UNITED STATES of America, Plaintiff-Appellee, v. Bernardo MANCINAS-FLORES, aka Arturo Morales-Garcia, aka Bernardo Mancias-Flores, Defendant-Appellant.
No. 08-10094.
United States Court of Appeals, Ninth Circuit.
Filed Dec. 2, 2009.
As Amended December 30, 2009.
677
Argued and Submitted Oct. 5, 2009.
pear before her“); Rivera v. Ashcroft, 394 F.3d 1129, 1135 (9th Cir.2005) (holding that IJ Ho “did not conduct herself as an impartial judge but rather as a prosecutor anxious to pick holes in the petitioner‘s story“) (internal quotation marks and citation omitted).
Before PAMELA ANN RYMER and A. WALLACE TASHIMA, Circuit Judges, and LYNN S. ADELMAN,* District Judge.
ORDER
The opinion filed on December 2, 2009, is amended as follows:
588 F.3d p. 681, Section II, ¶ 1, line 7. Delete “(en banc)“.
588 F.3d p. 682, ¶ 3, lines 8-9. Delete the parenthetical “, sitting en banc,“.
OPINION
ADELMAN, District Judge:
A Phoenix grand jury indicted defendant Bernardo Mancinas-Flores for a variety of offenses arising out of defendant‘s involvement in smuggling undocumented aliens into the United States and holding them for ransom in a stash house. On the morning the trial was to begin, defendant decided to enter into a plea agreement with the government pursuant to which he would plead guilty to a firearm charge. Defendant attempted to plead guilty, but the district court rejected his plea and ordered the case to proceed to trial, whereupon the jury found defendant guilty on all counts, and the court sentenced him to life in prison.
On appeal, defendant challenges the district court‘s denial of his motion to suppress evidence obtained pursuant to a warrantless search of the stash house, its rejection of his guilty plea, its decision admitting evidence of a sexual assault and its sentence. We affirm the district court‘s denial of the motion to suppress. However, we vacate the court‘s rejection of defendant‘s guilty plea and remand for a new plea hearing. Because we remand for a new plea hearing, we do not address the district court‘s decision to admit evidence of a sexual assault or its sentence.
I.
On October 6, 2005, Immigration and Customs Enforcement (“ICE“) agents in Phoenix learned that a Michigan resident had reported that smugglers were holding a relative of the Michigan resident hostage in Phoenix pending payment of a ransom. On October 7, 2005, Phoenix ICE learned that a Kansas resident had called ICE agents in Kansas City and reported that smugglers were holding his relative hostage in Phoenix. The Kansas City resident knew the smugglers’ phone number, and ICE commenced an investigation, working with the telephone service provider to locate the phone that the smugglers were using to make their demands. ICE also coordinated and recorded additional calls between the Kansas City resident and the smugglers, and during such calls, the Kansas City resident persuaded the smugglers to give him until October 10, 2005 to pay the ransom.
On October 10, 2005, at approximately 11:00 a.m., ICE identified a residence in Phoenix where the smugglers were holding the undocumented aliens. ICE then contacted the Phoenix Police Department‘s Special Assignments Unit (“SAU“) and requested that officers enter the residence and rescue the hostages. When ICE initially discussed the situation with SAU, SAU determined that exigent circumstances justifying a warrantless entry into the residence were not present. ICE and SAU discussed the possibility of a “knock and talk” operation, in which officers would knock on the door of the stash house and request permission to enter it. However, between 11:30 a.m. and 11:45 a.m., an
The government initially charged defendant and Vazquez-Vera with conspiracy to commit hostage taking, hostage taking, conspiracy to harbor illegal aliens and harboring illegal aliens. In a superceding indictment, it added a fifth count, possession or use of a firearm in a crime of violence, in violation of
Defendant moved to suppress the evidence obtained from the entry into the stash house, and the district court denied the motion, holding that defendant had no legitimate expectation of privacy in the stash house and that even if he had, exigent circumstances justified the search. The court also denied defendant‘s motion to bar the admission of evidence that he had sexually assaulted a female alien.
On the morning of trial, the parties informed the court that defendant had decided to plead guilty to the firearm count in exchange for the government‘s dismissing the remaining counts and agreeing to a sentencing range of twenty to thirty years. The court replied that it would reject any plea agreement that limited the sentence to thirty years, but that it would entertain a plea agreement calling for a higher sentence. The parties then reached a new plea agreement, under which defendant would plead guilty to the firearm charge in exchange for dismissal of the remaining counts and a sentencing range of twenty-five to forty years.
The court then engaged in a colloquy with defendant, which culminated in the following exchange:
THE COURT: Do you understand what‘s happening now today?
THE DEFENDANT: I do understand.
THE COURT: What‘s happening?
THE DEFENDANT: I am accepting a charge, a crime.
THE COURT: Have you talked to your attorney about it?
THE DEFENDANT: Yes, we have talked.
THE COURT: And did she assist you in understanding what the agreement was?
THE DEFENDANT: Yes, she communicated to me the things.
THE COURT: And have you decided, then, to plead guilty?
THE DEFENDANT: Yes, I have decided to plead guilty because I was told otherwise I could get life in prison and I do have a family and children.
THE COURT: Are you pleading guilty because you are guilty?
THE DEFENDANT: Well, those are the charges they have filed against me. I have never been shown evidence of fingerprints on the weapons or things like that.
THE COURT: Are you pleading guilty because you are guilty?
THE DEFENDANT: Well, I‘m really not guilty.
THE COURT: All right. Let‘s bring the jury up. All right.
The court immediately commenced the trial, and the jury found the defendant guilty on all five counts. The court sentenced him to life imprisonment on the hostage taking counts, 120 months on the harboring counts, and eighty-four months on the
II.
Defendant argues that the district court erred in its handling of his guilty plea. He contends that the plea met all the requirements of
A.
We begin the analysis by reviewing some of the general principles applicable to plea proceedings under the Federal Rules of Criminal Procedure. A defendant may plead not guilty, guilty or, with the court‘s consent, nolo contendere.
Although unmentioned in Rule 11, courts and lawyers sometimes refer to an “Alford plea.” An Alford plea is a plea of guilty in which the defendant maintains his innocence. See generally Alford, 400 U.S. at 36. See also United States v. Crowell, 374 F.3d 790, 791 (9th Cir. 2004). An Alford plea differs from a nolo plea in that a defendant pleading nolo contendere takes no position on guilt or innocence, whereas a defendant entering an Alford plea takes the position that he is not guilty. It bears repeating that, as far as the text of Rule 11 is concerned, there is no such thing as an Alford plea. An Alford plea is simply shorthand for a guilty plea accompanied by a protestation of innocence. Thus, when a defendant offers what courts and lawyers describe as an Alford plea, the defendant is actually offering, in Rule 11 terms, a guilty plea. See United States v. Tunning, 69 F.3d 107, 110-11 (6th Cir.1995) (discussing difference between Alford and nolo pleas and noting that an Alford plea is a guilty plea within the meaning of Rule 11, not a nolo plea).
Rule 11 imposes a number of requirements on a district court confronted with a guilty or nolo plea.
If the defendant offers a guilty plea (whether an Alford plea or other),
Before accepting a plea of nolo contendere, a court must consider the parties’ views and the public interest in the effective administration of justice.
Finally, we note that a district court may also have discretion to reject an Alford plea even if the plea satisfies the Rule 11(b) requirements. See United States v. O‘Brien, 601 F.2d 1067, 1069 (9th Cir.1979). However, our decision in Vasquez-Ramirez casts doubt on this proposition. In
B.
In the present case, defendant pleaded guilty, and when the court questioned him, he stated that he had decided to plead guilty because he had been advised that otherwise he faced the possibility of a life sentence. The court then asked him whether he was “pleading guilty because he was guilty,” and he responded as follows: “Well, those are the charges they have filed against me. I have asked for evidence but, for example, I have never been shown evidence of fingerprints on the weapons or things like that.” The court then repeated its earlier question: “Are you pleading guilty because you are guilty?,” and when defendant responded, “Well, I‘m really not guilty,” the court ended the colloquy and called for the jury. The court did not state a reason for rejecting defendant‘s plea.
The court‘s failure to state a reason for rejecting the plea is problematic. As explained in the discussion above, a court may reject a guilty plea for a number of different reasons, and usually we would review its decision to reject the plea for one of those reasons for abuse of discretion. However, without knowing the basis for the decision to reject the plea in the first place, we cannot review for abuse of discretion. Abuse-of-discretion review is not meaningful where a court fails to give reasons for its decision and its reasons are not apparent from the record. Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1177 (9th Cir.1996); Rarogal v. INS, 42 F.3d 570, 572 (9th Cir.1994) (discretionary decision must show proper consideration of all factors); Ins. Co. of N. Am. v. Moore, 783 F.2d 1326, 1328 (9th Cir.1986) (“Unless it is clear from the record that the district court‘s exercise of discretion was based on consideration of the relevant factors, we cannot review the decision for abuse of discretion without benefit of the lower court‘s reason for deciding as it did.” (Internal quotation marks and citations omitted)).
In the present case, the district court did not give a reason for rejecting defendant‘s plea and its reasons are not apparent from the record. The record tells us only that the court acted after defendant said that he was really not guilty. But this tells us nothing about the court‘s reasoning. Indeed, we can think of at least four reasons for the court‘s action that are consistent with this record: (1) the court mistakenly thought it could not accept a guilty plea from a defendant who maintained his innocence; (2) the court thought that the plea lacked a factual basis and thus had to be rejected under
This is not a case in which we may affirm so long as any ground for affirming appears in the record. So although it is possible that the district court properly exercised its discretion, such possibility does not enable us to affirm. When a district court makes a discretionary decision, we will affirm so long as the decision is within the range of permissible decisions that the court could have made given the law and the facts confronting it. But before we can be sure that the district court‘s choice falls within that range, we need to be certain that the district court applied the proper law, considered all the relevant factors, and actually exercised its discretion. See United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005) (“[W]henever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise.“). In short, when we review for abuse of discretion, we necessarily review the district court‘s decision-making process, not simply whether the decision resulted in a permissible outcome.1
The dissent characterizes defendant‘s plea as a hybrid of an Alford and a nolo plea. Diss. Op. at 689, n. 2 & 690, n. 5. Relying on United States v. Buonocore, 416 F.3d 1124, 1129-31 (10th Cir.2005), the dissent then argues that a judge may adopt a policy of never accepting Alford or nolo pleas and thus may reject either type of plea (or a hybrid) without stating any reason. But even assuming that a judge may adopt a policy of refusing to accept all Alford or nolo pleas regardless of the facts and circumstances of the case before her,2 the judge must at least disclose that she has such a policy and that she is rejecting the defendant‘s plea pursuant to that policy. Otherwise, we are left to guess at the district court‘s reason for rejecting the plea, and we cannot know whether the district court applied the correct law or considered all the relevant factors. Indeed, in Buonocore, the district judge stated that she had a policy against accepting Alford and nolo pleas, that the law did not require that she accept such pleas, and that she saw no reason to depart from her policy with respect to the defendant‘s plea. 416 F.3d at 1127.3 This statement of rea-
sons revealed that the district judge at least applied the proper law and exercised her discretion in concluding that Alford and nolo pleas are generally not in the public interest. Thus, Buonocore does not support the proposition that a district judge need not give a reason when it rejects a guilty plea.
The government suggests that the district court rejected defendant‘s plea because defendant‘s statement that he was really not guilty indicated that the plea was involuntary or lacked a factual basis. The dissent also asserts that defendant‘s statement caused the plea to lack a factual basis. Diss. Op. at 688-89. However, by itself, defendant‘s statement does not suggest either that the plea was involuntary or that it lacked a factual basis. Even if he believed himself not to be guilty, defendant may have realized that he would likely be convicted and that it was in his best interest to plead guilty. If so, the plea would not have resulted from force, threats or promises outside of the plea agreement, and defendant‘s statement that he was really not guilty would not have indicated involuntariness.
With respect to whether defendant‘s statement indicated the absence of a factual basis, during the plea colloquy the district court did not discuss the elements of the firearm charge with defendant and did not ensure that defendant understood how his conduct related to the elements of the offense. And as explained above, the factual basis requirement is meant to ensure that a defendant does not plead guilty based on a misunderstanding of his conduct in relation to the elements of the crime charged. See McCarthy, 394 U.S. at 466-67; Mastrapa, 509 F.3d at 658-60;
Accordingly, we are not satisfied that the district court‘s rejection of defendant‘s guilty plea was the result of an exercise of discretion made after consideration of all the relevant factors. We therefore vacate the court‘s decision to reject the plea. However, we cannot accept defendant‘s contention that the district court was required to accept his plea. The court did not discuss all of the subjects listed in
Defendant asks that we direct that the case be assigned to a different judge on remand, and the government has not taken a position on reassignment. We deny the request because the district judge has not “exhibited personal bias requiring recusal,” nor are there any “unusual circumstances” which warrant such reassignment. In re Ellis (Ellis v. U.S. Dist. Court), 356 F.3d 1198, 1211 (9th Cir. 2004) (en banc).
C.
Before proceeding to the remaining issue, we address one last matter in connection with the plea. The government argues that even if the district court erred in rejecting the guilty plea, we may review only for plain error because defendant did not object after the court rejected his plea. However, as the Seventh Circuit has recently explained, a party does not “object” to a court‘s ruling; rather, when a party tries to inform the court that a ruling it has already made is erroneous, it is taking an “exception” to the ruling. United States v. Bartlett, 567 F.3d 901, 910 (7th Cir.2009). Under
Even assuming defendant had an obligation to object to the court‘s ruling, the court afforded him no opportunity to do so. Pursuant to
To be sure, defendant‘s counsel might have better served her client had she interrupted the court, asked for an explanation of its decision and requested a recess to meet with her client and determine whether to ask the court to reconsider its rejection of the plea. But the Rules do not require a defendant to force an objection or exception into the record. Rather, exceptions are unnecessary, and an objection is required only if the court affords a party the opportunity to make one. See Cunningham, 429 F.3d at 679-80(noting that although it would have been desirable for defense counsel to call court‘s attention to
III.
We next consider whether the district court erred in denying defendant‘s motion to suppress evidence obtained as a result of the warrantless search of the stash house. The district court found that defendant had no legitimate expectation of privacy in the stash house and that even if he did, the search was justified by exigent circumstances. We find that exigent circumstances justified the search and therefore do not decide whether defendant had a reasonable expectation of privacy in the stash house.
Whether exigent circumstances justified a warrantless search is a mixed question of law and fact which we review de novo. United States v. Russell, 436 F.3d 1086, 1089 n. 2 (9th Cir.2006). However, we review any findings of fact made by the district court in the course of its determination for clear error. Id.
“‘[W]arrants are generally required to search a person‘s home or his person unless “the exigencies of the situation” make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the
In light of the principle that an ongoing hostage situation presents exigent circumstances, we find that the search of the stash house was reasonable. In the original phone call, the smugglers threatened to kill and rape the hostages if the ransom remained unpaid. The smugglers agreed to give family members until October 10th to pay the ransom before harming the hostages, but ICE did not locate the stash house until October 10th, and thus time was running out. Further, testimony at the hearing on the motion to suppress indicated that the officers’ conclusion that they did not have time to obtain a warrant once they pinpointed the location of the stash house was reasonable. Both an ICE agent and a SAU officer testified about instances in which they waited too long to enter a stash house, resulting in people being raped or killed.
Defendant argues that even if there were exigent circumstances, the government should have prepared in advance to obtain a warrant, and its failure to do so
Our decision in United States v. Couch, 688 F.2d 599, 603-04 (9th Cir.1982) is instructive. In Couch, customs agents seized a suspected drug smuggler at an airport and detained him without a warrant for an extended period of time based on a confidential informant‘s tip received the previous day. Because of the tip, the agents knew the day before that the smuggler would arrive but made no preparations for obtaining a warrant. The defendant argued that this failure made his extended warrantless detention unreasonable. However, this court rejected his contention, holding that the agents did not have to prepare to obtain a warrant because they could not have known one would be needed until the smuggler arrived at the airport and corroborated the informant‘s tip.
Likewise, in the present case, ICE was not required to predict what would happen during the course of its investigation. Although ICE hoped that it would locate the hostages with help from the telephone service provider, the investigation could have taken a different turn during the days leading up to the search. Indeed, prior to locating the stash house, ICE did not even know if the hostages were being held inside a residence, inside a business, or out in the desert. Until ICE located the stash house and confirmed the hostages’ presence, it did not know that a warrant would be necessary or what to state in an affidavit. Upon locating the stash house, the ongoing threat of harm to the hostages justified an immediate entry. Thus, as in Couch, the agents in the present case were not required to apply for a warrant ahead of time or arrange for a telephonic warrant.5 Accordingly, we affirm the district court‘s decision to deny the defendant‘s motion to suppress the fruits of the search of the stash house.
IV.
For the reasons stated, we VACATE the district court‘s rejection of defendant‘s guilty plea and REMAND with instructions that the district court hold a new plea hearing and allow defendant to plead guilty to the firearm charge pursuant to the plea agreement. If the court accepts the plea, the court should sentence defendant in accordance with the plea and enter a new judgment. If the court rejects the plea, it must clearly state its reasons so that we can determine in any subsequent appeal whether the court abused its discretion. We AFFIRM the district court‘s denial of defendant‘s motion to suppress.
AFFIRMED in part, VACATED in part, and REMANDED.
RYMER, Circuit Judge, concurring in part and dissenting in part:
I would not allow Mancinas-Flores another crack at pleading guilty to the firearm charge. Having offered to enter a guilty plea, Mancinas-Flores told the judge during the Rule 11 colloquy: “I‘m really not guilty.” The judge then stopped the proceeding. I believe she had discre-
At no point did Mancinas-Flores ask for a recess, a continuance, or an opportunity to explain his response, nor did he indicate that the court should treat his plea as a nolo contendere plea or as an Alford plea,1 nor did he object at the hearing or later that the district court misunderstood his intentions, the nature of his plea, or the law. He did not ask to try again, or for reconsideration. Now he says he was offering an Alford plea, but in these circumstances I would decline to consider a theory about the plea that was nowhere presented to the district court.
Even assuming that what Mancinas-Flores really wanted to do was enter an Alford plea—despite the fact he never said so and did not state at the plea hearing that he was innocent—the district court had broad discretion to decline to go forward.2 We have made clear that a court is under no obligation to accept an Alford plea. As we said in United States v. O‘Brien, a court “may accept a guilty plea of one who protests his innocence, United States v. Alford, but acceptance is not required.” 601 F.2d 1067, 1069 (9th Cir. 1979) (citation omitted). Mancinas-Flores suggests that O‘Brien is out-of-date, but O‘Brien has never been overruled and indeed, Alford itself—and Rule 11—makes the same point. Alford, 400 U.S. at 38 n. 11;
Mancinas-Flores argues, and the majority holds, that the district court‘s failure to explain its reasons means that it did not actually exercise its discretion. I disagree
The reasons an Alford plea is problematic are, in any event, well recognized. To quote the Advisory Committee to Rule 11:
The defendant who asserts his innocence while pleading guilty or nolo contendere is often difficult to deal with in a correctional setting, and it may therefore be preferable to resolve the issue of guilt or innocence at the trial stage rather than leaving that issue unresolved, thus complicating subsequent correctional decisions. The rule is intended to make clear that a judge may reject a plea of nolo contendere and require the defendant either to plead not guilty or to plead guilty under circumstances in which the judge is able to determine that the defendant is in fact guilty of the crime to which he is pleading guilty.
Beyond this, I disagree with the majority‘s premise that the district court might have rejected the plea for improper as well as proper reasons. Maj. op. at 682-83. Rather, I presume that district judges know the law. See, e.g., United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008); Walton v. Arizona, 497 U.S. 639, 653 (1990) (“Trial judges are presumed to know the law and to apply it in making their decisions.“), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002). Thus, I presume that the experienced district judge in this case knew that she could accept a plea accompanied by protestations of innocence,7 but that she didn‘t have to.
I also disagree with the majority‘s suggestion that Vasquez-Ramirez calls into question a district court‘s discretion to reject an Alford plea. Maj. op. at 682-83. Vasquez-Ramirez concerned a routine guilty plea in which the defendant admitted guilt, unlike this case where Mancinas-Flores tried to enter a guilty plea while insisting that he is “really not guilty,” or a typical Alford plea where the defendant asserts his innocence but is nevertheless willing to accept punishment and there is “strong evidence of actual guilt,” Alford, 400 U.S. at 37. Vasquez-Ramirez does not purport to speak to the situation in this case, or to an Alford plea. See 443 F.3d at 694-95. Indeed, Vasquez-Ramirez cites O‘Brien with approval for the proposition that “[a] trial court has discretion to accept or reject a guilty plea ... of one who protests his innocence.” Id. at 700 (citing and quoting O‘Brien, 601 F.2d at 1069).
Finally, even if the district judge erred by failing to give reasons, I would simply remand for the court to explicate its ruling. In all the circumstances of this case, including that Mancinas-Flores went to trial without giving the district court any notice of any objection, I see no need for letting him go back to square one (now that he knows the result of trial and sentencing) without first allowing the district court the opportunity to cure the deficiencies Mancinas-Flores and this court have identified which, had they been timely identified, the court could have done to begin with.
Accordingly, I dissent from Part II, though I concur in Part III.