FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-10230
v. D.C. No.
4:09-cr-02643-
ODI ERELDI DIAZ-RAMIREZ, CKJ-1
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-10231
Plaintiff-Appellee, D.C. No.
v. 4:09-cr-02730-
ISMAEL FIGUEROA-ROMERO, JMR-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
John M. Roll, Chief District Judge, Presiding
Argued and Submitted
February 16, 2011—San Francisco, California
Filed May 23, 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.
6787
UNITED STATES v. DIAZ-RAMIREZ 6789
COUNSEL
Jason M. Hannan, Assistant Federal Public Defender, District
of Arizona, Tucson, Arizona, argued the cause and filed the
briefs for the appellants. With him on the briefs was Jon M.
Sands, Federal Public Defender, District of Arizona.
Bruce M. Ferg, Assistant United States Attorney, District of
Arizona, Tuscon Arizona, argued the cause and filed a brief
for the appellee. With him on the briefs were Dennis K.
Burke, United States Attorney, District of Arizona, and Chris-
tina M. Cabanillas, Appellate Chief, District of Arizona.
6790 UNITED STATES v. DIAZ-RAMIREZ
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the taking of guilty pleas at a
large group plea hearing violated the Fifth Amendment right
to due process.
I
A
On November 23, 2009, Odi Ereldi Diaz-Ramirez (“Diaz”)
and Ismael Figueroa-Romero (“Figueroa”) were arrested and
charged with illegal entry into the United States, pursuant to
8 U.S.C. § 1325. Both Mexican citizens, Diaz and Figueroa
were apprehended near Sasabe, Arizona, and were charged
with having entered the United States at a time and place
other than that designated by immigration officials. The next
day, they 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.”
B
1
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.
UNITED STATES v. DIAZ-RAMIREZ 6791
Here, Diaz and Figueroa appeared before Magistrate Judge
Bernardo P. Velasco along with sixty-five others facing simi-
lar charges.1 Seventeen different attorneys represented the
sixty-seven defendants, with most attorneys representing
between four and six defendants. Diaz and Figueroa, along
with one other defendant, were represented by the same assis-
tant federal public defender at the hearing. Most defendants,
including Diaz and Figueroa, listened to the proceedings
through headphones that broadcast the court’s Spanish-
language translation of the proceedings.
After roll call, Judge Velasco introduced himself to the
group of defendants collectively. He instructed them to stand
and to get his attention if they experienced any difficulty with
their headphones or if they wished to consult with their attor-
neys. Judge Velasco explained to the defendants that he
would be “making some statements” and “asking some ques-
tions.” He instructed the defendants to answer his questions
“audibly” and not to “rely on your neighbor to answer the
questions.”
Judge Velasco proceeded to inform the defendants collec-
tively of their rights, their charges, and the consequences of
choosing to plead guilty. After each statement, Judge Velasco
asked the defendants collectively whether they understood
what he had described. In response, the record reports “Gen-
eral yes answer[s]” from the group.2 Before taking pleas,
1
Although the hearing initially included seventy defendants, the govern-
ment dismissed the charges against three defendants at the outset of the
proceedings.
2
A typical exchange between Judge Velasco and the group reads as fol-
lows:
THE COURT: If you go to trial, this means that you would
force the government to bring their witnesses into court to testify
in your presence under oath and to be cross-examined by your
attorney.
Then you could call your own witnesses and use the subpoena
power of the court to compel their attendance.
6792 UNITED STATES v. DIAZ-RAMIREZ
Judge Velasco asked for anyone who wished to have a trial
to stand. Judge Velasco then individually asked each defen-
dant how he chose to plead and whether the alleged factual
basis for his charge was true. After the pleas were taken,
Judge Velasco asked for anyone who believed that he had a
legal right to be in the United States to stand, and noted that
no one stood.
When called upon individually, Diaz and Figueroa each
pleaded guilty and affirmed the facts alleged against him.
Both were sentenced to time served and ordered to be
returned to Mexico. Neither Diaz nor Figueroa raised any
objection during the plea proceeding.
2
Diaz and Figueroa challenged their convictions in the dis-
trict court, arguing that the group hearing violated the Fifth
Amendment right to due process. The district court rejected
both challenges and affirmed the sentences imposed. Diaz and
Figueroa each filed a timely notice of appeal, and the two
appeals have now been consolidated.
II
On appeal, Diaz and Figueroa argue only that the large-
group plea proceeding violated the Fifth Amendment right to
due process. Specifically, they contend that the record “does
not disclose that [they] voluntarily and understandingly”
pleaded guilty, as required by the Supreme Court in Boykin v.
Finally, unlike this proceeding where you are answering ques-
tions, you would have a right to remain silent and it would not
be held against you if you chose not to testify.
Do each of you understand this?
THE INTERPRETER: General yes answer.
UNITED STATES v. DIAZ-RAMIREZ 6793
Alabama, 395 U.S. 238, 244 (1969) (internal quotation marks
omitted).
Diaz and Figueroa do not allege a Federal Rule of Criminal
Procedure 11 violation.
A
Diaz and Figueroa first challenge the standard of review
applicable to their claim of constitutional error. Because they
failed to raise any objection at the plea hearing, their claim
would normally be subject to plain error review. See Fed. R.
Crim. P. 52(b); United States v. Williams, 547 F.3d 1187,
1202 n.13 (9th Cir. 2008). Under such review, Diaz and
Figueroa bear the burden of demonstrating that any error was
plain on the face of the record, that it affected their substantial
rights, and that it seriously affected the fairness or integrity of
the judicial proceedings. Johnson v. United States, 520 U.S.
461, 466-67 (1997).
Diaz and Figueroa contend, however, that the specific con-
stitutional error they have claimed is not subject to plain error
review, regardless of their failure to object at the plea hearing.
Namely, they argue that under Boykin, where “the record of
a criminal conviction obtained by guilty plea contains no evi-
dence that a defendant knew of the rights he was putatively
waiving, the conviction must be reversed.” United States v.
Dominguez Benitez, 542 U.S. 74, 84 n.10 (2004) (emphasis
added) (discussing Boykin). The Supreme Court has expressed
doubt whether “such a conviction could be saved even by
overwhelming evidence that the defendant would have
pleaded guilty regardless.” Id.
But the quoted passages suggest only that a silent record of
a guilty plea is automatically reversible error. This does not
suggest that the claim that the group plea hearing was consti-
tutionally inadequate is not subject to plain-error review.
Rather, the Supreme Court has simply instructed that it is
6794 UNITED STATES v. DIAZ-RAMIREZ
plain error—and therefore reversible—if we are satisfied that
the record contains “no evidence” that Diaz’s and Figueroa’s
pleas were voluntary and intelligent. See id. (emphasis
added); see also United States ex rel. Wiggins v. Pennsylva-
nia, 430 F.2d 650, 652 (3d Cir. 1970) (describing Boykin as
an application of plain error review). So long as the record
does contain evidence that Diaz and Figueroa entered their
pleas intelligently, they bear the burden of proving that any
error in the group hearing was both plain and detrimental to
their substantial rights. Cf. Johnson, 520 U.S. at 466 (“[T]he
seriousness of the error claimed does not remove consider-
ation of it from [plain error review].”).
B
[1] As to the merits of Diaz and Figueroa’s claim, it has
“long been recognized” that a guilty plea must be both “intel-
ligent and voluntary” to satisfy due process. Brady v. United
States, 397 U.S. 742, 747 n.4 (1970). In particular, the record
“must affirmatively disclose,” id., that the defendant entered
his guilty plea with full awareness of his privilege against
self-incrimination, his right to trial by jury, and his right to
confront his accusers. Boykin, 395 U.S. at 243. “We cannot
presume a waiver of these three important federal rights from
a silent record.” Id.
1
Diaz and Figueroa contend that, because of the en masse
nature of their plea proceedings, a reviewing court cannot dis-
cern whether they actually understood their rights and intelli-
gently chose to waive them by pleading guilty. Diaz and
Figueroa argue that the district court failed to “canvas [the]
crucial legal matters” with each defendant, and that the
group’s “general yes” answers are insufficient to show that
any specific defendant in fact affirmed his understanding of
Judge Velasco’s instructions. They contend that such alleged
deficiencies are akin to the “silent” record in Boykin.
UNITED STATES v. DIAZ-RAMIREZ 6795
[2] Diaz and Figueroa rely heavily on this court’s decision
in United States v. Roblero-Solis for their argument. Shortly
after the instant plea hearing took place, we held in Roblero-
Solis that a nearly identical iteration of Operation Streamline
violated Federal Rule of Criminal Procedure 11. See 588 F.3d
at 694-700. In Roblero-Solis, as here, the magistrate informed
all defendants collectively of their rights, and solicited en
masse oral answers from the group as to whether they under-
stood such rights.3 Id. at 694-95. We held that such procedure
violated Rule 11(b)(1), because the magistrate did not “per-
sonally address” each defendant as explicitly required by the
rule. Id. at 700. We expressed particular concern over the col-
lective responses given to the magistrate’s questions: “[N]o
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. No judge
could have detected a mute response offered in the midst of
a medley of voices saying ‘Si.’ ” Id. We explained that an “in-
distinct murmur or medley of yeses” therefore could not com-
ply with Rule 11’s personal address requirement.4 Id. Diaz
and Figueroa contend that, by this same logic, we cannot tell
whether they in fact understood Judge Velasco’s instructions,
or whether they were simply drowned out by a chorus of
sixty-five others who did.
[3] Roblero-Solis, however, discussed only the require-
ments of Rule 11’s “personally address” language, and does
not speak to the much lower bar of due process. See id. at 698.
Although the “general yes” responses raise some doubt as to
whether Diaz and Figueroa each answered Judge Velasco’s
questions affirmatively, in light of the record as a whole, such
doubt does not amount to a violation of Boykin or of due pro-
3
The transcript of that hearing indicates the defendants’ responses with
the same “general ‘yes’ ” answers. See Roblero-Solis, 588 F.3d at 694-95.
4
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 588 F.3d at 701.
6796 UNITED STATES v. DIAZ-RAMIREZ
cess. In Boykin, the record did not show that the defendant
was advised of his rights at all before he entered his guilty
plea. 395 U.S. at 239. By contrast, the hearing transcript in
this case contains several indicators that each Defendant
indeed entered his plea knowingly and voluntarily.
[4] First, Diaz and Figueroa were represented by, and able
to consult with, experienced defense counsel. “[T]he constitu-
tional prerequisites of a valid plea may be satisfied where the
record accurately reflects that the nature of the charge and the
elements of the crime were explained to the defendant by his
own, competent counsel.” Bradshaw v. Stumpf, 545 U.S. 175,
183 (2005). Second, Diaz and Figueroa were expressly
advised of all relevant rights and consequences of their guilty
pleas. Judge Velasco gave all defendants the opportunity to
stand if they had any questions—and to ask for a trial—and
the record indicates that neither Diaz nor Figueroa did so.
Indeed, they suggest neither that they stood nor that Judge
Velasco could not have readily seen them if they had. Finally,
Diaz and Figueroa give no reason to doubt the record’s strong
indications that they knowingly entered their pleas, as they do
not dispute that they answered Judge Velasco’s questions affir-
matively.5
[5] Contrary to Diaz and Figueroa’s contention, we have
not construed Boykin to require individualized instruction and
waiver of a defendant’s rights akin to that required by Rule
11. See, e.g., United States v. Pricepaul, 540 F.2d 417, 425
(9th Cir. 1976) (“[T]he government . . . need not show that
each of the three Boykin rights was expressly brought to [the
defendant’s] attention and waived by him.”). Rather, “it is not
necessary that each waiver be explicit as long as the plea was
voluntary and intelligent.” United States v. Carroll, 932 F.2d
5
Moreover, Diaz and Figueroa also had the opportunity to voice any
confusion audibly during the many times that Judge Velasco asked the
group whether it understood what he had described. The transcript does
not indicate that either Diaz or Figueroa ever did.
UNITED STATES v. DIAZ-RAMIREZ 6797
823, 824-25 (9th Cir. 1991) (internal quotation marks omit-
ted). In other words, Boykin created a much more limited
requirement that the record contain some affirmative evidence
that the defendant entered his plea knowingly and willfully.
[6] The record in this case is replete with such evidence,
and the hearing transcript is far more substantial than the “si-
lent” record at issue in Boykin.
2
[7] Because we are not faced with a silent record, Diaz and
Figueroa must demonstrate that any error in the proceeding or
in the transcript was plain and affected their substantial rights.
Johnson, 520 U.S. at 466-67. Namely, they must show “a rea-
sonable probability that, but for the error, [they] would not
have entered [their] plea[s].” United States v. Borowy, 595
F.3d 1045, 1049 (9th Cir. 2010) (internal quotation marks
omitted). Because Diaz and Figueroa do not even suggest,
much less show, that they would not have pleaded guilty if the
plea hearing had been more individualized, we cannot con-
clude that there was any plain error.
AFFIRMED.