## Facts

- Volkan Mergen was charged federally based on involvement in an arson.
- Mergen had worked with the FBI as a paid informant/cooperator before the arson events.
- Mergen entered a cooperation agreement with the United States and pleaded guilty to a reduced charge.
- During the Rule 11 plea proceeding (plea allocution), Mergen admitted that he assisted in committing the arson.
- The cooperation agreement stated that if Mergen breached the agreement and a prosecution resulted, Mergen waived objections to the government’s use of statements he made in connection with any aborted or withdrawn guilty plea.
- The government later accused Mergen of lying during a debriefing session and ended the cooperation relationship.
- The district court allowed Mergen to withdraw his guilty plea.
- After the plea was withdrawn and the case proceeded toward trial, the government sought to introduce Mergen’s plea-allocution admissions in its case-in-chief.
- Mergen objected, arguing Federal Rule of Evidence 410 barred admission because the guilty plea was withdrawn.
- Mergen also sought to present affirmative defenses at trial, including a public-authority theory (including entrapment by estoppel) and a duress defense.

## Issues

1. Whether the government may introduce a defendant’s plea-allocution statements at trial after the plea is withdrawn when the defendant signed a cooperation agreement waiving Rule 410 objections upon breach.
2. Whether Mergen could present a public-authority defense (including an entrapment-by-estoppel theory) based on his claimed relationship with and direction from federal agents.
3. Whether Mergen could present a duress defense, and whether the court should require a threshold evidentiary showing before permitting that defense at trial.

## Decision

- The court enforced the cooperation agreement’s waiver and permitted the government to introduce Mergen’s plea-allocution statements despite Rule 410 and the later withdrawal of the plea.
- The court ruled that Mergen could pursue a public-authority defense (including entrapment by estoppel) at trial.
- The court ruled that Mergen could pursue a duress defense only if he first made an adequate factual showing at a pretrial evidentiary hearing.

## Legal Principles

- Federal Rule of Evidence 410 generally excludes statements made during a guilty-plea proceeding if the plea is later withdrawn, but the protection may be waived.
- Cooperation and plea agreements are construed using contract principles; clear waiver language can permit the government to use plea-related statements in a later prosecution if the defendant breaches the agreement.
- A Rule 410 waiver is enforceable when it is knowing and voluntary and expressly covers statements made in connection with an aborted or withdrawn guilty plea.
- A defendant’s withdrawal of a guilty plea does not, by itself, eliminate a previously executed waiver that anticipates breach and authorizes use of plea-proceeding statements.
- A public-authority defense may proceed where there is a sufficient factual basis to claim either actual authorization by officials or reasonable reliance on official statements or conduct (entrapment by estoppel); conflicting prior statements typically raise credibility questions for the jury rather than automatic exclusion.
- A duress defense requires a threshold factual foundation; courts may screen the defense before trial through an evidentiary hearing and permit the defense only if the defendant can meet the required showing.
- When plea-allocution statements are admitted under a valid waiver, basic fairness may require allowing the defendant to explain the circumstances and context of the allocution to the jury.

## Conclusion

The district court held that Mergen’s cooperation agreement contained a valid, enforceable waiver allowing the government to use his plea-allocution admissions at trial even though his guilty plea was later withdrawn, and it further allowed him to pursue a public-authority defense while conditioning any duress defense on a satisfactory pretrial evidentiary showing.


United States v. Mergen, No. 06-CR-352 (2010)