Wednesday, May 20, 2015

Rule 410 Waivers

Federal Rule of Criminal Procedure 410 generally prohibits the introduction at trial of a guilty plea, statements made during a guilty-plea proceeding, or statements made during the negotiation of a guilty plea, where the defendant ultimately did not plead guilty or withdrew a guilty plea. But a recent decision published by the Tenth Circuit -- United States v. Jim -- reminds us that this rule is not absolute.
Instead, a defendant can waive his Rule 410 protections, and he can do so in a plea agreement that is never accepted by the district court. Think of a situation where a defendant pleads guilty pursuant to a plea agreement, the court accepts the plea but defers acceptance of the agreement, then allows the defendant to withdraw the plea. And in the plea agreement the defendant waives his Rule 410 protections. Those are the essential facts in Jim. At trial, the government introduced the admissions in the plea agreement in its case-in-chief. Unsurprisingly, the defendant was convicted.
The Supreme Court set the stage for the Tenth's decision way back in 1995. But that case involved the introduction of statements made during a failed cooperation proffer to impeach the defendant's trial testimony. Jim goes much further. It allows the introduction of the defendant's prior admissions in the government's case-in-chief, and the admissions were made in a plea agreement never accepted by the district court because that court allowed the defendant to withdraw his plea.
This latter point played prominently in Jim. The defendant's primary point was that the district court found a "fair and just reason" to allow him to withdraw his plea. Because the plea was unknowing and involuntary, so was the plea agreement. And, if the plea agreement was unknowing and involuntary, it was improper to use admissions in the agreement at trial. 
The missing premise in all of this is whether the district court's reason to withdraw the plea hinged on the unknowing and involuntary nature of it. The district court suggested that this was so: the defendant earlier mentioned that he thought he could still go to trial after signing the plea (thinking the plea merely limited his sentencing exposure), and the magistrate judge who conducted the plea colloquy forgot to advise the defendant that his plea waived his right to a trial (seriously???). But the district court, prior to allowing the defendant to withdraw his plea, also advised the defendant of the Rule 410 waiver, and the defendant's trial counsel acknowledged the repercussions of it prior to the defendant's plea withdrawal. And at trial, in admitting the plea admissions, the district court found that the plea was knowing and voluntary. The Tenth agreed on this point. And that is that.
As a practical matter, watch out for plea agreements with Rule 410 waivers. If you have one, make sure to advise your client that, upon signing the agreement, any meaningful right to a jury trial is gone.
A few more points:
  • The Rule 410 waiver in the plea agreement expressly stated that it took effect when the defendant signed the agreement. So, the fact that the agreement was never accepted by the Court is surprisingly irrelevant. The difficulty we have with this analysis is that the Rule 410 waiver was part of a contract between two parties, but the contract was never enforced. Why does the government benefit from the Rule 410 waiver when it had no obligation to uphold its promises made in the plea agreement? Contracts should be enforced as a whole, not in parts, and one party should not get the benefit of a bargain without performing its reciprocal obligations.
  • The plea agreement advised the defendant that a guilty plea would waive a jury trial, and so the Court dismissed the magistrate's failure to so advise at the change-of-plea colloquy (we wonder whether this analysis is problematic considering the defendant's overall argument that he did not understand the plea agreement in the first place).
  • "A fair and just reason" need not be that the plea was unknowing and involuntary; apparently, something less is sufficient for a district court to allow a defendant to withdraw his plea (we are unsure what).
  • The voluntariness of a Rule 410 waiver is determined under the same general principles of voluntariness that apply in other contexts.
  • And make your record below. The Court was unconvinced with the arguments on appeal primarily because they were not developed properly below.

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