Wake Forest Law Review

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By Eric Jones

On April 28, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Braxton.  The Circuit Court held that Fed. R. Crim. P. 11(c)(1) explicitly prohibits district courts from participating in discussions about plea agreements in any way.  Because the United States District Court for the District of Maryland impermissibly made repeated comments about the benefits of accepting a guilty plea to Braxton just before he elected to plead guilty, the Fourth Circuit vacated the proceedings and remanded for further proceedings.

Background and Proceedings Below

In 2012, Savino Braxton was charged with possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 841(a) (2012).  This charge carries a minimum ten-year sentence if convicted.  Braxton, however, has a prior felony drug conviction, which allows the government to file a prior felony information that would effectively double the mandatory minimum to twenty years’ imprisonment.  Braxton’s court-appointed counsel repeatedly expressed concern that if he did not plead guilty, the prosecutor would file a prior felony information.  Braxton nevertheless insisted that he desired to go to trial, where he planned to test the validity of the weight of the drugs.  On November 19, 2012, the government elected to file a prior felony information and establish a minimum twenty-year sentence if Braxton was found guilty at trial.  Prior to trial, the government formally offered Braxton a plea agreement wherein he would face a minimum of ten years and a maximum of fifteen.  The morning the trial began, the court dutifully memorialized for the record that Braxton had received and rejected the plea agreement, and wished to proceed to trial.  The district court went on to admonish Braxton repeatedly for electing to forgo the plea agreement, saying “I am not favorably inclined towards having you go to trial and trigger a mandatory minimum of 20 years, as opposed to a plea offer that’s down in the 10 to 15 year range in terms of years of your life” and compared going to trial to “put[ting] [your] head in a buzz saw that makes absolutely no sense.”  The district court then ordered a ten-minute recess, advising Braxton to “talk to your lawyer.”  After that recess, the district court again admonished Braxton that a “defendant shouldn’t put his head in a vice [sic] and face a catastrophic result just over a dispute over drug quantity. That’s the point.”  The court then dismissed for lunch.  During that lunch, Braxton changed his mind and elected to plead guilty.  Braxton later attempted to withdraw his guilty plea, arguing it had been involuntary.  Nevertheless, Braxton was sentenced to eleven and one-half years, and this appeal followed.

Federal Rule of Criminal Procedure 11(c)(1)

Under Fed. R. Crim. P. 11(c)(1), an “attorney for the government and the defendant’s attorney…may discuss and reach a plea agreement.  The court must not participate in these discussions.”  As the Fourth Circuit explained, this prohibition serves three primary goals.  First, it diminishes the possibility of judicial coercion of a guilty plea.  Second, it protects against unfairness and partiality in the judicial process.  Third, it eliminates the impression that the judge is an advocate for the agreement and not a neutral arbiter.  Although well-intentioned, the district court repeatedly suggested that the plea agreement was in Braxton’s best interests, which is in direct conflict with this rule.  Furthermore, the Fourth Circuit explained that the close proximity in time between when the comments were made and when the plea was accepted heightened the probability that Braxton was unduly influenced by the district court.

Braxton’s Statement That the Plea Was Given Voluntarily Was Insufficient

The Fourth Circuit was unconvinced by the government’s argument that Braxton’s guilty plea was voluntary.  Although the district court asked if Braxton felt “forced or threatened or pushed” to accept the plea agreement and Braxton replied “No, sir,” the Fourth Circuit held that his response was inconclusive.  The district court created “an unacceptable risk” that Braxton involuntarily entered his guilty plea in order to avoid offending the court, and thus his flat statement that he was not coerced was ineffective.

The District Court Cannot Remark Upon the Advantages of a Plea Agreement

The government also argued that, under Missouri v. Frye, the court must remark upon the advantages of the plea agreement and the disadvantages of trial in order to ascertain whether the defendant’s understanding of the decision is sufficient.  As the Fourth Circuit explained, however, the district court’s duties under Frye extend only to memorializing the terms of the plea agreement, and ensuring that the defendant understands them.  Thus, it was improper for the district court to advocate for the plea agreement at all, and the requirements of Frye do not make the comments of the district court in this case permissible.

Conclusion

The Fourth Circuit held that, although it did not appear that the district court intended to coerce Braxton, there was nevertheless a reasonable risk that Braxton had been influenced by the court.  Thus, because the district court’s plain error affected Braxton’s substantial rights, the Fourth Circuit vacated Braxton’s sentence and guilty plea, and remanded for further proceedings in front of a different judge.

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By Ashley Escoe

Today, in the criminal case of U.S. v. Bridgers, in an unpublished per curiam opinion, the Fourth Circuit held that any errors during Morris Edward Bridgers’ plea colloquy were harmless and that Bridgers waived his right to appeal his sentence.

Bridgers’ Guilty Plea at the Trial Court

Bridgers pled guilty to violating 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (2012): conspiracy to distribute heroin and possess heroin with intent to distribute. He was convicted and received a 200 month sentence. Bridgers alleged that the district court’s Fed. R. Crim. P. 11 hearing was inadequate and also that the district court’s explanation of his sentence was insufficient.

Plea Colloquy and Standard of Review

According to Fed. R. Crim. P. 11(b)(1), the trial court must conduct a plea colloquy to inform the defendant of, and make sure he understands, the nature of the charge to which he is pleading guilty, the minimum and maximum penalty he faces, and various rights he is surrendering by pleading guilty. The Court gives deference to the trial court’s decision and reviews the plea colloquy for plain error. U.S. v. General.

Any Omissions During the Plea Colloquy were Harmless Error

The Fourth Circuit affirmed Bridgers’ conviction for three reasons. First, the Fourth Circuit concluded that any omissions by the district court during the plea colloquy did not affect Bridgers’ substantial rights, because some of that information was in the written plea agreement Bridgers signed. Second, the Fourth Circuit decided that it was harmless for the district court to fail to advice Bridgers that it must order restitution, because Bridgers was informed he faced a maximum fine of $10,000,000. And finally, the Fourth Circuit determined that district court’s failure to explain the supervised release was harmless because Bridgers did not receive his potential maximum sentence.

Appellate Waiver and Standard of Review

If a defendant knowingly and intelligently waives his right to appeal, and then raises an issue for appeal that falls within the scope of the waiver, the Fourth Circuit will uphold the waiver. U.S. v Copeland. The Circuit court considers the totality of the circumstances when deciding whether the defendant knowingly and intelligently waived an appeal. U.S. v. General. The Court reviews the legitimacy of an appellate waiver de novo. U.S. v. Manigan.

Bridgers Knowingly and Intelligently Agreed to an Appellate Waiver

The Fourth Circuit concluded that Bridgers knowingly and voluntarily waived his right to appeal. The district court specifically discussed the waiver in the terms of the agreement to which Bridgers agreed. The language of the waiver is clear and unambiguous, and Bridgers confirmed that he could read and understand English and had opportunity to consult with his attorney.

Conviction Affirmed; Appeal Denied

The Fourth Circuit affirmed Bridgers’ conviction and dismissed the appeal of his sentence.

by David Darr

On Friday, in United States v. Walker, an unpublished per curium opinion, the Fourth Circuit affirmed the decision of the District of Maryland to deny the defendant’s motion to suppress evidence. The court held that police had a reasonable suspicion to both arrest and search the defendant.

Was Arrest and Search Proper?

The issue in this case was whether the police had a reasonable suspicion to arrest the defendant and a reasonable fear for the officer’s own and others’ safety to search the defendant.

Walker’s Arrest and Search

Early in the morning on January 30, 2011, the police received a call from a 911 dispatcher that a man with a gun was at a Denny’s in Baltimore. An officer who was already in the area responded to the call and upon exiting his vehicle he encountered two men pointing to the defendant, Stephan Sylvester Walker, Jr., and telling the officer that Walker is “the guy with the gun.” The officer ordered Walker to get down on the ground and drew his service weapon, but Walker attempted to hide behind a car. As other officers arrived on the scene, Walker acquiesced and the police found a .45 caliber pistol in Walker’s waistband.

At trial, Walker moved to suppress, arguing that both his arrest and seizure of property were improper. The district court denied this motion, finding both the initial stop and taking of the gun were legal. Subsequently, a jury found Walker guilty of possessing a firearm and ammunition after having been convicted of a felony and he was sentenced to 293 months in prison. Walker appealed the denial of his motion to suppress because he claimed the officers lacked a reasonable suspicion.

Legal Requirements for Arrest and Search

When a motion to suppress is denied, the appellate court views the evidence in the light most favorable to the Government. The Fourth Amendment allows a police officer to stop a person when the officer has a reasonable suspicion based on the facts that criminal activity may be afoot. A reasonable suspicion depends on the totality of the circumstances, including any reasonable inferences. Additionally, an officer may also search a suspect’s person if the officer has a reasonable fear for his own or others’ safety based on a suspicion that the suspect may be armed and dangerous.

The Officer Had a Reasonable Suspicion

The Fourth Circuit, viewing the evidence in the light most favorable to the Government, found that the officer had more than enough evidence to arrest and search Walker. The circumstances surrounding the stop of Walker would create a reasonable suspicion that Walker had a gun. While an anonymous tip alone might not be enough for an officer to stop someone, the 911 call, the witnesses claiming Walker had a gun, and Walker’s evasive behavior all show there was a reasonable suspicion for the stop. Additionally, the totality of the circumstances also show that Walker was armed and potentially dangerous, creating a reasonable fear in the officers to justify the search of Walker’s person.

Fourth Circuit Affirms Decision

For the reasons stated above, the Fourth Circuit affirmed the decision of the District of Maryland.