Metropolitan News-Enterprise


Thursday, October 31, 2013


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Judge’s Role in Plea Talks Results in Reversal of Sex Conviction


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has vacated the guilty plea and 37.5-year prison sentence of a defendant who admitted to the aggravated sexual abuse of a child, the panel declaring that the district court had prejudicially participated in his plea negotiations.

Kenneth Martin Kyle, a professor at California State University, East Bay, was indicted in 2010 after an FBI agent linked him to a peer-to-peer file sharing service that distributed images and video of child pornography. Images from Kyle’s computer showed an adult male whose face was not shown molesting an infant child.

The child’s mother identified Kyle as the man in the images and admitted that she also participated in the molestation.

Original Agreement

Kyle originally agreed to plead guilty to one count of aggravated sexual abuse in exchange for the mandatory minimum sentence of 30 years, but U.S. District Judge Jeffrey White of the Northern District of California rejected the plea as too lenient given the facts of the case. White allowed Kyle to withdraw his guilty plea and warned the parties that they should either prepare for trial or reach a plea agreement that was more suitable.

He later told Kyle’s attorney he was “prepared to impose a life sentence,” following which the parties agreed to the three-decades-plus sentence, followed by 10 years of supervised release.

U.S. District Judge Consuelo B. Marshall of the Central District of California, sitting by designation, said White effectively participated in plea negotiations in violation of Federal Rule of Criminal Procedure 11(c)(1). By prematurely committing himself to a sentence of a specific severity, she said, White committed prejudicial error in light of the reasonable probability that the defendant would not have agreed to the terms of the revised plea but for the judge’s warnings about the sentence.

Several Circuits

 Marshall said the court was joining several other circuits that have held that “[w]hen a court goes beyond providing reasons for rejecting the agreement presented and comments on the hypothetical agreements it would or would not accept, it crosses over the line established by Rule 11 and becomes involved in the negotiations.”

She also said White’s remarks “would be reasonably perceived by a defendant as inconsistent with the court’s role as a neutral arbiter of justice” and that a court “may not indicate what it might find acceptable or unacceptable in resolving the case,” even if such remarks are made outside of a pending plea offer.

 In vacating Kyle’s guilty plea and sentence, the court ordered the case remanded with instructions that the case be assigned to a different judge in order to “best serve” the “appearance of justice.”

Judges Jay S. Bybee and Marsha S. Berzon joined in the opinion.

The case is United States v. Kyle, 12-10208.


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