant now has access and will have this ma material sup We are mindful that the record terial available remand this case. a factual ports finding Assistant Unit Blasingame went Attorney ed States CONCLUSION informing Geders the formal act through However, we refuse court com- rights. the district of his Miranda conclude that We consist conduct governmental permitting to sanction error mitted reversible (that nothing giving promise of a statements ing of the of the defendant’s introduction says plea-related, will be used the defendant the statements because which, by a ritualistic him), second, government when followed violat- because retraction, using said places duty under ed its win, you Accordingly, tails lose.” of “heads we position at trial. is reversed defendant judgment against error say that the simply cannot a new trial. case is remanded and this harm court was by the district committed & REMANDED. REVERSED within reasonable doubt beyond less California, Chapman meaning dissenting: DYER, Judge, Circuit Senior (1967). 17 L.Ed.2d dissent. I respectfully reflects the record defendant, situation unique In this testimony introduced at appeared indictment, voluntarily matter contained after subject concerning the To office, voluntarily transpose given by waived the information prosecutor’s counsel, and the defendant not at time after was his .presence proceedings relevant to these voluntarily gave plea infor- to a bar- warning, Miranda gain unre- that would bar the information when concerning his activities in an mation attempted it was elicited because it would incrimi- matter criminal lated became relevant rebuttal evidence when the (Alvarez) who the party third nate a entrap- the defense of None invoked prosecute. about is, put credibility ment and his in issue by the defend- disclosed information of, my opinion, an unwarranted extension time, prose- relevant was, at that ant perhaps In or obliterates standard for this case. cution .the bargaining. attorney refused fact, this case that bore anything discuss unwilling holdings I am to stretch the information be- the defendant. factually dissimilar cases of Santobello relevant, trial, however, because came precise and Herman to the raised issue here. entrap- the defense of raised the defendant The focus in Herman centered on conces- was incon- his and because ment sions from the-government in return for a statements, thus rais- prior his sistent It plea. nothing had to do with a defend- credibility issue. ing a ant who insists objects on a trial and then suggestion admissible, evidence which is made not one iota of not to There is prove guilt, but to bargaining in this rebut his claim any plea there was innocent made a tentative involvement and credibility. never The defendant during to or plead prior firm offer As the majority recognizes, in Santobello indeed, formal conference, during the Court held if the for a agreement trial no before makes promises which result in a guilty prosecutor reached. plea was plea, the promise must be fulfilled. The beginning very adamant from properly premise, drawn by the majority is sound “ would . . that we . of the conference only if my parenthetical interpolation is to do with whatsoever anything not discuss it, read into “that all admissions made by The most . . ..” particular negotia- course of view of the defendant’s charac- charitable guilty tions are plea] conditioned [for by being intentions is terization of his upon the defendant receiving that which he about his giving information helpful bargained for.” In the case, context of this in an unconnected dealings with Alvarez there negotiations were no guilty plea. for a case. The help him in this matter it could Moreover, party neither at the time of the there no evidence majority votes that conference considered the information that to discuss this that the offered the defendant disclosed to be relevant to his case, defend- undisputed and it is guilt or innocence. It became relevant only position ant never wavered in his steadfast when the defendant chose to raise the issue We are thus left go that he would to trial. of entrapment put credibility thought the speculate how the line. Once the defendant took this tack it help him this case information would pervert justice permit him to testi- helped well have (although might it fy inconsistently or even perjuriously with- charges being extricate himself out the risk of confrontation and thus be in unrelated Alvarez an co-conspirator with position to withhold the full facts from inference most favorable proceeding). jury’s consideration. is for the defendant may be drawn factually even analogous In an but at the Judge tell the that someone would judice stronger case than one sub if, as and when the sentencing, time of Court said: case, this defendant was convicted in he with the authorities con- cooperated had to thing say It is one Govern- of another cerning prosecution an unrelated cannot make an affirmative use of ment individual. unlawfully quite evidence obtained. It is

1235 can as a status confidential informant was to say another government making which evidence cured illegal available method turn the the material the course possession Government’s in the time pro- of the trial and in for the defendant advantage, and own to his obtained Decker, fully utilize it. States v. contra- 5 with a shield himself vide 1976, 1102, 543 F.2d untruths. of his dictions letting hardly justification is judgment I would affirm the [TJhere convic- per- affirmatively resort tion. in reliance jurious challenge his disability

Government’s FOR REHEARING AND PETITION ON credibility. PETITION FOR REHEARING EN BANC States, 1954, 62, v. United Walder 356, 354, 98 L.Ed. 503. 65, 74 S.Ct. BROWN, Judge, Before Chief THORN- Judge expressed view agree with the I BERRY, COLEMAN, GOLDBERG, AINS- mo- defendant’s he denied the Young when WORTH, GODBOLD, MORGAN, CLARK, is any there limine. He said tion “[I]f RONEY, GEE, TJOFLAT, HILL, FAY, the administra- govern that must principle VANCE, RUBIN Judges. Circuit out. truth must it is that the justice, tion permits indirectly directly If the Court BY THE COURT: to the trier of go knowingly falsehood majority A the Judges in active justice facts, then administration service, motion, on the Court’s own hav- it is point distorted has been ing this determined have case reheard simply This is. completely ineffective.” banc, en princi- the well established reaffirmation IT ORDERED that IS cause shall privileged is “Every defendant ple that be reheard the Court en banc with defense, or refuse to do testify in his own argument. oral will specify Clerk privilege cannot construed so. But briefing filing for the of sup- schedule right perjury.” commit to include plemental briefs. York, 222, v. New 1971, 225, Harris 401 U.S. 643, 645, are, 1 for 28 L.Ed.2d “[w]e all, always engaged after in a search long a criminal so as the

truth in safeguards

search is surrounded with Oregon v.

provided our Constitution.”

Hass, 1975, 714, 722, 1215, 95 U.S. S.Ct.

1221, 43 L.Ed.2d 570. WILSON, Plaintiff-Appellant, M. John majority that there is agree I no v. contention that merit defendant’s INVESTMENT FIRST HOUSTON the denial of his motion there was error in al., et CORPORATION convinced that for continuance. I am also Defendants-Appellees. the district argument No. 75-3422. refusing discretion court abused its surrebuttal evidence present Appeals, United States Court permit trial is within the groundless. Fifth Circuit. “[I]t deny petitioners sound discretion to court’s 2, Feb. witness, right to a rebuttal Rehearing En Banc Rehearing find no abuse of discre- record us we before March Denied Hauck, 5 Cir. Hampton tion.” F.2d 389. say fail-

Finally, enough it Kilgore’s

ure to disclose

Case Details

Case Name: United States v. John A. Geders

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 31, 1978

Citation: 566 F.2d 1227

Docket Number: 77-5037

Court Abbreviation: 5th Cir.