U.S. v. Newbert, CR-05-53-B-W.
| Decision Date | 02 March 2007 |
| Docket Number | No. CR-05-53-B-W.,CR-05-53-B-W. |
| Citation | 477 F.Supp.2d 287 |
| Parties | UNITED STATES of America v. Winslow NEWBERT, Defendant. |
| Court | U.S. District Court — District of Maine |
Joel B. Casey, Office of the U.S. Attorney, District of Maine, Bangor, ME, for Plaintiff.
Richard L. Hartley, Law Office of Richard Hartley, Bangor, ME, for Defendant.
ORDER ON GOVERNMENT AND DEFENDANT'S MOTIONS IN LIMINE
The Court concludes that the Defendant's successful motion to withdraw his guilty plea, based on post-plea evidence of his actual innocence, does not constitute a breach of the plea agreement and, therefore, evidence of the entry of his guilty plea and his statements leading to the guilty plea are admissible in his upcoming trial only in accordance with Federal Rule of Evidence 410.
On June 7, 2006, at the Rule 11 hearing, Winslow Newbert admitted that he was guilty of possession with the intent to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1). At the Rule 11 hearing, the parties presented a signed Plea Agreement, which contained the following provision:
Consequences of Breach. If Defendant fails to enter a guilty plea or seeks and is allowed to withdraw his plea of guilty entered pursuant to this Agreement, under circumstances constituting a breach of this Agreement, or if Defendant's guilty plea is rejected due to Defendant's conduct constituting a breach of this Agreement, he hereby waives any rights that he has under Rule 410 of the Federal Rules of Evidence and Rule 11(f) of the Federal Rules of Criminal Procedure. Defendant understands that by waiving such right, the following would be admissible against him in any subsequent prosecution for the conduct underlying the charges in the case: (a) the fact that he pleaded guilty in this case; (b) all statements made in the course of the guilty plea; and (c) all statements made during the course of plea discussions.
Plea Agreement ¶ 5 (Docket # 109) (Agreement.) On July 31, 2006, Mr. Newbert moved to withdraw his guilty plea; on January 17, 2007, the Court granted his motion, and on January 22, 2007, the Court denied the Government's motion for reconsideration. Def's Mot. to Withdraw Plea of Guilty (Docket # 115); Order on Def's Mot. to Withdraw Guilty Plea (Docket # 146) (Order); Order on Gov't Mot. to Reconsider Order Granting Def's Mot. to Withdraw Guilty Plea (Docket # 150). On February 12, 2007, the Government moved in limine for an order pursuant to the provision in the Plea Agreement that Mr. Newbert's guilty plea and statements are admissible in its case-in-chief. Gov't Mot. in Limine Re: Prior Guilty Plea (Docket # 156) (Gov't Mot.). In response, the Defendant filed a similar motion asking that the guilty plea be excluded. Mot. in Limine Regarding the Admissibility at Trial of Def's Guilty Plea (Docket # 161) (Def.'s Mot.). On February 28, 2007, the Government filed a motion to reopen the hearing to present evidence challenging the evidentiary basis of the Court's decision to allow the Defendant to withdraw his guilty plea; the Court denied the motion from the bench on February 28, 2007. Gov't Mot. to Re-open Hr'g on the Def's Mot. to Withdraw Guilty Plea (Docket # 170); Oral Order (Docket # 172).
In 1927, the Supreme Court concluded that "the weight of reason is against the introduction in evidence of a plea of guilty withdrawn on order of court granting leave and permitting the substitution of a plea of not guilty." Kercheval v. United States, 274 U.S. 220, 225, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Kercheval wrote that the "withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence under the plea of not guilty." Id. at 224-25, 47 S.Ct. 582 (quoting White v. State, 51 Ga. 285, 289 (1874)). Kercheval is still good law and the essence of its holding is now found in. Federal Rule of Evidence Rule 410 and Federal. Rule of Criminal Procedure 11(f).1
Nearly seventy years later, the Supreme Court addressed the related question of whether a defendant can waive his right not to have statements he made in the course of plea discussions admitted into evidence at a later trial. United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995). In Mezzanatto, the defendant made incriminating statements during a proffer session, but later at trial, he objected to the admission of the proffer statements as impeachment evidence. In upholding the admissibility of the proffer statements, the Supreme Court pointed out that the "most basic rights of criminal defendants are ... subject to waiver." Id. at 201, 115 S.Ct. 797 (citation omitted); see also Halbert v. Michigan, 545 U.S. 605, 637, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005) (). The right to waive one's legal rights extends to the right to waive the provisions of the rules of criminal procedure and evidence. Id. at 201-03. Mezzanatto observed that the defendant had "conferred with his lawyer after the prosecutor proposed waiver as a condition of proceeding with the plea discussion, and he has never complained that he entered into the waiver agreement at issue unknowingly or involuntarily." Id. at 210-11, 115 S.Ct. 797.
Mezzanatto has since been extended to include evidence of the entry of a guilty plea subsequently withdrawn and statements made during discussions leading to the guilty plea.2 United States v. Rebbe, 314 F.3d 402 (9th Cir.2002); United States v. Krilich, 159 F.3d 1020 (7th Cir.1998); United States v. Burch, 156 F.3d 1315 (D.C.Cir.1998); United States v. Watkins, 85 F.3d 498 (10th Cir.1996); United States v. Lloyd, 43 F.3d 1183 (8th Cir.1994); United States v. Knight, 867 F.2d 1285 (11th Cir.1989); People v. Stevens, 461 Mich. 655, 610 N.W.2d 881 (2000).
Here, even though the Court allowed the Defendant to withdraw his guilty plea, it rejected any contention that he was either not competent to enter a guilty plea on June 7, 2006, or that his guilty plea was not knowing or was involuntary. Order at 5-10. The Court concluded that "Mr. Newbert's guilty plea on June 7, 2006 complied with each of the formal requirements a Rule 11 and that his guilty plea was knowing, intelligent and voluntary." Id. at 10. Mr. Newbert now argues that his agreement to waive the protections of Rule 410 and Rule 11(f) was neither voluntary nor knowing, because the Court failed to single out paragraph five of the Plea Agreement for review during the Rule 11 colloquy.3 Def's Mot. at 2. The Court does not agree. Mezzanatto focused on whether the defendant received adequate advice before entering the agreement and whether his waiver was knowing and voluntary. Mezzanatto, at 210-11, 115 S.Ct. 797. Mr. Newbert was well represented at the Rule 11 and, in the plea agreement itself, his attorney affirmed in writing that he had "carefully reviewed every part" of the agreement with Mr. Newbert and that, to his knowledge, Mr. Newbert's decision to enter into the agreement was "an informed and voluntary one." Agreement at 5. The Court's earlier conclusion — that Mr. Newbert's guilty plea was knowing, intelligent, and voluntary — remains the same as regards the waiver in paragraph five. See Order at 5-10.
There is another issue. A plea agreement is properly viewed as a contract between the government and the defendant. United States v. Lopez, 944 F.2d 33, 36 (1st Cir.1991). In evaluating a plea agreement, the court will "look to the language of the document, focusing squarely within its four corners." United States v. Anderson, 921 F.2d 335, 337-38 (1st Cir. 1990). Where, as here, the agreement contains an integration clause, the court is required to enforce its terms "according to its tenor." United States v. De-La-Cruz Castro, 299 F.3d 5, 14 (1st Cir.2002). In this case, paragraph five states in part:
Consequences of Breach. If Defendant fails to enter a guilty plea or seeks and is allowed to withdraw his plea of guilty entered pursuant to this Agreement, under circumstances constituting a breach of this Agreement, or if Defendant's guilty plea is rejected due to Defendant's conduct constituting a breach of this Agreement, he hereby waives any rights that he has under Rule 410 of the Federal Rules of Evidence and Rule 11(f) of the Federal Rules of Criminal Procedure.
Agreement at ¶ 5 (emphasis supplied).
The phrase "under circumstances constituting a breach of this Agreement" is curious. Court approval is required to withdraw a guilty plea. Fed.R.Crim.P. 11(d)(2). The phrase, "under circumstances constituting a breach," assumes that, even though judicially sanctioned, there are some guilty plea withdrawals that will constitute a breach and some that will not. The plea agreement does not define a breach of the agreement and it is silent as to when a court-ordered plea withdrawal will constitute a breach of the agreement so as to allow the admission of the guilty plea and inculpatory statements at a later trial.4
There is general authority that a defendant's motion to withdraw a guilty plea may constitute a breach of the plea agreement. United States v. Molinaro, 11 F.3d 853, 864 (9th Cir.1993) (); Swick v. United States, 186 Fed.Appx. 717 (8th Cir.2006). From a policy viewpoint, it can be argued that the very essence of a plea agreement is that the defendant admits his guilt in exchange for the government's agreements. Under this theory, a later motion denying guilt necessarily strikes at the heart of the bargain and therefore constitutes a breach.5
But, the Government here does not take such an...
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U.S. v. Newbert, 07-1387.
...Thus, on motion in limine, the court barred the government from using evidence excluded by Rule 410. United States v. Newbert (Newbert II), 477 F.Supp.2d 287, 294 (D.Me.2007). The prosecution took this interlocutory appeal from the pre-trial ruling excluding this evidence. See 18 U.S.C. § 3......
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U.S. v. Newbert, CR-05-53-B-W.
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