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Tax fraud conviction vacated because of comments by Magistrate concerning whether the defendant should plead guilty

In U.S. v. Davila appealed his tax fraud conviction and 115 month sentence. The only issue addressed in this reversal was that the lower court erred in participating in his Davila’s decision to plead guilty. Several months prior to his plea there was an in camera hearing before a Magistrate where Davila had asked to discharge his court-appointed attorney. He complained that his attorney had not discussed any defense strategies with him except pleading guilty. The Magistrate commented that “there may not be viable defense to these charges” and that the advice from his counsel about pleading guilty may be the best advice an attorney could provide his client. The Magistrate went further with the following comments about pleading guilty:

The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.

Several months later Davila pled guilty to a tax fraud charge. On appeal Davila asked that the conviction be vacated, claiming that the magistrate judge’s comments amounted to an improper participation in his plea discussions. Because Davila failed to object to a Rule 11 violation so the issue was treated as plain error. Under a plain error standard the defendant must show:

  • Error existed,
  • Error was plain,
  • It affected the defendant’s substantial rights, and
  • It seriously affected the fairness, integrity or public reputation of judicial proceedings.

The court reaffirmed the long standing rule under Rule 11 of the Federal Rules of Criminal Procedure that prohibits the court from participating in any plea discussions between the defense and the government. The Any judicial participation is plain error and the defendant need not show any actual prejudice.

Three reasons support the absolute ban on judicial participation:

  1. Judicial participation carries a high risk of coercing a defendant to accept a plea offer;
  2. The prohibition protects the integrity of the judicial process; and
  3. The ban preserves the judge’s impartiality after negotiations are complete.

Judicial participation is presumed where the district court contrasts the sentence a defendant would receive if he pled guilty with the sentence he would receive if he went to trial and was found guilty. The court cited as an example, U.S. v. Casallas, 59 F.3d 1173(11th Cir. 1995) where the court’s comments operated to coerce a plea in violation of Rule 11. There the court made comments contrasting the likely minimum sentence he would receive if he pled with the minimum he faced if he went to trial, and then suggested the defendant talk to his lawyer and see if a trial is really what he wants to do. The 11th Circuit warned courts that no matter how well meaning the concern may be for getting involved in the plea discussions, this will not excuse judicial participation. Under the binding precedent, Davila need not show any individualized prejudice for his conviction to be vacated and remanded. Davila’s case was remanded to be reassigned to another district judge.