U.S. v. Mitchell

Decision Date03 February 2011
Docket NumberNo. 09–4141.,09–4141.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Dino Nick MITCHELL, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

633 F.3d 997
84 Fed.
R. Evid. Serv. 782

UNITED STATES of America, Plaintiff–Appellee,
Dino Nick MITCHELL, Defendant–Appellant.

No. 09–4141.

United States Court of Appeals, Tenth Circuit.

Feb. 3, 2011.

[633 F.3d 998]

Bretta Pirie (Steven B. Killpack, Utah Federal Defender, with her on the briefs), Utah Federal Defender's Office, Salt Lake City, UT, for Appellant.Elizabethanne C. Stevens, Assistant United States Attorney (Carlie Christensen, Acting United States Attorney, with her on the brief), Office of the United States Attorney, Salt Lake City, UT, for Appellee.Before TYMKOVICH, SEYMOUR, and HOLMES, Circuit Judges.TYMKOVICH, Circuit Judge.

At Dino Mitchell's conspiracy trial, the government introduced evidence of his withdrawn guilty plea in its case-in-chief, including statements from his plea agreement and plea colloquy. Ordinarily a defendant's withdrawn guilty plea or his statements during plea discussions are inadmissible under Federal Rule of Evidence 410. But in this case Mitchell executed a plea agreement that waived his right to Rule 410's protections. When he later withdrew from the plea agreement and went to trial, the district court allowed the statements to be admitted. He now argues on appeal that he did not enter into the plea agreement voluntarily and that the district court erred in allowing him to withdraw from the plea agreement without also barring the use of his incriminating statements at trial.

We agree with the district court on both issues. Mitchell voluntarily entered into the plea agreement and waived Rule 410's protections. Under Supreme Court precedent, United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), the government is entitled to use plea statements during its case-in-chief at trial. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

[633 F.3d 999]

I. Background

Dino Mitchell and several co-conspirators were indicted on one count of conspiracy to transport stolen securities in violation of 18 U.S.C. §§ 371 and 2314. Mitchell's co-conspirators pleaded guilty to the charge pursuant to plea agreements with the government, but Mitchell refused and planned to go to trial. But on the day Mitchell's trial was set to begin, he entered into a plea agreement with the government and pleaded guilty.

The plea agreement set forth facts supporting the elements of the conspiracy charge and contained assurances Mitchell was aware of the constitutional and statutory rights he was waiving by pleading guilty. Specifically, Mitchell agreed 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.

R., Vol. 1, p. 33. The agreement required the government to recommend the low end of the sentencing guidelines range but recognized the sentence was ultimately within the discretion of the court, in accordance with 18 U.S.C. § 3553(a). During the plea colloquy, Mitchell affirmed he was not threatened or coerced into pleading guilty.

After the plea was entered, Mitchell obtained new counsel and filed a motion to withdraw his guilty plea. The motion claimed Mitchell had a “fair and just reason,” Fed.R.Crim.P. 11(d)(2)(B), to withdraw his plea, referencing the factors set forth by this court in United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir.2005) ( en banc ). Most prominently, Mitchell contended his plea was not knowing and voluntary because his previous counsel had pressured him into pleading guilty. The government opposed the motion, and the district court denied it, finding the “Rule 11 colloquy here clearly demonstrates that [Mitchell] entered his plea knowingly and voluntarily.” R., Vol. 1, p. 77.

Roughly one week later, Mitchell filed a motion to reconsider. He submitted with the motion two letters written by his previous counsel as evidence of their deteriorating relationship. One letter was addressed to Mitchell's brother and encouraged him to convince Mitchell to accept the plea deal. Counsel stated, “I can no longer talk to Dino, if only because he won't listen to me because I won't say what he wants to hear.” R., Vol. 1, p. 92. The other letter was written directly to Mitchell and discussed trial strategy as well as the prison sentence Mitchell likely would receive with, and without, accepting the plea agreement. Finally, counsel opined, “Dino, you would be a fool not to take this plea offer!!” R., Vol. 1, p. 95.

Based on these letters, the district court granted Mitchell's motion to withdraw his guilty plea. While concluding the advice to plead guilty was no doubt sound, the district court expressed concern about the possible “undue influence” exerted by Mitchell's counsel, especially “considering Defendant's lack of reading skills, lack of education, and general lack of understanding of the legal system.” R., Vol. 1, pp. 118–19 (footnotes omitted). But even with these concerns, the district court nonetheless found Mitchell's plea to have been knowing and voluntary. Acknowledging this was “an extremely close case,” the court determined Mitchell's constitutional right to a jury trial weighed in favor of granting his motion to withdraw his guilty plea. Id. at 119–20.

[633 F.3d 1000]

Before trial began, the government filed a motion in limine regarding the admissibility of statements Mitchell made in connection with his guilty plea. The government sought to admit these statements not merely as rebuttal evidence, but also in its case-in-chief. In support of its motion, the government cited Mitchell's waiver of the Rule 410 protections in his plea agreement that allowed his statements to be used against him in the event he withdrew his guilty plea. Mitchell opposed the motion, claiming admission of these statements would be more prejudicial than probative, in violation of Rule 403. After considering these arguments, the district court granted the motion and concluded the Supreme Court's reasoning that Rule 410 waivers permit admission of impeachment evidence, see United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), extended to permit the government to use Mitchell's plea statements in its case-in-chief. The court also rejected Mitchell's Rule 403 argument on the basis the plea statements' highly probative value was not substantially outweighed by any prejudice.

Evidence of Mitchell's guilty plea, including statements from the plea agreement and plea colloquy, was used extensively in the government's case-in-chief. In the government's opening statement, it told the jury Mitchell had admitted under oath the charged offense. A government witness described the hearing in which Mitchell pleaded guilty and read portions of the plea colloquy transcript in which Mitchell admitted to the facts of the offense. As well, during cross-examination of Mitchell, the government questioned him regarding his guilty plea. Finally, the government again emphasized Mitchell's guilty plea during its closing argument.

At the close of trial, Mitchell was convicted and sentenced to 27 months' imprisonment and 36 months of supervised release. He timely appealed.

II. Analysis

Evidence from plea negotiations is ordinarily inadmissible under Rule 410. But the protections of the Rule may be waived: “[A]bsent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of [Rule 410] is valid and enforceable.” Mezzanatto, 513 U.S. at 210, 115 S.Ct. 797. In Mezzanatto, the Supreme Court sanctioned the use of Rule 410 evidence for impeachment and during the government's rebuttal case. See Weinstein's Federal Evidence § 410.12 (“[I]f a defendant engaged in plea discussions signs a document providing that his or her statements may be used at trial to impeach or rebut contrary testimony, Rule 410 will not bar the statements.”). The issue here is whether the reasoning of Mezzanatto should be extended to allow the government to use Rule 410 evidence in its case-in-chief.

Mitchell argues Mezzanatto should not be extended in his case, offering several reasons. First, he contends his guilty plea was not knowing and voluntary and therefore the Mezzanatto waiver analysis should not apply. Next, relying on a concurrence in Mezzanatto, which suggested case-in-chief waivers might not be covered by the reasoning applied to rebuttal waivers, Mitchell urges us not to extend the reasoning of Mezzanatto to his situation.

Generally, we review a district court's decision on the admissibility of evidence for an abuse of discretion. See United States v. Stiger, 413 F.3d 1185, 1197 (10th Cir.2005). But in this case the question of whether to extend the rationale of Mezzanatto to case-in-chief waivers is a legal question, which we review de novo. See

[633 F.3d 1001]

United States v. Sylvester, 583 F.3d 285, 288 n. 4 (5th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1313, 175 L.Ed.2d 1096 (2010) (“Whether Rule 410 is waivable with respect to the use of plea statements in the government's case-in-chief is a legal conclusion, reviewed de novo.”). After all, “[a] district court by definition abuses its discretion when it makes an error of law.... The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

Our review of the voluntariness of a guilty plea is de novo. United States v. Hamilton, 510 F.3d 1209, 1215–16 (10th Cir.2007). An objection not preserved below is reviewed for plain error. United States v. Ferrel, 603 F.3d 758, 764 (10th Cir.2010).

A. Knowing and Voluntary Guilty Plea


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