EvidenceProf Blog

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

Saturday, July 31, 2010

Going Into Withdrawl: Eleventh Circuit Finds Rule 410(1) Inapplicable In Immigration Appeal

Federal Rule of Evidence 410(1) 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:

(1) a plea of guilty which was later withdrawn

As the recent opinion of the Eleventh Circuit in Garces v. U.S. Attorney General, 2010 WL 2899024 (11th Cir. 2010), makes clear, however, this Rule only holds that a withdrawn guilty plea is inadmissible in a later criminal trial for the same offense, and the Rule, like all Federal Rules of Evidence, does not apply to administrative proceedings.

In Garces, Roberto Garces petitioned the Tenth Circuit for review of a Board of Immigration Appeals' order dismissing his appeal from an immigration judge's order finding him removable under section 212(a)(2)(C) of the Immigration and Nationality Act as an alien whom the Attorney General "knows or has reason to believe is or has been an illicit trafficker in any controlled substance."  In 1984, Garces pleaded guilty to cocaine trafficking and aggravated assault charges based on the advice of his attorney, who informed him that a guilty plea would not affect his immigration status. Garces, however,

eventually found out that, as far as federal immigration law is concerned, a felony drug conviction is very far from "nothing."...He learned that lesson when he first applied for permanent resident status and saw his application denied. That prompted Garces to return in August of 2000 to the same state court that had convicted him sixteen years earlier and file a motion...to vacate and set aside his guilty plea. His motion asserted that the plea was involuntary because the court had failed to advise him of potential immigration consequences as required by the Florida Rules of Criminal Procedure....The Florida court apparently agreed, because on August 11, 2000, it vacated Garces' guilty plea and resulting convictions. The same court order also noted that the state had decided to nol pros the original charges, not a surprising decision in light of the length of time that had elapsed.

In Garces' case, the BIA determined 

"[t]he record evidence, including the police report and the ‘Motion to Vacate and Set Aside Guilty Plea’ in which the respondent confirms that he pled guilty to possession with intent to sell cocaine," constituted reasonable, substantial, and probative evidence supporting the IJ's finding that Garces was inadmissible because there was reason to believe he had engaged in drug trafficking.

In his petition to the Eleventh Circuit, Garces claimed that the BIA erred in considering the evidence related to his motion to vacate and set aside his guilty plea because it was inadmissible under Federal Rule of Evidence 410(1). The Eleventh Circuit disagreed, finding that

Rule 410 codifies and expands the Supreme Court's holding in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582 (1927), that a withdrawn guilty plea is not admissible in a later criminal trial for the same offense....Though its language is sweeping, Kercheval 's actual holding is limited to the context of a later criminal trial on the same offense.

Moreover, the court correctly noted that "it is a 'well-settled principle[ ]' that the Federal Rules of Evidence do not apply in administrative proceedings." (The court did, however, reverse and remand on other grounds).



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