Evidence - Rule 410 and Fed.R.Crim.P. 11(f)

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

United States v. Mezzanatto, 513 U.S. 196 (1995)

The protection provided by Rule 410, Fed.R.Evid. and Rule 11(e)(6) Fed.R.Crim.P. (now located at Rule 11(f)) can be waived by the defendant. Thus, a defendant may engage in plea negotiations and agree to the government’s terms that the statements he made during the course of these discussions could, in the event a plea was not entered, be used for impeachment purposes at trial. This would be a valid waiver of the protection provided by Rule 410.

United States v. Escobedo, 757 F.3d 229 (5th Cir. 2014)

The defendant’s plea agreement provided that the defendant would waive his rights under Rule 410 / Rule 11(f) if he failed to comply with the terms of the plea agreement. The defendant tendered his plea, but later withdrew the plea. The Fifth Circuit held that the plea agreement was ambiguous whether this triggered the Rule 410 waiver, because he did not fail to comply with the plea agreement, he simply withdrew his plea, which he was entitled to do. Therefore, at his trial, introducing his withdrawn plea and related statements was improper.

United States v. Nelson, 732 F.3d 504 (5th Cir. 2013)

The defendant entered into a plea – later withdrawn – that contained an express waiver of his rights under Rule 410 to exclude evidence of his statements in the event he withdrew. At his trial, the government sought to introduce not only his statements, but also his then-attorney’s testimony about the circumstances surrounding the preparation of the factual basis. This violated the attorney-client privilege. The defendant’s waiver regarding the use of his statements did not also waive the attorney-client privilege.

United States v. Oluwanisola, 605 F.3d 124 (2d Cir. 2010)

The defendant signed a proffer agreement that provided that the government could introduce the defendant’s statements as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf the defendant at any stage of the criminal prosecution. The defense counsel, in opening statement, suggested that the government would fail to prove certain elements of the offense. During cross-examination of a witness, the attorney questioned the witness about certain dates that he made observations. The district court held that both of these events triggered the waiver provision. The Second Circuit disagreed. Simply challenging the sufficiency of the evidence in general, or questioning a witness about certain dates, did not allow the government to introduce the defendant’s statements that were subject to the proffer agreement.

United States v. Newbert, 504 F.3d 180 (1st Cir. 2007)

If a defendant withdraws his guilty plea based on newly discovered evidence of his innocence, the government may not invoke the “breach the plea agreement” penalties (such as various rights waivers, including a waiver of Rule 410) that would apply in other situations when the defendant breaches a plea agreement.

United States v. Nguyen, 465 F.3d 1128 (9th Cir. 2006)

A nolo contendere plea is not admissible; nor is a conviction resulting from a nolo plea.

United States v. Ventura-Cruel, 356 F.3d 55 (1st Cir. 2003)

The defendant entered into a plea agreement and entered his plea. However, his debriefings, however, went poorly and the court ultimately withdrew the guilty plea, because the court concluded that based on the defendant’s statements, there was no longer a factual basis for the plea. During the ensuing trial, the government introduced a letter written by the defendant during the debriefings (it was essentially the “acceptance of responsibility” letter) that was incriminating. The First Circuit held that admitting this letter was reversible error. Technically, Fed.R.Evid. 410 did not apply, because the defendant’s statement was not anticipatory to, or part of, the plea negotiation process. The court concluded that allowing the government to use the statement gave them the benefit of the bargain while depriving the defendant of the benefit of the bargain. See also United Statesv. Escamilla, 975 F.2d 568 (9th Cir. 1992).

United States v. Velez, 354 F.3d 190 (2d Cir. 2004)

The defendant’s proffer agreement provided that any statement he made could be used by the government if any testimony at trial was inconsistent with the defendant’s admissions. The Second Circuit upheld this proffer agreement. See United States v. Mezzanatto, 513 U.S. 196 (1995) (upholding waiver of voluntary and knowing waiver of Rule 410 protection).

United States v. Millard, 139 F.3d 1200 (8th Cir. 1998)

During the course of trial, the government offered considerable evidence about the defendants' efforts to negotiate a deal and cooperate. This evidence violated Rule 410 and was reversible error with respect to one defendant, though harmless with regard to another.

United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990)

If a defendant rejects an offer of immunity in exchange for testifying, and is then prosecuted, this evidence is admissible to show defendant’s “conscioursness of inncence.” This evidence is not barred by Rule 410.

United States v. Serna, 799 F.2d 842 (2d Cir. 1986)

During the course of plea negotiations, a co-defendant stated that the defendant was the “wrong man.” These statements were made to a law enforcement agent, but the law enforcement agent was acting under the government attorney’s authority in questioning the co-defendant about his cooperation. The defendant sought to introduce this evidence at a joint trial. This evidence was inadmissible at a joint trial, because the statement was not admissible against the co-defendant pursuant to Rule 11(e)(6).

United States v. Acosta-Ballardo, 8 F.3d 1532 (10th Cir. 1993)

Under Rule 11(e)(6), statements made during plea negotiations are inadmissible, even for impeachment purposes, at trial.