United States v. Nickle, No. 14-30204 (9th Cir. 2016)
Annotate this CaseDefendant appealed his conviction and sentence for conspiracy and possession with intent to distribute 500 grams of a controlled substance. The court concluded that the district court's stated reason for rejecting defendant's plea was inapt. In this case, armed with defendant's admission of guilt and the government's offer of proof, the district court had all it needed to fulfill its duty under Fed. R. Crim. P. 11(b)(3), which is to determine that there is a factual basis for the plea. Therefore, the court vacated the convictions and remanded so that defendant may plead guilty pursuant to the terms of his original plea agreement. Although the district court must give defendant the opportunity to plead guilty under the terms of his original plea agreement, that doesn’t mean he is required to so plead. Defendant could choose to hold out for a better deal or to go to trial anew. In regard to defendant's claims of trial errors, the court concluded that the district court's rulings were not within the area of permissible discretion when it prevented defendant from questioning three of the government's cooperating witnesses about the Rule 35 terms of their plea agreements. Finally, the court concluded that, because the assets at issue belonged to the government, they were not available for payment from or on behalf of defendant; the district court had no authority to redirect money earmarked for the Justice Department’s fund; nor could the district judge achieve such a result by amending the original judgment under Rule 35(a), as he attempted to do at the same time he filed the sua sponte order. Accordingly, the court vacated and remanded to a different judge in order to preserve the appearance of justice.
Court Description: Criminal Law. The panel vacated a jury conviction and sentence for conspiracy and possession of a controlled substance with intent to distribute, and, on the government’s cross-appeal, vacated the district court’s order that the defendant’s forfeited assets be used to reimburse the court for payment to his appointment counsel. The panel held that the defendant should not have received a trial and should instead have been permitted to plead guilty. The panel explained that the judge’s stated reason for rejecting the defendant’s guilty plea—that the defendant’s limited admissions left no “clear record that warrants this Court in making the kind of decision that I think I am obligated to make”—was inapt. The panel observed that the defendant never suggested that the government did not have sufficient evidence for a jury to conclude that he is guilty, and that armed with the defendant’s admission of guilt and the government’s offer of proof, the district court had all it needed to fulfill its duty under Fed. R. Crim. P. 11(b)(3) to determine that there is a factual basis for the plea. Because a new trial is possible, the panel reviewed the defendant’s claims of error as to the trial to help guide the parties and the district court on remand. The panel held that the district court did not act within the area of permissible discretion in preventing the defendant from questioning three UNITED STATES V. NICKLE 3 of the government’s cooperating witnesses about their plea- agreement terms providing that the government may move for a reduction of sentence pursuant to Fed. R. Crim. P. 35 to reward the witnesses for any substantial assistance. The panel explained that it is the fact that the government had not yet made a Rule 35 motion that would give the witnesses the greatest incentive to tailor their testimony to please the prosecution. The panel vacated the district court’s sua sponte order directing that the defendant’s forfeited cash and proceeds from the sale of his forfeited property be used to pay past and future court-appointed counsel. Citing 18 U.S.C. § 3006A(f), the panel explained that once the district court ordered the defendant’s assets forfeited, it was as if the government had title to them all along, and they were not available for payment from or on behalf of the defendant. The panel also held that the district court could not achieve this result by amending the original judgment under Fed. R. Crim. P. 35(a), where no error for which Rule 35(a) permits amendment occurred here. To preserve the appearance of justice, the panel remanded to a different judge.
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