Court’s Comparison of Defendant's Plea Offer to Other Defendants' Post-Trial Sentences Constituted Improper Judicial Coercion in Plea Negotiations

United States v. Hemphill, No. 13-50267 (5th Cir. May 2, 2014) (Reavley, Jones, Graves)

The panel vacated Hemphill’s conviction and remanded for further proceedings before a different judge because the district court improperly engaged in the plea negotiations.  Rule 11, of course, prohibits a court’s participation in plea negotiations.  The Fifth Circuit has held that this prohibition is a bright-line rule that (1) diminishes the possibility of judicial coercion of a guilty plea and (2) protects the court’s impartiality.

At a pre-trial docket call, just prior to trial, the court wanted to confirm that Hemphill discussed with his attorney the downside of going to trial.  The court asked the prosecutor about the statutory minimum and maximum sentences, and the prosecutor informed the court that Hemphill faced a minimum of ten years and a maximum of life in prison.  In response to the court’s inquiry, the prosecutor informed the court that the Government offered Hemphill a plea agreement with an agreed-to sentence of seven years.  Defense counsel confirmed that he had discussed the offer with Hemphill.  (The panel implies that discussion up to that point was proper.)  The court then proceeded to tell Hemphill about other defendants who rejected an offer of seven years, proceeded to trial, were found guilty, and were sentenced to 35 years in prison.  At that point, Hemphill questioned the court’s impartiality, and the court assured Hemphill that he was not biased.  Trial was set to continue the following Monday.

On Monday, after disclosure of newly discovered evidence, the district court stated that Hemphill needed additional time to consider the new plea offer of an agreed-to sentence of five years.  Defense counsel stated that he would appreciate the additional time to review the evidence, and the court responded that the evidence could also be to the defense’s detriment.  After the defense counsel and prosecutor finished addressing other pre-trial issues, the court reminded Hemphill about the story of the other defendants who are now doing 35 years.  The court recounted the story of yet another defendant, Mouton, who was facing a 35- or 40-year sentence but eventually “got with the program” and accepted a ten-year offer.  The court then gave Hemphill a newspaper article about Mouton, referring to Mouton as a “success story,” and told Hemphill that he should “think about his life.”  At the next trial date, Hemphill pled guilty.  The court commented during the plea colloquy about how good of a deal Hemphill received.  (The panel found that these comments, after Hemphill had agreed to accept the offer, were permissible.) 

Two months later, Hemphill filed a pro se motion to withdraw the plea.  Through new counsel, Hemphill argued that he construed the court’s comments about other defendants who had not accepted plea agreements as a threat designed to coerce him into accepting the plea and that he did not believe he would receive a fair trial.  The court denied his motion to withdraw his plea, but the Fifth Circuit vacated the conviction and remanded to a different judge. 

“Our main concern is with the district court’s repeated description of similarly situated defendants and the consequences that befell them when they did not accept plea offers. . . . In context, and read in their entirety, . . . the comments were coercive.”  These comments “went much farther than documenting the plea offer or informing Hemphill of its terms, as contemplated in Frye.  The district court clearly implied that a plea would be preferred, and it twice specifically stated that it would approve the Government’s plea deal.”  Given Hemphill’s hesitance to accept the plea and his readiness for trial, the panel concludes that a reasonable probability exists that Hemphill would not have entered a guilty plea absent the court’s comments that went beyond merely evaluating a properly disclosed plea agreement.

Even if Defendant Admits Guilt on Stand, the Jury—Not the Judge—Decides Guilt

United States v. Salazar, No. 13-20162 (5th Cir. May 2, 2014) (Smith, Clement, Higginson)

Against his attorney’s advice, Salazar took the stand during his trial on multiple drug and gun violations and confessed to all of the crimes charged.  Due to the confession, the trial judge believed no factual issue remained for the jury and instructed the jury “to go back and find the Defendant guilty.”  The panel finds that Salazar’s confession did not change his plea of not guilty and that the court’s instruction deprived Salazar of his Sixth Amendment right for a jury to decide his guilt or innocence. 

“[T]he Sixth Amendment prohibits the court from directing a guilty verdict,” even for “obviously guilty” defendants.  “A defendant’s confession merely amounts to more, albeit compelling, evidence against him.  But no amount of compelling evidence can override the right to have a jury determine his guilt.”

The attorney’s theory of defense was that Salazar withdrew from the conspiracy before certain overt acts were committed.  Salazar’s testimony, however, contradicted that theory. On appeal, Salazar also challenges the judge’s denial of his request to instruct the jury on withdrawal.  The panel finds that the district court did not err in this regard since, per his own testimony, Salazar did not attempt to withdraw until after several overt acts in furtherance of the conspiracies had occurred. 

The judgment of conviction is vacated and remanded for further proceedings.