UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Martin KYLE, Defendant-Appellant.
No. 12-10208.
United States Court of Appeals, Ninth Circuit.
Filed Oct. 30, 2013.
734 F.3d 956
Argued and Submitted June 12, 2013.
Were the full feast of direct review spread before us, we would be free to gnaw away at the state court‘s Brady ruling. See, e.g., United States v. Sedaghaty, 728 F.3d 885, 899-903 (9th Cir.2013) (reviewing Brady issue on direct appeal without deference to the trial court‘s ruling). However, the Supreme Court has told this Circuit specifically, emphatically, and in no uncertain terms, to curb our appetite when it comes to habeas review. See Richter, 131 S.Ct. at 785-86 (chastising this Circuit for conducting a de novo review with no deference to the state court decision).
I respectfully decline to join a ruling that so clearly flouts Supreme Court precedent. With respect, I dissent from the majority opinion.
Melinda Haag, Barbara J. Valliere, and Owen P. Martikan, Office of the United States Attorney, San Francisco, CA, for Plaintiff-Appellee.
Before: MARSHA S. BERZON and JAY S. BYBEE, Circuit Judges, and CONSUELO B. MARSHALL, Senior District Judge.*
MARSHALL, District Judge:
Appellant-defendant Kenneth Martin Kyle pleaded guilty to one count of aggravated sexual abuse of a child, in violation of
After hearing oral argument, we vacated submission and ordered supplemental briefing1 following the Supreme Court‘s decision in United States v. Davila, — U.S. —, 133 S.Ct. 2139, 186 L.Ed.2d 139 (2013). The question presented in Davila was “whether ... the violation of [
I.
Kenneth Martin Kyle was an assistant professor of public affairs and administration at California State University, East Bay in Hayward, California. Kyle first came to the attention of the Federal Bureau of Investigation (“FBI“) in December 2009 when an FBI agent using peer-to-peer file sharing software in an undercover capacity noticed a user with the moniker “cruelsob” sharing image and video files with titles indicative of child pornography. The agent downloaded 148 child pornography images and one video file containing child pornography from “cruelsob.” Later investigation revealed that “cruelsob” was associated with Kyle. The FBI referred the case to the San Francisco Police Department (“SFPD“) for further investigation.
The SFPD obtained a warrant and searched Kyle‘s apartment. Following the search, the SFPD arrested Kyle. An examination of text messages from Kyle‘s cell phone and images from his computer linked Kyle with a woman named Tessa Van Vlerah. Some of the images from Kyle‘s computer depicted Van Vlerah and her infant child engaged in sexual acts with an adult male whose face was not shown. Van Vlerah later identified Kyle as the adult male in the images and admitted that she and Kyle had molested the child.
On October 11, 2011, the District Court notified the parties of its intention to reject the first plea agreement. On October 13, 2011, the date originally set for judgment and sentencing, the District Court explained that the plea agreement was too lenient, and expressed his view that, “[this case] warrants an above-guideline sentence, substantially above-guideline sentence, and not necessarily the statutory maximum [of life imprisonment].” The District Court also stated
[Y]ou may be acquitted ... but if you are convicted, the seriousness of what you did to this little girl has to be reflected in the sentence, and the seriousness of some of the comments that you made that were fantasies has to be part of the sentence, and the seriousness of the uncharged conduct, all the child pornography that you possess, which is not part of the guideline calculation has to be taken into account.
The District Court allowed Kyle to withdraw his guilty plea
On February 2, 2012, the District Court warned the parties that they should either prepare for trial or reach a plea agreement. Counsel for Kyle responded that “we still would like to resolve the case without trial,” and offered to provide the District Court with more information on the potential sentencing range by obtaining an actuarial calculation on an effective life sentence for Kyle. The District Court and counsel then engaged in the following colloquy:
The Court: Well, [the actuary] is and it isn‘t [helpful], because I said that the Court‘s view is that this man is never going to get out of jail, period. So telling me that you‘re going to submit an evaluation of an actuary doesn‘t really help me because, quite frankly, given what I know about this case, I‘m prepared to impose a life sentence.
So if you want to go from that, you know, that‘s as much guidance as I‘m allowed to give you without getting involved in the plea bargain process. So in light of that, if the defendant wishes to go to trial and exercise all of his rights, then he should do so.
So having an actuary tell me that he or she expects the defendant is going to live any particular length of time is not going to be much help to the Court unless you all come up with something creative that meets the Court‘s concern. The Court views the conduct as being among the most serious conduct that the Court has seen in a case, almost any case. And, so, given that, that‘s my current view; and I have a lot of information that the Court, counsel, and the Probation Department have provided, but I would certainly be willing to enter-tain—you have the right to come in with any agreement you wish to and the Court will evaluate it on an individual-ized basis....
Counsel for Kyle: Your honor, please forgive me, I don‘t mean to quarrel with the Court, but I want to clarify some-thing.
When we were here last, my recollection ... was the Court said a substantial departure above the guideline but less than life. And if I‘m mistaken, please forgive me for speaking in that way, but that was the point of view that we had when we came in this afternoon.
The Court: All right. Well, I‘ve given a lot more thought to this case. I did say that and my view has changed. And since the defendant hasn‘t changed his position in reliance on what I said, the record remains the same but the Court‘s view has changed. That‘s my current view.
And having said that, of course, if the parties—you know, the Government agreed to a 30-year sentence. If the parties can change the Court‘s mind with additional data and you come in with a plea, for example, with evidence to support the wisdom of the agreement, then I would certainly consider it; but I think it‘s fair, in light of where we are, to give you the Court‘s current thinking based upon the information that it now has. And it‘s got more information than a typical case because we‘ve been through this process of motions and in-put from the Probation Department.
So it may well be that you can convince the Court of something different, but that‘s my current view and I think you have a right to know that. So I‘m not prohibiting you from coming to the Court with another agreement. If that‘s what you chose, the defendant chooses and the Government agrees, then please do so and have your data....
Counsel for Kyle: Your Honor, we ac-cept the Court‘s ruling on this.
I do want to comment that if this case is resolved without trial, it‘s a kindness to the child because it avoids having a rec-ord made of all of the things that have occurred in this case; and I think that that would be something that would be—if the record was made, I think that would be harmful to the child in the future, and that‘s one of the consider-ations....
The Court: Right. That‘s a fair point. The other side of that is the thought of Mr. Kyle being on the street while this child is alive, I think is a real—is some-thing that the Court has great concern about. If this man is out of jail at any time during the lifetime of this child, I think it‘s a very deleterious fact for this victim child.
So there‘s both sides to the story and I‘m willing to hear arguments on both sides. I‘m sure the Government will have input because the Government has closest contact with the victim and I‘m not prejudging it, but I gave you my inclination, and that‘s what we‘ll do.
On February 14, 2012, the parties pro-vided a second plea agreement to the District Court for its consideration. Pursuant to the agreement, Kyle would plead guilty to Count One, violation of
II.
This Court has jurisdiction under
III.
The parties disagree on the correct stan-dard of review for violations of
Generally, the plain-error rule applies where, as here, the defendant failed to raise the Rule 11 violation before the trial court. United States v. Domin-guez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (“Because the claim of Rule 11 error was not preserved by timely objection, the plain-error stan-dard of
IV.
Plain error is “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.... If all three conditions are met, [we] may then exercise [our] discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integ-rity, or public reputation of judicial pro-ceedings.” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal citations and quota-tions marks omitted); United States v. Doss, 630 F.3d 1181, 1193 (9th Cir.2011), as amended on reh‘g in part (Mar. 15, 2011). The key inquiry is whether “a de-fendant ... [can] show a reasonable prob-ability that, but for the error, he would not have entered the plea.” Dominguez Beni-tez, 542 U.S. at 76. In Davila, the Supreme Court emphasized the importance of a full-record assess-ment—under either harmless error or plain error review—to determine “whether it was reasonably probable,” that but for the improper judicial interference, the de-fendant would have proceeded differently. 133 S.Ct. at 2150.
1. Plain Error
We take this opportunity to empha-size that
The government further argues that any error was invited error, comparing this case to United States v. Frank, 36 F.3d 898 (9th Cir.1994). In Frank, as here, the primary issue on appeal was whether the district court judge improperly participat-ed in the parties’ plea discussion. The Court focused on an in-chambers discus-sion among counsel and the judge that occurred after the parties reached a plea agreement during a jury trial. 36 F.3d at 903. When the judge was informed of the plea agreement, he inquired about the terms of the plea agreement to determine whether it was acceptable. Id. Once he understood the terms of the plea agree-ment, the judge agreed to send the jury home and arrange a change of plea for the following day. Id. As the parties were leaving chambers, defense counsel asked the judge what he would have done in the absence of a plea agreement. Id. The judge replied that he would have sen-tenced defendant to life imprisonment. Id. This Court held that the district judge did not overstep the bounds of
In contrast to Frank, the District Court‘s February 2 remarks were made immediately after defense counsel in-formed the court that “we still would like to resolve the case without trial.” The transcript of the February 2 status confer-ence proceedings do not reveal any inquiry from counsel inviting the District Court‘s remark that “I‘m prepared to impose a life sentence.”5 The District Court‘s Febru-ary 2 remarks track the hypothetical Rule 11(c)(1) violation outlined by this Court in Frank: “Had the judge suggested a change of plea, and given force to his suggestion by saying that the defendant faced life if he went to a verdict and lost, but would get a lesser sentence if he plead-ed guilty now, [then the court would have improperly participated in plea discus-sions].” Id. at 903. Considering all that transpired in the District Court, the dis-trict judge‘s remarks emphasized to Kyle that his only chance to escape a life sen-tence would be to accept a plea agreement for a substantially longer sentence than the 360-month sentence rejected in the
Two cases from our sister circuits, Crowell and Kraus, were decided on facts more similar to those here and illustrate the district court‘s obligation to avoid im-posing “implicit or explicit pressure to set-tle criminal cases on terms favored by the judge.” Frank, 36 F.3d at 903.
In Crowell, the defendant was charged with multiple counts of fraud arising from a fraudulent investment scheme that spanned five years and involved more than 160 victims. 60 F.3d at 199. The parties reached a plea agreement, and the district judge accepted the defendant‘s guilty plea subject to a later determination on wheth-er to accept the plea agreement. Id. at 201. After further consideration, the dis-trict judge rejected the plea agreement as too lenient. Id. at 202. The parties reached a second plea agreement, and be-fore it was in final form, contacted the district judge for his views. Id. The dis-trict judge remarked that he “felt that a sentence significantly in excess of what [the defendant] likely would serve under the prior plea of guilty and plea agreement would be required for the sentence to ade-quately address his criminal conduct.” Id. The Fifth Circuit Court of Appeals held that such an “indicat[ion of] the court‘s feeling that a penalty significantly more severe than that allowed under the first plea agreement would be necessary for an agreement to be acceptable.... is precise-ly th[e] type of participation that is prohib-ited by
In Kraus, the defendant‘s original pris-on term for distribution of cocaine was vacated pursuant to
Together, Frank, Crowell, and Kraus illustrate that a district court vio-lates
2. Affecting Substantial Rights
To show that a plain error has affected substantial rights, the defendant seeking relief must show “a reasonable probability that but for [the error claimed], the result of the proceeding would have been different.” Dominguez Benitez, 542 U.S. at 81-83, 124 S.Ct. at 2339-40 (quot-ing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)) (alteration in original) (“[A] defendant who seeks reversal of his conviction after a guilty plea ... must show a reasonable probability that, but for the error, he would not have entered the plea“)). The record here not only supports such a “rea-sonable probability,” but the government‘s February 14, 2012 letter in support of the second plea agreement demonstrates that satisfying the district judge‘s concerns was foremost in the minds of both parties. First, Kyle‘s Sentencing Memorandum makes it clear that Kyle, aged 46 at the time of his arrest, desired a sentence that left him some hope of completing his sen-tence and leaving prison alive. Had Kyle been sentenced to 360-months imprison-ment pursuant to the first plea agreement, assuming no credits, he would have been approximately 76 years old upon release. Second, the parties reached the second plea agreement approximately twelve days after the District Court‘s February 2 re-marks. Cf. Davila, 133 S.Ct. at 2149 (three month interlude). The second plea agreement is substantially the same as the first plea agreement, with the critical ex-ception of increasing the agreed sentence from 360 months to 405 to 450 months. Absent the District Court‘s remarks, it is unlikely Kyle would have so quickly agreed to a significant extension of his custodial sentence in exchange for no addi-tional benefit. Further, the government‘s February 14, 2012 letter to the District Court, enclosing the second plea agree-ment, clearly appealed to the priorities set by the District Court on February 2, stat-ing “[i]t is difficult to argue that this de-fendant deserves a lighter sentence than life in prison, and the United States does not make that argument here.” We hold that Kyle has demonstrated a “reasonable probability” that he would not have agreed to the terms of the second plea agreement absent the District Court‘s remarks.
3. Fairness, Integrity, and Public Reputation of Judicial Proceed-ings
Finally, as to whether Kyle has demonstrated that the court‘s error has “seriously affected the fairness, integrity or public reputation of judicial proceed-ings,” United States v. Benz, 472 F.3d 657, 659 (9th Cir.2006), we hold that he has satisfied this requirement. See Bradley, 455 F.3d at 463 (“failure to notice this sort of clear Rule 11 error would almost inevi-tably seriously affect the fairness and in-tegrity of judicial proceedings“). The Dis-trict Court‘s February 2 remarks would be reasonably perceived by a defendant as inconsistent with the court‘s role as a neu-tral arbiter of justice.
V.
Kyle requests remand to a dif-ferent district judge. “We may remand to
VI.
For the foregoing reasons, we VACATE Kyle‘s plea and sentence and REMAND with instructions that this case be reas-signed in accordance with local court rules for further proceedings consistent with this opinion. We need not reach Kyle‘s remaining arguments on appeal.