Case o' The Week: Let's Make a Deal (but not with the Judge) - Kyle, Rule 11, and judicial involvement in plea negotiations
Very little, it turns out. United States v. Kyle, 2013 WL 5813119 (9th Cir. Oct. 30, 2013), decision available here.
Players: Decision by District Judge Marshall, joined by Judges Berzon and Bybee. Nice win for ND Cal CJA Attorney Ethan Balogh.
Facts: Investigation revealed that Kyle had molested an infant child and that the molestation had been photographed. Id. He was indicted under 18 USC § 2241(c) for aggravated sexual abuse of a child, and for child pornography charges. Id. at *2. He pleaded guilty pursuant to a plea agreement that jointly recommended 30 years -- the mand-min for the 2241(c) charge. Id. Before sentencing, the district court stated its intent to reject the plea because it was too lenient. Id. Kyle was allowed to withdraw his plea. Before trial was set, the district court engaged in a colloquy with defense counsel, discussing the need for an above-guideline sentence. Id. at *3. The parties promptly returned with a second deal that recommended a sentence range up to 405 months. 405 months was ultimately imposed. Id. at *4. The defense did not object at sentencing. Id. at *4. An appeal followed.
Issue(s): “Kyle argues his guilty plea and sentence must be set aside because the District Court impermissibly and prejudicially participated in plea negotiations.” Id. at *1. [In United States v. Davila, 133 S. Ct. 2139 (2013) the] Supreme Court held that automatic vacatur is inappropriate [when the trial court is involved in plea negotiations], explaining that vacatur of the plea is not in order if the record shows no prejudice to the defendant’s decision to plead guilty.” Id. (internal quotations and citation omitted) . . . We now follow Davila and review the District Court’s alleged violation of Rule 11(c)(1) in light of the prejudice inquiry required.” Id.
Held: “[W]e find that the District Court participated in the parties’ plea discussions by prematurely committing itself to a sentence of a specific severity. The District Court’s participation prejudiced Kyle. We hold that Kyle’s plea must be VACATED and this appeal REMANDED for further proceedings.” Id.
Of Note: One new rule, one ambiguous rule, comes from Kyle. First, unsurprisingly, the Ninth’s old automatic-vacatur rule has been wiped-out by Davila: a prejudice inquiry is now necessary for Rule 11 violations. Id. at *1.
Less clear is the standard of review for Rule 11 violations: plain or harmless error under Rule 52? That rule will have to wait for another day – because Kyle wins anyway on plain error review, the panel “assumes without deciding” that plain error is the appropriate standard. Id. at *4.
How to Use: “We take this opportunity to emphasize that Rule 11(c)(1) is intended to eliminate all judicial pressure from plea discussions.” Id. at *5. Davila wants to prevent judges from leaning on defendants who are deciding whether to plea; Kyle wants the same. Id. at *6. (“[T]he District Court may not indicate what it might find acceptable or unacceptable in resolving the case.”)
That’s all well and good, but this line of law also put a quick kibosh on our extraordinarily helpful settlement conferences; magistrate-mediated negotiations that saved our clients decades of custody. Kyle also means that a dissatisfied district judge who busts a (C) plea agreement will no longer give hints on what deal might actually work. That was extraordinarily valuable intel for which we often fished before trudging back to the bargaining table. (Indeed, defense counsel had probed for exactly those clues in Kyle. Id. at *6 n.5).
We like the good appellate-court intentions of Davila and Kyle, but the down-and-dirty work of getting tough federal cases resolved wasn’t made any easier by this brace of opinions.
For Further Reading: Big week for NorCal. In addition to Ethan’s victory, another ND Cal CJA counsel -- Erik Guzman -- brought home a welcome win with a Ninth reversal on a challenge to a removal order in a Section 1326 case. United States v. Cuenca-Vega, 2013 WL 5814760 (9th Cir. Oct. 2013) (mem). The training grounds for Mssrs. Guzman and Balogh? Defender Services of San Diego, Inc., where they both started their careers as Assistant Defenders. Nice to see the SoCal/NorCal friendship pay-off with a pair of Ninth reversals.
“Let’s Make a Deal” image from http://www.letsmakeadeal.com/lmad-curtain.GIF
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org