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Plea bargaining, which has been recognized as an essential component of the administration of justice, is crucially important in managing the influx of cases that reach the court. “If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.” Santobello v. New York, 404 U.S. 257, 260 (1971). Yet criminal defense attorneys are starting to see an emerging trend: Federal prosecutors are now insisting, as part of the plea agreement process, that defendants waive their “rights” under Federal Rule of Evidence (FRE) 410. For example, waivers may state: “The defendant acknowledges that Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410 are rules which ordinarily limit the admissibility of statements made by a defendant in the course of plea discussions or plea proceedings if a guilty plea is later withdrawn. The defendant knowingly and voluntarily waives the rights which arise under these Rules. As a result of this waiver, he understands and agrees that any statements which are made in the course of his guilty plea or in connection with his cooperation pursuant to this plea agreement will be admissible against him for any purpose in any criminal or civil proceeding if his guilty plea is subsequently withdrawn.” Although an emerging trend, this prosecutorial demand during plea negotiations is rooted in a U.S. Supreme Court decision more than a decade old and the expansive application of waivers by courts since the decision. Interpretation of waivers by the courts during the last decade demonstrate that defense counsel must advise their clients of the risks of being confined to statements made to prosecutors if the client elects to withdraw a plea. Allowing the prosecution to present to the jury previous statements made by the defendant, even if the defendant does not testify, should certainly cause a defense attorney to create a long-term plan for the defense at the earliest stage possible. It will require foresight, planning and a thorough risks/benefits analysis with a client relating to the consequences of whether he or she should make any statements to the government. It also requires the defense attorney to nail down the facts, and the consistency of his or her client’s statements with those facts, early on since an ever-evolving defense is not an option in light of a Rule 410 waiver. Traditionally, under FRE 410, statements made during plea discussions generally are not admissible in any civil or criminal action against a defendant who has withdrawn his or her plea or was a participant in failed plea discussions. The rule, however, does not apply to the introduction of voluntary and reliable statements made to prosecutors in connection with plea negotiations when the statements are offered for impeachment purposes or in a subsequent prosecution for perjury or false statements. See Benjamin A. Naftalis, “Queen for a Day: Agreements and The Proper Scope of Permissible Waiver of the Federal Plea-Statement Rules,” 37 Colum. J.L. & Soc. Probs. 1 (Fall 2003). As courts have routinely recognized, the essential purposes behind FRE 410 are to promote active plea negotiations and to encourage full and frank discussions. See, e.g., U.S. v. Grant, 622 F.2d 308, 312 (8th Cir. 1980). In 1995, however, in U.S. v. Mezzanato, 513 U.S. 196, 210 (1995), the Supreme Court addressed the issue of whether a defendant could waive the protections of FRE 410. The Supreme Court, after reviewing the case law and weighing the policy considerations, ruled yes: A defendant may choose to waive the protection afforded by FRE 410, and any statements made in the course of plea negotiations may be admissible in trial pursuant to such a waiver. The facts in Mezzanato were not exceptional. A criminal defendant requested to meet with prosecutors to discuss the possibility of cooperating, and as a condition of entering into discussions with the prosecution, agreed to be truthful during discussions and to waive his right to object to the use of his statements for impeachment purposes should he give any contradictory testimony at trial. When negotiations failed and the case went to trial, the defendant’s previous statements about his involvement were used to impeach his courtroom testimony of innocence. On appeal, the defendant claimed that FRE 410 rendered his statements inadmissible, but the court held otherwise. Specifically, the court stated that “absent some affirmative indication that the waiver was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of Rule 410 is valid and enforceable.” Id. at 199. Although Congress has expressly included a waiver clause in some rules but not in FRE 410, the court nonetheless held that Congress’ silence could not be construed as an implicit rejection of the right to waive it. Accordingly, the waiver in Mezzanato was deemed valid and enforceable. Precedent for a line of cases The Mezzanato case has served as the foundation for a line of cases that have expanded the breadth of these waivers over time. Many circuit and district courts have weighed in on the permissibility and scope of FRE 410 waivers, and most have held that waivers can be used to permit statements that would have been inadmissible for more than traditional impeachment purposes. Specifically, some courts allow introduction of statements to rebut the defendant’s case even if the defendant does not testify. In addition, other courts have stated that broad waivers allow the use of the defendant’s statements made during plea negotiations for any purpose without limitation. For example, the 9th U.S. Circuit Court of Appeals considered Mezzanato when faced with the use of a defendant’s plea negotiations for rebuttal purposes. Although declining to comment on whether statements made in plea negotiations could be used in a prosecutor’s case-in-chief, the court allowed statements to be admitted for rebuttal despite the fact that the defendant did not testify at trial. U.S. v. Rebbe, 314 F.3d 402 (9th Cir. 2002). The court reasoned that the language in the waiver permitting the prosecution to “admit the statements ‘to rebut any evidence, argument or representations’ offered by [the defendant] or on his behalf in connection with the trial[,]” was sufficiently broad to allow the admission of the defendant’s statements after the defense presented arguments at trial that were inconsistent with statements previously made by the defendant. Id. at 407. The court noted that it may have been questionable to allow the statements to be admitted prior to the defense presenting its direct case but, because the prosecution did not use the statements until after the defense rested, it was a permissible rebuttal. The 2d Circuit has also upheld the validity of FRE 410 waiver in cases in which the statements were used for purposes other than traditional impeachment. See U.S. v. Velez, 354 F.3d 190, 195 (2d Cir. 2004); U.S. v. Roman, 184 Fed. Appx. 66 (2nd Cir. 2006). In Velez, the defendant waived his exclusionary rights in all circumstances in which the defense presented contradictory testimony, evidence or arguments regardless of whether the defendant testified. The language used was more precisely tailored for rebuttal purposes than that used in the Rebbe agreement. The court decided that the agreement was enforceable, so if any evidence or testimony presented on the defendant’s behalf was inconsistent with his previous statements, the statements could be admitted for rebuttal purposes. Two years later, in Roman, the same court, relying on Velez, allowed a waiver to be enforced for rebuttal, even without the defendant’s testimony, of all inconsistent testimony or evidence presented on the defendant’s behalf. In 2005, the 2d Circuit extended the application of waivers in the context of rebuttal purposes by broadly defining “rebut” to include contradicting factual assertions made by the defense and extended the waiver to allow rebuttal of statements made by defense counsel in opening statements. U.S. v. Barrow, 400 F.3d 109, 121 (2d Cir. 2005). Years before the 9th and 2d circuits, the D.C. Circuit held that there was no reason to distinguish between permitting waivers for purposes of impeachment or rebuttal and permitting waivers for the prosecution’s case-in-chief. See, e.g., U.S. v. Burch, 156 F.3d 1315, 1321 (D.C. Cir. 1998). In Burch, the court addressed an argument commonly advocated by defendants � that Congress did not intend for defendants to be able to waive FRE 410 because it would undermine the incentive to negotiate and discourage candor. Expanding on the Mezzanato rationale, the Burch court rejected that argument, stating: “Since the Supreme Court has already rejected Congressional intent to promote candor as justification for refusing to enforce voluntary waivers of these Rules in rebuttal, any argument relying on that intent is too weak to justify refusing to allow use of the plea statement in the government’s case-in-chief.” Id. at 1319-21. Following that case, the validity of waiver agreements is not limited to just those that waive the use of statements for rebuttal purposes. Other courts have also upheld the validity of agreements that include blanket waivers of the protection of FRE 410. For example, in 2000, the 8th Circuit analogized a waiver of FRE 410 to a waiver of the right to appeal and held the agreement to be valid. U.S. v. Young, 223 F.3d 905, 911 (8th Cir. 2000). The court held that, despite no limiting language in the waiver (“all testimony he has provided at any time . . . may and will be used against him in any prosecution or proceeding”), the defendant knowingly and voluntarily agreed to the waiver, which was therefore enforceable in its broad form. Id. at 910-11. Leland Young’s motion in limine to suppress the plea agreement and affidavit, statements made during the negotiations and a letter to Young stating that prosecutors would be using his agreement at trial against him was denied. The court held in dicta that all of these could be utilized in the government’s case against Young. Practical considerations No lawyer can argue with a straight face that FRE 410 entitles a defendant to tell prosecutors one story and tell a different story at trial. If a defendant elects to speak with the government, he must do so truthfully. Thus, it is imperative that an attorney nail down the facts of his or her client’s case before allowing the client to speak with the prosecutor, all while balancing the practical implications of today’s plea negotiations that allow the “first defendant in the door” to receive a more favorable deal. If the plea falls through, however, the practical effect of a Rule 410 waiver is the waiver of the right to put on a defense � whether through opening statement, the cross-examination of witnesses or the presentation of evidence � that may be viewed by the court as contrary to the defendant’s statements to prosecutors. While use of such statements was once limited to impeachment purposes when the defendant testified inconsistently, Mezzanato and cases since highlight the risk of having a case attacked by a client’s own words even if he never takes the stand. In deciding whether to let a client speak to the government as part of plea negotiations, a lawyer must determine whether the client even has a defense left if he does so and plea negotiations later fail. Even if a lawyer doesn’t plan to put on evidence and decides merely to put the government to its burden of proof, which is a defendant’s constitutional right, the lawyer may be effectively precluded from doing so if, in his or her opening statement or in the cross-examination of the government’s witnesses, he or she crosses the line and implies a defense theory that is at odds with the client’s prior statements. If plea negotiations fail, it’s no longer just about whether the client should testify at trial. Rather, it’s about whether a client will be testifying at trial by proxy in the form of a government agent to whom the plea statements were made, and perhaps helping to convict himself. Mark Calloway is a partner, and Catherine Hess is a senior associate, in the Charlotte, N.C., office of Atlanta-based Alston & Bird. They concentrate their practices on government and internal corporate investigations. Hannah Dabbs is a 2007 summer associate at the firm.

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