The Case-In-Chief Waiver, Take 2: 4th Circuit Becomes 5th Circuit Court To Approve Case-In-Chief Waivers

In relevant part, Federal Rule of Evidence 410 provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a criminal defendant can waive Rule 410 protection and make his otherwise excludable plea statements admissible to impeach him should he make contradictory statements at trial. The Court left open the question of whether a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence. Thereafter, a most (all?) federal appellate courts found that a defendant could make such a waiver by presenting evidence at trial contradicting his otherwise excludable plea statements, which would allow the prosecution to use his statements substantively to rebut the evidence elicited, i.e., the "rebuttal waiver."

Until a few days ago, however, four federal appellate courts had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence  even when he did not present evidence at trial contradicting his otherwise excludable plea statements. But after the opinion of the Fourth Circuit in United States v. Stevens, 2011 WL 5925327 (4th Cir. 2011), that number has risen to four.

In Stevens, Michael Lloyd Stevens was convicted of conspiracy to retaliate against a person cooperating with law enforcement. After he was indicted for this crime,

Stevens entered into a plea agreement with the Government, in which he agreed to plead guilty to the conspiracy charge. Attached to the plea agreement was a stipulation of facts indicating that Stevens had conspired with others to retaliate against an intended victim for his cooperation with federal authorities concerning a federal offense by assaulting him.

The plea agreement also contain[ed] a provision waiving Stevens' rights under Fed. R. Evid. 410. Specifically, Stevens agreed that if he withdrew from the plea agreement or proceeded to trial on the conspiracy charge, the Government was permitted to use the stipulation of facts as evidence in its case-in-chief. Stevens ultimately proceeded to a jury trial. In turn, the Government introduced the stipulation of facts as evidence against Stevens in its case-in-chief at trial. On appeal, Stevens argue[d] that the district court erred in allowing such admission.

After Stevens was convicted, he appealed, claiming, inter alia, that the admission of this stipulation violated Federal Rule of Evidence 410. In response, the Fourth Circuit initially observed that  

Because Rule 410 is an exception to the general principle that all relevant evidence is admissible at trial, its limitations are to be construed narrowly....Moreover, its protections are waivable. United States v. Mezzanatto, 513 U.S. 195, 205 (1995) (holding that Rule 410, in effect, creates “a privilege of the defendant, and, like other evidentiary privileges, this one may be waived or varied at the defendant's request” (internal quotation marks and citation omitted)); accord United States v. Mitchell, 633 F.3d 997, 1001–06 (10th Cir.2011) (upholding validity of Rule 410 waiver and allowing defendant's plea statements into evidence as part of the Government's case-in-chief); United States v. Sylvester, 583 F.3d 285, 289–91 (5th Cir.2009) (same and citing decisions from the Eighth and District of Columbia Circuits supporting the proposition that statements made during plea negotiations can be waived for use as affirmative evidence of the defendant's guilt).

So, the 5th, 8th, Tenth and D.C. Circuits had previously approved of case-in-chief waivers. The Fourth CIrcuit decided to join their ranks in Stevens, finding that "[b]ecause the waiver was valid and enforceable, the district court properly allowed to Government to introduce the stipulation of facts as evidence in its case-in-chief."

-CM