Judge Too Active in Plea Talks

Deborah Elkins//December 30, 2014

Judge Too Active in Plea Talks

Deborah Elkins//December 30, 2014

A district judge who repeatedly encouraged defendant to accept a plea to additional charges of access-device fraud and aggravated identity theft, and who hinted at a lesser sentence for a plea agreement, committed plain error by impermissibly participating in plea negotiations, and the 4th Circuit vacates and remands for further proceedings.

Rule 11(c) of the Federal Rules of Criminal Procedure provides that the prosecutor and defense lawyer may discuss and reach a plea agreement, but the court must not participate in these discussions. Here, because defendant neither objected to the judge’s involvement in plea discussions, nor made an attempt to withdraw his guilty plea, we consider his appellate argument under the rigorous plain error standard.

Here, the district court’s comments were neither brief nor made after a plea deal had been struck. Rather, the court repeatedly intimated that a plea to the later charges was in defendant’s best interests in order to effect a “global settlement.” The court strongly suggested that defendant would receive a more favorable sentence if he agreed to plead guilty to the later charges and to consolidate all charges for sentencing. The court also commented on the strength of the government’s case. Its repeated remarks clearly constitute judicial participation in plea discussions, and the district court erred in engaging in them.

Just as clearly, this error was plain. Rule 11(c) is not new and the doctrine surrounding its interpretation is well-settled. Like our sister circuits, we have consistently warned that a district court errs in urging defendants to accept offers to plead. We can only conclude that the court’s discussion of and advocacy for a plea and “global resolution” constituted plain error.

Further, our close examination of the full record leads us to conclude that defendant has demonstrated a “reasonable probability” that but for the error, he would not have entered the plea.

At the beginning of the hearing, defense counsel made clear that, despite his recommendation that defendant plead and agree to a global resolution, defendant had declined the government’s plea offer. The district court then responded with a series of exhortations as to why it would be advantageous for defendant to plead. After commenting that although “I obviously can’t make you do this” – i.e., plead guilty in the second case – the court opined that it might “stand [defendant] a lot better” to do so. The court clearly highlighted the downside of not entering a plea, warning defendant “who knows where the numbers will go” if he insisted on a trial.

The district court’s repeated comments about the advisability of a global plea agreement appear to have had an almost immediate effect on defendant. Near the end of the hearing, he conferred with his lawyer and conveyed an interest “in a global resolution.” This sudden and significant shift in attitude from the beginning of the hearing, when defense counsel indicated defendant had declined an offer, strongly suggests that his mid-hearing change of heart was the product of the district court’s urging.

Even after defendant expressed a tentative interest in negotiating a plea, the district court continued to send signals that defendant would be well-served by reaching an agreement with the government. Within five days of the hearing, defendant had executed a plea agreement. It is, at the very least, reasonably probable that the district court’s comments were the tipping point. The plea agreement defendant ultimately signed afforded him little in the way of benefits or concessions from the government.

We note the experienced district judge acted only with the best of intentions and attempted to resolve defendant’s case not just expeditiously, but also fairly. We perceive no desire to coerce an involuntary plea. We vacate the sentence imposed and remand for further proceedings, including the right to withdraw the plea, with assignment of the case to a different district judge.

Vacated and remanded.


Wilkinson, J.: I am pleased to concur in Judge Motz’s fine opinion. The district court failed to appreciate sufficiently that where, out of a belief in one’s innocence, a desire to put the state to its proof, or a desire simply to roll the dice, defendants may, if they wish, risk deeply unfavorable outcomes by exercising a judicially unimpeded right to proceed to trial. I would emphasize the Supreme Court’s emphatic holding that Rule 11(c) violations are not structural errors, but are subject to harmless and plain error review. Critical to my concurrence is the majority’s recognition that other scenarios may be quite different from this case.

U.S. v. Sanya (Motz) No. 13-4937, Dec. 17, 2014; USDC at Greenbelt, Md. (Messitte) Byron B. Warnken Jr. for appellant; Sujit Raman, AUSA, for appellee. VLW 014-2-205, 27 pp.

VLW 014-2-205

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