Monday, September 14, 2015

U.S. v. Myers (9th Cir. - Sept. 14, 2015)

This is an important opinion.  That may well not get nearly the judicial attention that it deserves.

The question presented is whether you can have a consensual settlement conference with a magistrate judge in a federal criminal case.  Those familiar with the criminal side may say:  "How is that actually a question?  There are settlement rules in tons of federal courts that expressly allow this practice, and the Ninth Circuit has repeatedly held that this practice is okay."  And that's exactly right.  Whereas the federal judge who's in charge of your case can't participate in plea negotiations (since there's too great of a risk of coercion), the Ninth Circuit has long held that it's perfectly okay for a different judge to act as a mediator and to try to see if the parties can't work out a mutually beneficial deal.

But today, the Ninth Circuit says that's no longer the rule.  No judicial involvement in plea deals.  Not even with "neutral" (non-involved) judges.  Period.

Personally, I'm agnostic about whether settlement judges in federal criminal cases are a good idea.  I am definitely against the involvement of the judge in the particular case being involved in negotiations -- that's way too dangerous, since the defendant (and/or prosecutor) might think that if she refuses a proposed deal that the judge says is a good one the judge might take it out on them at trial and/or at sentencing.  But a "neutral" judge that's otherwise not involved at all in the underlying case?  That's a different situation.  Maybe it's a good idea, since those judges have expertise and can help the parties settle.  But maybe it's still a bad idea, since there might still be the fear of coercion in other cases; e.g., in other cases the prosecutor or public defender may have in front of this judge.

In short, I'm not at all sure what the right rule should be.  I can see very plausible arguments on both sides.

But the Ninth Circuit holds today that the rule is that judges categorically can't be involved.  In an opinion that may well be subject to substantial doctrinal critique.

For one thing, there's this little thing called circuit precedent.  The Ninth Circuit has repeatedly held that settlement conference precisely like the one that transpired here are perfectly okay; moreover, that such conferences don't violate Rule 11(c)'s command that the federal court not be involved in any plea negotiations.  Judge Murguia's opinion says that these cases are inconsistent with the subsequent 2013 holding of the Supreme Court in Davila.  When I first read today's opinion, Judge Murguia's interpretation of that case seemed right.  But when I then actually went and read Davila, I'm not at all certain that Davila actually justifies the panel's non-en banc departure from circuit precedent.  If only because Davila's discussion of the issue is not only way dicta, but is also world's apart from what's at issue here.

In the present situation, we're dealing with (1) a settlement conference, (2) that everyone attended, and (3) was conducted pursuant to a district court rule.  By contrast, in Davila, the magistrate judge simply sua sponte pulled in the criminal defendant in an ex parte proceeding and essentially told him that he'd be better off pleading guilty than going to trial.

In that setting, the United States admitted that the judge's conduct was improper.  And the Supreme Court accepted that (undisputed) concession, noting that "the prohibition [in FRCP 11] was included out of concern that a defendant might be induced to plead guilty rather than risk displeasing the judge who would preside at trial."  (Remember:  We're not talking in the present case about involving the judge who would preside at trial.  We're talking about involving a totally unrelated judge.)  And then the Supreme Court's opinion went on to discuss the only issue on which it actually granted certiorari:  whether a violation of Rule 11 was structural error requiring automatic reversal.  ("We granted certiorari to resolve a Circuit conflict concerning the consequences of a Rule 11(c)(1) violation.")

That's what Davila was about.  The introductory two paragraphs on page 7 of that opinion that discuss the history of Rule 11 and why we (rightly) don't allow the trial judge to participate in plea negotiations don't seem dispositive of whether we should allow some other judge to do so.  Now, in Davila, it wasn't the trial judge who pulled in the defendant -- it was a magistrate judge.  But the fact that the Supreme Court accepted an admission that this was improper, and then held that this did not require reversal, hardly to me seems to require that a panel in the Court of Appeals to invalidate circuit precedent that says that formal settlement conferences in front of neutral judges are okay.  I could easily see a judge saying that one of these things was not okay whereas another was just fine.  Particularly given the factual contexts in which these two issues presented themselves; e.g., the clearly non-coercive judicial conversation at issue in the present case versus the very different types of judicial statements at issue in Davila.

So, as a matter of precedent, I'm not sure that today's opinion is on incredibly solid footing.  I think there's a very decent argument that the panel wasn't free to depart from what the Ninth Circuit has repeatedly said is the right rule.

Moreover, as a matter of text, I also don't think that Judge Murguia's opinion is entirely bulletproof.  She says that the prior Ninth Circuit cases didn't "address, much less resolve, the conflict between the plain language of Rule 11(c)(1)—which categorically prohibits “[t]he court” from participating in plea negotiations—and the local rule’s allowance of judge-led criminal settlement conferences."  Put to one side that these cases nonetheless approved the practice at issue as consistent with Rule 11 and drew the longstanding distinction (at issue here) between involvement of the trial/sentencing judge versus a "neutral" judge.  Simply as a matter of textual interpretation, I'm not so sure that Rule 11 is nearly as "plain" as Judge Murguia reads it.

Today's opinion says that Rule 11(c)(1) is crystal clear since it prohibits "the court" from engaging in any plea negotiations.  Judge Murguia then says that this phrase unambiguously applies to the judge here since Rule 1(b)(2) defines "court" as including a federal judge performing any judicial function and Rule 1(b)(3) says that includes magistrate judges.

Fair enough.  But I'm not sure that the word "court" is really the one that's at issue.  Rather, it seems to me that we're focusing on what Rule 11 means when it says that "the" court isn't allowed to be involved in plea negotiations.  Does "the" court refer to the trial court (i.e., the trial/sentencing court), which is the distinction that prior circuit precedent draws, or does it merely mean "any" court (i.e., even the otherwise uninvolved magistrate judge)?  That's the relevant textual issue.  And there's no definition anywhere of the word "the".

(Oh, and for what it's worth, the Federal Rules of Criminal Procedure use the phrase "a court" rather than "the court" in about a dozen or so different rules, including Rules 12, 32.2, 49, and 56, making it at least plausible to argue that when the rule makers wanted to preclude any court from doing a certain thing, they knew perfectly well how to do so, and that there's a textual distinction been "the" court and "a" court doing a particular thing.)

Remember that we're talking about whether the panel was permitted to overrule circuit precedent here.  That seems a very sticky wicket, especially since the proper resolution of this issue is (despite Judge Murguia's textual and precedential analysis) far from clear.

So why do I think this very important case -- one that'll strike down formal settlement programs in the Northern District of California and elsewhere -- might not get the judicial attention it may well deserve?  Two reasons.

One, the composition of the panel.  The opinion is unanimous.  It's written by Judge Murguia and joined by Judges McKeown and Friedland.  That's a credible bunch.  As well as three votes of active judges presumptively against en banc review.

Second, and perhaps even more importantly, because the case here comes out against the defendant.  The panel holds that the judicial involvement of the magistrate judge here was error -- and hence district courts will have to dismantle their criminal settlement programs -- but that the error here did not prejudice this defendant's substantial rights because he knowingly participated in the process and indeed benefited from it.  Hence his conviction is affirmed.

Given this result, who's going to petition for rehearing en banc or seek of writ of certiorari?  Sure, the defendant might, claiming that his rights were indeed violated, but that's going nowhere.  By contrast, the United States might be seriously unhappy with the Rule 11 holding, but they won, so a petition by them may not get nearly the traction that one might otherwise receive were they actually to have lost the case.

Sort of a Marbury v. Madison type of thing.  Effectively unreviewable notwithstanding the fact that review is possible.

A very important case.  One that affects a ton of criminal cases.

We'll see what -- if anything -- happens to the opinion from here.