DENISE COTE, District Judge:

The issue before the Court on the defendant's motion in limine is whether his rejection of the Government's offer of deferred prosecution should be admitted into evidence at trial. For the reasons set forth below, I will not allow such evidence to come before the jury.

On May 18, 1998, Wilson sought to enter the U.S. Attorney's Deferred Prosecution Program. According to the Government, this program allows those defendants who are chosen to avoid prosecution if they complete a period of supervision satisfactorily and meet any additional conditions placed on them by the Government. After being initially denied access to the program, Wilson was accepted by the Deferred Prosecution Committee of the U.S. Attorney's Office subject to certain conditions. Specifically, Wilson would have been required to resign from his Postal Service job, and make full restitution of the moneys the Government contends he embezzled while a window clerk. Wilson declined this offer, and was subsequently indicted by a grand jury on June 29, 1998, on charges that he violated Title 18, United States Code, Sections 1711, 643, and 2703.

Additional discussions ensued after indictment, which included counsel for defendant exploring whether the Government's offer of deferred prosecution was still available. It was not. The parties also had preliminary discussions regarding whether Wilson would plead guilty to a misdemeanor, but the Government made no offer to resolve the prosecution on that basis.

The defendant argues that his initial rejection of the Government's offer of deferred prosecution is governed by United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990), and thus should be admitted as probative of his "consciousness of innocence" through a stipulation by the parties. In Biaggi, the Court of Appeals for this Circuit reversed the district court and required a new trial of a defendant on some of the counts of conviction because the trial judge had precluded the defendant from introducing evidence of his rejection of an immunity offer in exchange for his truthful testimony describing wrongdoing by others. The Court of Appeals held that

a jury is entitled to believe that most people would jump at the chance to obtain an assurance of immunity from prosecution and to infer from rejection of the offer that the accused lacks knowledge of wrongdoing.

Id. at 690. The Court concluded, therefore, that "[t]he probative force of a rejected immunity offer is clearly strong enough to render it relevant." Id. at 691. The Court drew a distinction between immunity offers and plea offers, reserving decision on whether evidence of a defendant's rejection of a plea should be admitted. It noted, however, that

[r]ejection of an offer to plead guilty to reduced charges could also evidence an innocent state of mind, but the inference is not nearly so strong as rejection of an opportunity to preclude all exposure to a conviction and its consequences.

Id. The Court reasoned that in rejecting a plea, a defendant might simply be exercising a preference "to take his chances on an acquittal . . . rather than accept the certainty of punishment after a guilty plea." Id.

The parties do not cite, and the Court has not found, any cases addressing the admissibility of evidence of rejection of a deferred prosecution offer. The Court notes that at least one circuit has held that evidence of the rejection of plea offers is inadmissible. See, e.g., United States v. Greene, 955 F.2d 793, 798-99 (8th Cir. 1993). The specific question before the Court appears to be one of first impression.

To distinguish Biaggi, the Government argues that rejection of an offer of deferred prosecution is far less probative of innocence than rejection of an offer of immunity because acceptance of deferred prosecution involves a considerably greater detriment to the defendant: here, the loss of government employment. The Government further argues that admission of such evidence would be prejudicial and confusing because it would focus the jury's attention on punishment and distract it from the essential facts of the defendant's conduct. I agree.

To begin, the probative value of the evidence of rejection is minimal here, particularly when compared with the significance of the defendant's rejection of immunity in Biaggi. In that case, the defendant faced numerous charges of, among other things, mail fraud, bribery, and RICO violations. Here, the most serious charges facing the defendant were for postal embezzlement. Before trial, the defendant's counsel stated that, if his client were convicted, he would ask the Court to sentence him to four months of home confinement. See U.S.S.G. §2.B1.1. Unlike the defendant in Biaggi, therefore, Wilson could reasonably imagine taking a gamble on being convicted without serving any term in prison.

On the other side of Wilson's calculus lay the substantial conditions imposed as part of any deferred prosecution agreement, namely the permanent loss of his job. Again like Biaggi in which the defendant faced an offer of immunity from prosecution with no substantive conditions beyond providing truthful testimony attached, Wilson faced a complete loss of his government job if he chose to accept the offer of deferred prosecution. Indeed, for many postal employees, the most significant consequence of their prosecution for embezzlement or theft is their loss of employment. This is not a case, therefore, where the defendant faced a simple and stark "opportunity to preclude all exposure to a conviction and its consequences." Biaggi, 909 F.2d at 691. In other words, unlike the defendant in Biaggi, Wilson had many reasons to choose trial and to reject the Government's offer quite apart from any considerations of innocence or guilt. Indeed, by agreeing to resign from his job as a condition of the deferred prosecution program, the defendant would have been agreeing to accept without litigation one of the primary losses he can reasonably anticipate suffering from a conviction after trial. The lack of probative value of a defendant's rejection of an offer under such circumstances would, without more, support exclusion in this case.

While not controlling in its decision, the Court further notes that any probative value of the evidence is undermined severely in this case by the fact that the defendant ultimately sought to accept the Government's offer. Indeed, the evidence of Wilson's initial declination reveals only a tiny glimpse into his state of mind because that decision both followed his petition for entry into the Deferred Prosecution program and preceded his ultimate determination to accept the offer. Such a distorted picture would not aid in the jury's search for truth as to the defendant's innocence.

The confusion that would ensue upon admission of such evidence only strengthens this conclusion. To analyze the probative force of the declination properly, the jury would have to understand the calculus likely undertaken by the defendant and his counsel, which would in turn require the jury to be informed as to the application of the Sentencing Guidelines to the defendant's conduct. Such an exposition would lead to confusion and substantially outweigh the limited probative value of the evidence. There is also a serious risk of unfair prejudice to the Government created by placing before the jury information related to the defendant's sentence. Moreover, it would be entirely unfair to allow the defendant to offer evidence of his rejection of the deferred prosecution offer without also admitting evidence of his change of mind and request for the same offer. Only the admission of Wilson's later request for that offer would clear up such misleading prejudice and that evidence would almost certainly be barred by Rule 11(e)(6) of the Federal Rules of Criminal Procedure.

Finally, the Court notes that it would be particularly unfair to allow the evidence to be introduced without an opportunity for the Government to question the defendant at trial concerning his state of mind. Here, the defendant seeks to introduce the evidence to the jury in a stipulation with the Government. Such evidence would not be truly probative of Wilson's state of mind without a "chance to explore the facts surrounding [the defendant's declination] for motive and other relevant matter." Greene, 995 F.2d at 799.

The Government further argues that admission of such evidence would chill future offers of deferred prosecution and the discussions surrounding such offers. The Court is mindful of the importance of preserving the "frank and open atmosphere" for plea discussions recognized by Congress in drafting Rule 410, Fed. R. Evid., and Rule 11(e)(6), Fed. R. Crim. P. United States v. Lawson, 683 F.2d 688, 692 (2d Cir. 1982) (holding defendant's statements during plea discussions inadmissible for impeachment purposes). The Court believes that the Government's incentive to make offers of deferred prosecution to avoid costly trials for such minor crimes would remain substantial, and notes as well that agreements with defense counsel could likely be drawn to condition any offer of a deferred prosecution on a defendant's waiver of the right to offer evidence at trial that the offer was rejected. The Court agrees with the Government nevertheless that the minimal probative value of this evidence does not justify any chilling effect on such offers or negotiations.

In sum, the evidence at issue is not sufficiently probative of the defendant's state of mind as to his innocence to warrant the substantial risks of unfair prejudice and confusion that would inevitably result from its admission into evidence. The defendant's motion in limine to allow admission of such evidence is denied.

SO ORDERED:

Dated: New York, New York
November 3, 1998

DENISE COTE
United States District Judge