Court Correctly Holds Defendant Has Absolute Right to Withdraw Guilty Plea Before It's Accepted, But Did It Apply Wrong Standard of Review?

United States v. Arami, No. 07-50536 (5th Cir. July 21, 2008) (Prado, Elrod, Haynes)

This appeal concerns Federal Rule of Criminal Procedure 11(b)(1), which permits a defendant to "withdraw a plea of guilty . . . before the court accepts the plea, for any reason or no reason[.]" Not surprisingly, the court correctly holds that the rule means what it says. Unfortunately, the court creates some confusion with an unnecessary discussion of an question that wasn't at issue and that the court doesn't resolve, and by applying the wrong standard of review.

The procedural posture: Arami agreed to plead guilty to one count of a five-count indictment, in exchange for dismissal of the remaining four counts. He also consented to allowing a magistrate judge take his plea. After the hearing, the magistrate judge recommended that the district judge accept the plea. A couple of months later, Arami filed a motion to withdraw his guilty plea, "asserting his innocence and stating that the allegations contained in the factual basis were incorrect." The district court denied the motion after a hearing. Eight days later, the district court adopted the magistrate judge's recommendation, accepted Arami's guilty plea, and sentenced him to 27 months' imprisonment.

Arami appealed his conviction, arguing that the district court violated Rule 11(d)(1) by refusing to allow him to withdraw his guilty plea. The court of appeals agreed, finding the rule clear: "Rule 11(d)(1) is an absolute rule: a defendant has an absolute right to withdraw his or her guilty plea before the court accepts it." Since the district court didn't accept Arami's guilty plea until eight days after he moved to withdraw it, the district court erred.

That should be the end of it. Unfortunately, the court drops a footnote with some dicta that might create confusion when it comes to determining exactly when a guilty plea has been accepted. The note discusses a couple of Fourth Circuit cases which held that a plea is accepted as soon as the district court completes the Rule 11 colloquy, and that a defendant may consent to having a magistrate judge accept his guilty plea. The court then goes on to say,

Putting the rules from [those cases] together, the Fourth Circuit likely would rule that when a defendant consents to having a magistrate judge perform the plea colloquy and accept the plea, the court has accepted the plea for purposes of Rule 11(d)(1) once the magistrate judge completes the plea colloquy. Regardless, here, both parties concede that Arami did not consent to having the magistrate judge accept his guilty plea, so we leave for another day the questions of whether an acceptance occurs when the court completes the plea colloquy and whether a defendant can consent to having a magistrate judge accept a guilty plea.

Given the potential for this footnote to cause confusion in the application of an otherwise clear rule, the court probably should have waited for a case squarely presenting the question.

Another fly in the soup is the court's use of plain error review. Why plain error review? That's unclear. The court says that, "[b]ecause Arami did not raise any argument involving Rule 11(d)(1) before the district court, this court must review the district court’s decision for plain error[,]" citing Vonn v. United States, 535 U.S. 55 (2002). But why isn't a motion to withdraw the guilty plea enough to raise the issue in the district court? Also, Vonn isn't on point. Vonn involved a guilty plea colloquy in which the district court failed to admonish the defendant that he had a right to be represented by counsel at trial. The Supreme Court held that the defendant's failure to object to a defect in the guilty plea colloquy results in plain error review of that defect on appeal. But Arami complained of a different kind of Rule 11 error: the district court's refusal to allow him to withdraw his plea before it was accepted. If an unsuccessful motion to withdraw the plea isn't sufficient to preserve the error, it's hard to imagine what would be. Cf. Fed. R. Crim. P. 51.

As it is, the question of whether plain error applies in this situation is largely academic. Because of the way the court analyzes all the plain error elements, a Rule 11(d)(1) violation should always be reversible plain error. Nevertheless, it would have been better if the court had treated this as preserved error, lest its use of plain error create confusion over how to preserve other kinds of error.

Finally, the court suggests a way to head this problem off at the pass:

If a district court wishes to avoid a similar situation in the future—where a defendant pleads guilty in front of a magistrate judge and then later seeks to withdraw the plea before the court accepts it—the district court simply should accept the plea more promptly. In fact, the court can accept the plea before it reviews the plea agreement and imposes a sentence. See United States v. Hyde, 520 U.S. 670, 677-78 (1997)(distinguishing a plea from a plea agreement); Jones, 472 F.3d at 909 (same). But a defendant does not relinquish his right to have a jury determine his guilt or innocence until the court actually accepts the defendant’s guilty plea.

Not sure that's right, either, because Hyde involved former Rule 32(e)'s requirement that a defendant show a "fair and just reason" for withdrawing a guilty plea (now codified at 11(d)(2)(B)). I invite folks to weigh in on that question in the comments.

Panel Calls for En Banc Reconsideration of Whether Unauthorized Use of a Vehicle is an Aggravated Felony

Serna-Guerra v. Mukasey, No. 07-60634 (5th Cir. May 30, 2008) (unpublished) (per curiam) (Jolly, Dennis, Prado)

Remember that circuit split over whether unauthorized use of a vehicle is an aggravated felony? To briefly recap, the Fifth Circuit holds that it is, relying on reasoning rejected by the Supreme Court in Leocal v. Ashcroft. The Tenth Circuit, hewing to Leocal, holds otherwise.

Turns out we may see some movement on this issue. A few weeks ago a Fifth Circuit panel issued an unpublished opinion in Serna-Guerra v. Mukasey "agree[ing] with the Tenth Circuit that it defies common sense to treat [those convicted of UUV] in the same manner as convicted murderers, rapists, robbers, or burglars for deportation purposes[,]" and "urg[ing] and recommend[ing] that" Galvan-Rodriguez and Brieva-Perez "should be reconsidered and overruled by our en banc court." And a glance at the docket shows that Serna has indeed petitioned for en banc review. All the more reason to keep preserving this issue in your illegal reentry cases.

(It appears that only two judges on the panel are beating the en banc drum, as a footnote explains that "Judge Jolly concurs only in the order granting the motion for summary affirmance and denying as moot the alternative motion for an extension of time to file a responsive pleading.")

"How reliable is DNA in identifying suspects?"

That's the title of this very interesting article from the Los Angeles Times. The answer: maybe not anywhere near as reliable as the FBI wants you to believe. I don't fully understand the science and statistics discussed in the article, but the problem appears to be that the FBI's DNA match methodology is based on some assumptions that have never been subjected to empirical testing. More troublingly, the article talks about the FBI's efforts to block any further inquiry into the issue.

Link via How Appealing.

New Version of BOP Legal Resource Guide Now Available

The 2008 version of the "Legal Resource Guide to the Federal Bureau of Prisons" is now available on the BOP's website. The publication "provides a general overview of the BOP, its services, and its programs[,]" and "is intended to serve as a guide to legal resources, including relevant statutes, regulations, policy documents, and current case law concerning issues the BOP faces today." In other words, a useful document to consult when dealing with the BOP.

Note that the Legal Resource Guide is not the same thing as the BOP's "Program Statements," which are detailed statements of BOP policy. You can browse the Program Statements here.

Taking Apart the Guidelines, Brick by Brick

Looking for freedom from the Guidelines? Then check out Deconstructing the Guidelines, "a special project undertaken by National Federal Defender Sentencing Resource Counsel" featuring papers that "critically examine the history and basis of the most frequently encountered provisions of the U.S. Sentencing Guidelines." Why do such a thing? Because, in the wake of Rita, Gall, and Kimbrough,

[j]udges are now invited to consider arguments that the guideline itself fails properly to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Judges may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines, and when they do, the courts of appeals may not grant greater factfinding leeway to the Commission than to the district judge. Whatever respect a guideline may deserve depends on whether the Commission acted in the exercise of its characteristic institutional role. This role has two basic components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field. Notably, not all of the Guidelines are tied to this empirical evidence. When a guideline is not the product of empirical data and national experience, it is not an abuse of discretion to conclude that it fails to achieve the § 3553(a)'s purposes, even in a mine-run case.

(quotation marks, brackets, and cites omitted). Three papers are available thus far, deconstructing the child pornography, career offender, and relevant conduct guidelines.

More Circuit Splitting Over "Aggravated Felony" Definition: En Banc Ninth Holds Categorical Approach Applies to Loss Amount Under § 1101(a)(43)(M)

The INA's "aggravated felony" definition includes, among many other things, “an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the government exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M). Recently, in Arguelles-Olivares v. Mukasey, the Fifth Circuit held that the Taylor/Shepard categorical approach does not apply when determining whether a prior offenses qualifies as an aggravated felony under (a)(43)(M). Thus, "[t]he requirement that the offense was one 'in which the loss to the victim or victims exceeds $10,000' is a factual matter to be determined from the record of conviction, but the amount of loss is not required to be an element of the conviction itself." And the "record of conviction" can include a broad range of documents; Arguelles-Olivares affirmed the district court's reliance on a PSR for the loss amount.

In so holding, Arguelles-Olivares added to a circuit split on the question. In an odd turn, that split has become starker, while a separate one has apparently disappeared.

Last September, the en banc Ninth Circuit held in Navarro-Lopez v. Gonzales, 503 F.3d 1063, that the modified categorical approach "only applies when the particular elements of the crime of conviction are broader than the generic crime." It does not apply at all "[w]hen the crime of conviction is missing an element of the generic crime altogether[.]" This was apparently a reversal of course for the Ninth Circuit on the categorical approach, bringing it in line with the Fifth Circuit on this question (as discussed in the Ninth Circuit Blog's commentary here and here).

Which brings us to this week's en banc decision from the Ninth Circuit in Kawashima v. Mukasey, Nos. 04-74313, 05-74408 (July 1, 2008). Applying Navarro-Lopez to § 1101(a)(43)(M), the court held that if loss amount was not an element of the prior tax or fraud conviction, then the offense is not an aggravated felony. As the opinion notes, this means that virtually no offense will ever qualify under (a)(43)(M) because loss amount is not an element of most fraud and tax offenses. And it would apply to other portions of the aggravated felony definition, as well, including (D) (money laundering 'if the amount of the funds exceeded $10,000) and (K)(ii) (Mann Act offenses "if committed for commercial advantage").

Two judges concurred in Kawashima, agreeing that it properly applied Navarro-Lopez. But they argued that Navarro-Lopez incorrectly interpreted the INA by applying the Taylor/Shepard categorical approach to the aggravated felony determination. (Notably, however, they didn't argue that Navarro-Lopez incorrectly interpreted Taylor.)

All of this creates the odd situation in which the Ninth Circuit evidently agrees with the Fifth Circuit's understanding of the Taylor/Shepard categorical approach, but disagrees as to whether that approach applies to determinations under one obscure provision in the INA. This Twilight Zone-ish scenario could very well lead to further developments in both cases. The Kawashima concurrence reads like a cert petition, so given the issues involved the case probably has a better-than-average chance of winding up Supreme Court's docket next term. And it'll also be interesting to see whether Kawashima affects a pending petition for rehearing in Arguelles-Olivares.

UPDATE: Blog Neuve contributor Steve Kalar offers additional thoughts on Kawashima here, and adds that Taylor/Shepard issues are at play in yet another Ninth Circuit en banc in United States v. Snellenberger.

Fives Affirm Questionable 404(b) and Loss-Amount Determinations in Union Voter Fraud Case

United States v. Crawley, No. 07-20461 (5th Cir. June 27, 2008) (Jones, Barksdale, Stewart)

Crawley was elected president of a Teamsters local in Louisiana in 1997, 1999, and 2002. Irregularities in the 2002 election prompted an investigation which revealed that Crawley falsified voter ballots, and that he received a $20,000 kickback in connection with a contract for telephone services at the union hall. Crawley was eventually convicted of mail fraud, and several Title 29 embezzlement and false record offenses. In addition to sentencing him to 78 months' imprisonment, the district court ordered him to pay the union local a little over $120,000 in restitution. Crawley appealed his conviction and sentence.

Crawley's challenge to his conviction concerned 404(b) evidence that he argued was improperly admitted. At trial, a union member testified that

[i]n September 2002, Crawley invited Kyle to his home after work hours. There, the two men engaged in an “assembly-line” process: using several different pens, Crawley marked and folded each ballot; he then handed it to Kyle, who placed and sealed the ballot in the return envelope. Crawley used the Union’s membership roster to decide which members were unlikely to vote in the election, such as part-time UPS employees. Kyle testified that peel-and-stick labels generated by the Union’s computer were used on the envelopes to avoid their being challenged. Thereafter, the completed ballots were separated by the zip codes for the “voters” and mailed from various post offices.

Not content to rely on this testimony, the Government called another witness who testified, over Crawley's objection, that Crawley "committed similar acts of voter fraud [in the 1999 election, as well]; and devised the strategy of duplicating ballots for those members least likely to vote." Following that testimony, the district court instructed the jury that "the evidence of the 1999 voter fraud could be considered only for determining Crawley’s 'motive, intent, identity, knowledge, opportunity, plan, preparation, and the absence of mistake or accident in engaging in' the 2002 voter fraud."

Applying the Fifth Circuit's two-prong Beechum test, the court of appeals found no error in admission of the testimony concerning the 1999 election. Under the first prong, the court held that the evidence was relevant to Crawley's intent, insofar as it showed that Crawley "acted with the same specific intent in 2002 as he had in 1999." The court rejected Crawley's argument that the evidence was not in fact relevant to intent because his defense was that someone else submitted the fake ballots:

Regardless of the defenses asserted by Crawley, the Government was required to prove specific intent as an essential element of the charged offenses. Therefore, the extrinsic evidence was offered to demonstrate Crawley acted with the requisite intent to commit those offenses. Based on the testimony regarding the 1999 fraud, the jury could rationally conclude that, “because the defendant had unlawful intent in the extrinsic offense [1999 fraud], it is less likely that he had lawful intent in the present offense [2002 fraud]”. Gordon, 780 F.2d at 1173. The testimony, therefore, was offered for a legitimate purpose under Rule 404(b). (Because the evidence was properly offered to show intent, we need not decide whether, in addition, it was admissible to demonstrate motive, as was also held by the district court.)

The court then concluded, as to the second Beechum prong, that the prejudicial impact of the evidence did not substantially outweigh its probative value, because the district court instructed the jury "that the 1999 voter-fraud evidence could only be considered for the limited purpose of determining motive, intent, identity, knowledge, opportunity, plan, preparation, and the absence of mistake or accident in engaging in the 2002 voter fraud. Even assuming, therefore, that admission of the extrinsic evidence posed a risk of undue prejudice, that risk was greatly minimized by the court’s limiting instruction."

(Both of these conclusions are questionable. If anything, given Crawley's defense the evidence was relevant to identity, not intent. But even if, as the court says, the 1999 voter-fraud evidence was relevant to intent, it had little to no probative value in relation to the unfairly prejudicial he-did-it-before-so-he-must-have-done-it-again inference that 404(b) exists to prevent. After all, if the jury were to conclude that Crawley was behind the 2002 ballot falsification, it's all but inconceivable that they would have trouble finding that he did so with the specific intent to defraud the union. It's also hard to see how the district court's instruction to the jury minimized any prejudice, given that it was simply a boilerplate recitation of permissible 404(b) factors, some of which the Government doesn't even appear to have argued for.)

Crawley also challenged the district court's loss findings for purposes of the Guidelines calculations and the restitution award. The district court used Crawley's salary and benefits for both calculations, as well as the $20,000 kickback. To oversimplify things a bit, Crawley argued that the loss amount for both purposes should be limited to the $20,000 kickback, because the union got what it paid for in the form of his services as local president. The court of appeals disagreed, concluding that "[b]y procuring a union office by fraud," Crawley "render[ed] any service valueless ab initio." Additionally, it wasn't possible to sever Crawley's legitimate services to the union from his non-legitimate services. Thus, the district court did not clearly err in the Guidelines calculation, nor did it abuse its discretion in determining the restitution amount.

(This, too, is questionable. Is it really true that Crawley's services as union president were "valueless ab initio"? Unless everything he did as president was corrupt, the union got at least some value out of his service. Doesn't the union as victim receive a windfall by getting all of Crawley's salary and benefits back when they would have otherwise had to pay someone else to do the job? To be fair, the court addresses these points, just not convincingly in my opinion.)

Proposed Change to Fifth Circuit Rule Concerning Fee for Admission to Practice

The clerk's office has posted this notice of a proposed amendment to Fifth Circuit Rule 46.1, concerning admission and fees. The redline isn't accurate, so the proposed change is a little confusing. It looks like it adds an additional category of attorneys who are exempt from paying an admission fee to practice in the Fifth Circuit: those who are "newly graduated from law school, licensed to practice in Louisiana, Mississippi, or Texas, and on orders for extended active duty in the Judge Advocate General's Corps of the military services[.]"

Discussion questions:

• Is that the correct way to form the possessive of Judge Advocate General Corps?
• Shouldn't Texas be listed first?