Jonathan S. Willett
Rule 11 Requirement that Courts Warn Defendants of No Right to Withdraw Guilty Pleas
Pursuant to Federal Rule of Criminal Procedure (FRCP) 11, prosecutors may promise to move to dismiss other charges or recommend that the court authorize a specific sentence or sentencing range in order to encourage a criminal defendant to plead guilty to a certain charge. In addition, Rule 11 requires courts to advise a defendant considering entering into a plea agreement that the defendant has no right to withdraw the plea if the court does not follow the prosecutor’s request or recommendation.
In fact, failure to warn a defendant that there is no right to withdraw a plea if the court rejects the prosecutor’s request or recommendation may entitle a defendant who is subsequently convicted to obtain relief based on a Rule 11 failing.
The Plain Error Standard
In order to obtain relief based on a claim of error, the defendant must generally “preserve” the claim of error by making a timely objection. In the absence of a timely objection, a claim of error becomes “unpreserved” and the standard for reversal is the plain error standard.
Under FRCP 52(b), courts may consider “a plain error that affects substantial rights…even though it was not brought to the court’s attention.” The U.S. Supreme Court has interpreted the plain error standard to mean that an error must have “substantial and injurious effect or influence in determining the…verdict.” Further, the Court has required defendants seeking relief based on plain error to show “a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.”
Three Limitations on Appellate Authority Under Rule 52(b)
As set forth by the Court in U.S. v. Olano (1993), there are three limitations on the authority of a court of appeals to reverse a defendant’s conviction based on plain error:
- There must be an “error” – a deviation from a legal rule
- The error must be “plain” – synonymous with “clear” or “obvious”
- The plain error must “affect substantial rights” – i.e., prejudicial influence on the verdict
Upon satisfaction of these three conditions, a court of appeals should exercise its discretion to afford a convicted defendant relief and allow the defendant to withdraw the guilty plea.
Relief for an Unpreserved Rule 11 Failing
In 2004, the U.S. Supreme Court held in U.S. v. Dominguez Benitez that a defendant seeking to obtain relief for an unpreserved Rule 11 failing must show a reasonable probability that he would not have pleaded guilty if he had been appropriately warned.
In the Dominguez Benitez case, the defendant agreed to plead guilty on a conspiracy count, according to a plea agreement that provided the prosecutor would dismiss another charge for drug possession and recommend that the sentencing court authorize a reduced minimum sentence. Although the written plea agreement said that the defendant could not withdraw his plea if the court did not accept the prosecutor’s recommendations, the district court failed to warn the defendant as such in the plea colloquy, as Rule 11 instructs. Subsequently, the district court determined the defendant ineligible for a reduced sentence and sentenced him instead to the mandatory minimum sentence for the conspiracy count.
The Ninth Circuit’s Two-Part Test for Plain Error
On appeal, the Ninth Circuit Court of Appeals agreed with the defendant that the omitted warning required reversal. In reversing the defendant’s conviction, the Ninth Circuit applied a two-part test that requires the defendant seeking relief based on plain error to prove:
- That the court’s error was not minor or technical, and
- That the defendant did not understand the rights at issue when he entered his guilty plea.
However, the U.S. Supreme Court criticized the Ninth Circuit’s two-part test for failing to consider the causal connection between an omitted Rule 11 warning and a defendant’s plea decision. Asserting the importance of a causal connection, the Court concluded that the omitted Rule 11 warning made no difference to the outcome of the defendant’s plea agreement in this case. The Court reasoned that the evidence showed both a controlled sale of drugs to an informant and a confession, which makes it “hard to see here how the warning could have had an effect on [the defendant’s] assessment of his strategic position.” Further, the plea agreement (which specifically warned that the defendant could not withdraw his plea if the court refused to accept the prosecutor’s recommendations) was read to the defendant in his native Spanish, tending to show that the Rule 11 error was inconsequential.