Under Federal Rule of Criminal Procedure 11, a court cannot accept a guilty plea without first determining that there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3) (“Before entering 8th Circuit Spotlightjudgment on a guilty plea, the court must determine that there is a factual basis for the plea.”). Many prosecutors establish the factual basis for a guilty plea by entering into evidence a factual-basis statement—a sworn statement signed by the defendant and prosecution that sets forth the facts of the crime and the basis for the plea. See, e.g., North Carolina v. Alford, 400 U.S. 25, 37-38 & n.10 (1970) (a court can accept a guilty plea based on a factual-basis statement containing a protestation of innocence if the defendant concludes that his interests require a guilty plea and the record strongly evidences guilt); Garcia v. United States, 679 F.3d 1013, 1014 (8th Cir. 2012) (government’s plea agreement required the defendant to sign a factual-basis statement). While a factual-basis statement can be used to secure the signatory-defendant’s guilty plea, it is less clear the extent to which such a statement can be used against a co-defendant who decides to go to trial. The Supreme Court recently had an opportunity to clarify the answer to that question, but it declined to do so when it denied certiorari review of Cottier v. United States, 908 F.3d 1141 (2018), cert. denied, 589 U.S. ___ (Dec. 9, 2019).

In 2015, Calmer Cottier and three other defendants were charged with, among other things, “second-degree murder by an Indian in Indian country.” See 908 F.3d at 1144; 589 U.S. at ___. Two of Cottier’s co-defendants pleaded guilty and signed nearly identical factual-basis statements implicating Cottier in the murder. 908 F.3d at 1147-48. The prosecutor also signed those statements. Id. at 1148. At Cottier’s trial in the District of South Dakota, the government offered the statements into evidence. Id. The defense consented to the admission of both factual-basis statements, the district court instructed the jury as to their limited purposes, and the defense attacked both on cross-examination. Id. at 1148-49. The jury convicted Cottier. Id. at 1149.

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