11th Circuit Bends to High Court's Nudge

11th Circuit Bends to High Court's Nudge Rebecca Breyer/freelance photographer

Federal appeals court judges who in 2011 said an Augusta magistrate judge unfairly pushed a criminal defendant to plead guilty have ruled this time for the prosecutors, following direction from the U.S. Supreme Court that undid the defendant’s victory.

Judges on the U.S. Court of Appeals for the Eleventh Circuit agreed 2½ years ago with defendant Anthony Davila that his guilty plea in a federal tax fraud case should be tossed because the magistrate judge handling Davila’s case had violated a rule against judges stepping into plea negotiations. But after the Department of Justice appealed, the nation’s highest court last year sent the case back, saying that although the magistrate’s remarks were “beyond the pale,” the Eleventh Circuit should have considered whether the remarks actually led Davila to plead guilty.

On April 15, the Eleventh Circuit panel said Davila hadn’t met his burden to show that the magistrate’s remarks, which included telling Davila that “there may not be viable defenses” to the charges against him, directly prompted him to change his plea from not guilty to guilty. The unsigned opinion issued by the panel noted that Davila pleaded guilty before a different judge, three months after the magistrate strayed into the plea bargain process.

The case is remarkable for its trajectory up and down the appellate courts after the defendant’s court-appointed counsel initially told the Eleventh Circuit there were no bases for his client to appeal.

The issue with which the appellate courts have wrestled stems from charges that Davila filed false tax returns in others’ names, collecting more than $423,000 as a result.

U.S. Magistrate Judge W. Leon Barfield held a hearing on Davila’s request to fire his attorney, Michael Loebl of Fulcher Hagler in Augusta. A court reporter, but no prosecutor, was invited to the hearing.

Davila, who, according to an appellate brief by Loebl, was being treated for schizophrenia, complained to Barfield that Loebl hadn’t discussed any defenses with him.

Barfield responded that advising a client to plead guilty was “oftentimes … the best advice a lawyer can give his client.” Barfield told Davila that “there may not be viable defenses to these charges” and that “it might be a good idea” for Davila to accept responsibility for his crimes as a way to get a reduced sentence, according to transcript excerpts in court records. Accepting responsibility, Barfield told Davila, would require Davila to “go to the cross” and “tell it all, Brother,” to the probation officer preparing his sentencing report.

Barfield rejected Davila’s request for a new lawyer.

Three months later, before U.S. District Judge J. Randal Hall, Davila pleaded guilty to one count of the 34-count indictment, conspiracy to defraud the United States by obtaining false tax refunds. Davila later was given permission to represent himself as the case proceeded to sentencing, with Loebl assigned to the role of standby counsel. Hall subsequently sentenced Davila to 115 months in prison.

Davila appealed his conviction and sentence. The Eleventh Circuit assigned Loebl to handle the case, but Davila persisted in trying to fire the lawyer, and Loebl asked to be allowed to withdraw. He filed a so-called Anders brief, named after the 1967 U.S. Supreme Court decision Anders v. California, 386 U.S. 728, which says an appointed defense attorney who finds a client’s appeal wholly frivolous should so advise the court.

But the Eleventh Circuit, in an order signed by now-Senior Judge J.L. Edmondson, directed Loebl to review the issue of Barfield’s comments and either file a new Anders brief addressing the issue or file a brief supporting Davila’s appeal on the merits. Loebl chose the latter option, arguing that the magistrate’s comments meant the appeals court should vacate Davila’s guilty plea.

In response, federal prosecutors conceded that Barfield committed error in that his comments “strayed beyond” the Federal Rule of Criminal Procedure 11(c)(1)’s prohibition against judicial involvement in plea negotiations. But they argued that Davila’s conviction should be upheld because he had not shown it was likely that, but for the magistrate’s comments, he would not have pleaded guilty.

In December 2011, the Eleventh Circuit panel of judges Gerald Tjoflat and William Pryor Jr. and Senior Judge Phyllis Kravitch sided with Davila. The panel’s unsigned opinion said the rule against judges stepping into plea negotiations was a bright line and, under the court’s precedent, Davila didn’t need to show he was harmed in any particular way.

Citing a circuit split on the issue, and noting the Eleventh Circuit was in the minority on the matter, the Justice Department persuaded the Supreme Court to take up the case. Last June, the Supreme Court ruled 9-0 that the Eleventh Circuit needed to look at the case again. Justice Ruth Bader Ginsburg wrote for the court that the government’s concession that Barfield had violated Rule 11(c)(1) didn’t mean Davila’s conviction must be reversed.

Ginsburg’s opinion suggested the Eleventh Circuit should consider the standard by which the extent of any harm to Davila should be judged. In a brief filed after the Supreme Court sent the case back down, the government argued that the plain error rule should apply. That would mean Davila carried the burden to show he was hurt by the remarks, because Davila didn’t object to the magistrate’s remarks until the time of his appeal.

Davila’s Supreme Court counsel at Orrick Herrington & Sutcliffe’s Washington office argued that the harmless error rule should apply. That would mean the government carried the burden to prove that Davila wasn’t hurt by the remarks. They argued that Davila didn’t have a meaningful opportunity to object to the magistrate’s remarks—given that they were made during a hearing convened to address Davila’s complaints about his appointed counsel and essentially amplified counsel’s advice that he plead guilty.

On April 15, the same Eleventh Circuit that ruled for Davila in 2011 ruled against him, saying said the more prosecution-friendly plain error rule should apply. The panel said the court would not excuse Davila’s failure to object earlier to the magistrate’s remarks, saying Davila had “ample occasion” to object in the months following the magistrate’s comments and during the time following his guilty plea during which he represented himself.

Applying the plain error standard, the judges said that although it was undisputed that the magistrate’s remarks encouraging Davila to plead guilty were error, Davila hadn’t met his burden to show that it was reasonably probable that, had the magistrate not made those remarks, he would have gone to trial.

The opinion said that although Davila had pointed to some evidence in his favor, particularly his apparent reluctance to plead guilty prior to the hearing at which the magistrate made the improper remarks, other factors tipped the balance in favor of the prosecution. The appeals court judges noted that Davila swore under oath during his change-of-plea hearing that his plea was not coerced and acknowledged that the government could prove he committed the offense to which he pleaded guilty.

Davila later moved to withdraw his guilty plea, said the panel, but in doing so he did not mention the improper comments and instead argued that pleading guilty was “strategic” and designed to force the government to acknowledge time-frame errors Davila said were made in the indictment. Davila’s final plea agreement was significantly more favorable than the agreement the government initially offered him, the opinion added.

First Assistant United States Attorney James Durham said the U.S. attorney’s office in Savannah had no comment on the latest ruling. Efforts to reach Davila’s lawyers at Orrick, Robert Loeb and Robert Yablon were unsuccessful.

The case is United States v. Davila, Nos. 10-15310 and 11-10224.

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