I wasn’t always a criminal defense lawyer in Atlanta who handles a lot of federal cases. Oh no, at one time I was a smooth-faced high schooler who played lots of sports and also was in plays from time to time in the little Midwestern town where I grew up. One play, My Fair Lady, reminded me of the importance of words. Eliza Doolittle, a poor girl who the main character was trying to pass off as a Princess by changing her dialect, had a memorable line of complaint for her teachers: “Words words word all day long, first from him then from you, is that all you blighters can do?” A recent case from the venerable U.S. Court of Appeals for the Eleventh Circuit reminded me that when it comes to a Plea Agreement in a federal criminal case, Eliza’s complaint was something that lawyers need to remember, words can be crucial. United States v. Elbeblawy.
First, a couple of legal principles. As a general rule, whether in the criminal or civil context, discussions between two parties that are done with an eye toward resolving a particular dispute are usually not admissible in later court proceedings if the negotiations break down. The basic idea is that the law wants to encourage the two sides to try and resolve the matter through discussions as opposed to fighting, and the parties are less likely to be forthcoming in such discussions if they know that their words can come back to bite them. Next, a part of Rule 11 from the Federal Rules of Criminal Procedure and a different place within the Federal Rules of Evidence (Rule 410 to be precise) essentially encapsulate this idea of keeping plea negotiation discussions out-of-bounds from later trials. Finally, just like any other protection, these rules can be “waived”, but only as long as the person or party understands the protection and makes a voluntary decision to give it up.
Now for Mr. Elbeblawy. He got caught in a large-scale healthcare fraud investigation, decided to cooperate, and had his lawyer negotiate a plea deal. As part of the deal the Defendant told investigators everything that he and others had done illegally, and also signed a separate document outlining and agreeing to his own criminal conduct. He signed the Plea Agreement, but got cold feet when he got to court and backed out of the deal. Now, federal prosecutors are a pretty savvy bunch, they’ve seen this before. Therefore, just about every plea agreement in a federal criminal case comes with a waiver of the Rule11/Rule 410 protections. You guessed it, they brought new charges against Mr. Elbeblawy, introduced everything he had told investigators and the plea documents, and to no one’s surprise, he was found guilty.
However, on appeal the Defendant’s highly capable attorney made some interesting arguments that his client had not knowingly waived the plea-negotiation discussion protections. He pointed out that Mr. E. had backed out before he actually pled guilty, but that the “words words words” of the Plea Agreement never specifically envisioned this situation, thus making the agreement “ambigous” and unenforceable. The Plea Agreement said: “Defendant agrees that if he fails to comply with any of the provisions of this [a]greement. . . or attempts to withdraw the plea (prior to or after pleading guilty…the [d]efendant waives any protections afforded by [Rule 410, etc.] Appellate counsel pointed out that a Defendant cannot “attempt to withdraw” “prior to” actually pleading guilty, thus making the document ambiguous. Nice try, said the Court of Appeals, but no dice.
The case is an obvious reminder to anyone involved in the federal criminal justice system and who is considering a guilty plea. Be very aware of each and every word in the Plea Agreement, because constructing such documents to favor the prosecution’s position is, as Eliza Doolitle put it, “all you blighters can do.”