I Am Number Four: 10th Circuit Becomes 4th Federal Appellate Court To Approve Of Case-In-Chief Waivers

Federal Rule of Evidence 410 states in relevant part 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(1) a plea of guilty which was later withdrawn;

(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for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). The Court, however, left open the question of the validity of a "case-in-chief" waiver, under which a defendant waives the protections of Rule 410 and permits the prosecutor to present evidence otherwise excludable under it as part of its case-in-chief, regardless of whether the defendant testifies. Before Thursday, three federal circuit circuit courts -- the Fifth Circuit, the Eighth Circuit, and the D.C. Circuit -- had been presented with the question and a found such a waiver to be valid. With its opinion in United States v. Mitchell, 2011 WL 322371 (10th Cir. 2011), the Tenth Circuit can be added to the tally.

In Mitchell, Dino Mitchell was charged with conspiracy to transport stolen securities and entered into a plea agreement which provided in relevant part that

if I withdraw my plea of guilty, I shall assert no claim under the United States Constitution, any statute, Rule 410 of the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal Procedure, or any other federal rule, that the defendant's statements pursuant to this agreement, or any leads derived therefrom, should be suppressed or are inadmissible at any trial, hearing, or other proceeding.

Mitchell thereafter withdrew his guilty plea, and at his trial, "[e]vidence of Mitchell's guilty plea, including statements from the plea agreement and plea colloquy, was used extensively in the government's case-in-chief." Mitchell thereafter appealed, claiming, inter alia, that case-in-chief waivers are invalid.

The Tenth Circuit responded that the Court in Mezzanatto approved of impeachment waivers but acknowledged that

Despite this reasoning, Mezzanatto generated a three-justice concurrence that advocated a more narrow scope of the holding and emphasized the case only dealt with an impeachment waiver. "It may be, however, that a waiver to use such statements in the case in chief would more severely undermine a defendant's incentive to negotiate, and thereby inhibit plea bargaining. As the Government has not sought such a waiver, we do not here explore this question." 

The court then noted that "Mitchell asks us to take the admonition of the Mezzanatto concurrence and dissent to heart and bar the admissibility of the plea statements in the government's case-in-chief." According to the court, though,

This we cannot do. We see no analytical distinction between Rule 410's  application to impeachment waivers and case-in-chief waivers. The same reasoning for the former compels the latter. Nor did Mitchell negotiate a narrower waiver in the first place.

-CM