Wednesday, June 26, 2013

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.

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