UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-5486
UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
FARICE DAIGLE, JR.
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
(February 14, 1995)
Before POLITZ, Chief Judge, GARWOOD and BENAVIDES, Circuit
Judges.
BENAVIDES, Circuit Judge:*
Pursuant to a plea bargain, Farice Daigle, Jr. (Daigle) pled
guilty to one count of possession with intent to distribute cocaine
in violation of 21 U.S.C. § 841(a)(1). He appeals, arguing, among
other things, that the trial court's participation in the plea
agreement negotiations rendered his guilty plea involuntary. We
conclude that the trial court did participate in the plea
negotiations in violation of Rule 11(e)(1) of the Federal Rules of
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
Criminal Procedure and that the error was not harmless. Finding a
reversible error, we therefore vacate Daigle's conviction and his
sentence.
I. FACTS AND PROCEDURAL HISTORY
Daigle and nine codefendants were charged by indictment with
several narcotics offenses. Daigle pled not guilty. Subsequently,
Daigle and four codefendants went to trial on a superseding
indictment. On the second morning of trial, Daigle decided to
accept the government's offer to plead guilty to one count of
possession with intent to distribute 1550 grams of cocaine in
violation of 21 U.S.C. § 841(a)(1).
Prior to the judge accepting his plea in court, the
prosecutor, Daigle, the defense attorney, and the trial judge met
in the judge's chambers (at Daigle's request) for an off-the-record
discussion regarding the plea agreement and the length of sentence.
During this discussion, the trial judge informed Daigle that he
followed the sentencing recommendation of the government
approximately 90% of the time. Daigle subsequently entered his
plea of guilty in open court.
The written plea agreement expressly provides that it is
pursuant to Rule 11(e)(1)(B), which provides that the sentencing
court is not bound by the government's sentencing recommendation.
The plea agreement further provides that the defendant agrees to
cooperate, which specifically included testifying truthfully
against his codefendants, if requested. In return, the government
agreed to: dismiss the remaining counts; not seek a sentencing
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enhancement for prior convictions; recommend (1) an "acceptance of
responsibility" reduction and (2) a sentence at the lowest end of
the guideline range. Additionally, the agreement provided that, in
its discretion, the government may file a motion requesting the
court to downwardly depart based on the "substantial assistance" of
Daigle.1 The district court, however, would have the final
decision whether to accept the government's sentencing
recommendation.
Daigle informed his codefendants of his decision to plead
guilty, and two of them pled guilty along with him. Daigle
testified against the two remaining codefendants. The government
later contended that Daigle's testimony was inconsistent with that
of the other codefendants and the physical evidence. Consequently,
the government refused to file a motion for downward departure
based on substantial assistance.
Daigle filed a motion to enforce the plea agreement, which the
court initially denied. The district court eventually held an
evidentiary hearing and determined that Daigle had provided
substantial assistance to the government. The court also
determined that, although it could not compel the government to
file a U.S.S.G. §5K1.1 motion for downward departure, it would
enforce the plea agreement based on its finding that Daigle had
substantially assisted the government. In other words, the court
1
The agreement further provided that if the government
filed a motion for downward departure based on substantial
assistance, it would recommend a sentence of 108 months. If
Daigle's cooperation was "extremely helpful," the government may
recommend a greater downward departure.
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would act as if the government had filed a motion for downward
departure. Nevertheless, the court refused to follow the
hypothetical recommendation (108 months) and instead, imposed a
sentence of 188 months.
II. WHETHER THE TRIAL JUDGE PARTICIPATED IN THE PLEA
NEGOTIATIONS IN VIOLATION OF RULE 11(e)(1).
Daigle contends that prior to entering his guilty plea, the
trial judge entered into the plea negotiations in violation of Rule
11(e)(1) of the Federal Rules of Criminal Procedure. Rule 11(e)(1)
provides that "[t]he court shall not participate in any such [plea
negotiation] discussions." Although a district court may reject a
plea agreement and express its reasons for doing so, "Rule 11(e)(1)
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) (quoting United States v. Adams, 634 F.2d 830, 835 (5th Cir.
1981)) (other citations omitted). "Rule 11(e)(1) simply commands
that the judge not participate in, and remove him or herself from,
any discussion of a plea agreement that has not yet been agreed to
by the parties in open court." Miles, 10 F.3d at 1140 (quoting
United States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992))
(emphasis added).
As we recently explained in Miles, there are important reasons
for the rule admitting no exceptions. First, it diminishes the
possibility of judicial coercion of a guilty plea, regardless
whether the coercion would actually result in an involuntary guilty
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plea. 10 F.3d at 1139. Second, the judge's involvement in the
negotiations is apt to diminish the judge's impartiality. By
encouraging a particular agreement, the judge may feel personally
involved, and thus, resent the defendant's rejection of his advice.
Id. Third, the judge's participation creates a misleading
impression of his role in the proceedings. Id. The judge's role
seems more like an advocate for the agreement than a neutral
arbiter if he joins in the negotiations. Because of these
potential problems, "Rule 11(e)(1) draws a bright line, prohibiting
judicial participation in plea negotiations." Id.
The colloquy between the judge and Daigle at the guilty plea
hearing reveals that there was an off-the-record discussion in
chambers among the parties and the judge regarding Daigle's guilty
plea and sentence. Daigle contends that, during the in chambers
discussion, the trial judge indicated that he would most likely
follow any sentence recommendation by the government, which to
Daigle meant a "cap" of nine years imprisonment. Daigle cites the
following comment the judge subsequently made at the plea hearing,
"All right, so if nine years is what y'all agreed upon and that's
the recommendation made to me, and there is substantial
cooperation, that's the cap of nine years, okay?" This statement
strongly supports Daigle's contention that he understood the court
to be indicating a "cap" of nine years if the government so
recommended.
In United States v. Werker, 535 F.2d 198, 203 (2nd Cir.),
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cert. denied, 429 U.S. 926, 97 S.Ct. 330 (1976),2 the Second
Circuit opined that a "judge's indication of sentence necessarily
constitutes `participation in such discussions." We find the
Second Circuit's reasoning in Werker persuasive. During Daigle's
guilty plea hearing, the court acknowledged that it previously had
advised Daigle in chambers that if he "fully cooperated, that 90
percent of the time I will follow the recommendation of the U.S.
Attorney." Such an indication of sentence constitutes
participation. Accordingly, the judge's conduct violated the
bright line of Rule 11(e)(1) which prohibits any judicial
participation in plea negotiations.
That, however, is not the end of the inquiry. Although
judicial participation in plea negotiations is an error implicating
a core concern of Rule 11, it nonetheless is subject to the
harmless error analysis. Miles, 10 F.3d at 1140-41 (citing United
States v. Johnson, 1 F.3d 296 (5th Cir. 1993) (en banc)).
The government argues that any Rule 11 violation was harmless
because Daigle "was looking at a minimum sentence of twenty years
if he were convicted of violating 21 U.S.C. § 848 and five years
consecutive to all sentences if convicted of 18 U.S.C. § 924(c) at
trial." The focus, however, of the harmless error inquiry is
whether the district court's flawed compliance with Rule 11 may
reasonably be viewed as having been a material factor affecting the
defendant's decision to plead guilty. Johnson, 1 F.3d at 302.
Indeed, as the government candidly admits, Daigle requested to meet
2
We cited the Werker opinion in both Miles and Adams.
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with the trial court because he was concerned "that the agreement
did not guarantee the specific nine year cap he wanted but left it
within the U.S. Attorney's discretion." The government further
acknowledges "that the sole purpose of the meeting with the judge
was to gain information concerning the judge's probable response to
a recommendation by the AUSA [prosecutor]." Here, it is apparent
that Daigle viewed the "cap" of nine years imprisonment as a
material factor in his decision to plead guilty. Thus, it cannot
be said that the trial court's participation in the plea
negotiations was harmless.
II. WHETHER DAIGLE IS ENTITLED TO SPECIFIC PERFORMANCE.
Daigle requests specific performance of the plea agreement,
which he contends the district court modified when it participated
in his plea negotiations. A defendant is entitled to specific
performance of a plea agreement when the agreement has been
breached. United States v. Watson, 988 F.2d 544, 553 (5th Cir.
1993), cert. denied, __ U.S. __, 114 S.Ct. 698 (1994). Daigle does
not show a breach, but instead relies on his own mistaken
impression of a 108-month cap which he claims was created by the
plea bargaining process. He is not entitled to specific
performance.
Because of our Rule 11 holding, we do not reach any of
Daigle's remaining contentions. Finally, "in order to extend the
prophylactic scheme established by Rule 11," this case will be
assigned to a different judge on remand. Miles, 10 F.3d at 1142
(citation, internal quotation marks, and footnote omitted).
CONCLUSION
For the reasons stated above, Daigle's conviction and his
sentence are VACATED; and the case REMANDED for further
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proceedings.
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