On February 8, 2010, a magistrate judge held a hearing with the defendant, Anthony Davila, and his attorney. At the hearing, the judge encouraged Davila to plead guilty, and on May 11, 2010, Davila pled guilty to the charges. On appeal, Davila successfully argued that the judge’s encouragement constituted a violation of Federal Rules of Criminal Procedure (“FRCP”) 11(c)(1), which generally prohibits the judge from participating in plea-bargaining. The Supreme Court granted certiorari to determine whether any judicial participation in plea-bargaining, as opposed to “prejudicial” participation, mandates automatic reversal of a conviction. The United States argues that FRCP 11(h) requires the appellate court to review Rule 11 errors under the harmless error standard, while Davila counters that an 11(c)(1) error requires automatic reversal. Furthermore, the United States sees many 11(c)(1) violations as technical and harmless, while Davila views such violations as universally prejudicial, making the government’s role effectively redundant. Both Davila and the United States argue that a ruling for the other party will undermine the finality of guilty convictions secured by plea bargains.
Does a judge’s participation in plea negotiations automatically overturn the defendant’s guilty plea, or does it only overturn the plea if the judge’s participation actually harmed the defendant?
In May 2009, a federal grand jury in Georgia indicted the defendant, Anthony Davila, on one count of conspiracy to defraud the United States, eleven counts of presenting a false claim, eleven counts of mail fraud, and eleven counts of aggravated identity theft. See Brief for Petitioner, the United States at 3. The government accused Davila of submitting fraudulent tax returns on behalf of Florida state prisoners and pocketing the tax refunds from the IRS. See Brief for Petitioner at 3. Although Davila received a court-appointed lawyer, Davila later requested new counsel, claiming that his attorney failed to develop any defenses to the charges and only recommended pleading guilty. See United States v. Davila, 664 F.3d 1355 (11th Cir. 2011) at *2.
On February 8, 2010, the magistrate judge held an ex parte hearing with Davila and his lawyer to discuss Davila’s request. See Brief for Respondent, Anthony Davila, at 5. At the hearing, the magistrate declined Davila’s request for a new lawyer. See Davila, 664 F.3d 1355 at *2. The magistrate reasoned that “oftentimes . . . the best advice a lawyer can give his client” is to plead guilty, and that in any case “there may be not be a viable defense to these charges.” See Brief for Petitioner at 3. The magistrate further advised Davila to:
[T]ell it all, brother, and convince that probation officer that you are being as open and honest with him as you can possibly be because then he will go to the district judge and he will say, you know, that Davila guy, he’s got a long criminal history but when we were in there talking about his case he gave it all up so give him a [reduced sentence] . . . .
See Brief for Petitioner at 4.
On May 11, 2010, Davila pled guilty to the charges.See Brief for Respondent at 5. Then, on November 15, 2010, the District Court sentenced Davila to 115 months in prison. See Davila, 664 F.3d 1355 at *2. Subsequently, Davila appealed his conviction and sentence to the Eleventh Circuit Court of Appeals. See Davila, 664 F.3d 1355 at *3. Although the Eleventh Circuit appointed Davila’s trial lawyer to represent Davila on appeal, Davila proceeded pro se, and the lawyer filed a motion to withdraw, arguing that no non-frivolous grounds for appeal existed. See Brief for Respondent at 9–10. Davila’s primary argument on appeal was that the magistrate judge “violated his substantial rights” by improperly participating in the plea discussions and offering advice. See Davila, 664 F.3d 1355 at *3.
On December 21, 2011, the Eleventh Circuit vacated Davila’s conviction and remanded the case to the District Court with instructions to use a different magistrate judge. See Davila, 664 F.3d 1355 at *6. The Eleventh Circuit adopted an “absolute ban on judicial participation” and held that a judge may never participate in plea negotiations under Federal Rule of Criminal Procedure 11(c)(1) (“11(c)(1)”), which states simply that “[t]he court [i.e., judge] must not participate in these discussions.” See Davila, 664 F.3d 1355 at *4; see also Fed R. Crim. P. 11(c)(1). The Eleventh Circuit acknowledged that its decision exacerbated a circuit split because the Fifth Circuit has held that violations of 11(c)(1) are subject to harmless error review, which allows for “technical errors” that had no bearing on the outcome. See Davila, 664 F.3d 1355 at *4. On January 4, 2013, the Supreme Court granted certiorari to resolve this disagreement among the circuits. See Brief for Petitioner at 1.
The policy issues in this case center on the impact that the holding may have on the plea negotiation process. The United States argues that Federal Rule of Criminal Procedure 11(c)(1) (“11(c)(1)”) violations are not always prejudicial; that is, judicial intervention in plea negotiations does not necessarily harm the defendant. Furthermore, the United States contends that a holding for Davila will undermine the finality of guilty pleas. On the other hand, Davila argues that 11(c)(1) violations are particularly pernicious and almost always prejudicial. Finally, Davila disagrees with the United States and argues that a reversal would undermine the finality of convictions and increase the burden on courts.
The Prejudice of Judicial Intervention in Plea Negotiations
The United States argues that 11(c)(1) violations are not necessarily prejudicial. First, the United States contends that 11(c)(1) is a forward-looking rule in that it “prescribes a procedure” for judges to conduct their behavior during plea negotiations. See Brief for Petitioner at 14. In comparison, the United States points to Federal Rules of Criminal Procedure 11(h) (“11(h)”) and 52 (“52”), which posit and define a harmless error standard, as backward-looking rules because they evaluate such judicial intervention after-the-fact. See id. The United States argues that the Court of Appeals' narrow focus on 11(c)(1), which ignored the harmless error standard of 11(h), does not reflect reality. See id. at 15–16. Instead, the United States believes that prejudice is a fact-intensive inquiry. Specifically, in this case, the United States notes three mitigating factors: that three months passed between the 11(c)(1) violation and sentencing, that the sentencing judge was a different person than the magistrate, and that Davila never raised any complaint about judicial intervention on appeal. See id. at 15.
On the other hand, Davila counters that judicial intervention in plea-bargaining is almost always prejudicial. See Brief for Respondent at 38. Davila supports this assertion by noting that judges “occupy a special position of authority,” such that “[d]efendants and their attorneys will typically give great weight to the judgment’s pronouncements.” See id. Davila further states that, while some appellate courts appear to apply a fact-intensive harmless error approach to judicial intervention in plea bargains, no case exists where the appellate court affirmed a conviction after the judge violated 11(c)(1). See id. at 39. Consequently, Davila argues that a fact-intensive review of 11(c)(1) errors is effectively a waste of time and that a firm rule holding that any 11(c)(1) error mandates reversal would encourage judges to be careful in their remarks. Davila believes that this reflects the “reality . . . that judicial advocacy of a guilty plea will virtually always factor into a defendant’s decision-making process.” See id. at 39–40.
The Finality of Convictions Secured by Guilty Pleas
The United States argues that mandatory reversal for 11(c)(1) violations would undermine the finality of convictions secured by guilty pleas. First, the United States casts harmless error analysis striking a balance between “societal costs” and “the rights of the accused.” See Brief for Petitioner at 25 (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988)). Furthermore, the United States asserts that the finality of guilty pleas is particularly important given that such convictions inherently rest on the defendant’s confession to the crime. See Brief for Petitioner at 26. Stating that 97% of all criminal convictions in federal court are guilty pleas, the United States argues that an “automatic vacatur” rule will undermine the “speed, economy, and finality” of guilty pleas. See id. at 26. Finally, the United States notes that an automatic vacatur could sweep too broadly and undermine the judge’s valid role in discussing certain aspects of plea bargains with defendants.
At the same time, Davila simply disagrees with the United States and counters that a ruling for the United States would undermine the finality of convictions. See Brief for Respondent at 46 (“The reality [of the United States’ argument] is just the opposite.”). Specifically, Davila worries about the burden that a ruling for the United States would impose on courts. See Brief for Respondent at 47–48. Davila envisions that a non-automatic, fact-intensive inquiry on appeal would lead to time-intensive evidentiary hearings and extensive litigation. See id. In Davila’s view, the automatic vacatur approach that he advocates would conserve judicial resources. See id. at 48. Finally, Davila counters the concern that an automatic vacatur rule would make it difficult for courts to validly participate in certain aspects of plea bargains. Davila argues that the prosecutor can steer the judge away from “improper commentary.” See id. at 49.
Davila argues that the trial judge’s involvement in his decision to plead guilty was so egregious that further judicial review of whether or not the judge’s intervention affected his decision to plead guilty is unnecessary as it would be a waste of judicial resources. He also asserts that such judicial involvement threatens defendants’ fundamental rights, making it virtually certain that errors will result and influence court proceedings. The United States counters that the prospect relief from judicial involvement in a guilty plea is expressly stated in Federal Rule of Criminal Procedure 11(h) ("11(h)") as requiring an effect on substantial rights. The United States argues that any departure from Rule 11’s procedure in this case did not prejudice the defendant and therefore did not violate any substantial right.
Violations of Rule 11(c)
Davila begins by noting that 11(c) admonishes federal judges that they “must not participate in [plea] discussions.” See Brief for Respondent at 16. This prohibition, Davila states, is meant to apply to proceeding prior to a guilty plea. See id. Davila asserts that by prohibiting judicial involvement in plea negotiations, the court itself is prohibited from influencing defendants into waiving their trial rights. See id. at 18–19. Davila posits that because the court’s participation in the plea bargain induced him to plead guilty, the judge’s role was prosecutorial, rather than that of a neutral arbiter, safeguarding Davila’s rights. See id. at 20. This changed role acts to subvert the normal adversarial process designed to lead to a fair trial. See id. at 21.
Davila argues that the above-mentioned distorting of the judicial system inherent with judicial participation in plea bargains makes the plea, and everything that follows, inherently prejudicial. See Brief for Respondent at 24. Davila notes that the language of 11(h) applies to a variance from the procedures required by the rule. See id. at 25. Davila asserts that by referring to the procedure of plea bargains, 11(h) is intended to apply to only variances that happen after a plea bargain, not to actions prohibited by the Rule. See id. Davila posits that had the Rule been meant to apply to judicial involvement in a plea bargain, the language would read something like “all violations of Rule 11 shall be reviewed for harmlessness.” See id. From the language of 11(h), Davila concludes that the harmless error standard was not intended to apply to judicial involvement in plea bargains. See id. at 25–26.
Davila also notes the legal environment in which 11(h) was enacted as one where any violation of Rule 11, at the time much briefer and simpler, allowed a defendant to “plead anew.” See Brief for Respondent at 26. Davila asserts that as Rule 11 became more complex, the remedy outstripped the harm, leading to the drafting of subsection (h), which was intended to ensure that small, technical changes from Rule 11’s procedure could not lead to a windfall for defendants. See id. at 27.
The United States responds by pointing to the language of 11(h). See Brief for Petitioner at 12. The original version of the Rule, enacted in 1983, stated that “any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” See id. This language was changed in 2002, replacing the word “any” with “a,” but the United States notes a court case where the change in language was only intended to be stylistic, not substantive. See id. at 12–13. Therefore, the United States argues, judicial participation in the plea bargain process should be limited to harmless error review, and then only if it affects substantial rights. See id. at 13–14. The United States posits that violations only affect substantial rights when they have a prejudice the result of a judicial proceeding. See id. at 11.
The United States also examines the enactment of 11(h), noting that automatic reversal of any FRCP Rule 11 violation, no matter how minor, was an unacceptable outcome. See Brief for Petitioner at 17. The United States argues that the main, and only clearly expressed, purpose of enacting 11(h) was to stop that practice, and return to the default review expressed by 52, harmless error. See id. The United States also refers to the Fifth Circuit’s approach on judicial participation in plea bargains, which relies on 11(h) to mandate harmless error review. See id.
Despite Davila’s and the Eleventh Circuit’s arguments that the prohibition on judicial participation in plea bargains is absolute, the United States argues that the remedy for judicial participation is not absolute. See Brief for Petitioner at 18. The United States notes that 11(h) itself is an explicit exemption of a remedy in cases where substantial rights have not been affected. See id. The United States also points to the Rule 11 advisory committee’s notes, which state that even with a departure from Rule 11 procedure, it does not mean that a guilty plea is automatically invalid and able to be reversed. See id.
Davila notes that the Rule 11 advisory committee reported that some Rule 11 errors would remain automatically reversible. See Brief for Respondent at 28. Davila emphasizes the committee’s comments explicitly said that there are only a limited number of Rule 11 violations that would constitute harmless error. See id. at 29. Davila points to a situation the advisory committee gave that would not be harmless error, a judge abdicating some responsibilities under Rule 11 to the prosecutor, and argues that a court encouraging a defendant to plead guilty is at least as prejudicial. See id.
Davila argues that a “judicial exhortation” to a defendant to plead guilty, by its very nature, affects substantial rights. See Brief for Respondent at 30. First, Davila asserts that fundamental constitutional rights were affected by the judge’s actions, including those rights pertaining to jury trial, self-incrimination, and due process. See id. at 35–37. Next, Davila notes that defendants would be more likely to go along with a judge’s encouragement to plead guilty because of the judge’s authority, making it inherently coercive. See id. at 38–39. Davila also identifies instances where analyzing whether an action prejudiced the defendant would be mostly speculative, noting that courts bypass an inquiry in those situations, and posits that the uncertainty inherent in plea bargains combined with the judge taking a prosecutorial role has created such a situation in this case. See id. at 41–43.
The United States counters that 11(c)(1) errors do not affect substantial rights, which it defines as “fundamental constitutional errors that . . . affect the framework within which the trial proceeds.” See Brief for Petitioner at 20. The United States argues that Rule 11 itself is not constitutionally required, but merely a rule intended to ensure that guilty pleas are voluntary. See id. at 20–21. Because the rule is not constitutionally required, violating the rule would not violate a defendant’s constitutional rights. See id. at 21. The United States asserts that Rule 11 errors usually will not result in a conviction of an innocent defendant, and therefore the best way to address them is with case-specific analysis instead of automatic vacatur. See id.
The United States also argues that the analysis for finding prejudice in a Rule 11 violation is not too difficult to litigate. See Brief for Petitioner at 23. The United States concedes that judicial participation in plea bargains are likely to prejudice a defendant, but notes that courts have conducted an analysis and found harmless error in previous cases. See id. at 24. Finally, the United States notes that as the case moved through the trial process, there was a three month time period between judicial participation in the plea bargain and sentencing, as well as a different judge for sentencing, which would have been the remedy granted for judicial participation, rendering any error harmless. See id. at 28.
In this case, the Supreme Court will determine whether any judicial participation in plea-bargaining, as opposed to only “prejudicial” participation, requires courts to reverse a conviction. The United States, as petitioner, argues that under FRCP 11(h), courts must review any courts errors in the plea bargaining process under the harmless error standard of review. The United States further argues that many 11(c)(1) violations are minor and harmless. Respondent Davila counters that 11(c)(1) errors are universally prejudicial due to the repurposing of the judge in a prosecutorial role and interfering with the adversarial process. Davila contends that this change of posture taints all of the following proceedings and therefore requires an automatic reversal. This case will affect the finality of convictions, with the United States arguing that finality will be undermined because most convictions are obtained through guilty pleas, while Davila argues that an automatic reversal rule would lead to more efficient review and make properly administrated convictions truly final, without having to be litigated for error.
- Jonathan Stempel, Supreme Court to review judge's role in plea talks, Thompson Reuters.
- Plea bargains, Wex.
- Federal Rule of Criminal Procedure 11.