Tuesday, September 15, 2015

United States v. Myers, No. 13-10580 (Murguia with McKeown and Friedland) --- The Ninth Circuit affirmed a conviction by guilty plea for conspiracy to commit wire fraud, holding that there was no reversible plain error under Fed. R. Crim. P. 11(c)(1), the rule that forbids judicial involvement in plea negotiations, because the defendant had requested a settlement conference as authorized by local rules and the plea deal and resulting guilty plea were the result of that conference.

The defendant was charged in December 2009 with ten counts involving wire fraud.  By August 2012, the case had not been resolved, and in November of that year the district court referred the case to a magistrate judge for a settlement conference, as authorized by the local rules of the Northern District of California.  The result of this five-hour settlement conference was a plea deal under which the defendant would plead guilty to one count of conspiracy to commit wire fraud and waive his right to appeal.  He ultimately received a below-Guidelines, 18-month sentence.  On appeal, he challenged his guilty plea as the product of forbidden judicial interference in plea negotiations.  The Ninth Circuit affirmed his conviction.

The Ninth Circuit first concluded that the local rule authorizing settlement conferences "was and is in conflict with Rule 11(c)(1)."  Even so, the procedure is not "categorically impermissible" because a defendant can waive the protection of the rule.  And indeed, by affirmatively requesting a settlement conference, he seemed to voluntarily waive that protection. Indeed, that request was a tactical decision, because it facilitated a favorable resolution of the case.  These facts meant that there was no reversible plain error.

For appellate practitioners, the opinion also discusses two other technical issues -- regarding the appeal waiver, and regarding the government's contention that the defendant invited the error here.  With respect to the appeal waiver, although there was not much explanation on this point, the court appears to have accepted the government's characterization of this issue as Rule 11 error that is not subject to an appeal waiver.  With respect to invited error, the court held that the invited-error doctrine did not preclude consideration of this issue as waived because the defendant did not knowingly relinquish the right conferred by Rule 11(c)(1).  There was no discussion on the record between the defendant and the judge that confirmed that he knew about Rule 11(c)(1), and the confusion created by the tension between the local rule and Rule 11(c)(1) counseled against a finding of knowing waiver.

The decision is here:


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