United States v. Savino Braxton

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4491
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAVINO BRAXTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:09-cr-00478-RDB-1)
Argued: March 26, 2015 Decided: April 28, 2015
Before NIEMEYER, KING, and HARRIS, Circuit Judges.
Vacated and remanded by published opinion. Judge Harris wrote
the opinion, in which Judge Niemeyer and Judge King joined.
ARGUED: Andrew Robert Szekely, LAW OFFICES OF ANDREW R. SZEKELY,
LLC, Greenbelt, Maryland, for Appellant. John Francis Purcell,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
PAMELA HARRIS, Circuit Judge:
For months, Savino Braxton (“Braxton”) insisted on
exercising his right to go to trial, despite the substantial
mandatory minimum penalty he would face if convicted. On what
would have been the first day of trial, however, Braxton
reversed course and accepted the government’s plea offer.
Because the district court impermissibly participated in the
discussions that led to Braxton’s change of heart, we vacate and
remand for further proceedings.
I.
Braxton was charged with possession with intent to
distribute one kilogram or more of heroin, in violation of 21
U.S.C. § 841(a) (2012). Ordinarily, this charge carries a
mandatory minimum penalty of ten years’ imprisonment. 21 U.S.C.
§ 841(b)(1)(A) (2012). But where the defendant, like Braxton,
has a prior felony drug conviction, the government may elect to
file a prior felony information, effectively doubling the
mandatory minimum to twenty years’ imprisonment. See id.; 21
U.S.C. § 851(a) (2012).
In the fall of 2012, Braxton discussed the possibility of a
guilty plea with his court-appointed counsel, Arcangelo
Tuminelli (“Tuminelli”). During those discussions, Tuminelli
expressed concern that if Braxton did not plead guilty, the
2
government might choose to file a prior felony information under
§ 851. Unswayed, Braxton refused to plead guilty and moved for
the appointment of new counsel, complaining that Tuminelli was
“not interested in taking the case to trial” and had “vehemently
goad[ed] [him] to plead guilty.” J.A. 36-37. During a hearing
on that motion, the district court indicated that it did not
“find it really to be a situation where [Braxton] should get
substitute counsel,” and Braxton agreed to withdraw his request.
J.A. 112.
Meanwhile, on November 19, 2012, Tuminelli’s fears were
realized: The government indeed filed a prior felony
information under § 851. As a result, Braxton faced a mandatory
minimum penalty of twenty years’ imprisonment if convicted after
trial. At the time, he was fifty-five years old.
Trial was scheduled to begin on February 11, 2013. That
morning, the district court memorialized for the record that
Braxton had received and rejected a plea agreement formally
offered by the government. 1 Under the terms of the rejected plea
agreement, Braxton faced a minimum of ten years’ imprisonment,
1
Under Missouri v. Frye, 132 S. Ct. 1399 (2012), a defense
counsel’s failure to communicate a formal plea offer may
constitute ineffective assistance of counsel. To guard against
such claims, the Supreme Court has suggested that “formal offers
. . . be made part of the record . . . before a trial on the
merits, . . . to ensure that a defendant has been fully advised
before those . . . proceedings commence.” Id. at 1409.
3
and the government promised to ask for no more than fifteen
years. In the words of the district court, the government had
“essentially” offered to “withdraw the 851 notice” in exchange
for a guilty plea. J.A. 237. On the record, Braxton confirmed
that he understood the offer, and that he nevertheless wished to
reject it and proceed to trial.
Immediately thereafter, Braxton orally requested that he be
appointed new counsel or, in the alternative, that he be
permitted to represent himself. The district court promptly
denied both requests. First, the district court found that
there was no need for new counsel because Braxton’s conflict
with Tuminelli was not “so great that it results in any lack of
communication.” J.A. 240. Next, the district court noted that
Braxton’s request to represent himself was being made literally
“on the morning of trial” and therefore was “not timely.” J.A.
252.
Although Braxton’s requests for new counsel and self-
representation already had been denied, discussion of Braxton’s
grievances against Tuminelli continued. At core, attorney and
client disagreed about whether Braxton should accept the
government’s plea agreement or go to trial. Although Braxton
admitted that he was “guilty” of possessing with intent to
distribute some quantity of heroin, he nevertheless insisted on
proceeding to trial to “test[] the validity of the weight of the
4
drugs.” J.A. 253. Tuminelli, for his part, took the position
that Braxton should have accepted the plea agreement.
Drawn into this dispute, the district court repeatedly
spoke in favor of the plea agreement, opining that it would be
best for Braxton to take the government’s offer and forgo trial.
The court told Braxton, “I am not favorably inclined towards
having you go to trial and trigger a mandatory minimum of 20
years, as opposed to a plea offer that’s down in the 10 to 15
year range in terms of years of your life.” J.A. 265. In the
court’s words, Braxton was “hurting [his] own interest” by
choosing to go to trial. J.A. 267. 2 Given the sentencing
“scenario,” the district court found Braxton’s position
difficult to comprehend, comparing the decision to go to trial
to “put[ting] [your] head in a buzz saw that makes absolutely no
sense.” J.A. 272. At the conclusion of this first series of
2
See also J.A. 267-68 (characterizing “going to trial and
doubling a mandatory minimum” to twenty years as “just almost
silly when [Braxton was] in a potential range of 10 to 15
years”); J.A. 268 (characterizing the plea agreement as a “far
more sensible way to approach” the drug quantity question than
going to trial); J.A. 271 (emphasizing that, if Braxton accepted
the plea agreement, the court would not be “bound” by the
twenty-year mandatory minimum triggered by the § 851 notice, and
would therefore be “free to sentence [Braxton] to 10 years”);
J.A. 276 (stating that Braxton’s concern regarding quantity and
sentencing was an issue that could “be addressed in another
context” and “d[idn’t] need to be addressed in terms of a jury
trial, where [he] face[d] the potentiality of a 20-year minimum
mandatory” and the court’s “hands [would be] tied” with respect
to a more lenient sentence).
5
remarks, the district court instructed Braxton “to talk to [his]
lawyer” and ordered a ten-minute recess. J.A. 276. Thirty
minutes later, the district court briefly reconvened in order to
excuse the jury for lunch. At that time, the district court
again advocated for the rejected plea agreement, declaring, “[A]
defendant shouldn’t put his head in a vice [sic] and face a
catastrophic result just over a dispute over drug quantity.
That’s the point.” J.A. 277.
During the forty-five-minute lunch recess that immediately
followed, Braxton changed his mind and accepted the same plea
agreement that he had rejected that morning. The district court
conducted a Rule 11 colloquy as soon as it reconvened in the
afternoon. Referring to that morning’s discussion of the plea
agreement, the district court explained that it had been
motivated by concern “over [Braxton’s] unwisely proceeding to
trial before a jury.” J.A. 284. At the same time, the district
court asked Braxton whether he had “felt forced or threatened or
pushed” to plead guilty. J.A. 285. Braxton replied, “No, sir.”
J.A. 285. Satisfied, the district court accepted Braxton’s
guilty plea and scheduled sentencing.
In May 2013, Braxton filed a pro se motion to withdraw his
guilty plea on the basis of ineffective assistance of counsel.
At his June 17, 2013, sentencing hearing, Braxton again asked to
withdraw his guilty plea, this time arguing that his plea had
6
been involuntary. Braxton contended that he had been “eager to
go to trial,” but had been pressured to plead guilty by the
district court. J.A. 329. The district court denied Braxton’s
request and sentenced him to eleven and one-half years, or 138
months, of imprisonment. Braxton timely appealed.
II.
A.
Under Federal Rule of Criminal Procedure 11(c)(1), “[a]n
attorney for the government and the defendant’s attorney . . .
may discuss and reach a plea agreement.” Courts, however, are
expressly prohibited from “participat[ing] in these
discussions.” Id. This prohibition, added in 1974, was
intended to eliminate the previously “common practice” of
judicial participation in plea negotiations, United States v.
Davila, 133 S. Ct. 2139, 2146 (2013) (quoting Advisory
Committee’s 1974 Note on Subd. (e)(1) of Fed. R. Crim. P. 11,
18 U.S.C.App., p. 1420 (1976 ed.)), and serves three principal
interests. First, “it diminishes the possibility of judicial
coercion of a guilty plea.” United States v. Sanya, 774 F.3d
812, 815 (4th Cir. 2014) (quoting United States v. Bradley, 455
F.3d 453, 460 (4th Cir. 2006)). Second, “it protects against
unfairness and partiality in the judicial process.” Id. And
finally, “it eliminates the misleading impression that the judge
7
is an advocate for the agreement rather than a neutral arbiter.”
Id.We recently had occasion to apply these principles in
United States v. Sanya, 774 F.3d 812 (4th Cir. 2014). In that
case, we found that the district court committed plain error by
“repeatedly intimat[ing] that a plea to the . . . charges was in
[the defendant’s] best interests” and “strongly suggest[ing]
that [the defendant] would receive a more favorable sentence if
he agreed to plead guilty.” Id. at 816. Because these comments
occurred “just five days” before the defendant changed his mind
about going to trial and executed a plea agreement, we found
that there was a “reasonable probability that, but for the
error, he would not have entered the plea,” and that the error
had therefore affected his “substantial rights.” Id. at 817-18(quoting United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004)). Finally, we found that, in light of “the critical
interests served by the prohibition” on judicial participation
in plea discussions, our refusal to notice the error would
“seriously affect the fairness, integrity or public reputation
of judicial proceedings.” Id. at 821 (quoting United States v.
Olano, 507 U.S. 725, 736 (1993); Bradley, 455 F.3d at 463). On
the basis of these findings, we concluded that the district
court had committed reversible error. Id. at 821-22. Because
8
this case is on all fours with Sanya, we are compelled to find
reversible error here as well. 3
First, as in Sanya, the district court made repeated
comments, doubtlessly well-intentioned, that nevertheless
suggested that a plea would be in Braxton’s best interest, and
that Braxton would receive a more favorable sentence if he
pleaded guilty. See id. at 816. The district court, for
instance, baldly stated that it was “not favorably inclined”
toward Braxton going to trial, J.A. 265, a course it described
as “almost silly,” J.A. 267-68, and compared to “put[ting] your
head in a buzz saw,” J.A. 272. The court also implied that a
plea would benefit Braxton at sentencing, warning Braxton that
while it would be “free to sentence [him] to 10 years” if he
took the plea, J.A. 271, its “hands [would be] tied” by the
twenty-year minimum if he rejected the plea and then lost at
trial, J.A. 276. This advice, moreover, had the unfortunate
effect of emphasizing for Braxton that the judge who was
counseling him to accept a plea was the same judge who would be
sentencing him, increasing the risk that Braxton would feel
coerced to do as the judge advised. See Sanya, 774 F.3d at 821.
3
Because we find that Braxton is able to satisfy the more
stringent plain-error standard of review applied in Sanya, we
need not decide whether the alleged Rule 11(c)(1) error in this
case was properly preserved for review under the harmless-error
standard.
9
This is not a case involving a single or even a few brief
remarks by the court, or comments made only after a plea
agreement already has been reached. See id. at 816; cf. United
States v. Cannady, 283 F.3d 641, 644 (4th Cir. 2002) (finding no
error where district court’s comments were made after the plea
agreement had been executed). Instead, as in Sanya, the court’s
commentary was extensive and persistent, and continued unabated
throughout the morning session, again when the court reconvened
to recess for lunch, and even during the afternoon plea colloquy
itself. In Sanya, we found that such “repeated remarks clearly
constitute judicial participation in plea discussions, and
[that] the district court erred in engaging in them,” even if it
acted only with the best of intentions. 774 F.3d at 816. We
reach the same conclusion here. We also find that the error was
plain: As we held in Sanya, the rule against judicial
participation in plea discussions is longstanding, and “the
doctrine surrounding its interpretation is well-settled.” Id.
at 817; see also Bradley, 455 F.3d at 460 (Rule 11(c)(1)
“clearly prohibits a court from participating in plea
negotiations.”).
Our reasoning in Sanya guides our analysis of the
“substantial rights” inquiry in this case, as well. In this
context, a defendant’s substantial rights are affected if review
of the “full record” reveals a “reasonable probability” that the
10
error led him to enter the plea. 4 Sanya, 774 F.3d at 817
(quoting Dominguez Benitez, 542 U.S. at 83). As in Sanya, our
conclusion is driven largely by the timing of Braxton’s decision
to plead guilty: It was only in the immediate aftermath of the
district court’s error — specifically, during the forty-five-
minute lunch recess that followed the district court’s
admonition that Braxton “shouldn’t put his head in a vice [sic]
and face a catastrophic result . . . over drug quantity,” J.A.
277 — that Braxton reconsidered his long held position and
accepted the plea agreement. This exceedingly “close temporal
proximity weighs heavily in favor of finding that [Braxton’s]
decision to plead guilty was the result of the district court’s
involvement in the plea negotiations.” Sanya, 774 F.3d at 818
(finding standard met where defendant accepted plea within five
days of violation); see also Davila, 133 S. Ct. at 2149 (where
“guilty plea follow[s] soon after” error, the error is more
likely to be prejudicial). Indeed, it is difficult to conceive
4
In its brief, the government asserts that “[i]n the
context of a guilty plea, the defendant must demonstrate that he
would not have pled guilty but for the district court’s error.”
Gov. Br. 44 (emphasis added). That is incorrect. As we
explained in Sanya, “[t]he Supreme Court has clearly instructed
that to establish a violation of substantial rights, a defendant
need only demonstrate a ‘reasonable probability’ that the error
led him to enter the plea,” and a defendant “need not show that,
‘but for’ the court’s error, he would have gone to trial.” 774
F.3d at 819-20.
11
of any other factor that could have influenced Braxton during
this small window of time.
Finally, as we observed in Sanya, plain error involving
judicial participation in plea discussions “almost inevitably
seriously affect[s] the fairness and integrity of judicial
proceedings.” 774 F.3d at 821 (quoting Bradley, 455 F.3d at
463). This case is no exception to the general rule. As in
Sanya, the district court’s exhortations in favor of pleading
guilty were “repeated and direct” and “saturated the hearing.”
Id. That kind of sustained intervention on behalf of a plea
agreement — and concomitant forfeiture of the right to trial —
may reasonably be perceived “as inconsistent with the court’s
role as a neutral arbiter of justice,” id. (quoting United
States v. Baker, 489 F.3d 366, 375 (D.C. Cir. 2007)),
undermining public confidence in the court. Accordingly, and
after review of the entire record, we conclude that we must
follow Sanya and notice the plain error in this case.
B.
The government does not question our holding in Sanya,
arguing instead that Sanya and cases like it are distinguishable
from this one. We are not persuaded by the government’s various
efforts to distinguish Sanya, and dispense with each below.
12
1.
The government argues that no error can have occurred in
this case because Braxton stated during his Rule 11 colloquy
that his plea was given voluntarily. We disagree. The very
premise of the rule at issue is that “a judge’s participation in
plea negotiation is inherently coercive,” creating an
unacceptable risk that a defendant will enter an involuntary
guilty plea in order to avoid offense to the court with the
power to preside over his trial and determine his sentence.
Bradley, 455 F.3d at 460 (quoting United States v. Barrett, 982
F.2d 193, 194 (6th Cir. 1992)). By itself, a defendant’s mere
statement that his plea was voluntary, made in response to
questioning by the very same judge whose apparent preferences
raised the specter of coercion in the first place, cannot dispel
that concern. Cf. Baker, 489 F.3d at 376 (finding reversible
error notwithstanding district court’s “attempt[] to remedy its
error during the plea colloquy”).
Nor is there anything else about the plea colloquy here
that obviates the Rule 11(c)(1) violation. On the contrary, the
plea colloquy in this case only exacerbates the error: Even
during the colloquy itself, the district court continued to
advocate against exercise of the right to trial and for the plea
agreement, sharing with Braxton its “concern over your
[Braxton’s] unwisely proceeding to trial before a jury,” J.A.
13
284, and its worry that Braxton would “unnecessarily jeopardize”
himself by failing to plead guilty, J.A. 285. Braxton’s
statement that his plea was freely given came directly on the
heels of these judicial exhortations, and we cannot be confident
that it was not itself a product of the Rule 11(c)(1) error in
this case. See Barrett, 982 F.2d at 194 (court intervention on
behalf of a plea “raise[s] the possibility, if only in the
defendant’s mind, that a refusal to accept the judge’s preferred
disposition would be punished”). 5
2.
The government’s more sustained argument is that in this
case, as opposed to Sanya, the district court was required to
remark upon the advantages of the plea agreement and
disadvantages of trial in order to determine whether Braxton’s
request to represent himself was “knowing and intelligent”
within the meaning of Faretta v. California, 422 U.S. 8065
In addition to Braxton’s statement at the colloquy, the
government calls our attention to the court’s periodic
assurances that it was not in fact involving itself in the plea
negotiations. We have no doubt that the district court acted in
good faith, believing that it was in compliance with Rule
11(c)(1). But given that we have found to the contrary, we
attach no significance to its disclaimers. See Sanya, 774 F.3d
at 818 n.4. Nor do we attach any significance to Tuminelli’s
participation, if any, in the court’s discussion of the plea
agreement. See Bradley, 455 F.3d at 463 (“[W]e do not examine
whether defense counsel participated in the error.”) (emphasis
in original). And because we are applying the plain error
standard of review, defense counsel’s failure to object has no
independent significance.
14
(1975), as well as to ensure that the plea was effectively
communicated to Braxton as contemplated by the Supreme Court’s
recent holding in Missouri v. Frye, 132 S. Ct. 1399 (2012). We
disagree.
In this case, at least, the government’s argument is
foreclosed by the sequence of events on the day in question, in
which the district court first memorialized the government’s
plea offer under Frye, then denied Braxton’s motion to represent
himself under Faretta – and only then engaged in the commentary
regarding the plea agreement that is at issue here. At the very
opening of proceedings, the government, citing Frye, asked to
“memorialize . . . for the record” communication of its plea
offer to Braxton. J.A. 234. After Tuminelli agreed, the
government described the offer, and the court ensured that
Braxton understood the terms of the plea agreement he had
rejected. At this point, the court brought the Frye portion of
the proceedings to a definitive close: “Well, that’s fine. The
record will reflect you’ve been so advised of the plea offer in
this case. The defendant is ready to proceed to trial.” J.A.
238.
Similarly, the Faretta issue was promptly and fully
resolved before the comments that give rise to this case. When
Braxton moved to represent himself immediately after the plea
offer was put on the record, the court noted that the motion,
15
made on the morning of trial, was not timely. It went on,
however, to undertake the colloquy contemplated by Faretta,
ensuring that Braxton was aware of the “risk inherent in
proceeding without counsel” and highlighting specifically the
difficulty of making arguments to a jury and cross-examining
witnesses without the assistance of an attorney. J.A. 251. And
then the court resolved the Faretta issue in its entirety and in
no uncertain terms, denying Braxton’s motion for self-
representation on timeliness grounds: “[W]e’re ready – you may
be seated now. So I have denied your motion for self-
representation. I’ve noted the analysis. Clearly the main
factor is . . . this is not timely. It was not noted to anyone
here until suddenly this morning. So it’s not timely.” J.A.
255.
In short, it was only after it had recorded the rejected
plea offer and denied the Faretta motion for self-representation
that the district court engaged in the conduct that is the basis
of the Rule 11(c)(1) issue here. On this record, neither Frye
nor Faretta can distinguish this case from Sanya or excuse what
otherwise would be Rule 11 error.
In any event, and regardless of the timing, Faretta and
Frye would not justify the comments made here. In Faretta, the
Supreme Court held that before a defendant can be deemed to
“knowingly and intelligently” forfeit his right to counsel, “he
16
should be made aware of the dangers and disadvantages” of
representing himself at trial. 422 U.S. at 835 (internal
quotation marks omitted). 6 The district court, as noted above,
fully complied with that mandate when it advised Braxton of the
difficulties and risks inherent in self-representation, before
denying his motion as untimely. It is the court’s subsequent
comments in favor of the plea agreement that are at issue here —
comments that relate not to the dangers and disadvantages of
proceeding to trial without counsel, but rather the dangers and
disadvantages of proceeding to trial at all, and would have
applied with equal force if Braxton had gone to trial with
representation as without. See, e.g., J.A. 265 (district court
stating that he was “not favorably inclined towards having
[Braxton] go to trial”) (emphasis added). Even if, as the
government urges, something more than the standard Faretta
colloquy may be authorized when there is a plea agreement on the
6
The Supreme Court has identified the relevant “dangers and
disadvantages” to include the difficulty that a lay person will
face in “adher[ing] to the rules of procedure and evidence,
comprehend[ing] the subtleties of voir dire, examin[ing] and
cross-examin[ing] witnesses effectively, [and] object[ing] to
improper prosecution questions.” Iowa v. Tovar, 541 U.S. 77, 89
(2004) (quoting Patterson v. Illinois, 487 U.S. 285, 299 n.13
(1988)).
17
table — a question we need not resolve today — we are confident
that Faretta does not stretch so far. 7
Nor, contrary to the government’s suggestion, does Frye
require a district court to satisfy itself of the intelligence
of a defendant’s decision to exercise his right to trial instead
of accepting a plea offer. Frye and its companion case, Lafler
v. Cooper, 132 S. Ct. 1376 (2012), concern the duty of defense
counsel to advise their clients regarding formal plea offers;
they do not obligate or permit judges to give advice to
defendants on whether to accept such agreements. There is no
allegation in this case that Tuminelli either failed to inform
Braxton of the government’s plea offer in violation of Frye or
improperly advised Braxton to reject the offer in violation of
Lafler, and the record is plainly to the contrary. And the
7
For the same reason, we reject the government’s assertion
that Braxton invited any error by asking to represent himself.
As discussed above, a district court is not required to explain
a plea agreement — let alone recommend that a defendant take it
— in response to a request for self-representation. Nor did
Braxton otherwise request that the court explain or recommend
the plea agreement to him. In the absence of such a request,
the invited error doctrine is not relevant to our analysis. See
United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997)
(quoting United States v. Herrera, 23 F.3d 74, 75 (4th Cir.
1994)) (invited error doctrine applies when the court is asked
“to take a step in a case” and “complie[s] with such request”);
see also Sanya, 774 F.3d at 817 n.2 (invited error doctrine
inapplicable, notwithstanding defense counsel’s “allud[ing] to
the prospect of ‘global resolution’” and possible
“appreciat[ion] [for] the district court’s enthusiasm for a plea
and ‘global settlement’”).
18
district court, as described above, fulfilled its role under
Frye by memorializing the offer on the record at the
government’s request, prior to making the remarks at issue in
this case. Nothing more was required or justified by Frye.
III.
We have full confidence that the district court acted only
with the best of intentions, seeking a just resolution to the
serious charge that Braxton faced. Our careful review of the
record gives us no reason to think that the court intended to
coerce a guilty plea. Nevertheless, because we also conclude
that there is a reasonable probability that the district court’s
plain error affected Braxton’s substantial rights, and that our
failure to recognize this error would seriously undermine
confidence in the fairness of judicial proceedings, we vacate
Braxton’s sentence and guilty plea, and remand for further
proceedings. Although we have no doubt that the original
district judge could continue to preside fairly over this case,
we follow our usual practice and direct that the case be
assigned to a different judge on remand. See, e.g., Sanya, 774
F.3d at 822; Bradley, 455 F.3d at 465.
VACATED AND REMANDED
19