Thursday, January 06, 2005

Dominguez Benitez - Book of the Month and Pleas: Can't get out of either

United States v. Dominguez Benitez, 124 S. Ct. 2333 (2004); Rule 11 pleas/ Appellate standards of review: "Structural rights" showings under the plain error analysis

Players: Justice Souter authors majority opinion, Justice Scalia with plain-spoken concurrence.

Facts: Dominguez Benitez is caught in meth sales, confesses, and is looking at a ten year mandatory minimum. 124 S. Ct. 2333, 2336. During an attempt to fire counsel, he assures the court he isn’t going to trial. Id. at 2337. Ultimately, he pleads pursuant to a plea agreement, seeking safety valve. Id. He (erroneously) isn’t told by the district court that he can’t withdraw his plea. Id. Unfortunately, three prior convictions then pop up, and safety valve is out. Id. He isn’t allowed to withdraw his plea, and challenges the Rule 11 failure during the plea colloquy.

Issue(s): "We granted certiorari . . . on the question whether, in order to show that a violation of Federal Rule of Criminal Procedure 11 constitutes reversible plain error, a defendant must demonstrate that he would not have pleaded guilty if the violation had not occurred." (internal quotations and citations omitted). Id. at 2338.

Held: "We hold, therefore, that a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea. A defendant must thus satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is sufficient to undermine confidence in the outcome fo the proceeding." Id. at 2340 (internal citations and quotations omitted) (emphasis added).

Of Note: This is a bad case in that it clarifies that for most Rule 11 errors, the very difficult "plain error" analysis will prove fatal to the defendant’s challenge. This is because a defendant will often struggle to show a "reasonable probability" that he or she would not have pleaded if correctly advised.
Note, however, that in this case the Court’s analysis is particularly unsatisfying. The Court concludes that because of clear evidence of guilt, Dominguez Benitez would not have withdrawn his plea. Id. at 2341. As a practical matter, however, the defendant had already done a safety valve to avoid a ten year mandatory minimum; odds are, if he could have withdrawn his plea he may have well cooperated and entered into a § 5K agreement.
The case is of most interest for the in-depth discussion of the appellate standards of review. Read footnote 9 carefully; it emphasizes that this is a more relaxed standard than a preponderance. Id. at 2340 & n.9. Also take a look at Scalia’s concurrence – he mocks the four existing (amorphous) standards of review. Id. at 2342.

How to Use: As noted above, footnote 9 insists that the "reasonable probability" standard is lower (easier for the defendant) than a "preponderance" standard. For that proposition, the Court cites Kyles v. Whitley, 514 U.S. 419, 434 (1995). Use footnote 9 in discovery cases to argue that Kyles discovery standards are lower than many courts (and specifically, the Ninth Circuit) have traditionally demanded. See, e.g, United States v. Carreno, 363 F.3d 883, 888 (9th Cir. 2004), petition for cert. pending (characterizing my argument as "well-reasoned," but rejecting my position that the Ninth has strayed from the Kyles discovery standard) [ed. note: as you can see, still a little bitter about that case].

For Further Reading: On remand, the Ninth circuit affirmed the conviction. United States v. Dominguez Benitez, 381 F.3d 859 (2004). The Court emphasized, however, "Our decision does not affect Benitez’s right to file a petition for habeas corpus pursuant to 28 U.S.C. § 2255." Id. Query whether that hint invites an I.A.C. petition for not catching the defendant’s prior convictions, which soured the safety valve deal.

Steven Kalar, Senior Litigator ND Cal.


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