UNITED STATES of America, Plaintiff-Appellee, v. Lloyd MYERS, Defendant-Appellant.
No. 13-10580.
United States Court of Appeals, Ninth Circuit.
September 14, 2015.
Amended October 28, 2015.
801 F.3d 1116
Cosby also argues that the district court erred by granting summary judgment on his constructive discharge claim since it viewed the evidence in a light favorable to SNS. Constructive discharge occurs “when an employer deliberately makes an employee‘s work environment so intolerable that resignation is the employee‘s only plausible alternative.” Williams v. City of Kansas City, Mo., 223 F.3d 749, 753 (8th Cir.2000). To prove a constructive discharge claim under the MHRA, an employee must show: “1) a reasonable person in the employee‘s situation would find the working conditions intolerable, and 2) the employer intended to force the employee to quit, or the employer could reasonably foresee that its actions would cause the employee to quit.” Watson v. Heartland Health Labs., Inc., 790 F.3d 856, 863 (8th Cir.2015) (internal quotation marks omitted). If an employee quits without giving the employer a reasonable chance to resolve his claim, there has been no constructive discharge. See id.
Viewing the facts in the light most favorable to Cosby, a reasonable person would not have found his work environment intolerable. Cosby relies on the two written performance warnings he received for conduct which he admits violated company policy, but the fact that an employee is disciplined in accordance with an employment policy is not enough to prove a constructive discharge claim under the MHRA. See, e.g., Tenkku v. Normandy Bank, 348 F.3d 737, 742-43 (8th Cir.2003). Constructive discharge also requires “considerably more proof than an unpleasant and unprofessional environment.” Duncan v. Gen. Motors Corp., 300 F.3d 928, 936 (8th Cir.2002) (internal quotations marks omitted). Thus, while Pfeiffer laughed after Cosby asked about his future at SNS and Pannullo told Cosby that “this” would continue if he did not resign, this evidence was insufficient to create a material factual dispute about whether Cosby‘s work environment was intolerable. Since Pfeiffer‘s statements to other employees about Cosby‘s resignation occurred after he resigned they could not have been the cause of his resignation.
Moreover, Cosby did not give SNS a reasonable opportunity to resolve any problems he had with Pannullo or Pfeiffer. See Watson, 790 F.3d at 863. Cosby admits that he never complained about his supervisors during his employment and that he resigned immediately after they gave him the two written performance warnings on August 19, 2011. See Duncan, 300 F.3d at 936. We conclude from this record that the district court properly granted SNS summary judgment on Cosby‘s constructive discharge claim.
For these reasons the judgment of the district court is affirmed.
Owen P. Martikan, Assistant United States Attorney (argued), Melinda Haag, United States Attorney, United States Attorney‘s Office, San Francisco, CA, for Plaintiff-Appellee.
Before: M. MARGARET MCKEOWN, MARY H. MURGUIA, and MICHELLE T. FRIEDLAND, Circuit Judges.
Order; Opinion by Judge MURGUIA.
ORDER
The Opinion filed September 14, 2015 [801 F.3d 1116] is amended as follows:
1. At slip op. page 20 [801 F.3d at 1126], lines 11-14, change “Even though the magistrate judge‘s participation in the settlement conference amounts to Rule 11(c)(1) error, the “error” did not cause Myers to plead guilty; the settlement conference merely facilitated that result.” to “Even though the magistrate judge‘s participation in the settlement conference amounts to
2. At slip op. page 20 [801 F.3d at 1126], lines 15-17, change “It resulted in Myers reaching a favorable plea agreement with the government, avoiding trial, and receiving a below-Guidelines sentence.” to “Moreover, Myers reached a favorable plea agreement with the government, avoided trial, and received a below-Guidelines sentence.”
With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc.
The petition for panel rehearing and the petition for rehearing en banc are DENIED (Doc. 52).
No further petitions for rehearing or rehearing en banc will be entertained in this case.
OPINION
MURGUIA, Circuit Judge:
Lloyd Myers was indicted on ten fraud-related charges stemming from his involvement in a Ponzi scheme he operated with his brother-in-law. After nearly three years of pretrial proceedings, Myers requested a judge-led criminal settlement conference in accordance with the Northern District of California‘s Criminal Local Rule 11-1. The prosecutor, initially opposed to the procedure due to the rapidly approaching trial date, ultimately acquiesced to Myers‘s request. The district court referred the matter to a magistrate judge to conduct a settlement conference. During the proceeding, Myers and the government reached a plea deal that was subsequently memorialized in a written plea agreement between the parties. Myers later pled guilty to one count of conspiracy to commit wire fraud in violation of
Myers does not dispute that he voluntarily participated in the settlement conference. Rather, he argues the procedure violated
We agree that Davila makes clear that
I
In 2003, Myers and his brother-in-law, Rodney Hatfield, created Landmark Trading Company, LLC, to solicit investments and conduct financial transactions in the foreign currency exchange markets (“Forex” transactions). Myers and Hatfield had very little, if any, training or experience with Forex trading. Between 2003 and 2006, Hatfield recruited approximately forty investors, many of whom were fellow congregation members from Myers‘s and Hatfield‘s place of worship. Once funded, Hatfield transferred the money to a Forex trading account, which Myers controlled and operated. Myers and Hatfield received over $3,000,000 from investors, but because Myers‘s Forex trades were wildly unsuccessful, Landmark never turned a profit. However, this was not the information Myers and Hatfield represented to investors. Rather, investors were told the company was flush with cash and its investments consistently achieved monthly profits of up to three percent. To disguise the company‘s losses, Myers and Hatfield used new investors’ funds to pay off other investors. By early 2007, the scheme had reached a breaking point: Myers and Hatfield reported to investors the value of Landmark‘s investment account was approximately $2,154,415, when the account actually contained a meager $4,615.
In December 2009, Myers and Hatfield were indicted in the Northern District of California for one count of conspiracy to commit wire fraud, in violation of
During the November 5 status confer-
Well, you know, I think the Court‘s intentions are to keep the ball rolling, and our idea is to have our feet to the fire . . . rather than having them in the fire. I think what we have been discussing, Your Honor, is possibly setting a [Criminal Local Rule 11-1] settlement conference prior to the Thanksgiving holiday.
Under the Northern District of California‘s Criminal Local Rule 11-1, titled “Voluntary Settlement Conference,” the government and a criminal defendant “acting jointly” may request that the district court refer the case to another judge or magistrate judge to conduct a settlement conference. N.D. Cal.Crim. R. 11-1(a). The “role of the settlement Judge is to assist the parties in exploring a voluntary settlement in a criminal case.”2 N.D. Cal.Crim. R. 11-1(c). The rule expressly provides: “[a]ny party may unilaterally withdraw its request for a settlement conference at any time.” N.D. Cal.Crim. R. 11–1(d).
The government initially resisted Myers‘s request for a settlement conference. The prosecutor acknowledged that Myers had made “good efforts in trying to resolve the matter up until today,” but stated “the government‘s ability to resolve [the case without trial] would be rapidly diminishing” given the approaching trial date. However, the government ultimately agreed to Myers‘s request and the district court referred the matter to a magistrate judge to oversee the settlement conference.
On December 14, 2012, the parties took part in a five-hour settlement conference with the magistrate judge, where Myers agreed, among other things, to plead guilty to one count of conspiracy to commit wire fraud. A few weeks later, Myers and the government entered into a written plea agreement in which Myers agreed, among other things, to “give up [his] right to appeal [his] conviction, the judgment, and orders of the Court.”
The district court held a change of plea hearing in February 2013. There, Myers acknowledged that he had waived his right to appeal his conviction and sentence, and he affirmed that his guilty plea was knowing and voluntary. Myers expressed satisfaction with the quality of his representation and confirmed that he was pleading guilty because he was, in fact, guilty. The district court accepted Myers‘s guilty plea.
The district court sentenced Myers on October 15, 2013. The district court imposed a sentence of 18 months’ imprisonment, below the 24-month sentence recommended by Probation.
II
In Davila, the defendant, dissatisfied with his court-appointed attorney, sent a letter to the district court requesting that a new attorney be appointed to represent him. According to Davila, his lawyer advised him to plead guilty and therefore “offered no defensive strategy.” 133 S.Ct. at 2143. The request for new counsel was referred to a magistrate judge who, during an in camera hearing, made a number of inappropriate comments urging Davila to plead guilty and cooperate with the government.3 Id. at 2143-44. Davila pled guilty about three months later. He then appealed, arguing that the magistrate judge‘s comments violated Rule 11. Id. at 2144-45. The Eleventh Circuit agreed and vacated Davila‘s guilty plea consistent with the circuit‘s then-existing rule requiring automatic vacatur for
The government conceded that the magistrate judge‘s comments violated
The Court determined that automatic vacatur was not an appropriate remedy for a violation of
Myers argues that Davila sets forth a bright-line rule that magistrate judges cannot participate in plea negotiations under
We observe that each decision of this court that has expressly addressed the scope of
We note that this means Northern District of California Local Criminal Rule 11-1(a) was and is in conflict with
III
The parties dispute whether Myers‘s appeal waiver precludes our consideration of the merits of his Rule 11 claim. Generally, “[a] defendant‘s waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.2005), overruled on other grounds by United States v. Castillo, 496 F.3d 947, 957 (9th Cir.2007) (en banc). Myers acknowledges that he waived his right to appeal his conviction and sentence in his plea agreement, but he contends the waiver does not preclude our consideration of his Rule 11 claim. See United States v. Brizan, 709 F.3d 864, 866 (9th Cir.2013) (“We decline to enforce an appeal waiver . . . if the district court failed to comply with
“The doctrine of invited error prevents a defendant from complaining of an error that was his own fault.” United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir.1992). Under the doctrine, an error is “waived and therefore unreviewable” when “the defendant has both [1] invited the error, and [2] relinquished a known right.” United States v. Perez, 116 F.3d 840, 845 (9th Cir.1997) (en banc) (citing United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
Here, with respect to Perez‘s first inquiry, there is little question Myers invited Rule 11 error. During the status hearing on November 5, 2012, defense counsel requested the settlement conference as a last-ditch effort to resolve the case before trial. In counsel‘s words, Myers wanted “to have [his] feet to the fire” in a settlement conference “rather than having them in the fire” at trial. While the government was initially inclined to proceed to trial, it ultimately agreed to participate in the settlement conference. The government notified Myers that its “ability to resolve [the case without trial] would be rapidly diminishing,” and with this in mind, Myers participated in the judge-led settlement conference the following month. Myers could have withdrawn from the settlement conference at any time, yet he participated in the process knowing full well the government would take the case to trial if he
Because of the limited record before us, the second showing required under Perez—“whether [Myers] intentionally relinquished or abandoned a known right“—is less clear. Perez, 116 F.3d at 845 (citing Olano, 507 U.S. at 733). As our en banc decision in Perez clarified, the Supreme Court‘s decision in “Olano limits our application of the invited error doctrine to those rights deemed waived, as opposed to merely forfeited, that is, ‘known right[s]’ that have been ‘intentional[ly] relinquish[ed] or abandon[ed].‘” 116 F.3d at 842 (alterations in original) (quoting Olano, 507 U.S. at 733). “Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant‘s choice must be particularly informed or voluntary, all depend on the right at stake.” Olano, 507 U.S. at 733. Thus, to find that Myers waived
As to the first inquiry, we hold that
On this record, however, we cannot say that Myers knowingly waived
The government nonetheless urges us to conclude that Myers waived
While the government‘s arguments explain why Myers requested the settlement conference, and the explanations support a
IV
Generally, “where, as here, the defendant failed to raise the Rule 11 violation before the trial court,” we review the alleged error under the plain-error standard. Kyle, 734 F.3d at 962; United States v. Dominguez 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 standard of
Myers disagrees. He argues that because he only learned of the Rule 11 violation after the Supreme Court decided Davila on June 13, 2013—nearly six months after Myers‘s settlement conference took place—he was deprived of a “meaningful opportunity to make a contemporaneous objection” to the procedure. Myers also argues that an objection to the settlement conference procedure would have been futile since at the time, he requested the procedure, it was fully compliant with this Circuit‘s law. Myers reasons that the district court “would not have sustained any objection” to the procedure because the court “clearly did not believe . . . the settlement conference violated
These arguments are unavailing for a number of reasons. First, nothing in the record indicates that Myers‘s participation in the settlement conference was anything but voluntary—a point Myers‘s appellate counsel conceded during oral argument. Myers requested the procedure and could have thereafter “unilaterally withdraw[n his] request for a settlement conference at any time,” N.D. Cal.Crim. R. 11-1(d), but he simply failed to do so. This failure supports reviewing Myers‘s alleged error under our plain-error standard. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (holding that “a silent defendant has the burden to satisfy the plain-error rule“).
Moreover, the record establishes that Myers‘s participation in the settlement conference was a tactical decision. Throughout the lengthy pretrial proceedings in this case, Myers actively sought a plea agreement with the government. The circumstances surrounding Myers‘s request for a settlement conference suggest that he requested—and participated in—a settlement conference to further this goal. Myers‘s counsel requested the settlement conference four months before the trial date only after the district court inquired whether the parties wished to move up the trial date. Notably, during the same hearing, the government informed the district court it would soon be preparing for trial and as a result “the government‘s ability to resolve [the case without trial] would be rapidly diminishing.” Thus, Myers participated in the settlement conference knowing that if the parties failed to reach a plea deal, the case would likely proceed to a jury trial on the ten counts charged in the Indictment.
Under these circumstances, we see no reasons to deviate from our general rule that the plain-error standard governs the review of unpreserved errors. See Vonn, 535 U.S. at 73 (noting that failure to review unpreserved errors under the plain-error standard creates a perverse incentive for defendants to “simply relax and wait to see if the sentence later struck him [or her] as satisfactory“); see also United States v. Sanya, 774 F.3d 812, 815 (4th Cir.2014) (“Because [defendant] neither objected to the judge‘s involvement in plea discussions, nor made an attempt to withdraw his guilty plea, we consider his appellate argument under the rigorous plain error standard.“).
V
“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, integrity, or public reputation of judicial proceedings.‘” Kyle, 734 F.3d at 963 (alterations in original) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal citations and quotations marks omitted)). Indeed, correcting an error under ”
“[A] defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83. To meet this standard, Myers bears the burden to establish that, based on the totality of the circumstances, “the probability of a different result is ‘sufficient to undermine confidence in the outcome’ of the proceeding.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Myers cannot make this showing. As we discuss above, the Northern District‘s settlement conference procedure is not categorically impermissible: while the procedure violates the plain letter of
Moreover, even if Myers could establish that the alleged error affected his substantial rights, we would not exercise our discretion to correct the error because Myers‘s voluntary participation in the judge-led settlement conference that he requested in no way “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” See Johnson v. United States, 520 U.S. 461, 469-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (“[E]ven assuming that the [alleged error] ‘affec[ted] substantial rights,’ it does not meet the final requirement of” the plain-error standard of review).
AFFIRMED.
MARY H. MURGUIA
UNITED STATES CIRCUIT JUDGE
Notes
In a settlement conference, a judicial officer, usually a Magistrate Judge, facilitates the parties’ efforts to negotiate a settlement. Some settlement Judges use mediation techniques in the settlement conference to improve communication among the parties, probe barriers to settlement, and assist in formulating resolutions. A settlement Judge might articulate views about the merits of the case or the relative strengths and weaknesses of the parties’ legal positions. N.D. Cal. ADR R. 7-1.
You‘ve got to go [to the cross] and you‘ve got to tell 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 [D]istrict [J]udge and he will say, you know, that Davila guy, he‘s got a long criminal history but when we were in there talking about this case he gave it all up so give him the two-level, give him the three-level reduction.
Id. (alterations in original).