Federal Judiciary

The case does, however, embrace a rule that promotes sloppy advisements during guilty pleas -- not a great development for Rule 11 practice.

Players: Nice win for San Diego Defenders Zandra Lopez, Michelle Betancourt, and Shaffy Moeel.

Facts: San Diego had ?defective? § 1326 indictments, that failed to allege that an alien had been removed from the country after having been convicted of a felony. Id. at *1. The Ninth has held that this flaw is Apprendi error that (theoretically) limits a defendant?s exposure to two years. Id. at *2 (citing United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006)).

Garcia-Aguilar and other § 1326 defendants entered guilty pleas before the magistrates to these indictments. After the guilty pleas the government ?belatedly? brought superseding indictments that alleged the necessary missing fact. Id. To fix its mistake, the government argued that the original guilty plea colloquies were defective, because the magistrates had advised the defendants they were looking at twenty years ? when in reality, they were only looking at two years because of the ?defective? indictment. Id.

On the government?s motion, the district courts refused to accept these unconditional guilty pleas. Id.

Issue(s): ?We consider the district court?s refusal to accept defendants? unconditional guilty pleas.? Id. at *1.

Held: ?The district court shall accept defendant?s unconditional pleas to the original indictments.? Id. at *4.

Of Note: As Arizona Defender Jon Sands has noted, Chief Judge Kozinski gives us the following wonderful quote: ?These consolidated cases show again why the ten most terrifying words in the English language may be, ?I?m from the government and I?m here to help you.? Id. at *1. Hard to fault a decision that is both a defense win and that mocks the government.

The troubling holding, however, is that it doesn?t matter how badly a court screws up an advisement at a plea, as long as it gets the highest possible maximum sentence right. Id. at *2. (Here, the magistrates were eighteen years off). Why not just guess ?life,? and avoid any potential Rule 11 error? When a plea advisement is just a wild stab at the worst-case-scenario, then it stops becoming an advisement altogether. This Garcia-Aguilar "advisement rule" isn?t new, and maybe its full scope will be limited to these odd facts, but the case doesn?t exactly encourage careful practice in the trial courts.

How to Use: Does this mandamus decision have application beyond this quirky corner of Section 1326 litigation? It does, in our post-Apprendi world. Occasionally the feds screw up an indictment and fail to allege a fact that increases a statutory maximum sentence. What happens if a defendant jumps on that defect and pleads guilty out of the gate? Game over ? under Garcia-Aguilar, the government can?t supersede: ?the government has no power to force the defendant to go through the ordeal again to serve its own purpose.? Id. at *3. If this results in a dramatically lower sentence for the defendant, then ?so be it.? Id. at *4. Moreover, if the district court balks, mandamus lies to force the court to take the plea.

Of course, there?s a caveat or two. In Garcia-Aguilar, there were no other crimes with which to charge the defendant: illegal reentry was the only arrow in the government?s quiver. That?s usually not true, where many other potential charges (not Blockburger-barred) can be brought in a superceding indictment. (Think ?receipt? of child porn versus straight ?possession,? or a spare § 924(c) charge).

Moreover, Garcia-Aguilar and his other consolidated defendants aren?t out of the woods, yet. In United States v. Salazar-Lopez, for example, there was a similar problem with the indictment ? but the Ninth ?cured? it through the magic of harmless error analysis. 506 F.3d 748, 752 (9th Cir. 2007). Undoubtably those clever San Diegians have figured out how to skirt this problem, but the Salazar-Lopez harmless error ?cure? illustrates that the ?quick plea? strategy still carries with it some dangers.

For Further Reading: Can a court stall a defendant?s quick guilty plea, to let the government allege priors and to fix mistakes in the indictment? Yep. See 21 USC § 851(a)(1) (allowing delay for good cause); see also United States v. Duffy, 179 F.3d 1304, 1305 (11th Cir. 1999) (notice of priors filed by government during plea hearing timely).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Full post as published by Ninth Circuit Blog on August 09, 2008 (boomark / email).