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United States v. Pelker

United States District Court, M.D. Pennsylvania

May 8, 2018

UNITED STATES OF AMERICA
v.
DEREK PELKER, Defendant

          MEMORANDUM

          Yvette Kane, District Judge

         Before the Court is Defendant Derek Pelker (“Defendant”)'s motion in limine to preclude the Government from introducing Defendant's proffer statement at trial. (Doc. No. 248.) For the reasons provided herein, the Court will deny Defendant's motion.

         I. BACKGROUND

         On August 24, 2016, a federal grand jury returned a five-count indictment charging Defendant, along with co-defendants Ryan Miller and Andrew Ishman, with conspiracy, armed bank robbery, possession of a firearm in furtherance of a crime of violence, and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 371, 2113, 924(c), and 922(g), respectively. These charges were docketed at 1:16-cr-00241. On the same date, a federal grand jury also returned a two-count indictment charging Defendant and co-defendants Keith Pelker and Shannon Gadzouris with conspiracy and armed bank robbery in violation of 18 U.S.C. §§ 371 and 2113, respectively, and this indictment was docketed at 1:16-00240.[1] (Doc. No. 1.) Upon the grand juries' return of these indictments, both actions were assigned to the Honorable John E. Jones, III.

         Defendant subsequently entered a plea of not guilty as to all counts set forth in both indictments on August 31, 2016 (Doc. No. 26), and Daniel M. Myshin was appointed to represent Defendant in both actions pursuant to the Criminal Justice Act (“CJA”) on the same date (Doc. No. 25). On September 30, 2016, a scheduling order was issued, setting jury selection and trial for both actions to take place on November 7, 2016. (Doc. No. 52.) Subsequently, with the exception of Defendant, each of the aforementioned co-defendants in both criminal actions entered a guilty plea pursuant to a plea agreement.[2]

         Defendant filed an unopposed motion to continue jury selection and trial (Doc. No. 60), which was granted on October 26, 2016, and the trial as to Defendant was then continued to February 2, 2017 (Doc. No. 62). In late December of 2016, Jeffrey A. Conrad (“Conrad”) was appointed to represent Defendant pursuant to the CJA.[3] (Doc. Nos. 69, 70.) On April 4, 2017, upon a motion from the Government (Doc. No. 79), the Court ordered the consolidation of the separate indictments as to Defendant (Doc. No. 91). In granting the Government's motion to consolidate, the Court directed the Clerk to transfer Counts 1-4 of criminal action 1:16-cr-241 to criminal action 1:16-cr-240 and to close the criminal action docketed at 1:16-cr-241. (Id. at 4.) Additionally, the Court ordered that jury selection and trial be continued to May 9, 2017. (Id.)

         On May 8, 2017 - one day prior to when jury selection was scheduled to begin - the Government filed a superseding information, which set forth the following additional charges: three counts of armed bank robbery under 18 U.S.C. § 2113; one count of possessing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c); and one count of being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g). (Doc. No. 110.) On the same date, through a written plea agreement (Doc. No. 111), Defendant entered a guilty plea as to the five counts in the superseding information (Doc. No. 116).[4] After conducting a colloquy, the Court deferred acceptance of Defendant's plea pending its review of the presentence report. During the period of time in which the plea agreement was agreed to by the parties, Defendant engaged in a proffer session with the Government, which, as explained more fully below, forms the basis for the instant motion.

         Defendant subsequently moved to withdraw his guilty plea on June 16, 2017 (Doc. No. 118), and the Court denied his motion on June 18, 2017 (Doc. No. 119). Conrad then moved to withdraw as counsel for Defendant on June 23, 2017. (Doc. No. 120.) Upon granting Conrad's motion to withdraw as counsel (Doc. No. 127), the Court ordered John A. Abom to represent Defendant pursuant to the CJA on June 27, 2017 (Doc. No. 128). Defendant filed another motion to withdraw his guilty plea on August 18, 2017 (Doc. No. 137), on which the Court held a hearing on August 22, 2017 (Doc. No. 142). In an Order dated September 1, 2017, the Court granted Defendant's motion to withdraw his guilty plea and ordered jury selection and trial to begin on October 10, 2017. (Doc. No. 151.)

         The Government filed a twelve-count second superseding indictment as to Defendant and Ryan Martin, a remaining co-defendant, on September 27, 2017.[5] (Doc. Nos. 163, 203.) On the same date, upon a motion from Defendant (Doc. No. 155), the Court permitted Defendant to proceed pro se and appointed John Abom to serve as standby counsel (Doc. No. 184). Following the docketing of the second superseding indictment on November 29, 2017 (Doc. No. 203), the Court issued an order of recusal (Doc. No. 206), and the instant action was reassigned to the undersigned on December 1, 2017. Defendant then entered a plea of not guilty as to all twelve counts in the second superseding indictment on January 3, 2018. (Doc. No. 227.) Trial is scheduled to commence with jury selection on May 14, 2018. (Doc. No. 277.)

         On February 7, 2018, Defendant filed a motion in limine “to preclude the government from introducing the Defendant's proffer statement under the proffer agreement at trial” (Doc. No. 248), which was accompanied by a brief in support (Doc. No. 249). The statement at issue resulted from plea discussions involving Defendant in May of 2017, prior to when jury selection and trial were previously scheduled to begin. The Government filed a brief in opposition on November 21, 2018 (Doc. No. 252), and Defendant filed a reply brief on March 5, 2018 (Doc. No. 257). The Court held an evidentiary hearing on May 4, 2018 to examine evidence related to the basis for Defendant's motion. (Doc. No. 277.) Having been fully briefed, Defendant's motion is ripe for disposition.

         II. LEGAL STANDARD

         The admissibility of statements made during plea discussions is governed by Federal Rule of Evidence 410, which provides that:

evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a ...

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