Most federal cases end in a guilty plea (about 97%) and most of those involve plea agreements – a reflection of what has been described as the prosecutor’s “awesome” bargaining power. In fact, as the Supreme Court acknowledged in Frye v. Lafler, “longer sentences exist on the books largely for bargaining purposes.” How stringently are these plea agreements interpreted and enforced? Very, as it happens, using time-honored contract law principles, and not necessarily the squishier ones that would favor the defense (like the covenant of good faith and fair dealing, or the doctrine of undue influence). United States v. Washburn, issued on August 27, 2013, is a case in point.
Washburn had executed a plea agreement in which he agreed to plead guilty to two counts of a 49-count indictment, stipulated to the facts underlying the guilty plea, and – in the fine print, Washburn later argued – agreed to waive his rights under Fed.R.Evid. 410, which provides that statements made during plea discussions are inadmissible at trial. After signing the plea agreement, and initialing all paragraphs of the agreement although before his assent to the plea agreement had been probed by the judge on the record, Washburn had a change of heart and elected to proceed to trial. The district court granted the government’s motion to admit the signed and initialed factual stipulation at trial. Washburn was convicted on all but two counts.
On appeal, the Eighth Circuit found the waiver of Washburn’s Rule 410 rights to have been knowing and voluntary, where he had signed and initialed the plea agreement, and “there was no evidence in the record that Washburn entered into this agreement involuntarily or unknowingly.” While the district court “could have” conducted an inquiry into the voluntariness of the waiver, “it was not required to do so on these facts.” The Court noted that in resisting the admission of the factual stipulation, Washburn’s counsel “did not mention, or challenge,” the waiver at all, but to the contrary emphasized that the factual stipulation had been entered into knowingly and voluntarily. Of course, Washburn’s counsel is hardly a disinterested party here – having secured the plea agreement and witnessed its execution. Whether Washburn was denied his right to conflict-free counsel in this context is not addressed in the decision.