Virginia Lawyers Weekly VA Lawyers Weekly
Where the government alleged the defendant provided fraudulent documents to the government via his attorney, but the documents were provided while the parties were discussing and negotiating a written plea offer and statement of facts, they were excluded by Federal Rule of Evidence 410.
Background
James C. Jones Jr. became the subject of a criminal investigation upon the IRS’s determination that documents Jones provided to the IRS were fraudulent. The government began investigating Jones in February 2015, at which point Jones retained Brian Stolarz as counsel. In 2017, the government sent Stolarz a plea agreement containing a proposed statement of facts for Jones. Stolarz met with Jones, and Jones provided Stolarz with documents to contest the government’s statement of facts. Stolarz then met with the government in response to the plea offer.
The government determined that the documents Jones provided via Stolarz during these meetings were fraudulent and sought to compel the testimony of Stolarz before a grand jury. Stolarz produced the requested documents and testified before the grand jury. Now before the court is Jones’s motion in limine to exclude the testimony of Stolarz, and to exclude certain evidence regarding documents that the government plans to introduce at trial under Federal Rule of Evidence 410.
Jones argues that Stolarz should not be permitted to testify at trial about these documents he provided to the government because his testimony would violate Federal Rule of Evidence 410, which bars admission against a defendant of statements “made during the course of plea negotiations with an attorney for the prosecuting authority if the discussions did not result in a guilty plea.”
Purpose
The government first argues that the purpose of producing the documents at issue was to convince the government not to charge Jones and thus did not constitute plea discussions. Stolarz’s grand jury testimony strongly suggests that Jones subjectively believed that Stolarz’s discussions with the government on his behalf were, at least in part, plea negotiations.
Stolarz testified that the government “communicat[ed] a Plea Offer to Mr. Jones” that contained a “Proposed Plea Agreement, information and Draft statement of Facts”; that he “communicate[d] the fact that the Government was giving Mr. Jones the opportunity to plead guilty”; that Mr. Jones “provided … documents [and] information” in response to the plea offer and that Stolarz had several “back and forth[s]” with both Jones and the prosecution about the plea agreement and statement of facts. This subjective belief was also objectively reasonable.
While Stolarz “attempt[ed] also to try to convince [the government] not to charge Mr. Jones,” that does not invalidate the remainder of the discussions that involved the plea offer. This case is distinct from those that the government puts forth in favor of their argument because, here, the parties were discussing and negotiating a written plea offer and statement of facts.
Statement
The government also argues that Stolarz’s production of documents was not a “statement” made during plea negotiations. The court disagrees. Jones was communicating that the documents contained material information related to the plea discussions and that they contained the facts that he believed should be in the statement of facts. This communication was in direct response to the government’s proposed statement of facts, and it was clearly intended to assert Jones’s response to their characterization of the events at issue. This conduct was as much “assertion” as if he had read the contents of the documents aloud. As such, it falls within the purview of Rule 410.
Jones’s motion in limine granted.
United States v. Jones, Case No. 7:20-cr-00046, Nov. 3, 2022. WDVA at Roanoke (Urbanski). VLW 022-3-488. 7 pp.
