Opinion
CR. NO. 00-00145
November 27, 2002
ORDER DENYING MOTION TO SUPPRESS STATEMENTS
INTRODUCTION
On April 13, 2000, Defendant Alicia Veloria ("Veloria") was indicted for (1) knowingly and intentionally possessing with intent to distribute in excess of five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count 1); and (2) knowingly and intentionally possessing with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 2).
On October 21, 2002, Veloria moved to suppress a statement that she made to the Government on September 3, 2001. This court held a hearing on the motion on November 26, 2002. The motion is DENIED.
BACKGROUND FACTS
The charges against Veloria concern drugs allegedly recovered by the Hawaii Police Department ("HPD") from Veloria's home and vehicle. On July 10, 1996, the HPD allegedly searched a residence occupied by Veloria and her then-boyfriend, and found cocaine, marijuana, and various items of drug paraphernalia. On November 22, 1996, two officers and a detective from HPD allegedly saw Veloria's truck parked at Keaau Ball Park, and observed a man, later identified as Wallace Iaukea, approach the truck and get in the passenger seat. Those officers allegedly obtained a search warrant after a drug detection dog alerted on a portion of the truck. A search conducted pursuant to the warrant resulted in the seizure of drugs and drug paraphernalia.
On September 3, 2001, Veloria, then represented by someone other than her present attorney, met with that attorney, special agents from the Internal Revenue Service, and an Assistant United States Attorney. Veloria and the attorney then representing her signed a proffer letter offered by the government. At the interview, Veloria allegedly made numerous self-incriminating statements, including details regarding Veloria's drug distribution activities. Veloria allegedly stated that the drugs recovered from her house were hers, and that she had intended to deliver the drugs recovered from her truck to a drug supplier.
The proffer agreement laid out the terms under which Veloria provided information to the government. The agreement stated that Veloria would answer the government's questions truthfully and completely, and that the prosecution would not offer Veloria's statements as part of its case-in-chief at trial or against Veloria at sentencing. Paragraph four of the proffer agreement contained an exception to the bar on the government's use of her statement:
[T]he prosecution may use statements made by VELORIA at said meetings, and all evidence obtained directly and indirectly from those statements, for the purpose of cross-examination should VELORIA testify in contradiction to information given during said meetings, or to rebut any evidence offered by or on behalf of VELORIA in connection with the trial of the above-captioned matter or at [her] sentencing following trial, should such evidence be contrary to the information given by VELORIA during said meetings[.]
On the present motion, Veloria argues that the government may use her statements only to rebut any contrary testimony given by her at trial should she choose to testify, but that the government may not use her statements to rebut testimony given by other witnesses testifying on her behalf. The government agrees that it may not use Veloria's statements in its case-in-chief, but it contends that the proffer agreement allows the government to use Veloria's statements not only to rebut testimony by Veloria but also to rebut contrary testimony given by another witness.
ANALYSIS
The motion itself does not specify the grounds on which Veloria seeks suppression. At the hearing, Veloria offered two alternative grounds for suppression. First, she contended that the proffer agreement is ambiguous because it fails to specify (a) the purpose for which her statements may be used against her and (b) the timing of when the statements may be used. Second, she contended that, even if the proffer agreement is unambiguous, her counsel at the time was ineffective because he advised her that her statements could only be used to rebut contradicting testimony she herself gave at trial.
Veloria's first argument is not persuasive. The court treats the proffer agreement as a contract. See United States v. Chiu, 109 F.3d 624, 625 (9th Cir. 1997). The language of the proffer agreement is clear and unambiguous as to the purpose for which Veloria's statement may be used. Paragraph four states that Veloria's statements may be used by the government "for the purpose of cross-examination should VELORIA testify in contradiction to information given during said meetings, or to rebutany evidence offered by or on behalf of VELORIA in connection with the trial of the above-captioned matter or at [her] sentencing following trial" (emphasis added). Veloria's reading of paragraph four, which limits the use of the statements only to the government's rebuttal of her testimony, would render redundant or meaningless the words "any evidence offered by or on behalf of Veloria."
The court acknowledges an ambiguity in the timing references in paragraph four. Paragraph four refers to the government's right to "rebut any evidence offered by or on behalf of VELORIA in connection with the trial of the above-captioned matter or at [her] sentencing." Veloria argues that this should be not be read as permitting use of her statement to rebut contrary testimony at trial. Although Veloria did not explain the rationale for her argument, the court notes that the references to her trial and sentencing could be viewed as attached to the verb "offered" rather than the verb "rebut." That is, these could be references to when the contradicting evidence is offered, as opposed to references, as the government submits, to when Veloria's statement may be used to rebut the contradicting evidence. This ambiguity, however, does not support Veloria's argument that her statement cannot be used as rebuttal evidence in trial and at sentencing. Even if the references in paragraph four to trial and sentencing are only references to when the contrary evidence is offered, nothing in paragraph four precludes use of the statement at trial or sentencing. The absence of any clear limitation as to the timing of rebuttal indicates that use at trial and sentencing are allowed, not, as Veloria would have it, prohibited then but allowed at other times.
Veloria's second argument also fails because she does not offer, nor has this court found, any authority supporting the proposition that suppression of her statements is the proper remedy for the allegedly ineffective assistance of the attorney who represented her at the time of the proffer. At the court's request, that former attorney attended the hearing on Veloria's motion. He informed this court that, at the time of the interview, he had told Veloria that, under the proffer agreement, her statements could only be used against her in the event she testified on her own behalf at trial. He said he had not told Veloria that her statements could be used to rebut the testimony of other witnesses; in fact, the attorney's understanding of the proffer agreement was that Veloria's statements could be used only to rebut her own testimony. This court expresses no opinion as to whether the failure to inform Veloria that her statement could be used to rebut testimony by others would constitute ineffective assistance of counsel in the event Veloria is convicted and challenges her sentence on that ground. Regardless of what Veloria's prior counsel did or did not tell her, this court is not persuaded that the government should be punished for an alleged failure by defense counsel.
CONCLUSION
For the foregoing reasons, the court denies the motion to suppress.
IT IS SO ORDERED.