US v. Christopher Wilson, No. 14-4418 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4418 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER STEWART WILSON, a/k/a Chris, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:12-cr-00353-BO-1) Argued: October 29, 2015 Decided: December 16, 2015 Before MOTZ, KING, and THACKER, Circuit Judges. Affirmed in part and vacated and remanded by unpublished per curiam opinion. ARGUED: James C. White, LAW OFFICE OF JAMES C. WHITE, P.C., Chapel Hill, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Michelle M. Walker, LAW OFFICE OF JAMES C. WHITE, P.C., Chapel Hill, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In November 2011, without a warrant, police surreptitiously placed a GPS tracker on a car belonging to Christopher Wilson, a “person of interest” in several robberies. Information gathered from the GPS tracker led to Wilson’s arrest for a series of robberies. A federal grand jury subsequently indicted Wilson on one count of conspiracy to interfere with commerce by threats and violence, as well as multiple counts of interference with commerce by threats and violence, possessing a firearm in furtherance of a crime of violence, bank robbery, and aiding and abetting these offenses. Wilson moved to suppress the evidence resulting from the warrantless use of the GPS tracker. He argued that United States v. Jones, 132 S. Ct. 945 (2012), decided after police placed the tracker on his car, rendered the search illegal. The district court denied the motion to suppress, reasoning inter alia that the good-faith exception to the exclusionary rule made the evidence obtained in the search admissible. Wilson then signed a plea agreement. In it, he pled guilty to some of the counts in the indictment as well as two counts added in a superseding criminal information, Government filed as part of the plea agreement. which the However, at Wilson’s Rule 11 hearing, his counsel notified the court that Wilson no longer wanted to agree to the negotiated plea. 2 In response, the district court strongly and repeatedly urged Wilson to plead guilty pursuant to the agreement. The judge opined that Wilson’s experience in state court “may be giving [him] a false sense of security,” and that this was “a situation where someone has no comprehension of how deep the hole is.” The court addressed Wilson directly, asking “What’s your problem? I mean, you are facing an ocean full of time and . . . you think you are going to get out? get out. I mean, what’s your problem?” You are not going to The court described the negative results of going to trial in various ways: [N]o one is going to let you, unless you insist, testify because you are an armed robber and that’s your career . . . these other three guys, who are your allies, are going to line up to get Rule 35’s and get out of jail, and they’re going to testify against you and you are going to be hung out with whatever it is, a hundred year sentence. The judge also told Wilson that, if convicted at trial, “[he] [would] be gone forever,” and suggested that he would die in prison. Wilson repeatedly told the court that he had thought his decision through and did not want to agree to the negotiated plea. When the district court asked Wilson if he had thought through the consequences of forgoing the plea deal and going to trial, Wilson replied, “Yes, sir.” Instead of permitting Wilson to make this choice, the court continued the hearing for two 3 weeks so that Wilson could “take a cooling off period” and “decide[] whether or not this is a bad deal.” Ten days later, Wilson’s counsel filed a motion to withdraw as counsel because relationship,” of which a the “breakdown court of the granted. attorney-client Four months later, after Wilson had been appointed new counsel, the district court conducted failure, the no continued transcript Rule of 11 this hearing. hearing Due to exists. equipment Pursuant to Federal Rule of Appellate Procedure 10(c), the district court approved a statement of the proceedings submitted by the parties. The approved (but extremely brief) statement describing this second hearing does not indicate that the court informed Wilson of his right to plead not guilty, his right to a jury trial, or colloquy. several of the other requirements of the Rule 11 Notably, the statement does not indicate that the judge ascertained whether Wilson’s plea was voluntary. While the statement asserts that Wilson’s counsel “recalls that the Appellant acknowledged that he understood the terms of the plea agreement and appeal waiver,” it also states that Wilson himself “does not recall being informed of or acknowledging that he understood the terms of the plea agreement or appeal waiver.” The record contains no affidavits from any of the individuals actually present at the hearing. 4 At this second hearing, Wilson pleaded guilty to four counts of bank robbery and conspiracy to commit bank robbery and possessing a firearm as a felon. According to the Government’s statements at oral argument, this plea agreement differed from the original counts of plea bank agreement robbery. in After that the it contained district court two fewer sentenced Wilson to 293 months’ imprisonment, he timely noted this appeal, in which he argues that the trial court’s participation in his plea discussion constituted plain error under Rule 11(c) and so requires that we vacate his plea. * Rule 11(c) provides that “[a]n attorney for the government and the defendant’s attorney . . . may discuss and reach a plea agreement,” but discussions.” “[t]he court must not participate Fed. R. Crim. P. 11(c)(1). in these The prohibition on judicial involvement furthers “three principal interests: diminishes plea; it the possibility protects against of judicial unfairness coercion and of partiality a it guilty in the judicial process; and it eliminates the misleading impression that the judge is an advocate for the agreement rather than a * Wilson also initially appealed the denial of his suppression motion. However, this court has already concluded that the good-faith exception does indeed render admissible evidence obtained by warrantless GPS trackers prior to Jones. See United States v. Stephens, 764 F.3d 327, 338 (4th Cir. 2014). We therefore affirm the district court’s denial of Wilson’s suppression motion. 5 neutral arbiter.” United States v. Bradley, 455 F.3d 453, 460 (4th Cir. 2006) (quoting United States v. Cannady, 283 F.3d 641, 644–45 (4th Cir. 2002)) (internal quotation marks omitted). Because Wilson did not object to the judge’s involvement during the plea discussions, we review his claim under the rigorous plain error standard. See United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). Wilson must establish that “(1) the asserted violation of Rule 11(c)(1) is error, (2) the error is plain, and (3) the error affected [his] substantial rights.” Bradley, 455 F.3d at 461. his substantial To establish that the error affected rights, Wilson must show “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Davila (Davila I), 133 S. Ct. 2139, 2147 (2013). If these three conditions are met, we can exercise our “discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, reputation of judicial proceedings.” integrity, or public Bradley, 455 F.3d at 461. The Government rightly concedes that the district court’s participation in Wilson’s plea discussions 11(c)(1) and that this error was plain. consider the third and affected whether the error whether it seriously proceedings. Because fourth prongs Wilson’s affected the record 6 the of violated Thus, we need only plain error substantial integrity lacks Rule any review: rights of and judicial indication that Wilson’s eventual guilty plea was voluntary, we conclude that Wilson has satisfied both prongs. At the initial Rule 11 hearing, the district court strongly urged Wilson to agree to the negotiated plea deal. The judge commented evidence, on questioned the strength Wilson’s reasons of the for Government’s proceeding to trial, criticized Wilson’s rejection of the plea agreement. and Thus, this clearly “is not a case involving a single or even a few brief remarks by the court.” Braxton, 784 F.3d at 243. Nor were the remarks impartial, as in Cannady, 283 F.3d at 645, where the judge “never suggested that Cannady should plead guilty” but only “requir[ed] guilty or go Cannady to to trial.” make a Instead, decision in -- either response to plead Wilson’s rejection of the plea deal, the district court rebuked him and ended the hearing. Although the record indicates that Wilson was calm and cogent at the hearing, the judge expressly said Wilson needed a “cooling off period” -- that is, a period during which Wilson would change his mind and accept the plea deal. When the second hearing occurred months later, Wilson did accept a plea deal. Importantly, in circumstances that are hopefully unique to this case, ultimate nothing guilty plea in the was record voluntary. establishes Although that a Wilson’s defendant’s assertion of voluntariness during the Rule 11 colloquy will not 7 by itself “dispel [our] concern” that judicial participation rendered a plea involuntary, Braxton, 784 F.3d at 245, such an assertion does inform our inquiry. S. Ct. at 2149-50. See, e.g., Davila I, 133 In this case, we do not have the transcript from Wilson’s second Rule 11 hearing, and the cursory statement of the proceedings leaves much to be desired. When forced by equipment failure to generate the record themselves, the parties submitted a single paragraph describing the hearing. Rule 11 The statement does not indicate whether a proper colloquy took place, voluntarily entered his plea. let alone whether Wilson One of the few specifics it does relate is that Wilson does not remember being informed of the terms of the plea agreement at the hearing. The hearing, as described by the parties, did nothing to combat the effect of the earlier Rule 11 violation, and leaves substantial doubt as to the voluntariness of the ultimate plea. Cf. Braxton, 784 F.3d at 245 (“[T]he plea colloquy in this case only exacerbates the [Rule 11(c)] error.”). The record thus shows that Wilson appeared at his first Rule 11 hearing adamant about refusing the Government’s deal and prepared to do so. Instead of allowing him this choice, the judge berated him and stopped the hearing. When Wilson appeared at mind the second hearing, he changed his under unknown conditions and potentially without the benefit of a proper Rule 8 11 colloquy. For these reasons, we conclude that Wilson has demonstrated a reasonable probability that, absent the district court’s involvement, he would not have pled guilty. We thus turn to the last inquiry: whether refusing to notice this plain error would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)) (internal quotation marks omitted). This court has recognized that “failure to notice [] [a] clear Rule 11 error would almost inevitably seriously affect the fairness and integrity of judicial proceedings.” F.3d at 463. This is unsurprising, “given Bradley, 455 the critical interests served by the prohibition [on judicial involvement in plea negotiations],” impartiality throughout including the “preserving proceedings and the judge’s preventing the public from gaining the misleading impression that a judge is anything less than a neutral arbiter.” marks omitted). Id. (internal quotation Indeed, we have found no cases where a Rule 11(c) violation that affected substantial rights did not also affect the fairness of judicial proceedings. The instant case does not present an exception to the “general rule,” Braxton, 784 F.3d at 244. Accordingly, we vacate the judgment and remand the case for further proceedings. 9 As is our usual practice, we remand the case for assignment to a different district judge. F.3d at 465. preside fairly See id. at 247; Bradley, 455 We do not doubt that the original judge would and impartially over this case. However, “[r]egardless of the judge’s objectivity, it is the defendant’s perception of the judge that will determine defendant will feel coerced to enter a plea.” whether the Bradley, 455 F.3d at 465. AFFIRMED IN PART AND VACATED AND REMANDED 10
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