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Statement in a Plea Agreement Signed by Prosecutor Is Admissible—Ninth Circuit
Hearsay Exception for Opposing Party Declarations Applied
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a judge improperly excluded as hearsay the statement by a prosecutor in a plea agreement with one man identifying the defendant—and not the party to the agreement—as having worn a brown shirt during an assault by two inmates on correctional officers, declaring the words, benefitting the defendant, to be a party admission.
“[W]e hold that, in a criminal case, the sworn statement of a government attorney in a plea agreement or sentencing memorandum is a party admission, excluded from the definition of hearsay,” Circuit Judge Holly A. Thomas wrote.
The opinion vacates the judgment of conviction by District Court Judge Michael W. Fitzgerald of the Central District of California. Circuit Judge Roopali H. Desai and Senior District Court Judge James Alan Soto of the District of Arizona, sitting by designation, joined in the opinion.
The altercation occurred on Aug. 19, 2017 at a federal prison in Victorville. As inmates Gabriel Mirabal and Erik Rojo passed through a metal detector, one of them triggered the alarm.
Brian Moreno, a correctional officer at the prison, began to pat-down the inmate wearing a brown shirt, and a fight ensued. Moreno contends that the inmate wearing the brown shirt threw an unprovoked punch at him, and Mirabal maintains that the punch was in self-defense after Moreno first raised his arm at him.
The inmate wearing a white shirt rushed over from some distance away. He knocked Moreno unconscious with a punch to the back of the officer’s head, and attacked Anthony Guerrero, another officer jumped in to assist.
Assault Case
Mirabal and Rojo were indicted by the Grand Jury on Dec. 11, 2018, on two counts of assaulting a federal officer in violation of 18 U.S.C. §111.
In a sentencing memorandum pursuant to a plea deal with Rojo, a prosecutor noted that Mirabal had been the inmate wearing the brown shirt. The next day, the Office of the Attorney General filed a notice of errata withdrawing its sentencing position and subsequently filed an amended plea agreement which omitted all references to Mirabal.
A key issue to Mirabal’s defense at trial was that he acted in self-defense, a claim factually unavailable to the inmate wearing white. To support his assertion that he was the inmate in brown, Mirabal sought to introduce, as a statement of a party opponent, the account in the plea agreement.
Fitzgerald excluded that statement as inadmissible hearsay, finding that the hearsay exception for opposing party statements in Federal Rules of Evidence 801(d)(2) does not apply to the opinion of a prosecutor. Mirabal was convicted by jury on both counts and sentenced to 57 months in prison.
Party Opponent Statements
Rule 801(d)(2) provides, in relevant part, that a statement is not hearsay if it is offered against an opposing party and:
“(A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; [or] (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed….”
Thomas noted that not every publication by a branch of government can be treated as a party admission by the U.S. government, but that statements by the relevant section of the government involved in the legal action may be. She said that the exception “comfortably encompasses formal, signed statements made by a government attorney in filings before a court, such as plea agreements and sentencing memoranda.”
Rejecting the claim that the statement is merely the expression of an opinion of an individual prosecutor, the jurist wrote:
“[T]he government’s theory of the case was not the mere errant remark or personal viewpoint of a government attorney. Memorialized in writing and set forth multiple times before the district court in sentencing memoranda and plea agreements, Rojo’s original factual basis constituted the official position of the United States regarding what happened during the August 19 altercation.”
She was similarly unpersuaded by the assertion that the subsequent filing of an amended plea agreement without reference to Mirabal erased the original statement, reasoning:
“[The] amendment does not change the fact that the government had once adopted the original factual basis. Nor, as the government contends, does Rojo’s status as a co-signatory to that factual basis change the fact that the government’s independent statements fall within the party admission hearsay exclusion. Both Rojo and the government were declarants within the meaning of Rule 801(b).”
Thomas was careful to limit the opinion to the facts before the court, saying:
“We do not determine how far Rule 801(d)(2) extends to other government employees. And exactly which departments of the federal government are a party-opponent will depend on a case’s factual circumstances. Today, we hold only that ‘in criminal cases, the Justice Department certainly should be considered’ a party-opponent of criminal defendants.”
Given the disputed nature of the issue of which shirt Mirabal had been wearing during the assault and its connection to the self-defense claim, she found that the erroneous exclusion of the statement was prejudicial. Thomas opined:
“Had Mirabal had the opportunity to present Rojo’s original factual basis, his argument that he wore the brown shirt would have had considerably more support.”
The case is U.S. v. Mirabal, 22-50217.
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