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.

Email Promise by Prosecutor Not Part of Plea Agreement, So No Breach

United States v. Long, No. 11-20726 (July 2, 2013) (Stewart, Smith, Wiener)

Double-check, no, triple-check those plea agreements to make sure any negotiated terms are documented therein. If the plea agreement has a merger clause, which most do, then any outside communications with the prosecutor will not be incorporated into the plea agreement.

Here, Long appealed his sentence, arguing the Government breached its plea agreement with him by supporting the leader/organizer sentencing enhancement recommended in the presentence investigation report ("PSR"). The prosecutor indicated to Long’s attorney via email that he would not argue for a role enhancement, but the plea agreement did not mention a role enhancement and contained a merger clause that the written plea agreement constitutes the complete plea agreement. Before accepting Long’s plea, the district court even asked Long if there were any other promises or assurances not documented in the plea agreement, and he responded no.

The panel affirmed that the email was not part of the plea agreement, that Long did not rely on the email exchange in pleading guilty, and that, even if he had, such a reliance would have been unreasonable in light of the plea agreement’s merger clause. The panel affirmed the sentence, which was based on the district court’s ruling that the Government did not breach the plea agreement.

Pleas and Sentences Vacated Due to Court’s Participation in Plea Negotiations

United States v. Pena, No. 11-50482 cons. w/ 11-50484 (June 18, 2013) (Stewart, Smith, Weiner)

The panel held that a district court’s comments that Pena must resolve a civil matter before the court would accept his plea in the instant criminal cases (relating to bribery of public officials to procure a construction contract) constituted participation in plea negotiations in violation of Federal Rule of Criminal Procedure 11. Even the alternate versions of the court’s comments—either that it would grant full credit for acceptance of responsibility if he resolved the civil matter before his plea or that he should (instead of must) resolve it before the plea—would constitute impermissible participation in plea negotiations. Given the circumstances of this case, the timing of the judicial participation in plea negotiations, and the defendant’s understanding of the court’s condition relating to the civil matter, the court’s later attempts to withdraw any such condition did not remedy the harm done.

In making this determination, the panel reiterated that "Rule 11’s prohibition of judicial involvement [is] a ‘bright line rule’ . . . and ‘an absolute prohibition on all forms of judicial participation in or interference with the plea negotiation process . . . ." While Rule 11 allows the court to "‘explore a plea agreement once disclosed in open court[,] . . . it does not license discussion of a hypothetical agreement that it may prefer.’"

The panel concluded that, first, the "court’s statements connote the possibility that the court had already made a determination as to Pena’s guilt in the instant offenses and preferred a guilty plea."

"Second, the fact that the court made the statements while plea negotiations between Pena and the government were ongoing is crucial: We have noted the distinction between a sentencing court’s comments before the parties have disclosed the terms to the court and the court’s statements after this time."

The panel noted the parties’ disagreement about whether the error had been preserved. However, it found that the court’s error—while not intentional—was plain given circuit law and "Rule 11’s bright-line prohibition of all judicial participation in plea negotiations."

This error also affected Pena’s substantial rights because the court’s comments "amount[ed] to a hypothetical agreement that the court preferred" at a time when no definite plea agreement existed between the parties. Further, the court’s "withdrawal" of the condition to resolve the civil case, as evidenced by the record, "did not alter Pena’s perception of the court’s desired disposition. . . . The record also suggests that, by imposing and then quickly retracting a unilateral condition, the district court unintentionally induced Pena—who might have otherwise continued bargaining—to plead guilty quickly, lest the court change its mind again."

The panel vacated Pena’s guilty pleas and sentences and reassigned his cases to a different district judge on remand.