     Case: 12-40205   Document: 00512679380     Page: 1   Date Filed: 06/27/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                                                  FILED
                                 No. 12-40205                    June 27, 2014

                                                                Lyle W. Cayce
                                                                     Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee
v.

DANIEL ESCOBEDO,

                                           Defendant-Appellant



                Appeal from the United States District Court
                     for the Southern District of Texas


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Defendant-Appellant Daniel Escobedo appeals from his conviction by a
jury of conspiracy to transport an illegal alien within the United States for
private financial gain. See 8 U.S.C. § 1324. Escobedo argues for reversal of his
conviction because the district court erroneously allowed the government to
introduce at trial evidence of his withdrawn guilty plea and related inculpatory
statements. Escobedo originally entered a guilty plea agreement with the
government and tendered a guilty plea to a magistrate judge. The guilty plea
agreement contained what the government contends was Escobedo’s waiver of
his right to exclude from evidence his guilty plea and related statements under
Federal Rule of Evidence 410(a) and Federal Rule of Criminal Procedure 11(f).
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                                       No. 12-40205

Before the guilty plea was accepted by the district court, Escobedo withdrew it
as he had an absolute right to do under Federal Rule of Criminal Procedure
11(d)(1). See United States v. Arami, 536 F.3d 479 (5th Cir. 2008). At trial, over
Escobedo’s objection, the district court allowed the prosecution to introduce
evidence of his withdrawn guilty plea and related inculpatory statements. On
appeal, we conclude that the plea agreement is ambiguous as to whether the
waiver of Escobedo’s right to exclude his withdrawn guilty plea and related
inculpatory statements under Federal Rule of Evidence 410(a) and Federal Rule
of Criminal Procedure 11(f) was effective immediately or contingent upon the
district court’s acceptance of his guilty plea, which never occurred. Because an
ambiguous plea agreement must be reasonably construed in favor of the
defendant, the district court erred in reading the waiver as taking effect
immediately rather than upon its acceptance of his guilty plea, and in allowing
the government to introduce Escobedo’s withdrawn guilty plea and related
inculpatory statements at trial. Consequently, we reverse and remand the case
to the district court for further proceedings.
                                               I.
       Escobedo was indicted on one count of conspiring to transport an illegal
alien within the United States for private financial gain (count one) and two
counts of concealing, harboring, and shielding illegal aliens (counts two and
three), all in violation of 8 U.S.C. § 1324.             Escobedo appeared before the
magistrate judge and initially tendered a plea of guilty to count one of the
indictment pursuant to a plea agreement.1




       1
         A defendant’s initial plea entered during arraignment does not become final until it
is accepted by the district court and embodied in the judgment of the court. See FED. R. CRIM.
P. 11; Wood v. United States, 128 F.2d 265, 273 (D.C. Cir. 1942) (“The plea on arraignment . . .
is necessary to inform the court how to proceed with the trial. . . . The function of that plea
is to put the Government to its proof and to preserve the right to defend.”).

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                                        No. 12-40205

      The plea agreement contained a section entitled “Breach of Plea
Agreement” in which Escobedo agreed that if he should breach the plea
agreement he would thereby waive his right to exclude inculpatory statements
under the rules that generally render evidence relating to withdrawn plea
agreements and related statements inadmissible at trial. See FED. R. EVID.
410(a) (making inadmissible, inter alia, “a guilty plea that was later withdrawn”
and “a statement made during plea discussions with an attorney for the
prosecuting authority if the discussions did not result in a guilty plea or they
resulted in a later-withdrawn guilty plea”); FED. R. CRIM. P. 11(f) (“The
admissibility or inadmissibility of a plea, a plea discussion, and any related
statement is governed by Federal Rule of Evidence 410.”).2
      Before the district court accepted his plea, Escobedo filed a motion to
withdraw his guilty plea. Because “[a] defendant may withdraw a plea of guilty
. . . before the court accepts the plea, for any reason or no reason[,]” FED. R.
CRIM. P. 11(d), (d)(1), the district court, with the government’s acquiescence,
granted the motion to withdraw the plea and the case was set for trial. Thus,
Escobedo withdrew his guilty plea before it was accepted by the district court,
as was his absolute, unqualified right.             See Arami, 536 F.3d at 483, 484
(explaining a defendant has an “absolute” and “unqualified” right to withdraw
his or her plea under such circumstances and it is plain error to deny a request
to do so).
      Prior to trial, the government gave Escobedo notice that if he testified in
his own defense, the government intended 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. Escobedo objected. The district court ruled that the factual


      2
          For ease of reference, we refer to such waivers as “Rule 410(a) waivers.”

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                                      No. 12-40205

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.
       During the Government’s case-in-chief and over defense counsel’s
objection, Border Patrol Agent Gabriel Aguirre 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 took the stand in his own defense
and stated that he did not wish to plead guilty because he was not guilty. In
questioning Escobedo, the Government also used the transcript from the plea
colloquy. On cross-examination, Escobedo admitted that, at the time he initially
tendered a plea of guilty to the magistrate judge, he swore under oath that the
factual basis of the plea was true and accurate. He also admitted that he had
testified at the rearraignment hearing under penalty of perjury.
       The jury found Escobedo guilty of the charge in count one, conspiracy to
transport an illegal alien for private financial gain. The district court granted
Escobedo’s motion for acquittal on the remaining charges in counts two and
three of concealing, harboring, and shielding illegal aliens. See FED. R. CRIM. P.
29. Escobedo timely appealed his conviction on count one.3




       3
         No cross-appeal was taken from the district court’s order granting Escobedo’s motion
for acquittal on counts two and three. See United States v. Martin Linen Supply Co., 430 U.S.
564 (1977).

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                                       No. 12-40205

                                              II.
       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. This is a question of law that
we review de novo.4
                                              A.
       Federal Rule of Evidence 410(a) provides that, subject to certain
exceptions not applicable here, “[i]n a civil or criminal case, evidence of the
following is not admissible against the defendant who made the plea or
participated in the plea discussions: (1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea; (3) a statement made during a proceeding on either
of those pleas under Federal Rule of Criminal Procedure 11 or a comparable
state procedure; or (4) a statement made during plea discussions with an
attorney for the prosecuting authority if the discussions did not result in a guilty
plea or they resulted in a later-withdrawn guilty plea.” Federal Rule of Criminal
Procedure 11(f) provides that “[t]he admissibility or inadmissibility of a plea, a
plea discussion, and any related statement is governed by Federal Rule of
Evidence 410.”5

       4
         See United States v. Nelson, 732 F.3d 504, 516-17 (5th Cir. 2013); United States v.
Roberts, 624 F.3d 241, 245 (5th Cir. 2010); United States v. Cvijanovich, 556 F.3d 857, 862 (8th
Cir. 2009) (“Issues concerning the interpretation and enforcement of a plea agreement are
reviewed de novo.” (quotation marks omitted)); CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD,
1A FEDERAL PRACTICE & PROCEDURE § 180, at 320-21 & n.56 (4th ed. 2008 & Supp. 2013).
       5
         Courts have read Rules 410(a) and 11(f) to include statements made in the defendant’s
written plea agreement because such statements constitute evidence of the withdrawn guilty
plea itself, see FED. R. EVID. 410(a)(1) & (a)(3), and are “related” to a withdrawn guilty plea,
FED. R. CRIM. P. 11(f). See Nelson, 732 F.3d at 516-17 (considering whether factual basis
recited in withdrawn plea agreement was admissible despite the protections of Rule 410(a)
because the agreement contained a Rule 410(a) waiver); United States v. Sylvester, 583 F.3d
285, 291 n.26 (5th Cir. 2009) (citing with approval authority “considering statements made in
the defendant’s written plea agreement and during subsequent debriefing sessions as covered
by the protections of Rules 410 and 11(e)(6) (now 11(f))” (citing United States v. Burch, 156
F.3d 1315, 1322-23 (D.C. Cir. 1998))); CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., 23

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                                       No. 12-40205

       Notwithstanding the admonition in Rules 410(a) and 11(f) that evidence
relating to a withdrawn guilty plea and withdrawn plea agreement is generally
inadmissible, a criminal defendant may waive the protections of Rules 410(a)
and 11(f), so long as the waiver is explicit, knowing, and voluntary, for the
purpose of impeachment, United States v. Mezzanatto, 513 U.S. 196 (1995), and
for admission in the government’s case-in-chief, Sylvester, 583 F.3d at 289.
Accordingly, we will enforce knowing and voluntary waivers by defendants of the
protections of Rule 410(a). See, e.g., Nelson, 732 F.3d at 517; Sylvester, 583 F.3d
at 289-90.
                                              B.
       We construe a plea “agreement like a contract, seeking to determine the
defendant’s ‘reasonable understanding’ of the agreement and construing
ambiguity against the Government.” 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][.]”).
       The language by which the government contends Escobedo waived his
rights under Rule 11(f) of the Federal Rules of Criminal Procedure and Rule
410(a) of the Federal Rules of Evidence is contained in a section of the plea




FEDERAL PRACTICE & PROCEDURE § 5343, at 362 (1st ed. 1980 & Supp. 2012) (“Rule 410
excludes any evidence of a withdrawn plea of guilty; it does not distinguish between direct and
circumstantial evidence. Hence, any evidence that would permit the jury to infer that the
defendant had once pleaded guilty would be within the scope of the rule.”) (footnotes omitted);
DAVID P. LEONARD, THE NEW WIGMORE: SELECTED RULES OF LIMITED ADMISSIBILITY § 5.8.2,
at 629 (Rev’d ed. 2002 & Supp. 2014) (“[T]he principle should be clear: If the withdrawn guilty
plea is inadmissible, evidence or argument suggesting that such a plea had once been entered
should also be excluded.”).

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                                 No. 12-40205

agreement entitled “Breach of Plea Agreement.” That section provides as
follows:
                         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.
      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.




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                                   No. 12-40205

      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.
      For these reasons, we conclude that Escobedo’s Rule 410(a) and 11(f)
waiver did not become effective under the circumstances of this case, and that
his guilty plea and the factual basis recited in Escobedo’s withdrawn plea
agreement and statements he made at the rearraignment hearing before the
magistrate judge in connection with his initial plea of guilty were inadmissible
at Escobedo’s trial. See FED. R. EVID. 410(a); FED. R. CRIM. P. 11(f). The district
court erred by allowing the prosecutor to present those statements to the jury.




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                                      No. 12-40205

                                           III.
       For the foregoing reasons, the judgment of the district court with respect
to count one of the indictment is REVERSED and the case is REMANDED for
further proceedings consistent with this opinion.6




       6
        The government does not dispute that Escobedo’s judgment of acquittal on the
remaining counts is final, see Martin Linen Supply Co., 430 U.S. 564, barring retrial on all
counts but count one.

                                             9
