In re Benvin, No. 14-72181 (per curiam; panel is O'Scannlain, Berzon, and Bybee) --- The Ninth Circuit granted a criminal defendant's request to reassign her case to a different district judge, holding that the assigned judge improperly involved himself in plea negotiations by suggesting a term to be added to a plea agreement and placing conditions on the government's agreed-upon dismissal of other counts pursuant to that agreement.

This is a fraud case; the defendant was the president of a financial-services company charged with multiple counts of fraud and embezzling funds from the company while it was in bankruptcy proceedings.  She agreed to plead guilty to one count of embezzlement from an employee benefit plan in exchange for the dismissal of 49 other counts against her, stipulated restitution, and consideration of all relevant conduct at sentencing.  When he learned that restitution was limited by statute to the offense of conviction, the district judge, who held the plea proceedings, deferred acceptance of both the plea and the plea agreement until after reading the presentence report.  The next day he held a status conference, at which he told the parties to modify the agreement so as to make the restitution award binding.  He also told the government to inquire of the victims whether they objected to the defendant pleading guilty if it meant that they could not speak at sentencing (because they were not victims of the single count of conviction).

The judge held another plea hearing, which he opened by saying that he would not accept the stipulated restitution agreement and did not want to deprive the victims of their right to speak.  He told the parties that he wanted the plea agreement to stipulate to restitution that covered all the victims, and complained that the count of conviction had a statutory maximum that did not allow him to impose the highest sentence recommended by the Guidelines.  Thus he said that he would not allow the government to dismiss the remaining counts (as the plea agreement required) unless either the victims consented to not making a statement at sentencing or the government explained why it did not think it could prove loss to those victims.  When defense counsel objected that the judge was stepping on the government's prosecutorial discretion, the judge terminated the hearing and set the case for trial.  The defendant filed a petition for a writ of mandamus, objecting to the conditions attached to dismissal of the remaining counts.

The court reiterated that the judge improperly intruded upon plea negotiations by suggesting a stipulated amount of restitution and by attaching conditions to the dismissal of the remaining counts in the indictment.  There was no adequate remedy by appeal (because the defendant would have been sentenced by then), and this was error.  A supervisory writ was warranted, because the judge limited her options to either a plea straight up to one of the counts or a trial on all of them.  The court then directed reassignment to a different judge on remand.

Congratulations to Assistant Federal Public Defender Michael Kennedy of the District of Nevada.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/29/14-72181.pdf