United States v. Harrell: Conviction Reversed Because District Judge Improperly Participated in Plea Negotiations By Suggesting the Terms of a Plea Deal

United States v. Harrell, No. 11-15680, from SDFla

Circuit Judge Jordan joined by Circuit Judge Pryor and Senior Circuit Judge Fay

Summary: The defendants appealed after they were convicted of Hobbs Act robbery and conspiracy to commit Hobbs Act robbery, and for using firearms in connection with those robberies.  One of the defendants pled guilty and argued on appeal that the district court impermissibly participated in plea negotiations in violation of Rule 11(c)(1).  The other defendant was convicted after a jury trial and raised a number of challenges to his sentence, specifically a challenge to the admission of expert testimony.

With respect to the defendant who pled guilty, he did not raise this objection in the district court, so his claim was subject to plain error review, meaning he needed to show: (1) the district court committed error; (2) the error was plain; (3) the error affected his substantial rights; and (4) the error seriously affected the fairness, integrity, and public reputation of the judicial proceedings.  In United States v. Davila, 133 S. Ct. 2139 (2013), the Supreme Court reversed the Eleventh Circuit and held that determining whether a Rule 11(c)(1) error affected substantial rights required the reviewing court to consider whether it was reasonably probable that, but for the district court’s exhortations, the defendant would have exercised his right to go to trial.

On the morning of the first day of trial, the district court engaged defense counsel and the prosecutor in a lengthy discussion regarding the likelihood of a plea from either or both defendants, noted the seriousness of the charges, and opined that the Guidelines range would be high and that it had more flexibility to fashion a fair and reasonable sentence before conviction.  The district court asked if the government would be willing to agree to a plea for a recommended sentence of 20-25 years.  The government eventually agreed and the district court then sentenced the defendant to 25 years.

The panel found plain error, because the district court improperly participated in the plea negotiations. The district court initiated the plea discussions, which by itself violated Rule 11. The court also improperly cautioned the non-pleading defendant about the severity of the sentence he faced if convicted, and about its general inability to fashion a fair sentence after they were convicted.  Lastly, the court took the lead in orchestrating the plea agreement that was ultimately entered into by the defendant and the government.

The panel then found that the error affected the defendant’s substantial rights, because it was reasonably probable that but for the district court’s actions, the defendant would have exercised his right to go to trial.  Lastly, the panel concluded that the error affected the fairness, integrity, and public reputation of judicial proceedings given the extensiveness of the court’s involvement.  The panel accordingly vacated the defendant's conviction, and remanded the case with instructions to allow the defendant to withdraw his guilty plea.  The panel also directed that the case be re-assigned to a different district judge on remand

 

As to the defendant who was convicted at trial, the panel addressed only whether it was error for the district court to allow the government to present expert testimony from a detective about cell phones and cell towers.  The detective testified about the defendant’s use of a cell phone during the commission of the robberies.  Before he testified, the government explained that it had created maps containing data received from the defendant’s cellular phone provider regarding the locations of various cell towers.  The defendant’s attorney objected, explaining that these maps needed to be explained by an expert. The district court overruled the objection.

 

The detective witness proceeded to testify about the time and duration of cell phone calls, as well as the location of the cell towers used for each call.  The government asked the detective to explain what happened to a transaction signal when a call is placed from a cell phone.  The defendant objected based on a lack of qualification to offer such an opinion.  The government responded that the detective had substantial lay experience in the area of cell phone tracking, including that he had previously testified about the location of cell phones and personally went out to observe cell tower locations, and then tendered the detective as an expert. The district court certified the detective as an expert in the relationship between cell phones and cell towers.  The detective went on to testify that ,based on the maps, the defendant’s cell phone was in the area of certain towers just prior to the robberies.

The panel avoided the question of whether a witness who testified as the detective did needed to be qualified as an expert.  However, since the government tendered the detective as an expert, and because the district court certified him as such, the certification was improper, because the government failed to establish, by a preponderance of the evidence, that the detective was qualified as an expert.  Nevertheless, the panel concluded that reversal was not warranted because the detective's certification as an expert did not have a substantial and injurious effect on the jury’s verdict.  This defendant’s convictions were accordingly affirmed.