It’s Of No Use: 6th Circuit Finds Proffer Statements Pursuant To Use Immunity Offer Aren’t Statements Against Interest

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

So, let’s say that a co-defendant makes proffer statements that (patially) incriminate himself and (partially) exonerate himself pursuant to an offer of use, but not derivative-use, immunity. Do those statements qualify as statements against interest under Rule 804(b)(3)? According to the recent opinion of the Sixth CIrcuit in United States v. Jackson, 2011 WL 6881788 (6th Cir. 2011), the answer is “no.”

In Jackson, Michael Clark and James Sigmund Jackson were convicted of conspiracy to possess with intent to distribute and to distribute controlled substances, and Clark was also convicted of related crimes. Before trial, Todd Bennally, another co-defendant, made proffer statements as part of a Kastigar agreement that provided direct-use immunity, but not derivative-use immunity. In other words, the government could not diretly use Clark’s statements against him at a subsequent trial (use), but it could use his statements to gather other evidence which it could introduce against him at a subsequent trial (derivative use).

After Clark and Jackson were convicted, they appealed, with Jackson claiming, inter alia, that the district court erred in precluding him from introducing Bennally’s proffer statements at trial pursuant to Federal Rule of Evidence 804(b)(3). Unfortunately, the Sixth Circuit’s opinion doesn’t reveal that content of Clark’s statements, but I think it is safe to assume that they at least partially incriminated him and at least partially exonerated Jackson. But were they the type of statements that a reasonable person wouldn’t make because they would expose him to criminal liability? According to the Sixth Circuit, the answer was “no.”

First, the court found that

Where a defendant derives benefit from truthful statements, specifically avoidance of direct criminal prosecution, those statements rather obviously operate in his interest, rather than against his interest. The district court based its decision on this basic logic, finding that “[p]rovided Bennally told the truth, his statements could not be used against him, and thus could not be used to subject him to criminal liability.” criminal liability.”

Then, the court found that,

without the specific statements at issue available, no evidence suggests the co-defendant would have known with any certainty that he would be inculpating himself and subjecting himself to prosecution. He offered the proffer as part of seeking a plea agreement with the prosecution, and all parties agree that, under the operative Kastigar letter, the co-defendant knew that his statements could not be used directly in any prosecution against him, as long as he told the truth. Jackson’s challenge is meritless.

-CM