“Offers to settle are excluded even if no settlement negotiations follow[,]” and since Rule 408 is “meant to promote settlements[,] . . . [i]f one party attempts to initiate negotiations with a settlement offer, the offer is excluded from evidence even if the counterparty responds: ‘I'm not negotiating with you.'” United States v. Davis, 596 F.3d 852, 859 (D.C. Cir. 2010) (citing Fed.R.Evid. 408 advisory committee's note (1972 proposed rule)), rehearing en banc denied, 711 F.3d 174 (D.C. Cir. 2013). In sum, for Rule 408 to apply, “an actual dispute must exist, preferably some negotiations, and at least an apparent difference of view between the parties as to the validity or amount of the claim.

(emphasis added). 596 F.3d 852 (D.C. Cir. 2010). (emphasis added).

Cf. United States v. Baker , 926 F.2d 179, 180 (2d Cir. 1991) ("The reference to ‘a claim which was disputed as to either validity or amount’ does not easily embrace an attempt to bargain over criminal charges."), superseded by rule as stated in United States v. Davis , 596 F.3d 852 (D.C. Cir. 2010). ¶ 44 We find support for this interpretation of "claim" in a different rule of evidence, CRE 410, which explicitly addresses a defendant's offer of information in exchange for leniency in a criminal case.

IFrom 1999 to 2003, Terry Davis served as national treasurer of the Phi Beta Sigma fraternity. United States v. Davis, 596 F.3d 852, 854 (D.C.Cir.2010). During that time, Davis used at least $50,000 of the fraternity's funds for his own benefit by periodically writing checks to cash, sometimes forging the signature of the fraternity's national president and sometimes representing to fraternity officials that the proceeds of the checks went to fund fraternity activities.

Fed.R.Evid. 408 Fed.R.Evid. 408 Advisory Committee's Note on 1972 Proposed Rules; see also United States v. Davis, 596 F.3d 852, 860-61 & n.7 (D.C. Cir. 2010). Rather than encourage settlements, allowing parties to get out of Rule 408 by inserting language insisting an offer doesn't require “waiving any claims,” Prelitigation Letter at 1, would only “chill[] such negotiations,” see Davis, 596 F.3d at 861 n.7

Thus, offers to settle, or statements made alongside offers to settle, are "excluded even if no settlement negotiations follow" or if the party to whom the offer is made refuses to engage in compromise negotiations. United States v. Davis , 596 F.3d 852, 859 (D.C. Cir. 2010). Although Mr. Haas has credibly testified that Stephenson and other Columbia representatives were unrelenting in their demand that the Maple Tree be removed, Stephenson has testified that her goal in her phone conversation and meeting with Mr. Haas was to settle the matter.

The rule applies to both civil and criminal proceedings.United States v. Davis, 596 F.3d 852, 860 (D.C.Cir.2010) (citing Fed.R.Evid. 408 advisory committee note for 2006 amendments). However, under the current incarnation of Rule 408, a defendant's statements and resulting settlement with a government agency are admissible in a criminal case against the defendant.

Still, the overall relevance of a piece of evidence depends on the purpose for which it is offered. See United States v. Morley, 199 F.3d 129, 133 (3d Cir. 1999) ("Here, as in so many cases, inquiries of relevance and proper purpose are intimately intertwined."); see also United States v. Hamann, 33 F.4th 759, 769 (5th Cir. 2022) ("Evidence can be relevant for multiple purposes."); United States v. Davis, 596 F.3d 852, 860 (D.C. Cir. 2010) (same); Lopez v. Tyson Foods, Inc., 690 F.3d 869, 882-83 (8th Cir. 2012) (same). And although after-acquired evidence is not relevant to an employer's state of mind at the time of the adverse employment action

Rule 408 expressly allows the introduction of "conduct or a statement made during compromise negotiations" if they are "offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority." Fed. R. Evid. 408(a)(2) ; United States v. Davis , 596 F.3d 852, 860 (D.C. Cir. 2010) ; United States v. Prewitt , 34 F.3d 436, 439 (7th Cir. 1994). This is exactly what the government did—it introduced statements, made by Paulus, as part of a stipulated agreement with the KBML over his medical license. At least on its face, Rule 408 contemplates that this evidence would be admissible in a criminal prosecution.

Significantly, the government did not advance that (or any) harmless-error argument in its submissions to this court. And although we have “discretion to determine sua sponte whether an error is harmless,” United States v. Davis, 596 F.3d 852, 861 (D.C.Cir.2010), the exercise of that discretion should be carefully circumscribed, see United States v. Pryce, 938 F.2d 1343, 1348 (D.C.Cir.1991) (opinion of Williams, J.). In my view, the harmlessness of the error in this case is not sufficiently obvious or readily discernible from the record to warrant a sua sponte harmless-error determination.