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SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v.
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
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
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.
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
] In response to
Davila’s letter, a U. S. Magistrate Judge held an in
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.”
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
, 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.”
, at 160. To reduce his sentencing exposure, the
Magistrate Judge suggested, Davila could “cooperate with the
Government in this or in other cases.” Ibid.
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.”
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
, at 122. Davila did not mention the in
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,
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
at 58–59. By pleading guilty, Davila
said, he would make the court aware that the prosecution was
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
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
75–77. Again, neither Davila nor the court mentioned the
hearing conducted by the Magistrate Judge.
On appeal, Davila’s court-appointed
attorney sought leave to withdraw from the case, asserting, in a
brief filed pursuant to Anders
(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
at 7a. The court requested counsel
to address whether the “irregularity” constituted
reversible error under Federal Rule of Criminal Procedure 11(c)(1).
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
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
] 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.
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
, 394 U.S.
(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
“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.,
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
, 535 U.S.
, 62 (2002). When Rule 52(b) controls, the defendant must
show that the error affects substantial rights. Ibid.
In two cases, United States
, 535 U.S.
, and United States
v. Dominguez Benitez
(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
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.”
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
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.”
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
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
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,
errors of the kind involved in Vonn
, from pre-plea exhortations to admit
guilt. Plea-colloquy requirements come into play after
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
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
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
) “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
, 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,
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.
, ___ (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
, 548 U.S.
, 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
, 527 U.S.
, 7 (1999) (structural errors are “fundamental
constitutional errors that ‘defy analysis by “harmless
error” standards’ ” (quoting Arizona
, 499 U.S.
, 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
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
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.
., 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
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
, 429 F.3d 1012,
1019 (CA11 2005) (per curiam
)). Having explained why
automatic vacatur of a guilty plea is incompatible with Rule 11(h),
at 11–13 and this page, we leave all
remaining issues to be addressed by the Court of Appeals on
* * *
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.