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.

Ignored Plea Agreement Prompts Partial Reversal and Dismissal

United States v. Hughes, No. 12-60005 (Aug. 8, 2013) (King, Higginbotham, Clement)

            Hughes contested his convictions and sentence in this distribution conspiracy case. The panel affirmed in part and reversed in part the judgment of the district court.

            On the morning of trial, Hughes decided to plead guilty. The Government informed the court of an oral agreement for Hughes to plead guilty to the conspiracy count and continue the other four counts until sentencing at which time the Government would move to dismiss those counts. Without addressing this oral agreement, the court took Hughes’ guilty plea to all five of the counts. Hughes tried to withdraw his guilty pleas later, but the court denied that request. At sentencing, the Government moved to dismiss all but the conspiracy count, but the court denied that request and handed down sentences on all five counts of Hughes’ indictment.

            Hughes raised three main arguments on his appeal: (1) his change-of-plea hearing was procedurally deficient under Federal Rule of Criminal Procedure 11, (2) the district court abused its discretion in denying his motion to withdraw his guilty pleas, and (3) the district court abused its discretion in not dismissing the telephone counts on the Government’s motion.

            In regards to Hughes’ first argument, the panel found it to be unavailing since Hughes failed to show a reasonable probability that he would not have pleaded guilty. In regards to Hughes’ second concern, the panel held that the district court did not abuse its discretion when it denied Hughes’ motion to withdraw his guilty pleas. According to the Carr test, the district court’s decision was justified. Finally, the panel found that the district court failed to supply reasoning for sentencing Hughes to the substantive counts, so the refusal to dismiss Counts 2-5 was an abuse of discretion. The panel affirmed the judgment of the court with respect to Hughes’ conspiracy count, but reversed the denial of the motion to dismiss Counts 2-5. The panel then dismissed Counts 2-5.

            Judge Higginbotham concurred with the judgment handed down by the district court because neither Hughes nor the government clarified whether the plea deal was still in effect as of sentencing.

            Judge King dissented. She argued that Hughes should have been given notification as to whether the plea agreement concerning Counts 2-5 was accepted or declined. Furthermore, since Hughes was denied his right to withdraw his guilty plea, she would have vacated the convictions and sentence and remanded the matter to the district court to clarify its stance on accepting or rejecting the plea agreement.

Thanks to FPD Intern Matthew Gonzalez for this blog post.

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.

Court Must Accept or Reject Entire (c)(1)(C) Agreement, May Not Accept Parts and Reject Others; Probably Goes for (c)(1)(A) Agreements, Too

United States v. Self, No. 08-40624 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)

Self finds the court confronting an issue of first impression in the Fifth Circuit: whether a court can accept or reject a Rule 11(c)(1)(C) plea agreement on a "piecemeal basis." Answer: no. And the reasoning appears to be equally applicable to (c)(1)(A) agreements.

Self was charged with two counts of bank robbery, and two 924(c) carrying counts. He hammered out a (c)(1)(C) agreement with the Government, which entailed a guilty plea to one bank robbery and one 924(c), dismissal of the remaining counts, and a sentence of 171 months (87 months for the bank robbery + 84 months consecutive on the gun count). Additionally, "Self waived the right to appeal 'on all grounds,' but reserved the right to appeal the failure of the district court to impose a sentence in accordance with the terms of the agreement." A magistrate judge took Self's guilty plea, and recommended that the district court accept the agreement. So far, so good.

But then—stop me if you've heard this one before—the probation officer threw a spanner in the works: "The PSR determined that Self was a career offender and recommended a career offender enhancement on [the bank robbery count] that raised the advisory guidelines range to 188 to 235 months. When the mandatory minimum of 84 months for [the gun count] was added, the resulting guidelines range was 272 to 319 months’ imprisonment." At sentencing:

The district court informed Self of his right to withdraw his guilty plea and that if he did not withdraw his plea, he might receive a sentence less favorable than that agreed to in the plea agreement. Self declined to withdraw his guilty plea. The district court reiterated that it would accept all of the plea agreement’s terms except the recommended sentence as to [the bank robbery count]. Self again stated that he did not wish to withdraw his plea. Self allocuted and his defense attorney requested the minimum sentence. The district court then sentenced Self to the minimum sentence of 188 months for [the bank robbery count], taking into account the career offender enhancement, and 84 months for [the gun count], resulting in a sentence of 272 months.

Self appealed his sentence. The Government raised the appeal waiver. The court said:

Because we conclude, infra, that the district court rejected the plea agreement in toto, Self’s waiver of rights in that agreement does not bar his appeal. [cites]. Even assuming Self’s appeal waiver was enforceable, its terms do not apply here. The plea agreement reserved Self’s right to appeal “the failure of the Court, after accepting the agreement, to impose a sentence in accordance with the terms of this agreement.” The 272 month sentence imposed by the district court exceeded the 171 month sentence stipulated to in Self’s plea agreement; the sentence was not “in accordance” with the plea agreement’s terms. There is no obstacle to Self’s appeal.

On to the substance: "Self argue[d] that he is entitled to a sentence reduction because the district court accepted the plea agreement but did not comply with its terms." But because "Self did not raise any objection to the proceedings at the sentencing hearing and he did not assert this argument as a basis for a sentence reduction in either of his post-hearing motions[,]" the court reviewed for plain error.

Before reaching the error prong, the court first had to decide whether the district court had accepted the plea agreement but failed to comply with its sentencing terms (as Self argued), or whether it had rejected the plea agreement (the Government's position). Examining the district court's statements at the sentencing hearing against the background of Rule 11, the court of appeals concluded that the district court rejected the entire plea agreement. The district court, after finding that the probation officer's calculation was correct, said "[I] advise the defendant that I will not follow, cannot follow . . . that portion of the plea agreement, which would have set the sentence . . . [at] 70 to 87 months. . . . I must inform the parties of my rejection of that part of the plea agreement." The court then advised Self, consistent with Rule 11(c)(5), of his right to withdraw his guilty plea, saying "if you don’t withdraw . . . it would be that part of the plea agreement that would be changed, however, the rest of the plea agreement will remain the same." Self opted not to withdraw his plea, and was sentenced to 272 months' imprisonment, rather than the 171-month sentence in the plea agreement. Said the court:

Although we have found no case in our Circuit that explicitly addresses whether a plea agreement may be accepted or rejected on a piecemeal basis, based on the language of Rule 11, we conclude that it cannot. See FED. R. CRIM. P. 11(c)(3)(A) (finding that “the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report” (emphasis added)); [a couple of cases]. Rule 11 speaks in terms of a “plea agreement” and “does not distinguish between ‘sentence bargains’” and “so-called ‘charge bargains,’ in which a criminal defendant typically pleads guilty to a specific charge in exchange for the prosecution agreeing to drop other charges.” At least one other court has concluded that the “rejection of a stipulated sentence constitutes rejection of the entire plea agreement, thereby triggering the mechanisms in . . . Rule 11(c)(5).” We agree. By rejecting the agreed-to sentence of 87 months on Count III, the district court constructively rejected the plea agreement in toto. Further indicia that the district court rejected the plea agreement is that it admonished Self as required by Rule 11(c)(5), which sets forth the warnings that must be delivered to a defendant when the court rejects a plea agreement.

(most cites omitted). Lets pause for a moment to talk about a couple of things before we move on. First, the court explained how to avoid this mess in the first place: "We note that the district court unnecessarily muddied the waters by making statements to the effect that it was rejecting 'that portion of the plea agreement' specifying an 87-month sentence. The better practice is to make clear that the entire plea agreement is being rejected and then give the Rule 11 warnings." Second, remember that Rule 11(c)(3)(A) covers not only (c)(1)(C) agreements, but (c)(1)(A)'s, as well. Plus, when you think about it, this case actually involves a combination (c)(1)(A)/(c)(1)(C) agreement. Thus, the court's reasoning should apply equally to (c)(1)(A)'s. How might this come up in the context of a (c)(1)(A)-only plea? I'm not entirely sure, but keep the case in mind if you have one those that starts going south.

Okay, back to plain error. Although the district court had discretion to reject the agreement, it "was not permitted to reject the plea agreement and then re-impose it on the parties with terms that it found acceptable."

In this respect, the colloquy between Self and the district court is problematic. Although the district court followed the dictates of Rule 11(c)(5) in advising Self that he could withdraw his plea and might be sentenced more harshly, the district court at the same time stated that the plea agreement would stand in all respects except for the sentence. Thus, it is unclear whether Self understood that if he withdrew his plea of guilty, he could either proceed to trial or try to negotiate a new plea agreement, or if he persisted in his guilty plea, he would be sentenced without any of the constraints or benefits of the plea agreement, including the government’s agreement to drop two of the counts. Instead, it appeared that the district court was offering the same terms as the plea agreement, except that the sentence would be changed.

The error affected Self's substantial rights. Instead of getting the 171-month sentence he bargained for, "Self was subjected to an altogether different bargain—one of the district court’s making. Had the district court rejected Self’s plea agreement in toto and sent the parties back to the drawing board, we cannot say what agreement they might have struck."

Which brings us to the last prong: "Failure to properly inform Self that the entire plea agreement was being rejected, compounded by the district court’s error in reimposing all of the terms of the plea agreement on Self, except for the agreed-to sentence under Rule 11(c)(1)(C), requires reversal because such error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Hence, vacation of Self's conviction and remand for proceedings before a different judge.

By the way, notice anything missing from the court's analysis? Perhaps a discussion of whether the error was "plain?" Don't worry, it's there. It just isn't identified as such. The court's discussion of the fairness, etc. prong notes that "[s]trict compliance with Rule 11 is generally required," and that, "[f]or the same reasons that the district court may not involve itself in plea negotiations, it may not reject a plea agreement and then, nonetheless, impose it on the parties with modifications that it chooses." Plainness is also implicit in the court's explanation of why there was error, so that part of plain error review is covered.

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.