UNITED STATES of America, Plaintiff-Appellee, v. Oluwaseun SANYA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Oluwaseun Sanya, Defendant-Appellant.
Nos. 13-4937, 13-4938.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 30, 2014. Decided: Dec. 17, 2014.
774 F.3d 812
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge MOTZ wrote the majority opinion, in which Judge FLOYD joined. Judge WILKINSON wrote a separate concurring opinion.
DIANA GRIBBON MOTZ, Circuit Judge:
Oluwaseun Sanya contends that his guilty plea to access-device fraud and aggravated identity theft was involuntary because the district court impermissibly participated in plea negotiations. We agree that the district court committed reversible error and so vacate and remand for further proceedings.
I.
In July 2012, Sanya pleaded guilty to one count of conspiracy to commit access-device fraud in violation of
After his July 2012 plea, Sanya was released pending sentencing under several conditions, including that he commit no further crimes. Unfortunately, upon his release, Sanya promptly resumed operation of his credit card fraud scheme. Indeed, in September 2012—a mere six weeks after his release—security officials at a store
Sanya‘s sentencing for the initial access-device fraud offense—to which he had pleaded guilty in July—was postponed while the Government and Sanya‘s counsel attempted to negotiate a plea that would resolve the second offenses and consolidate all of Sanya‘s offenses for sentencing. Sanya, however, rejected the Government‘s offer, and at the time of his May 2013 detention hearing on the second offenses, the parties had failed to reach any plea agreement.
Learning of Sanya‘s intransigence at that detention hearing, the district judge expressed his strong preference that Sanya enter a plea to the second set of charges and agree to have those charges and the initial access-device fraud charge consolidated for sentencing. In so doing, the court repeatedly opined that such a plea would be beneficial to Sanya‘s interests. After hearing the judge‘s exhortations, Sanya changed course and expressed a willingness to work toward such a result.
Five days later, Sanya executed a plea agreement covering the second set of charges. The plea was entered the next month, before the same district judge, with Sanya pleading guilty to one count of access-device fraud in violation of
II.
Sanya contends that, in violation of
Because Sanya 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. See United States v. Davila (Davila I), — U.S. —, 133 S. Ct. 2139, 186 L. Ed. 2d 139 (2013); Bradley, 455 F.3d at 462. To prevail on a claim of plain error, Sanya must demonstrate not only that the district court plainly erred, but also that this error affected his substantial rights. United States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). In the
With these principles in mind, we turn to their application in this case.
III.
A.
We first determine whether the district court plainly erred. Olano, 507 U.S. at 731-32, 113 S. Ct. 1770. The Government properly concedes that the district court “likely erred by involving itself in plea negotiations,” but briefly contends that the error was not plain. Appellee‘s Br. at 30, 37 n. 13. The initial concession is well taken; the latter contention is not.
Of course, a district court does not run afoul of
Rather, the court repeatedly intimated that a plea to the September charges was in Sanya‘s best interests. See J.A. 167 (“It seems to me [a plea] may stand your client a lot better.“); J.A. 168 (“So that‘s why I think a global resolution of this makes an awful lot of sense.“); J.A. 169 (“So, again, it‘s just one of those cases where it feels like a global settlement makes sense.“).1 Moreover, the court strongly suggested that Sanya would receive a more favorable sentence if he agreed to plead guilty to the September charges and to consolidate all charges for sentencing. See J.A. 167-68 (“[I]f you do one [case at a time] and I sentence and I come back and I have a trial or whatever and he gets convicted, he stands to face another new package; whereas . . . I can‘t move it down from what it is.“); J.A. 169 (“And then you have got a trial where he is going to face another package and who knows where the numbers go at that point.“); J.A. 172 (“But sometimes it‘s possible, and I can‘t say this with certainty, that he ends up with a less—less pleasant sentence if we take this in two pieces than if we take it in one.“); J.A. 171 (“Better to get all this wrapped in one.“). Finally, the court also commented on the strength of the Government‘s case. See J.A. 167 (“Magistrate Judge Day said . . . in his detention order, [t]he government‘s case looks pretty strong in this second case.“). These repeated remarks clearly constitute judicial participation in plea discussions, and the district court erred in engaging in them.
B.
We must next determine whether the error affected Sanya‘s “substantial rights.” Olano, 507 U.S. at 731-32, 113 S. Ct. 1770. In doing so, we simply ask whether there is “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004). Our close examination of the full record leads us to conclude that Sanya has demonstrated such a “reasonable probability.”
i.
At the beginning of the hearing, defense counsel made clear that, despite his recommendation that Sanya plead and agree to a global resolution, Sanya had “declined the [Government‘s plea] offer.” J.A. 167.3 The district court then responded with a series of exhortations as to why it would be advantageous for Sanya to plead. After commenting that although “I obviously can‘t make you do this“—i.e., plead guilty in the second case—the court opined that it might “stand [Sanya] a lot better” to do so. J.A. 167.
The district court‘s repeated comments about the advisability of a global plea agreement appear to have had an almost immediate effect on Sanya. Near the end of the hearing, Sanya conferred with his lawyer and conveyed an interest “in a global resolution.” J.A. 171. This sudden and significant shift in attitude from the beginning of the hearing, when Sanya‘s lawyer indicated that Sanya “had declined [an] offer,” J.A. 167, strongly suggests that his mid-hearing change of heart was the product of the district court‘s urging.
Even after Sanya expressed a tentative interest in negotiating a plea, the district court continued to send signals that Sanya would be well-served by reaching an agreement with the Government. Indeed, the court again suggested that Sanya would receive a more favorable sentence by pleading guilty and receiving a consolidated sentence, explaining “sometimes it‘s possible, and I can‘t say with certainty, that he ends up with a less—less pleasant sentence if we take this in two pieces” emphasizing the point, the court cautioned Mr. Sanya. That‘s the reality of the way the system works.” J.A. 172.
Sanya listened. Within just five days of this hearing, Sanya had executed a plea agreement. See J.A. 178-79. And within a month, the plea was entered and the two cases were set for a consolidated sentencing. Such close temporal proximity weighs heavily in favor of finding that Sanya‘s decision to plead guilty was the result of the district court‘s involvement in the plea negotiations. While other factors could have intervened during that short period and led Sanya to plead guilty, it is, at the very least, “reasonably probable” that the district court‘s comments during the May 10 hearing were the tipping point.
ii.
In arguing to the contrary in its appellate brief, the Government simply ignores the facts set forth above. See Appellant‘s Br. 37-38. Instead, the Government contends that Sanya has failed to demonstrate the court‘s exhortations had any effect on his substantial rights because he did not object to the court‘s involvement either at the proper
In a series of
It is the particular facts and circumstances in this case that lead us to conclude that Sanya has established a “reasonable probability” that, absent the error, he would not have entered the plea. These facts and circumstances differ in important respects from those in the cases on which the Government so heavily relies. First, in two of the Government‘s cases, the appellate courts appear to have applied an incorrect legal standard in assessing whether the defendant‘s substantial rights had been violated. To be sure, in both, the courts acknowledged the correct “reasonable probability” standard. Castro, 736 F.3d at 1313; Davila II, 749 F.3d at 993. But in both cases, the courts went on to explain that a defendant must do more than demonstrate a “reasonable probability” that, absent the error, he would not have pleaded guilty. Thus, in Castro, the court opined at some length that a defendant “must prove that but for the [district court‘s] error, he would not have entered the plea.” Castro, 736 F.3d at 1314 (emphasis added). The court found Castro had not established a violation of his substantial rights because it was “not convinced that [he] would have rejected the plea agreement had the district court not advised him of the consequences of reneging on his plea agreement.” Id. (emphasis added); see also id. at 1309, 1315. In Davila II, the court again followed this flawed approach. See Davila II, 749 F.3d at 997 (noting that the defendant “must prove that the error made a difference in his decision,” and “must prove more than that the record is consistent with his argument; he must show that the error actually did make a difference.” (emphasis added) (internal quotation marks omitted)).
The Government repeats this incorrect standard in one of its
The Government (and Castro and Davila II) are simply wrong in requiring a defendant to prove that “but for the
Moreover, all three of the cases on which the Government relies involve very different facts from those in the case at hand. Perhaps most importantly, the defendants in all of the Government‘s cases had agreed to terms in one or more plea agreements prior to the challenged comments by the district court. In Thompson, “[t]he day before the trial was to begin,” the defendant “notified the district court he would plead guilty” and the “proposed plea agreement was provided to the district court for review.” 770 F.3d at 691. Similarly, the defendants in Davila II and Castro both signed written plea agreements before later reneging and expressing a desire not to plead. Davila II, 749 F.3d at 995; Castro, 736 F.3d at 1310. Thus, when the defendants in those three cases appeared before the district court, the court knew of and reacted to their stated earlier intent to plead guilty.
In stark contrast, the record in this case indisputably bears out Sanya‘s contention that when he appeared before the district court, the court had no reason to believe he intended to plead guilty. Indeed, Sanya‘s counsel explained at the outset of the hearing that although he had advised Sanya to agree to a plea and global resolution, Sanya had “declined the offer.” J.A. 166-67. Notwithstanding its suggestion of an early aborted plea, see supra n. 3, the Government does not contend to the contrary. This critical fact tellingly distinguishes Sanya‘s case from those on which the Government relies, and significantly undercuts the Government‘s contention that Sanya would have pleaded guilty even without the district court‘s urging.
Furthermore, the plea agreement Sanya ultimately did sign afforded him little in the way of benefits or concessions from the Government. Compare Castro, 736 F.3d at 1314 (plea permitted defendant to avoid “prosecution and punishment for seven of offenses,” including one “for which he faced mandatory sentence of 25 years . . . that had to run consecutively“). This fact further suggests that it was the district court‘s pre-plea intimation of a “less pleasant sentence if we take this in two pieces,” J.A. 172, rather than the plea deal itself, that changed Sanya‘s mind and led him to plead guilty.6
For all of these reasons, after close examination of the full record in this case, we can only conclude that Sanya has established a reasonable probability that, absent the district court‘s involvement, he would not have pleaded guilty to the second set of charges.
C.
We thus turn to the final inquiry—whether refusing to notice this plain error, which Sanya has shown to have had a reasonable probability of affecting his substantial rights, would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S. Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936)) (quotation marks omitted). We believe it would.
Although the district court‘s comments about the advantages of a plea to the second set of charges and consolidation of the two cases occurred in a single, short hearing, those comments were repeated and direct. Indeed, the court‘s exhortations saturated the hearing. Immediately upon receipt of these exhortations, Sanya withdrew his insistence on going to trial and agreed to consider both a plea to the second charges and the “global resolution” that the judge advised; five days later he signed a plea agreement that achieved that precise result.
We have consistently concluded:
[G]iven the critical interests served by the prohibition [on judicial involvement in plea negotiations]—preserving the judge‘s impartiality throughout the proceedings and preventing the public from gaining the “misleading impression” that a judge is anything less than a “neutral arbiter” . . . —failure to notice this sort of clear
Rule 11 error would almost inevitably seriously affect the fairness and integrity of judicial proceedings.
Bradley, 455 F.3d at 463 (quoting Cannady, 283 F.3d at 644-45). The district court put Sanya “in a position that would be reasonably perceived by a defendant as inconsistent with the court‘s role as a neutral arbiter of justice.” Baker, 489 F.3d at 375.
As our colleagues on the D.C. Circuit recently explained, “[w]hen a court appears to make a tacit offer of leniency in exchange for a guilty plea, even if that offer is accompanied by caveats, confidence in the court is undermined.” Id. We therefore conclude, after close review of the entire record, that refusal to notice the plain error in this case would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S. Ct. 1770.
IV.
We note that our review of the full record also leads us to conclude that the
Because, notwithstanding the district court‘s good intentions, our full record review reveals a reasonable probability that the court‘s plain error affected Sanya‘s substantial rights, and that failure to recognize this error would seriously undermine confidence in the fairness of judicial proceedings, we vacate the sentence imposed on Sanya and remand for further proceedings. On remand, Sanya can withdraw his guilty plea to the September 2012 charges (the subject of PJM 13-0121).7 Of course, Sanya‘s agreement of July 2012, to plead guilty to the first charge (PJM 12-0379) still stands, because it was not affected by anything said at the May 2013 hearing.
As is usual, we also remand the case for assignment to a different district judge. See Baker, 489 F.3d at 376; Bradley, 455 F.3d at 465. We have absolutely no doubt that the original district judge could continue to preside fairly over this case. But “[r]egardless 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.” Bradley, 455 F.3d at 465 (internal quotation marks and citations omitted).
VACATED AND REMANDED.
WILKINSON, Circuit Judge, concurring:
I am pleased to concur in Judge Motz‘s fine opinion in this case. It underscores the wisdom of
I.
I would emphasize, however, the Supreme Court‘s emphatic holding that
Yet a holding of structural error would have vitiated the Supreme Court‘s long support for “the finality of guilty pleas.” See id. at 2147 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 79, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004)) (inter-
The majority notes that the Supreme Court did not adopt a difficult “but for” standard for determining whether the
II.
I concur in the majority opinion because it rightly notes that the nature of the district court‘s involvement here lent itself to ready interpretation of a coerced plea agreement. The court handed out an assertedly more favorable sentence after a plea of guilty and threatened a “less pleasant sentence” if the defendant exercised his bedrock right to proceed to trial. J.A. 172. In addition the “close temporal proximity” between the court‘s comments and the reversal of field on the defendant‘s part resulting in a plea of guilty further augments the appearance of unwarranted judicial interference.
Crucial to my concurrence is the majority‘s recognition that other scenarios may be quite different from this case. Specifically judicial involvement may be more cursory than here. Or it may be that the plea agreement, unlike here, was entered prior to the trial court‘s alleged involvement. Or it may be again that a longer lapse of time attenuates any causal connection between a trial court‘s comments and a defendant‘s decision to plead guilty. Further, a
The factual scenarios are many and varied, and as the majority emphasizes, the case rises or falls on the “facts and circumstances” of the particular case. Maj. Op. at 819 (quoting Davila, 133 S. Ct. at 2149). This case is a close one, because the record hints at the kind of defendant gamesmanship that often masquerades as change of heart both on whether to proceed to trial or, in other cases, whether to exercise one‘s Faretta right to proceed pro se. See Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The majority has carefully explained why on the facts here, the defendant should be accorded the benefit of the doubt. The totality of the circumstances persuades me as well that the heavy arsenal of judicial authority was deployed to dissuade a defendant from exercising his fundamental right to a fair trial.