U.S. v. Bruce

• Decision Date: 01 October 1992
• Docket Number: No. 90-50549,90-50549
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth R. BRUCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 552

976 F.2d 552

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth R. BRUCE, Defendant-Appellant.

No. 90-50549.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1992.

Decided Oct. 1, 1992.

Kathryn A. Thickstun Leff, San Diego, Cal., for defendant-appellant.

D. Thomas Ferraro, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: CANBY, REINHARDT, and WIGGINS, Circuit Judges.

REINHARDT, Circuit Judge:

In this case, we consider whether the fact that a district judge has participated in plea bargaining discussions entitles a defendant to have the plea vacated on appeal. We also consider the extent to which Fed.R.Crim.P. 11 requires the district court to explain to a defendant the nature of the charges alleged in the indictment. We also examine the effect of the failure to raise those questions in the district court. Having considered these matters, we vacate appellant's convictions and remand for further proceedings.

Kenneth Reed Bruce and Deborah Miserany were arrested at their residence in Oceanside, California on January 25, 1989, for conspiracy to distribute methamphetamine. A superseding six-count indictment was filed against them on April 28, 1989. On January 9, 1990, the prosecutor and the defendants discussed a proposed plea agreement with the district judge. The next day, the defendants accepted the agreement: the government waived the indictment, filed a one count superseding information that charged the defendants with aiding and abetting a conspiracy to possess a controlled substance with intent to distribute, and Bruce and Miserany entered a plea of guilty to that offense. After a colloquy with defendants, the district judge accepted their pleas, and a sentencing date was set for March 26, 1990.

Subsequently, Bruce moved to withdraw his guilty plea under Fed.R.Crim.P. 11(c)(1) on the ground that his plea was not "knowingly and intelligently" made because he did not understand the charge to which he had pled. The district court denied the motion and sentenced Bruce to 77 months in prison. Bruce appeals.

I

Bruce first contends that he should be allowed to withdraw his guilty plea because the district court improperly participated in the discussion regarding his plea agreement in violation of Fed.R.Crim.P. 11(e)(1).

The government resists Bruce's argument both on procedural grounds and on the merits. The government initially urges that Bruce cannot assert the Rule 11(e)(1) issue on appeal because he did not raise it below. Although we generally do not consider issues not raised before the district court, ¹ Bruce is entitled to raise his claim for two reasons. First, a district court's failure to follow Rule 11(e)(1) is "plain error" reviewable for the first time on appeal. The Rule contains a clear command: "[t]he court shall not participate in any [plea] discussions." Fed.R.Crim.P. 11(e)(1). The duty to abide by that rule does not arise as the result of any motion made by the defendant; rather, the court is bound by the Rule's restrictions. A district court's failure to comply with the provisions of Rule 11(e)(1) is plain error that entitles a defendant to withdraw his guilty plea even if the error is identified for the first time on appeal. See United States v. Adams, 634 F.2d 830, 831, 836 (5th Cir.1981) (raising Rule 11(e)(1) issue sua sponte and reversing on that basis); see also United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989) (reviewing claim of judicial misconduct for plain error); Okada, 694 F.2d at 570 n. 8 (noting general rule).

Our second reason is more general. In assessing the merits of a Rule 11(e)(1) claim on appeal, "the issue is purely legal and the facts are fully developed". We may decide questions of this nature even if they were not raised below. State of Alaska v. Ahtna, Inc., 891 F.2d 1401, 1405 (9th Cir.1989), cert. denied, 495 U.S. 919, 110 S.Ct. 1949, 109 L.Ed.2d 312 (1990); see also In re Wind Power Systems, Inc., 841 F.2d 288, 290 n. 1 (9th Cir.1988) (same). The comments by the district court regarding the plea negotiations are all on the record; there is no factual dispute regarding their nature. Determining whether or not those comments violated Rule 11(e)(1) is a purely legal question that we review de novo. Accordingly, Bruce can raise that question for the first time on appeal, and we are authorized to address it. See In re Wind Power Systems, Inc., 841 F.2d at 290 n. 1.

We thus turn to the merits of Bruce's Rule 11(e)(1) claim. During the discussion of the proposed plea agreement considered on January 9th, the following colloquy occurred:

The Court: Mr. Prosecutor, I looked over the government's trial memorandum. I want you to outline for the purposes of defense counsel the negotiations of a plea, your offer to the defense counsel. Would you do that on the record?

Mr. Ferraro [the prosecutor]: Yes, sir....

[Ferraro then describes the proposed agreement]

The Court: Based on what [the government] charged [in the indictment], what could they be looking at?

Mr. Ferraro: Your honor, they are facing right now a minimum mandatory, if convicted of any of the drug counts, of ten years imprisonment....

[I]t could possibly be that the guideline sentence would be higher than the minimum mandatories....

The maximum sentence [a]s charged [is] life imprisonment....

The Court: Mr. Crowley [Bruce's attorney], do you understand fully what [the prosecutor] is saying?

Mr. Crowley: Yes, your honor. And it has been explained to my client.

The Court: Do you understand that, son?

Bruce: Yes.

The Court: Mr. Cimmarrusti [Miserany's attorney], do you understand what the prosecutor said?

Mr. Cimmarrusti: Yes.

The Court: Did you explain that to your client?

Mr. Cimmarrusti: Yes.

The Court: Do you understand that, Miss Miserany?

Miserany: Yes.

The Court: You don't want to think about that some more, the two of you?

Miserany: No.

Bruce: No.

The Court: We are talking about a life sentence.

Bruce: I understand that.

The Court: Versus a prospective 42 months [under the plea agreement].... I mention [the life sentence] to you because the new laws are so heavy, so very, very heavy, and I am the one that has to impose that sentence if you are found guilty on all of these things. That is going to be tough, but that is what [the] law says I have to give you. You have to think about that.

Okay. See you tomorrow morning. Think carefully about that tonight. I don't know if you leave it open tonight.

Mr. Ferraro: Your honor, at the court's request, I will.

The Court: I would think seriously about it, both of you. Life in prison is a long time. It is really nothing to play with.

Gentlemen [sic], are you parents?

Miserany: Yes.

Bruce: Yes.

The Court: If it was my child, I would think carefully about it, if it comes down to that, I have to give it.

Although circuit precedent interpreting Rule 11(e)(1) is slim, it is clear that the trial judge's participation in the plea discussion violated the Rule. The command of Fed.R.Crim.P. 11(e)(1) with regard to plea negotiations is simple and admits of no exceptions: "[t]he court shall not participate in any such discussions." Before the parties have concluded a plea agreement and have disclosed that final agreement in open court, "the judge must refrain from all forms of plea discussions." Adams, 634 F.2d at 835 (emphasis added). Rule 11(e)(1) is "an absolute prohibition on all forms of judicial participation in ... the plea negotiation process." Id. (emphasis added). "The commentaries regarding [the Rule], and consideration of its intendment, leave no room for doubt that its purpose and meaning are that the sentencing judge should take no part whatever in any discussion or communication regarding the sentence to be imposed prior to the entry of a plea of guilty or conviction, or submission to him of a plea agreement." United States v. Werker, 535 F.2d 198, 201 (2nd Cir.), cert. denied, 429 U.S. 926, 97 S.Ct. 330, 50 L.Ed.2d 296 (1976) (emphasis added). 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.

The "bright-line rule" created by Fed.R.Crim.P. 11(e)(1) bars a judge from participating in plea bargaining for three main reasons. First, such participation is prohibited because judicial involvement in plea negotiations inevitably carries with it the high and unacceptable risk of coercing a defendant to accept the proposed agreement and plead guilty. See Werker, 535 F.2d at 202 ("[J]udicial intervention may coerce the defendant into an involuntary plea that he would not otherwise enter."). Among other things, "[i]t might lead the defendant to believe that he would not receive a fair trial, were there a trial before the same judge." Notes of Advisory Committee on Rules, 1974 Amendment, 18 U.S.C.A. Federal Rules of Criminal Procedure 1 to 11 (West 1986) at 351; see also Werker, 535 F.2d at 202 ("The defendant may fear that rejection of the plea will mean imposition of a more severe sentence after trial or decrease his chances of obtaining a fair trial before a judge whom he has challenged."). A coerced plea would not only violate a defendant's fundamental constitutional rights, see Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 965, 86 L.Ed. 1302 (1942), but also necessarily risks the incarceration of even innocent criminal defendants. See Notes of Advisory Committee on Rules at 351 ("The risk of not going along with the disposition apparently desired by the judge might induce the defendant to plead guilty, even if innocent.") (emphasis added). That unacceptably high risk of coercion exists even if the judge does not explicitly endorse a particular plea agreement: ² "regardless of the judge's objectivity, it is the...