United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2007 Decided June 5, 2007
No. 06-3115
UNITED STATES OF AMERICA,
APPELLEE
v.
KENNETH C. BAKER, JR., A/K/A KENNETH C. BAKER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00364-01)
James W. Beane, Jr., appointed by the court, argued the
cause and filed the briefs for appellant.
Youli Lee, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese, III and Barbara E. Kittay,
Assistant U.S. Attorneys.
Before: SENTELLE and BROWN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
2
BROWN, Circuit Judge: Kenneth C. Baker pled guilty to a
five-count indictment in federal district court, for which he
received a 51-month sentence. On appeal, Baker argues his
guilty plea and sentence must be set aside because the court
impermissibly and prejudicially participated in plea negotiations
with him. We find Baker’s arguments persuasive and therefore
vacate the judgment of the district court and remand for further
proceedings.
I
In February 2004, Kenneth Baker, an investment advisor at
SunTrust Bank, was asked to assist 88 year-old Doris Medley
with estate planning.1 Baker visited Medley at her house,
bought groceries for which she reimbursed him, and obtained a
blank check from her checkbook that he had Medley sign.
Baker later made the check out to his friend, Ruqiya Akhdar, for
approximately $96,000. After Baker used his position at Sun-
Trust to have $96,000 transferred from Medley’s money market
account to her checking account, Baker assisted Akhdar in
opening a SunTrust checking account in Akhdar’s name and
depositing the $96,000 check in the new account.
Over the next week or so, Baker had Akhdar withdraw
approximately $37,000 in cash from the account at various
SunTrust branches. According to Akhdar, Baker took all the
money. Baker facilitated the withdrawals by calling ahead to
the branches, checking if they had sufficient cash on hand, and
driving Akhdar to the branches to withdraw the money. On
February 27, 2004, the last day Akhdar withdrew money for
Baker, Baker electronically transferred the money remaining in
1
The factual background recited herein is based on the
government’s proffer, during Baker’s plea, of its evidence.
3
Akhdar’s account — approximately $58,000 — into a brokerage
account he had opened for Medley.
Medley completed an affidavit of forgery on March 5, 2004,
which led eventually to Baker and Akhdar being charged with
fraud and related offenses. Akhdar pled guilty to fraud and
cooperated with the government in prosecuting Baker, who was
indicted on five charges.
On March 21, 2006, at the close of a pre-trial hearing, the
district court, after noting the trial would start promptly the next
morning, engaged in the following colloquy with counsel:
THE COURT: . . . . For the last time, I guess, what’s the
government offering, anything? No harm in asking.
[ASSISTANT UNITED STATES ATTORNEY (AUSA)]:
Your Honor, the offer that we extended last Thursday –
THE COURT: I’m just asking. I don’t lean on people.
I’ve given up leaning on people. I don’t do that. I’m just
asking. I just want to make sure the record is clear.
[AUSA]: We’re offering, and notwithstanding the fact that
it had expired, but we would allow the defendant if he takes
it today, the same offer we made on Thursday, which I
think was 21 to 27 months.
* * *
THE COURT: Let me throw something out here. This may
have an impact, it may not.
I took a plea about two months ago from a man who
pled guilty, first offender, 63 years of age, pled guilty to –
4
I don’t want to misspeak. The government can check its
files. Mr. Krecji, K-R-E-C-J-I. My recollection is he stole
$66,000. Maybe it was $166,000. Somewhere around
there. He invaded the ERISA plan and made full restitu-
tion. And no prior convictions. There was not the vulnera-
ble victim, which I think may be the difference here. The
guideline range was 12 to something, 12 to, I can’t recall.
And he pled guilty and he pled guilty early on and assumed
responsibility. I sentenced him to a year and a day, and
that’s the sentence he’ll serve.
Now, judges do try to be consistent. And I sentenced
him to a year and a day so he would get 15 percent credit
for good time. And had it been punitive I would have
sentenced him to one year and he wouldn’t have gotten it.
And I just throw that out. I would probably be just as
consistent here. There are no prior convictions here, right?
[DEFENDANT’S COUNSEL]: Correct, Your Honor.
THE COURT: But, again, the difference may well be that
there were not vulnerable victims in that case, although
there was an abuse of trust.
[AUSA]: And there’s an abuse of trust here, too, Your
Honor.
THE COURT: But the range was 12 months to something,
and I rejected it on the bases for adjustments and medical.
I rejected all of that and I sentenced him to a year and a day.
And that’s the sentence he’s going to serve. That’s all I can
say.
[DEFENDANT’S COUNSEL]: Thank you, Your Honor.
5
* * *
THE COURT: Well, look, do you folks want to spend half
an hour or so to see if we can resolve this case? Because I
tell you, all bets are off now if we go through this. I’m not
making any promise about anything.
[DEFENDANT’S COUNSEL]: I would ask is there a
possibility –
THE COURT: Why don’t I just leave you for a few
minutes. Maybe the three of you can talk again. And,
again, I’m not trying to pressure anyone, but I don’t want to
start this if there’s some possibility of a resolution.
If there is, to the extent that it’s appropriate for the
Court to be consistent with prior sentencing, the Court will
do so. I’m not going to do one thing in one case where the
facts are similar and do something completely different
here. I’m just not going to do it. I’m going to be consistent
to the extent I can.
I think it’s Mr. Krecji’s case. And I think he stole
$150,000 or something like that. And he made full restitu-
tion. But he got a year and a day. That’s all I have to say.
Let me let you talk. And if you can’t agree on anything,
then I’ll see you tomorrow morning promptly at 9:00 ready
to start the next phase.
(The hearing concluded . . . .)
The next morning, Baker’s counsel immediately informed
the court that Baker wished to plead guilty to the indictment,
explaining that “[t]he parties were not able to work out an
agreement, a typical plea agreement, but given the situation
6
we’ll enter a plea to the indictment.” Addressing Baker, the
court inquired why he wished to plead to the indictment. Baker
replied, “I just don’t believe that there will be enough for me to
go forward at this time to win in a jury type of situation.” The
court refused to accept Baker’s plea because he had not ac-
knowledged his guilt. Baker then acknowledged he was guilty
“[o]f what’s in the indictment.” At least seven different times
during the plea colloquy, the court asked Baker if he was guilty
of the offenses in the indictment and Baker responded affirma-
tively. The court repeatedly emphasized and had Baker ac-
knowledge that he had not been promised anything in exchange
for pleading guilty. The court also stated multiple times that it
was fully prepared to have the case go to trial and that Baker
would get a fair trial. Eventually, after an extended plea
colloquy, the court accepted Baker’s guilty plea.2
Baker’s sentencing hearing was held almost four months
later. The recommended sentencing range under the federal
guidelines for Baker’s four federal offenses was 33 to 41
months, and the government recommended Baker be sentenced
to the maximum term. During the hearing, Baker at one point
explained that “[w]hen I came in here on March 2 [sic] and fell
on my sword, I was pretty much thinking in relation to a case
that you had referenced prior to my making my guilty plea of an
individual who, I think you said he took a hundred and some odd
thousand dollars and you gave him like a year and a day.” At
the conclusion of the hearing, the court sentenced Baker to the
guideline maximum of 41 months for the federal offenses and an
2
Later that day, the court stated that, in the interval between the
hearing the day before and Baker entering his guilty plea, it had twice
reviewed the tape of Doris Medley’s deposition. Commenting on the
tape, the court stated: “It’s pretty outrageous what happened. She’s a
vulnerable victim.”
7
additional 10 months for his related District of Columbia Code
offense.
Baker appealed, asserting for the first time that the district
court violated Rule 11 of the Federal Rules of Criminal Proce-
dure by improperly participating in plea discussions.
II
Rule 11 of the Federal Rules of Criminal Procedure governs
pleas, and among other things prohibits judicial participation in
plea discussions with criminal defendants. See FED. R. CRIM. P.
11(c)(1) (“An attorney for the government and the defendant’s
attorney, or the defendant when proceeding pro se, may discuss
and reach a plea agreement. The court must not participate in
these discussions.” (emphasis added)). Although this court has
had little occasion to apply Rule 11(c)(1)’s prohibition, the
federal courts as a whole have established a familiar and
generally uniform standard, from which we see no reason to
depart.
Courts have “widely viewed” Rule 11(c)(1)’s prohibition as
serving several purposes:
First, it diminishes the possibility of judicial coercion of a
guilty plea, regardless whether the coercion would actually
result in an involuntary guilty plea. Second, the judge’s
involvement in the negotiations is apt to diminish the
judge’s impartiality. By encouraging a particular agree-
ment, the judge may feel personally involved, and thus,
resent the defendant’s rejection of his advice. Third, the
judge’s participation creates a misleading impression of his
role in the proceedings. The judge’s role seems more like
an advocate for the agreement than a neutral arbiter if he
joins in the negotiations.
8
United States v. Cannady, 283 F.3d 641, 644–45 (4th Cir. 2002)
(quoting United States v. Daigle, 63 F.3d 346, 348 (5th Cir.
1995) (citations omitted)); see also United States v. Bierd, 217
F.3d 15, 19 (1st Cir. 2000); United States v. Casallas, 59 F.3d
1173, 1178 (11th Cir. 1995); United States v. Bruce, 976 F.2d
552, 556–57 (9th Cir. 1992).
Rule 11’s prohibition has been interpreted in light of these
purposes, and accordingly, “courts have found violations of the
rule even in cases where the district judge technically did not
participate in discussions with a view toward a plea agreement.”
Cannady, 283 F.3d at 644 (citation, internal quotation marks,
and alterations omitted). As one court explained soon after Rule
11 was amended to add the prohibition at issue here:
The commentaries regarding this injunction, and consider-
ation of its intendment, leave no room for doubt that its
purpose and meaning are that the sentencing judge should
take no part whatever in any discussion or communication
regarding the sentence to be imposed prior to the entry of a
plea of guilty or conviction, or submission to him of a plea
agreement.
United States v. Werker, 535 F.2d 198, 201 (2d Cir. 1976)
(citations omitted). Thus, courts have interpreted Rule 11
categorically to mean “the judge’s role is limited to acceptance
or rejection of the plea agreement after a thorough review of the
relevant factors; the judge should not participate in the plea
bargaining process.” United States v. Harris, 635 F.2d 526, 528
(6th Cir. 1980).3
3
Initially, the government challenged this established principle,
asserting in its brief that “it is crucial to note that there was no ‘plea
9
III
Baker and the government disagree about the standard of
review applicable in this case. Baker raised his Rule 11
objection for the first time in this appeal. Generally, defendants
who fail to raise objections at trial must meet the rigorous
requirements of the plain error standard to obtain reversal of a
conviction. See FED. R. CRIM. P. 52(b). To prevail under the
plain error standard, an appellant bears the burden of demon-
strating that (1) the court clearly erred, (2) the error implicated
the appellant’s substantial rights, and (3) the error has “seriously
affected the fairness, integrity or public reputation of judicial
proceedings.” In re Sealed Case, 283 F.3d 349, 352 (D.C. Cir.
2002) (alteration omitted) (quoting United States v. Olano, 507
U.S. 725, 734–36 (1993)). The government contends plain error
is the proper standard of review here. Baker disagrees, arguing
that a less exacting standard is appropriate.
In United States v. Vonn, 535 U.S. 55 (2002), the Supreme
Court clarified that plain error is the appropriate standard for a
Rule 11 objection made for the first time on appeal, though not
the specific objection at issue here. The defendant in Vonn was
charged with armed robbery and related crimes. Although the
defendant had previously been advised repeatedly of his right to
bargain’ in this case; rather, appellant pled guilty to the indictment
without any promise from the government or the trial court as to his
sentence.” Appellee’s Br. 21. The government wisely abandoned that
position at oral argument, however, conceding that a negotiation or
agreement between the government’s attorney and the defendant is not
necessary for a court to violate Rule 11(c)(1). Rule 11(c)(1) does not
merely guard against judicial participation in plea discussions when
they result in a bargain; it also prohibits participation that effectively
undermines the parties reaching a bargain (or a better bargain). See,
e.g., United States v. Bradley, 455 F.3d 453, 464 (4th Cir. 2006).
10
counsel at trial, during the plea colloquy the court neglected to
notify him of his right to trial counsel, thus violating Rule 11.
Id. at 60. The defendant objected to the error for the first time
on appeal and argued that the Rule 11 violation was subject to
harmless error review — a more defendant-friendly standard of
review under which the government bears the burden of
demonstrating the error was harmless. Id. at 61. The Supreme
Court disagreed, holding that “a silent defendant has the burden
to satisfy the plain-error rule.” Id. at 59.
Shortly after the Supreme Court’s Vonn decision, this court
considered another alleged Rule 11 error in In re Sealed Case,
283 F.3d 349 (D.C. Cir. 2002). In In re Sealed Case, the
defendant contended — for the first time on appeal — that the
district court had failed to detail the elements of the charged
crime, and therefore he was not fully informed when he made
his guilty plea. Id. at 352. Applying Vonn, this court stated that
“[i]f the defendant allows an alleged error to pass without
objection . . . he then assumes the burden of meeting the more
exacting plain error requirement of Rule 52(b).” Id.
Applied reflexively, Vonn and In re Sealed Case support the
government’s argument that the plain error standard of review
is applicable here. But having looked closer, we are not so sure.
And although we find it unnecessary to resolve the proper
standard of review here — because whether we apply the plain
error or some less rigorous standard the outcome in this case is
unchanged — we believe it is worth explaining why we find the
proper standard of review a difficult question.
First, Vonn does not suggest that its holding applies to all
Rule 11 violations raised for the first time on appeal. See 535
U.S. at 74 (stating that, “[a]t the very least, there is no reason
persuasive enough to think [Rule] 11(h) was intended to repeal
Rule 52(b) for every Rule 11 case,” (emphasis added), thus
11
suggesting that Rule 52(b)’s plain error standard may be
repealed for some Rule 11 cases). Obviously, not all Rule 11
violations are created equal. The Rule 11 errors at issue in Vonn
and In re Sealed Case — failures to notify — are qualitatively
different than the Rule 11 violation alleged here, which involved
not merely neglect on the part of the court, but rather the court
initiating and unilaterally acting in a manner clearly proscribed
by the Rule.
Moreover, there are compelling reasons for not imposing
the demanding plain error burden on defendants alleging
impermissible participation by a court in plea negotiations.
Where the judge has unilaterally injected himself into the plea
process and possibly undermined plea negotiations between the
defendant and government by appearing to tacitly offer a “better
deal” than the government, the defendant is placed in a unique
predicament — with no good options. If he objects, the defen-
dant (1) repudiates the judge’s tacit offer, (2) risks angering the
judge by implicitly accusing him of impropriety, (3) strengthens
the government’s bargaining position in the plea negotiations,
and (4) possibly encourages the court to impose a more severe
sentence. On the other hand, if the defendant remains silent, he
is forced to divine whether the judge really did make an implicit
offer, and whether to accept the government’s less favorable
offer or take his chances with the judge. And, according to the
government’s argument, by remaining silent the defendant is
saddled with a difficult standard of review on appeal. Indeed, it
seems this quandary is precisely why Rule 11(c)(1) contains its
categorical prohibition on judicial participation, and why courts,
pre-Vonn, applied that prohibition strictly. See, e.g., Bruce, 976
F.2d at 558 (“[T]he unambiguous mandate of Rule 11 prohibits
the participation of the judge in plea negotiations under any
circumstances: it is a rule that, as we have noted, admits of no
exceptions.”); United States v. Corbitt, 996 F.2d 1132, 1134
(11th Cir. 1993); United States v. Adams, 634 F.2d 830, 835 (5th
12
Cir. 1981); Werker, 535 F.2d at 201. Thus, if any Rule 11 error
raised for the first time on appeal is to be subject to a less
exacting standard than plain error, the type of error present in
this case seems a fitting candidate.
Admittedly, however, the only other circuit that has directly
addressed, post-Vonn, the appropriate standard for reviewing
plea-participation errors raised for the first time on appeal has
applied the plain error standard. See, e.g., Bradley, 455 F.3d at
462; Cannady, 283 F.3d at 647 n.5.4 But those few decisions
failed to consider explicitly (1) that Vonn did not lay down a
blanket plain error standard for all Rule 11 errors raised for the
first time on appeal, and (2) the virtual catch-22 defendants are
faced with when courts inject themselves into plea negotiations.
Thus, the proper standard of review for Rule 11 errors of the
type presented here is a close question. Because, however, our
resolution of that question would not affect the outcome of this
case, we assume without deciding that plain error is the proper
standard, and proceed accordingly.
IV
The government concedes the district court’s comments in
this case were “regrettable” and even “inappropriate,” but
contends no error occurred. We are unpersuaded. Rule 11’s
4
The Fourth Circuit in Bradley cites United States v. Ebel, 299
F.3d 187 (3d Cir. 2002), as “finding that district court’s impermissible
participation in plea negotiations required plain error analysis in light
of Vonn.” Bradley, 455 F.3d at 462. That is incorrect, however.
Although the court in Ebel cited Vonn for a different proposition, it
appropriately applied Rule 11(h)’s harmless error standard, 299 F.3d
at 191, because the defendant in that case had raised the Rule 11 error
before the district court, id. at 190.
13
proscription is categorical and emphatic: “The court must not
participate in these discussions.” FED. R. CRIM. P. 11(c)(1).
Courts have widely recognized Rule 11 “prohibits absolutely a
district court from all forms of judicial participation in or
interference with the plea negotiation process.” United States v.
Miles, 10 F.3d 1135, 1139 (5th Cir.1993) (citation and internal
quotation marks omitted).
The district court here unilaterally initiated and engaged in
a lengthy plea discussion with Baker. The only reasonable
explanation for the court (1) discussing the “year and a day”
sentence in a similar case, (2) emphasizing (at least four times)
that the court would be “consistent” to the extent it could, (3)
specifically mentioning that the previous defendant had “pled
guilty early on,” and (4) thrice encouraging the parties to “talk
again” and “see if we can resolve this case,” was to encourage
a plea. The court plainly violated Rule 11.
The government further argues that, even assuming the
court plainly erred, the error did not affect Baker’s substantial
rights. Specifically, the government contends Baker has not met
his burden of demonstrating the court’s comments were the “but
for” cause of his decision to plead guilty to the indictment with
no plea agreement.
As a preliminary matter, the government is simply wrong in
arguing Baker must demonstrate that, “but for” the court’s
comments, he would not have pled guilty. As the Supreme
Court recently held, “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.” United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004) (emphasis added). Elaborating on what it meant
by “reasonable probability,” the Court explained a “defendant
14
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’ of the
proceeding.” Id. (citations omitted). Thus, contrary to the
government’s contention, Baker need only demonstrate a
“reasonable probability” that he would not have pled as he did
absent the court’s comments.
Baker has made that showing. It is difficult to imagine how
a defendant, faced with a potential sentence of over four years
(for both the federal and District of Columbia charges), could
fail to be powerfully influenced by the sentencing judge’s
repeated allusions to his intent to be “consistent” with a “year
and a day” sentence in another case — especially when the
allusions were mentioned precisely because they might “have an
impact” on the defendant’s plea negotiations. And it is similarly
implausible to conclude a defendant in Baker’s position would
be unfazed by the court’s ominous follow-up statement: “Well,
look, do you folks want to spend half an hour or so to see if we
can resolve this case? Because I tell you, all bets are off now if
we go through this. I’m not making any promise about any-
thing.” Even assuming the statement was not intended to
coerce, such a statement, backed up as it was by the court’s
sentencing authority, suggests coercion. “When a judge
becomes a participant in plea bargaining he brings to bear the
full force and majesty of his office. His awesome power to
impose a substantially longer or even maximum sentence in
excess of that proposed is present whether referred to or not.”
Bradley, 455 F.3d at 465 (citations omitted).
There is other more direct evidence Baker was influenced
by the court’s comments. During the court’s plea discussions,
the government reiterated its offer of 21 to 27 months. Yet
Baker, first thing the next morning, informed the court of his
desire to plead to the indictment with no agreement with the
15
government. It was illogical for Baker to plead to the indictment
with its 41-month guideline maximum when he had a 21- to 27-
month offer from the government on the table, unless he thought
the court would give him a better deal if he pled “guilty early on
and assumed responsibility.” Baker’s willingness to eschew the
government’s offer and plead to the indictment with no agree-
ment is best explained by the fact that he was influenced by the
court’s comments the day before.
Finally, if any doubt remained as to the relationship
between Baker’s guilty plea and the court’s comments, Baker’s
reference to the court’s comments at his sentencing hearing
almost four months later puts those doubts to rest. When given
an opportunity to respond to the government’s 41-month
sentencing recommendation, Baker stated: “When I came in
here on March 2 [sic] and fell on my sword, I was pretty much
thinking in relation to a case that you had referenced prior to my
making my guilty plea of an individual who, I think you said he
took a hundred and some odd thousand dollars and you gave him
like a year and a day.”
The government contends any error was cured by the plea
colloquy. The government points out that the court repeatedly
indicated its willingness to go to trial, emphasized no promises
were made in exchange for the plea, and elicited multiple
admissions from Baker that he was guilty. And indeed, the
transcript from the plea colloquy plainly shows the court strove
valiantly to remedy its earlier error.
But the damage was done. Baker had already forgone the
government’s offer, because he perceived the court had tacitly
made him a better one. Of course, Baker knew the court hadn’t
“promised” him a lenient sentence, but neither would a rational
person remain unaffected by the previous day’s exchange. For
this reason Rule 11 doesn’t only prohibit sentencing promises,
16
but more broadly prohibits judicial “participat[ion]” in plea
discussions.
Baker’s case is distinguishable, moreover, from the few
cases where courts have found a judge’s remarks concerning a
possible sentence not to “rise to the ‘level of participation’
envisaged by Rule 11.” United States v. Bierd, 217 F.3d 15, 21
(1st Cir. 2000) (quoting Blackmon v. Wainwright, 608 F.2d 183,
184–85 (5th Cir. 1979)). In Bierd, for example, the reviewing
court noted the trial judge’s remarks were “impromptu, unem-
phatic, and unrepeated.” Id. at 21. Likewise, the trial court’s
comments in Blackmon were “off-the-cuff remarks,” “initiated
and pursued entirely by the defense counsel.” 608 F.2d at 184.
Unlike the remarks in those cases, the remarks here were
lengthy, repetitive, initiated and pursued by the court, and
accompanied by several concurrent suggestions that the parties
“talk again” and “resolve this case.”
In sum, the record in this case evinces a “reasonable
probability” that, but for the court’s comments, Baker would
either not have pled or pled with the government recommending
a lighter sentence. It is unrealistic to think the court’s repeated
references to a “year and a day” sentence had no effect on either
the impasse between the parties or Baker’s decision to plead
guilty. Baker has therefore amply demonstrated the court’s
participation in plea discussions affected his substantial rights.
Finally, as to whether Baker has demonstrated that the
court’s error has “seriously affected the fairness, integrity or
public reputation of judicial proceedings,” In re Sealed Case,
283 F.3d at 352 (alteration and citation omitted), we think he has
satisfied this requirement. Courts have recognized that:
given the critical interests served by the prohibition —
preserving “the judge’s impartiality” throughout the
17
proceedings and preventing the public from gaining the
“misleading impression” that a judge is anything less than
a “neutral arbiter” — failure to notice this sort of clear Rule
11 error would almost inevitably seriously affect the
fairness and integrity of judicial proceedings.
Bradley, 455 F.3d at 463 (citations omitted). This case is no
exception to that norm. Regardless of the court’s motives in
injecting itself into the plea process, the fact remains: Baker
was put by the court in a position that would be reasonably
perceived by a defendant as inconsistent with the court’s role as
a neutral arbiter of justice. When a court appears to make a tacit
offer of leniency in exchange for a guilty plea, even if that offer
is accompanied by caveats, confidence in the court is under-
mined.
V
We are convinced by our review of the entire record that the
district court here had only good intentions in attempting to
facilitate a plea agreement initially believed to be advantageous
to all involved, did not intend to coerce an involuntary plea, and
attempted to remedy its error during the plea colloquy with
Baker. Nonetheless, Rule 11’s strict prohibition exists because
judicial participation in plea discussions is inherently coercive.
By “intervening to facilitate a plea,” the court “raised the
possibility, if only in the defendant’s mind, that a refusal to
accept the judge’s preferred disposition would be punished.”
United States v. Barrett, 982 F.2d 193, 194 (6th Cir. 1992).
Despite its good intentions, the court’s plain error affected
Baker’s substantial rights and reflects badly on the fundamental
fairness of the judicial process. Accordingly, the judgment of
the district court is vacated and the case remanded for further
proceedings in which Baker may withdraw his guilty plea. In
addition, as is customary, we remand the case for assignment to
18
a different district judge, even though we have confidence the
current judge would continue to preside fairly over this case.
See Bradley, 455 F.3d at 465; Miles, 10 F.3d at 1142; Corbitt,
996 F.2d at 1135. “Regardless of the judge’s objectivity, it is
the defendant’s perception of the judge that will determine
whether the defendant will feel coerced to enter a plea.”
Bradley, 455 F.3d at 465 (citations omitted).
So ordered.