Harrell: Judge unduly participated in plea discussion

In U.S. v. Harrell, No. 11-15680 (May 14, 2014), the Court affirmed the convictions and sentences for two Hobbs Act and two § 924(c) firearm offenses, for a defendant who was convicted by a jury after a trial; the Court reversed the conviction of another defendant who pled guilty, because the district court impermissibly participated in the parties’ plea negotiations. During repeated colloquies with the defendant, the district court contrasted the sentence the defendant would receive if he went to trial compared to the less severe sentence he would receive if he pled guilty. The defendant ultimately pled guilty based on the prosecutor’s agreement to a lesser sentence – the lesser sentence that the district court had proposed. The Court held that, under the recent decision in U.S. v. Davila, 133 S.Ct. 2139 (2013), the district court actions constituted “plain error.” The defendant arrived ready for trial, and the district court “shaped the more favorable plea agreement.” “We realize that the district court was acting in what it believed to be [the defendant’s] best interests, and was concerned about the lengthy sentence it would have to impose if [he] was found guilty by a jury. Nevertheless, there is no good motives exception to the bar on judicial participation in plea discussions.” The Court vacated the conviction, and remanded the case to a different district court judge, to give the defendant an opportunity to withdraw his plea. The Court agreed with the defendant who took the case to trial that it was error for the district court to allow a government agent to testify as an expert on communications by cell phone over cell phone towers, because the government failed to establish, by a preponderance of the evidence, that the agent was qualified to be an expert. The error, however, was harmless in light of the overwhelming evidence.