Construing Ambiguity Under FRE 410 Plea Agreement Terms Against The Government

Fifth Circuit reverses jury trial conviction as the plea agreement and related statements were admitted at trial after the defendant had elected to withdraw his plea before it was accepted by the trial court under FRE 410; because the plea terms were found to be ambiguous, the plea evidence was inadmissible, in United States v. Escobedo, _ F.3d _ (5th Cir. June 27, 2014) (No. 12-40205)

FRE 410 excludes evidence of a person's "offer[ ] to plead guilty or nolo," among other things, from a civil or criminal trial. FED. R. CRIM. P. 11(f) contains a comparable provision. The Supreme Court has held that the protection under the rule may be waived in United States v. Mezzanatto, 513 U.S. 196, 210 (1995). The Fifth Circuit recently considered a case involving the issue whether the plea terms constituted a waiver or not.

Trial Court Proceedings: Admitting Evidence Of The Plea Agreement And Related Inculpatory Statements

Defendant Escobedo was prosecuted for conspiracy to transport an illegal alien within the United States for private financial gain. Initially, he signed a plea agreement which was given to the court. However, before the plea agreement was accepted, the defendant moved to withdraw his plea pursuant to FED. R. CRIM. P. 11(d), (d)(1) (“[a] defendant may withdraw a plea of guilty . . . before the court accepts the plea, for any reason or no reason”). He proceeded to trial.

Before trial, the government gave notice of its intent “to use statements he made in connection with his withdrawn plea of guilty during its cross-examination for the purpose of impeachment, citing the Rule 410(a) waiver in Escobedo’s withdrawn plea agreement.” The government claimed that the defendant had breached his plea agreement based on the plea terms which allowed the plea agreement to be admitted. The plea agreement provided in relevant part:

Breach of Plea Agreement
If defendant should fail in any way to fulfill completely all of the obligations under this plea agreement, the United States will be released from its obligations under the plea agreement, and the defendant’s plea and sentence will stand. If at any time defendant retains, conceals or disposes of assets in violation of this plea agreement, or if defendant knowingly withholds evidence or is otherwise not completely truthful with the United States, then [the government] may move the Court to set aside the guilty plea and reinstate prosecution. Any information and documents that have been disclosed by the defendant, whether prior to or subsequent to this plea agreement, and all leads derived therefrom, can and will be used against defendant in any prosecution. Additionally, all statements made pursuant to this plea agreement will be admissible against [Escobedo] who hereby waives the provisions of Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence.

Escobedo, _ F.3d at _. Over defense objection, the trial court decided “that the factual basis of Escobedo’s withdrawn plea agreement and the statements he made in connection with entering a plea of guilty would be admissible as impeachment evidence and in the government’s case-in-chief.” At trial, a Border Patrol Agent:

read into the record statements to which Escobedo agreed in his plea agreement, including a lengthy recitation of inculpatory facts and the statement that Escobedo “now judicially admits that he conspired to knowingly transport, for profit, aliens who had come to, entered, and remained in the United States in violation of law.” Agent Aguirre also read the assertion in the document that Escobedo was “pleading guilty freely and voluntarily, because he/she feels is [sic] guilty.” Agent Aguirre indicated that the guilty plea was later withdrawn.

Escobedo, _ F.3d at _. The jury convicted the defendant on the conspiracy count. On appeal, the defendant claimed reversible error based on the admission of the plea agreement evidence.

Fifth Circuit Reversing The Conviction

The Fifth Circuit reversed the jury conviction after concluding the trial court erred in admitting evidence of the plea agreement and related statements. As the circuit noted, "The question presented is whether Escobedo waived the protections of Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410(a) under the circumstances presented in this case." The circuit concluded that the plea terms were ambiguous:

We conclude that the foregoing section is ambiguous as to whether Escobedo intended to waive his Rule 410(a) and 11(f) rights contemporaneously with his signing of the plea agreement, or, instead, intended to waive them only upon the district court’s acceptance and activation of his guilty plea. Escobedo had an absolute right under Federal Rule of Criminal Procedure 11(d)(1) to withdraw his guilty plea before it was accepted by the district court. Nothing in the plea agreement clearly and unambiguously states that Escobedo waived his right to withdraw his guilty plea prior to acceptance when he entered the plea agreement. Consequently, the plea agreement may reasonably be interpreted so as to not waive Escobedo’s Rule 410(a) and 11(f) rights if he prevented his guilty plea from becoming effective by withdrawing it prior to its acceptance by the district court.

Other features of the plea agreement support this interpretation as well. Inclusion of the waiver of Rule 410(a) and 11(f) rights in a section preceded by the header “Breach of Agreement” suggests that it would become effective only if Escobedo breached the agreement. However, the section does not clearly or unambiguously state what constitutes a breach of the agreement. As noted, the section does not state or even imply clearly that Escobedo’s withdrawal of his guilty plea under Federal Rule of Criminal Procedure 11(d)(1) would constitute a breach of the agreement. Further, when Escobedo moved to withdraw his guilty plea, the district court and the government agreed that he had a right to do so under Rule 11(d)(1), and the plea was withdrawn. The statement in the section to the effect that Escobedo’s failure to fulfill all his obligations releases the government from its obligations but requires that Escobedo’s “plea and sentence will stand,” appears to be conditioned on the district court’s acceptance of the tendered guilty plea and imposition of a sentence upon Escobedo. Although it may be possible to arrive at a contrary reasonable interpretation of the plea agreement, because the agreement is ambiguous it must be construed reasonably in Escobedo’s favor.

Escobedo, _ F.3d at _. The statements relating to the plea agreement were inadmissible and the conviction was vacated. See Escobedo, _ F.3d at _ (citing 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][.]”)).


The Escobedo case shows that while the protections under FRE 410 may be waived, any ambiguity will be construed against the government. Because the plea terms were found to be unclear, the jury trial conviction was vacated based on the introduction of the plea agreement and related statements at trial.


Photo Description: John Minor Wisdom, Fifth Circuit Court of Appeals Courthouse in New Orleans, LA. Learn more about the courthouse.


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