After Reversal by Supreme Court, Panel Finds that Magistrate Judge's Involvement in Plea Discussions Caused No Prejudice Under Plain Error Review

United States v. Davila, Nos. 10-15310& 11-10224, on remand from USSC

Per Curiam opinion joined by Judge Tjoflat, Judge Pryor, and Senior Judge Kravitch.

Summary:  The original panel opinion, 664 F.3d 1355, applied prior circuit precedent holding that a violation of Federal Rule of Criminal Procedure 11(c)(1) (which prohibits a judge from participating in plea discussions) required automatic vacatur of a defendant’s conviction.  The Supreme Court granted certiorari and reversed, 133 S.Ct. 2139, holding that no automatic vacatur was required.  On remand, the panel was instructed to determine whether the defendant was prejudiced by the magistrate judge’s comments, and whether extraordinary circumstances permitted the defendant’s claim to be evaluated under the harmless-error standard of Rule 52(a), rather than the plain-error standard of Rule 52(b) (since the defendant failed to object to the Rule 11 violation in the district court).   The panel held that plain error review under Rule 52(b) applied, and that there was not a reasonable probability that, but for the judicial comments, the defendant would have exercised his right to trial.  The panel therefore affirmed the defendant’s conviction. 

 Note: In determining that plain error review applied, the Eleventh Circuit decided not to follow dicta in cases from the Seventh, Ninth, and Tenth Circuits.