Case: 1:12-cr-00175 Document #: 127 Filed: 04/14/14 Page 1 of 22 PageID #:566

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA v. DERRICK SMITH No. 12 CR 175 Judge Sharon Johnson Coleman

GOVERNMENT=S RESPONSE TO DEFENDANT=S MOTION TO BAR HIS POST-ARREST STATEMENT PURSUANT TO FEDERAL RULE OF EVIDENCE 410 The UNITED STATES OF AMERICA, by its attorney, ZACHARY T. FARDON, United States Attorney for the Northern District of Illinois, respectfully files this response to defendant=s motion to bar his post-arrest statement pursuant to Federal Rule of Evidence 410. Dkt. 118. Defendant argues that the post-arrest statement he gave to federal agents after his arrest was part of a plea negotiation within the meaning of Fed.R.Evid. 410 and therefore may not be admitted pursuant to that rule. The motion to bar should be denied without a hearing. I. BACKGROUND On March 13, 2012, at approximately 6:00 a.m. defendant Derrick Smith was arrested by law enforcement agents of the Federal Bureau of Investigation (FBI) as the garage door of Smiths residence opened. Smith was taken into custody on an arrest warrant issued in this matter and transported to the FBI office at 2111 West Roosevelt Road, approximately two miles from his residence. Upon 1

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arrival at the FBI, defendant was photographed and read his rights as set forth on an Advice of Rights Form. Defendant waived his rights and indicated that he was willing to speak with the FBI agents without the presence of an attorney. This occurred between approximately 6:42 a.m. and 6:59 a.m. on the morning of March 13, 2012. Present during the interview were two FBI agents.1 Prior to asking Smith any questions, the agents played a portion of a tape recorded conversation. Smith identified the speakers in the conversation and stated on or about March 9th or 10th, the CS gave Smith $7,000 comprised of $100 bills. Smith accepted the money with the understanding that the CS had received it from a local daycare owner in exchange for a letter of support Smith wrote for the daycare owner. The complete report of the interview is attached to this response and marked Government Exhibit A.2 A detailed log that chronicles the events of March 13, 2012, marked Government Exhibit B, is attached to this response and was previously produced to defense counsel in June 2012. During the interview, Smith advised the agents that a portion of the money that the indictment alleges was paid as a bribe, remained at his residence. In
1 During the interview at approximately 8:18 a.m. a supervisory special agent entered the

room and the agents left the room. The interview stopped at that point but resumed approximately ten minutes later after the agents returned to the room and the supervisor left the room. 2 Portions of the interview report are redacted because of references to entities or individuals who were not charged in this matter as well as references to a witness who cooperated with the government during the investigation. The government will provide the Court with an unredacted copy of the report along with the Courts courtesy copy of this response. If the Court directs that an unredacted copy of the report be made part of the record, the government requests leave to file the unredacted copy under seal to protect the identity of the persons referenced therein.

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response to a request from the agents, Smith stated he was willing to return the portion of cash remaining from the payment but he wanted to keep the fact of his arrest discrete. Smith returned to his residence accompanied by FBI agents. At

approximately 10:05 a.m., Smith retrieved the remaining money from his residence and gave it to the FBI agents. At approximately 10:18 a.m., Smith and the agents returned to the FBI office. Almost four and one half hours after his arrest, at approximately 10:26 a.m., and for the first time the AUSA appeared and, with agents present, spoke to defendant Smith for approximately thirty minutes about the charges that Smith faced. At approximately 11:00 a.m., the AUSA left the interview room but returned at approximately 11:07 a.m. in response to a request by Smith for information about the potential punishment he faced. At 11:10 a.m., the AUSA left the interview room. After the AUSA left the room, the interview continued and, with several interruptions for fingerprinting, processing, and restroom breaks, finishing at approximately 2:00 p.m., when defendant was transported to the Dirksen Courthouse for his initial appearance. II. ARGUMENT A. Applicable Law

Defendant seeks to suppress his lengthy post-arrest statement in which he admitted receipt of the $7,000 bribe payment because he claims those statements were made during plea discussions. Neither the facts nor the law support the relief 3

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Smith requests in this motion. Federal Rule of Evidence 410 provides in part that: In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. Only those statements made during the entry of a plea, or in formal plea negotiations are excluded pursuant to Fed.R.Evid. 410. In United States v. Kelly, 337 F.3d 897 (7th Cir. 2003), after the defendant withdrew his guilty plea, the district court judge advised him that all statements the defendant had made could be used against him. In rejecting the district courts overly-broad

characterization of admissibility, the Seventh Circuit found that only those statements made either before or after the plea agreement and formal negotiations would have been admissible against Kelly at trial. Id. at p.904-5. According to Kelly, the Rule 410 bar applies to any plea hearing or plea agreement, as well as the formal negotiations conducted in relation to the plea -- not to post-arrest interviews. B. Defendants Interview with FBI Agents is Exempt from Application of Fed.R.Evid. 410

At 7:00 a.m., Smith signed a written waiver of his Constitutional rights and began speaking with FBI agents. For almost three hours he continued to answer questions and provide detailed information about his role in the offense. During that time, defendant was engaged in a standard law enforcement interview and knew well that his statements could be used against him. 4

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During the interview, defendant informed agents that he retained some of the cash bribe at his residence and he agreed to turn over the remaining bribe money to FBI agents. At 9:50 a.m., defendant was escorted to his residence by two FBI agents. Defendant recovered the remaining cash, gave it to the FBI agents, and was taken back to the FBI office. After a brief interlude from approximately 10:26 a.m. to 11:10 a.m. -- in which an AUSA entered the room and met with defendant and the agents, the agents continued to interview Smith until 2:00 p.m. when he was transported for his initial appearance. Any statement provided by defendant Smith to the FBI agents is not considered a statement made pursuant to Fed.R.Evid.410 and accordingly is not subject to suppression on this basis. As the Seventh Circuit noted in United States v. Springs, 17 F.3d 192, 195 (7th Cir. 1994), the phrase with an attorney for the government was added to Rule 11(e)(6)(D) in 1979 precisely to prevent the argument that a voluntary statement made to law enforcement is rendered inadmissible merely because it was made in the hope of obtaining leniency by a plea. See also, United States v. Lewis, 117 F.3d 980, 984 (7th Cir. 1997)(the rule applies only to statements made to government attorneys and not to statements made to law enforcement agents). Moreover, Smith doesnt claim in his affidavit that the agents told him any statements he made would be used to advance plea negotiations. On the contrary as part of the advice of rights process, they assured him that any statements he made would be used against him. With the benefit of this warning, Smith chose to 5

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speak to agents and admit his wrongdoing. Indeed, the outcome of this motion would not be any different had the agents told Smith his admissions would advance plea negotiations because the rule applies only to communications with the prosecuting attorney. See United States v. Brumley, 217 F.3d 905, 909 (7th Cir. 2000). This bright line rule is clearly established in Seventh Circuit case law and forecloses defendants motion insofar as it relates to the admissions he made to the agents outside the presence of the AUSA. C. Defendants Affidavit Fails to Establish that the AUSA made any Statements that Converted the Interview into a Plea Negotiation and Fails to Identify Inculpatory Admissions Smith made to the AUSA

Smith is no more successful with his claims regarding the interview with the AUSA. In his motion, Smith alleges that in the discussion involving the AUSA regarding possible sentences presumably, Mr. Smith and the governments attorney discussed possible sentences, as a result of a guilty plea. Mot. p.2. But Smiths affidavit in support of his motion fails to identify any specific statement made by the AUSA that led the defendant to conclude that the exchange actually involved plea negotiations. In order to put a material factual issue in dispute such that a hearing is necessary, Smith must provide more than conclusory or speculative statements in his affidavit. First, Smiths affidavit fails to identify a single statement made by the AUSA. The affidavit merely recounts that the AUSA showed me the United

States Sentencing Guidelines sentencing table. Affidavit of Derrick Smith, 6

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paragraph 4 attached to this response as Government Exhibit C. This alone is insufficient to convert defendants post-arrest interview into a plea negotiation. On this record, defendants motion should be summarily denied because Smiths belief was patently unreasonable. Informing defendant of the charges and penalties he faces, and the likely range of sentences he would face if convicted, does not amount to negotiating a plea. Neither does the mere presence of an AUSA convert a postarrest interview into a formal plea negotiation. Defendants conclusory affidavit fails to create a factual issue for this Court to resolve at a hearing. Failing an allegation that the AUSA somehow converted the post-arrest interview into a formal plea negotiation, there is no reason to hold a hearing. Second, Smiths affidavit fails to identify a single inculpatory statement he made that was part of the purported plea negotiation with the AUSA. By the time defendant Smith met the AUSA, he had already spoken with the agents for hours. He admitted his receipt of the bribe and returned what was left over from the $7,000 payment. Nowhere in his affidavit does he identify any particular inculpatory statement that he made to the AUSA during the short period that interrupted his interview when he claims that plea negotiations took place. According to United States v. Kelly, 337 F.3d 897, 904-05 (7th Cir. 2003), only those statements made in a plea agreement and the related formal negotiations would be barred by Fed.R.Evid. 410. Defendant must bear the burden of

identifying the evidence he proposes to exclude. United States v. Curlin, 638 F.3d 562, 564 (7th Cir. 2011)(defendant bears the burden of both identifying a definite 7

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disputed factual issue, and demonstrating its materiality). In order to obtain a hearing, defendants allegations and moving papers must be sufficiently definite, specific, non-conjectural and detailed. Id. (citation omitted). Smiths affidavit does not meet his burden. According to Kelly, Federal Rule of Evidence 410 would render inadmissible only those inculpatory statements made during a plea or in formal plea negotiations. Smiths affidavit fails to identify the statements he made to the

AUSA that were inculpatory and subject to exclusion based on the rule. Instead, it appears that the defendant hopes to insulate his entire confession from admission, something Kelly specifically prohibits. III. CONCLUSION For the foregoing reasons, the government respectfully requests that the Court enter an order (i) denying defendants motion to bar the admissibility of his post-arrest statement; or alternatively (ii) ordering defendant to submit an affidavit that puts facts in issue upon which a hearing may be held by specifically identifying the statements he wishes to bar from evidence, and the statements made by the AUSA which he believes converted his post-arrest interview into a formal plea negotiation; and (iii) granting such other relief as is just and proper.

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Respectfully submitted, ZACHARY T. FARDON United States Attorney By: s/ Marsha A. McClellan Marsha A. McClellan Michael T. Donovan Assistant U.S. Attorneys 219 South Dearborn Street Fifth Floor Chicago, Illinois 60604 312-353-5300

April 14, 2014

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