Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements.

(1)  a plea of guilty which was later withdrawn;
(2)  a plea of nolo contendere;
                (3)  any statement made in the course of any judicial inquiry regarding either of the foregoing pleas; or
                (4)  any statement made in the course of plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the Government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a court-martial proceeding for perjury or false statement if the statement was made by the accused under oath, on the record and in the presence of counsel.

The rules aims to encourage legitimate plea bargaining by protecting open, candid discussions between the accused and the prosecution.  See Notes of Advisory Committee to Federal Rule of Evidence 410 (1975); Standard 14-2.2, ABA Standards Relating to Pleas of Guilty (1986).  Mezzanatto v. United States, 115 U.S. 797 (1995).

The Military Rule extends to pretrial agreements, or discussions of the same with the trial counsel, staff judge advocate, or convening authority or other counsel for the Government.  The federal rule extends only to “an attorney for the prosecuting authority.” 

The following are inadmissible against an accused:

A plea of guilty that is later withdrawn;

Any statement made by the accused and defense counsel in the course of the providence inquiry concerning a plea of guilty that is later withdrawn;

Any statement made by the accused and defense counsel in the course of plea discussions which do not ultimately result in a plea of guilty or which result in a plea of guilty that is later withdrawn.

Exceptions to Mil. R. Evid. 410.

Where another statement made in the course of plea discussions or the same plea has been introduced and the proffered statement should be considered contemporaneously.

In a subsequent trial for perjury or for false statements.  United States v. Murray, 28 M.J. 699 (A.F.C.M.R. 1989):  Military Judge failed to warn accused during providence inquiry that answers given under oath, in the presence of counsel, could be used against him in subsequent prosecution for perjury or false statements.  This failure did not improvidence the guilty pleas, but AFCMR implied that failure to properly advise accused could preclude later prosecution for perjury.

In a proper case, the statements may be used during sentencing.  United States v. Holt, 27 M.J. 57 (C.M.A. 1988).  If the plea is accepted and statements concerning uncharged misconduct are “closely connected” to the crimes to which pleas were accepted, admissions may be considered in sentencing.  See also, United States v. Vasquez, 54 M.J. ___ (2001).  Accused submitted a chapter 10 request admitting to a 212 day AWOL.  That charge was not before the court.  Government admitted that request in the sentencing case as part of the accused’s service records. CAAF held that it was a violation of MRE 410.  The court reads the rule very broadly.

Foundational Elements will include:

Proof that at a certain time, and place, the accused met and communicated to authorities;

The accused subjectively believed that the purpose of the meeting or communication was plea bargaining;

That belief was reasonable;

The accused made a statement in the course of the discussion or communication;

The subject-matter was proper.

Examples: 

United States v. Barunas, 23 M.J. 71 (C.M.A. 1986) (accused’s letter to commander imploring non-judicial disposition of use and possession of cocaine charges was inadmissible under Mil. R. Evid. 410).

United States v. Brabant, 29 M.J. 259, 264-65 (C.M.A. 1989) (accused’s statement that he would do whatever it took to “make this right” was inadmissible).

United States v. Watkins, 34 M.J. 344 (C.M.A. 1992) (accused’s questions to investigator as to amount of likely prison sentence is not plea negotiation as CID not within enumerated exceptions of Mil. R. Evid. 410).

United States v. Balagna, 33 M.J. 54, (C.M.A. 1991).  CSM testified concerning the accused’s duty performance.  CSM previously had spoken for the accused in an Article 15 hearing based on a positive urinalysis, but stated that because of a report he had read, he would not do so again.  Court member asked about the report.  The panel was told about a Chapter 10 request, and the judge instructed that the report had no relevance to the trial.

The Government may be able to introduce such evidence if it can establish that the same information was independently obtained, or pursuant to other theories.  See United States v. Magee, 821 F.2d 234 (5th Cir. 1987).