UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4418
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER STEWART WILSON, a/k/a Chris,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-cr-00353-BO-1)
Argued: October 29, 2015 Decided: December 16, 2015
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed in part and vacated and remanded by unpublished per
curiam opinion.
ARGUED: James C. White, LAW OFFICE OF JAMES C. WHITE, P.C.,
Chapel Hill, North Carolina, for Appellant. Phillip Anthony
Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Michelle M. Walker, LAW
OFFICE OF JAMES C. WHITE, P.C., Chapel Hill, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In November 2011, without a warrant, police surreptitiously
placed a GPS tracker on a car belonging to Christopher Wilson, a
“person of interest” in several robberies. Information gathered
from the GPS tracker led to Wilson’s arrest for a series of
robberies. A federal grand jury subsequently indicted Wilson on
one count of conspiracy to interfere with commerce by threats
and violence, as well as multiple counts of interference with
commerce by threats and violence, possessing a firearm in
furtherance of a crime of violence, bank robbery, and aiding and
abetting these offenses.
Wilson moved to suppress the evidence resulting from the
warrantless use of the GPS tracker. He argued that United
States v. Jones, 132 S. Ct. 945 (2012), decided after police
placed the tracker on his car, rendered the search illegal. The
district court denied the motion to suppress, reasoning inter
alia that the good-faith exception to the exclusionary rule made
the evidence obtained in the search admissible.
Wilson then signed a plea agreement. In it, he pled guilty
to some of the counts in the indictment as well as two counts
added in a superseding criminal information, which the
Government filed as part of the plea agreement. However, at
Wilson’s Rule 11 hearing, his counsel notified the court that
Wilson no longer wanted to agree to the negotiated plea.
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In response, the district court strongly and repeatedly
urged Wilson to plead guilty pursuant to the agreement. The
judge opined that Wilson’s experience in state court “may be
giving [him] a false sense of security,” and that this was “a
situation where someone has no comprehension of how deep the
hole is.” The court addressed Wilson directly, asking “What’s
your problem? I mean, you are facing an ocean full of time and
. . . you think you are going to get out? You are not going to
get out. I mean, what’s your problem?” The court described the
negative results of going to trial in various ways:
[N]o one is going to let you, unless you insist,
testify because you are an armed robber and that’s
your career . . . these other three guys, who are your
allies, are going to line up to get Rule 35’s and get
out of jail, and they’re going to testify against you
and you are going to be hung out with whatever it is,
a hundred year sentence.
The judge also told Wilson that, if convicted at trial, “[he]
[would] be gone forever,” and suggested that he would die in
prison.
Wilson repeatedly told the court that he had thought his
decision through and did not want to agree to the negotiated
plea. When the district court asked Wilson if he had thought
through the consequences of forgoing the plea deal and going to
trial, Wilson replied, “Yes, sir.” Instead of permitting Wilson
to make this choice, the court continued the hearing for two
3
weeks so that Wilson could “take a cooling off period” and
“decide[] whether or not this is a bad deal.”
Ten days later, Wilson’s counsel filed a motion to withdraw
as counsel because of a “breakdown of the attorney-client
relationship,” which the court granted. Four months later,
after Wilson had been appointed new counsel, the district court
conducted the continued Rule 11 hearing. Due to equipment
failure, no transcript of this hearing exists. Pursuant to
Federal Rule of Appellate Procedure 10(c), the district court
approved a statement of the proceedings submitted by the
parties.
The approved (but extremely brief) statement describing
this second hearing does not indicate that the court informed
Wilson of his right to plead not guilty, his right to a jury
trial, or several of the other requirements of the Rule 11
colloquy. Notably, the statement does not indicate that the
judge ascertained whether Wilson’s plea was voluntary. While
the statement asserts that Wilson’s counsel “recalls that the
Appellant acknowledged that he understood the terms of the plea
agreement and appeal waiver,” it also states that Wilson himself
“does not recall being informed of or acknowledging that he
understood the terms of the plea agreement or appeal waiver.”
The record contains no affidavits from any of the individuals
actually present at the hearing.
4
At this second hearing, Wilson pleaded guilty to four
counts of bank robbery and conspiracy to commit bank robbery and
possessing a firearm as a felon. According to the Government’s
statements at oral argument, this plea agreement differed from
the original plea agreement in that it contained two fewer
counts of bank robbery. After the district court sentenced
Wilson to 293 months’ imprisonment, he timely noted this appeal,
in which he argues that the trial court’s participation in his
plea discussion constituted plain error under Rule 11(c) and so
requires that we vacate his plea. *
Rule 11(c) provides that “[a]n attorney for the government
and the defendant’s attorney . . . may discuss and reach a plea
agreement,” but “[t]he court must not participate in these
discussions.” Fed. R. Crim. P. 11(c)(1). The prohibition on
judicial involvement furthers “three principal interests: it
diminishes the possibility of judicial coercion of a guilty
plea; it protects against unfairness and partiality in the
judicial process; and it eliminates the misleading impression
that the judge is an advocate for the agreement rather than a
*
Wilson also initially appealed the denial of his
suppression motion. However, this court has already concluded
that the good-faith exception does indeed render admissible
evidence obtained by warrantless GPS trackers prior to Jones.
See United States v. Stephens, 764 F.3d 327, 338 (4th Cir.
2014). We therefore affirm the district court’s denial of
Wilson’s suppression motion.
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neutral arbiter.” United States v. Bradley, 455 F.3d 453, 460
(4th Cir. 2006) (quoting United States v. Cannady, 283 F.3d 641,
644–45 (4th Cir. 2002)) (internal quotation marks omitted).
Because Wilson did not object to the judge’s involvement
during the plea discussions, we review his claim under the
rigorous plain error standard. See United States v. Sanya, 774
F.3d 812, 815 (4th Cir. 2014). Wilson must establish that “(1)
the asserted violation of Rule 11(c)(1) is error, (2) the error
is plain, and (3) the error affected [his] substantial rights.”
Bradley, 455 F.3d at 461. To establish that the error affected
his substantial rights, Wilson must show “a reasonable
probability that, but for the error, he would not have entered
the plea.” United States v. Davila (Davila I), 133 S. Ct. 2139,
2147 (2013). If these three conditions are met, we can exercise
our “discretion to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Bradley, 455 F.3d at 461.
The Government rightly concedes that the district court’s
participation in Wilson’s plea discussions violated Rule
11(c)(1) and that this error was plain. Thus, we need only
consider the third and fourth prongs of plain error review:
whether the error affected Wilson’s substantial rights and
whether it seriously affected the integrity of judicial
proceedings. Because the record lacks any indication that
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Wilson’s eventual guilty plea was voluntary, we conclude that
Wilson has satisfied both prongs.
At the initial Rule 11 hearing, the district court strongly
urged Wilson to agree to the negotiated plea deal. The judge
commented on the strength of the Government’s evidence,
questioned Wilson’s reasons for proceeding to trial, and
criticized Wilson’s rejection of the plea agreement. Thus, this
clearly “is not a case involving a single or even a few brief
remarks by the court.” Braxton, 784 F.3d at 243. Nor were the
remarks impartial, as in Cannady, 283 F.3d at 645, where the
judge “never suggested that Cannady should plead guilty” but
only “requir[ed] Cannady to make a decision -- either plead
guilty or go to trial.” Instead, in response to Wilson’s
rejection of the plea deal, the district court rebuked him and
ended the hearing. Although the record indicates that Wilson
was calm and cogent at the hearing, the judge expressly said
Wilson needed a “cooling off period” -- that is, a period during
which Wilson would change his mind and accept the plea deal.
When the second hearing occurred months later, Wilson did accept
a plea deal.
Importantly, in circumstances that are hopefully unique to
this case, nothing in the record establishes that Wilson’s
ultimate guilty plea was voluntary. Although a defendant’s
assertion of voluntariness during the Rule 11 colloquy will not
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by itself “dispel [our] concern” that judicial participation
rendered a plea involuntary, Braxton, 784 F.3d at 245, such an
assertion does inform our inquiry. See, e.g., Davila I, 133
S. Ct. at 2149-50. In this case, we do not have the transcript
from Wilson’s second Rule 11 hearing, and the cursory statement
of the proceedings leaves much to be desired.
When forced by equipment failure to generate the record
themselves, the parties submitted a single paragraph describing
the hearing. The statement does not indicate whether a proper
Rule 11 colloquy took place, let alone whether Wilson
voluntarily entered his plea. One of the few specifics it does
relate is that Wilson does not remember being informed of the
terms of the plea agreement at the hearing. The hearing, as
described by the parties, did nothing to combat the effect of
the earlier Rule 11 violation, and leaves substantial doubt as
to the voluntariness of the ultimate plea. Cf. Braxton, 784
F.3d at 245 (“[T]he plea colloquy in this case only exacerbates
the [Rule 11(c)] error.”).
The record thus shows that Wilson appeared at his first
Rule 11 hearing adamant about refusing the Government’s deal and
prepared to do so. Instead of allowing him this choice, the
judge berated him and stopped the hearing. When Wilson appeared
at the second hearing, he changed his mind under unknown
conditions and potentially without the benefit of a proper Rule
8
11 colloquy. For these reasons, we conclude that Wilson has
demonstrated a reasonable probability that, absent the district
court’s involvement, he would not have pled guilty.
We thus turn to the last inquiry: whether refusing to
notice this plain error would “seriously affect the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 736 (1993) (quoting United States
v. Atkinson, 297 U.S. 157, 160 (1936)) (internal quotation marks
omitted).
This court has recognized that “failure to notice [] [a]
clear Rule 11 error would almost inevitably seriously affect the
fairness and integrity of judicial proceedings.” Bradley, 455
F.3d at 463. This is unsurprising, “given the critical
interests served by the prohibition [on judicial involvement in
plea negotiations],” including “preserving the judge’s
impartiality throughout the proceedings and preventing the
public from gaining the misleading impression that a judge is
anything less than a neutral arbiter.” Id. (internal quotation
marks omitted). Indeed, we have found no cases where a Rule
11(c) violation that affected substantial rights did not also
affect the fairness of judicial proceedings. The instant case
does not present an exception to the “general rule,” Braxton,
784 F.3d at 244. Accordingly, we vacate the judgment and remand
the case for further proceedings.
9
As is our usual practice, we remand the case for assignment
to a different district judge. See id. at 247; Bradley, 455
F.3d at 465. We do not doubt that the original judge would
preside fairly and impartially over this case. However,
“[r]egardless 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.
AFFIRMED IN PART AND VACATED AND REMANDED
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