that LaTray's statements would not be used against him in a
prosecution in this district.
Second, defendant LaTray's position was not believable. He
was not a credible witness. The court observed him to be
evasive, aloof, and argumentative when he testified. As already
noted, one portion of his testimony has been directly refuted.
Furthermore, the defendant produced no evidence that his former
attorney, Tripp, objected to Seidel's formulation of the
cooperation agreement. In the court's mind, this failure
likewise undermines the defendant's position.
Finally, the court turns to an issue which is dispositive,
the issue of who bears the burden of proving the terms of the
cooperation agreement, or the terms of the promise and the
reasonableness of LaTray's reliance. If there were no dispute
regarding the terms of the agreement and if the government were
contending that the defendant breached the terms of the
agreement, then the government would bear the burden of proving
the breach. United States v. Calabrese, 645 F.2d 1379, 1390
(10th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 127, 70
L.Ed.2d 108 (1981). This is a different dispute. The defendant
claims that the United States Attorney's Office in one district
through a cooperation agreement or promise has foreclosed the
prosecution of federal charges by the United States Attorney's
Office in another district. It is this court's determination
that the defendant bears the burden of proof on this issue.
The Second Circuit has determined that one United States
Attorney's Office cannot bind another to a plea agreement
"unless it affirmatively appears that the agreement
contemplates a broader restriction" than the forbearance of
prosecution in the district in which the agreement was entered.
United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985) (per
curiam) (emphasis added). While the Second Circuit has
refrained from requiring a defendant to show that a broad
restriction on prosecution was reduced to an express statement,
United States v. Russo, 801 F.2d 624, 626 (2d Cir. 1986), an
affirmative showing is nonetheless required. Laskow, 688
F. Supp. at 853-54. This court interprets the phrase
"affirmatively appears" to indicate that the defendant to
prevail must present a showing that a preponderance of the
evidence favors his position. Given the defendant's lack of
credibility and given the evidence contrary to his position,
this court holds that he has not sustained his burden of
showing that the promise he relied upon in the Eastern District
of Virginia foreclosed the prosecution of armed robbery charges
in this district.
In placing the burden of proof on the defendant, the court is
well-aware that it is has placed the burden on the defendant in
an area involving his constitutional rights, not the least of
which is his right against self-incrimination. When questions
arise in the constitutional arena of criminal procedure, the
government frequently bears the burden of proof. See Colorado
v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 532-33, 93
L.Ed.2d 473 (1986). Despite this general rule, the court is of
the opinion that the defendant's right to litigate the content
of the cooperation agreement — or the promises he relied upon
— has been sufficiently protected in the case at bar. The
defendant was given a full evidentiary hearing in which he was
able to contest the reach of the promises made in Virginia. In
this instance, the hearing in conjunction with this court's
determination provides a "requisite safeguard" of the
defendant's rights. Calabrese, 645 F.2d at 1390.
For the foregoing reasons, the defendant's motion to dismiss
the armed robbery charges is denied. Since the defendant did
not ask to suppress the statement he gave to Agent Cross, the
court will not address the propriety vel non of suppressing
that statement under the circumstances.
The court denies defendant DeMarc's motion to suppress the
statements he gave before he signed the advice of rights form.
Defendant LaTray's motion to suppress the statements he gave
after his arrest and the
evidence seized as a result of his arrest is denied. Likewise,
the court denies LaTray's motion to construe the promises made
by the government in the Eastern District of Virginia to
require dismissal of the armed robbery charges.
As all counsel are aware, this case has been transferred to
Chief Judge Neal P. McCurn for trial.
It is So Ordered.