Case o' The Week: Eleven is Better, Macinas-Flores

Like Nigel Tufnel, the Arizona Federal Public Defender likes Eleven. Rule Eleven of the Federal Rules of Criminal Procedure, to be precise -- the Rule that brought that office two big victories in the Ninth this week. See United States v. Macinas-Flores, 2009 WL 4282018 (9th Cir. Dec. 2, 2009), decision available here; see also United States v. Roblero-Solis, 2009 WL 4282022 (9th Cir. Dec. 2, 2009), decision available here.

(Ed Note - this memorandum discusses Macnas-Flores, and salutes the Roblero-Solis opinion in the "for further reading" section).

Players: Big win for D. Az. AFPD Dan Kaplan.

Facts: Folks in the US tipped-off ICE that their undocumented-alien relatives were being held hostage in a Phoenix stash house by alien smugglers. Id. at *1. The relatives were told to pay the smugglers, or the aliens would be beaten and raped. Id. ICE and the Phoenix police searched the stash house and found aliens, Macinas-Flores (and a co-defendant) and a loaded shotgun. Id.

On the eve of trial Macinas-Flores tried to plead to a deal to the gun alone (a § 924(c) charge), with a locked range of 25-45 years. Id. When the district court launched into the plea inquiry, Macinas-Flores answered, “I’m not really guilty.” Id. at *2. The trial judge stopped the plea proceeding, rejected the plea, called in the jury, and – after conviction – sentenced the defendant to life.

Issue(s): “Defendant argues that the district court erred in its handling of his guilty plea. He contends that the plea met all the requirements of Fed. R. Crim. P. 11(b), and that therefore the court had no discretion to reject it . . . . Alternatively, defendant argues that even if the court had discretion to reject his plea, it did not adequately explain its reasons for doing so and thus failed to actually exercise discretion.” Id.

Held: “Because the district court abruptly cut off the plea colloquy, we cannot conclude the plea satisfied all of Rule 11(b)’s requirements. As discussed below, however, we agree with defendant’s alternative argument and therefore the district court’s rejection of defendant’s guilty plea and remand for a new plea hearing.” Id.

Of Note: Macinas-Flores denied guilt, and the district court erred by rejecting the plea? The key to this counter-intuitive holding is Alford or nolo contendere pleas, “a plea of guilty in which a defendant maintains his innocence.” Id. at *3. A district court doesn’t have to accept an Alford plea, but it does have to engage in the Rule 11 inquiry and analysis that permits an appellate court to review the proceeding. That didn’t happen here, which bought the defendant a reversal and a chance to reclaim that fantastic 25-45 year deal

How to Use: Wisconsin District Judge Lynn S. Adelman (right) visits the Ninth and authors this opinion. (Recall his admirable and famous decision in the post-Booker Ranum opinion (blog on Ranum available here)). He's a seasoned and thoughtful jurist and a welcome visitor - hope he returns to the West again soon.

In Macinas-Flores, Judge Adelman brushes back the government’s whine of plain error in an analysis that is worth a close read. Id. at *8. Turns out a defendant does not “object” to a court’s ruling (like refusal to take a plea): instead, the party takes an “exception to the ruling.” Id. at *8. Under Fed. Rule of Criminal P. 51(a), exceptions to rulings of the court are unnecessary. Hence, one needn’t complain about a court’s erroneous ruling to avoid plain error review. Id. This is an adoption of a Seventh Circuit rule and is new to the Ninth – worth exploring the outer parameters of this distinction if you’re trying to dodge plain error review.

For Further Reading: One victory was not enough for Arizona last week – “the intrepid federal public defender” in Tuscon (a direct quote) chalked up another Rule 11 win as well. United States v. Roblero-Solis, et al., 2009 WL 4282022 (9th Cir. Dec. 2, 2009). Hard to imagine, but in enlightened Tuscon federal magistrates conducted the Rule 11 colloquy with fifty to a hundred defendants at a time. Id. at *2-*3. The government’s “Operation Streamline” churned undocumented aliens through the court en masse and cranked out dozens of simultaneous misdemeanor § 1325 convictions. Id. at *2.

Judge Noonan is thankfully unpersuaded by the remarkable efficiency of this judicial cattle call – he writes that the procedure violates Rule 11's demand that defendants be addressed “personally.” Id. at *8.

And the standard of review for the procedure in this case? Plain error! A bit of a head-scratcher, considering the Macinas-Flores rejection of Rule 11 plain error was delivered the same day . . . .


Image of Spinal Tap's Amps from http://citifield.files.wordpress.com/2009/07/spinaltap-11.jpg . Image of the Honorable Lynn Adelman from http://www.legis.wi.gov/senate/sen28/news/Photos/2009/images/Inauguration_adelman.jpg

Steven G. Kalar, Senior Litigator N.D. Cal. FPD.