Case o' The Week: Myers Lemon of an Opinion, thanks to Supremes and Davila - Criminal Settlement Conferences and Rule 11(c)(1)

  In an appeal from (Judge) Davila controlled by (opinion) Davila, Ninth finds no appellate waiver when client didn’t waive (waiveable) Rule 11 limitations (which cannot, however, be waived to get a criminal settlement conference, under the Northern District of California's local rule).

  Got it?

United States v. Myers, 2015 WL 5315376 (9th Cir. Mar. 11, 2015), decision available here.

Players: Decision by Judge Murguia, joined by Judges McKeown and Friedland. Hard-fought appeal by NorCal CJA Counsel Michael Hinckley.

Facts: On June 13, 2013, the Supreme Court held in Davila that Fed. R. Crim. Proc. 11 precluded judicial involvement in criminal settlement conferences. Id. at *7. Before Davila was decided, Myers was charged with fraud. Id. at *1. He requested a criminal settlement conference, in accordance with N.D. Cal’s Crim. L. Rule 11-1. Id. The AUSA agreed, and a Magistrate Judge moderated a settlement conference that produced a written plea agreement and guilty plea. Id. Davila was then decided. Four months later, id. at *8, Myers was sentenced to 18 months (below the two years recommended by Probation). Id. at *3.

Issue(s): “Myers does not dispute that he voluntarily participated in the settlement conference. Rather, he argues the procedure violated Federal Rule of Criminal Procedure 11, which prohibits ‘[t]he court’ from ‘participat[ing] in [plea] discussions.” Fed.R.Crim.P. 11(c)(1). Specifically, Myers argues that the Supreme Court's decision in Davila. . . 133 S.Ct. 2139 . . . (2013), sets forth a categorical rule prohibiting any judicial involvement in plea negotiation, even, as is at issue here, when the judicial participation is both requested by the defendant and sanctioned by the district court's local rules.” Id.

Held: “We agree that Davila makes clear that Rule 11(c)(1) imposes a categorical bar on judicial participation in plea negotiations. Because Myers failed to object at the time to judicial participation, however, we review his unpreserved Rule 11 claim for plain error, and we affirm. Myers has failed to establish the alleged error affected his substantial rights because the record is bereft of evidence indicating that he suffered any prejudice due to the magistrate judge’s participation in the settlement conference. Rather, the settlement conference helped Myers reach a plea deal with the government—something Myers vigorously pursued during the nearly three years of pretrial proceedings—which resulted in Myers receiving a below-Guidelines sentence.” Id. 

 “[W]e conclude that Rule 11(c)(1) extends to the magistrate judge's participation in the settlement conference at issue here.” Id. at *4. 

“We note that this means Northern District of California Local Criminal Rule 11–1(a) was and is in conflict with Rule 11(c)(1).” Id. at *5.

Of Note: Consider these Myers holdings. Rule 11 “imposes a categorical bar” on judges leading criminal settlement negotiations. Id. at *4. However, “[w]e . . . hold that Rule 11(c)(1) can be waived by the defendant.” Id. at *6. “[T]he Northern District’s settlement conference procedure is not categorically impermissible: while the procedure violates the plain letter of Rule 11(c) (1), the rule is waivable at the defendant's election.” Id. at *8. 

Is this a window of opportunity? Can we get a written waiver from the client or judicial confirmation of the Rule 11 waiver, id. at *6, and get crim settlement conferences back in business? 

Probably not. 

The Court seems to be distinguishing “this makes it all OK” waiver, from “you gave up your appeal waiver.” Id. at *5 (“While these facts bear on whether Myers voluntarily waived Rule 11(c)(1) . . . these procedural protections do not ameliorate the conflict between the local rule and Rule 11(c)(1)’s categorical bar on judges participating in plea negotiations.”) Id. at *5. Nonetheless, by all means give crim settlement conferences a shot after Myers (if you can find a willing AUSA and federal settlement judge).

How to Use: This plea agreement had an appellate waiver -- why didn’t the appeal stop there? Because these waivers don’t cover Rule 11 errors. See id. at *5. Handy exception to remember, when there are plea quirks.

                                               

For Further Reading: The lousy facts of Davila cost us an important settlement tool. For an interesting article discussing the pros and cons of criminal settlement conferences – and suggesting a middle course -- see Rishi Raj Batra, Judicial Participation in Plea Bargaining: a Dispute Resolution Perspective, at 76 Ohio St. L.J. 575 (2015), available here.

Image of Meyer lemon from http://foodalogue.com/wp-content/uploads/2011/02/meyer-lemon-500x375.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Double or Nothing - Mondragon and Double Jeopardy

  To paraphrase the classic Greg Kihn Band tune, "I was in jeopardy, baby, ooh-oh-ooh."

  Or not. 

   United States v. Mondragon, 2013 WL 6726925 (9th Cir. Dec. 23, 2013), decision available here.

Players: Decision by Judge Graber, joined by Judges Tashima and Murguia.

Facts: After a jury was empaneled Mondragon went to a settlement conference and then plead guilty: he did not object when the district court then declared a mistrial. Id. at *1. Mondragon then successfully moved to rescind his guilty plea. Id. Before the next trial was underway, Mondragon invoked the Double Jeopardy clause and demanded the original jury hear his case. Id. The district court denied the motion to dismiss the superseding indictment. Id. Mondragon filed an interlocutory appeal. Id. at *2.  

Issue(s): “[The] rule, that a declaration of mistrial at the behest or with the consent of the defendant stands as no obstacle to a new trial, has one ‘narrow exception’; the rule does not apply when the mistrial is caused by the misconduct of the prosecutor or judge and that misconduct is motivated by an intent to . . . subvert the protections afforded by the Double Jeopardy Clause.” Id. at *2 (internal quotations and citations omitted). “Here, Defendant argues that the district court engaged in misconduct because the settlement conference violated Federal Rule of Criminal Procedure 11. He further argues that the misconduct constituted ‘goading’ because the presiding judge intended that the settlement conference result in Defendant’s consent to a mistrial.” Id. at *3. “. . . [T]he relevant inquiry is whether the impropriety was an attempt to prevent the empaneled jury from reaching its verdict.” Id. at *4.

Held: “Even if we assume that the district court violated the local settlement rule and Rule 11, we still conclude that the district court’s actions did not constitute ‘goading.’” Id. at *3. “Defendant leaps from the fact that a voluntary settlement conference may result in a plea agreement and a consequent mistrial to the conclusion that the judge necessarily sought to cause a mistrial. There is no support in the law, in logic, or in the record for that leap.” Id.

Of Note: After Davila, 133 S. Ct. 2139 (2013), the significance of Mondragon in the context of mid-trial settlement conference is effectively moot: there aren’t any settlement conferences (or if there are, they are few and far between). The broader import or Mondragon is the “coerce to consent to mistrial” branch of the Double Jeopardy analysis. Id. at *2-*4. While it is not a terribly surprising result, Mondragon refuses to grow that branch beyond traditional bases for finding that jeopardy attached. Id. at *3.

How to Use: Mondragon gives a little primer for when jeopardy does attach, when the court or prosecutor goads the defense into agreeing to a mistrial. The point of this line of law is to “’prevent[ ] prosecutors from sinking a case they knew was doomed to end in an acquittal in the hope of having better luck before a second jury.’” Id. at *4 (quoting United States v. Perlaza, 439 F.3d 1149, 1173 (9th Cir. 2006)). 

  Examples? “[I]f the prosecutor thinks that the jury will acquit because the government’s star witness performed poorly on cross-examination, the prosecutor’s misconduct aimed at causing a mistrial would bar retrial. Or if a judge who disliked the jury’s racial or professional mix engaged in misconduct in order to seek a different mix in the jury pool, the judge’s misconduct leading to a mistrial would bar retrial.” Id. at *4.

                                               

For Further Reading: A month or so ago we flagged buzz of a possible amendment to the drug guidelines. See blog here.  That buzz became much more real last week, as the Commission sought comments on a proposed amendment that would knock 2 levels off drug guidelines. See press release here.

  Bring that certain reduction into current negotiations (or brush up on your Speedy Trial exclusions and stall drug cases until the amendments kick in). 

  Finally, negotiate-out § 3582 resentencing waivers! (Or try to: the ability (or inability) to negotiate over § 3582 waivers in plea agreements is a topic of much interest in the ND Cal right now).

Image of “Jeopardy” from http://globalstrategygroup.com/wp-content/uploads/2013/08/1280_jeo_alex-738030.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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