United States v. Frederick Sellers

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1939
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UNITED STATES OF AMERICA
v.
FREDERICK SELLERS,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 10-cr-00434-001)
District Judge: Honorable Renee M. Bumb
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Submitted Under Third Circuit LAR 34.1(a)
September 25, 2012
Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges.
(Filed: October 17, 2012)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Frederick Sellers appeals the judgment of the United States District Court for the
District of New Jersey sentencing him to 188 months‟ imprisonment and 5 years‟
supervised release based upon his conviction for conspiracy to distribute five kilograms
or more of cocaine. For the following reasons we will affirm.
I. Background
After being charged with drug-related offenses, Mario Estrada- Espinosa and Jose
Luis Grimaldo-Valencia cooperated with the government by indentifying Sellers as a
drug trafficker who purchased large amounts of cocaine from them. Their cooperation
resulted in Sellers‟s arrest.
Shortly thereafter, Sellers participated in a proffer session with the government,
agreeing in advance that “[t]he government [could] use [his] statements and any
information provided by [him] to cross-examine [him] and to rebut any evidence or
arguments offered on [his] behalf” in any subsequent trial. (Supp. App. at 109.) During
that meeting, the government and Sellers‟s counsel were aware that Espinosa had fled the
country and would therefore be unavailable to testify at Sellers‟s trial. Sellers, however,
claims to have been unaware of that fact. Indeed, although his lawyer had sent him a
letter before the session informing him of Espinosa‟s unavailability, Sellers testified that
he did not receive the letter until after the session had concluded.1 Sellers testified that he
would not have participated in the proffer session had he received that letter in time, as
knowing that Espinosa would be unavailable to testify against him would have made him
think that he could “buil[d] a defense.” (Joint App. at 94.)
1
Sellers‟s counsel testified that he never verbally told Sellers that Espinosa had
left the country because he mistakenly believed that Sellers would have received the
letter before the proffer session. (See Joint App. at 74 (“I[] unfortunately [and]
incorrectly[] assumed that the letter that I had mailed to [Sellers] … would more than
likely reach him prior to the proffer[,] and … I … continued to go forward with the
cooperation.”).)
2
Even after learning that Espinosa had absconded, however, Sellers chose to meet
with the government for a second time.2 At that meeting, the government indicated its
intent to file a complaint requiring Sellers to forfeit a truck that he had used to commit
the crime for which he was charged, leading Sellers‟s counsel to believe that the
“forfeiture of the truck” was “one aspect in addition to other aspects that were being
discussed in connection with [a] cooperating plea agreement.” (Id. at 30.) Subsequently,
with the deadline to file the forfeiture complaint approaching, the government requested
Sellers‟s assent to an extension of the time to file the complaint seeking that relief.
Although Sellers‟s counsel communicated to Sellers that his refusal to consent to the
extension could “be a deal breaker in light of other issues that were ongoing with
cooperation” (id. at 37), Sellers ultimately rejected the government‟s request.
The government then ceased plea negotiations and indicted Sellers. Sellers, in
turn, filed a motion to dismiss the indictment for prosecutorial vindictiveness, asserting
that his refusal to consent to the extension of time to file the forfeiture complaint was the
sole reason the government decided to cease negotiations and indict him. Although he
“concede[d] that there[] [was] no presumption of vindictiveness” under the facts of his
case,3 he claimed “that the prosecutor‟s decision and the facts [of his case] support[ed]
actual vindictiveness.” (Id. at 117.) The District Court rejected that contention,
2
Sellers testified that he continued to cooperate with the government because his
lawyer advised him that, by participating in the first proffer session, his “back was
against the wall” and “there was no turning back.” (Joint App. at 95.)
3
As discussed infra in Part II.A, “certain prosecutorial conduct raises a
presumption of vindictiveness, which may then be rebutted by the government.” United
States v. Spears, 159 F.3d 1081, 1086 (7th Cir. 1998).
3
concluding that “Sellers … failed to provide [the] Court with evidence of actual
vindictiveness on the part of the government.” (Id.) To the contrary, as the Court
pointed out, Sellers‟s “failure … to merely agree to extend the time to file a forfeiture
complaint demonstrated [that he] … was not willing to cooperate” with the government
at all. (Id. at 118.)
After denying Sellers‟s motion to dismiss, the Court turned to address the
government‟s request for “a ruling on the admissibility of [Sellers‟s] statements for
rebuttal purposes at trial should [Sellers‟s] testimony or … arguments … contradict any
statements [Sellers] made during the[ ] two proffer sessions.” (Id. at 121.) Recognizing
that Sellers had waived his right to preclude such statements from being used against
him, the Court considered whether the waiver was knowing and voluntary. Although
Sellers had testified that “he felt intimidated,” “did not understand the risks” of the
agreement, and “would not have proffered” if he knew Espinosa was not available to
testify at his trial, the Court found Sellers‟s testimony was not credible and concluded
that his waiver was, in fact, knowing and voluntary.4 (Id. at 123-24.)
Sellers‟s case went to trial, and the jury found him guilty on the sole count in the
indictment. The District Court sentenced him to 188 months‟ imprisonment and 5 years‟
supervised release.
This timely appeal followed.
4
Despite the Court‟s ruling, the government never had occasion to use Sellers‟s
statements against him when his case went to trial, and the jury therefore never heard
them.
4
II. Discussion5
Sellers argues that the District Court erred in denying his motion to dismiss the
indictment based on his assertion that his indictment was retaliatory, and that the Court
should not have permitted the government to use his statements against him, despite his
proffer agreement with the government. He also says that a new trial should be ordered
because the government knowingly elicited perjured testimony from a government
witness. We address those arguments in turn.
A. Vindictive Prosecution
Claiming that the government indicted him because of his refusal to consent to an
extension of time to file a complaint for the forfeiture of his truck, Sellers first argues that
the District Court erred by not dismissing the indictment based on vindictive prosecution.
Due process is violated when one is punished vindictively for doing “what the law
plainly allows” in “exercising a protected statutory or constitutional right.” United States
v. Goodwin, 457 U.S. 368, 372 (1982). “The Supreme Court has determined that certain
prosecutorial conduct raises a presumption of vindictiveness … .” United States v.
Spears, 159 F.3d 1081, 1086 (7th Cir. 1998). That presumption generally does not apply,
however, to “pre-trial prosecutorial conduct.” Id.; see Goodwin, 457 U.S. at 384 (“The
possibility that a prosecutor would respond to a defendant‟s pretrial demand for a jury
trial by bringing charges not in the public interest that could be explained only as a
penalty imposed on the defendant is so unlikely that a presumption of vindictiveness
5
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
5
certainly is not warranted.”). Thus, for “a defendant to prove vindictiveness on the part
of the government for its decision to seek an indictment, he must present objective
evidence showing genuine prosecutorial vindictiveness,” Spears, 159 F.3d at 1086, that
is, that the prosecutor was actually vindictive, United States v. Esposito, 968 F.2d 300,
305 (3d Cir. 1992); see id. (“[W]here the government‟s conduct is attributable to
legitimate reasons, we will not apply a presumption of vindictiveness (though [the]
defendant may still show actual vindictiveness).”).
Recognizing that, since he challenges the decision to indict, he cannot benefit from
the presumption of vindictiveness in this case, Sellers argues that the District Court
nevertheless should have dismissed the indictment because “[t]he facts [he] adduced …
most certainly demonstrated … actual vindictiveness.” (Appellant‟s Br. at 14.) As he
sees it, his case would have ended in a non-trial disposition had he consented to the
government‟s request for an extension of time to file a forfeiture complaint. The District
Court found otherwise, explaining that the evidence instead showed that Sellers‟s refusal
to consent to the extension of time to file a forfeiture complaint was the “last straw”
(Joint App. at 119) among other actions that demonstrated to the government that Sellers
“was not willing to cooperate,” as initially hoped (id. at 118).
“Our review of the [D]istrict [C]ourt‟s factual finding [regarding] actual
vindictiveness is for clear error … .” Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir.
2001). Under that standard of review, we may not reverse the District Court “unless, on
review of the entire evidence, we are left with the definite and firm conviction that a
6
mistake has been committed.” United States v. Siddons, 660 F.3d 669, 708 (3d Cir.
2011) (citation and internal quotation marks omitted).
We discern no error, let alone clear error, in the District Court‟s conclusion that
Sellers failed to demonstrate actual vindictiveness. As the District Court appropriately
characterized it, the evidence shows that the decision to indict Sellers stemmed from the
government‟s perception that Sellers was unwilling to cooperate. (See Joint App. at 30
(Sellers‟s counsel recalling that “the forfeiture of the truck was one aspect in addition to
other aspects that were being discussed in connection with the cooperating plea
agreement”).) That Sellers was indicted when his lack of cooperation became apparent is
not, as Sellers submits, evidence that his indictment must have been retaliatory. See
United States v. Oliver, 787 F.2d 124, 125-26 (3d Cir. 1986) (holding there was no
prosecutorial vindictiveness where the defendant “freely decided not to cooperate … and,
as a result, was later indicted”). We thus conclude that the District Court properly denied
Sellers‟s motion to dismiss the indictment.
B. The Proffer Statements
Sellers next argues that the District Court errantly granted the government‟s
motion to use Sellers‟s proffer session statements against him “to cross-examine [him]
and to rebut any evidence or arguments offered on [his] behalf.” (Supp. App. at 109.) He
claims that his agreement to allow the government to offer such statements at trial was
7
not knowing and voluntary because he did not know that Espinosa had absconded when
he agreed to it.6
A criminal defendant‟s statements during plea discussions are generally
inadmissible at trial, see Fed. R. Evid. 410(a)(4) (stating that “a statement made during
plea discussions with an attorney for the prosecuting authority” that “did not result in a
guilty plea” is “not admissible against the defendant who … participated in the plea
discussions”), but a defendant‟s right to not have such statements used against him at trial
can be waived, at least for impeachment purposes, “as long as there is no affirmative
indication that the agreement [to waive] was entered into unknowingly or involuntarily,”
United States v. Hardwick, 544 F.3d 565, 569-70 (3d Cir. 2008) (alteration in original)
(internal quotation marks omitted). A waiver is “knowing” so long as it is “made with a
full awareness both of the nature of the right being abandoned and the consequences of
the decision to abandon it,” and it is voluntary so long as it is “the product of a free and
deliberate choice rather than intimidation, coercion or deception.” United States v.
Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989) (citation and internal quotation marks
omitted). “We have plenary review over [Sellers‟s] contention that the [D]istrict [C]ourt
erred in finding that [his] waiver … was knowing and voluntary.” Riddick v. Edmiston,
894 F.2d 586, 589 (3d Cir. 1990).
6
Although the statements were never actually used against him at trial, see supra
note 4, Sellers claims that the Court‟s ruling prejudiced him by preventing him from
offering testimony that was inconsistent with his prior statements to authorities. (See
Appellant‟s Opening Br. at 16 (“[T]he Order had an obvious chilling effect on Sellers and
his counsel and it effectively tied their hands behind their backs during trial with respect
to their trial strategy.”).)
8
Here, even accepting Sellers‟s account that he was not apprised of the fact that
Espinosa had fled the country until after the first proffer session concluded,7 there is no
basis for rejecting the District Court‟s determination that Sellers‟s waiver was knowing
and voluntary. Sellers‟s counsel testified before the District Court that he advised Sellers
of the risks and rewards attendant to entering into the proffer agreement, that he
confirmed that Sellers understood the fact that his statements could be used to rebut
claims made at trial based on the waiver, and that Sellers did not appear to have been
intimidated or coerced into agreeing to it. That Sellers did not know Espinosa had
absconded is of no moment. Although Sellers‟s waiver may have been better informed if,
when he decided to make a proffer to the government, he had known that Espinosa had
left the country, “complete knowledge of the relevant circumstances” is not generally
necessary to effectuate a valid waiver. United States v. Ruiz, 536 U.S. 622, 630 (2002).
What he knew was sufficient. Indeed, as Sellers‟s counsel at the time of the proffer
session candidly explained to the District Court, Espinosa‟s unavailability did not have “a
large impact on the strength of the government‟s case.” (Joint App. at 86.) That
observation was borne out, as Valencia‟s testimony and other evidence of Sellers‟s guilt
was enough for a jury to convict him. We conclude, therefore, that the District Court
committed no error in finding Sellers‟s waiver to be knowing and voluntary.
7
Like the District Court, we have serious doubts as to whether Sellers‟s account is
true, given that he continued to work with the government even after having learned that
Espinosa had fled to Mexico. (See Joint App. at 124 (“The Court finds [Sellers‟s]
testimony to not be credible … [because,] even after the defendant was aware that
[Espinosa] was not available to testify, [Sellers] nonetheless made a decision to proffer a
second time.”).)
9
C. Use of Perjured Testimony
Finally, Sellers claims that he is entitled to a new trial since the government
knowingly elicited perjured testimony from Valencia at trial. Although he did not raise
that argument before the District Court, he urges that we should entertain it at this
juncture because the use of perjured testimony was a “plain error that” prejudiced him
insofar as it “affect[ed his] substantial rights.” Fed. R. Crim. P. 52(b).
Perjury occurs when a witness “„gives false testimony concerning a material
matter with the willful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory,‟” United States v. Hoffecker, 530 F.3d 137, 183
(3d Cir. 2008) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)), and gives
rise to a due process violation if a defendant can demonstrate, among other things, that a
government witness actually committed perjury of which the government knew or should
have known, see Lambert v. Blackwell, 387 F.3d 210, 242 (3d Cir. 2004) (“[I]n order to
make out a constitutional violation [the party claiming constitutional error] must show
that (1) [the witness] committed perjury; (2) the government knew or should have known
of his perjury; (3) the testimony went uncorrected; and (4) there is [a] reasonable
likelihood that the false testimony could have affected the verdict.”).
According to Sellers, Valencia perjured himself when he testified on direct
examination that he met with Sellers twice in September 2008, and that Sellers gave him
$80,000 and three kilograms of cocaine wrapped with tape, during those meetings.8
8
Valencia had previously told the government that the meetings took place in June
2008, and that Sellers gave him $50,000 and unwrapped cocaine.
10
Assuming that Valencia‟s trial testimony could be said to be “false testimony concerning
a material matter with the willful intent to provide false testimony, rather than as a result
of confusion, mistake, or faulty memory,” Hoffecker, 530 F.3d at 183 (citation and
internal quotation marks omitted), Sellers still cannot use it as a basis for securing a new
trial. Far from being of the prejudicial nature necessary to prevail on plain error review,
see Gov’t of V.I. v. Rosa, 399 F.3d 283, 293 (3d Cir. 2005) (noting that, to affect
substantial rights for purposes of plain error review, an error “must have been prejudicial:
It must have affected the outcome of the district court proceedings” (citation and internal
quotation marks omitted)), the inconsistency between Valencia‟s pretrial statement and
testimony benefited Sellers. He fully exploited the discrepancies in Valencia‟s account
during cross-examination and, in so doing, substantially undermined Valencia‟s
credibility to the jury.
III. Conclusion
For the foregoing reasons, we will affirm the judgment entered by the District
Court.
11