FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10185
Plaintiff-Appellee,
D.C. No.
v.
4:09-cr-02732-
AMEYALLI SUMARA ESCAMILLA- JMR-1
ROJAS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
Argued and Submitted
February 16, 2011—San Francisco, California
Filed May 12, 2011
Before: Diarmuid F. O’Scannlain and Stephen S. Trott,
Circuit Judges, and Tena Campbell, District Judge.*
Opinion by Judge O’Scannlain
*The Honorable Tena Campbell, Senior United States District Judge for
the District of Utah, sitting by designation.
6247
UNITED STATES v. ESCAMILLA-ROJAS 6251
COUNSEL
Jason M. Hannan, Assistant Federal Public Defender, District
of Arizona, Tucson, Arizona, argued the cause for the appel-
lant and filed briefs. With him on the briefs was Jon M.
Sands, Federal Public Defender, District of Arizona, Tucson,
Arizona.
Robert L. Miskell, Assistant United States Attorney, District
of Arizona, Tucson, Arizona, argued the cause for the appel-
lee and filed a brief. With him on the brief were Dennis K.
Burke, United States Attorney, and Christina M. Cabanillas,
Appellate Chief, District of Arizona, Tucson, Arizona.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the taking of guilty pleas at a
large group plea hearing violated a criminal defendant’s rights
protected by Federal Rule of Criminal Procedure 11 and the
Fifth and Sixth Amendments.
I
A
On December 2, 2009, Ameyalli Escamilla-Rojas
(“Escamilla”) was arrested and charged with illegal entry into
the United States, pursuant to 8 U.S.C. § 1325. A citizen of
Mexico, Escamilla was apprehended near Sasabe, Arizona,
and was charged with having entered the United States at a
time and place other than that designated by immigration offi-
cials. The next day, she appeared at a group plea hearing in
the United States District Court for the District of Arizona, as
part of the district’s “Operation Streamline.”
6252 UNITED STATES v. ESCAMILLA-ROJAS
B
As we have previously explained, “[t]o accommodate the
enormous number of prosecutions for illegal entry into the
United States, the district court for the District of Arizona
(Tucson) has adopted a procedure for the taking of pleas en
masse,” known as “Operation Streamline.” United States v.
Roblero-Solis, 588 F.3d 692, 693 (9th Cir. 2009). Under the
procedure, a magistrate judge is assigned to preside over a
group hearing of fifty to seventy defendants charged with
petty misdemeanor violations of illegal entry. The hearing
combines the defendants’ initial appearances, guilty pleas,
and sentencing hearings into one proceeding.
Escamilla appeared before a magistrate judge, along with
sixty-six other defendants who had been charged with illegal
entry.1 Fifteen different attorneys represented the sixty-seven
defendants, with each attorney representing between four and
six defendants. Escamilla’s attorney represented a total of
four defendants, and because the defendants sat in order of
case number, he was unable to stand near all of his clients at
once. Escamilla, like most other defendants, listened to the
proceedings through headphones that broadcast the court’s
Spanish-language translation.
After roll call, the magistrate judge introduced himself to
the defendants collectively and instructed them to stand and
get his attention if they experienced any difficulty with their
headphones. He then explained to the defendants how the
hearing would proceed: first he would address them collec-
tively, and thereafter he would call them up individually to
speak about that address and about their pleas. He advised the
defendants to “listen carefully” and again to “let [him] know
1
The hearing originally included seventy defendants, but before roll
call, the government dismissed the complaints against three defendants
who were having difficulty understanding the court’s Spanish-language
interpreter.
UNITED STATES v. ESCAMILLA-ROJAS 6253
if something happens to your headphones.” The magistrate
judge proceeded to inform the defendants collectively of their
rights, their charges, the elements of the offense, and the con-
sequences of pleading guilty. Throughout his advisement, he
repeatedly asked the defendants to stand if they could not hear
or understand what he was saying.
After the general address, the magistrate judge called the
defendants individually to the front of the court room. There,
each defendant was asked individually whether he understood
the information that had earlier been conveyed to the group as
a whole. Specifically, each defendant was asked whether he
(1) understood the crime with which he was charged; (2)
understood the elements of such offense; (3) understood his
rights, namely the right to proceed to trial and the right to
have an attorney; and (4) understood the maximum possible
penalty he faced. Each defendant then stated whether he
wished to give up the described rights by pleading guilty to
his charge and answered whether the alleged factual basis for
his charge was true.
When she was called to the front, Escamilla individually
affirmed that she understood her rights and pleaded guilty to
the charge of illegal entry. She was sentenced to time served
and ordered to be returned to Mexico.
C
Escamilla appealed her conviction to the district court,
arguing that the group hearing violated Federal Rule of Crimi-
nal Procedure 11 and her constitutional rights to due process
and assistance of counsel. The district court rejected her argu-
ments and affirmed the judgment against her, concluding that
“the individual questioning of [Escamilla] . . . sufficiently
closed the loop as far as what was required to make certain
that [she] did knowingly, intelligently, and voluntarily waive
her rights before entering a plea of guilty.”
6254 UNITED STATES v. ESCAMILLA-ROJAS
Escamilla timely appeals to this court and raises the same
challenges that she presented to the district court.
II
Escamilla first argues that the group hearing violated Fed-
eral Rule of Criminal Procedure 11 (“Rule 11”). She asserts
both that the group hearing violated Rule 11(b)(1)’s require-
ment that the court “personally address” her and that the court
failed to ensure that her plea was given voluntarily and with-
out coercion, as required under Rule 11(b)(2). We address
both arguments in turn.
A
[1] Rule 11(b)(1) states that before a court may accept a
plea of guilty or nolo contendere from a criminal defendant,
it must “address the defendant personally in open court.” Fed.
R. Crim. P. 11(b)(1) (emphasis added). “During this address,
the court must inform the defendant of, and determine that the
defendant understands” his rights, the nature of his charges,
the possible penalties he faces, and the effect of his plea. Id.
Escamilla contends that Rule 11’s “personally address” provi-
sion required the court to inform her individually of her rights
and to determine that she understood them. She argues the
court’s group advisement failed to do so.
1
[2] The adverb “personally,” as used in Rule 11, indicates
that “the judge’s speech is to be person to person.” Roblero-
Solis, 588 F.3d at 700. As the advisory committee’s note
explains, this language was added to the rule to clarify that the
court must address the defendant, rather than his counsel, in
person. See Fed. R. Crim. P. 11, advisory committee’s note
(1966 amendment). Although, the “rule speaks only of the
defendant in the singular,” it is not “rigid,” and we have pre-
viously held that it does not strictly require the court to
UNITED STATES v. ESCAMILLA-ROJAS 6255
address each defendant individually. Roblero-Solis, 588 F.3d
at 700 (citing cases where small groups of co-conspirators
have been addressed at once).
Nevertheless, in United States v. Roblero-Solis, we rejected
the idea “that the number of plea-takers may be indefinitely
expanded without violation of Rule 11.” Id. In Roblero-Solis,
a magistrate judge both advised a group of forty-seven defen-
dants en masse of their rights and questioned the defendants
en masse to determine whether they understood the advise-
ment. See id. at 694-96. There, the transcript denoted only
“general ‘yes’ ” answers to the magistrate judge’s questions,
and the only question posed to the defendants individually
was how each defendant would plead to his charge. Id. We
held that such procedure violated Rule 11(b)(1), because “no
judge, however alert, could tell whether every single person
in a group of 47 or 50 affirmatively answered her questions
when the answers were taken at the same time.” Id. at 700.
Instead, the court must erect a more individualized procedure
“sufficient to show that each defendant pleaded voluntarily”
and understood the consequences of such plea. Id. (emphasis
added).2
[3] Here, as in Roblero-Solis, the court advised the defen-
dants en masse of their rights and of the consequences of their
charges. As our analysis in Roblero-Solis made clear, how-
ever, such group advisement alone does not constitute Rule 11
error. Rather, we look also to the court’s questioning of the
defendants to determine whether the court ensured “personal-
ly” that each defendant understood the rights he was waiving
by pleading guilty. The hearing in this case was far more indi-
vidualized than that we disapproved in Roblero-Solis. Stating
that he “intend[ed] to take [Roblero-Solis] to heart and apply
it as best” he could, the magistrate judge extensively ques-
2
We nevertheless affirmed the convictions in Roblero-Solis, concluding
that the defendants in that case had failed to demonstrate that the Rule 11
deficiencies amounted to plain error. See Roblero-Solis, 588 F.3d at 701.
6256 UNITED STATES v. ESCAMILLA-ROJAS
tioned each defendant regarding his understanding of the
rights that had been earlier described to the group. Specifi-
cally, he individually asked each defendant: (1) whether he
understood the charge against him; (2) whether he understood
the elements of the charge; (3) whether he understood the
maximum possible penalty he was facing; (4) whether he
understood the rights that had been described; (5) whether he
wished to give up those rights by pleading guilty; (6) whether
he is a citizen of Mexico; (7) whether he entered the United
States at the place and time alleged by the government; and
(8) how he chose to plead. The transcript includes specific
and individual answers to these questions for each defendant,
including Escamilla. Unlike in Roblero-Solis, the record
leaves no doubt that Escamilla “affirmatively answered [the
court’s] questions.” Id.
[4] In general, this process of a collective advisement fol-
lowed by individual questioning may be sufficient to deter-
mine “personally” that each defendant understands his rights
before pleading guilty. In this case, however, Escamilla was
not individually questioned until nearly two hours after the
magistrate judge began his group advisement. Having listened
to the entire proceedings through a translator, Escamilla may
have found it quite difficult to recall the court’s full advise-
ment of rights over such a long gap of time. Under these diffi-
cult circumstances, we are not persuaded that the individual
questioning of Escamilla alone was enough to render the
court’s general advisement sufficiently “personal.”3
2
Although the procedure in this case did not strictly comply
3
We do not express a view on whether a similar procedure would satisfy
Rule 11(b)(1) in another case. If, for example, the court had followed each
of its general advisements immediately with individual questioning or if
it had otherwise supplemented its general advisement with a written form,
our concerns might be alleviated.
UNITED STATES v. ESCAMILLA-ROJAS 6257
with Rule 11(b)(1), any “variance from the requirements of
[Rule 11] is harmless error if it does not affect substantial
rights.” Fed. R. Crim. P. 11(h). Because Escamilla’s counsel
preserved an objection to the group advisement, the govern-
ment bears the burden of proving that any Rule 11(b)(1) error
was harmless. United States v. Dominguez Benitez, 542 U.S.
74, 81-82 (2004). In other words, if the government shows
that Escamilla would have pleaded guilty even without the
Rule 11 error, we must affirm. See id. at 83.
[5] Although Escamilla pleaded guilty to her charge
roughly two hours after receiving the group advisement, the
record is replete with evidence that she nevertheless entered
her plea with full knowledge of its consequences. Indeed,
Escamilla explicitly stated that she understood her rights, the
charges against her, and the consequences of pleading guilty.
These statements made “contemporaneously with [her] plea
should be accorded great weight,” even if they alone are not
enough to demonstrate her understanding. United States v.
Anderson, 993 F.2d 1435, 1438 (9th Cir. 1993) (internal quo-
tation marks omitted). Moreover, Escamilla never indicated
that she had any questions about the group advisement—
either by standing during such advisement, or by so indicating
in her individual colloquy with the magistrate judge. Indeed,
Escamilla was informed of her rights and charges not only by
the court, but also by her experienced defense counsel, who
stated on the record that he had met with Escamilla and fully
informed her of the proceedings. Escamilla’s counsel even
expressly affirmed his belief that she had entered her plea
knowingly and voluntarily. And, perhaps most importantly,
Escamilla does not now allege that she would have pleaded
differently if the magistrate judge had advised her individu-
ally rather than as part of a group.
[6] Ultimately, Rule 11 “exists to ensure that guilty pleas
are knowing and voluntary.” United States v. Pena, 314 F.3d
1152, 1157 (9th Cir. 2003) (internal quotation marks omitted).
In light of the full record, we are satisfied that Escamilla’s
6258 UNITED STATES v. ESCAMILLA-ROJAS
guilty plea was so made and that her plea would not have
changed if the magistrate judge had indeed conducted sixty-
seven separate advisements of rights. Any Rule 11(b)(1) error
was therefore harmless.
B
[7] Escamilla argues also that the proceedings violated
Rule 11(b)(2). Under such rule the court must “address the
defendant personally in open court and determine that the plea
is voluntary and did not result from force, threats, or promises
(other than promises in a plea agreement).” Fed. R. Crim. P.
11(b)(2). Unquestionably, the court failed so to ask Escamilla
whether her plea was voluntary. But Escamilla’s counsel did
not raise an objection that such failure violated Rule 11(b)(2).4
We thus review Escamilla’s claim that the plea proceeding
violated Rule 11(b)(2) for plain error. See United States v.
Santiago, 466 F.3d 801, 803 (9th Cir. 2006). Under the plain
error standard, Escamilla “ ‘must show a reasonable probabil-
ity that, but for the error, [she] would not have entered the
plea.’ ” Roblero-Solis, 588 F.3d at 701 (quoting Dominguez
Benitez, 542 U.S. at 83). To vacate Escamilla’s plea, we must
be satisfied, as “informed by the entire record, that the proba-
bility of a different result is sufficient to undermine confi-
dence in the outcome of the proceeding.” Dominguez Benitez,
542 U.S. at 83 (internal quotation marks omitted).
[8] Escamilla’s claim falls far short of this standard, as she
points to nothing in the record suggesting that she involuntar-
4
Escamilla argues that such an objection is subsumed into her counsel’s
general Rule 11 objections. As is clear from the record, however, her
counsel’s Rule 11 objections were exclusively directed towards the en
masse nature of the group advisement and not towards the court’s failure
to address any substantive area required by the rule, such as Rule
11(b)(2)’s voluntariness provision. Moreover, any possible ambiguity is
eradicated by counsel’s own statement that he was satisfied that Escamilla
entered her plea voluntarily. The record does not reflect a preserved objec-
tion on this issue.
UNITED STATES v. ESCAMILLA-ROJAS 6259
ily entered her guilty plea. Indeed, Escamilla’s own counsel
stated that he believed that Escamilla had entered her plea
voluntarily. As we have discussed, the record reflects that
Escamilla’s plea was fully informed, and it certainly does not
demonstrate that such plea would have changed if the magis-
trate judge had expressly inquired into the voluntariness of
her decision. Although the court failed to comply strictly with
Rule 11(b)(2), such failure was not plain error.
III
[9] Escamilla next argues that the group plea hearing vio-
lated her Fifth Amendment right to due process. Due process
requires a defendant’s guilty plea to be “equally voluntary and
knowing,” and such plea must reflect “an intentional relin-
quishment or abandonment” of his privilege against self
incrimination, his right to trial by jury, and his right to con-
front his accusers. McCarthy v. United States, 394 U.S. 459,
466 (1969) (internal quotation marks omitted); accord Boykin
v. Alabama, 395 U.S. 238, 242-44 (1969). Escamilla argues
that the group procedure prevented the court from being able
to ascertain whether she—or any other individual defendant—
knowingly and willfully waived such rights.
[10] Contrary to Escamilla’s suggestion, the right to due
process does not impose strict requirements on the mechanics
of plea proceedings. Rather, the right simply requires the
record to “disclose that a defendant who pleaded guilty
entered his plea understandingly and voluntarily.” Brady v.
United States, 397 U.S. 742, 747 n.4 (1970). As discussed,
here the hearing transcript patently demonstrates that
Escamilla was advised of her trial rights, and that thereafter
she affirmatively and individually stated that she understood
and chose to waive such rights.5 She then individually pleaded
5
Contrary to Escamilla’s contention, she did not silently waive her
rights by failing to stand during the court’s general advisement. Rather,
Escamilla expressly waived her rights (and asserted her understanding of
such rights) during her individual plea colloquy with the magistrate judge.
6260 UNITED STATES v. ESCAMILLA-ROJAS
guilty. The record does not suggest that she misunderstood
her rights or involuntarily entered her plea, and there is no
question that this procedure complied with due process.
IV
Finally, Escamilla claims that she was denied her Sixth
Amendment right to counsel because she was unable to stand
next to her counsel throughout the entire plea hearing. Specif-
ically, Escamilla argues that she was deprived of such right
because “[d]uring the en masse address, counsel . . . [was]
required to sit away and apart from any particular one of his
clients precisely because he cannot sit next to all of his cli-
ents, simultaneously.” Notably, Escamilla does not assert
when or for how long she was separated from her counsel,
only that at least some of the defendants had to be.
[11] Regardless, counsel’s temporary separation, of itself,
does not amount to a deprivation of Escamilla’s Sixth
Amendment rights. The right to counsel exists “not for its
own sake, but because of the effect it has on the ability of the
accused to receive a fair trial.” United States v. Cronic, 466
U.S. 648, 658 (1984). Without “some effect . . . on the reli-
ability of the trial process, the Sixth Amendment guarantee is
generally not implicated.” Id. In other words, unless counsel’s
temporary separation had some “probable effect upon the
trial’s outcome,” it did “not establish a constitutional viola-
tion.” United States v. Ross, 338 F.3d 1054, 1056-57 (9th Cir.
2003) (per curiam) (internal quotation marks omitted).
[12] Despite Escamilla’s insistence that her counsel’s tem-
porary separation prevented her from receiving his assistance,
the record shows that she both received such assistance and
fully understood the consequences of her guilty plea. Counsel
acknowledged that he had adequate time to meet with
Escamilla prior to the hearing. And counsel stood beside
Escamilla when she individually stated that she understood
her rights and entered her guilty plea. Moreover, although
UNITED STATES v. ESCAMILLA-ROJAS 6261
counsel actively represented Escamilla and consistently made
objections on her behalf, he did not seek additional time to
confer with her.
Altogether, Escamilla had adequate—even superior—
representation by counsel. Escamilla thus fails to “demon-
strate a reasonable probability that . . . the result of the pro-
ceeding would have been different,” Mickens v. Taylor, 535
U.S. 162, 166 (2002) (internal quotation marks omitted), if
counsel had not been temporarily separated from her during
the group advisement. Accordingly, the plea hearing did not
deprive Escamilla of her Sixth Amendment right to counsel.
AFFIRMED.