U.S. v. Escamilla-Rojas, No. 10-10185 (5-12-11)(O'Scannlain with Trott and Campbell, D.J.)(Editorial note: This case arises from the Arizona FPD Office representation).

In the Tucson division of the District of Arizona, the court has adopted an en masse procedure for taking the pleas of up to 70 defendants as part of "Operation Streamline." Operation Streamline is a prosecutorial initiative that criminal charges all undocumented aliens who are arrested in a border sector. In U.S. v. Roblero-Solis, 588 F.3d 692 (9th Cir. 2009), the 9th, in a case from the same district, division and same AFPD, held that Fed R. Crim P. 11 (Rule 11) requires an individual and personal colloquy as to rights. The procedure changed as a result, with small groups of defendants being addressed and a personal exchange as to their understanding of the offense. Here, as it happened, the magistrate gave a general advisement to the group (66 defendants), advising them of the offense, the elements, their rights and the consequences of the guilty plea. The magistrate then called defendants up in small groups and asked whether they understood the crime, the elements of the offense, their rights, and the maximum penalty. After the defendant answered, sentencing followed. There was a two hour gap between the general advisement and the personal questioning. The 9th held that this was error. Rule 11 was not strictly followed. The mass advisement followed by a two-hour delay before questioning the defendant alone was not sufficiently "personal" as required by Rule 11. Although the procedure violated Rule 11, the 9th ultimately found the error harmless due to the facts that the defendant entered her plea knowingly and with knowledge of the consequences. Moreover, she did not allege she would have pleaded differently if advised individually. The 9th also held that the court's error in not asking whether the plea was voluntarily was not prejudicial under a plain error analysis. Lastly, the 9th did not find a due process violation nor a Sixth Amendment violation. Indeed, the 9th pointed to counsel's "superior" representation during the procedure. The bottom line is that the district court and magistrate judges now have to alter their en masse Rule 11 advisements to ensure that the Rule's requirement for a personal addressing of the defendant is followed. The 9th, in a note suggested, reducing the time gap, or written waivers. It will need to be seen. Procedural fairness is not a commodity one discounts in bulk; a court is not a Costco.

Congratulations to AFPDs Jason Hanna and Brian Rademacher, FPD Arizona (Tucson).