by Anthony W. Accurso

The United States Court of Appeals for the Ninth Circuit affirmed the exclusion of the factual basis from the defendant’s plea agreement, holding that the agreement’s waiver of Federal Rule of Evidence 410 (“Rule 410”) protections was never triggered. The Court reasoned that because the “Type A” agreement was never accepted by the U.S. District Court for the Central District of California, it was unenforceable under Ninth Circuit precedent, thereby rendering the District Court unable to make the specific “finding of a knowing breach” required to trigger the waiver.

Background

Yasiel Puig Valdes is a professional baseball player who participated in an illegal sports gambling operation. As part of an investigation into the gambling operation, the U.S. Attorney’s Office for the Central District of California (“USAO”) interviewed Puig on January 27, 2022. During the interview, Puig made materially false statements to federal agents in violation of 18 U.S.C. § 1001, including denying his involvement with the gambling operation and the intermediaries who facilitated his bets and debt payments.

In May 2022, the Government sent a target letter to Puig indicating he was under investigation for false statements under § 1001 and obstruction of justice under § 1503(a). The parties negotiated a plea agreement whereby Puig would plead guilty to a single count of making false statements. In exchange, the Government agreed not to prosecute him for obstruction of justice.

The plea agreement stated it was “effective upon signature and execution of all required certifications” by Puig, his counsel, and the assigned Assistant U.S. Attorney (“AUSA”). It also provided that “if defendant, at any time after the effective date of this agreement, knowingly violates or fails to perform any of defendant’s obligations under this agreement (‘a breach’), the USAO may declare this agreement breached.”

Importantly, the plea agreement included a waiver provision stating that following the court’s finding of a “knowing breach,” the Government could use against Puig: “(i) any statements made by defendant, under oath, at the guilty plea hearing (if such a hearing occurred prior to the breach); (ii) the agreed to factual basis statement in this agreement; and (iii) any evidence derived from such statements.” The provision specifically waived protections 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.”

Rule 410 generally provides that “a statement made during plea discussions with an attorney for the prosecuting authority” is “not admissible against the defendant … if the discussions did not result in a guilty plea.”

Puig and his attorneys signed the plea agreement on July 7, 2022, and the AUSA signed in late August 2022. On August 29, 2022, the Government filed a single-count information under seal charging Puig with making false statements.

Puig withdrew from the plea agreement on November 28, 2022, before any guilty plea hearing occurred. His counsel explained that additional evidence “undermined the factual basis” stated in the plea agreement and “supported Puig’s defenses.”

In December 2022, the Government moved for a finding that Puig had breached the plea agreement and that it was relieved of its obligations. The motion did not request a determination of whether the breach was “knowing” or address Rule 410’s applicability. On January 6, 2023, the District Court granted the motion, concluding the Government was “relieved of any obligations it undertook in the plea agreement” but expressly stated it made no finding as to whether Puig’s breach was “knowing.”

The Government then obtained an indictment in January 2023 charging both the false statements count and a new obstruction of justice count under § 1503(a).

Before trial, the Government moved for an order finding Puig had “knowingly” breached the plea agreement and that the factual basis could be admitted at trial pursuant to the waiver provision. On August 10, 2023, the District Court denied the motion, concluding that because the plea and plea agreement were “never accepted by the [c]ourt,” the agreement was “unenforceable.” The court ruled that because the plea agreement was unenforceable, its waiver of Rule 410 was ineffective, and Rule 410 therefore barred admission of the factual basis at trial. The court also amended its January 6, 2023 ruling to rest on the ground that the plea agreement was unenforceable rather than breached.

The Government moved for reconsideration, requesting either reversal or, alternatively, permission to use the factual basis for impeachment if Puig testified inconsistently at trial. The District Court denied this motion on October 5, 2023. The Government filed a timely interlocutory appeal under 18 U.S.C. § 3731.

Analysis

The Court began by noting that the Government did not contest that, absent a valid waiver, Rule 410 bars introduction of the factual basis set forth in Puig’s written plea agreement. The factual basis plainly constituted “a statement made during plea discussions with an attorney for the prosecuting authority” and therefore was “not admissible against the defendant who … participated in the plea discussions” where “the discussions did not result in a guilty plea.” Fed. R. Evid. 410(a)(4); see also Fed. R. Crim. P. 11(f).

However, the Court explained that Rule 410 and Criminal Rule 11(f) were “enacted against a background presumption that legal rights generally, and evidentiary provisions specifically, are subject to waiver by voluntary agreement of the parties.” United States v. Mezzanatto, 513 U.S. 196 (1995); see also United States v. Rebbe, 314 F.3d 402 (9th Cir. 2002) (holding that proffer statements were properly used at trial following a voluntary waiver of inadmissibility). Accordingly, the Supreme Court held in Mezzanatto that “absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of [these] Rules is valid and enforceable.

Waiver Trigger Language

After discussing those general rules, the Court then addressed whether the terms of Puig’s Rule 410 waiver were triggered. Under the plea agreement’s express terms, the waiver became effective only “[f]ollowing the Court’s finding of a knowing breach of this agreement by [Puig]” and only if the Government pursued “any charge … not filed as a result of this agreement.” The second condition was clearly met because the Government did pursue the obstruction charge it had agreed not to file, the Court explained. Consequently, the central question was what constituted the requisite “Court’s finding of a knowing breach.”

The Court emphasized that, by its plain terms, this phrase required not merely that Puig perform some objective action triggering the waiver but that there be a “Court’s finding” that there was a “breach of this agreement by” Puig. The Court observed that the contrast with Rebbe was instructive. In Rebbe, the waiver was triggered “should [Rebbe] testify, or to rebut any evidence, argument or representations offered by or on behalf of [Rebbe] in connection with the trial.” The trigger was simply that the proffer statements rebutted Rebbe’s testimony or defense at trial. Similarly, in Mezzanatto, the waiver was triggered simply by the defendant giving contradictory testimony at trial.

In contrast, in Puig’s case, the waiver was not triggered by a simple objective action, such as failing to plead guilty or giving contrary testimony, according to the Court. Rather, it required a “Court[] finding” of a “breach of this agreement.” The Court explained that by requiring the District Court to make a finding of a “breach of this agreement,” the language necessarily required the District Court to make the predicate determination that there was a valid “agreement,” that there was a “breach” of it by Puig, and that the District Court should enforce that agreement by declaring such a “breach.” In turn, this required consideration of whether the requisites for a judicially enforceable plea agreement were satisfied.

Types of Plea Agreements
Under Rule 11

Federal Rule of Criminal Procedure 11 recognizes three main categories of plea agreements, often called Type A, Type B, and Type C agreements. United States v. Torres-Giles, 80 F.4th 934 (9th Cir. 2023). A Type A agreement includes a Government promise to dismiss or not bring other charges; a Type B agreement includes a Government promise to recommend or not oppose specified sentencing considerations; and a Type C agreement includes an agreement by both sides as to either a specific disposition or the applicability of specific sentencing provisions. Fed. R. Crim. P. 11(c)(1)(A)-(C).

Because Type A and Type C agreements include elements dictating a binding outcome, such agreements must be approved by the District Court. Specifically, Rule 11 provides that to “the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.” Fed. R. Crim. P. 11(c)(3)(A). If a District Court accepts such an agreement, it must inform the defendant that the “agreed disposition will be included in the judgment.” Fed. R. Crim. P. 11(c)(4); see also United States v. Bennett, 990 F.2d 998 (7th Cir. 1993). If the District Court rejects a Type A or Type C agreement, it must inform the parties of the rejection and advise the defendant that it may dispose of the case less favorably than contemplated. Fed. R. Crim. P. 11(c)(5)(A), (C).

The District Court “plays a different role with a Type B plea agreement.” Because a Type B agreement involves only sentencing recommendations, “there is nothing about the plea bargain for the court to accept or reject,” and “a district court’s purported ‘rejection’ of a Type B plea agreement at sentencing ha[s] no legal effect.” Torres-Giles.

The Court noted that because Type A and Type C agreements are subject to court approval, the Ninth Circuit has long held that the terms of such agreements are generally enforceable only after that approval is given. The Ninth Circuit has stated broadly that a Type A or Type C “plea agreement that has not been entered and accepted by the trial court does not bind the parties.” United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006); see also United States v. Savage, 978 F.2d 1136 (9th Cir. 1992) (holding that “neither the defendant nor the government is bound by a plea agreement until it is approved by the court”).

Turning to the present case, the Court concluded that Puig’s Rule 410 waiver was not triggered. The waiver was expressly contingent on the District Court’s “finding” that there was a “breach of this agreement.” The Court explained that the waiver’s terms were most naturally understood as requiring an “agreement” that was enforceable by the District Court and as to which the court could make the requisite “finding” of a “breach.” Because the plea agreement was a Type A agreement requiring the District Court’s approval, and because that approval never occurred, the agreement was not enforceable by the District Court. By its express terms, the waiver did not apply. Thus, the Court held that Rule 410 remained fully applicable, and the factual basis was “not admissible against” Puig. Fed. R. Evid. 410(a).

Conclusion

Accordingly, the Court affirmed the District Court’s ruling that the factual basis in the plea agreement was inadmissible under Rule 410. See: United States v. Valdes, 138 F.4th 1231 (9th Cir. 2025).  

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