In re Ellis

• Decision Date: 04 February 2004
• Docket Number: No. 01-70724.,01-70724.
• Citation: 356 F.3d 1198
• Parties: In re Marciano ELLIS, Marciano Ellis, Petitioner, v. United States District Court for the Western District of Washington (Tacoma), Respondent, United States of America, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

356 F.3d 1198

In re Marciano ELLIS,

Marciano Ellis, Petitioner, v. United States District Court for the Western District of Washington (Tacoma), Respondent, United States of America, Real Party in Interest.

No. 01-70724.

United States Court of Appeals, Ninth Circuit.

Rehearing En Banc Granted December 5, 2002.

Argued and Submitted En Banc March 25, 2003.

Filed February 4, 2004.

COPYRIGHT MATERIAL OMITTED

Robert Gombiner, Federal Public Defender, Seattle, WA, for the petitioner.

Peter B. Gonick, McKay Chadwell, PLLC, Seattle, WA, for the respondent.

Robert H. Westinghouse, Assistant United States Attorney, for the real party in interest.

Petition for Writ of Mandamus to the United States District Court for the Western District of Washington; Jack E. Tanner, District Judge, Presiding. D.C. No. CR-99-05386-JET.

Before SCHROEDER, Chief Judge, PREGERSON, REINHARDT, KOZINSKI, TROTT, KLEINFELD, THOMAS, WARDLAW, FISHER, GOULD, and BERZON, Circuit Judges.

Concurrence by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge TROTT; Dissent by Judge KLEINFELD; Concurrence in Dissent by Judge GOULD.

WARDLAW, Circuit Judge:

We write en banc to clarify that the acceptance of a criminal defendant's guilty plea is a judicial act distinct from the acceptance of the plea agreement itself. Once the district court accepts a guilty plea, the conditions under which the plea may be withdrawn are governed exclusively by Rule 11 of the Federal Rules of Criminal Procedure.¹ Where a district court accepts a plea of guilty pursuant to a plea agreement, defers acceptance of the agreement itself, and later rejects the terms of the plea agreement, it must, according to the plain language of Rule 11, "give the defendant an opportunity to withdraw the plea." Fed.R.Crim.P. 11(c)(5)(B).² Because Rule 11 contains no provision permitting the district court itself to determine that the plea should be vacated following its rejection of the plea agreement, the district court's choice to do so here was error. We therefore issue the writ of mandamus.

I. Background.

This appeal arises because, as is commonly the case, Ellis pleaded guilty to lesser charges than those set forth in the original indictment. His plea was entered pursuant to a plea agreement governed by both Rule 11(c)(1)(A) and (C).³ The agreement specifically provided that (i) the government would not prosecute Ellis for any additional offenses known to it, i.e., the pending first degree murder charge; and (ii) if the court imposed any term of incarceration other than that agreed upon, either party could withdraw from the plea agreement.

The factual basis for Ellis's plea, as set forth in the plea agreement,⁴ is as follows: At approximately 7:45 p.m. on March 5, 1999, sixteen-year-old Marciano Ellis called Tacoma Yellow Cab from a payphone outside Winchell's Donut Shop in Spanaway, Washington, and requested a pick-up at a nearby tavern. Cabdriver Donald Ray Barker arrived some fifteen minutes later to pick up Ellis. As they headed through Fort Lewis, a United States Army reservation,⁵ Ellis, the lone passenger, shot Barker three times in the back of the head. At approximately 8:20 p.m., a passerby discovered Barker's taxicab with its headlights on in a shallow ditch alongside North Gate Road in Fort Lewis. Finding the taxicab's engine running, the passerby investigated further and discovered Barker lying on the front seat with a head wound. He summoned medical assistance. Barker was taken to the Madigan Army Hospital. The Pierce County Medical Examiner determined that Barker was killed by three gunshot wounds to the back of the head.

The government originally charged Ellis with first degree murder and moved to have him tried as an adult due to his prior state court conviction for residential burglary. See United States v. M.C.E., 232 F.3d 1252, 1257 (9th Cir.2000) (holding that Ellis's transfer to adult status was mandatory).

Over one and one-half years after the shooting, and after what both defense counsel and the prosecutor later characterized as "considerable" discussion, the government and Ellis entered into a plea agreement providing that Ellis would plead guilty to a Superseding Information charging him with second degree murder. The agreement recognized that the court could impose any sentence authorized by law, but provided that either party had the right to withdraw from it if the court pronounced a sentence of incarceration other than 132 months. The parties also agreed that Ellis would not be allowed to withdraw his plea of guilty to the second degree murder charge in the Superseding Information "unless that sentence is other than 132 months of imprisonment."

On December 8, 2000, Ellis, having waived indictment by a grand jury, entered a plea of guilty to the second degree murder charge set forth in the Superseding Information. During the Rule 11 plea colloquy, the district court inquired of Ellis whether he understood that the court could depart upward or downward upon consideration of all applicable sentencing guidelines. When Ellis hesitated in his response, his attorney attempted to explain to the court that a specific sentence had been provided in the plea agreement, which would be binding once accepted by the court pursuant to Rule 11. The court responded, "Well, I haven't accepted anything yet." The court proceeded with the remainder of the colloquy, took Ellis's plea, set a sentencing date, and ordered a presentence report.

At the outset of the April 17 sentencing hearing, the district court announced that it would not accept the plea agreement:

I think I should tell you now, I'm not going to accept it. I've read the government's Sentencing Memorandum and the [probation officer's] recommendation. I can't accept it.

The presentence report had disclosed three prior juvenile adjudications and seven other arrests and charges for serious crimes. It also revealed that the FBI had developed a somewhat solid case against Ellis for premeditated murder, proof of which would support a first degree murder charge. This evidence included a wire-tapped conversation with an informant in which Ellis admitted the planning and murder of the taxicab driver. The United States Probation Officer recommended 151 months' incarceration, the maximum sentence for second degree murder under the Sentencing Guidelines. The Officer acknowledged that if the court were to impose 151 months' custody, Ellis would be allowed to withdraw from the plea agreement, but felt that "given the circumstances of this case" he could recommend no less.

The district court allowed argument, during which the government urged it to accept the plea agreement. The government specifically noted that the victim's family supported the plea agreement and that it was concerned about the evidence available to prove beyond a reasonable doubt the elements of the first degree charge.⁶ The court nevertheless concluded:

I have read the government's Sentencing Memorandum, together with the Defendant's Sentencing Memorandum, and I have listened to the government and the Defendant. I must tell you, justice in my opinion hasn't been done in this case, the way it stands now. I think the matter should go to a jury. I think the matter should go to a jury, period. So the ball is back in the government's court.

The court immediately arraigned Ellis on the still pending first degree murder indictment.⁷ Ellis pleaded "not guilty" to that charge, and the court set the date for jury trial.

Ellis then moved to compel the district court to afford him the opportunity to withdraw his second degree murder guilty plea or to allow him to persist in that plea, citing former Rule 11(e)(4) and United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). He asserted his absolute right to persist in that plea and indicated his intent to do so. In response, the government indicated it remained "willing to proceed with the second degree murder disposition."⁸

Attempting to glean from the transcript of the hearing on Ellis's motion an understanding of what actually transpired next is a bit like peering into an ever-shifting kaleidoscope. The district court first treated the government's position that Ellis had the right to persist in his guilty plea as a "motion to ask the court to reconsider the court's denial of the plea in this case." The court denied that motion. Next, asking the government attorney "do you represent the defendant," the district court refused to follow the government's suggestion to inquire of Ellis whether, if given the opportunity, he would persist in his plea of guilty, stating:

[W]hat we know now from the record is this court has rejected the defendant's attempt to plea.

The district court next refused to hear argument on Ellis's motion (the very reason for the hearing in the first place), stating:

I assume your motion, then, is as to ... rejection of the plea agreement.... It is the court's position, and the record reflects, that I never intended to accept the plea agreement in this case, nor did I accept the plea in this case.

As far as this court is concerned, the question of the rejection of the plea agreement is not an issue. I never accepted it.

In a last-ditch effort to salvage the proceedings, the Assistant United States Attorney ("AUSA") asked the court to "put aside what occurred on December 8 [entry of the plea] and to start anew" by allowing the parties to enter into a new plea agreement pursuant to Rule 11 under which Ellis would plead guilty anew to second degree murder charges. In response, the district court stated:

Your offer, the defendant and defendant's counsel, for this court to proceed in any way under any circumstances in any plea agreements or any pleas is rejected and denied by this court.

Nor would the court allow defense counsel to state for the record whether Ellis desired to enter the new plea pursuant to the newly proposed plea agreement or to...