Sunday, September 20, 2015

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

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


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