United States v. Parker
| Decision Date | 19 November 2020 |
| Docket Number | Case No. 19-3909 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DANIEL PARKER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
NALBANDIAN, Circuit Judge. Daniel Parker asks this court to overturn his convictions for sexual exploitation of children and receipt and distribution of child pornography. His first two claims center on the argument that the trial court inappropriately participated in his plea-bargaining process and harbored a negative disposition toward him. His second two claims concern the delay in providing contraband images to the jury deliberation room and the decision to resume deliberations with the full set of evidence provided. Because he does not state any claim that warrants reversal, we AFFIRM the trial court in full.
Daniel Parker and Candis Wynn together made child pornography using Wynn's daughter, a three-year old. Parker gave Wynn explicit text-message instructions on how to molest her daughter on film. And Wynn complied by sending pictures and videos to Parker's phone, which Parker continued to encourage and request.
Before trial, Parker and the government were negotiating a plea agreement. When the parties provided the district court with a copy of the proposed agreement, the court said that it likely would not accept the plea because it was "wildly inconsistent" with the sentence in another child pornography case. (R. 74, Final Pretrial Trans., PageID 832-46.) The court recessed, and the government offered Parker a different, less favorable plea. Parker consulted with his attorney and did not accept the new plea deal.
Parker's defense was that there was insufficient evidence that he was the user of the phone receiving the messages, videos, and images. And he objected to admitting the messages, videos, and images because he claimed that the government had not tied Parker to the phone. But the government presented evidence connecting Parker with the phone, including recorded conversations between Wynn and Parker while Parker was using the phone number and a later search in which officers seized the phone with that number from Parker. Police also found a picture of Parker on Facebook that showed him holding the same type of phone. The court overruled Parker's objection and admitted all of the government's exhibits. The governmentdisplayed the contraband images and videos to the jury during the government's case-in-chief.
The court arranged to provide a computer system to display exhibits in the jury room during deliberations. The computer system allowed the jury to view the text messages and most other evidence. But because of an oversight on the part of the court, the secured contraband pornographic images and videos were not on the computer system. And before the government could transfer the images to the computer system, the jury revealed that they had reached a verdict.
Despite previously objecting to contraband evidence, Parker's attorney moved for a mistrial because the jury had reached its verdict without access to that evidence in the jury room. In response, the government stated that the jury had been able to consider most of the relevant evidence, and that they had seen the images during the trial. But given the defendant's objection, the government suggested that the jury could deliberate with the benefit of the additional exhibits before announcing their verdict. The court proposed to bring the jury in, explain that there had been a delay in giving them the exhibits, and instruct them to deliberate more. Parker's attorney did not object. After resuming, the jury then asked for a list of the new exhibits by number, and Parker's attorney stated that it would be "appropriate" to send them a list of the added exhibit numbers. (R. 73, Trial Trans., PageID 811.) After renewed deliberations, the jury convicted Parker of sexual exploitation of children under 18 U.S.C. § 2251(a) and receipt and distribution of child pornography under 18 U.S.C. § 2252(a)(2).
We first look at Parker's claim that the district court impermissibly participated in the plea negotiations. We review for plain error any alleged Rule 11 error to which the defendant did not object. United States v. Vonn, 535 U.S. 55, 59 (2002). Showing plain error requires "'(1) error, (2) that is plain, and (3) that affects substantial rights.'" United States v. Dyer, 908 F.3d 995, 1004 (6th Cir. 2018), cert. denied, 139 S. Ct. 1610 (2019) (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997) (alteration removed)). Even then, review is discretionary, and we only correct the error if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United States v. Young, 470 U.S. 1, 15 (1985) (alteration removed)).
Parker contends that the district court knew that the plea agreement was not yet final and improperly inserted itself, causing the government to abandon the deal and offer a less favorable plea. The first proposal had involved dismissing Counts I and IV in exchange for a guilty plea on Count II—a five-year minimum and 20-year maximum sentence. The second was to dismiss Counts II and IV in exchange for a guilty plea on Count I—a 15-year minimum and 30-year maximum.
A district court judge may not engage in plea negotiations. A judge cannot try to influence a defendant to plead guilty. See United States v. Herron, 551 F.2d 1073, 1077 (6th Cir. 1977) (). The court also cannot disclose the probation officer's sentencerecommendations or the likely sentence before the defendant decides whether to plead or go to trial. See United States v. Harris, 635 F.2d 526, 528 (6th Cir. 1980). It also cannot consent to transfer the case as part of the plea bargain. Id.
Parker fails to note, however, that the trial court must be involved in the acceptance or rejection of the plea. Rule 11 makes clear that the parties "must disclose" the agreement to the court, and the court "may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report." FED. R. CRIM. P. 11(c)(2), (c)(3)(A). He offers no reason that the court violated his rights by indicating rejection before he formally accepted the plea. Thus, Parker cannot show the first or second prongs of the plain error requirement since there is no obvious error.
Parker also cannot show that the error impacted substantial rights because there is no right to a plea offer or the court's acceptance of a plea offer. See Missouri v. Frye, 566 U.S. 134, 148-49 (2012). "A court may reject a plea in exercise of sound judicial discretion." Santobello v. New York, 404 U.S. 257, 262 (1971). Because Parker had no right to the more favorable plea, losing the plea is not a loss of substantial rights.
Parker argues that the trial court here acted similarly to the trial court in United States v. Ushery, 785 F.3d 210 (6th Cir. 2015). There, the trial court set a "tentative plea date" on which the defendant would either plead guilty or "jeopardize" his points for acceptance of responsibility. Id. at 214. At the rearraignment on that date, the court reiterated that it was the "drop-dead date" for pleading guilty andreceiving the points for accepting responsibility. Id. The parties, in front of the sitting court, then negotiated the terms that the defendant preferred to change in the plea. The court weighed in with suggestions about the disputed items of forfeiture and a summary of what it understood the new plea agreement to be. On appeal, we stated that "[b]y allowing the parties to negotiate the final terms of a plea agreement in its presence, the district court at the very least did not follow best practices, and may in fact have violated Rule 11(c)(1)." Id. at 218.
Even if the conduct in Usury constituted participation in plea negotiation, this case is different. Here, after the court stated that it would likely reject the plea agreement that the parties had reached, the court recessed proceedings to allow the parties to discuss a new plea agreement. And, importantly, the court did not suggest any negative consequences of failing to plead guilty. Instead, it reminded Parker of his right to proceed to trial. The only discussion the court had with counsel was to question the disparity between this case and another child pornography case and to approximate the sentence minimum and maximum that the plea would carry. Nothing in the record here shows that the trial judge participated in the plea negotiations and thereby committed plain error.
Parker next argues that the trial court erred by not recusing itself after allegedly showing a negative disposition toward Parker. Under 28 U.S.C. § 455(a), a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This does not require recusal every time a defendantasserts that the judge's impartiality is dubious, "no matter how strongly that view is held." United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990). Rather, a judge has a duty not to recuse when there is not a reason for it. United States v. Hoffa, 382 F.2d 856, 861 (6th Cir. 1967). Here, the court stated during pretrial conference that the facts here were potentially "worse" than another child pornography case. (R. 74, PageID 834-35.)
Our standard of review here is tricky. Parker did not request recusal in the trial court, forfeiting the argument. Typically, we would review a forfeited argument for plain error in a criminal case, as Parker requests and as many of our sister circuits have done.1 See Fed. R. Crim....
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