United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE
This matter is before the Court on the Defendant’s Motion to Exclude All Evidence Related to Plea Negotiations, or in the Alternative, Dismiss the Indictment. [Dkt. 23] Specifically, the Defendant seeks to exclude “statements made during the proffer session on December 12, 2014, statements provided during debriefings session (sic) with attorneys for the Government on January 14 and 15, 2015, Mr. DeAntoni’s grand jury testimony on January 15, 2015, and the draft plea agreement and the statement of facts signed by Mr. DeAntoni on February 6, 2015.” (Def.’s Mem. [Dkt. 24] at 1.) For the reasons set forth below, the Defendant’s motion is denied in part and granted in part.
On December 3, 2014, Department of Homeland Security agents executed a search warrant on Defendant Donnetto Antonio DeAntoni’s (“Defendant” or “DeAntoni”) residence. (Id.) The search warrant authorized the seizure of evidence relating to criminal copyright infringement, trafficking in counterfeit goods, conspiracy to commit money laundering, wire fraud, and smuggling goods from the United States. (Id. at 2.) Similar search warrants were executed at three locations in California owned by or associated with Defendant’s brother, Deonnetti DeAntoni. (Id.)
On December 8, 2014, the Defendant retained the services of attorneys Marsh Halberg and Eric Nelson of Halberg Criminal Defense in Minnesota. (Id.) On December 9, 2014, Mr. Halberg and Assistant United States’ Attorney (“AUSA”) Alex Nguyen exchanged e-mails discussing the possibility of a video conference proffer session. (Id.) Defendant’s attorney explained at the time that he “understand[s] there are no promises or guarantees from the Government, ” but he “hope[s] at a future time [the government] will consider a favorable [plea] offer and 5K motion.” (Def.’s Mot. Ex. 2 [Dkt. 24-2].) AUSA Nguyen forwarded a copy of a proffer letter, and a proffer session took place via video conference on December 12, 2014. (Def.’s Mem. at 2.) Eventually, a proffer letter was . (Id. at 3.)
As part of the Defendant’s continuing cooperation, the Government asked him to testify before the grand jury investigating him and his brother, and emailed his counsel on December 12, 2014 to schedule a time to appear before the grand jury in January 2015. (Def.’s Mot. Ex. 4 [Dkt. 24-4].) In that same email, the Government expressed a desire to “discuss a resolution to the case” “between now and the GJ date.” (Id.) On December 17, 2014, the government emailed defense counsel suggesting that “it may make sense” for the Defendant, a resident of Minnesota, “to testify [in the grand jury] and plead guilty during the same trip to avoid additional travel.” (Def.’s Mot. Ex. 7 [Dkt. 24-7].) Defense counsel was amenable to “[c]ombining tasks, ” so the Government followed up with a plea offer on December 23, 2014. (Def.’s Mot. Ex. 6 [Dkt. 24-6], Ex. 11 [Dkt. 24-11].) In response to that plea offer, defense counsel asked if they could “not do the plea so quickly”, and asked to wait until the holidays had passed and the Defendant had time “to process all the nuances” of the proposed plea. (Def.’s Mot. Ex. 12 [Dkt. 24-12].) In that same e-mail, defense counsel stated that his client “will still fly in for the grand jury and also meet . . . in person to talk about possible refinements” to the proposed plea. (Id.)
On January 15, 2015, the Defendant testified before the grand jury. (Def.’s Mem. at 4.) During his grand jury testimony, the following questions and answers took place:
Q: You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Do you understand that?
. . .
Q: Have you received any promises from the Government in exchange for cooperating?
Q: Mr. DeAntoni, do you understand that anything you say may be used against you by the grand jury or ...