Opinion
CRIMINAL ACTION 16-229 (BAH)
08-05-2024
UNITED STATES OF AMERICA, v. RUBEN OSEGUERA-GONZALEZ, Defendant.
MEMORANDUM OPINION AND ORDER
Beryl A. Howell Judge
Defendant Ruben Oseguera-Gonzalez faces trial on September 9, 2024, on a two-count superseding indictment, arising from his alleged drug trafficking and use and possession of a firearm in furtherance thereof. This is not the first trial date set in this case. The first trial date, scheduled for May 1,2023, at the parties' joint request, see Min. Order (June 1, 2022), was vacated after the parties jointly requested a change of plea hearing, see Joint Mot. to Set Plea Hr'g, ECF No. 44, which change of plea hearing was aborted, when the evening before the hearing, defendant advised he had retained new counsel, who was unprepared to proceed to trial on the scheduled date, see Min. Entry (Apr. 12, 2023). Pending before the Court are defendant's Motion to Preclude the Use of Defendant's Statements Made During the Course of Plea Negotiations (“Def.'s Mot.”), ECF No. 137, and the government's corresponding Motion in Limine to Admit Signed Statement of Facts and Opposition to Defendant's Motion to Preclude Use of the Same (“Gov't's MIL”), ECF Nos. 144 (sealed), 146 (public, redacted). For the reasons set forth below, defendant's motion is GRANTED, and the government's motion is DENIED.
I. BACKGROUND
As part of an extensive and long-term investigation into the drug trafficking activities of the Cartel de Jalisco Nueva Generacion (“CJNG”), a large and violent drug trafficking organization based in Jalisco, Mexico, responsible for trafficking bulk quantities of cocaine, methamphetamine, and heroin into the United States, the Drug Enforcement Agency identified defendant as the son of Nemesio Oseguera-Cervantes, also known as “Mencho,” who is the leader of the CJNG, and as a high-ranking participant in CJNG's drug trafficking. See Gov't's Mot. for Pre-Trial Det. (“Gov't's Det. Mot.”) at 2, 6, ECF No. 13. In February 2017, the government filed a two-count superseding indictment against defendant, charging him with conspiring, from around 2007 until February 1, 2017, to distribute five kilograms of more of a mixture and substance containing a detectable amount of cocaine, as well as 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, for unlawful importation into the United States, in violation of 21 U.S.C. §§ 959(a), 960, and 963, and 18 U.S.C. § 2 (Count One); and using, carrying, brandishing, and possessing a firearm, including a destructive device, in furtherance of the drug trafficking offense charged in Count One, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(B)(ii), and 2 (Count Two). See Superseding Indictment, ECF No. 6. Defendant was extradited from Mexico to Washington, D.C. on February 20, 2020, to face prosecution on the Superseding Indictment, see Gov't's Det. Mot. at 2.
For over three years, the parties engaged in extensive discovery. As noted, upon joint motion by the parties, a trial on all charges was scheduled for early May 2023. See Min. Order (June 1, 2022) (scheduling trial for May 1, 2023); Notice of Rescheduled Hr'g (Jan. 11, 2023) (rescheduling trial for May 2, 2023); see also Joint Mot. to Exclude Time & Set Trial Date, ECF No. 39. The day before pretrial motions were due, and approximately two weeks before the pretrial conference, the parties jointly moved for a plea hearing. See Joint Mot. to Set Plea Hr'g. A plea hearing was scheduled for April 12, 2023. See Min. Order (Mar. 21, 2023). In preparation, the government filed a Second Superseding Information, ECF No. 48, and the parties entered into a plea agreement (“Plea Agreement”), with an accompanying statement of facts (“SOF”), see Gov't's MIL, Ex. A (“Plea Agreement”), ECF No. 146-2; Gov't's MIL, Ex. C (“Plea Addendum”), ECF No. 144-1; Gov't's MIL, Ex. B (“SOF”), ECF No. 146-3. Defendant and his counsel signed both the Plea Agreement and SOF on April 6, 2023, see Plea Agreement at 9; Plea Addendum at 8; SOF at 7, and defense counsel emailed the signed paperwork to the Court on the same day, see Gov't's MIL at 2-3.
The Second Superseding Information amended Count Two to replace the destructive device enhancement under 18 U.S.C. § 924(c)(1)(B)(ii), with a semiautomatic assault weapon enhancement under 18 U.S.C. § 924(c)(1)(B)(i), thereby lowering the mandatory minimum on Count Two from 30 to 10 years.
On the evening of April 11, 2023, just before the scheduled plea hearing, the government learned that defendant's family had retained new defense counsel, Arturo Hernandez, see Gov't's Mot. for Conflict Inquiry (“Gov't's Conflict Mot.”) at 2, ECF No. 50, and that defendant wanted to confer with Hernandez prior to pleading guilty, see Gov't's MIL at 3. Concerned that a conflict might arise because several of defendant's co-conspirators in the drug conspiracy charged in Count One are members of defendant's family, the government moved for a conflict inquiry and appointment of conflicts counsel. Gov't's Conflict Mot. at 2; see also Gov't's Mot. for Appointment of Conflicts Couns. at 1, ECF No. 60. To address the parties' concerns, the plea hearing was converted into a status hearing, see Min. Entry (Apr. 12, 2023), the government's motion for a conflict inquiry and appointment of conflicts counsel was granted, and the May 2023 trial date was vacated “to give the conflicts counsel time to evaluate a potential conflict and submit a report to the Court,” Min. Entry (Apr. 21, 2023).
At least eight of defendant's family members have been charged in related cases. See Hr'g Tr. (Apr. 21, 2023) at 4, ECF No. 109. Defendant's father, for example, is Nemesio Oseguera-Cervantes, the alleged leader of the CJNG and a fugitive charged in this District. See United States v. Oseguera-Cervantes, No. 14-cr-51-2.
After investigating the matter, the conflicts counsel found no actual conflict and that defendant expressly waived any possible or potential conflict. See Rep. of Indep. Couns. at 7, ECF No. 66; see also Hr'g Tr. (May 12, 2023) at 17-18, ECF No. 108 (the Court finding that defendant knowingly and intelligently waived any conflict). At the conflict hearing on May 12, 2023, the Court reviewed with defendant “all of the various issues that are at issue when there is a potential conflict,” Hr'g Tr. (May 12, 2023) at 11, which included asking the government for its position on how Federal Rule of Evidence (“FRE”) 410 would apply to “any statements made by this defendant to the government, either orally or signed in a written statement as part of any plea discussions that occurred,” if defendant chose not to enter a guilty plea, id. at 8. The government stated its position that the SOF is not “a statement that is made in furtherance of plea negotiations,” but a “final statement” that is “the result of the plea negotiations” and “can be used against him” if defendant “withdraw[s] from th[e] plea agreement.” Id. at 9-10. Though “not making any kind of ruling” about the admissibility of “the signed paperwork and other oral statements that may have been made in connection with the plea,” the Court confirmed with defendant and his counsel that they understood the government's position and the consequences thereof. Id. at 10. Hernandez acknowledged that he discussed with defendant the government's position, adding that he had advised defendant that the plea documents would likely be inadmissible, having been allegedly “read to him by a noncertified court interpreter.” Id. at 12. Given that the purpose of the hearing was to ascertain conflict, not evaluate the admissibility of defendant's SOF, no ruling was issued on whether defendant waived his rights under procedural or evidentiary rules. Hernandez was permitted to appear as defense counsel, and prior counsels' motion to withdraw was granted. See id. at 18; Min. Entry (May 12, 2023) (excluding time under the Speedy Trial Act from May 12, 2023, to September 15, 2023, “to give new counsel and his client the time to start reviewing the discovery and decide how to proceed in this matter”).
Despite the conflicts counsel's conclusion that no actual conflict existed and that defendant had expressly waived any possible or potential conflicts, Hernandez moved, in November 2023, to withdraw as counsel to avoid any perceived or actual conflict of interest. See Def.'s 1st Mot. to Withdraw as Att'y, ECF No. 88; Def.'s Am. Mot. to Withdraw as Att'y, ECF No. 91. Hernandez's motion was twice denied without prejudice, for failing to offer any “discussion of new information to alter that prior independent conclusion and waiver, [or] about any impact on the operative schedule of proceedings set out in the [scheduling order] issued on September 15, 2023, including the trial date, [or] acknowledgment of the interests served by continuity of counsel, considering the long pendency and the volume of discovery at-issue in this matter and previous delays caused by new counsel.” Min. Order (Nov. 8, 2023); see also Min. Order (Nov. 10, 2023). His motion was eventually granted at the pretrial conference on November 17, 2023, after hearing from the parties, including defendant's new counsel. See Min. Order (Nov. 17, 2023).
At the next status conference four months later, a trial on all charges was scheduled for October 7, 2024, upon joint request of the parties. See Min. Entry (Sept. 15, 2023); Min. Order (Sept. 15, 2023). The parties informed the Court, however, that they were still engaged in plea negotiations, and that the Plea Agreement would be kept open until October 16, 2023. See Hr'g Tr. (Sept. 15, 2023) at 6, ECF No. 106. While noting that the issue was unresolved and the parties “may want to litigate” the issue, the Court again notified defendant of “the potential risk” that the “signed statement of facts may be used against him at trial.” Id. at 7. Defense counsel confirmed that he and defendant “have discussed that at length,” and that defendant “understands the risk and he understands the benefits.” Id.
After the October 16, 2023, deadline passed without a change of plea hearing, the Second Superseding Information was dismissed on the government's motion, see Min. Order (Oct. 17, 2023); Gov't's Mot. to Dismiss, ECF No. 73, and the trial date was rescheduled, with the parties' consent, to September 9, 2024, see Min. Order (Nov. 27, 2023).
II. DISCUSSION
Federal Rule of Criminal Procedure (“Rule”) 11 and FRE 410 limit the admissibility of “a plea, a plea discussion, and any related statement.” FED. R. CRIM. P. 11(f) (providing that “admissibility or inadmissibility” is governed by FRE 410). In relevant part, FRE 410 makes inadmissible against a defendant any statement the defendant “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,” FED. R. EVID. 410(a)(4), with two specifically delineated exceptions not at issue here, see FED. R. EVID. 410(b).
Defendant concedes that the statements made by him during plea negotiations are admissible for impeachment or rebuttal purposes. See Def.'s Mot. at 1-2; Gov't's MIL at 1 n.l. Thus, the scope of the instant dispute is narrow: whether the government may admit defendant's signed SOF in its case-in-chief. Relying on Rule 11(f) and FRE 410, defendant argues that the government cannot use his SOF in its case-in-chief because “[t]here was no unambiguous knowing and voluntary waiver,” where “no plea of guilty was entered, and no Rule 11 plea colloquy [was] conducted.” Def.'s Mot. at 2. The government, in turn, argues that Rule 11(f) and FRE 410 are inapplicable because defendant's SOF was finalized after plea negotiations concluded and, even if applicable, defendant, by signing the Plea Agreement, voluntarily and knowingly waived any protection those two rules provide. Gov't's MIL at 8. For the reasons set forth below, defendant's SOF cannot be used in the government's case-in-chief, pursuant to Rule 11(f) and FRE 410.
The government responds only to defendant's arguments about the use of his signed SOF in the government's case-in-chief, see Gov't's MIL at 1, without addressing defendant's broader arguments that the government cannot use any statements made by defendant during plea negotiations, see Def.'s Mot. at 1. Consequently, the government is deemed to concede the broader exclusion urged by defendant as to his statements made during plea negotiations. See Wannall v. Honeywell. Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[l]f a party files an opposition to a motion and therein addresses only some of the movant's arguments, the court may treat the unaddressed arguments as conceded.”).
The government's arguments that the SOF is admissible, pursuant to FRE 801 and 403, thus need not be addressed. See Gov't's MIL at 5-8, 18-20.
A. Applicability of Rule 11(f) and FRE 410
Plea bargaining has long been accepted as “central to the administration of the criminal justice system.” Missouri v. Frye, 566 U.S. 134, 143 (2012); see also Bordenkircher v. Hayes, 434 U.S. 357, 361-62 (1978) (“Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned.” (alteration in original accepted and citation omitted)); United States v. Jenkins, 50 F.4th 1185, 1205 (D.C. Cir. 2022) (“[P]lea bargaining is ubiquitous in the criminal justice system.”). FRE 410 “seeks to promote negotiated dispositions of criminal cases by giving the defendant protection from involuntary self-incrimination at two ends of the plea-bargaining spectrum: while he is negotiating over the disposition of his case and while he is offering or entering a plea that is rejected or later withdraw.” United States v. Davis, 617 F.2d 677, 683 (D.C. Cir. 1979).
Davis concerns a prior iteration of Rule 11(e)(6), which provided that any “statement[] made in connection with, and relevant to” “a plea of guilty, later withdraw” “is not admissible in any civil or criminal proceeding against the person who made the offers.” Davis, 617 F.2d at 682. This language is seemingly broader than the current version of FRE 410, which applies to “statements made during plea discussions with an attorney for the prosecuting authority,” and, in some cases, this prior iteration of Rule 11(e)(6) might protect statements that would now not be protected under FRE 410. See United States v. Marks, 209 F.3d 577, 582 (6th Cir. 2000) (explaining that “Congress amended Rule (e)(6) in 1979” in part to narrow “what Congress thought was a too-broad view of the plea negotiation process”). “The rationales behind [Rule 11(e)(6) and FRE 410] are the same,” however, Davis, 617 F.2d at 682 n.13, and any disconnect due to language differences between Rule 11(e)(6) and FRE 410 has been obviated by the current version of Rule 11, as amended in 2002 to eliminate subsection (e)(6) and add Rule 11 (f), cross referencing FRE 410. See FED. R. CRIM. P. 11(f) (“The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.”).
The parties dispute the scope and applicability of FRE 410(a)(4), which “focuses primarily on the negotiation stage” for a defendant's entry of guilty plea and “derives from ‘the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him.'” Id. (quoting United States v. Herman, 544 F.2d 791, 796 (5th Cir. 1977)). FRE 410(a)(4) fosters this free dialogue by making inadmissible against a defendant statements by the defendant “made during plea discussions with an attorney for the prosecuting authority,” FED. R. EVID. 410(a)(4), but only to the extent “the accused and the government actually engage in plea negotiations,” that is, “discussions in advance of the time for pleading with a view to an agreement whereby the defendant will enter a plea in the hope of receiving certain charge or sentence concessions,” United States v. Knight, 867 F.2d 1285, 1288 (11th Cir. 1989) (emphasis omitted) (quoting United States v. Robertson, 582 F.2d 1356, 1365 (5th Cir. 1978)).
Defendant posits that the SOF at issue was “made during plea discussions,” under FRE 410(a)(4), since this document “was part and parcel to the negotiated plea bargain and agreement, and cannot through magic or slight of hand now be separated.” Def.'s Reply Supp. Mot. to Preclude (“Def.'s Reply”) at 2, ECF No. 164. The government disagrees, arguing that the Plea Agreement and SOF were “the final product of plea negotiation adopted after the parties concluded negotiations” and were sent to “defense counsel for signatures [only] to effectuate the finalized agreement-not for further negotiations.” Gov't's MIL at 10-11. Defendant has the better interpretation on the factual record in this case.
Starting with the text of FRE 410, statements “made during plea discussions with an attorney for the prosecuting authority” are inadmissible under FRE 410(a)(4). “During” means “throughout” “the time during which something exists or lasts.” During, Merriam-Webster, https://www.memam-webster.com/dictionary/during; Duration, Merriam-Webster, https://www.merriam-webster.com/dictionary/duration; see also During, Oxford Eng. Dictionary, https://www.oed.com/dictionary/duringprep (“[t]hroughout the whole continuance of'). A plea agreement, and corresponding statement of facts, are a quintessential part of the “fairly formal plea bargaining between the United States Attorney and counsel for defendant after charges had been, or were about to be, made.” United States v. Stirling, 571 F.2d 708, 731 (2d Cir. 1978) (citation omitted). Indeed, as the government implicitly concedes, the Plea Agreement was not “effect[ive]” until signed by defendant and his counsel. Gov't's MIL at 11. The SOF, in turn, was explicitly incorporated into the Plea Agreement, see Plea Agreement ¶ 1 (providing that the SOF “is attached to this Plea Agreement and incorporated herein”), which incorporation makes clear that defendant's SOF was drafted as part of the Plea Agreement and for the purpose of “reach[ing] a plea agreement,” Davis, 617 F.2d at 683 n. 17. Put differently, the SOF was a statement made prior to the “formalization of the plea agreement,” Davis, 617 F.2d at 684, and was “part of [the parties'] efforts to dispose of the matter-through extraction of information from [defendant] and, possibly, a plea,” United States v. Wood, 879 F.2d 927, 936 (D.C. Cir. 1989); see United States v. El-Amin, 268 F.Supp.2d 639, 641 (E.D. Va. 2003) (concluding that defendant's statement of facts was “made as a part of the plea agreement process,” having been “executed according to and in conformity with the Plea Agreement”); United States v. Alazzam, No. 8-cr-lOl, 2009 WL 3245392, at *2 (E.D. Va. Sept. 29, 2009) (rejecting same argument made by the government here because the statement of facts “clearly embraces statements made as part of the plea agreement process” (citation omitted)).
This interpretation is supported by the purpose of FRE 410(a)(4) “to promote the free and open negotiation that must precede any compromise between the defense and the prosecution.” Davis, 617 F.2d at 685. Parties routinely negotiate over the facts included in a defendant's statement of facts and the precise wording thereof because these “admissions form the factual basis that establish the elements of the offense required to be proven by the Government beyond a reasonable doubt.” Def.'s Reply at 2; see also SOF at 1 (explaining that the SOF “represents sufficient information for the Court to find a factual basis for accepting the Defendant's guilty plea”). Modifications of the statement of facts, even if signed in good faith, may occur during the Rule 11 colloquy before a judge, who must make inquiry of a defendant, under oath, about the facts “[b]efore entering judgment on a guilty plea,” in order to make the requisite determination “that there is a factual basis for the plea.” FED. R. CRIM. P. 11 (b)(3). Absent the shield of FRE 410(a)(4), “the possibility of self-incrimination would discourage defendants from being completely candid and open during plea negotiations,” including in the crafting of a statement of facts that satisfies both the government and defendant, Davis, 617 F.2d at 683, as well as during a Rule 11 plea colloquy.
As comparison, take the D.C. Circuit's decision in Davis, concluding that a defendant's grand jury testimony, after execution of and pursuant to a plea agreement, fell outside the scope of FRE 410(a)(4) and was thus admissible, even though the defendant ultimately withdrew from the agreement before entering a formal guilty plea in a Rule 11 colloquy before a judge. Id. at 683-84. In so concluding, the Court explained that if such testimony could be excluded, a defendant could say whatever he wanted before the grand jury and “breach his [plea] bargain with impunity”; that is, any defendant who “wants out” of his agreement “could renounce the agreement and return to the status quo ante whenever he chose, even though the Government has no parallel power to rescind the compromise unilaterally.” Id. at 685-86. This concern of a defendant being able to renounce a plea agreement unilaterally and with no repercussion is not implicated by excluding defendant's SOF here, where the statements at issue were not made under oath after executing the plea agreement but were part of the SOF signed as a necessary step to conclude the plea negotiations and enter the agreement. Cf. Stirling, 571 F.2d at 731 (concluding that Rule 11(e)(6) does not apply to “testimony given after formalization of a negotiated plea agreement and before withdrawal from that agreement”); United States v. Lloyd, 43 F.3d 1183, 1186 (8th Cir. 1994) (finding that “[o]nce [defendant] signed the [plea] agreement, negotiations terminated and Rule 11(e)(6) by its terms no longer required exclusion of his subsequent statements”); United States v. Watkins, 85 F.3d 498, 500 (10th Cir. 1996) (suggesting that the trigger for Rule 11(e)(6) is “the finalization of[] a plea agreement”). Accordingly, the SOF occurred “during plea discussions” pursuant to FRE 410(a)(4).
As a final note, the government's competing interpretation would create a significant loophole in FRE 410. According to the government, plea negotiations in this case ended in March 2023, before either the government or defendant signed the plea paperwork. Under this characterization of the chronology, the Plea Agreement and SOF are documents that merely “memorialized the results of the negotiation” and, as such, are admissible as statements that occurred after plea negotiations concluded. Gov't's MIL at 10. Here, defendant never attended a Rule 11 plea hearing, but imagine a scenario where defendant had, and either his guilty plea was rejected by the court or accepted then later withdrawn by defendant. Under the government's interpretation of FRE 410, defendant's Plea Agreement and SOF would be admissible, as statements made after plea discussions, even though defendant's statements at the Rule 11 plea hearing would be inadmissible under FRE 410(a)(3). See FED. R. EVID. 410(a)(3) (providing that “a statement made during a proceeding on [a guilty plea] under Federal Rule of Criminal Procedure 11” is inadmissible).
If the government were correct that plea negotiations in this case ended in March 2023, the unsigned SOF would also be a statement that occurred after plea negotiations had ended and thus would not be protected under FRE 410, thereby leaving open the possibility that even the unsigned SOF could be admissible. In reply, the government appears to concede that the unsigned SOF would be a statement made during plea discussions, see Gov't's Reply Supp. Mot. to Admit at 3 n.l, ECF No. 164, but this concession is inconsistent with the government's position that plea negotiations ended in March 2023. The better interpretation is that both the signed and unsigned SOFs are statements made during plea negotiations, and whether defendant signed the SOF goes to waiver.
This result makes no sense. Rule 11 requires that a court “find a factual basis for the plea before accepting it,” United States v. Ford, 993 F.2d 249, 253 (D.C. Cir. 1993); see also FED. R. CRIM. P. 11(b)(3), which finding necessarily involves considering the factual allegations in defendant's SOF. When a plea is rejected or withdrawn, excluding statements made at a Rule 11 plea hearing is “necessary to effectuate the rejection or later withdrawal” because “[w]ere the statements admissible, the defendant's own incriminating words, inseparably linked to a plea now regarded as a nullity, in many cases would operate to convict him, thereby rendering meaningless the rejection or withdrawal.” Davis, 617 F.2d at 684. The government's interpretation of FRE 410, under which the Plea Agreement and SOF would be admissible in such scenario, would create a workaround FRE 410(a)(3) and render the rejection or withdrawal of a plea of inconsequential. For these reasons, Rule 11(f) and FRE 410 apply to defendant's SOF.
B. Waiver
The question whether defendant waived his rights under Rule 11(f) and FRE 410 remains. “A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution” and statutes, including the rights guaranteed by Rule 11(f) and FRE 410. See United States v. Mezzanatto, 513 U.S. 196, 201 (1995); see also United States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016) (“[A] knowing, intelligent, and voluntary . . . waiver, even though anticipatory, generally may be enforced.” (citation omitted)). These rights can be waived not only for purposes of impeachment and rebuttal, but also for purposes of the prosecution's case-in-chief. See United States v. Burch, 156 F.3d 1315, 1320 (D.C. Cir. 1998).
Both sides, properly, look to the relevant language from the Plea Agreement to assess whether a waiver of the rights provided by Rule 11(f) and FRE 410 occurred here. The pertinent text in three separate sentences is as follows:
The Defendant acknowledges discussing with his counsel Rule 11(f) of the Federal Rules of Criminal Procedure and Federal Rule of Evidence 410, 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, the Defendant understands and agrees that any statements which are made in the course of his guilty plea will be admissible against him for any purpose in any criminal or civil proceeding if the Defendant breaches the Plea Agreement or his guilty plea is subsequently withdrawn.Plea Addendum ¶ 5. The parties' dispute raises two separate questions: (1) as to timing, under the Plea Agreement, does defendant waive his Rule 11(f) and FRE 410 rights upon signing the agreement, or upon acceptance of the agreement by the Court as part of the Rule 11 plea colloquy; and (2) was defendant's waiver knowing and voluntary? For the reasons explained below, based on the text of the Plea Agreement, alone, defendant did not waive his Rule 11 (f) and FRE 410 rights upon signing the Plea Agreement. Thus, the parties' arguments as to the second question about whether any waiver was knowing and voluntary, including any arguments about whether Spanish interpretation was provided, need not be addressed.
“Interpretation of a plea agreement begins with [the] plain language,” Hunt, 843 F.3d at 1027, and the text of the relevant paragraph contains expansive language in the second sentence which states, in full: “The Defendant knowingly and voluntarily waives the rights which arise under these rules,” Plea Addendum ¶ 5. Yet, this sentence is sandwiched between the first and third sentences, both of which contain language cabining this waiver to encompass all statements made by defendant only when a decision on his guilty plea is made by the Court. The first sentence of the waiver paragraph, for example, states that defendant has “discussfed] with his counsel” and “knowingly and voluntarily waives” his rights under Rule 11(f) and FRE 410, which rules “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.” Id. (emphasis added). The reference to “plea proceedings” could reasonably be interpreted to suggest that the phrase “if a guilty plea is later withdrawn” contemplates the withdrawal of a guilty plea after defendant has engaged in a Rule 11 plea colloquy, and the Court has accepted the Plea Agreement. The third sentence reinforces this understanding, by summarizing that defendant waives the use against him of “any statements which are made in the course of his guilty plea” if “his guilty plea is subsequently withdrawn.” Id. These references to statements made by defendant during “plea proceedings” indicate that the waiver provision becomes effective upon acceptance of defendant's plea, rather than defendant's signing of the Plea Agreement.
The use of the phrase “guilty plea” elsewhere in the Plea Agreement reinforces this understanding. Paragraph 6, for example, provides that “by pleading guilty in this case,” defendant “agrees to waive certain rights afforded by the Constitution of the United States and/or by statute, including the right to plead not guilty, the right to a jury trial, and the right to effective assistance of counsel.” Plea Agreement ¶ 6. That defendant does not waive these rights until the Court accepts his guilty plea is undisputed. See United States v. Baptiste, No. 17-cr-10305, 2019 WL 2331628, at *1 (D. Mass. May 31, 2019) (concluding that the FRE 410 waiver in defendant's plea agreement was not enforceable until defendant actually pleaded guilty because the agreement included other waivers, including venue and statute of limitations waivers, that “would clearly not be enforceable absent an actual change of plea”). It thus logically follows that, under the terms of the Plea Agreement, defendant's Rule 11(f) and FRE 410 rights are also not waived until defendant's guilty plea is accepted.
The government, in response, argues that the Plea Agreement is unambiguous, having specified that “breaching the Plea Agreement” “trigger[s] the waiver” and that defendant's refusal to plead guilty constituted a breach. Gov't's MIL at 14; see also id. at 21-22; Gov't's Reply at 4 (emphasizing that the Plea Agreement required defendant “to plead guilty to the Superseding Information”). Nothing in the Plea Agreement, however, suggests that defendant waived his right under Rule 11 (d) to “withdraw a plea of guilty” “before the court accepts the plea, for any reason or no reason.” FED. R. CRIM. P. 11(d)(1). This right was not discussed with-much less waived by-defendant in the Plea Agreement or during any of the status conferences, and without an explicit waiver, defendant's right under Rule 11(d) cannot be deemed waived. Indeed, the Fifth Circuit addressed and rejected a similar argument made by the government in United States v. Escobedo, explaining that where a plea agreement did not “clearly or unambiguously state” that defendant's “withdrawal of his guilty plea under [Rule] 11(d)(1) would constitute a breach of the agreement,” and defendant withdrew his plea under Rule 11(d)(1) with no objection from the government, defendant's Rule 11(f) and FRE 410 waiver did not become effective “contemporaneously with his signing of the plea agreement.” 757 F.3d 229, 233-34 (5th Cir. 2014).
In addition, nothing in the Plea Agreement makes explicit that the terms of this agreement, including all the waivers therein, became binding with defendant's signature. United States v. Washburn, which the government cites, undermines rather than supports its position. See Gov't's MIL at 15. Although the Eighth Circuit in Washburn concluded that the waiver of defendant's rights under Rule 11(f) and FRE 410 was triggered when defendant chose not to plead guilty, despite signing the plea agreement, the operative plea agreement language in Washburn provided that “[d]efendant waives [his rights under Rule 11(f) and FRE 410] and agrees this stipulation may be used against defendant at any time in any proceeding should defendant violate or refuse to follow through on this plea agreement, regardless of whether the plea agreement has been accepted by the Court.” 728 F.3d 775, 780 (8th Cir. 2013) (part of emphasis in original omitted). No such language appears in the Plea Agreement here that would make clear that the waiver of defendant's rights under Rule 11(f) and FRE 410 occurs upon defendant's and his counsel's execution of the Plea Agreement and SOF.
Take, as another example, the standard language used by the United States Attorney's Office (“USAO”) for the District of Columbia in its plea agreements:
Your client acknowledges discussing with you Rule 11(f) of the Federal Rules of Criminal Procedure and Federal Rule of Evidence 410, 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. Your client knowingly and voluntarily waives the rights that arise under these rules in the event your client withdraws your client's guilty plea or withdraws from this Agreement after signing it.Plea Agreement ¶ 9.B, United States v. Olugbenga, No. 23-cr-202, ECF No. 119. This language, though similar to the language in defendant's Plea Agreement, is different in the critical aspect that it unambiguously states that a defendant “knowingly and voluntarily waives” his rights under Rule 11(f) and FRE 410 not only if he “withdraws [his] guilty plea” but also if he “withdraws from this Agreement after signing it.” Put another way, under the USAO's language, a defendant's signing of the agreement undisputedly triggers the waiver of his rights under Rule 11(f) and FRE 410. In fact, the distinction in the USAO's language between the circumstance when a defendant “withdraws [his] guilty plea” and “withdraws from this Agreement after signing it” reinforces the interpretation that the waiver in the Plea Agreement in this case is triggered only when a defendant withdraws from his guilty plea after it has been accepted by the Court, not when a defendant withdraws from the Plea Agreement after signing it. If the government had intended for the Plea Agreement to waive defendant's rights upon signing, it could-and should-have explicitly said so. See United States v. Jim, 786 F.3d 802, 806 (10th Cir. 2015) (finding waiver upon signing where the plea agreement stated that “the Defendant agrees that, upon the Defendant's signing of this plea agreement, the facts that the Defendant has admitted under this plea agreement as set forth above, as well as any facts to which the Defendant admits in open court shall be admissible against the Defendant” (emphasis added)).
To be sure, interpreting the Rule 11(f) and FRE 410 waiver in the Plea Agreement to become effective only upon the Court's acceptance of the agreement is not the only permissible interpretation. As the government points out, portions of the Plea Agreement suggest that the government intended for the Plea Agreement to become binding upon signing. See Gov't's Reply at 4-5. “Ambiguity in a plea agreement,” however, “as in any other type of contract, is construed against the drafter,” the government. Hunt, 843 F.3d at 1027; United States v. Moreno-Membache, 995 F.3d 249, 255 (D.C. Cir. 2021) (“Under settled precedent, ambiguity in the meaning of a plea agreement must be resolved against the government.”). Indeed, the government is held “to a greater degree of responsibility than the defendant (or possibly than would be either of the parties to commercial contracts) for imprecisions or ambiguities in plea agreements.” United States v. Wood, 378 F.3d 342, 348 (4th Cir. 2004) (citation omitted). Where a defendant “only arguably or ambiguously” waives his rights, such a waiver will not be enforced against defendant. Hunt, 843 F.3d at 1027; cf Moreno-Membache, 995 F.3d at 251 (“[T]he law demands clarity when constitutional rights are waived.”).
Finally, consideration of Rule 11, which governs “the formation and acceptance of a binding plea agreement,” further reinforces that defendant's interpretation is the better one. United States v. Novosel, 481 F.3d 1288, 1291-92 (10th Cir. 2007); see also Ford, 993 F.2d at 253 (“Entry of a plea of guilty is governed by Rule 11 of the Federal Rules of Criminal Procedure.”); United States v. Partida-Parra, 859 F.2d 629, 634 (9th Cir. 1988) (“The formation of binding plea agreements is governed not by the Uniform Commercial Code, but by the Federal Rules of Criminal Procedure, which requires, among other things, that the court approve the plea agreement.”). A plea agreement is “not simply a contract between two parties” because such an agreement “necessarily implicates the integrity of the criminal justice system.” Wood, 378 F.3d at 348. Rule 11, therefore, “requires the courts to exercise judicial authority in considering the plea agreement and in accepting or rejecting the plea.” Id. “N plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.” Mabry v. Johnson, 467 U.S. 504, 507 (1984); Novosel, 481 F.3d at 1292 (“Courts have held that under Rule 11, a plea agreement... must be accepted by the court before it is binding.” (alteration in original accepted and citation omitted)); United States v. Gonzalez, 918 F.2d 1129, 1133 (3d Cir. 1990) (“It is axiomatic that a plea agreement is neither binding nor enforceable until it is accepted in open court.”); United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir. 1993) (“A plea agreement that has not been entered and accepted by the trial court does not bind the parties.”); United States v. Price, 237 F.Supp.2d 1, 4 n.l (D.D.C. 2002) (“The law is clear that, whether or not it is ‘fair,' the government may revoke a plea offer at any time until the guilty plea is entered and accepted by the court.”). Based on these principles, a defendant may reasonably conclude that the Rule 11 (f) and FRE 410 waiver did not become effective until his plea was accepted by the Court.
The government responds that “[a] colloquy with a judge regarding a specific waiver is not required for the waiver to be valid because a defendant can receive the requisite knowledge through competent counsel,” Gov't's MIL at 13; see also id. at 16-17, but perusal of the cases cited by the government reveal that the government has overplayed its hand. These cases stand for the basic proposition that a Rule 11 colloquy need not pour over every term in a plea agreement, as long as the district court confirms with defense counsel and accepts counsel's representation that the terms of the plea agreement “were explained to the defendant.” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2003); see also Henderson v. Morgan, 426 U.S. 637, 647 (1976) (explaining that the record must contain “either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused”); see also Burch, 156 F.3d at 1323 (allowing the government to use defendant's statement of facts, in part, because the trial court “went through the specific terms of the plea agreement with [defendant], including the provision in which he waived his rights under Rules 11(e)(6) and 410,” which terms defendant repeatedly acknowledged; and collecting cases that support the proposition that “where the trial court conduces] an extensive Rule 11 colloquy . . ., there is no reason to cast doubt on the court's conclusion that the plea was voluntary”). Here, defendant never engaged in a Rule 11 plea colloquy. No findings were made regarding whether defendant knowingly and voluntarily understood and accepted the terms of his Plea Agreement after consultation with counsel, or defendant's understanding of when the waivers in his Plea Agreement became effective. See FED. R. CRIM. P. 11(b)(2) (requiring courts, before accepting a guilty plea, to “determine that the plea is voluntary”); see also Ford, 993 F.2d at 253 (explaining that “the Court's duty under Rule 11(d)” is “to determine that the plea has been voluntarily made before accepting it”).
In sum, given that the Plea Agreement did not unambiguously waive defendant's rights under Rule 11(f) and FRE 410 in the situation here, where defendant signed the plea paperwork, but then changed counsel and decided not to proceed with a Rule 11 plea colloquy or entry of a guilty plea, defendant's SOF executed as part of and in support of the Plea Agreement remains subject to the protections of those procedural and evidentiary rules. Accordingly, defendant's SOF is inadmissible in the government's case-in-chief pursuant to Rule 11(f) and FRE 410.
III. CONCLUSION AND ORDER
For the foregoing reasons, it is:
ORDERED that defendant's Motion to Preclude the Use of Defendant's Statements Made During the Course of Plea Negotiations, ECF No. 137, is GRANTED; it is further
ORDERED that the government's Motion in Limine to Admit Signed Statement of Facts and Opposition to Defendant's Motion to Preclude Use of the Same, ECF Nos. 144, 146, is DENIED; it is further
ORDERED that the government may use defendant's Statement of Facts, ECF No. 1463, for impeachment purposes, but not in its case-in-chief; and it is further
ORDERED that the parties shall file, by August 7, 2024, a joint status report, providing their positions on whether this Memorandum Opinion and Order may be unsealed in full, without redaction; and if not, providing a full explanation for why partial sealing is necessary, with proposed redactions to the Memorandum Opinion and Order.
SO ORDERED.