United States v. Mitchell

FILED
United States Court of Appeals
Tenth Circuit

February 3, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 09-4141
DINO NICK MITCHELL,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:07-CR-00149-TS-4)

Bretta Pirie (Steven B. Killpack, Utah Federal Defender, with her on the briefs),
Utah Federal Defender’s Office, Salt Lake City, Utah, for Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (Carlie Christensen,
Acting United States Attorney, with her on the brief), Office of the United States
Attorney, Salt Lake City, Utah, for Appellee.

Before TYMKOVICH, SEYMOUR, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.

At Dino Mitchell’s conspiracy trial, the government introduced evidence of

his withdrawn guilty plea in its case-in-chief, including statements from his plea

agreement and plea colloquy. Ordinarily a defendant’s withdrawn guilty plea or
his statements during plea discussions are inadmissible under Federal Rule of

Evidence 410. But in this case Mitchell executed a plea agreement that waived

his right to Rule 410’s protections. When he later withdrew from the plea

agreement and went to trial, the district court allowed the statements to be

admitted. He now argues on appeal that he did not enter into the plea agreement

voluntarily and that the district court erred in allowing him to withdraw from the

plea agreement without also barring the use of his incriminating statements at

trial.

We agree with the district court on both issues. Mitchell voluntarily

entered into the plea agreement and waived Rule 410’s protections. Under

Supreme Court precedent, United States v. Mezzanatto, 513 U.S. 196 (1995), the

government is entitled to use plea statements during its case-in-chief at trial.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. Background

Dino Mitchell and several co-conspirators were indicted on one count of

conspiracy to transport stolen securities in violation of 18 U.S.C. §§ 371 and

2314. Mitchell’s co-conspirators pleaded guilty to the charge pursuant to plea

agreements with the government, but Mitchell refused and planned to go to trial.

But on the day Mitchell’s trial was set to begin, he entered into a plea agreement

with the government and pleaded guilty.

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 The plea agreement set forth facts supporting the elements of the

conspiracy charge and contained assurances Mitchell was aware of the

constitutional and statutory rights he was waiving by pleading guilty.

Specifically, Mitchell agreed that

if I withdraw my plea of guilty, I shall assert no claim under the
United States Constitution, any statute, Rule 410 of the Federal
Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal
Procedure, or any other federal rule, that the defendant’s
statements pursuant to this agreement, or any leads derived
therefrom, should be suppressed or are inadmissible at any trial,
hearing, or other proceeding.

R., Vol. 1, p. 33. The agreement required the government to recommend the low

end of the sentencing guidelines range but recognized the sentence was ultimately

within the discretion of the court, in accordance with 18 U.S.C. § 3553(a).

During the plea colloquy, Mitchell affirmed he was not threatened or coerced into

pleading guilty.

After the plea was entered, Mitchell obtained new counsel and filed a

motion to withdraw his guilty plea. The motion claimed Mitchell had a “fair and

just reason,” F ED . R. C RIM . P. 11(d)(2)(B), to withdraw his plea, referencing the

factors set forth by this court in United States v. Yazzie, 407 F.3d 1139, 1142

(10th Cir. 2005) (en banc). Most prominently, Mitchell contended his plea was

not knowing and voluntary because his previous counsel had pressured him into

pleading guilty. The government opposed the motion, and the district court

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denied it, finding the “Rule 11 colloquy here clearly demonstrates that [Mitchell]

entered his plea knowingly and voluntarily.” R., Vol. 1, p. 77.

Roughly one week later, Mitchell filed a motion to reconsider. He

submitted with the motion two letters written by his previous counsel as evidence

of their deteriorating relationship. One letter was addressed to Mitchell’s brother

and encouraged him to convince Mitchell to accept the plea deal. Counsel stated,

“I can no longer talk to Dino, if only because he won’t listen to me because I

won’t say what he wants to hear.” R., Vol. 1, p. 92. The other letter was written

directly to Mitchell and discussed trial strategy as well as the prison sentence

Mitchell likely would receive with, and without, accepting the plea agreement.

Finally, counsel opined, “Dino, you would be a fool not to take this plea offer!!”

R., Vol. 1, p. 95.

Based on these letters, the district court granted Mitchell’s motion to

withdraw his guilty plea. While concluding the advice to plead guilty was no

doubt sound, the district court expressed concern about the possible “undue

influence” exerted by Mitchell’s counsel, especially “considering Defendant’s

lack of reading skills, lack of education, and general lack of understanding of the

legal system.” R., Vol. 1, pp. 118–19 (footnotes omitted). But even with these

concerns, the district court nonetheless found Mitchell’s plea to have been

knowing and voluntary. Acknowledging this was “an extremely close case,” the

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court determined Mitchell’s constitutional right to a jury trial weighed in favor of

granting his motion to withdraw his guilty plea. Id. at 119–20.

Before trial began, the government filed a motion in limine regarding the

admissibility of statements Mitchell made in connection with his guilty plea. The

government sought to admit these statements not merely as rebuttal evidence, but

also in its case-in-chief. In support of its motion, the government cited Mitchell’s

waiver of the Rule 410 protections in his plea agreement that allowed his

statements to be used against him in the event he withdrew his guilty plea.

Mitchell opposed the motion, claiming admission of these statements would be

more prejudicial than probative, in violation of Rule 403. After considering these

arguments, the district court granted the motion and concluded the Supreme

Court’s reasoning that Rule 410 waivers permit admission of impeachment

evidence, see United States v. Mezzanatto, 513 U.S. 196 (1995), extended to

permit the government to use Mitchell’s plea statements in its case-in-chief. The

court also rejected Mitchell’s Rule 403 argument on the basis the plea statements’

highly probative value was not substantially outweighed by any prejudice.

Evidence of Mitchell’s guilty plea, including statements from the plea

agreement and plea colloquy, was used extensively in the government’s case-in-

chief. In the government’s opening statement, it told the jury Mitchell had

admitted under oath the charged offense. A government witness described the

hearing in which Mitchell pleaded guilty and read portions of the plea colloquy

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transcript in which Mitchell admitted to the facts of the offense. As well, during

cross-examination of Mitchell, the government questioned him regarding his

guilty plea. Finally, the government again emphasized Mitchell’s guilty plea

during its closing argument.

At the close of trial, Mitchell was convicted and sentenced to 27 months’

imprisonment and 36 months of supervised release. He timely appealed.

II. Analysis

Evidence from plea negotiations is ordinarily inadmissible under Rule 410.

But the protections of the Rule may be waived: “[A]bsent some affirmative

indication that the agreement was entered into unknowingly or involuntarily, an

agreement to waive the exclusionary provisions of [Rule 410] is valid and

enforceable.” Mezzanatto, 513 U.S. at 210. In Mezzanatto, the Supreme Court

sanctioned the use of Rule 410 evidence for impeachment and during the

government’s rebuttal case. See W EINSTEIN ’ S F EDERAL E VIDENCE § 410.12 (“[I]f

a defendant engaged in plea discussions signs a document providing that his or

her statements may be used at trial to impeach or rebut contrary testimony, Rule

410 will not bar the statements.”). The issue here is whether the reasoning of

Mezzanatto should be extended to allow the government to use Rule 410 evidence

in its case-in-chief.

Mitchell argues Mezzanatto should not be extended in his case, offering

several reasons. First, he contends his guilty plea was not knowing and voluntary

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and therefore the Mezzanatto waiver analysis should not apply. Next, relying on

a concurrence in Mezzanatto, which suggested case-in-chief waivers might not be

covered by the reasoning applied to rebuttal waivers, Mitchell urges us not to

extend the reasoning of Mezzanatto to his situation.

Generally, we review a district court’s decision on the admissibility of

evidence for an abuse of discretion. See United States v. Stiger, 413 F.3d 1185,

1197 (10th Cir. 2005). But in this case the question of whether to extend the

rationale of Mezzanatto to case-in-chief waivers is a legal question, which we

review de novo. See United States v. Sylvester, 583 F.3d 285, 288 n.4 (5th Cir.

2009), cert. denied, 130 S. Ct. 1313 (2010) (“Whether Rule 410 is waivable with

respect to the use of plea statements in the government’s case-in-chief is a legal

conclusion, reviewed de novo.”). After all, “[a] district court by definition abuses

its discretion when it makes an error of law. . . . The abuse-of-discretion standard

includes review to determine that the discretion was not guided by erroneous legal

conclusions.” Koon v. United States, 518 U.S. 81, 100 (1996).

Our review of the voluntariness of a guilty plea is de novo. United States

v. Hamilton, 510 F.3d 1209, 1215–16 (10th Cir. 2007). An objection not

preserved below is reviewed for plain error. United States v. Ferrel, 603 F.3d

758, 764 (10th Cir. 2010).

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 A. Knowing and Voluntary Guilty Plea

We first consider whether Mitchell’s Rule 410 waiver was knowing and

voluntary. It has long been established that a criminal defendant may waive many

fundamental procedural and substantive rights, both constitutional and statutory.

See Mezzanatto, 513 U.S. at 201 (collecting cases). For instance, a criminal

defendant may waive constitutional rights such as the right to a jury trial,

assistance of counsel, and against double jeopardy. Id.

And a waiver, especially in the form of a plea of guilty, must be knowing

and voluntary. Because a guilty plea alone, without an associated plea agreement,

waives three constitutional rights—“the right to a jury trial, the right to confront

one’s accusers, and the privilege against self-incrimination”—“[i]t is beyond

dispute that a guilty plea must be both knowing and voluntary.” Parke v. Raley,

506 U.S. 20, 28–29 (1992); cf. United States v. Burke, No. 10-3030, at *6–14

(10th Cir. Feb. 2, 2011) (surveying types of waivers). If a guilty plea is not

knowing and voluntary, it is void, see United States v. Gigley, 213 F.3d 509, 516

(10th Cir. 2000), and any additional waivers in the plea agreement generally are

unenforceable.

Mitchell claims on appeal, as he did below, that his guilty plea was not

knowing and voluntary. He argues the district court erred in concluding to the

contrary, pointing to evidence of a breakdown in the relationship with his trial

counsel who negotiated the plea agreement. Mitchell also relies heavily on the

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district court’s statements that trial counsel may have exerted “undue influence”

over Mitchell leading up to his entry of the guilty plea. In response, the

government argues Mitchell never raised this issue before the district court and

our review is therefore only for plain error.

We agree this issue was sufficiently raised below. The voluntariness of

Mitchell’s plea was specifically considered by the district court in its ruling on

his motion to withdraw his guilty plea and the government’s motion in limine. In

Mitchell’s motion to withdraw as well as his motion seeking reconsideration of

the court’s ruling on the motion in limine, his primary contention was his guilty

plea was involuntary. The government itself raised the issue of the voluntary

nature of the plea in its motion in limine by reminding the district court that it had

already “found on three separate occasions—at the entry of the plea, and in both

orders to withdraw the plea—that the plea (and consequently, the plea agreement)

were knowingly and voluntarily entered into by the defendant.” R., Vol. 1, p.

127. Additionally, the district court relied on the knowing and voluntary nature

of Mitchell’s plea in granting the motion in limine.

The question of whether Mitchell’s plea was knowing and voluntary was

raised before the district court on multiple occasions and was mentioned in the

context of the admissibility of his plea statements by both the government and the

district court. We see no reason to review for plain error, and therefore we

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review de novo. In any event, for the reasons we discuss below, the district court

did not commit any error, let alone plain error.

Based on a careful review of the record, we agree with the district court

that Mitchell’s plea was knowing and voluntary. The influence of his trial

counsel did not render his plea involuntary. It is apparent counsel believed the

government’s offer was a good one, and like any competent lawyer assessing the

pros and cons for her client, she gave Mitchell her most candid advice. The fact

she used colorful language—“you would be a fool not to take this plea

offer!!”—does not approach a constitutionally suspect level of coercion. A useful

comparison is United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996), in which

the defendant claimed he was “hounded, browbeaten and yelled at” by his

attorney. When he initially resisted these efforts at persuasion, his attorney told

him he was “stupid” and “a f***ing idiot.” Id. We held even though “these

pressures might have been palpable to Appellant, they do not vitiate the

voluntariness of his plea; it was still his choice to make.” Id. The pressure

applied by Mitchell’s trial counsel was markedly less than the attorney exercised

in Carr, and we do not find counsel’s influence overcame Mitchell’s free will to

voluntarily enter a guilty plea. Additionally, Mitchell affirmed the voluntariness

of the plea numerous times under oath and before the court during the Rule 11

colloquy.

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 Mitchell argues the district court’s factual finding that his trial counsel

exerted “undue influence” cannot be reconciled with its ruling that his plea was

voluntary and this finding requires a conclusion of involuntariness as a matter of

law. We disagree. First, it is not evident the district court made a factual finding

to which we owe deference. Next, the district court was aware of the implications

of Mitchell’s withdrawal of his guilty plea. It considered the influence exerted by

counsel—as evident in her two letters—when the court balanced Mitchell’s right

to proceed to trial and his protestations of innocence against the need to enforce

his guilty plea. More importantly, the district court explicitly reached the

opposite conclusion—it allowed Mitchell to withdraw his guilty plea but still

emphasized Mitchell’s plea was knowing and voluntary. Trial counsel’s influence

may have been a factor in the court’s decision, but that does not compel the

conclusion Mitchell’s guilty plea did not “represent[] a voluntary and intelligent

choice among the alternatives open to the defendant.” Gigley, 213 F.3d at 516.

The entirety of the record bears out the district court’s conclusion.

Mitchell admitted during his plea colloquy he was not coerced into pleading

guilty and made the decision of his own free will. In light of these statements and

the district court’s findings of voluntariness, we conclude his plea was knowing

and voluntary. The plea agreement therefore is enforceable.

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 B. Rule 410 and Mezzanatto

Having determined Mitchell voluntarily entered into the plea agreement, we

consider whether his plea statements are admissible at trial.

As a general matter, evidence of a guilty plea or statements made in plea

negotiations are inadmissible. Rule 410 provides:

Except as otherwise provided in this rule, evidence of the
following is not, in any civil or criminal proceeding,
admissible against the defendant who made the plea or was a
participant in the plea discussions: (1) a plea of guilty which
was later withdrawn; . . . (4) any statement made in the course
of plea discussions with an attorney for the prosecuting
authority which do not result in a plea of guilty or which result
in a plea of guilty later withdrawn.

F ED . R. E VID . 410 (emphasis added).

Rule 410 grew out of longstanding case law excluding this type of

especially damning evidence. As far back as Kercheval v. United States, 274 U.S.

220 (1927), the Supreme Court has held withdrawn guilty pleas could not be

entered into evidence in a subsequent trial for the same offense. Rejecting the

common law argument that a withdrawn guilty plea was more or less a form of

prior testimony, the Court reasoned a plea “shown to have been unfairly obtained

or given through ignorance, fear or inadvertence” should not be admissible. Id. at

223–24. When a court allows a defendant to withdraw a guilty plea, it makes the

implicit determination the plea should “be held for naught,” and thus admitting

the withdrawn plea into evidence would be “in direct conflict with that

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determination.” Id. at 224. The defendant’s ability to withdraw a wrongfully

obtained guilty plea was so paramount the Court found insufficient a jury charge

to ignore the withdrawn plea if the jury found the plea was obtained through

bribery or deceit. See id. “The withdrawal of a plea of guilty is a poor privilege,

if, notwithstanding its withdrawal, it may be used in evidence under the plea of

not guilty.” Id.

With this strong bias toward exclusion, the question remained whether Rule

410’s protections could nonetheless be waived. The Supreme Court expressly

considered this question in 1995 in Mezzanatto. In that case, the Court examined

a Rule 410 waiver allowing the government to use the defendant’s statements

during plea negotiations to impeach any contradictory testimony that could arise

if the case proceeded to trial. 513 U.S. at 198. The Court concluded “absent

some affirmative indication that the agreement was entered into unknowingly or

involuntarily, an agreement to waive the exclusionary provisions of the

plea-statement Rules is valid and enforceable.” Id. at 210.

The Court noted there may be a small number of “evidentiary provisions

that are so fundamental to the reliability of the factfinding process that they may

never be waived without irreparably discrediting the federal courts.” Id. at 204

(quotation omitted). These provisions are in accord with rights the Court has

identified whose violation is a “structural defect affecting the framework within

which the trial proceeds, rather than simply an error in the trial process itself” and

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therefore are within a “category of constitutional errors which are not subject to

harmless error.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). “Without

these basic protections, a criminal trial cannot reliably serve its function as a

vehicle for determination of guilt or innocence, and no criminal punishment may

be regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 577–78 (1986);

see, e.g., Vasquez v. Hillery, 474 U.S. 254, 263–64 (1986) (right to grand jury

selection free of racial discrimination); Waller v. Georgia, 467 U.S. 39, 49 n.9

(1984) (right to a public trial); McKaskle v. Wiggins, 465 U.S. 168, 177–78 n.8

(1984) (right to self-representation at trial); Gideon v. Wainwright, 372 U.S. 335,

342–45 (1963) (right to trial counsel); Tumey v. Ohio, 273 U.S. 510, 535 (1927)

(right to an impartial judge). But nothing in Rule 410 suggests Congress intended

its protections to be unwaivable along the lines of these structural protections.

Mezzanatto, 513 U.S. at 200–03.

To the contrary, the Court in Mezzanatto considered and rejected additional

arguments that Rule 410 protections should be unwaivable: (a) Rule 410 is not the

type of rule that must be enforced as a means of securing fair procedure, see id. at

204–06; (b) waivability would not undermine the goal of voluntary settlement, see

id. at 206–09; and (c) waivability would not “invite prosecutorial overreaching

and abuse,” because the pressure to decide whether to waive the Rule 410

protections is no greater than other pressures confronting a defendant considering

a guilty plea. Id. at 209–10.

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 Despite this reasoning, Mezzanatto generated a three-justice concurrence

that advocated a more narrow scope of the holding and emphasized the case only

dealt with an impeachment waiver. “It may be, however, that a waiver to use

such statements in the case in chief would more severely undermine a defendant’s

incentive to negotiate, and thereby inhibit plea bargaining. As the Government

has not sought such a waiver, we do not here explore this question.” Id. at 211

(Ginsburg, J., concurring). 1

Mitchell asks us to take the admonition of the Mezzanatto concurrence and

dissent to heart and bar the admissibility of the plea statements in the

government’s case-in-chief. This we cannot do. We see no analytical distinction

between Rule 410’s application to impeachment waivers and case-in-chief

1
A dissent challenged the legal conclusion that a presumption of
waivability should apply and predicted the consequences of this rule in criminal
prosecutions. Because “defendants are generally in no position to challenge
demands for these waivers,” this meant “the use of waiver provisions as contracts
of adhesion has become accepted practice.” Mezzanatto, 513 U.S. at 216 (Souter,
J., dissenting). And while recognizing Mezzanatto only involved an impeachment
waiver, the dissent predicted it was unlikely the government would stop there:

It is true that many (if not all) of the waiver forms now
employed go only to admissibility for impeachment. But
although the erosion of the Rules has begun with this trickle,
the majority’s reasoning will provide no principled limit to it.
The Rules draw no distinction between use of a statement for
impeachment and use in the Government’s case in chief.

Id. at 217 (Souter, J., dissenting) (footnote omitted).

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waivers. The same reasoning for the former compels the latter. Nor did Mitchell

negotiate a narrower waiver in the first place.

Mitchell counters we should still limit the use of plea evidence to

impeachment, making several procedural and substantive objections. First, as a

procedural distinction, a defendant generally opens the door when he challenges

the factual basis of the government’s case at trial. His prior contradictory

statements become fair game—a notion supporting other provisions of the Rules

of Evidence. For instance, once the door is open, the rules allow character

evidence of the accused or the victim, or prior inconsistent statements of the

defendant. See F ED . R. E VID . 404(a)(1)–(2) (if evidence regarding a particular

character trait is first “offered by an accused,” evidence of the same trait “offered

by the prosecution” is admissible); 801(d)(1)(A) (allowing prior sworn statements

only if they contradict the declarant’s testimony at trial). These rules explicitly

distinguish between impeachment and the case-in-chief, and Mitchell contends a

similar limitation should be read into Rule 410. But the explicit nature of this

distinction actually counsels against reading an implicit distinction into Rule

410—the rules committee and Congress knew how to make this distinction and

chose not to do so in Rule 410. The Mezzanatto majority recognized and rejected

the same argument with respect to impeachment waivers.

Next, Mitchell argues case-in-chief waivers fail to promote the substantive

purpose served by impeachment waivers: prevention of fraud upon the court. He

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reasons admitting previous plea statements or a guilty plea only after a defendant

gives inconsistent testimony alerts the judge or jury to the defendant’s

inconsistency, thus furthering the truth-seeking process. Mitchell argues a case-

in-chief waiver performs no such function and only relieves the government of its

burden to prove guilt beyond a reasonable doubt. In so doing, a case-in-chief

waiver does not aid the truth-seeking process and in some cases would undermine

this objective for the truly innocent defendant.

We see little support for Mitchell’s observation, either in case law or in

practical effect. Even if the district court determines a guilty plea should be

withdrawn, a waiver of Rule 410 only means a trial will contain more evidence—

both the evidence of the original guilty plea and evidence the plea was

withdrawn. As the Supreme Court observed in applying an impeachment waiver,

when seeking the truth, more evidence is preferable to less. Mezzanatto, 513 U.S.

at 204; see Note, Contracts to Alter the Rules of Evidence, 46 H ARV . L. R EV . 138,

140 (1932) (“If the effect of the agreement is to present to the court and jury

additional facts, thus permitting a more accurate determination of the merits of

the controversy, objection to [waiver agreements] seems unjustified.”).

Nor do we see any evidence that a case-in-chief waiver will undermine the

willingness of defendants to engage in plea bargaining. The same factors present

here were at play for the rebuttal waiver in Mezzanatto, and the Supreme Court

there rejected the notion it would impinge on the plea bargain process. See David

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P. Leonard, W AIVER OF P ROTECTIONS A GAINST THE U SE OF P LEA B ARGAINS AND

P LEA B ARGAINING S TATEMENTS A FTER M EZZANATTO , 23 C RIM . J UST . 8, 27 (Fall

2008) (“In short, even in the face of Mezzanatto, there is much a defense attorney

can do to protect the client’s interests.”). In any event, Congress is free to change

or modify Rule 410 to bar such evidence at trial and in the fifteen years since

Mezzanatto has not done so.

Were we to have any lingering concerns about the extension of Mezzanatto

to case-in-chief waivers, we are reassured by the procedural posture of this case.

Here, the waiver was executed at the conclusion of plea negotiations, when

Mitchell actually entered a guilty plea. Mezzanatto analyzed a waiver entered as

a pre-condition to negotiations and a situation where the defendant later failed to

reach a plea agreement with the government. To us, the waiver in Mezzanatto

was more burdensome than the waiver here since the defendant had no assurance

the negotiations would bear fruit. See John Leubsdorf, Evidence Law as a System

of Incentives, 95 I OWA L. R EV . 1621, 1645–46 (2010) (discussing incentives in

“allow[ing] the government to buy the right to use a defendant’s statements made

during plea bargaining.”). In fact, Mitchell received a promise the government

would recommend the low end of the guidelines range, while the defendant in

Mezzanatto received nothing more than the opportunity to discuss cooperation

with the government. Cf. Sylvester, 583 F.3d at 293 (approving Rule 410 case-

in-chief waiver as a condition to plea negotiations). We therefore see little

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chance the type of waiver at issue in this case would undermine the objective of

encouraging plea negotiations, since the waiver was itself the result of plea

negotiations.

Finally, it is worth noting that opening the door to this type of evidence

may not be as great an expansion as Mitchell fears, for courts already broadly

construe the meaning of “rebuttal” in Rule 410 waivers. See Mezzanatto, 513

U.S. at 217 n.2 (Souter, J., dissenting) (noting “[w]aiver for impeachment use,

however, has been applied broadly” and discussing a case in which lines of

questioning undertaken by defense counsel could open the door for impeachment

evidence, even if the defendant himself did not testify); Sylvester, 583 F.3d at 292

(“[I]n other words, ‘rebuttal’ will sometimes mean the countering of factual

assertions made during defense counsel’s opening statement or cross-examination

of government witnesses.”); United States v. Hardwick, 544 F.3d 565, 571 (3d

Cir. 2008) (allowing introduction of proffer statements in response to questioning

“aimed at inferring that [someone other than the defendant was] responsible for

the murders”).

Our conclusion brings us in line with the other circuits that have considered

and extended Mezzanatto’s reasoning to permit case-in-chief waivers of Rule

410’s protections. See Sylvester, 583 F.3d at 289 (“Now presented with a

case-in-chief waiver, however, we can find no convincing reason for not

extending Mezzanatto’s rationale to this case.”); United States v. Burch, 156 F.3d

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1315, 1321 (D.C. Cir. 1998) (“Cumulatively, we believe [Mezzanatto’s] principles

do not countenance drawing any distinction in this case between permitting

waivers for purposes of impeachment or rebuttal and permitting waivers for the

prosecution’s case-in-chief.”); see also United States v. Young, 223 F.3d 905,

910–11 (8th Cir. 2000) (finding defendant knowingly agreed to a blanket waiver

of Rule 410 protections permitting use “in any prosecution or proceeding” and

waiver enforceable in its broad form). We join these courts, agreeing that case-

in-chief waivers will not undermine voluntary plea negotiations or compromise

the fact-finding process at trial. See Sylvester, 583 F.3d at 291 (citing Burch, 156

F.3d at 1322–23).

In sum, the district court did not err in admitting evidence of Mitchell’s

plea waiver and statements from the plea negotiations.

III. CONCLUSION

For the foregoing reasons, we uphold Mitchell’s conviction and thus

AFFIRM.

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