UNITED STATES of America, Plaintiff-Appellee, v. Tavon BRADLEY, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Solomon Levi Jones, a/k/a Monkey Bird, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Eric Lamont Bennett, a/k/a E Man, Defendant-Appellant.
Nos. 02-4390, 02-4393, 02-4402
United States Court of Appeals, Fourth Circuit
Argued: May 26, 2006. Decided: July 25, 2006.
455 F.3d 453
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
2. The majority notes, as if it supported its position rather than mine, that the district court reinforced with Revels the importance of the PSR. But of course, the fact that the court advised Revels of the importance of the PSR actually cuts in favor of the conclusion that I reach, namely, that Revels admitted the facts contained in the PSR when he stated that he had no objection to the PSR. The majority also claims that I attach no significance to Revels’ Blakely objection. But of course, the Blakely objection—expressing Revels’ subjective view that he had not admitted the facts during the plea—has no bearing on the legal question whether his subsequent affirmation that he had no objection to the PSR constituted an admission of the facts therein.
Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge GREGORY and Judge DUNCAN joined.
OPINION
MOTZ, Circuit Judge:
After several extensive plea discussions with the district court, Tavon Bradley, Solomon Jones, and Eric Bennett (collectively “the Defendants“) pleaded guilty to charges of conspiracy to distribute crack cocaine and of illegal use of firearms. On appeal, they argue that their guilty pleas were not voluntary because the court impermissibly participated in plea negotiations, repeatedly encouraging them to plead guilty. As the Government properly concedes, the record indisputably reflects this participation and encouragement. Because Defendants have demonstrated that this admitted plain error adversely affected their substantial rights and because we conclude that the error seriously affects the fairness, integrity, and public reputation of judicial proceedings, we must vacate the judgment of the district court and remand for further proceedings.
I.
Bennett was the leader of a wide-ranging and violent crack cocaine distribution ring that operated in Baltimore and Westminster, Maryland; Jones and Bradley participated in that conspiracy. According to the Government, pursuant to Bennett‘s orders, Jones killed a participant in a sham drug transaction, and Bradley broke into an apartment and attempted to rob the occupant at gunpoint. The Government‘s evidence included audiotapes and videotapes of the Bennett organization‘s activities and the testimony of several cooperating co-conspirators.
On August 24, 2000, a grand jury indicted Bennett on conspiracy and substantive
The next month, on March 29, the grand jury returned a superseding indictment that included the following five counts: 1) conspiracy to distribute and to possess with intent to distribute fifty grams or more of crack cocaine, 2) distribution of five grams or more of crack cocaine, 3) possession of two firearms in furtherance of a drug trafficking crime, 4) possession of a firearm in furtherance of a drug trafficking crime, and 5) possession with intent to distribute a detectable amount of crack cocaine.1 The superseding indictment charged Bennett with all five counts, Bradley with counts one and four, and Jones with counts one and three. Bradley and Jones were arraigned in May 2001, and both entered pleas of not guilty. In addition to these federal charges, Bradley and Jones also faced related charges in state court: Bradley on conspiracy and robbery charges, and Jones on murder charges.
During a pre-trial conference on November 26, 2001, Jones‘s counsel stated that Jones wanted to plead guilty and that counsel had been working with federal officials and Jones‘s state counsel to coordinate a disposition covering both the federal and state charges. The Government responded that negotiations for a plea agreement with Jones were continuing. However, no plea materialized.
On January 28, 2002, the district court empaneled a jury and began the trial. The next day, January 29, Oscar Bennett, a cooperating co-conspirator and Eric Bennett‘s cousin, testified at length about the scope and activities of the conspiracy. Before the jury entered the courtroom on the following morning, January 30, the court dismissed counsel for the Government and addressed the Defendants and their counsel directly. The court stated, “I know that each of you probably ha[s] some experience in the state system. But I am just taking this opportunity, now that you have sat through a full day of testimony of one government witness, I just want to make sure that you fully understand what is going on here.” The court then listed the evidence that the Government planned to present during the course of the trial and said: “Now, again, I don‘t know what the status was at any time about the plea negotiations in this case, and I don‘t know if there is a possibility for any further discussions.” The court continued, “before we go forward, I felt it my responsibility, my responsibility to address each of you individually to let you know what you are facing here. . . .” The court pointed out that, in its view, Oscar Bennett‘s testimony on the first day of trial demonstrated that
In response to the court‘s comments, counsel for Bennett described his plea negotiations with the Government. The Government had offered Bennett the opportunity to plead to a possession count with a recommended sentence of ten years; Bennett signed that agreement but later rejected it during the
The court then asked the prosecutors to return to the courtroom and indicated that “I have real concern that there may well be a miscarriage of justice taking place in this courtroom.” The court explained that his colloquy with the Defendants and their counsel suggested “that we are now in the third day of what is likely to be a five- or six-week trial that really nobody wants to take place.” The court noted,
As we all know, if [the Defendants] go to trial, the likelihood of a life sentence is very real and very substantial. Part of my motivation for asking [the Government] to leave the room in the first place, not knowing where this discussion was going to lead, was to give each of the defendants an opportunity to address me, if he chose, after having had the benefit of the voir dire process, [the prosecutor‘s] excellent opening statement, and Mr. Oscar Bennett‘s day-long testimony, which, to anybody sitting here, was obviously extraordinarily incriminatory of all the defendants. It is no big stretch, in fact, to observe that theoretically the government could rest its case right now on the basis of the testimony of the one witness. If the fact finder believed Mr. Oscar Bennett‘s testimony, or most of it, the case would essentially be over.
Counsel for the Government stated that the Government had negotiated in good faith and that it stood “ready to offer a plea agreement that is consistent with justice in this case.” The court replied that it would dismiss the jury early for lunch “to give you folks a chance to see whether this rather unusual hearing might result in a termination of these proceedings.”
The court cautioned, “This is very dangerous because if the proceedings are not terminated, there is the risk that the Court even took in initiating this exchange with counsel that one or more of the defendants . . . or an appellate court could regard the Court‘s actions as inappropriate, and, in some form or fashion, coercive.” The court stated, however, that it was not its intention to coerce anyone. The court also indicated that it was mystified as to why Bennett refused to plead guilty after signing the initial plea agreement: “I don‘t know what it was that caused that plea to
After a three-hour recess, the Government told the court that the parties had been unable to reach an agreement. The court asked why negotiations had been unsuccessful, and Jones‘s counsel responded that there were problems with the sentence. The court expressed puzzlement that the recommended sentence in the plea agreement presented a stumbling block because the court made sentencing decisions and was not bound by the sentence set forth in a plea agreement. At this point, counsel for Bradley stated that Bradley wanted to plead to the indictment. The
The trial continued for more than two weeks, during which the Government presented numerous witnesses who testified about the conspiracy. On February 12, 2002, the court again raised the possibility of guilty pleas: “We are in the third week of trial, and I just again ask the question, is this really what the defendants want to do?” The court continued, “They want to continue to sit through this for the next three weeks? And, again, we have not even gotten to the heart of the government‘s case, the murders, the autopsies.” The court then proceeded to discuss the case that the Government had presented against the defendants:
[I]t appears to the Court that everybody who was involved is either dead or is a witness in this case. That is why I keep asking you. I don‘t understand why you continue to sit through this trial, to be perfectly blunt about it. Everybody who has been involved apparently is going to come in here and talk about this conspiracy.
The court then asked each defendant individually if he was being intimidated or coerced into going to trial rather than pleading guilty; each defendant answered in the negative.
Shortly after this exchange, Bradley stated that he wanted to plead guilty. During this plea colloquy—Bradley‘s second—the court realized that pleading guilty to the charges in the federal case would require Bradley to in effect also plead guilty to the pending charges in state court. Bradley‘s attorney stated that there had been plea negotiations at the state level, but that the state charges remained unresolved. Bradley asked for an opportunity to consult with his lawyer regarding the outstanding state charges, and the court agreed. The court again noted its surprise that both Bradley and Bennett had turned down plea deals that would have resulted in sentences of ten years: “That really just absolutely boggles my mind. It absolutely boggles my mind. . . . It‘s really sad.”
At the end of that day‘s proceedings, the court expressed sadness that the Defendants had not taken advantage of the “very, very favorable, I would even say extraordinarily favorable, plea offers that have been made.” The court said:
[T]he reason we are so taken by this case is because this would appear—nobody can predict what this jury is going to do, nobody can ever predict what a jury is going to do, but from all appearances, this is one of the strongest cases ever to be brought in this courthouse. . . .
* * *
The reason we don‘t see cases of this sort very often, frankly, in this courtroom going to trial is because the unfortunates who get involved in the drug trade come to recognize eventually, even
if they don‘t at first, that there is benefit in not pushing the government to actually do what the government is prepared in every case to do, and that is to marshal evidence to produce against the defendants who are indicted, . . . to prove guilt beyond a reasonable doubt. I am very, very, very sad that these three young men fought their attorneys, and I use that term advisedly, and have, for reasons that are totally beyond me, and, again, I see their families sitting up there day in and day out, why they would do what they have in this case, which is to say why they would not think seriously about trying to dispose of the charges against them on a reasonable basis.
The court then asked the Defendants if they had anything to say. Jones objected to “the way you keep on judging us.” The court responded that the jury would be judging them, not the court. Jones replied: “You keep telling us to cop out, like we are already guilty.” The court replied, “I keep telling you that you are presumed innocent.” Jones then stated, “It don‘t seem like it.” Jones went on to state that he was not satisfied with the plea option the Government had presented to him: “The only deal they give is they tell [us] to cooperate or go to trial. I‘m going to trial because I won‘t cooperate with them.”
On the next day, February 13, Bennett‘s attorney indicated that Bennett wanted to plead guilty to the indictment. The court responded that, at that stage in the trial, it would only accept guilty pleas if all three defendants agreed to plead guilty. The trial continued. Six days later, on February 19, all three defendants stated that they wanted to plead guilty to the indictment. Jones, however, was having difficulty coordinating his federal plea with the charges pending against him in state court. The district court offered to contact the state judge to expedite matters. The next day, the court announced that it had discussed Jones‘s situation with the state judge and that the state court had agreed to impose a 25-year state sentence to run concurrently to any federal sentence.
During the
At sentencing, the court sentenced Bradley to 296 months (24.5 years), Jones to 720 months (60 years), and Bennett to life with a 120-month consecutive sentence.2
First, the prohibition on judicial involvement in plea negotiations guards against “the high and unacceptable risk of coercing a defendant” to enter into an involuntary guilty plea. United States v. Casallas, 59 F.3d 1173, 1178 (11th Cir. 1995) (quoting United States v. Bruce, 976 F.2d 552, 556-57 (9th Cir. 1992)). A coerced plea, of course, would violate a defendant‘s fundamental constitutional rights, see Waley v. Johnston, 316 U.S. 101, 104, 62 S. Ct. 964, 86 L. Ed. 1302 (1942) (per curiam), and “a judge‘s participation in plea negotiation is inherently coercive.” United States v. Barrett, 982 F.2d 193, 194 (6th Cir. 1992). In facilitating a plea, a “judge communicate[s] to the defendant that he desire[s] a plea” and so “raise[s] the possibility, if only in the defendant‘s mind, that a refusal to accept the judge‘s preferred disposition would be punished.” Id. “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.” United States v. Werker, 535 F.2d 198, 202 (2d Cir. 1976).
Second, prohibiting judicial participation in plea negotiations also “preserve[s] the judge‘s impartiality” both during and after the plea negotiations. United States v. Bruce, 976 F.2d 552, 557 (9th Cir. 1992). Without this prohibition there is “a real danger that a judge‘s neutrality can be compromised.” Barrett, 982 F.2d at 195. “By encouraging a particular agreement, the judge may feel personally involved, and thus, resent the defendant‘s rejection of his advice.” Cannady, 283 F.3d at 644 (internal quotation marks omitted). Judicial involvement in plea negotiations also “makes it difficult for a judge to objectively assess the voluntariness of the plea,” may affect the judge‘s ability to preside impartially over a trial if the defendant rejects the plea agreement, and may “diminish [] the judge‘s objectivity in post-trial matters such as sentencing and motions for a judgment of acquittal.” Bruce, 976 F.2d at 557-58 (internal quotation marks and citation omitted).
Finally,
Thus,
III.
Before we apply
A court‘s participation in plea negotiations does have some parallels to structural defects recognized by the Supreme Court, like the denial of the right to an impartial judge. However, after careful review of
First,
In the wake of Vonn, we have indicated that a contention like the one at issue
We continue to believe that this is the appropriate standard of review and so hold. Accordingly, in this case, because the Defendants neither objected to the district court‘s involvement in plea discussions, nor attempted to withdraw their pleas, we subject their appellate contentions to the rigorous plain error standard. This means that we will not presume prejudice. Rather, in order to prevail, Bradley, Jones, and Bennett must demonstrate not only the existence of plain error but also that this error affected their substantial rights; we must further be convinced that a refusal to notice the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. See Olano, 507 U.S. at 731-32, 113 S.Ct. 1770. We consider the entire record in determining whether these requirements have been met. See Vonn, 535 U.S. at 65-66, 122 S.Ct. 1043.
With these principles in mind, we turn to the case at hand.
IV.
In this case, the Government concedes that the district court repeatedly violated
The record here thus markedly differs from cases in which judicial comments after completion of the plea agreement or a single brief remark during negotiations have been held not to constitute impermissible judicial participation in plea discussions. Compare Cannady, 283 F.3d at 644 (holding that court‘s comments after “the parties had reached a definite agreement that had been reduced to writing and executed by [the defendant] and the government, all without any direct involvement by the district judge” did not violate
Accordingly, we turn our attention to the remaining requirements that must be met in order for the Defendants to prevail here—that the error affected the Defendants’ substantial rights and that refusal to notice the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. As the Fifth Circuit has recognized, it will be rare that a clear violation of
The Government argues, however, that neither requirement can be met in this case because the Defendants encouraged the district court‘s involvement in the plea negotiations.4 The Government particularly emphasizes defense counsel‘s efforts to effect the guilty pleas: “[T]he very same lawyers who now contend that their clients were coerced into pleading guilty, counseled their clients at trial to do so and went to considerable lengths to engineer the terms pursuant to which the defendants pleaded guilty.” Brief of Appellee at 33. However, the failure of defense counsel to recognize and to seek to avoid the
Indeed, the Government‘s argument totally ignores the applicable standard for determining the effect on substantial rights in cases involving
Although all three defendants did indicate interest in reaching plea agreements, they were only interested in a deal on their own terms. When the Government refused to agree to terms of their liking, the Defendants repeatedly rejected the Gov-
Thus, a fair reading of the record in this case leads to the inevitable conclusion that there is a “reasonable probability” that the Defendants would not have pleaded guilty in the midst of trial without the district court‘s criticizing their decision to reject plea offers from the Government, repeatedly questioning their reasons for proceeding with the trial, and advising them to plead to the indictment. Indeed, even with the court‘s repeated interventions and involvement in negotiations, which began at the outset of the trial, the Defendants did not enter a guilty plea until the trial had been underway for over two weeks. Although we have no doubt that the district court had the best of intentions,5 judicial involvement in the plea negotiations nevertheless unacceptably influenced the Defendants’ decision to plead guilty. Accordingly, the Defendants have demonstrated that the plain
Moreover, after careful review of the entire record in this case, we can only conclude that refusing to notice this plain error would seriously affect the fairness, integrity and public reputation of judicial proceedings. We have not found a single case in which the extent of judicial involvement in plea negotiations equalled that in the case at hand. The district court repeatedly appeared to be an advocate for the pleas rather than as a neutral arbiter, and any fair reading of the record reveals the substantial risk of coerced guilty pleas. Even if, as the Government claims, it could have presented uncontroverted evidence of the Defendants’ guilt if the trial had proceeded to verdict, we cannot refuse to notice the repeated judicial intervention in the plea negotiations. The fact is, the jury rendered no verdict in this case; there has been no “fair and reliable determination” of the Defendants’ guilt. Compare United States v. Cedelle, 89 F.3d 181, 186 (4th Cir.1996); see also Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (“[T]o hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.“).
Furthermore, contrary to the Government‘s contentions, on these facts defense counsel‘s willing participation in plea discussions with the court does not in any way alleviate the impact of judicial partic-
We do not suggest that the district court improperly intended to coerce involuntary guilty pleas, but the fact is:
[t]he unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not.
Barrett, 982 F.2d at 194 (quoting United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244, 254 (S.D.N.Y.1966)). Accordingly, we hold that we must notice the plain error in this case.
V.
For the foregoing reasons, the judgment of the district court is vacated and the case is remanded for further proceedings in which the Defendants will be permitted to withdraw their guilty pleas. We also remand the case for assignment to another district judge. See Miles, 10 F.3d at 1142; United States v. Corbitt, 996 F.2d 1132, 1135 (11th Cir.1993). We have little doubt that the district judge could be totally objective on remand, but our faith in his objectivity does not affect our decision. “Regardless of the judge‘s objectivity, it is the defendant‘s perception of the judge that will determine whether the defendant will feel coerced to enter a plea.” Barrett, 982 F.2d at 196 (quoting Werker, 535 F.2d at 202) (internal quotation marks omitted). Accordingly, we vacate the district court‘s judgment and remand for assignment to a different district judge.
VACATED AND REMANDED