NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–167
_________________
UNITED STATES, PETITIONER
v. ANTHONY
DAVILA
on writ of certiorari to the united states
court of appeals for the eleventh circuit
[June 13, 2013]
Justice Ginsburg delivered the opinion of the
Court.
This case concerns Rule 11 of the Federal Rules
of Criminal Procedure, which governs guilty pleas. Two provisions
of that rule are key here. The first, Rule 11(c)(1), instructs that
“[t]he court must not participate in [plea] discussions.” The
second, Rule 11(h), states: “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.”
Anthony Davila, respondent here, entered a
guilty plea to conspiracy to defraud the United States by filing
false income tax returns. He maintains that he did so because a U.
S. Magistrate Judge, at a pre-plea
in camera hearing and in
flagrant violation of Rule 11(c)(1), told him his best course,
given the strength of the Government’s case, was to plead guilty.
Three months later, Davila entered a plea on advice of counsel. The
hearing on Davila’s plea, conducted by a U. S. District Judge,
complied in all respects with Rule 11.
The question presented is whether, as the Court
of Appeals for the Eleventh Circuit held, the violation of Rule
11(c)(1) by the Magistrate Judge warranted automatic vacatur of
Davila’s guilty plea. We hold that Rule 11(h) controls. Under the
inquiry that Rule instructs, vacatur of the plea is not in order if
the record shows no prejudice to Davila’s decision to plead
guilty.
I
In May 2009, a federal grand jury in the
Southern District of Georgia returned a 34-count indictment against
respondent Anthony Davila. The indictment charged that Davila filed
over 120 falsified tax returns, receiving over $423,000 from the
United States Treasury as a result of his fraudulent scheme.
In January 2010, Davila sent a letter to the
District Court expressing dissatisfaction with his court-appointed
attorney and requesting new counsel. His attorney, Davila
complained, offered no defensive strategy, “ ‘never mentioned
a defense at all,’ ” but simply advised that he plead
guilty.[
1] In response to
Davila’s letter, a U. S. Magistrate Judge held an
in
camera hearing at which Davila and his attorney, but no
representative of the United States, appeared. At the start of the
hearing, the Magistrate Judge told Davila that he was free to
represent himself, but would not get another court-appointed
attorney. See App. 148.
Addressing Davila’s complaint that his attorney
had advised him to plead guilty, the Magistrate Judge told Davila
that “oftentimes . . . that is the best advice a lawyer can give
his client.”
Id., at 152. “In view of whatever the
Government’s evidence in a case might be,” the judge continued,
“it might be a good idea for the Defendant
to accept responsibility for his criminal conduct[,] to plead
guilty[,] and go to sentencing with the best arguments . . . still
available [without] wasting the Court’s time, [and] causing the
Government to have to spend a bunch of money empanelling a jury to
try an open and shut case.”
Ibid.
As to Davila’s objection that his attorney had
given him no options other than pleading guilty, the Magistrate
Judge commented: “[T]here may not be a viable defense to these
charges.”
Id., at 155. The judge then urged Davila to
cooperate in order to gain a downward departure from the sentence
indicated by the Federal Sentencing Guidelines. “[T]ry to
understand,” he counseled,
“the Government, they have all of the
marbles in this situation and they can file that . . . motion for
[a] downward departure from the guidelines if they want to, you
know, and the rules are constructed so that nobody can force them
to file that [motion] for you. The only thing at your disposal that
is entirely up to you is the two or three level reduction for
acceptance of responsibility. That means you’ve got to go to the
cross. You’ve got to tell the probation officer everything you did
in this case regardless of how bad it makes you appear to be
because that is the way you get that three-level reduction for
acceptance, and believe me, Mr. Davila, someone with your criminal
history needs a three-level reduction for acceptance.”
Id.,
at 159–160.
Davila’s Sentencing Guidelines range, the
Magistrate Judge said, would “probably [be] pretty bad because
[his] criminal history score would be so high.”
Id., at 160.
To reduce his sentencing exposure, the Magistrate Judge suggested,
Davila could “cooperate with the Government in this or in other
cases.”
Ibid. As the hearing concluded, the judge again
cautioned that “to get the [sentence] reduction for acceptance [of
responsibility],” Davila had to “come to the cross”:
“[T]hat two- or three-level reduction for
acceptance is something that you have the key to and you can ensure
that you get that reduction in sentence simply by virtue of being
forthcoming and not trying to make yourself look like you really
didn’t know what was going on. . . . You’ve got to go [to the
cross] and you’ve got to tell it all, Brother, and convince that
probation officer that you are being as open and honest with him as
you can possibly be because then he will go to the [D]istrict
[J]udge and he will say, you know, that Davila guy, he’s got a long
criminal history but when we were in there talking about this case
he gave it all up so give him the two-level, give him the
three-level reduction.”
Id., at 160–161.
Nearly a month after the
in camera
hearing, Davila filed a motion demanding a speedy trial. The
District Court set a trial date for April 2010, which was continued
at the Government’s request.
In May 2010, more than three months after the
hearing before the Magistrate Judge, Davila agreed to plead guilty
to the conspiracy charge in exchange for dismissal of the other 33
counts charged in the indictment. Davila entered his guilty plea
before a U. S. District Judge six days later. Under oath,
Davila stated that he had not been forced or pressured to plead
guilty.
Id., at 122. Davila did not mention the
in
camera hearing before the Magistrate Judge, and the record does
not indicate whether the District Judge was aware that the pre-plea
hearing had taken place. See
id., at 82–99, 115–125.
Before he was sentenced, Davila moved to vacate
his plea and to dismiss the indictment. The reason for his plea,
Davila asserted, was “strategic.”
Id., at 58. Aware that the
prosecutor had a duty to disclose all information relevant to the
court’s determination whether to accept the plea bargain, he stated
that his purpose in entering the plea was to force the Government
to acknowledge timeframe errors made in the indictment.
Id.,
at 58–59. By pleading guilty, Davila said, he would make the court
aware that the prosecution was “vindictive.”
Id., at 59.
The District Judge denied Davila’s motion. In so
ruling, the court observed that, at the plea hearing, Davila had
affirmed that he was under no “pressure, threats, or promises,
other than promises [made] by the government in the plea
agreement.”
Id., at 70. Furthermore, he had been fully
advised of his rights and the consequences of his plea.
Id.,
at 71. It was therefore clear to the District Judge, who had
himself presided at the plea hearing, that Davila’s guilty plea
“was knowing and voluntary.”
Id., at 72. In view of Davila’s
extensive criminal history, the court sentenced him to a prison
term of 115 months.
Id.
, at 75–77. Again, neither
Davila nor the court mentioned the
in camera hearing
conducted by the Magistrate Judge.
Id., at 55–80.
On appeal, Davila’s court-appointed attorney
sought leave to withdraw from the case, asserting, in a brief filed
pursuant to
Anders v.
California,
386 U.S.
738 (1967), that there were no issues of arguable merit to be
raised on Davila’s behalf. The Eleventh Circuit denied counsel’s
motion without prejudice to renewal. App. to Pet. for Cert. 6a–8a.
It did so based on a discovery the appeals court made upon
“independent review” of the record. That review “revealed an
irregularity in the statements of a magistrate judge, made during a
hearing prior to Davila’s plea, which appeared to urge [him] to
cooperate and be candid about his criminal conduct to obtain
favorable sentencing consequences.”
Id., at 7a. The court
requested counsel to address whether the “irregularity” constituted
reversible error under Federal Rule of Criminal Procedure 11(c)(1).
Id., at 7a–8a.
Following the court’s instruction, counsel filed
a brief arguing that Davila’s plea should be set aside due to the
Magistrate Judge’s comments. In response, the Government conceded
that those comments violated Rule 11(c)(1). Even so, the Government
urged, given the three-month gap between the comments and the plea,
and the fact that a different judge presided over Davila’s plea and
sentencing hearings, no adverse effect on Davila’s substantial
rights could be demonstrated. Pursuant to Circuit precedent, the
appeals court held that the Rule 11(c)(1) violation required
automatic vacatur of Davila’s guilty plea. Under the Circuit’s
“bright line rule,” the court explained, there was no need to
inquire whether the error was, in fact, prejudicial. 664 F.3d 1355,
1359 (CA11 2011) (
per curiam).
We granted certiorari to resolve a Circuit
conflict concerning the consequences of a Rule 11(c)(1) violation.
568 U. S. ___ (2013).[
2]
II
Rule 11(c)(1)’s prohibition of judicial
involvement in plea discussions was introduced as part of the 1974
Amendment to the Rule. See Advisory Committee’s 1974 Note on Subd.
(e)(1) of Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 1420 (1976
ed.) (hereinafter Advisory Committee’s 1974 Note).[
3] As the Advisory Committee’s note explains,
commentators had observed, prior to the amendment, that judicial
participation in plea negotiations was “common practice.”
Id., at 1420 (citing D. Newman, Conviction: The
Determination of Guilt or Innocence Without Trial 32–52, 78–104
(1966); Note, Guilty Plea Bargaining: Compromises by Prosecutors to
Secure Guilty Pleas, 112 U. Pa. L. Rev. 865, 891, 905 (1964)).
Nonetheless, the prohibition was included out of concern that a
defendant might be induced to plead guilty rather than risk
displeasing the judge who would preside at trial. Advisory
Committee’s 1974 Note 1420. Moreover, the Advisory Committee
anticipated, barring judicial involvement in plea discussions would
facilitate objective assessments of the voluntariness of a
defendant’s plea.
Ibid.
Added as a part of the 1983 Amendment, Rule
11(h) provides that “a variance from the requirements of [Rule 11]
is harmless error if it does not affect substantial rights.”
Subsection (h), the Advisory Committee’s note informs, “rejects the
extreme sanction of automatic reversal” for Rule 11 violations and
clarifies that Rule 52(a)’s harmlessness inquiry applies to plea
errors. Advisory Committee’s 1983 Note on Subd. (h) of Fed. Rule
Crim. Proc. 11, 18 U. S. C. App., pp. 749, 751 (1988 ed.)
(hereinafter Advisory Committee’s 1983 Note).
The addition of subsection (h) was prompted by
lower court over-readings of
McCarthy v.
United
States,
394 U.S.
459 (1969). That decision called for vacatur of a guilty plea
accepted by the trial court without any inquiry into the
defendant’s understanding of the nature of the charge. The Advisory
Committee explained that subsection (h) would deter reading
McCarthy “as meaning that the general harmless error
provision in Rule 52(a) cannot be utilized with respect to Rule 11
proceedings.” Advisory Committee’s 1983 Note 751. Substantial
compliance with Rule 11 would remain the requirement, but the new
subsection would guard against exalting “ceremony . . . over
substance.”
Id., at 749.
For trial court errors generally, Rule 52(a)
states that “[a]ny error, defect, irregularity, or variance that
does not affect substantial rights must be disregarded.” Rule
11(h), as just noted, was designed to make it clear that Rule 11
errors are not excepted from that general Rule. Advisory
Committee’s 1983 Note 749. Rule 52, in addition to stating the
“harmless-error rule” in subsection (a), also states, in subsection
(b), the “plain-error rule,” applicable when a defendant fails to
object to the error in the trial court. Rule 52(b) states: “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)’s “harmless-error rule” governs, the prosecution bears the
burden of showing harmlessness. See
United States v.
Vonn,
535 U.S.
55, 62 (2002). When Rule 52(b) controls, the defendant must
show that the error affects substantial rights.
Ibid.
In two cases,
United States v.
Vonn,
535 U.S.
55, and
United States v.
Dominguez Benitez,
542 U.S.
74 (2004), this Court clarified that a Rule 11 error may be of
the Rule 52(a) type, or it may be of 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, that he would have “the right to the
assistance of counsel” if he proceeded to trial. See Fed. Rule
Crim. Proc. 11(c)(3) (2000).[
4]
The defendant first objected to the omission on appeal. We
addressed the question “whether a defendant who lets Rule 11 error
pass without objection in the trial court must carry the burdens of
Rule 52(b) or whether even the silent defendant can put the
Government to the burden of proving the Rule 11 error harmless.”
535 U. S., at 58.
The Defendant in
Vonn had urged that
“importation of [Rule 52(a)’s] harmless-error standard into Rule
11(h) without its companion plain-error rule was meant to eli-
minate a silent defendant’s burdens under . . . Rule 52(b).”
Id., at 63. This Court rejected the defendant’s argu- ment
and held that “a silent defendant has the burden to satisfy the
plain-error rule.”
Id., at 59.
In
Dominguez Benitez, the Court addressed
what the silent defendant’s burden entailed. The judge presiding at
the plea hearing in that case failed to warn the defendant, as Rule
11(c)(3)(B) directs, that he would not be permitted to withdraw his
guilty plea even if the court did not ac- cept the plea-bargained
sentencing recommendation. 542 U. S., at 79. As in
Vonn, the error was first raised on appeal. 542 U. S.,
at 79
. This Court again held that Rule 52(b) was
controlling.
Id., at 82. Stressing “the particular
importance of the finality of guilty pleas,”
ibid., the
Court prescribed the standard a defendant complaining of a Rule 11
violation must meet to show “plain error”: “[A] defendant who seeks
reversal of his conviction after a guilty plea, on the ground that
the district court committed plain error under Rule 11, must show a
reasonable probability that, but for the error, he would not have
entered the plea.”
Id., at 83.
III
In Davila’s case, the Government acknowledged
in this Court, as it did before the Eleventh Circuit, that the
Magistrate Judge violated Rule 11(c)(1) by improperly participating
in plea discussions. As the excerpts from the
in camera
hearing, set out
supra, at 2–4, show, there is no room for
doubt on that score. The Magistrate Judge’s repeated exhortations
to Davila to “tell it all” in order to obtain a more favorable
sentence, see App. 157–160, were indeed beyond the pale.
Did that misconduct in itself demand vacatur of
Davila’s plea, as the Eleventh Circuit held, or, as the Government
urges, must a reviewing court consider all that transpired in the
trial court in order to assess the impact of the error on the
defendant’s decision to plead guilty? We hold that the latter
inquiry is the one the Rules and our precedent require.
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 pre-plea exhortations to admit
guilt. Plea-colloquy requirements come into play
after a
defendant has agreed to plead guilty. The advice and questions now
specified in Rules 11(b) and 11(c)(3)(B), Davila observes, are
designed to ensure that a defendant’s plea is fully informed and
intelligently made. Errors or omissions in following Rule 11’s
plea-colloquy instructions, Davila recognizes, are properly typed
procedural, and are therefore properly assessed under the
harmless-error instruction of Rule 11(h).
Rule 11(c)(1)’s prohibition on judicial
participation in plea discussions, in contrast, becomes operative
before a defendant has decided whether to plead guilty or to
stand trial. The Rule serves a more basic purpose, Davila urges,
one “central to the proper functioning of the criminal process.”
Brief for Respondent 18. Therefore, “the remedial analysis that
applies to violations of . . . procedural provisions does not and
should not apply to th[is] distinct class of error.”
Id., at
16. Violations of Rule 11(c)(1), Davila elaborates, heighten the
risk that a defendant’s plea will be coerced or pressured, and not
genuinely an exercise of free will. When a judge conveys his belief
that pleading guilty would be to a defendant’s advantage, Davila
adds, the judge becomes, in effect, a second prosecutor, depriving
the defendant of the impartial arbiter to which he is entitled.
“Rule 11(c)(1)’s bright-line prohibition on judicial exhortations
to plead guilty,” Davila concludes, is “no mere procedural
technicality,”
id., at 21, for such exhortations inevitably
and incurably infect the ensuing pretrial process.
Id., at
43.
Nothing in Rule 11’s text, however, indicates
that the ban on judicial involvement in plea discussions, if
dishonored, demands automatic vacatur of the plea without regard to
case-specific circumstances. The prohibition appears in subsection
(c), headed “Plea Agreement Procedure.” See Fed. Rule Crim. Proc.
11(c). That subsection affirms that the prosecution and defense
attorney (or the defendant when proceeding
pro se) “may
discuss and reach a plea agreement.” Rule 11(c)(1). Further, Rule
11(c) describes permissible types of plea agreements, see Rule
11(c)(1)(A)–(C), and addresses the court’s consideration,
acceptance, or rejection of a proffered agreement, see Rule
11(c)(3)–(5).
In recommending the disallowance of judicial
participation in plea negotiations now contained in subsection
(c)(1), the Advisory Committee stressed that a defendant might be
induced to plead guilty to avoid antagonizing the judge who would
preside at trial. See Advisory Committee’s 1974 Note 1420. But the
Committee nowhere suggested that violation of Rule 11(c)(1) is
necessarily an error graver than, for example, the error in
Dominguez Benitez,
i.e., the failure to tell a
defendant that the plea would bind him even if the sentence imposed
significantly exceeded in length the term of years stated in the
plea bargain. As earlier noted, see
supra, at 7, the
Committee pointed to commentary describing judicial engagement in
plea bargaining as a once “common practice,”[
5] and it observed that, in particular cases,
questions may arise “[a]s to what . . . constitute[s]
‘participation.’ ” Advisory Committee’s 1974 Note 1420.
In short, neither Rule 11 itself, nor the
Advisory Committee’s commentary on the Rule singles out any
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). See
supra, at 7–8.
Rule 11(c)(1) was adopted as a prophylactic
measure, see
supra, at 7, not one impelled by the Due
Process Clause or any other constitutional requirement. See 664
F. 3d, at 1359 (recognizing that Rule 11(c)(1) is part of a
“prophylactic scheme”). We have characterized as “structural” “a
very limited class of errors” that trigger automatic reversal
because they undermine the fairness of a crim- inal proceeding as a
whole.
United States v.
Marcus,
560 U.S.
258, ___ (2010) (slip op., at 4–5) (internal quotation marks
omitted). Errors of this kind include denial of counsel of choice,
denial of self-representation, denial of a public trial, and
failure to convey to a jury that guilt must be proved beyond a
reasonable doubt. See,
e.g., United States v.
Gonzalez-Lopez,
548 U.S.
140, 150 (2006) (ranking “deprivation of the right to counsel
of choice” as “ ‘structural error’ ”). Rule 11(c)(1)
error does not belong in that highly exceptional category. See
Neder v.
United States,
527 U.S.
1, 7 (1999) (structural errors are “fundamental constitutional
errors that ‘defy analysis by “harmless error” standards’ ”
(quoting
Arizona v.
Fulminante,
499 U.S.
279, 309 (1991)).
Had Davila’s guilty plea followed soon after the
Magistrate Judge told Davila that pleading guilty might be “the
best advice” a lawyer could give him, see App. 152, this case may
not have warranted our attention. The automatic-vacatur rule would
have remained erroneous, but the Court of Appeals’ mistake might
have been inconsequential. See Tr. of Oral Arg. 47 (Counsel for the
Government acknowledged that if there is a “serious [Rule 11(c)(1)]
error,” and the defendant pleads guilty “right after that,” the
error would likely qualify as prejudicial). Our essential point is
that particular facts and circumstances matter. Three months
distanced the
in camera meeting with the Magistrate Judge
from Davila’s appearance before the District Judge who examined and
accepted his guilty plea and later sentenced him. Nothing in the
record shows that the District Judge knew of the
in camera
hearing. After conducting an exemplary Rule 11 colloquy, the judge
inquired: “Mr. Davila, has anyone forced or pressured you to plead
guilty today?,” to which Davila responded: “No, sir.” App. 122. At
the time of the plea hearing, there was no blending of judicial and
prosecutorial functions.
Given the opportunity to raise any questions he
might have about matters relating to his plea, Davila simply
affirmed that he wished to plead guilty to the conspiracy count.
When he later explained why he elected to plead guilty, he said
nothing of the Magistrate Judge’s exhortations. Instead, he called
the decision “strategic,” designed to get the prosecutor to correct
misinformation about the conspiracy count.
Id., at 58–59,
61. Rather than automatically vacating Davila’s guilty plea because
of the Rule 11(c)(1) violation, the Court of Appeals should have
considered whether it was reasonably probable that, but for the
Magistrate Judge’s exhortations, Davila would have exercised his
right to go to trial. In answering that question, the Magistrate
Judge’s comments should be assessed, not in isolation, but in light
of the full record.
IV
The Court of Appeals did not engage in that
full-record assessment here. Rather, the court cut off
consideration of the particular facts of Davila’s case upon
concluding that the Magistrate Judge’s comments violated Rule
11(c)(1). That pretermission kept the court from reaching
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 the harmless-error standard of Rule 52(a)
rather than the plain-error standard of Rule 52(b), the rule that
ordinarily attends a defendant’s failure to object to a Rule 11
violation. See
supra, at 8; 664 F. 3d, at 1358 (citing
United States v.
Moriarty, 429 F.3d 1012, 1019 (CA11
2005) (
per curiam)). Having explained why automatic
vacatur of a guilty plea is incompatible with Rule 11(h), see
supra, at 11–13 and this page, we leave all remaining issues
to be addressed by the Court of Appeals on remand.
* * *
The judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
