This article by Greene Espel attorney Davida Williams first appeared on on January 21, 2020.

The Supreme Court recently declined to review 'Cottier v. United States', an Eighth Circuit decision upholding a conviction of second-degree murder.

Under Federal Rule of Criminal Procedure 11, a court cannot accept a guilty plea without first determining that there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3) (“Before entering 8th Circuit Spotlight judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”). Many prosecutors establish the factual basis for a guilty plea by entering into evidence a factual-basis statement—a sworn statement signed by the defendant and prosecution that sets forth the facts of the crime and the basis for the plea. See, e.g., North Carolina v. Alford, 400 U.S. 25, 37-38 & n.10 (1970) (a court can accept a guilty plea based on a factual-basis statement containing a protestation of innocence if the defendant concludes that his interests require a guilty plea and the record strongly evidences guilt); Garcia v. United States, 679 F.3d 1013, 1014 (8th Cir. 2012) (government’s plea agreement required the defendant to sign a factual-basis statement). While a factual-basis statement can be used to secure the signatory-defendant’s guilty plea, it is less clear the extent to which such a statement can be used against a co-defendant who decides to go to trial. The Supreme Court recently had an opportunity to clarify the answer to that question, but it declined to do so when it denied certiorari review of Cottier v. United States, 908 F.3d 1141 (2018), cert. denied, 589 U.S. ___ (Dec. 9, 2019).

In 2015, Calmer Cottier and three other defendants were charged with, among other things, “second-degree murder by an Indian in Indian country.” See 908 F.3d at 1144; 589 U.S. at ___. Two of Cottier’s co-defendants pleaded guilty and signed nearly identical factual-basis statements implicating Cottier in the murder. 908 F.3d at 1147-48. The prosecutor also signed those statements. Id. at 1148. At Cottier’s trial in the District of South Dakota, the government offered the statements into evidence. Id. The defense consented to the admission of both factual-basis statements, the district court instructed the jury as to their limited purposes, and the defense attacked both on cross-examination. Id. at 1148-49. The jury convicted Cottier. Id. at 1149.

Cottier raised five issues on appeal to the Eighth Circuit, including “the improper vouching for the credibility of witnesses by the prosecution.” Id. at 1144-45. Cottier argued that “[a] prosecutor may not vouch for the veracity of government witness’ testimony,” United States v. Rodriguez, 581 F.3d 775, 797 (8th Cir. 2009), and that submitting the factual-basis statements to the jury constituted impermissible witness vouching. See Appellant Br. at 22, 2018 WL 1215291. The danger, Cottier argued, is that jurors would give significant weight to the fact that the statements were official court documents signed on behalf of the government by the prosecutor, especially considering the opening sentence of the documents: “The undersigned parties stipulate that the following facts are true.’” Id.; 908 F.3d at 1147. The government, for its part, did not respond to Cottier’s argument that the factual-basis statements should not have been allowed in the jury room. See Appellee Br. at 24, 2018 WL 2165597.

At the outset, the Eighth Circuit noted that it “find[s] the way that factual basis statements are routinely used during trials in the Western Division of the District of South Dakota somewhat troubling” because oral arguments had led it to believe that such statements are “received into evidence as exhibits that are allowed to go to the jury during its deliberations.” 908 F.3d at 1149. The Court of Appeals cautioned against this approach and warned that “receiving sworn factual basis statements signed by lawyers into evidence and then allowing the statements in the jury room during deliberations without redaction of all but the testimonial portions of the documents and the pleading defendant’s signature is not a favored practice.” Id. Despite the Eighth Circuit’s uneasiness about allowing the factual-basis statements into the jury room, the court held that the district court’s admission of the factual-basis statements did not constitute plain error. Id. Importantly, the defense had affirmatively consented to the admission of the statements into evidence, and there was overwhelming evidence of Cottier’s guilt. Id.

In his certiorari petition, Cottier asked the Supreme Court to rule on the constitutionality of allowing jurors to review government-signed statements during their deliberations. The Supreme Court declined to take up the case. 589 U.S. ___ (Dec. 9, 2019).

Justice Sotomayor wrote separately with respect to the denial of certiorari. She “agree[d] with the Eighth Circuit that this practice is ‘troubling,’” in part because it allows the prosecution to improperly express an opinion on the truth of the witness’s statement. Id. (Sotomayor, J., concurring in denial of certiorari). Implied in the prosecutor’s signature, she wrote, is “a stamp of approval, an assurance from the Government itself, that the witness is to be believed.” Id. Nonetheless, Justice Sotomayor did not dissent from the denial of certiorari because “Cottier’s attorney did not object to the statements’ admission and used them as part of Cottier’s defense.” Id.

Justice Sotomayor’s separate statement raises a question for another day: When, if ever, are government-signed factual-basis statements allowed into the jury room? Until that question is answered, prosecutors—especially those in the District of South Dakota that “‘routinely’ send[] unredacted factual-basis statements into the jury room,” id.—should be cautious in how they proceed. And defense attorneys should remember to object.


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