Sunday, August 23, 2009
Noisy Withdrawal: Third Circuit Finds That Involuntarily Withdrawn Guilty Plea Is Not Covered By Rule 410
On Friday, I posted an entry about the Eighth Circuit enforcing a clause in a plea agreement against a criminal defendant despite the fact that no court would enforce a similar clause in a contract between parties in a civil case. In that entry, I argued that this decision was indefensible, especially in light of the fact that ambiguities in plea agreements are construed against the government. The recent opinion of the Third Circuit in United States v. Jenkins, 2009 WL2518529 (3rd Cir. 2009), is questionable on similar grounds.
In Jenkins, in August 2003, New Jersey law enforcement authorities arrested Kevin Jenkins based on his alleged involvement in a home invasion and vehicle theft incident which had occurred several months earlier. In January 2004, Jenkins reached a plea agreement with the government and pleaded guilty to robbery in state court. After Jenkins entered his plea, federal authorities informed the state officials that, based on a federal investigation, Jenkins and his co-defendants had intended not only to steal a vehicle but also to rob a bank. As a result of this new information, the state officials concluded that Jenkins had not been truthful and withdrew his plea.
In September of that year, a grand jury in the Eastern District of Pennsylvania returned a superceding indictment charging Jenkins with one count of conspiracy to commit armed bank robbery, one count of using and possessing a firearm in furtherance of the conspiracy to commit armed bank robbery, one count of conspiracy to commit carjacking, one count of carjacking, and one count of using and possessing a firearm in furtherance of the conspiracy to commit carjacking.
During Jenkins' trial, the district judge permitted the prosecution to admit evidence relating to Jenkins' state court guilty plea. Thereafter, the jury acquitted Jenkins' on the carjacking charge but found him guilty of all of the other charges. Jenkins subsequently appealed, claiming, inter alia, "that the District Court committed reversible error by permitting the admission of evidence relating to his state court guilty plea, which had subsequently been withdrawn by the state prosecution, asserting that Federal Rule of Evidence 410 disallows the admission of such evidence."
Jenkins had a good argument. Federal Rule of Evidence 410(3) indicates that
Except as otherwise provided in this rule, 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:
(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.
The Third Circuit, however, noted that Jenkins did not raise this issue at trial, meaning that it could only reverse for plain error. And it couldn't find such plan error because it cited 2 Weinstein's Federal Evidence § 410.09 (2d ed.1997), for the proposition that "it is not clear whether the Rule applies in circumstances such as those presented here, where the defendant fails to fulfill his end of the plea bargain and the state withdraws it in response."
I can see why some courts hold that Federal Rule of Evidence 410 is inapplicable in this situation. It makes sense to make a defendant's withdrawn guilty plea inadmissible against him when it is the defendant who voluntarily withdraws the plea, but it seems to make less sense to do so when the plea is involuntarily withdrawn based upon the defendant's breach of the plea agreement.
That said, there is nothing in Rule 410 distinguishing between these two circumstances. And, as noted in my previous entry, courts have been receptive to clauses that the government places in plea agreements under which defendants waive certain protections. This being the case, it seems to me that when the government does not insert such a clause, courts should construe Rule 410 broadly and find that it protects defendants unless the plain language of the Rule provides otherwise.