United States v. Davila, No. 12-167; U.S. Supreme Court; opinion by Ginsburg, J.; partial concurrence by Scalia, J.; decided June 13, 2013. On certiorari to the U.S. Court of Appeals for the Eleventh Circuit.
Federal Rule of Criminal Procedure 11 governs guilty pleas. Rule 11(c)(1) instructs that "[t]he court must not participate in [plea] discussions," and Rule 11(h) states that a "variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights." Rule 52(a), which covers trial court errors generally, similarly prescribes: "Any error … that does not affect substantial rights must be disregarded."
Respondent Davila, while under indictment on multiple tax fraud charges, wrote to the district court, expressing dissatisfaction with his court-appointed attorney. Complaining that his attorney offered no defensive strategy, but simply advised him to plead guilty, Davila requested new counsel. A magistrate judge held an in camera hearing at which Davila and his attorney, but no representative of the United States, appeared. At the hearing, the magistrate judge told Davila that he would not get another court-appointed attorney and that his best course, given the strength of the government's case, was to plead guilty.
More than three months later, Davila pleaded guilty to a conspiracy charge in exchange for dismissal of 33 other charges. He stated under oath before a U.S. district judge that he had not been forced or pressured to enter the plea, and he did not mention the in camera hearing before the magistrate judge. Prior to sentencing, however, Davila moved to vacate his plea and dismiss the indictment, asserting that he had entered the plea for a "strategic" reason, i.e., to force the government to acknowledge errors in the indictment. Finding that Davila's plea had been knowing and voluntary, the district judge denied the motion. Again, Davila said nothing of the in camera hearing conducted by the magistrate judge. On appeal, the Eleventh Circuit, following circuit precedent, held that the magistrate judge's violation of Rule 11(c)(1) required automatic vacatur of Davila's guilty plea, obviating any need to inquire whether the error was prejudicial.
Held: Under Rule 11(h), vacatur of the plea is not in order if the record shows no prejudice to Davila's decision to plead guilty. Pp. 7-14.
(a) Rule 11(c)(1)'s prohibition of judicial involvement in plea discussions was included in the 1974 amendment to the rule out of concern that a defendant might be induced to plead guilty rather than risk antagonizing the judge who would preside at trial. Rule 11(h) was added in the 1983 amendment to make clear that Rule 11 errors are not excepted from Rule 52(a)'s harmless-error inquiry. Rule 52 also states, in subsection (b), that a "plain error that affects substantial rights may be considered even though it was not brought to the [trial] court's attention." When Rule 52(a) governs, the prosecution has the burden of showing harmlessness, but when Rule 52(b) controls, the defendant must show that the error affects substantial rights. See United States v. Vonn, 535 U.S. 55, 62.
As clarified in Vonn and United States v. Dominguez Benitez, 542 U.S. 74, a Rule 11 error may be of the Rule 52(a) type or the Rule 52(b) kind, depending on when the error was raised. In Vonn, the judge who conducted the plea hearing failed to inform the defendant, as required by Rule 11(c)(3), that he would have "the right to the assistance of counsel" if he proceeded to trial. The defendant first objected to the omission on appeal. This court held that "a silent defendant has the burden to satisfy [Rule 52(b)'s] plain-error rule." See 535 U.S. at 59. In Dominguez Benitez, the error first raised on appeal was failure to warn the defendant, as Rule 11(c)(3)(B) instructs, that a plea could not be withdrawn even if the sentence imposed was higher than the plea-bargained sentence recommendation. The court again held that Rule 52(b) controlled, and prescribed the standard a defendant silent until appeal must meet to show "plain error," namely, "a reasonable probability that, but for the [Rule 11] error, he would not have entered the plea." See 542 U.S. at 83. Pp. 7-9.
(b) Here, the magistrate judge plainly violated Rule 11(c)(1) by exhorting Davila to plead guilty. Davila contends that automatic vacatur, while inappropriate for most Rule 11 violations, should attend conduct banned by Rule 11(c)(1). He distinguishes plea-colloquy omissions, i.e., errors of the kind involved in Vonn and Dominguez Benitez, from preplea exhortations to admit guilt. The former come into play after a defendant has decided to plead guilty, the latter, before a defendant has decided to plead guilty or to stand trial. Nothing in Rule 11's text, however, indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur without regard to case-specific circumstances. Nor does the advisory committee commentary single out any Rule 11 instruction as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription (or, absent prompt objection, the plain-error rule).
Rule 11(c)(1) was adopted as a prophylactic measure, not one impelled by the Due Process Clause or any other constitutional requirement. Thus, violation of the rule does not belong in the highly exceptional category of structural errors — e.g., denial of counsel of choice or denial of a public trial — that trigger automatic reversal because they undermine the fairness of the entire criminal proceeding. United States v. Marcus, 560 U.S. 258. Instead, in assessing Rule 11 errors, a reviewing court must take account of all that transpired in the trial court. Had Davila's guilty plea followed soon after the magistrate judge's comments, the automatic-vacatur rule would have remained erroneous. The court of appeals' mistake in that regard, however, might have been inconsequential, for the magistrate judge's exhortations, if they immediately elicited a plea, would likely have qualified as prejudicial. Here, however, three months distanced the in camera meeting conducted by the magistrate judge from Davila's appearance before the district judge who examined and accepted his guilty plea after an exemplary Rule 11 colloquy, at which Davila had the opportunity to raise any questions he might have about matters relating to his plea. The court of appeals, therefore, should not have assessed the magistrate judge's comments in isolation. Instead, it should have considered, in light of the full record, whether it was reasonably probable that, but for the magistrate judge's comments, Davila would have exercised his right to go to trial. Pp. 10-14.
(c) The court of appeals, having concluded that the magistrate judge's comments violated Rule 11(c)(1), cut off further consideration. It did not engage in a full-record assessment of the particular facts of Davila's case or the case-specific arguments raised by the parties, including the government's assertion that Davila was not prejudiced by the magistrate judge's comments, and Davila's contention that the extraordinary circumstances his case presents should allow his claim to be judged under Rule 52(a)'s harmless-error standard rather than Rule 52(b)'s plain-error standard. The court decides only that the automatic-vacatur rule is incompatible with Rule 11(h) and leaves all remaining issues to be addressed on remand. P. 14.
664 F.3d 1355, vacated and remanded.