Waiver of the plea-statement rules.

• Author: Gershowitz, Michael S.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In United States v. Mezzanatto,(1)the United States Supreme Court held that a criminal defendant could waive his right to the plea-statement exclusionary provisions embodied in Federal Rule of Evidence 410(2) and Federal Rule of Criminal Procedure 11(e)(6)(3) ("Rules" or "plea-statement Rules").(4) The Rules currently provide that statements made by a criminal defendant during plea negotiations with a prosecutor are inadmissible in a proceeding against the defendant.(5)

   Mezzanatto involved a criminal defendant who, prior to settlement negotiations, waived the plea-statement Rules for impeachment purposes at the behest of the prosecutor.(6) In holding that a knowing and voluntary waiver of the plea-statement Rules is valid and enforceable, Justice Thomas, writing for a seven person majority, relied in large part on the general presumption that criminal defendants can waive statutory, contractual and even the most fundamental constitutional rights.(7)

   This Note argues that the majority, ignoring the plain language and legislative history of the plea-statement Rules, improperly placed the Rules within the general presumption favoring waiver. In addition, this Note argues that prosecutors cause defendants to enter into contracts of adhesion by demanding that they waive the plea-statement Rules. This Note further contends that the Court's opinion affirms the growing practice of prosecutors to demand waiver of the plea-statement Rules automatically, thereby circumventing the Rule's exclusionary provisions. Writing in dissent, Justice Souter correctly warned that the Court's decision could ultimately allow defendants to waive the protections of the plea-statement Rules for use in the government's case in chief.

2. BACKGROUND

   1. FEDERAL RULE OF EVIDENCE 410 AS ENACTED 1N 1974

      In promulgating the original version of Federal Rule of Evidence 410, the Advisory Committee indicated that the purpose of excluding offers to plead guilty or solo contendere was to promote the resolution of criminal cases by compromise.(8) The plea-statement Rules are rooted in cases that examine the practical difficulties of admitting evidence of withdrawn guilty pleas.(9) While the Judiciary Committees of the House and Senate agreed on the basic premise that courts should exclude withdrawn pleas, they differed in their views on admitting statements related to plea negotiations.(10) The Senate's view that courts could admit plea statements for impeachment purposes and in prosecutions for perjury ultimately prevailed in the first version of Rule 410.(11)

      As originally enacted, Rule 410 included the following explicit exceptions admitting plea statements, "[t]his rule shall not apply to the introduction of voluntary and reliable statements made in court on the record . . . where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement." While the original version of the Rule allowed plea statements for impeachment purposes, it also indicated that it would not take effect until August 1, 1975, and that any subsequent amendment to the Federal Rules of Criminal Procedure inconsistent with the Rule would supersede it.(12) On July 31, 1975, the day before the original version of Federal Rule of Evidence 410 was to take effect, Congress amended Rule 11 (e) (6) of the Federal Rules of Criminal Procedure. The provision of Rule 410 regarding the admissibility of plea statements for impeachment purposes did not survive the superseding inconsistency of Rule 11 (e) (6).(13)

   2. FEDERAL RULE OF EVIDENCE 410, AS AMENDED IN 1975

      When Congress amended Rule 410 in order to bring it into conformity with Rule 11 (e) (6), the most notable change was the omission of the exception allowing plea statements to be used for impeachment purposes. The House Committee on the Judiciary recognized the use of plea statements in a subsequent prosecution for perjury as the only exception to the exclusionary rule.(14)

      In amending Rule 11(e)(6) in 1975, Congress explored the use of plea statements in subsequent proceedings in greater depth than it did in passing the original version of Rule 410.(15) After reconsidering the plea-statement Rules, Congress opted to adopt the House version of the Rule, which notably declined to recognize an exception for impeachment purposes.(16) Because Rule 11 (e) (6), the basis for the 1975 amendments to Rule 410, took effect prior to the enabling date of the original version of Rule 410, the only version of the Rule that contained a provision recognizing an exception for impeachment was never in force.(17)

   3. THE CURRENT VERSION OF THE PLEA-STATEMENT RULES

      Congress' major objective in revising the plea-statement Rules in 1980 was to define with greater precision the inadmissibility of evidence relating to pleas or statements made during plea negotiations.(18) Prior to the 1980 revisions, the only exception to the Rules concerned pleas or plea statements used in prosecutions for perjury.(19) In creating a more precise rule, Congress added a second exception to the general rule of non-admissibility.(20) The new exception made plea statements admissible "in any proceeding wherein another statement made in the course of the same plea discussions had been introduced and the statement ought in fairness be considered contemporaneously with it."(21) In its effort to make the plea-statement Rules more precise, Congress declined to add an exception recognizing a waiver of the exclusionary rule.(22) The current version of the plea-statement Rules reads in relevant part:

      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:

      (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 later

      withdrawn.

      However, such a statement is admissible (i) in any proceeding wherein

      another statement made in the course of the same 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.(23)

   4. THE SPLIT IN THE CIRCUITS

      The circuits have taken different approaches regarding the absence of an explicit exception providing for waiver of the plea-statement Rules. In United States v. Dortch,(24) the Seventh Circuit concluded that a criminal defendant can waive his right to the exclusionary provisions of the plea statement Rules prior to entering into plea negotiations with a prosecutor.(25) The Dortch court relied on the general presumption that defendants may waive their rights, without considering why the plea-statement Rules might fall outside this general presumption.(26) While Dortch held that a defendant may waive the plea statement Rules for impeachment purposes only, the case indicated that the Seventh Circuit will tolerate an even more expansive waiver of the exclusionary protections of the Rules.(27)

      The Ninth Circuit reached a contrary result in U.S. v. Mezzanatto, concluding that a criminal defendant cannot waive the protection of the plea-statement Rules.(28) The appellate court considered the exclusionary provision to be absolute, with only two explicitly proscribed exceptions.(29) In addition, the Ninth Circuit distinguished the pleastatement Rules from rights and protections more personal in nature, and concluded that because the exclusionary provisions were procedural safeguards to protect the whole system of plea-bargaining, they were beyond the control of individual defendants and prosecutors.(30)

      The Second and Tenth Circuits also addressed the use of plea statements for impeachment purposes.(31) While neither circuit directly addressed the issue of waiver, both circuits provided support for the position that the plea-statement Rules cannot be waived. The Second Circuit rejected the use of plea statements for impeachment because "[c]alculations as to use for impeachment purposes will clearly affect the discussions and impair the frank and open atmosphere Rules 410 and 11(e)(6) were designed to foster."(32) The Tenth Circuit, after citing the Ninth Circuit's rejection of waiver of the pleastatement Rules in Mezzanatto, explicitly joined the Ninth Circuit's position and held that plea statements were inadmissible for impeachment purposes.(33)

3. FACTS AND PROCEDURAL HISTORY

   On August 1, 1991, San Diego Narcotics Task Force (SDNTF) Agents executed a search warrant at the Rainbow, California, residence of Gordon Shuster.(34) The agents arrested Shuster after discovering a methamphetamine laboratory at his residence.(35) Shuster agreed to cooperate with the agents, and several hours after his arrest, contacted defendant-respondent Mezzanatto through Mezzanatto's pager.(36) When Mezzanatto responded to the pager, Shuster told him a friend wanted to purchase a pound of methamphetamine for $13,000.(37) In addition, Shuster said that the friend would "front" even more money to purchase another pound of the narcotic to be delivered later.(38) Shuster arranged to meet Mezzanatto later that day.(39) Pursuant to Shuster's arrangements, he and Mezzanatto met at a local restaurant that evening.(40)

   At the restaurant, Shuster introduced an undercover officer as his "friend."(41) The officer asked Mezzanatto if he had "brought the stuff with him," and Mezzanatto indicated that it was in his car.(42) The officer then accompanied Mezzanatto to the car, where Mezzanatto produced a brown paper package.(43) The officer inspected the package, which contained approximately one pound of methamphetamine, and asked how long it would take to obtain the second pound.(44) Mezzanatto responded that it would take about six hours.(45) Mezzanatto then produced...