Rubеn Adolfo CERON, aka Ruben Ceron-Casco, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
No. 08-70836
United States Court of Appeals, Ninth Circuit
Sept. 19, 2013
Bryan Stuart Beier, Senior Litigation Counsel, Joseph Anthony O‘Connell, Oil, Cindy S. Ferrier, Senior Litigation Counsel, Sunah Lee, Trial, U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
ORDER
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to
UNITED STATES of America, Plaintiff-Appellee, v. Delcia ARQUETA-RAMOS, Defendant-Appellant.
No. 10-10618
United States Court of Appeals, Ninth Circuit
Argued and Submitted July 10, 2013. Filed Sept. 20, 2013.
730 F.3d 1133
Wilbert L. Rocker, Jr. (argued), Special Assistant United States Attorney, John S. Leonardo, United Stаtes Attorney, and Christina M. Cabanillas, Appellate Chief, Tucson, AZ, for Plaintiff-Appellee.
OPINION
PAEZ, Circuit Judge:
Defendant Delcia Arqueta-Ramos appeals her conviction for illegally entering the United States, in violation of
On appeal, Arqueta-Ramos argues that the plеa proceeding violated
We further conclude that the government has not carried its burden of proving “that [Arquеta-Ramos] would have pleaded guilty even without the Rule 11 error.” Id. at 1061; see also
I. BACKGROUND
On December 29, 2009, the government charged Arqueta-Ramos with illegally entering the United States, a misdemeanor. See
“To accommodate the enormous number of prosecutiоns” that must take place under Operation Streamline, the District of Arizona “has adopted a procedure for the taking of pleas en masse intended to preserve the rudiments of [Federal Rule of Criminal Procedure] 11 and the [C]onstitution.” Roblero-Solis, 588 F.3d at 693. As we have previously explained,
In Operation Streamline proceedings, a magistrate judge is assigned to preside over a group hearing of fifty to seventy defendants charged with petty misde-
meanor violations of illegal entry. The hearing combines the defendants’ initiаl appearances, guilty pleas, and sentencing hearings into one proceeding.
United States v. Aguilar-Vera, 698 F.3d 1196, 1198 (9th Cir.2012) (internal quotation marks and citation omitted); see also Roblero-Solis, 588 F.3d at 694.
At this particular hearing, the magistrate judge took a roll call of sixty-six defendants, including Arqueta-Ramos, who were present “for initial appearance, possible change of plea and sentencing.”2 Transcript of Proceedings, Initial Appearance, Change of Plea and Sentencing, United States v. Arqueta-Ramos, No. 09-37497MP (D.Ariz. Dec. 29, 2009), ECF No. 14.3 The defendants werе represented by fifteen different lawyers, each of whom represented between three and five defendants. During the roll call, Arqueta-Ramos requested a hearing outside of the en masse proceeding on the ground that the proceeding did not comply with Rule 11. The judge denied the request.
The judge then collectively addressed the group of sixty-three defendants.4 She asked them to “please stand” if they were “having trouble hearing through [their] headphones.” No one stoоd. The judge then explained,
I‘m going to start by addressing all of you as a group, and then I will call you and your attorneys up five at a time to speak to you more individually about your case.
If at any time during this proceeding you don‘t understand, and would like your attorney to approach and speak with you, please stand up, and let me know right away, I‘ll stop the proceed-ings and have you consult with your attorney.
The judge then advised the defendants of their pre-trial and trial rights. First, the judge informed the defendants that they had the right to be represented by a court-appointed attorney if they could not afford their own. She then stated that each defendant had been given an attorney before the hearing and asked the defendants to “please stand” if they were not given sufficient time to meet with their attorneys. No defendant stood. Second, the judge informed the defendants that they had a right to remain silent, but would give up that right if they pled guilty. She asked “anyone [who] does not understand this right [to] please stand“; no one stood. Third, the judge informed the defendants that “[t]he maximum penalties for illegal entry are six months in prison and a fine of $5,000.” Fourth, the judge informed the defendants that if they pled guilty they would have a criminal conviction on their records. She further explained that, after serving their sentences, the defendants would be deported, not just voluntarily returned, to their native countries, and that, if they illegally re-entered the United States again, they could be chаrged with a felony and serve years in prison. Fifth, the judge explained that the defendants who had entered into written plea agreements were waiving their right to appeal, and the defendants who had not signed such agreements would have fourteen days to file a notice of appeal. The judge then explained what rights the defendants would have if they decided to proceed to trial.
Court: Counsel, do each of you believe that your clients are competent to plead and are pleading voluntarily?
All answer yes.
Court: Do each of you believe that your clients understand the penalties they‘re facing and the rights they‘re giving up?
All answer yes.
Court: Do any of the defendants feel threatened or forced to plead guilty?
Interpreter: All answer no.
Court: Do each of you understand the maximum penalties?
Interpreter: All answer yes.
Court: Do each of you understand your right to a court trial?
Interpreter: All answer yes.
Court: Do each of you wish to waive this right and plead guilty?
Interpreter: All answer yes.
Court: Do each of you understand your right to appeal?
Interpreter: All answer yes.
Court: Are any of you citizens of the United States?
Interpreter: All answer no.
Court: Did each of you enter the United States during the last seven days?
Interpreter: All answer yes.
Court: Did each of you enter near the cities of Nogales, Sasabe or Douglas?
Interpreter: All answer yes.
Court: Did each of you-did any of you enter at a designated pоrt of entry in one of these cities?
Interpreter: All answer no.
Court: Did any of you have legal authorization to be in the United States?
Interpreter: All answer no.
. . .
Court: Miss Arqueta-Ramos, how do you plead, guilty or not guilty?
Defendant: Guilty.
Immediately after this colloquy, Arqueta-Ramos renewed her objection that the proceeding violated Rule 11. Her attorney argued that “Rule 11 requires that the [c]ourt address individuals personally,” explaining that the objection was “not to what the [c]ourt said specifically,” but rather “to the process as a whole,” which “does not allow for individuals to be seen personally by the [c]ourt.” The judge rejected Arqueta-Ramos‘s argument, entered a judgment of conviction, and sentenced her to time served. According to the government, Arqueta-Ramos was removed from the United States that same day.
Arqueta-Ramos appealed to the district court, which rejected her Rule 11 argument and affirmed her conviction. See
II. STANDARD OF REVIEW
“The Court reviews de novo a district court‘s decision regarding questions of law, including the sufficiency of a Rule 11 plea colloquy.” Aguilar-Vera, 698 F.3d at 1200. Where, as here, the defendant raised her objections during the plea proceeding, the court reviews for harmless error. Id.
A.
We must decide if the district court complied with its Rule 11 duty to “address the defendant personally in open court,” which includes both informing the defendant of her rights and determining that she understands those rights.
In our first encounter with Operation Streamline, we held that it was error for the court to both advise and question forty-seven to fifty defendants en masse, accepting “general yes” responses when the court asked the group of defendants if they understood their rights. Roblero-Solis, 588 F.3d at 695; see also id. at 700. We concluded that the court‘s Rule 11 duty to “address the defendant personally in open court,”
We refined our rule from Roblero-Solis in Escamilla-Rojas. There, as in Roblero-Solis, the court had collectively advised sixty-seven defendants of their rights. Escamilla-Rojas, 640 F.3d at 1058. It then questioned each defendant individually to ascertain whether the defendant understood her rights. We explained,
[S]uch group advisement alone does not constitute Rule 11 error. Rather, we look also to the court‘s questioning of the defendants to determine whether the court ensured “personally” that each defendant understood the rights he was waiving by pleading guilty....
In general, this process of a collective advisement followed by individual questioning may be sufficient to determine “personally” that each defendant understands his rights before pleading guilty.
Id. at 1060. Under the facts of that case, however, we concluded that the court had not complied with Rule 11 because the defendant “was not individually quеstioned until nearly two hours after the magistrate judge began his group advisement,” and he “may have found it quite difficult to recall the court‘s full advisement of rights over such a long gap of time.” Id.7 We reached the same conclusion when faced with nearly identical facts in Aguilar-Vera.8
Here, we face a new permutation of events: as in our prior cases concerning Operation Streamline, the court advised a
B.
We next consider whether the district court‘s Rule 11 error warrants reversal. “A variance from the requirements of [Rule 11] is harmless,” and does not require reversal, “if it does not аffect substantial rights.”
The government relies heavily on Escamilla-Rojas, where we held that the record was “replete with evidence that [the defendant] . . . entered her plea with full knowledge of its consequences.” 640 F.3d at 1061. We reached the same conclusion in Aguilar-Vera. 698 F.3d at 1202. But the record here is not as replete with such evidence. First, unlike in Escamilla-Rojas and Aguilar-Vera, Arqueta-Ramos did not “еxplicitly state[] that she understood her rights, the charges against her, and the consequences of pleading guilty.” Escamilla-Rojas, 640 F.3d at 1061; see also id. at 1060 (“The transcript includes specific and individual answers to these questions for each defendant, including Escamilla.“). Rather, as discussed supra, Arqueta-Ramos did not personally tell the judge anything, other than that she wished to enter a plea of “guilty.” The record reflects only “all answer yes” and “all answer no” responses from the small group of defendants. We do not know how assuredly оr uncertainly Arqueta-Ramos responded to these questions; indeed, we are not certain that the magistrate judge would have even detected if Arqueta-Ramos failed to answer one of the questions. See Roblero-Solis, 588 F.3d at 700 (expressing concern about a judge‘s ability “to hear distinctly and accurately” multiple voices offering collective responses, “however conscientious” the judge).
Furthermore, although “statements made by a criminal defendant contemporaneously with his plea” are ordinarily “accorded great weight” when “assessing the voluntariness of the plea,” Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir.1986), we have accorded them less weight where they were made in response to actions by the judge that violated Rule 11. See United States v. Anderson, 993 F.2d 1435, 1438 (9th Cir.1993) (explaining that, where the district court improperly participated in plea negotiations and imposed “unreasonable constraints” regarding the time period within which the defendant could plead guilty, “[the defendant‘s] resрonses to the judge‘s questioning” did not “allay our concerns regarding voluntariness“), abrogated on other grounds by Davila, 133 S.Ct. at 2146 n. 2. Cf. United States v. Villalobos, 333 F.3d 1070, 1075 (9th Cir.2003) (“The fact that Villalobos stipulated to a drug quantity as part of his plea agreement does not show that he would have pled guilty to this quantity or pled guilty at all if he had been properly informed about the burden of proof as to quantity.“). We therefore assign only minimal weight to Arqueta-Ramos‘s record of participation in the collective “all answer yes” and “all answer no” responses to the judge‘s questioning about whether the defendants understood their rights.
We likewise reject the government‘s second argument, that Arqueta-Ramos‘s failure to indicate that she had any questions during the plea colloquy shows that the Rule 11 error was harmless. In Escamilla-Rojas, we found it significant that the defendant “never indicated that she had any questions,” either during the group advisement “or . . . in her individual colloquy with the magistrate judge.” Escamilla-Rojas, 640 F.3d at 1061 (emphasis added); see also Aguilar-Vera, 698 F.3d at 1202 (noting that Aguilar-Vera did not stand when the defendants were told to “stand if at any point they did not understand“). But here, again, there was no individual colloquy. Nor was there a clear point during the small group colloquy at which Arqueta-Ramos could have asked a question: the court did not give the defendants an opportunity to ask questions until after she had accepted their guilty pleas, at which point it is not clear what questions Arqueta-Ramos might have even asked.11 Thus, under the facts of this case, Arqueta-Ramos‘s failure to ask a question is less рersuasive evidence of the voluntariness of her plea than it was in Escamilla-Rojas.
Nor can we rely on the third factor identified in Escamilla-Rojas: there, we found it significant that the defendant was “informed of her rights and charges . . . by her experienced defense counsel,” and that counsel “stated on the record that he had met with Escamilla and fully informed her of the proceedings.” Id. at 1061; see also Aguilar-Vera, 698 F.3d at 1202. There is no such evidence here. The record does not reflect any statements by counsel about what he told Arqueta-Ramos, much less that he had “fully informed her” of the рroceedings. It‘s true that counsel did tell the judge that he had “sufficient time” to speak with Arqueta-Ramos, and that he joined in the “all answer yes” responses to the court‘s questions, “do each of you believe that your clients are competent to plead and are pleading voluntarily?,” and “[d]o each of you believe that your clients understand the penalties they‘re facing and the rights they‘re giving up?” But counsel‘s statement that he believed his client understood her rights and was pleading voluntarily tells us little about the substance and depth of his conversations with his client. Cf. United States v. Pena, 314 F.3d 1152, 1156 (9th Cir.2003) (“The plea colloquy failed to comply with Rule 11 because the district court never explained to Pena the nature of the charges against him. Merely asking Pena whether he had read the plea agreement and asking his attorney whether the attorney, not Pena, understood and agreed with the elements of the offense is insufficient.”); United States v. Graibe, 946 F.2d 1428, 1434 (9th Cir.1991) (“What is critical in Rule 11 harmless error cases is what the defendant knew at the time of the plea....“). In the absence of more affirmative evidence of what Arqueta-Ramos knew at the time of her plea, we do not find this argument persuasive.
Finally, the government argues that Arqueta-Ramos has failed to allege that she would have pled differently if given a proper plea colloquy. See Escamilla-Rojas, 640 F.3d at 1061 (“Escamilla does not now allege that she would have pleaded differently if the magistrate judge had advised her individually rather than as part of a group.“). We agree that if Arqueta-Ramos had made such an allegation, it would be persuasive evidence that the error was not harmless. But it is not her burden to show that she would not have pled guilty absent the Rule 11 error; it is the government‘s burden to show that she would have pled guilty absent the error. See id.; Jimenez–Dominguez, 296 F.3d at 866 (“The harmless error standard, which imposes the burden upon the government to show that the error had no effect on the defendant‘s substantial rights, applies to any transgression of Rule 11 which was raised before the trial court.” (emphasis added)); see also
In sum, “it is impossible to know . . . what [Arqueta-Ramos] would have done,” absent the Rule 11 error. United States v. Kennell, 15 F.3d 134, 136-37 (9th Cir.1994). With so little evidence on the issue one way or the other, the burden of proof becomes dispositive. The government has the burden of showing that Arqueta-Ramos would have pled guilty absent the error, and it has failed to do so here.
VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
PACIFIC SHORES PROPERTIES, LLC, a California limited liability company; Alice Conner; Sean Wiseman; Terri Bridgeman, Plaintiffs-Appellants, Andrew Blair, Plaintiff, v. CITY OF NEWPORT BEACH, a California municipal corporation, Defendant-Appellee. Newport Coast Recovery LLC, a California Limited Liability Company; Yellowstone Women‘s First Step House, Inc., Plaintiffs-Appellants, v. City of Newport Beach, a California municipal corporation, Defendant-Appellee.
Nos. 11-55460, 11-55461
United States Court of Appeals, Ninth Circuit
Argued and Submitted Nov. 6, 2012. Filed Sept. 20, 2013.