The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
Defenda nt previously pled guilty, pursua nt to a P lea Agreement, to Counts 1-12 a nd 15 of the Indictment a nd wa s sentenced to a term of im prisonment. Subsequently, the Court determined tha t Defenda nt ha d substa ntia lly breached t he Plea Agreement a nd gra nted t he Government's motion a nd election under the Plea Agreement to reinsta te Counts 13 a nd 14 which is set for tria l on J uly 13, 2009.
Before the Court is Defenda nt's motion to ba r a dmissibility to sta tements of facts contained in the Plea Agreement which more or less admit commission of the conduct underlying Counts 13 a nd 14. Ha ving considered t he motion a nd the Government's Response, Defenda nt's m ot ion is denied a nd the Court determines t ha t Defenda nt's prior sta tements of fa cts a re a dmissible a t tria l of Counts 13 a nd 14 for the rea sons tha t follow.
Defenda nt's object ion t o a dmissibility is ba sed u pon Rule 410 of the Federa l Rules of Evidence (F RE410) which provides in releva nt pa rt:
Except a s otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who ma de the plea, or wa s a participant in the plea discussions:
(1) a plea of guilty which wa s la ter withdra wn;
(2) a plea of nolo contendere; (3) any stat ement ma de in the course of any proceedings under Rule 11 of the Federal Rules of Crim in a l Procedure or compara ble stat e proceedings rega rding either of the foregoing plea s; or (empha sis a dded) (4) any statement made in the course of plea discussions with an a attorney for the prosecuting a u t h or ity which do not result in a plea of guilty or which resu lt in a plea of guilty la ter withdra wn.
Obviously, Defenda nt mu st r ely upon subsection 3 which ma kes ina dmissible "a ny sta tement ma de in the cou r se of a ny proceedings under Rule 11 of the Federa l Rules of Crimina l P rocedure... rega rding either of t he foregoing plea s;" [mea ning (1) a plea of guilty wh ich wa s la ter withdra wn; or (2) a plea of nolo contendere]. Neither of these two events a pply since Defenda nt's guilty plea wa s not withdra wn, a nd he did not t ender a plea of nolo contendere. The logic of subsection 3 clearly means tha t sta tements by a defenda nt a s pa rt of a gu ilt y plea tha t is not withdra wn is left unprotected by FRE410 a nd ma y be used a ga inst the defenda nt in other litigation.
Paragraph 71 of t he P lea Agreement provided tha t if Defenda nt viola ted a ny of the terms, the Gover nment ha d the option to decla re the P lea Agreement null and void a nd the option to va ca te Defenda nt's con vict ion a nd sentence or to reinsta te any previously dismissed cha rges a ga inst him, or to seek resentencing of Defenda nt. The Government chose the second option and elected to reinstat e Counts 13 and 14. In that event, pa ra gra ph 71 expressly st a tes t ha t "the defenda nt will not be a llowed to withdra w from a ny previously a ccept ed guilty plea"; a nd tha t he "a grees to wa ive any a nd a ll double jeopa rdy rights, a nd the a pplica ble sta tute of lim it a tions...." Obviously, there is no merit to Defenda nt's a greement tha t voiding of the P lea Agreement caused "both the Government a nd Mr. Kha n [Defenda nt] to lose the benefits of the Plea Agreement tha t were ba rga ined for." Contra ctua lly, Defenda nt wa ived h is r igh t to a clean slate and consented to the continued vitality of his guilty plea and sentence and to the option given the Government to reinsta te all dismissed counts if the Government chose to void the Plea Agreement upon a breach of it by Defendant.
The ca se tha t Defenda nt proffers in su pport of his motion, Unit ed Sta tes v. Newbert, 504 F.3d 180, 182-183 (1st Cir. 2007) is ina pposite on its fa cts. In tha t case the plea a gr eement provided tha t "If defendant fa ils to enter a guilty plea or seeks to withdraw his plea of guilty entered pursuant t o this Agreement u n der circumstances const ituting a brea ch of this Agreement, he hereby wa ives a ny rights t ha t he ha s under Ru le 410 of the F edera l Ru les of Evidence." (empha sis a dded). It wa s specifica lly expla ined t ha t this wa iver would a llow his [Defenda nt's] guilt y plea a n d a ll rela ted sta tements to be used a ga inst h im in a n y subsequent prosecution. The district court a llowed the defenda nt to withdra w his guilty plea ba sed upon post-plea new evidence of innocence and refused t o enforce the wa iver of F RE410. The a ppella te court a ffirmed in upholding the district court's ruling that under the special circum stances underlying the m otion to w ithdraw the defendant's guilty plea, the defendant ha d not breached the plea a greem en t. Un like Newbert, in the insta nt ca se, there ha s been a finding tha t Defendant brea ched the P lea Agreement. This alone distinguishes the two ca ses and depr ives Newbert of a ny precedentia l va lue. On the other ha nd, ca se la w pr offered by the Government fully support the admissibility of Defen da nt's plea a greement a nd a ssocia ted sta tements. See United Sta tes v. El-Amin, 268 F. Supp. 2d 639, 642 (E.D. Va. 2003) ("when he ma teria lly brea ched the P lea Agreement, the defenda nt knowingly a nd intentiona lly wa ived his F RE410 a nd F RCP 11(f) objections to the government's use of h is St a tement of Fa cts. Therefore the Government's Motion in Limine will be gra nted a nd t he United St a tes m a y offer the Sta tement of F a cts as evidence in its ca se in chief.") United Sta tes v. Young, 223 F.3d 905, 911 (8th Cir. 2000) ("We a re sa tisfied tha t, when Young signed t h e plea a greement, he was a wa re of the benefits he was securing, the rights he wa s foregoing, a nd the consequences of brea ching the a greement. We find no evidence tha t he entered into the a greement involunta rily or unknowingly. Thus, the gover nment is entitled to the benefits of its ba rgain a nd ma y use the a ffida vit [a dmitting each element of the crimes cha rged] in its ca se a ga inst Young.") United Sta tes v. Scruggs, 356 F.3d 539, 546 (4th Cir. 2004) ("In this ca se, beca use of Scruggs' breach of the plea a greement, the Government ca ncelled it; in doing so, the Government retained its 'remedy for brea ch' under the a greement u se of st a tements Scruggs ha d given pursua nt to the Agreement.").
For the foregoing reasons, Defenda nt's motion is denied a nd his P lea Agreement a nd a ssocia ted sta tements a re admissible.
ENTERED this 7th da y of J uly, 2009.
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