U.S. v. Newbert, 07-1387.

• Decision Date: 11 October 2007
• Docket Number: No. 07-1387.,07-1387.
• Parties: UNITED STATES of America, Appellant, v. Winslow NEWBERT, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

504 F.3d 180

UNITED STATES of America, Appellant, v. Winslow NEWBERT, Defendant, Appellee.

No. 07-1387.

United States Court of Appeals, First Circuit.

Heard September 6, 2007.

Decided October 11, 2007.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief, for appellant.

Richard L. Hartley for appellee.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and SCHWARZER,^* Senior District Judge.

LYNCH, Circuit Judge.

In this case we decline to enforce a defendant's waiver of rights contained in a plea agreement.

It has become common for the prosecution to require that plea agreements which defendants enter contain a waiver of constitutional and statutory rights. The Supreme Court has, in specific contexts, upheld the practice. See, e.g., United States v. Ruiz, 536 U.S. 622, 629-33, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (defendant can waive right to government's required disclosure of evidence related to any affirmative defense or impeachment of witnesses); United States v. Mezzanatto, 513 U.S. 196, 210, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) (defendant can waive right under the rules of evidence to exclude guilty pleas, plea discussions, and related statements); see also Halbert v. Michigan, 545 U.S. 605, 624 n. 8, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005) (recognizing that defendant can waive right to all forms of appeal); Ricketts v. Adamson, 483 U.S. 1, 10, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (defendant can effectively waive double jeopardy protection by signing and then breaching plea agreement); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (noting that a guilty plea necessarily is a waiver of the right against self-incrimination and the right to trial by jury).

This court, following suit, will enforce knowing and voluntary waivers by defendants in plea agreements of their rights to appeal, except when it would work a miscarriage of justice. United States v. Teeter, 257 F.3d 14, 23-25 (1st Cir.2001). We have also suggested that we will enforce defendants' waivers in plea agreements or during plea colloquies of their Fifth Amendment right against self-incrimination, United States v. Conway, 81 F.3d 15, 16-17 (1st Cir.1996), their right to collaterally attack their convictions through habeas proceedings, United States v. Ciampi, 419 F.3d 20, 25-27 (1st Cir. 2005), their rights to trial by jury and assistance of counsel, United States v. Frechette, 456 F.3d 1, 12-14 (1st Cir.2006), and their right to receive any exculpatory information in the government's possession, United States v. Yeje-Cabrera, 430 F.3d 1, 24 (1st Cir.2005). Further, we have repeatedly recognized that an unconditional guilty plea is inherently a waiver of all non-jurisdictional claims predating the plea. See, e.g., United States v. Rodriguez-Castillo, 350 F.3d 1, 3-4 (1st Cir. 2003); see also Acevedo-Ramos v. United States, 961 F.2d 305, 307-08 (1st Cir.1992) (statute of limitations defense waived); United States v. Wright, 873 F.2d 437, 442 (1st Cir.1989) (challenge to voluntariness of confession waived).

This case concerns a type of waiver our court has not addressed before. This waiver has several distinct components. It occurs only when the defendant is, by terms of the agreement, in breach of the plea agreement. The alleged breach involved is the defendant's motion to withdraw his plea, which has been granted by the district court. The waiver affects the defendant's later rights in the trial court after withdrawal of the plea, and not in the court of appeals. What are waived are that defendant's rights under Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f) not to have his plea agreement or associated statements admitted into evidence in later proceedings.¹

Here, defendant Winslow Newbert originally pleaded guilty; he was later permitted to withdraw his plea by the court based on post-plea new plausible evidence of innocence. United States v. Newbert (Newbert I), 471 F.Supp.2d 182, 199 (D.Me.2007). The government contended that by successfully withdrawing his plea, Newbert was in breach of his plea agreement and thus had waived his Rule 410 rights. The district court disagreed that defendant was in breach of the agreement and refused to enforce the waiver. 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. § 3731. We affirm, finding no error in the court's construction of the agreement and in its exclusion order.

I.

During a February 2002 search of Newbert's home, the police discovered, among other things, 18.3 grams of cocaine. Based on this evidence, Newbert pleaded guilty in June 2006 to a single violation of 21 U.S.C. § 841(a)(1), possession with intent to distribute a controlled substance. His plea agreement with the government included waivers of his rights to appeal and to a speedy trial; it also included the following provision, at issue in the present case:

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.

Newbert II, 477 F.Supp.2d at 290 (quoting clause 5 of the plea agreement).

Less than two months later, Newbert moved to withdraw his guilty plea. He argued that his plea had been based on a desire to protect his wife and his friend James Michael Smith, but he had since learned that his wife had moved in with Smith and that Smith was preparing to testify against him. Further, one of his daughters had informed Newbert that she had seen Smith place a pill bottle in Newbert's house near where the cocaine was found shortly before the February 2002 police search; his other daughter told him that Smith had confessed to her that it was his cocaine the police had discovered.² Smith was to be the government's sole civilian witness against Newbert, and the government had no physical evidence linking the cocaine to Newbert other than the location of its discovery.

The court ruled that Newbert's guilty plea had been knowing, intelligent and voluntary, but that there was nevertheless a "fair and just" reason to allow Newbert to withdraw his plea. Newbert I, 471 F.Supp.2d at 199; see also Fed.R.Crim.P 11(d)(2)(B). The court reasoned that Newbert had presented not only new evidence as to his innocence, but also a plausible explanation for why he would have pleaded guilty in the first place—and why his motivation to do so had since changed. Newbert I, 471 F.Supp.2d at 199. Further, Newbert had moved quickly to withdraw his plea before his sentencing, and the court emphasized that the government would suffer no prejudice as a result. It was the government that had waited for more than three years to indict Newbert in the first place, and the government's case relied primarily on law enforcement witnesses and experts, whose memories were assumed to be more reliable than those of civilian witnesses. Id. Further, "[t]here [was] no suggestion that critical witnesses [were] unavailable, that evidence [had] been lost, or that any similar prejudice would obtain." Id. "Ultimately," the court concluded, "because a man's reputation and freedom hang in the balance, . . . the better course is to allow a jury to determine" whether or not Newbert is in fact guilty. Id.

The government was not pleased with this result and quickly filed a motion to reconsider the order granting the withdrawal; when that motion was denied, the government filed a motion to reopen the hearing on withdrawal to present further evidence. That motion was also denied. Trying a different tack, the government moved in limine for a ruling that Newbert's guilty plea and all related statements could be introduced against him at his trial, based on the waiver language in Newbert's plea agreement. Newbert filed a competing motion in limine to exclude this evidence.

The district court ruled that Newbert was not in breach of his plea agreement when he withdrew his plea and thus that Federal Rule of Evidence 410 still applied in full. Newbert II, 477 F.Supp.2d. at 288. The court referred to contract law principles and noted that the clause assumed that some withdrawals of guilty pleas would not constitute a breach. Id. at 290-91. Rejecting the government's argument, repeated before this court, that only guilty plea withdrawals based on government error or agreed to by the government would not breach the agreement, the judge concluded that if "the defendant's post-plea evidence is sufficient to substantially affect the basis upon which the defendant entered the plea agreement, a motion to withdraw cannot constitute a breach of this agreement." Id. at 293. This, the judge noted, was the logical corollary of the government's argument that withdrawal would not be in breach if the government "agrees that new evidence establishes the defendant's innocence," for "the phrase must be interpreted evenly to allow for withdrawal without breach when the defendant presents post-plea evidence of innocence and the Court concurs, even if the government does not." Id. at 294.

II.

We review the district court...