United States v. Bradley , 455 F.3d 453 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4390
TAVON BRADLEY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4393
SOLOMON LEVI JONES, a/k/a Monkey
Bird,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4402
ERIC LAMONT BENNETT, a/k/a E Man,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-00-432)
Argued: May 26, 2006
Decided: July 25, 2006
2 UNITED STATES v. BRADLEY
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Gregory and Judge Duncan joined.
COUNSEL
ARGUED: Harvey Greenberg, Towson, Maryland; Jack B. Rubin,
Baltimore, Maryland, for Appellants. Andrew George Warrens Nor-
man, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Joseph J. Gigliotti, Silver Spring, Maryland, for Appellant
Eric Lamont Bennett; Gerald D. Glass, Towson, Maryland, for Appel-
lant Tavon Bradley. Rod J. Rosenstein, United States Attorney, Balti-
more, Maryland, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After several extensive plea discussions with the district court,
Tavon Bradley, Solomon Jones, and Eric Bennett (collectively "the
Defendants") pleaded guilty to charges of conspiracy to distribute
crack cocaine and of illegal use of firearms. On appeal, they argue
that their guilty pleas were not voluntary because the court imper-
missibly participated in plea negotiations, repeatedly encouraging
them to plead guilty. As the Government properly concedes, the
record indisputably reflects this participation and encouragement.
Because Defendants have demonstrated that this admitted plain error
adversely affected their substantial rights and because we conclude
that the error seriously affects the fairness, integrity, and public repu-
tation of judicial proceedings, we must vacate the judgment of the dis-
trict court and remand for further proceedings.
UNITED STATES v. BRADLEY 3
I.
Bennett was the leader of a wide-ranging and violent crack cocaine
distribution ring that operated in Baltimore and Westminster, Mary-
land; Jones and Bradley participated in that conspiracy. According to
the Government, pursuant to Bennett’s orders, Jones killed a partici-
pant in a sham drug transaction, and Bradley broke into an apartment
and attempted to rob the occupant at gunpoint. The Government’s
evidence included audiotapes and videotapes of the Bennett organiza-
tion’s activities and the testimony of several cooperating co-
conspirators.
On August 24, 2000, a grand jury indicted Bennett on conspiracy
and substantive charges of distribution and possession with intent to
distribute crack cocaine. Six months later, on February 21, 2001, Ben-
nett indicated his willingness, pursuant to a written plea agreement,
to plead guilty to the conspiracy count, with the Government recom-
mending a ten-year sentence. During the Rule 11 colloquy, Bennett
stated, "I’m pleading guilty to this ten years." The district court
explained to Bennett that he would be pleading guilty to an offense
that carried a mandatory minimum sentence of 10 years and a maxi-
mum sentence of life without parole. After Bennett learned that the
court could impose a sentence exceeding ten years, he stated that he
did not wish to plead guilty and the court terminated the colloquy.
The next month, on March 29, the grand jury returned a supersed-
ing indictment that included the following five counts: 1) conspiracy
to distribute and to possess with intent to distribute fifty grams or
more of crack cocaine, 2) distribution of five grams or more of crack
cocaine, 3) possession of two firearms in furtherance of a drug traf-
ficking crime, 4) possession of a firearm in furtherance of a drug traf-
ficking crime, and 5) possession with intent to distribute a detectable
amount of crack cocaine.1 The superseding indictment charged Ben-
1
On January 9, 2002, the grand jury returned a second superseding
indictment; the only additions to the first superseding indictment were
descriptions of the firearms involved in counts three and four. The weap-
ons in count three were described as "one Smith and Wesson .357 mag-
num revolver . . ., and one Armi Fratelli Tanfoglio 9 mm semi-automatic
handgun." The weapon in count four was described as "one SWD Cobray
9 millimeter pistol."
4 UNITED STATES v. BRADLEY
nett with all five counts, Bradley with counts one and four, and Jones
with counts one and three. Bradley and Jones were arraigned in May
2001, and both entered pleas of not guilty. In addition to these federal
charges, Bradley and Jones also faced related charges in state court:
Bradley on conspiracy and robbery charges, and Jones on murder
charges.
During a pre-trial conference on November 26, 2001, Jones’s coun-
sel stated that Jones wanted to plead guilty and that counsel had been
working with federal officials and Jones’s state counsel to coordinate
a disposition covering both the federal and state charges. The Govern-
ment responded that negotiations for a plea agreement with Jones
were continuing. However, no plea materialized.
On January 28, 2002, the district court empaneled a jury and began
the trial. The next day, January 29, Oscar Bennett, a cooperating co-
conspirator and Eric Bennett’s cousin, testified at length about the
scope and activities of the conspiracy. Before the jury entered the
courtroom on the following morning, January 30, the court dismissed
counsel for the Government and addressed the Defendants and their
counsel directly. The court stated, "I know that each of you probably
ha[s] some experience in the state system. But I am just taking this
opportunity, now that you have sat through a full day of testimony of
one government witness, I just want to make sure that you fully
understand what is going on here." The court then listed the evidence
that the Government planned to present during the course of the trial
and said: "Now, again, I don’t know what the status was at any time
about the plea negotiations in this case, and I don’t know if there is
a possibility for any further discussions." The court continued, "before
we go forward, I felt it my responsibility, my responsibility to address
each of you individually to let you know what you are facing here
. . . ." The court pointed out that, in its view, Oscar Bennett’s testi-
mony on the first day of trial demonstrated that the Government’s
predictions during its opening statement about the strength of the evi-
dence against the Defendants "were right on." The court emphasized
that a life sentence in federal court is truly a life sentence: "You are
all young men, and if there was a chance that later in life, you could
be released back into the community, I think it is something you seri-
ously need to consider . . . ."
UNITED STATES v. BRADLEY 5
In response to the court’s comments, counsel for Bennett described
his plea negotiations with the Government. The Government had
offered Bennett the opportunity to plead to a possession count with
a recommended sentence of ten years; Bennett signed that agreement
but later rejected it during the Rule 11 colloquy discussed above.
Counsel for Bennett indicated that he later tried to negotiate for a sen-
tence of fifteen years but that those efforts were unsuccessful. Coun-
sel for Jones indicated that Jones would have been willing to agree
to a plea for a sentence of ten to fifteen years but had been unable to
reach an agreement with the Government. The court then said,
"frankly, based on what I am hearing now, . . . your clients may be
better off pleading to the indictment. And I say that in all candor."
Counsel for Bradley responded that his client would have been will-
ing to plead to the firearms count, which carried a maximum sentence
of ten years, but the Government was not willing to go below fifteen
years.
The court then asked the prosecutors to return to the courtroom and
indicated that "I have real concern that there may well be a miscar-
riage of justice taking place in this courtroom." The court explained
that his colloquy with the Defendants and their counsel suggested
"that we are now in the third day of what is likely to be a five- or six-
week trial that really nobody wants to take place." The court noted,
As we all know, if [the Defendants] go to trial, the likeli-
hood of a life sentence is very real and very substantial. Part
of my motivation for asking [the Government] to leave the
room in the first place, not knowing where this discussion
was going to lead, was to give each of the defendants an
opportunity to address me, if he chose, after having had the
benefit of the voir dire process, [the prosecutor’s] excellent
opening statement, and Mr. Oscar Bennett’s day-long testi-
mony, which, to anybody sitting here, was obviously
extraordinarily incriminatory of all the defendants. It is no
big stretch, in fact, to observe that theoretically the govern-
ment could rest its case right now on the basis of the testi-
mony of the one witness. If the fact finder believed Mr.
Oscar Bennett’s testimony, or most of it, the case would
essentially be over. Counsel for the Government stated that
the Government had negotiated in good faith and that it
6 UNITED STATES v. BRADLEY
stood "ready to offer a plea agreement that is consistent with
justice in this case." The court replied that it would dismiss
the jury early for lunch "to give you folks a chance to see
whether this rather unusual hearing might result in a termi-
nation of these proceedings."
The court cautioned, "This is very dangerous because if the pro-
ceedings are not terminated, there is the risk that the Court even took
in initiating this exchange with counsel that one or more of the defen-
dants . . . or an appellate court could regard the Court’s actions as
inappropriate, and, in some form or fashion, coercive." The court
stated, however, that it was not its intention to coerce anyone. The
court also indicated that it was mystified as to why Bennett refused
to plead guilty after signing the initial plea agreement: "I don’t know
what it was that caused that plea to break down. It was a wonderful
offer. It was an incredible offer."
After a three-hour recess, the Government told the court that the
parties had been unable to reach an agreement. The court asked why
negotiations had been unsuccessful, and Jones’s counsel responded
that there were problems with the sentence. The court expressed puz-
zlement that the recommended sentence in the plea agreement pre-
sented a stumbling block because the court made sentencing decisions
and was not bound by the sentence set forth in a plea agreement. At
this point, counsel for Bradley stated that Bradley wanted to plead to
the indictment. The Rule 11 colloquy commenced; however during
the colloquy, Bradley stated that he was not guilty of the conspiracy
count, and the district court refused to accept his plea. Bradley subse-
quently indicated that he wished to continue with the trial.
The trial continued for more than two weeks, during which the
Government presented numerous witnesses who testified about the
conspiracy. On February 12, 2002, the court again raised the possibil-
ity of guilty pleas: "We are in the third week of trial, and I just again
ask the question, is this really what the defendants want to do?" The
court continued, "They want to continue to sit through this for the
next three weeks? And, again, we have not even gotten to the heart
of the government’s case, the murders, the autopsies." The court then
proceeded to discuss the case that the Government had presented
against the defendants:
UNITED STATES v. BRADLEY 7
[I]t appears to the Court that everybody who was involved
is either dead or is a witness in this case. That is why I keep
asking you. I don’t understand why you continue to sit
through this trial, to be perfectly blunt about it. Everybody
who has been involved apparently is going to come in here
and talk about this conspiracy.
The court then asked each defendant individually if he was being
intimidated or coerced into going to trial rather than pleading guilty;
each defendant answered in the negative.
Shortly after this exchange, Bradley stated that he wanted to plead
guilty. During this plea colloquy — Bradley’s second — the court
realized that pleading guilty to the charges in the federal case would
require Bradley to in effect also plead guilty to the pending charges
in state court. Bradley’s attorney stated that there had been plea nego-
tiations at the state level, but that the state charges remained unre-
solved. Bradley asked for an opportunity to consult with his lawyer
regarding the outstanding state charges, and the court agreed. The
court again noted its surprise that both Bradley and Bennett had
turned down plea deals that would have resulted in sentences of ten
years: "That really just absolutely boggles my mind. It absolutely
boggles my mind. . . . It’s really sad."
At the end of that day’s proceedings, the court expressed sadness
that the Defendants had not taken advantage of the "very, very favor-
able, I would even say extraordinarily favorable, plea offers that have
been made." The court said:
[T]he reason we are so taken by this case is because this
would appear — nobody can predict what this jury is going
to do, nobody can ever predict what a jury is going to do,
but from all appearances, this is one of the strongest cases
ever to be brought in this courthouse.
* * *
The reason we don’t see cases of this sort very often,
frankly, in this courtroom going to trial is because the unfor-
8 UNITED STATES v. BRADLEY
tunates who get involved in the drug trade come to recog-
nize eventually, even if they don’t at first, that there is
benefit in not pushing the government to actually do what
the government is prepared in every case to do, and that is
to marshal evidence to produce against the defendants who
are indicted, . . . to prove guilt beyond a reasonable doubt.
I am very, very, very sad that these three young men
fought their attorneys, and I use that term advisedly, and
have, for reasons that are totally beyond me, and, again, I
see their families sitting up there day in and day out, why
they would do what they have in this case, which is to say
why they would not think seriously about trying to dispose
of the charges against them on a reasonable basis.
The court then asked the Defendants if they had anything to say.
Jones objected to "the way you keep on judging us." The court
responded that the jury would be judging them, not the court. Jones
replied: "You keep telling us to cop out, like we are already guilty."
The court replied, "I keep telling you that you are presumed inno-
cent." Jones then stated, "It don’t seem like it." Jones went on to state
that he was not satisfied with the plea option the Government had pre-
sented to him: "The only deal they give is they tell [us] to cooperate
or go to trial. I’m going to trial because I won’t cooperate with them."
On the next day, February 13, Bennett’s attorney indicated that
Bennett wanted to plead guilty to the indictment. The court responded
that, at that stage in the trial, it would only accept guilty pleas if all
three defendants agreed to plead guilty. The trial continued. Six days
later, on February 19, all three defendants stated that they wanted to
plead guilty to the indictment. Jones, however, was having difficulty
coordinating his federal plea with the charges pending against him in
state court. The district court offered to contact the state judge to
expedite matters. The next day, the court announced that it had dis-
cussed Jones’s situation with the state judge and that the state court
had agreed to impose a 25-year state sentence to run concurrently to
any federal sentence.
During the Rule 11 colloquy, the Government pointed out that,
because the firearms convictions would be "stacked consecutively,"
UNITED STATES v. BRADLEY 9
Bennett faced a mandatory minimum sentence of 40 years. Bennett
stated that he was not willing to plead guilty given this mandatory
minimum, to which the court responded, "I don’t blame you." The
court asked if the Government would be willing to dismiss one of the
firearms counts. The prosecutor responded that he would need to get
permission. After a recess, the United States Attorney for the District
of Maryland appeared in the courtroom and stated that the Govern-
ment would dismiss one of the firearms charges against Bennett if he
were willing to plead guilty, bringing Bennett’s mandatory minimum
sentence on that count down to 20 years. At the conclusion of the
Rule 11 colloquy, in which the court properly informed Bennett and
Jones that they faced possible life sentences, the court accepted all
three defendants’ guilty pleas.
At sentencing, the court sentenced Bradley to 296 months (24.5
years), Jones to 720 months (60 years), and Bennett to life with a 120-
month consecutive sentence.2
II.
Federal Rule of Criminal Procedure 11 governs guilty pleas and
clearly prohibits a court from participating in plea negotiations. The
Rule provides: "An 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 dis-
cussions." Fed. R. Crim. P. 11(c)(1) (emphasis added).3 As we have
previously noted, courts have "widely viewed" Rule 11(c)(1)’s prohi-
bition as serving three principal interests: "it diminishes the possibil-
ity of judicial coercion of a guilty plea"; it protects against unfairness
2
Although the Defendants did not enter their pleas until the third week
of trial, the district court granted each of them a three-level reduction for
acceptance of responsibility. Nevertheless, the seriousness of their crimes
still led the court to impose lengthy sentences. Bennett and Jones main-
tain that although they pleaded guilty, "they fared no better" than they
would have if they had proceeded to trial and been convicted of all
offenses.
3
Prior to the 2002 revisions to the Federal Rules of Criminal Proce-
dure, Rule 11(e)(1) contained the prohibition against judicial participa-
tion in plea negotiations.
10 UNITED STATES v. BRADLEY
and partiality in the judicial process; and it eliminates the "misleading
impression" that the judge is "an advocate for the agreement" rather
"than a neutral arbiter." United States v. Cannady, 283 F.3d 641, 644-
45 (4th Cir. 2002) (internal quotation marks omitted).
First, the prohibition on judicial involvement in plea negotiations
guards against "the high and unacceptable risk of coercing a defen-
dant" to enter into an involuntary guilty plea. United States v. Casal-
las, 59 F.3d 1173, 1178 (11th Cir. 1995) (quoting United States v.
Bruce, 976 F.2d 552, 556-57 (9th Cir. 1992)). A coerced plea, of
course, would violate a defendant’s fundamental constitutional rights,
see Waley v. Johnston, 316 U.S. 101, 104 (1942) (per curiam), and
"a judge’s participation in plea negotiation is inherently coercive."
United States v. Barrett, 982 F.2d 193, 194 (6th Cir. 1992). In facili-
tating a plea, a "judge communicate[s] to the defendant that he
desire[s] a plea" and so "raise[s] the possibility, if only in the defen-
dant’s mind, that a refusal to accept the judge’s preferred disposition
would be punished." Id. "The defendant may fear that rejection of the
plea will mean imposition of a more severe sentence after trial or
decrease his chances of obtaining a fair trial before a judge whom he
has challenged." United States v. Werker, 535 F.2d 198, 202 (2d Cir.
1976).
Second, prohibiting judicial participation in plea negotiations also
"preserve[s] the judge’s impartiality" both during and after the plea
negotiations. United States v. Bruce, 976 F.2d 552, 557 (9th Cir.
1992). Without this prohibition there is "a real danger that a judge’s
neutrality can be compromised." Barrett, 982 F.2d at 195. "By
encouraging a particular agreement, the judge may feel personally
involved, and thus, resent the defendant’s rejection of his advice."
Cannady, 283 F.3d at 644 (internal quotation marks omitted). Judicial
involvement in plea negotiations also "makes it difficult for a judge
to objectively assess the voluntariness of the plea," may affect the
judge’s ability to preside impartially over a trial if the defendant
rejects the plea agreement, and may "diminish[ ] the judge’s objectiv-
ity in post-trial matters such as sentencing and motions for a judgment
of acquittal." Bruce, 976 F.2d at 557-58 (internal quotation marks and
citation omitted).
Finally, Rule 11(c)(1)’s prohibition is necessary to prevent the
impression of the court being anything less than a neutral arbiter dur-
UNITED STATES v. BRADLEY 11
ing the course of the negotiations. The prohibition "recognizes that
participation in the plea bargaining process depreciates the image of
the trial judge" as a fair and neutral arbiter, an image "that is neces-
sary to public confidence in the impartial and objective administration
of criminal justice." Werker, 535 F.2d at 203. When a judge partakes
in plea discussions, a defendant may well "view the judge as an
adversary . . . rather than as the embodiment of his guarantee of a fair
trial and just sentence." Bruce, 976 F.2d at 557 (internal quotation
marks omitted). Clearly, the "interests of justice are best served if the
judge remains aloof from all discussions preliminary to the determi-
nation of guilt or innocence so that his impartiality and objectivity
shall not be open to any question." Werker, 535 F.2d at 203.
Thus, Rule 11(c)(1)’s prohibition on judicial involvement in plea
negotiations not only helps to ensure the voluntariness of a defen-
dant’s guilty plea; it also protects the integrity of the court and pre-
serves public confidence in the judicial process.
III.
Before we apply Rule 11 to this case, we must first determine the
proper standard of review. The Government maintains that because
"none of the defendants objected" in the district court to judicial par-
ticipation in plea negotiations, we must review their claim under the
rigorous plain error standard. That is, the Defendants must demon-
strate that (1) the asserted violation of Rule 11(c)(1) is error, (2) the
error is plain, and (3) the error affected their substantial rights; if
these three conditions are met, an appellate court may then exercise
its discretion to notice a forfeited error, but only if (4) "the error seri-
ously affect[s] the fairness, integrity, or public reputation of judicial
proceedings." United States v. Olano, 507 U.S. 725, 731-32 (1993)
(internal quotation marks and citation omitted). In contrast, the
Defendants contend that a district court’s participation in plea negoti-
ations constitutes a structural error justifying reversal even if a defen-
dant cannot show prejudice. See Arizona v. Fulminante, 499 U.S. 279,
309-10 (1991) (discussing various structural errors).
A court’s participation in plea negotiations does have some paral-
lels to structural defects recognized by the Supreme Court, like the
denial of the right to an impartial judge. However, after careful
12 UNITED STATES v. BRADLEY
review of Rule 11 itself and the cases interpreting it, we believe plain
error review (or, if an objection has been lodged in the district court,
harmless error review) more fully accords with the text of the rule and
with precedent.
First, Rule 11(h) itself provides that "[a] variance from the require-
ments of this rule is harmless error if it does not affect substantial
rights." Fed. R. Crim. Pro. 11(h). Moreover, in United States v. Vonn,
535 U.S. 55, 59-62 (2002), the Supreme Court seemed to reject the
view that a Rule 11 error could constitute structural error, see id. at
66-71; rather the court indicated that all forfeited Rule 11 errors were
subject to plain error review. See id. at 59. ("We hold that a silent
defendant has the burden to satisfy the plain-error rule and that a
reviewing court may consult the whole record when considering the
effect of any error on substantial rights."). See also United States v.
Dominguez Benitez, 124 S. Ct. 2333, 2336 (2004) ("Because the
claim of Rule 11 error was not preserved by timely objection, the
plain error standard of Rule 52(b) applies."); United States v. Marti-
nez, 277 F.3d 517, 525 (4th Cir. 2002) (holding pre-Vonn that "[p]lain
error analysis is the proper standard for review of forfeited error in
the Rule 11 context.").
In the wake of Vonn, we have indicated that a contention like the
one at issue here — that the district court impermissibly participated
in plea negotiations — is not structural error, but rather is subject to
plain error review. See Cannady, 283 F.3d at 647 n.5 ("Nothing in the
record suggests that Cannady ever raised this argument below, which
would require review of the issue under a plain error standard." (cit-
ing Vonn, 535 U.S. at 61-64)). Other courts have reached the same
conclusion. United States v. Ebel, 299 F.3d 187 (3d Cir. 2002) (find-
ing that district court’s impermissible participation in plea negotia-
tions required plain error analysis in light of Vonn); United States v.
Diaz, 138 F.3d 1359, 1362-63 (11th Cir. 1998) (refusing to reverse
conviction despite judge’s participation in negotiations because
defendant could not show prejudice); see also United States v. Miles,
10 F.3d 1135, 1140-41 (5th Cir. 1993) (applying harmless error
review to claim that district court participated in plea negotiations).
We continue to believe that this is the appropriate standard of
review and so hold. Accordingly, in this case, because the Defendants
UNITED STATES v. BRADLEY 13
neither objected to the district court’s involvement in plea discus-
sions, nor attempted to withdraw their pleas, we subject their appel-
late contentions to the rigorous plain error standard. This means that
we will not presume prejudice. Rather, in order to prevail, Bradley,
Jones, and Bennett must demonstrate not only the existence of plain
error but also that this error affected their substantial rights; we must
further be convinced that a refusal to notice the error would seriously
affect the fairness, integrity, or public reputation of judicial proceed-
ings. See Olano, 507 U.S. at 731-32. We consider the entire record
in determining whether these requirements have been met. See Vonn,
535 U.S. at 65-66.
With these principles in mind, we turn to the case at hand.
IV.
In this case, the Government concedes that the district court repeat-
edly violated Rule 11’s prohibition on judicial participation in plea
negotiations, that this participation was error, and that the error was
plain. The record clearly demonstrates that the district court initiated
plea discussions, advised the Defendants that they might "be better off
pleading to the indictment," suggested that they would likely receive
life sentences if they went to trial, commented on the amount and
weight of the Government’s evidence, criticized the Defendants for
turning down plea offers from the Government, urged the Defendants
to attempt "to dispose of the charges against them on a reasonable
basis," and explained to the Defendants that even if the prosecution
would not recommend the sentence the Defendants desired, this
should not prevent a plea because the court — not the prosecution —
would determine the sentence. In sum, as the Government recognizes,
the Defendants have established plain Rule 11 error.
The record here thus markedly differs from cases in which judicial
comments after completion of the plea agreement or a single brief
remark during negotiations have been held not to constitute impermis-
sible judicial participation in plea discussions. Compare Cannady,
283 F.3d at 644 (holding that court’s comments after "the parties had
reached a definite agreement that had been reduced to writing and
executed by [the defendant] and the government, all without any
direct involvement by the district judge" did not violate Rule 11);
14 UNITED STATES v. BRADLEY
United States v. Bierd, 217 F.3d 15, 21 (1st Cir. 2000) (holding that
court’s mention of a guilty plea and acceptance of responsibility to
defense counsel was not reversible error); United States v. Johnson,
89 F.3d 778, 783 (11th Cir. 1996) (finding no improper participation
when the court warned the defendant of the risk involved in pleading
guilty to the substantive offense and contesting the conspiracy
charge).
Accordingly, we turn our attention to the remaining requirements
that must be met in order for the Defendants to prevail here — that
the error affected the Defendants’ substantial rights and that refusal
to notice the error would seriously affect the fairness, integrity, or
public reputation of judicial proceedings. As the Fifth Circuit has rec-
ognized, it will be rare that a clear violation of Rule 11’s prohibition
against judicial involvement in plea negotiations does not affect sub-
stantial rights. See Miles, 10 F.3d at 1141 (noting that it had found no
case holding that when a judge truly participated in plea negotiations,
the participation did not affect substantial rights). Similarly, given the
critical interests served by the prohibition — 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," Cannady 283 F.3d at 644-45 — failure to
notice this sort of clear Rule 11 error would almost inevitably seri-
ously affect the fairness and integrity of judicial proceedings.
The Government argues, however, that neither requirement can be
met in this case because the Defendants encouraged the district
court’s involvement in the plea negotiations.4 The Government partic-
ularly emphasizes defense counsel’s efforts to effect the guilty pleas:
4
The Government does not argue that the Defendants or their lawyers
invited the error. Indeed, at oral argument counsel for the Government
properly conceded that the record did not provide evidence on which to
base an invited error claim. That concession is well taken. See e.g.,
United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997) ("The invited
error doctrine recognizes that a court cannot be asked by counsel to take
a step in a case and later be convicted of error, because it has complied
with such request." (internal quotation marks omitted)). In this case, the
district court, not defense counsel, initiated the discussion regarding plea
negotiations.
UNITED STATES v. BRADLEY 15
"[T]he very same lawyers who now contend that their clients were
coerced into pleading guilty, counseled their clients at trial to do so
and went to considerable lengths to engineer the terms pursuant to
which the defendants pleaded guilty." Brief of Appellee at 33. How-
ever, the failure of defense counsel to recognize and to seek to avoid
the Rule 11 error at trial, while unfortunate, does not provide a basis
for finding that the error did not affect Defendants’ substantial rights
or that a refusal to notice the error would not seriously affect the fair-
ness, integrity, and public reputation of judicial proceedings.
Indeed, the Government’s argument totally ignores the applicable
standard for determining the effect on substantial rights in cases
involving Rule 11 violations. In making this determination, we do not
examine whether defense counsel participated in the error. Instead,
we simply ask whether there is "a reasonable probability that, but for
the error," the defendant would have pleaded guilty. Dominguez
Benitez, 124 S. Ct. at 2340. In this case, the record clearly indicates
a "reasonable probability" that, absent judicial involvement, the
Defendants would not have entered guilty pleas.
Although all three defendants did indicate interest in reaching plea
agreements, they were only interested in a deal on their own terms.
When the Government refused to agree to terms of their liking, the
Defendants repeatedly rejected the Government’s plea offers and
were content to take their chances at trial. To cite just three examples:
Jones refused to consider a plea agreement that would have required
him to cooperate with the Government; on two occasions Bradley
refused to go forward with a guilty plea during the Rule 11 colloquy;
and, even after two weeks of trial and countless warnings from the
court, Bennett was not willing to enter a guilty plea unless the Gov-
ernment agreed to dismiss one of the counts against him. In fact,
despite virtually endless negotiations by counsel and the district
court’s repeated encouragement, the Defendants never were able to
reach an agreement with the Government. They ultimately agreed to
plead to the indictment but only after the court expressly told them
that in its view they might be "better off" doing so. Judicial encour-
agement to plead guilty was so clear that one defendant (Jones) com-
plained of it to the district court: "You keep telling us to cop out, like
we are already guilty."
16 UNITED STATES v. BRADLEY
Thus, a fair reading of the record in this case leads to the inevitable
conclusion that there is a "reasonable probability" that the Defendants
would not have pleaded guilty in the midst of trial without the district
court’s criticizing their decision to reject plea offers from the Govern-
ment, repeatedly questioning their reasons for proceeding with the
trial, and advising them to plead to the indictment. Indeed, even with
the court’s repeated interventions and involvement in negotiations,
which began at the outset of the trial, the Defendants did not enter a
guilty plea until the trial had been underway for over two weeks.
Although we have no doubt that the district court had the best of inten-
tions,5 judicial involvement in the plea negotiations nevertheless
unacceptably influenced the Defendants’ decision to plead guilty.
Accordingly, the Defendants have demonstrated that the plain Rule 11
error affected their substantial rights.
Moreover, after careful review of the entire record in this case, we
can only conclude that refusing to notice this plain error would seri-
ously affect the fairness, integrity and public reputation of judicial
proceedings. We have not found a single case in which the extent of
judicial involvement in plea negotiations equalled that in the case at
hand. The district court repeatedly appeared to be an advocate for the
pleas rather than as a neutral arbiter, and any fair reading of the record
reveals the substantial risk of coerced guilty pleas. Even if, as the
Government claims, it could have presented uncontroverted evidence
of the Defendants’ guilt if the trial had proceeded to verdict, we can-
not refuse to notice the repeated judicial intervention in the plea nego-
tiations. The fact is, the jury rendered no verdict in this case; there has
been no "fair and reliable determination" of the Defendants’ guilt.
Compare United States v. Cedelle, 89 F.3d 181, 186 (4th Cir. 1996);
see also Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) ("[T]o
hypothesize a guilty verdict that was never in fact rendered — no
matter how inescapable the findings to support that verdict might be
— would violate the jury-trial guarantee.").
5
The experienced district judge seems to have recognized the existence
of a prohibition on judicial participation in plea negotiations. It appears,
however, that the Defendants’ youth and their lack of experience in the
federal system caused the court to overlook the seriousness of the prob-
lems inherent in the court’s involvement in the plea discussions in this
case.
UNITED STATES v. BRADLEY 17
Furthermore, contrary to the Government’s contentions, on these
facts defense counsel’s willing participation in plea discussions with
the court does not in any way alleviate the impact of judicial partici-
pation on the fairness, integrity, and public reputation of the proceed-
ing. Defense counsel’s actions do not eliminate the coercion apparent
in the plea negotiations, nor do they somehow substitute for a fair and
reliable determination of guilt. The record strongly indicates that the
Defendants repeatedly ignored their counsel’s advice to enter guilty
pleas. Only the district court’s repeated statements to the Defendants
that the Government’s case was very strong and that they might be
better off pleading guilty to the indictment seem to have persuaded
them to do so. Thus, defense counsel’s conduct provided no "cure" for
the coercive effect of the district court’s involvement. We can only
conclude that the district court’s role as advocate for the Defendants’
guilty pleas affected the fairness, integrity, and public reputation of
judicial proceedings.
We do not suggest that the district court improperly intended to
coerce involuntary guilty pleas, but the fact is:
[t]he unequal positions of the judge and the accused, one
with the power to commit to prison and the other deeply
concerned to avoid prison, at once raise a question of funda-
mental fairness. When a judge becomes a participant in plea
bargaining he brings to bear the full force and majesty of his
office. His awesome power to impose a substantially longer
or even maximum sentence in excess of that proposed is
present whether referred to or not.
Barrett, 982 F.2d at 194 (quoting United States ex rel. Elkins v. Gilli-
gan, 256 F. Supp. 244, 254 (S.D.N.Y. 1966)). Accordingly, we hold
that we must notice the plain error in this case.
V.
For the foregoing reasons, the judgment of the district court is
vacated and the case is remanded for further proceedings in which the
Defendants will be permitted to withdraw their guilty pleas. We also
remand the case for assignment to another district judge. See Miles,
10 F.3d at 1142; United States v. Corbitt, 996 F.2d 1132, 1135 (11th
18 UNITED STATES v. BRADLEY
Cir. 1993). We have little doubt that the district judge could be totally
objective on remand, but our faith in his objectivity does not affect
our decision. "Regardless of the judge’s objectivity, it is the defen-
dant’s perception of the judge that will determine whether the defen-
dant will feel coerced to enter a plea." Barrett, 982 F.2d at 196(quoting Werker, 535 F.2d at 202) (internal quotation marks omitted).
Accordingly, we vacate the district court’s judgment and remand for
assignment to a different district judge.
VACATED AND REMANDED