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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, February 10, 2009

Withdrawal Symptoms: Eighth Circuit Opinion Raises Question Of Whether Moving To Withdraw A Guilty Plea Braches A Plea Agreement

The recent opinion of the Eighth Circuit in United States v. Quiroga, raises, but does not answer, a fascinating evidentiary issue: Does moving to withdraw a guilty plea breach a plea agreement?

In Quiroga, a grand jury charged Francisco Quiroga "with possession with intent to distribute five grams or more of pure methamphetamine within 1000 feet of a playground." Quiroga thereafter "signed a written plea agreement with the government" which contained the dreaded Mezzanatto waiver. That waiver provided in relevant part that:

"If the defendant violates any term or condition of this plea agreement, in any respect, the entire agreement will be deemed to have been breached.... If the defendant does breach this agreement, he faces the following consequences: (1) all testimony and other information he has provided at any time to attorneys, employees or law enforcement officers of the government, to the court, or to the federal grand jury, may and will be used against him in any prosecution or proceeding...."

Quiroga subsequently "entered a plea of guilty, which the district court accepted based on the report and recommendation of a magistrate judge." Two months later, however, Quiroga moved to withdraw his plea, claiming that his attorney incorrectly advised him that he could not be sentenced as a career offender. And while the court initially denied Quiroga's motion, on reconsideration, it allowed him to withdraw his guilty plea.

At Quiroga's ensuing trial, he moved to preclude the prosecution from presenting any evidence concerning his initial plea agreement and his withdrawn guilty plea pursuant to Federal Rule of Evidence 410, which indicates in relevant part that:

"evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn."

The district court rejected this argument, and the Eighth Circuit later affirmed, (1) noting that Quiroga failed to dispute that he breached his plea agreement when he moved to withdraw his guilty plea and (2) rejecting his argument that his agreement to waive his rights under Rule 410 was not knowing and voluntary. I am much more interested in the point that Quiroga did not contest.

You see, the district court actually did address the issue of whether Quiroga breached his plea agreement when he moved to withdraw his guilty plea. But in addressing that issue, the court found that it was bound by the Eighth Circuit's opinion in United States v. Swick, 262 F.3d 684 (8th Cir. 2001), which it thought stood for the proposition that moving to withdraw a guilty plea breaches a plea agreement. As the Eighth Circuit correctly noted in Quiroga, however, it actually didn't answer this question in Swick.

So, how would the district court have ruled if it didn't incorrectly read Swick? Well, the court actually noted in dicta that it was troubled by the "apparent assumption" in Swick

"that moving to withdraw a guilty plea is a breach of the plea agreement, triggering the clause waiving Rule 410 rights. The court says apparent assumption, because there is no explanation whatsoever in Swick...of how or why moving to withdraw a guilty plea violates a plea agreement. After all, when a party to a contract moves for declaratory judgment in a civil action to determine whether the contract is enforceable, that action is not construed to be a breach of the contract."

This conclusion makes sense to me, and taking it one step further, it the court in this hypothetical were to determine that the contract were not enforceable or voidable, the party would not be deemed to have breached the contract, just as the criminal defendant who is allowed to withdraw his guilty plea should not be deemed to have breached the plea agreement.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/02/410-us-v-quirog.html

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