Two decisions concerning Fed. R. Crim. P. 11 (changes of plea) and due process. Both arise from Arizona. The first concerns en masse changes of plea in Operation Streamline and the second the extent of explanation necessary in exercising discretion in rejecting a plea.

U.S. v. Roblero-Solis et al., No. 08-10512 (12-2-09). This is an appeal arising from "Operation Streamline" in Tucson and the en masse taking of pleas to "preserve the rudiments of Fed. R. Crim. P. 11 and the constitution." In one year, 25,000 of these cases are handled. The 9th (Noonan joined by W. Fletcher and Duffy) concluded that:

The problem generated by the massive caseload on the court understandably led the court to adopt a shortcut. Abstractly considered, the shortcut is not only understandable but reasonable. The shortcut, however, does not comply with Rule 11. We cannot permit this rule to be disregarded in the name of efficiency nor be violated because it is too demanding for the district court to observe. We act within a system maintained by the rules of procedure. We cannot dispense with the rules without setting a precedent subversive of the structure. Accordingly, on this challenge by an intrepid federal public defender to the Tucson court's taking of pleas en masse, we hold the procedure to be contrary to Rule 11.

The 9th then goes on to assess the harm to the six defendants, and finds none. The 9th stresses that Rule 11 requires a personal addressing of the defendant. No judge, writes the 9th, could determine whether 50 defendants answer "yes" to questions, or stand mute, or equivocate. A medley of "Si"s do not meet the standards of Rule 11. The 9th distinguishes doing a change of plea with several defendants, where each is addressed individually, from the large number here. The 9th though does not find this to be structural error as defined by Arizona v. Fulminante, 499 US 279 (1991) which undermine the constitution of the trial mechanism. Here, the 9th concludes that the defendants did not show that but for the error, their pleas would not have been entered. This is an instance where the battle may have been lost, but the war won. Ensuring due process will delay the so-called efficiencies of the Operation Streamline process.

Congratulations to AFPDs Jason Hannan ("the intrepid federal public defender") and Brian Rademacher (the intrepid appellate lawyer) in the Arizona FPD office (Tucson) for this win.

U.S. v. Mancinas-Flores, No. 08-10094 (12-2-09). The defendant wanted to plead guilty to alien smuggling (40 year sentence....hostage taking and guns involved), had a deal, but the court cut him off when he tried to explain at the plea colloquy under Rule 11 that while he was pleading, he really was not guilty of the firearm charge. Without further explanation, the court ordered the trial to commence. The defendant received a life sentence after trial. The 9th (Adelman (district court judge from the ED Wisc.) joined by Tashima with a dissent by Rymer) remanded for a new plea hearing. The argument was that the court failed to follow Rule 11. The 9th agreed, and criticized the court for failing to disclose reasons why it was rejecting the plea. As such, the court failed to adequately exercise its discretion, and therefore abused it. In dissent, Rymer argues that the defendant tried to get an Alford plea through, and that the court could insist on a "not guilty" without further ado.

Congratulations to Dan Kaplan, AFPD in the Arizona FPD office (Phoenix) for this win.