On January 4, the Supreme Court of the United States granted the government’s petition for certiorari in an appeal involving Federal Rule of Criminal Procedure 11(c)(1). See United States v. Davila, No. 12-167. Rule 11(c)(1) provides that “[a]n attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions.” Rule 11(h) states that “[a] variance from the requirements of this rule is harmless error if it does not affect substantial rights.”
At issue in Davila is whether the Court of Appeals for the Eleventh Circuit “erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant’s guilty plea, irrespective of whether the error prejudiced the defendant.” In the underlying criminal proceedings, a magistrate judge encouraged Davila to follow his court-appointed counsel’s advice to enter a guilty plea. Davila did so. He was then convicted of a conspiracy charge related to identity theft and filing falsified tax returns and sentenced to 115 months in prison.
In reviewing Davila’s request to set aside his conviction on other grounds, the Eleventh Circuit sua sponte sought briefing on whether reversible error had occurred under Rule 11(c)(1). The parties did not dispute that the magistrate judge made statements to Davila in contravention of Rule 11(c)(1). Rather, the government argued that Davila could not satisfy the plain error standard by showing that the violation affected his substantial rights. The Eleventh Circuit applied the plain error standard, held that Davila need not prove individual prejudice as a result of the Rule 11(c)(1) violation, vacated the conviction, and remanded for further proceedings. In holding that Davila need not prove prejudice, the Eleventh Circuit acknowledged that other circuits apply a harmless error standard with respect to judicial participation in plea negotiations. However, based on Circuit precedent, the Eleventh Circuit declined to apply a harmless error standard, instead applying Rule 11(c)(1) as a “bright line rule.”
It is likely that in granting certiorari and deciding the issue presented, the Supreme Court will resolve this split among the circuit courts. Defense attorneys will want to stay abreast of developments. The White Collar Watch will continue to monitor this case and provide an update on the Supreme Court’s decision.