BRIAN A. JACKSON, Chief District Judge.
Before the Court is the
On July 12, 2017, Defendant, Victor Zelaya-Funez was charged in a two-count indictment with sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a) and (e), and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). (Doc. 1). On December 21, 2017, at Defendant's request, the United States filed a notice of intent to plead guilty pursuant to a plea agreement. (Doc. 32). The agreement contains a written stipulation of facts and provides that if Defendant failed to plead guilty, any statements and information provided by Defendant, including the written factual basis contained in the plea agreement, the supplement to the plea agreement, and the plea agreement itself, could be used against him in this or any other prosecution. (Doc. 38-2 at p. 10). On January 9, 2018, at Defendant's subsequent re-arraignment hearing, defense counsel informed the Court that Defendant had chosen to not plead guilty. (Doc. 34). At the hearing, Defendant did not plead guilty and informed the Court that he instead wished to proceed to trial. (Id.). However, before the proceeding ended, the signatures appearing on the plea agreement and supplement to the plea agreement — including those of Defendant, defense counsel, Acting United States Attorney, and the Assistant United States Attorney — were authenticated on the record. (Doc. 38-3 at p. 7).
On January 25, 2018, the United States filed the instant motion seeking authorization to introduce the factual basis contained in the plea agreement, the plea agreement itself, and the supplement to the plea agreement during the United States' case-in-chief at trial. (Doc. 38).
Ordinarily, statements made by a Defendant during plea discussions are protected from evidentiary use by Rule 410(a) of the Federal Rules of Evidence and by Rule 11(f) of the Federal Rules of Criminal Procedure.
The United States argues that Defendant knowingly and voluntarily waived the protection of Rules 410(a) and 11(f) when he signed the plea agreement. Defendant argues that because he never tendered a plea of guilty, the Court never made a determination that any plea agreement by Defendant was entered into knowingly and voluntarily. (Doc. 47 at p. 3). Defendant further argues that the United States bears the burden of establishing that Defendant clearly and unambiguously waived his rights in the plea agreement. (Id. at p. 2).
The United States Court of Appeals for the Fifth Circuit construes a plea "agreement like a contract, seeking to determine the defendant's `reasonable understanding' of the agreement and construing ambiguity against the Government." Escobedo, 757 F.3d at 233 (quoting United States v. Farias, 469 F.3d 393, 397 (5th Cir. 2006)); accord United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008) ("[A] plea agreement is construed strictly against the Government as the drafter."); United States v. Azure, 571 F.3d 769, 772 (8th Cir. 2009) ("The government bears the burden of establishing that the plea agreement clearly and unambiguously waives the defendant's right[s][.]").
Here, the United States has undoubtedly met its burden to establish that the plea agreement clearly and unambiguously waives Defendant's rights. First, the United States has defined an action by Defendant that would constitute a material breach as "failing to plead guilty to Count One of the Indictment in Criminal No. 17-90-BAJ-RLB at re-arraignment." (Doc. 38-2 at p. 9). This was the precise action taken by Defendant at his re-arraignment hearing, and thus constitutes a clear and unambiguous breach of the plea agreement. Second, under the section titled "Consequences of Breach" the agreement provides:
(Doc. 38-2 at p. 10). The Court finds that this language provides clear and unambiguous proof that Defendant waived his rights under Rules 410 and 11(f) because it provides that in the event of a breach the plea agreement itself, the factual basis contained therein, the supplement, and any other information or statements, even those protected by Rule 11 and Rule 410, may be used against Defendant at trial. Further, the plea agreement provides that it becomes effective and binding upon the signature of the Defendant, his counsel, and an attorney for the United States; all of which signed the document. (Doc. 38-2 at p. 13).
Because of the presumptive admissibility of signed plea agreements that clearly and unambiguously waive a defendant's rights under Rule 11 and Rule 410, the burden shifts to Defendant to demonstrate that he did not enter into the plea agreement knowingly and voluntarily. Mezzanatto, 513 U.S. at 201 (the provisions of Rule 11 and Rule 410 "are presumptively waivable."). See e.g. United States v. Jim, 786 F.3d 802, 810 (10th Cir. 2015) (Defendant bore burden of proving that his guilty plea was not knowing and voluntary, and thus that his waiver of rights to challenge the admissibility of his plea-related statements was not admissible); United States v. Smith, 770 F.3d 628, 639-40 (7th Cir. 2014) (Defendant did not make a preliminary showing that his waiver was unknowing or involuntary. While raising the issue, defense counsel refused to identify any affirmative indications that Defendant's waiver of his rights was invalid); but see United States v. Mayfield, 361 F. App'x 425, 431 (3d Cir. 2010) (the Government bears the burden of showing, by a preponderance of the evidence, that the waiver of the protections of Rule 410 was voluntary and knowing).
The Court finds that the weight of authorities, including the guidance set forth by the Fifth Circuit, supports the proposition that the burden of proof to establish that the agreement was not entered into knowingly or voluntarily rests squarely with Defendant. Nelson, 732 F.3d at 517; see also Mezzanatto, 513 U.S. at 210. See e.g., Sylvester, 583 F.3d at 290 ("absent specific evidence that the agreement was entered into unknowing or involuntarily, courts cannot infer abuse of prosecutorial bargaining power.").
Accordingly,
Regarding the
Rule 11(f) states that "[t]he admissibility or inadmissibility of a plea, a plea discussion, and any relevant statement is governed by Federal Rule of Evidence 410." Fed. R. Crim. P. 11(f).