UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41029
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROQUE RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
November 24, 1999
Before POLITZ and STEWART, Circuit Judges, and LITTLE,* District Judge.
POLITZ, Circuit Judge:
Charged in a four-count indictment with conspiracy to possess with intent to
distribute cocaine, possession with intent to distribute, and aiding and abetting in
the distribution, Roque Rodriguez pled guilty, pursuant to a plea agreement, to the
conspiracy count. He was sentenced to imprisonment for 125 months and four
*
District Judge of the Western District of Louisiana, sitting by designation.
years supervised release. He appeals, contending that the trial judge exceeded the
strictures of Rule 11 of the Federal Rules of Criminal Procedure. For the reasons
assigned we vacate the conviction and sentence and remand for further proceedings
consistent herewith.
BACKGROUND
At the beginning of his guilty plea hearing, Rodriguez expressed doubt about
whether he wanted to plead guilty instead of going to trial. The government
responded that if Rodriguez elected to go to trial, it would file a request for a
sentencing enhancement. The court then questioned Rodriguez to determine
whether he understood the impact of a decision to go to trial:
THE COURT: ... And Ms. Booth [the government’s attorney] is going to
file an enhancement, which means – what is your –
what’s his minimum going to be?
MS. BOOTH: Well, Your Honor, I think with the evidence it’s going to
be a ten-year minimum.
THE COURT: Do you understand that?
DEFENDANT: Yes, Your Honor.
THE COURT: And do you want to go to trial?
DEFENDANT: I’m not ready at the time, Your Honor. I need some more
time.
THE COURT: You don’t get any more time. Time is up. Pardon?
2
DEFENDANT: Go ahead and find me guilty, Your Honor, and – that’ll
be okay. I just need some more time, Your Honor, about
a couple of weeks. Two or three weeks more.
THE COURT: I can’t give you any more time.
DEFENDANT: All right, Your Honor. I understand that.
THE COURT: But if you go to trial tomorrow and you’re found guilty,
you’ll have to go to prison for ten years.
When Rodriguez expressed a willingness to go to trial, the court asked him
if he was “sure [he] want[ed] to do that.” Rodriguez repeated several times that he
wanted more time to decide, but was denied a continuance in each instance.
Rodriguez’s attorney told the court that Rodriguez “feels like he is not getting a
good deal out of this situation and he wants another opinion.” 1 The court then
asked about the plea agreement. The government outlined the agreement, which
included a promise to assess relevant conduct as to only two of the counts if the
government was not forced to file the enhancement. The deal also included a three
point reduction for acceptance of responsibility, a recommendation for a sentence
at the low end of the applicable guidelines range, and the opportunity for a motion
for a downward departure under the sentencing guidelines.
1
Rodriguez claims that his requests for more time were misunderstood as stalling
tactics when they actually were made so that he could confer with a Spanish-speaking
attorney.
3
Because Rodriguez, who also faced state charges, was concerned about the
total amount of time he was likely to spend in jail, the court recessed the hearing
to allow Rodriguez’s attorney to meet with state prosecutors. After the recess,
counsel informed the court that the state prosecutors had agreed to recommend that
any state sentence he might receive should run concurrently with his federal
sentence.
Rodriguez’s attorney then inquired as to what sentence Rodriguez would
receive under the proposed agreement. The court responded that it would not let
Rodriguez know that. The government renewed its assertion that if Rodriguez
opted for a trial, that it would file a sentencing enhancement that afternoon. The
court told Rodriguez that once the sentencing enhancement was filed it could not
be withdrawn, and added:
Yeah, that’s for sure. Right now he’s looking at five years minimum and in
about 30 minutes he’s going to be looking at ten years minimum. That’s all
we know for sure. He’s going to get the higher of the mandatory minimums
under the guidelines.
The court denied a request for a continuance by Rodriguez, and told him that
he would have to go to trial. Rodriguez then stated that he was “willing to take the
plea bargain,” but he wanted more time before pleading guilty. The court again
told Rodriguez that he would be required to make his decision then and there.
4
Rodriguez then agreed to enter the plea bargain. At this point the court recessed
again, stating:
All right. Let Mr. Botary [Rodriguez’s attorney] spend some more time with
his client and make sure that he understands the plea, that he wants to take
it. Because I’m getting concerned now about whether he feels too pressured
that he’s got to take the plea and we’re going to get, you know, a 2255 down
the road about that ...
After the recess, Rodriguez signed the plea agreement and the court
conducted the Rule 11 colloquy.
ANALYSIS
2
Although a district court may reject a plea agreement and express its
reasons for doing so, Rule 11(e)(1) is clear in its prohibition against “all forms of
judicial participation in or interference with the plea negotiation process.”3 The
reasons for this bright line rule have been expressed in a number of cases decided
by this court. “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 impartialilty. By encouraging a particular agreement, the judge may feel
personally involved, and thus, resent the defendant’s rejection of his advice. Third,
2
Fed. R. Crim. P. 11(e)(4).
3
United States v. Adams, 634 F.2d 830, 835 (5th Cir. 1981).
5
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 the negotiations.”4
It is manifest that the cited trial court statements exerted pressure on
Rodriguez to accept the plea agreement that had been negotiated with the
government. The judge discussed the probable consequences of each decision, and
when Rodriguez indicated that he might want to go to trial, she asked whether he
was “sure [he] want[ed] to do that.” She indicated a belief that if Rodriguez opted
for a trial, he likely would be found guilty.5 In addition, the judge told Rodriguez
that a sentencing enhancement filed by the government could not be withdrawn,
despite the absence of any legal authority for this proposition. Any of these
statements would have been sufficient to put pressure on Rodriguez. Even absent
these statements there was other pressure present because pressure is inherent in
any involvement by a judge in the plea negotiation process.6
4
United States v. Daigle, 63 F.3d 346 (5th Cir. 1995) (citations omitted). See also
United States v. Miles, 10 F.3d 1135 (5th Cir. 1993).
5
This was the clear implication from the judge’s statement that, “[r]ight now he’s
looking at five years minimum and in about 30 minutes, he’s going to be looking at ten years
minimum. That’s all we know for sure. He’s going to get the higher of the mandatory
minimums under the guidelines.”
6
Miles, 10 F.3d 1135 (“Indeed, the pressure inherent in judicial participation would
seem to be reason enough to reverse a conviction when the defendant accedes to the plea
6
The government argues that even if the court exerted pressure on Rodriguez,
the judge did not “participate” in the plea negotiations. Participation in the Rule
11 sense, the government would have us believe, is limited to the several discrete
categories of factual circumstances where the courts have previously found it,
namely cases where the court injected terms into the agreement,7 changed the terms
of the agreement,8 or discussed probable sentences.9 We reject such a narrow view.
Rule 11 and its interpretive case law unmistakably prohibit all forms of
participation. In Miles we noted that judicial involvement in the plea negotiation
process is to be strictly limited to rejection of the agreement and an explanation of
the rejection.10 Even if we were to limit the scope of this rule to particular classes,
the class of cases in which a defendant is pressured by a judge to accept a plea
agreement would certainly be among them, for this is the root evil that Rule 11 is
designed to combat.11
suggested by the district court.”)
7
United States v. Barrett, 982 F.2d 193 (6th Cir. 1992).
8
Miles, 10 F.3d 1135.
9
Daigle, 63 F.3d 346.
10
Miles, 10 F.3d 1135.
11
Barrett, 982 F.2d at 194 (“The primary reason for Rule 11 is that a judge’s
participation in plea negotiations is inherently coercive”); United States v. Bruce, 976 F.2d
552, 558 (9th Cir. 1992) (“judicial involvement in plea negotiations inevitably carries with
7
Next, the government argues that the judge’s comments did not violate Rule
11 because they were made in open court after a plea agreement had been reached.
This is factually incorrect. An agreement had not been reached between Rodriguez
and the government. Rodriguez had not consented to the agreement in court and
had not yet entered a plea of guilty. The cited portions of the transcript from the
guilty plea hearing reflect that Rodriguez was undecided as to whether he wanted
to accept the plea agreement negotiated by his attorney. At the time, the negotiated
plea was merely a proposed agreement. In addition, Miles rejected the notion that
a judge has a free hand to participate in plea negotiations once a proposed
agreement has been disclosed in open court. Appropriate discussion of a plea
agreement properly presented to the judge is limited to exploration of the
agreement in order to determine whether it is voluntary and just.12 Simply stated,
Rule 11 does not allow a defendant to be cajoled into accepting a plea package
brokered by the government and counsel for the defendant.
it the high and unacceptable risk of coercing a defendant to accept the proposed agreement”).
12
The government attempts to draw support from United States v. Crowell, 60 F.3d
199 (5th Cir. 1995). In fact, Crowell was decided based on precisely the same conclusions
we draw here. In Crowell, we held first that the judge was permitted to comment on an
agreement that had been accepted by the defendant and pursuant to which a guilty plea had
been entered, but that he was not permitted to comment on a subsequent agreement before
it became final. We then held that the judge’s comments with respect to the final agreement,
because they were limited to an evaluation of the agreement, did not violate Rule 11.
8
Under Rule 11(h), all allegations of Rule 11 deficiencies must be reviewed
for harmless error.13 A Rule 11 error is harmless unless it was a “material factor
affecting the defendant’s decision to plead guilty.”14 We have previously stated,
however, that it is difficult to imagine a situation in which the court would find a
judge’s participation in the plea negotiation process to be harmless given the
inherent pressure placed on the defendant.15 Further, harmless error review in this
context is “necessarily heightened by the alacrity with which this court and others
have upheld the prohibition against judicial participation in plea negotiations.” 16
The judge à quo, through participation and the particular comments directed to
Rodriguez, exerted pressure on him to accept the plea agreement. We do not and
cannot know whether Rodriguez would have accepted the plea agreement absent
13
United States v. Johnson, 1 F.3d 296 (5th Cir. 1993) (en banc).
14
Daigle, 63 F.3d at 349.
15
Miles, 10 F.3d 1135. The government argues that the error in Miles was found not
to be harmless only because the court was unable to discern what agreement the defendant
would have made had the court not participated. Because Rodriguez had already negotiated
a plea with the government, the argument continues, we know exactly what agreement would
have resulted in this case. But the government ignores what we do not know - whether
Rodriguez would have entered the agreement at all absent the judge’s involvement. This
argument is merely a restatement of the government’s argument that only certain types of
participation are “participation” in the Rule 11 sense. Here the government suggests that the
error is harmless because the terms of the agreement were not altered. As previously noted,
however, Rule 11 applies to all forms of participation.
16
Miles, 10 F.3d at 1141.
9
participation by the court. We cannot, therefore, conclude that the error was
harmless.
In reaching this conclusion, we may not consider the mitigating effect of the
corrective action taken by the judge in recessing the proceedings so that Rodriguez
could speak to his attorney. “Rule 11 is intended totally to eliminate the pressures
emanating from judicial involvement in the plea bargaining process....”17 Once the
judge placed pressures on Rodriguez, their impact could not be so readily
alleviated. The clear implication of the judge’s statements at the pretrial hearing
was that the judge desired a plea. It is reasonable to doubt that any amount of
explanation from Rodriguez’s attorney could have cured the impression likely left
in Rodriguez’s mind that “refusal to accept the judge’s preferred disposition would
be punished.”18 In short, we must conclude that the coercion that results from
judicial participation so corrodes the plea bargaining process that no amount of
corrective procedures may neutralize it.
For these reasons, Rodriguez’s conviction and judgment must be vacated and
the case remanded to the district court with instructions that Rodriguez be allowed
to withdraw his guilty plea. The chief district judge is directed to reassign this
17
United States v. Werker, 535 F.2d 198 (2nd Cir. 1976).
18
Barrett, 982 F.2d at 194.
10
case.
11