Metropolitan News-Enterprise


Thursday, February 5, 2004


Page 1


Ninth Circuit Rules Judge Lacked Power to Vacate Bargained Plea

En Banc Panel Says Option of Withdrawal After Agreement Is Rejected Lies With Defendant, Not Court


By DAVID WATSON, Staff Writer


When a federal district judge accepts a plea of guilty pursuant to a plea agreement, but later rejects the terms of the agreement, he has no authority to vacate the plea, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

An en banc panel of the court overturned the action by Senior Judge Jack E. Tanner of the Western District of Washington. After reviewing a presentence report, Tanner concluded he could not approve the agreement under which Marciano Ellis pled guilty to second degree murder.

Ellis had been indicted for first degree murder by a grand jury. According to the plea agreement, Ellisóthen 16 years oldóshot cabdriver Donald Ray Barker three times in the head and robbed him in Spanaway, Wash.

The presentence report disclosed three prior juvenile adjudications and seven other arrests and charges for serious crimes, and showed that the FBI had a wiretapped conversation with an informant in which Ellis admitted planning the murder with a recently acquired gun. It recommended a longer sentence than called for in the plea agreement.

Tanner rejected the agreement and denied a motion by Ellis to persist in the plea. His ruling was upheld by a three-judge panel in June of 2002.

Rule 11 Cited

But Judge Kim McLane Wardlaw said that under Rule 11 of the Federal Rules of Criminal Procedure, withdrawing a guilty plea after a plea agreement is rejected is an option for the defendant, not for the judge.

She wrote:

“Where a district court accepts a plea of guilty pursuant to a plea agreement, defers acceptance of the agreement itself, and later rejects the terms of the plea agreement, it must, according to the plain language of Rule 11, ‘give the defendant an opportunity to withdraw the plea.’...Because Rule 11 contains no provision permitting the district court itself to determine that the plea should be vacated following its rejection of the plea agreement, the district court’s choice to do so here was error.”

When a plea agreement under Rule 11 is rejected, she noted, the rule specifies that the judge must inform the parties that the court is rejecting the plea agreement, advise the defendant that the court is not required to follow it, give the defendant an opportunity to withdraw the plea, and inform the defendant that if the plea is not withdrawn, the court may impose a harsher sentence than contemplated under the agreement.

She explained:

“Rule 11 thus contemplates that the district court’s rejection of a plea agreement allows the defendant, not the court, to make the next decision with respect to the status of the plea—i.e., whether to withdraw the plea and proceed to trial, or persist in the plea and risk a more severe sentence under the Sentencing Guidelines.”

Three Judges Dissent

Chief Judge Mary M. Schroeder and Judges Harry Pregerson, Stephen Reinhardt, Alex Kozinski, Sidney R. Thomas, Raymond C. Fisher, and Marsha S. Berzon joined in Wardlaw’s opinion, but Judges Stephen S. Trott, Andrew J. Kleinfeld, and Ronald M. Gould dissented. Kleinfeld and Gould were on the original three-judge panel, for which Kleinfeld authored the opinion.

Trott argued that Tanner never actually accepted Ellis’ guilty plea, noting that this was Tanner’s contention both in open court and before the Ninth Circuit.

“Granted,” Trott wrote, “it would have been better practice for the district court to have said when Ellis offered his plea as part of the plea bargain that it was deferring acceptance of both the plea and the plea bargain until later, but it didn’t. The court simply put the case over pending the preparation of a PSR; but deferral is not acceptance.”

But Trott said the judge abused his discretion in rejecting the plea agreement without providing a reasoned explanation, and he agreed with the majority that the matter should not be returned to Tanner’s court.

He declared:

“I have read and reread Judge Tanner’s strong-arm responses to Ellis’s counsel’s entreaties during the post-plea agreement rejection proceedings and to the government’s eloquent and well-grounded request to accept Ellis’s proffered straight up plea to second-degree murder and to make an adequate record, and I find the court’s responses—even when read in a light most favorable and respectful to the court—to be defensive, inflexible, and intractable, not to mention uninformed and obdurate.”

Kleinfeld authored a dissent, in which Gould joined, agreeing that Tanner had accepted the plea but taking issue with the majority’s interpretation of Rule 11.

He argued:

“Where we differ is that I would hold that after reading the presentence report, a judge has the authority to strike the plea because he has rejected the plea bargain of which the plea to a lesser offense was an essential part. The Federal Rules of Criminal Procedure are silent on whether the judge can do so. The Sentencing Guidelines suggest that he can and must.”

Kleinfeld cited Sec. 6B1.2 of the Sentencing Guidelines, which provides that a court “may accept the agreement—if the court determines, for reasons stated on the record, that the remaining charges adequately reflect the seriousness of the actual offense behavior.”

He elaborated:

“It is logically absurd, and unjust, to bind a court to a plea to lesser charges under Rule 11, in the face of the—policy that the court’s acceptance of the charge bargain not take place when the plea is accepted, and the—requirement that the charge bargain be accepted only if the remaining charges adequately reflect the seriousness of the actual offense behavior. The public interest is put at risk, because the judge cannot, when the plea is taken, know enough to evaluate the charge bargain. Adequate knowledge requires the presentence report, which is why the Guidelines provide that the court has to defer decision until after reading the presentence report.”

The case is In re Ellis, 01-70724.


Copyright 2004, Metropolitan News Company