                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-1939
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                FREDERICK SELLERS,
                                                  Appellant
                                  _______________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                               (D.C. No. 10-cr-00434-001)
                      District Judge: Honorable Renee M. Bumb
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 25, 2012

      Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges.

                                (Filed: October 17, 2012)
                                    _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Frederick Sellers appeals the judgment of the United States District Court for the

District of New Jersey sentencing him to 188 months‟ imprisonment and 5 years‟

supervised release based upon his conviction for conspiracy to distribute five kilograms

or more of cocaine. For the following reasons we will affirm.
I.     Background

       After being charged with drug-related offenses, Mario Estrada- Espinosa and Jose

Luis Grimaldo-Valencia cooperated with the government by indentifying Sellers as a

drug trafficker who purchased large amounts of cocaine from them. Their cooperation

resulted in Sellers‟s arrest.

       Shortly thereafter, Sellers participated in a proffer session with the government,

agreeing in advance that “[t]he government [could] use [his] statements and any

information provided by [him] to cross-examine [him] and to rebut any evidence or

arguments offered on [his] behalf” in any subsequent trial. (Supp. App. at 109.) During

that meeting, the government and Sellers‟s counsel were aware that Espinosa had fled the

country and would therefore be unavailable to testify at Sellers‟s trial. Sellers, however,

claims to have been unaware of that fact. Indeed, although his lawyer had sent him a

letter before the session informing him of Espinosa‟s unavailability, Sellers testified that

he did not receive the letter until after the session had concluded.1 Sellers testified that he

would not have participated in the proffer session had he received that letter in time, as

knowing that Espinosa would be unavailable to testify against him would have made him

think that he could “buil[d] a defense.” (Joint App. at 94.)




       1
          Sellers‟s counsel testified that he never verbally told Sellers that Espinosa had
left the country because he mistakenly believed that Sellers would have received the
letter before the proffer session. (See Joint App. at 74 (“I[] unfortunately [and]
incorrectly[] assumed that the letter that I had mailed to [Sellers] … would more than
likely reach him prior to the proffer[,] and … I … continued to go forward with the
cooperation.”).)

                                              2
       Even after learning that Espinosa had absconded, however, Sellers chose to meet

with the government for a second time.2 At that meeting, the government indicated its

intent to file a complaint requiring Sellers to forfeit a truck that he had used to commit

the crime for which he was charged, leading Sellers‟s counsel to believe that the

“forfeiture of the truck” was “one aspect in addition to other aspects that were being

discussed in connection with [a] cooperating plea agreement.” (Id. at 30.) Subsequently,

with the deadline to file the forfeiture complaint approaching, the government requested

Sellers‟s assent to an extension of the time to file the complaint seeking that relief.

Although Sellers‟s counsel communicated to Sellers that his refusal to consent to the

extension could “be a deal breaker in light of other issues that were ongoing with

cooperation” (id. at 37), Sellers ultimately rejected the government‟s request.

       The government then ceased plea negotiations and indicted Sellers. Sellers, in

turn, filed a motion to dismiss the indictment for prosecutorial vindictiveness, asserting

that his refusal to consent to the extension of time to file the forfeiture complaint was the

sole reason the government decided to cease negotiations and indict him. Although he

“concede[d] that there[] [was] no presumption of vindictiveness” under the facts of his

case,3 he claimed “that the prosecutor‟s decision and the facts [of his case] support[ed]

actual vindictiveness.” (Id. at 117.) The District Court rejected that contention,

       2
         Sellers testified that he continued to cooperate with the government because his
lawyer advised him that, by participating in the first proffer session, his “back was
against the wall” and “there was no turning back.” (Joint App. at 95.)
       3
         As discussed infra in Part II.A, “certain prosecutorial conduct raises a
presumption of vindictiveness, which may then be rebutted by the government.” United
States v. Spears, 159 F.3d 1081, 1086 (7th Cir. 1998).

                                              3
concluding that “Sellers … failed to provide [the] Court with evidence of actual

vindictiveness on the part of the government.” (Id.) To the contrary, as the Court

pointed out, Sellers‟s “failure … to merely agree to extend the time to file a forfeiture

complaint demonstrated [that he] … was not willing to cooperate” with the government

at all. (Id. at 118.)

       After denying Sellers‟s motion to dismiss, the Court turned to address the

government‟s request for “a ruling on the admissibility of [Sellers‟s] statements for

rebuttal purposes at trial should [Sellers‟s] testimony or … arguments … contradict any

statements [Sellers] made during the[ ] two proffer sessions.” (Id. at 121.) Recognizing

that Sellers had waived his right to preclude such statements from being used against

him, the Court considered whether the waiver was knowing and voluntary. Although

Sellers had testified that “he felt intimidated,” “did not understand the risks” of the

agreement, and “would not have proffered” if he knew Espinosa was not available to

testify at his trial, the Court found Sellers‟s testimony was not credible and concluded

that his waiver was, in fact, knowing and voluntary.4 (Id. at 123-24.)

       Sellers‟s case went to trial, and the jury found him guilty on the sole count in the

indictment. The District Court sentenced him to 188 months‟ imprisonment and 5 years‟

supervised release.

       This timely appeal followed.



       4
        Despite the Court‟s ruling, the government never had occasion to use Sellers‟s
statements against him when his case went to trial, and the jury therefore never heard
them.

                                              4
II.    Discussion5

       Sellers argues that the District Court erred in denying his motion to dismiss the

indictment based on his assertion that his indictment was retaliatory, and that the Court

should not have permitted the government to use his statements against him, despite his

proffer agreement with the government. He also says that a new trial should be ordered

because the government knowingly elicited perjured testimony from a government

witness. We address those arguments in turn.

       A.     Vindictive Prosecution

       Claiming that the government indicted him because of his refusal to consent to an

extension of time to file a complaint for the forfeiture of his truck, Sellers first argues that

the District Court erred by not dismissing the indictment based on vindictive prosecution.

       Due process is violated when one is punished vindictively for doing “what the law

plainly allows” in “exercising a protected statutory or constitutional right.” United States

v. Goodwin, 457 U.S. 368, 372 (1982). “The Supreme Court has determined that certain

prosecutorial conduct raises a presumption of vindictiveness … .” United States v.

Spears, 159 F.3d 1081, 1086 (7th Cir. 1998). That presumption generally does not apply,

however, to “pre-trial prosecutorial conduct.” Id.; see Goodwin, 457 U.S. at 384 (“The

possibility that a prosecutor would respond to a defendant‟s pretrial demand for a jury

trial by bringing charges not in the public interest that could be explained only as a

penalty imposed on the defendant is so unlikely that a presumption of vindictiveness

       5
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

                                               5
certainly is not warranted.”). Thus, for “a defendant to prove vindictiveness on the part

of the government for its decision to seek an indictment, he must present objective

evidence showing genuine prosecutorial vindictiveness,” Spears, 159 F.3d at 1086, that

is, that the prosecutor was actually vindictive, United States v. Esposito, 968 F.2d 300,

305 (3d Cir. 1992); see id. (“[W]here the government‟s conduct is attributable to

legitimate reasons, we will not apply a presumption of vindictiveness (though [the]

defendant may still show actual vindictiveness).”).

       Recognizing that, since he challenges the decision to indict, he cannot benefit from

the presumption of vindictiveness in this case, Sellers argues that the District Court

nevertheless should have dismissed the indictment because “[t]he facts [he] adduced …

most certainly demonstrated … actual vindictiveness.” (Appellant‟s Br. at 14.) As he

sees it, his case would have ended in a non-trial disposition had he consented to the

government‟s request for an extension of time to file a forfeiture complaint. The District

Court found otherwise, explaining that the evidence instead showed that Sellers‟s refusal

to consent to the extension of time to file a forfeiture complaint was the “last straw”

(Joint App. at 119) among other actions that demonstrated to the government that Sellers

“was not willing to cooperate,” as initially hoped (id. at 118).

       “Our review of the [D]istrict [C]ourt‟s factual finding [regarding] actual

vindictiveness is for clear error … .” Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir.

2001). Under that standard of review, we may not reverse the District Court “unless, on

review of the entire evidence, we are left with the definite and firm conviction that a



                                              6
mistake has been committed.” United States v. Siddons, 660 F.3d 669, 708 (3d Cir.

2011) (citation and internal quotation marks omitted).

       We discern no error, let alone clear error, in the District Court‟s conclusion that

Sellers failed to demonstrate actual vindictiveness. As the District Court appropriately

characterized it, the evidence shows that the decision to indict Sellers stemmed from the

government‟s perception that Sellers was unwilling to cooperate. (See Joint App. at 30

(Sellers‟s counsel recalling that “the forfeiture of the truck was one aspect in addition to

other aspects that were being discussed in connection with the cooperating plea

agreement”).) That Sellers was indicted when his lack of cooperation became apparent is

not, as Sellers submits, evidence that his indictment must have been retaliatory. See

United States v. Oliver, 787 F.2d 124, 125-26 (3d Cir. 1986) (holding there was no

prosecutorial vindictiveness where the defendant “freely decided not to cooperate … and,

as a result, was later indicted”). We thus conclude that the District Court properly denied

Sellers‟s motion to dismiss the indictment.

       B.     The Proffer Statements

       Sellers next argues that the District Court errantly granted the government‟s

motion to use Sellers‟s proffer session statements against him “to cross-examine [him]

and to rebut any evidence or arguments offered on [his] behalf.” (Supp. App. at 109.) He

claims that his agreement to allow the government to offer such statements at trial was




                                              7
not knowing and voluntary because he did not know that Espinosa had absconded when

he agreed to it.6

       A criminal defendant‟s statements during plea discussions are generally

inadmissible at trial, see Fed. R. Evid. 410(a)(4) (stating that “a statement made during

plea discussions with an attorney for the prosecuting authority” that “did not result in a

guilty plea” is “not admissible against the defendant who … participated in the plea

discussions”), but a defendant‟s right to not have such statements used against him at trial

can be waived, at least for impeachment purposes, “as long as there is no affirmative

indication that the agreement [to waive] was entered into unknowingly or involuntarily,”

United States v. Hardwick, 544 F.3d 565, 569-70 (3d Cir. 2008) (alteration in original)

(internal quotation marks omitted). A waiver is “knowing” so long as it is “made with a

full awareness both of the nature of the right being abandoned and the consequences of

the decision to abandon it,” and it is voluntary so long as it is “the product of a free and

deliberate choice rather than intimidation, coercion or deception.” United States v.

Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989) (citation and internal quotation marks

omitted). “We have plenary review over [Sellers‟s] contention that the [D]istrict [C]ourt

erred in finding that [his] waiver … was knowing and voluntary.” Riddick v. Edmiston,

894 F.2d 586, 589 (3d Cir. 1990).

       6
          Although the statements were never actually used against him at trial, see supra
note 4, Sellers claims that the Court‟s ruling prejudiced him by preventing him from
offering testimony that was inconsistent with his prior statements to authorities. (See
Appellant‟s Opening Br. at 16 (“[T]he Order had an obvious chilling effect on Sellers and
his counsel and it effectively tied their hands behind their backs during trial with respect
to their trial strategy.”).)

                                              8
       Here, even accepting Sellers‟s account that he was not apprised of the fact that

Espinosa had fled the country until after the first proffer session concluded,7 there is no

basis for rejecting the District Court‟s determination that Sellers‟s waiver was knowing

and voluntary. Sellers‟s counsel testified before the District Court that he advised Sellers

of the risks and rewards attendant to entering into the proffer agreement, that he

confirmed that Sellers understood the fact that his statements could be used to rebut

claims made at trial based on the waiver, and that Sellers did not appear to have been

intimidated or coerced into agreeing to it. That Sellers did not know Espinosa had

absconded is of no moment. Although Sellers‟s waiver may have been better informed if,

when he decided to make a proffer to the government, he had known that Espinosa had

left the country, “complete knowledge of the relevant circumstances” is not generally

necessary to effectuate a valid waiver. United States v. Ruiz, 536 U.S. 622, 630 (2002).

What he knew was sufficient. Indeed, as Sellers‟s counsel at the time of the proffer

session candidly explained to the District Court, Espinosa‟s unavailability did not have “a

large impact on the strength of the government‟s case.” (Joint App. at 86.) That

observation was borne out, as Valencia‟s testimony and other evidence of Sellers‟s guilt

was enough for a jury to convict him. We conclude, therefore, that the District Court

committed no error in finding Sellers‟s waiver to be knowing and voluntary.


       7
         Like the District Court, we have serious doubts as to whether Sellers‟s account is
true, given that he continued to work with the government even after having learned that
Espinosa had fled to Mexico. (See Joint App. at 124 (“The Court finds [Sellers‟s]
testimony to not be credible … [because,] even after the defendant was aware that
[Espinosa] was not available to testify, [Sellers] nonetheless made a decision to proffer a
second time.”).)

                                              9
       C.     Use of Perjured Testimony

       Finally, Sellers claims that he is entitled to a new trial since the government

knowingly elicited perjured testimony from Valencia at trial. Although he did not raise

that argument before the District Court, he urges that we should entertain it at this

juncture because the use of perjured testimony was a “plain error that” prejudiced him

insofar as it “affect[ed his] substantial rights.” Fed. R. Crim. P. 52(b).

       Perjury occurs when a witness “„gives false testimony concerning a material

matter with the willful intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory,‟” United States v. Hoffecker, 530 F.3d 137, 183

(3d Cir. 2008) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)), and gives

rise to a due process violation if a defendant can demonstrate, among other things, that a

government witness actually committed perjury of which the government knew or should

have known, see Lambert v. Blackwell, 387 F.3d 210, 242 (3d Cir. 2004) (“[I]n order to

make out a constitutional violation [the party claiming constitutional error] must show

that (1) [the witness] committed perjury; (2) the government knew or should have known

of his perjury; (3) the testimony went uncorrected; and (4) there is [a] reasonable

likelihood that the false testimony could have affected the verdict.”).

       According to Sellers, Valencia perjured himself when he testified on direct

examination that he met with Sellers twice in September 2008, and that Sellers gave him

$80,000 and three kilograms of cocaine wrapped with tape, during those meetings.8

       8
        Valencia had previously told the government that the meetings took place in June
2008, and that Sellers gave him $50,000 and unwrapped cocaine.

                                              10
Assuming that Valencia‟s trial testimony could be said to be “false testimony concerning

a material matter with the willful intent to provide false testimony, rather than as a result

of confusion, mistake, or faulty memory,” Hoffecker, 530 F.3d at 183 (citation and

internal quotation marks omitted), Sellers still cannot use it as a basis for securing a new

trial. Far from being of the prejudicial nature necessary to prevail on plain error review,

see Gov’t of V.I. v. Rosa, 399 F.3d 283, 293 (3d Cir. 2005) (noting that, to affect

substantial rights for purposes of plain error review, an error “must have been prejudicial:

It must have affected the outcome of the district court proceedings” (citation and internal

quotation marks omitted)), the inconsistency between Valencia‟s pretrial statement and

testimony benefited Sellers. He fully exploited the discrepancies in Valencia‟s account

during cross-examination and, in so doing, substantially undermined Valencia‟s

credibility to the jury.

III.     Conclusion

         For the foregoing reasons, we will affirm the judgment entered by the District
Court.




                                             11
