United States v. Gary Mezzanatto

SNEED, Circuit Judge:

Appellant challenges the district court’s ruling allowing the prosecution to introduce statements he made during failed plea negotiations for impeachment purposes. We reverse the appellant’s conviction and remand for a new trial.

I.

FACTS AND PRIOR PROCEEDINGS

Appellant Gary Mezzanatto was charged with possession of methamphetamine in violation of 21 U.S.C. § 841(a)(1). At Mezzanat-to’s request, the government held a plea bargaining meeting with him. Before the start of this meeting, the prosecutor informed Mezzanatto that any statements he made during the meeting could be used to impeach any inconsistent testimony.he offered at trial, if the ease proceeded that far. Mezzanatto agreed to this, and the meeting began. The parties did not reach an agreement.

At trial, Mezzanatto offered testimony that was inconsistent with statements he made during. the negotiations. The government introduced the prior statements to impeach Mezzanatto. The appellant objected, but the court overruled the objections and allowed the statements for impeachment.

The jury found Mezzanatto guilty, and the district court imposed a 170 month prison term to be followed by five years of supervised release.

II.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291; Whether plea negotiation statements may be introduced to impeach a defendant and whether a defendant may waive the prohibition against the introduction of plea negotiations statements are questions of law and of statutory interpretation, and therefore, we review these issues de novo. See Anderson v. United States, 966 F.2d 487, 489 (9th Cir.1992).

III.

DISCUSSION

A. Issues on Appeal.

This appeal involves Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6). Rule 11(e)(6) is nearly identical in form and is identical in substance to Rule 410. Rule 410 reads:

Inadmissibility of Pleas, Plea Discussions, and Related Statements

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(1) a plea of guilty which was later withdrawn;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.

However, such a statement is admissible (i) in any proceeding wherein another, statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

Before reaching the primary issue this ease presents, whether a defendant may waive the prohibition against the introduction of statements made during plea negotiations, we examine the scope of the two rules.

B. The Scope of the Rules.

Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) are quite clear that statements made in the course of plea discussions are generally not admissible at trial. In only two instances are plea negotiation statements admissible. The first is an exception to prevent selective admission of plea negotiation statements. If a defendant introduces a statement made during plea negotiations, the prosecution may introduce other relevant plea negotiation statements so that the jury receives a full account of the issue presented. The only other exception allows for the admission of certain plea negotiation statements in a separate proceeding against the defendant for perjury. This exception is designed to permit punishment of defendants who take the stand and testify contrary to their plea negotiation statements. These two exceptions to an otherwise absolute rule do not include the use of such statements for impeachment.

The legislative history of these Rules is quite clear that plea negotiation statements are not admissible to impeach a defendant. A version of Rule 410, which never became effective, did allow plea negotiation statements to be introduced for impeachment, but this language was ultimately rejected. S.Rep. No. 1277, 93d Cong., 2d Sess. 10 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7057; H.R.Conf.Rep. No. 414, 94th Cong., 1st Sess. 10 (1975), reprinted in 1975 U.S.C.C.A.N. 713, 714; see also Fed.R.Evid. 410 (1974); Pub.L. 94-149, 89 Stat. 805 (1975). Congress unmistakably did not want statements made during plea negotiations to be used to impeach defendants. Detailing this history concerning impeachment, the Second Circuit said, “We regard this legislative history as demonstrating Congress’, explicit intention to preclude use of statements made in plea negotiations for impeachment purposes.” United States v. Lawson, 683 F.2d 688, 692-93 (2d Cir.1982); accord United States v. Martinez, 536 F.2d 1107, 1108 (5th Cir.1976).

Commentators offer no disagreement. See, e.g., Charles A. Wright & Kenneth W. Graham, Jr., 23 Federal Practice and Procedure § 5349 (1980); David W. Louisell & Christopher B. Mueller, 2 Federal Evidence § 188 (1985). No one argues that Congress did not mean what it said.

. This brings us to the issue to which Congress did not speak. Can the defendant waive the protection of these rules?

C. The Protection Against the Admission of Statements Made During Plea Negotiations Cannot Be Waived.

The issue of waiver of the protection of Rules 410 and 11(e)(6) is one of first impression.¹ The government contends that this rule may be waived by a defendant, and it argues that Mezzanatto knowingly and intelligently waived this protection. Mezzanat-to insists that the prohibition in Rules 410 and 11(e)(6) may not be waived. We agree with the appellant.

The importance of the prohibition against the admission of plea negotiation statements is best understood in the broader context of the criminal justice system. Plea bargains are an important and useful part of our criminal justice system.² They allow criminal cases to be resolved in a quick and cost-effective manner while maintaining the just administration necessary to the criminal justice system. Rules 410 and 11(e)(6) were designed to promote plea agreements by encouraging frank discussion in negotiations because such unrestrained candor promotes effective plea bargaining. See Fed.R.Crim.P. 11 adv. comm. note (1979), reprinted in 18 U.S.C.App. (1988).

For instance, prosecutors of those engaged in criminal conspiracies desire the fullest cooperation of those accused of participation therein. Frequently only by such cooperation can the organizers of the conspiracy, the higher-ups, be identified and prosecuted. Rules 11(e)(6) and 410 aid in obtaining this cooperation. A .lesser member of the conspiracy will more freely provide useful information to the prosecutors if he knows that none of his statements in plea bargaining sessions can be used against him.

Moreover, full cooperation may enhance the prospects of a better plea bargain from the prosecutor. In a sense, most defendants who enter plea bargaining do so with the prospect of exchanging information about other offenses or defendants for a lesser punishment for themselves. The rules at issue here permit the plea bargainer to maximize what he has “to sell” with the ability to withdraw from the bárgain proposed by the prosecutor without being harmed by any of his statements made in the course of an aborted plea bargaining session.

To allow waiver of these rules would be contrary to all that Congress intended to achieve. If these rules were subject to waiver, candid and effective plea bargaining could be severely injured. As the Eighth Circuit aptly explained, “[m]eaningful dialogue between the parties would, as a practical matter, be impossible if either party had to assume the risk that plea offers would be admissible in evidence.” United States v. Verdoorn, 528 F.2d 103, 107 (8th Cir.1976). Waiver of the protections of Rules 410 and 11(e)(6) could easily have a chilling effect on the entire plea bargaining process. See Wayne R. LaFave & Jerold H. Israel, 2 Criminal Procedure § 20.2, at 611 (1984).

The government, not unreasonably, argues that since defendants,can waive other statutory and constitutional rights, they should be able to waive Rules 410 and 11(e)(6).³ They rely on Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), and United States v. Navarro-Botello, 912 F.2d 318 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992), to support this argument. Neither these cases nor the analogy support the existence of a waiver power for these Rules.

In Newton, Mr. Rumery relinquished his personal right to pursue a civil remedy against the town of Newton, New Hampshire, which had arrested him, in exchange for a dismissal of all criminal charges against him. 480 U.S. at 390, 107 S.Ct. at 1190. The issue before the Court was whether such a “release-dismissal” agreement should be considered unenforceable as against public policy. Id. at 389, 107 S.Ct. at 1190. Although the Court agreed that such agreements may infringe on important interests of criminal defendants and society, id. at 392, 107 S.Ct. at 1191, the Court held that the agreement was enforceable because the “agreement would not adversely affect the relevant public interests.” Id. at 398, 107 S.Ct. at 1195 (footnote omitted).

That conclusion is inapplicable to the situation here. To allow the government to enforce its waiver agreement would, as already pointed out, adversely affect the public interest in efficient criminal case resolution. Furthermore, Newton dealt with the waiver of a civil remedy and a dismissal of criminal charges. Unlike the present situation, the range of possible adverse consequences to society in Newton is quite small.

Navarro-Botello does not help the government, either. The government argues that since defendants can waive the right to appeal, as in Navarro-Botello, 912 F.2d at 319-20, or certain other constitutional rights, a defendant should be able to waive the right to exclude plea negotiation statements. It is indisputable that defendants' can waive certain rights during plea negotiations. But to allow waiver of Rules 410 and 11(e)(6), which are part of the plea bargaining mechanism, could damage the system approved by Congress and the Supreme Court. They do not guarantee substantive rights so much as they guarantee fair procedure.

To equate the waiver of these rules with that of an asserted constitutional protection is a false equality. Judicially created waivers of the latter are the result of an inescapable feature of courts interpreting the Constitution by defining the right being asserted. To write in a waiver in a waiverless rule promulgated by the Supreme .Court and Congress, on the other hand, is not an inescapable duty. It more resembles unwelcome advice. Given the precision with which these rules are generally phrased, the comparative recentness of their promulgation, and the relative ease with which they are amended, the courts can afford to be hesitant in adding an important feature to an otherwise well-functioning rule.

Furthermore, the government should not be given the ability to extract a waiver of these rules from a defendant who is in a weak bargaining position. It should be noted that the government extracted the attempted waiver from Mezzanatto, not as part of a plea bargain, but simply as the price for the opportunity to enter into discussions that could have, but did not, lead to a plea bargain. With such a high entry cost, defense attorneys will be deterred from seeking plea bargains, and this will frustrate Congressional policy.

We therefore hold that the prohibition against the admissibility of statements made during plea negotiations is not subject to waiver.⁴

D. The Error Was Not Harmless.

Federal Rule of Criminal Procedure 11(h) requires a harmless error standard to be used for violations of plea bargaining rules. The same standard is applied for violations of Rule 410. See Lawson, 683 F.2d at 693. The contradictory impeachment evidence was clearly a significant blow to the appellant’s defense. It easily could have altered the balance in the eyes of the jury. Therefore, we find the error was not harmless and set aside the conviction and reverse the judgment and remand to the district court.

We find no merit in the remainder of the appellant’s contentions, but we direct the district court’s attention to the Supreme Court’s teachings in United States v. Dunnigan, - U.S. -, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), should resentencing be required.

REVERSED and REMANDED.

1 . This issue was before the District of Columbia Circuit, but it resolved the case on other grounds. United States v. Wood, 879 F.2d 927, 937 (D.C.Cir.1989).

2 . See Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136 (1977) C‘[T]he 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."); Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) ("Disposition of charges after plea discussions is not only an essential part 'of the process but a highly desirable part for many reasons.”).

3 . It is unclear whether the prohibition against the admission of plea negotiation statements in Rules 410 and 11(e)(6) should be considered an administrative rule or a personal right. But even if the prohibition is labeled a personal right, it is still not waivable. As the Supreme Court said nearly half a century ago, "a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy.... Where a private right is granted in the public interest to effectuate a legislative policy, waiver of a right so charged or colored with the public interest will not be allowed where it would thwart the legislative policy which it was designed to effectuate.” Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 704, 65 S.Ct. 895, 900, 89 L.Ed. 1296 (1945) (footnote and citations omitted). Allowing a waiver of these mies would contravene and thwart the policy — efficient case resolution through plea bargaining — these rules were designed to effectuate.

4 . We are not holding that the introduction of plea negotiation statements is per se reversible error. If a defendant fails to object at trial to the introduction of such testimony, he has implicitly waived the protection. Furthermore, as is explained in the following part, any error is subject to a harmless-error analysis.