The announcement on the morning of October 30 by the Office of the Special Counsel that George Papadopoulos, a member of then-candidate Trump's foreign policy advisory team, had entered a secret guilty plea on October 5 to a felony charge of lying to FBI agents about his contacts with Russia was headline blaring news. Hidden within the details of the plea agreement, however, is a significant provision by which the Department of Justice has removed an important protection for persons under investigation who enter into plea discussions with federal prosecutors.

In general, federal criminal law practice forbids the use by the prosecution of a defendant's later withdrawn plea agreement or any statements made in negotiations or discussions in attempting to reach such an agreement. Federal Rule of Evidence 410 is the applicable rule, and that rule of evidence is cross-referenced in Federal Rule of Criminal Procedure 11(f). This protection afforded by the rules is broad and includes even the use of prior statements or the plea agreement provisions to impeach a defendant if he contradicts the earlier provisions or statements at trial. See, e.g., United States v. Acosta-Ballardo, 5 F. 3d 1532, 1535-36 (10th Cir. 1993). So, on their face and as interpreted by court decisions, the “plea agreement rules” offer significant insulation to defendants and their counsel when negotiating a dealunless.

This article is about the “unless”.

The Papadopoulos plea contains the following provision on page 6 of a 9 page document:

“Your client acknowledges discussing with you Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence, which ordinarily limit the admissibility of statements made by a defendant in the course of plea discussions or plea proceedings if a guilty plea is later withdrawn. Your client knowingly and voluntarily waives the rights that arise under these rules in the event your client withdraws your client's guilty plea or withdraws from this Agreement after signing it”.

Many experienced white collar practitioners would no doubt be surprised by such a provision. Yet the United States Supreme Court has sanctioned this practice, at least when the government seeks to use the prior statements to impeach the defendant's trial testimony. United States v. Mezzanto, 513 U.S. 196, 210 (1995). “[A]bsent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea agreement Rules [F.R.Cr.P 11 and FRE 410] is valid and enforceable.” Id. “Because the plea-statement Rules were enacted against a background presumption that legal rights generally, and evidentiary provisions specifically, are subject to waiver by voluntary agreement of the parties, we will not interpret Congress' silence as an implicit rejection of waivability.” Id. at 203-04.

More alarmingly, federal circuit courts of appeal have gone even further, allowing the use of such “plea bargain evidence” in the government's case in chief or otherwise where a defendant has not presented any evidence that contradicts his plea statements. United States v. Mitchell, 633 F. 3d 997, 1002-06 (10th Cir. 2011; United States v. Burch, 156 F.3d 1315, 1322 (D.C. Cir. 1998).

In a concurrence, Justices Ginsberg, O'Connor, and Breyer expressly noted the Court was not deciding whether a waiver of the protections of the plea agreement rules would allow the prosecution to use “plea bargain evidence” “in the case in chief” as such a broad interpretation of a waiver would “more severely undermine a defendant's incentive to negotiate, and thereby inhibit plea bargaining”. Messanatto, 513 U.S. at 211.

It is also unclear what the effect such a waiver would have on a judge's decision to reject a plea agreement, either based upon a judge's refusal to accept a “binding” plea agreement under Rule of Criminal Procedure 11(c)(1)(C) or to sanction a government commitment to not bring or dismiss certain charges under Rule 11(c)(1)(A), or a judicial determination that a plea was not “voluntary” or that there was not a “factual basis” for the plea (Rule 11(b)(2) and (b)(3).

Nonetheless, it seems clear that the protections of Rule 11 and Rule of Evidence 410 are on shaky ground, should the prosecution, who almost always has a huge advantage in negotiating posture, insists on a waiver. While it is somewhat routine for federal prosecutors to condition a preliminary meeting with a defendant represented by counsel on the government's ability to impeach the defendant should he contradict himself at trial with what he says in the meeting, that concession is normally softened by the government's affirmative promise not to make any direct use of such a statement. What is odd or unusual about the Papadopoulos agreement is its inclusion in a formal plea agreement, which contains a concomitant and detailed statement signed by the defendant and his lawyer detailing the material facts and admissions surrounding the offense to which he is pleading guilty. It is difficult to conceive of a more damning piece of evidence under any circumstances in a white collar type case.

Practitioners should seek to avoid waiver of the protections of Rule 11 and FRE 410 whenever possible. Where prosecutors insist on such waiver, it may be prudent to limit the waiver strictly to its use for impeachment purposes. Otherwise, as a practical matter, the government will be able to use extremely damaging statements and even formal legal documents signed by both defendant and defense attorney at trial, rendering the ability to withstand trial and mount an effective defense a virtual shell of the right to trial by jury.