11-3835-cr (L)
United States v. Tien

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT


                               August Term 2012

          (Argued:     May 14, 2013     Decided:   June 26, 2013)

    Docket Nos. 11-3835-cr (L) 12-812-cr(CON) 11-3871-cr(CON)
                          12-833-cr(CON)

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UNITED STATES OF AMERICA,

             Appellee,

                          -- v. --

YANG CHIA TIEN, AKA Andrew Tien,

             Defendant-Appellant.

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B e f o r e :        CHIN and LOHIER, Circuit Judges, and KEENAN,

                     District Judge.*


      Defendant-Appellant appeals from two judgments of

conviction entered in the United States District Court for the

Northern District of New York by Chief District Judge Gary L.

Sharpe after Tien pleaded guilty to (1) three counts of bribery

of a public official and (2) one count of forgery of a passport.


      VACATED AND REMANDED.


      *
       The Honorable John F. Keenan, United States District Judge
for the Southern District of New York, sitting by designation.
                                     PAUL D. SILVER, Assistant
                                     United States Attorney, for
                                     RICHARD S. HARTUNIAN, United
                                     States Attorney for the
                                     Northern District of New
                                     York, Albany, N.Y., for
                                     Appellee.

                                     MARY ANNE WIRTH, Bleakley
                                     Platt & Schmidt, LLP, White
                                     Plains, N.Y., for Defendant-
                                     Appellant.

KEENAN, District Judge:

    After Defendant-Appellant Yang Chia Tien (“Tien” or

“Appellant”) was indicted in 2009 in the Northern District of

New York for bribing an Immigration and Customs Enforcement

(“ICE”) employee to grant Lawful Permanent Resident status to an

alien, and in 2010 in the Eastern District of New York for

furnishing a forged passport, his cases were consolidated in the

Northern District.   Ultimately, Tien pleaded guilty in both, at

separate conferences held sixteen months apart, and now appeals

the pleas on the ground that he did not understand the

proceedings.   We hold that both pleas violated Federal Rule of

Criminal Procedure 11 and, accordingly, we vacate and remand.

                     I. Statement of the Case

        A. Indictment and Plea in the Northern District

    On March 27, 2009, Tien was indicted in the Northern

District on three counts of bribing an employee of ICE, in an

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attempt to influence the employee to classify an alien as a

Lawful Permanent Resident, in violation of 18 U.S.C. §

201(b)(1)(A).   On January 19, 2010, the day the trial was set to

begin before Judge Sharpe, Tien pleaded guilty, without a plea

agreement, to all three counts.        (A-83-108.)   Tien’s attorney

told the district court that he had spoken to Tien through a

Mandarin interpreter and that Tien understood the constitutional

rights he was waiving as well as the consequences of the guilty

plea.   (A-85-86.)

    During its colloquy with Tien (through the interpreter),

the district court first inquired about Tien’s age and state of

mind.   In telling the Court his age, he said he was “[a]bout 80

-– about 60.    58.”   (A-96.)   Next, he told the district court

that he was on medication for blood pressure, diabetes, and

pain.   The conversation went as follows:

         The Defendant: For number one is for the diabetes,
    which I, I was -– for the diabetes since back to 1997. And
    the second one is for the high blood pressures. And that
    one I got about three years. And since 2007 to now, I had
    a surgery on my neck and that leads to two more. And that
    is for the nerves problems. Right here. So right now,
    here, the medicine I have, I have all painkillers all in
    the top because the next and maybe more, more back.
         The Court: Have you taken your pills like you’re
    supposed to?
         The Defendant: Yes. Every day.
         The Court: Is there anything about the medicine that
    you’re taking that prevents you from understanding this
    conversation with me?
         The Defendant: Basically, the talking between you and
    me in the last time, I might be understanding 50 percent.
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    I think it’s at least. That’s because they’re one kind of
    . . .
          Mr. Monahan [Defense counsel]: Your Honor, if I may
    just . . . respectfully, what I think the Court is asking
    is, does your medication affect your ability to hear or
    think?
          The Defendant: Yeah. I’m talking about this . . . He
    said the medication. The one in the reddish color causes
    depression, can cause depression. It’s called –-
          The Court: Here’s what I’m asking . . . Do you
    understand me?
          The Defendant: No. We talk, I would say mostly I can
    understand. But before, when you talk to the attorney, and
    I don’t perfect understand. Therefore, last time, I got
    just maybe half.
          The Court: Let me try this a different way. The
    reason we have the interpreter here is so that they can
    tell you what it is I’m saying.
          The Interpreter: He’s saying that the medication is
    making –- may have an impact on his nerves.
          The Court: What I want to know is whether you
    understand me with the help of the interpreter.
          The Interpreter: Yes. He can understand.
          The Court: All right. If at any time you have any
    question about what I’m saying, tell the interpreter you’re
    having a problem, and she will tell me you’re having a
    problem. Okay?
          The Defendant: Okay.

(A-97-98.)

    The district court informed Tien about his right to go to

trial, that the Government has the burden of proof, and that he

may participate in his own defense if he so chose.        Tien said he

understood.   (A-99-101.)   The district court next reviewed the

consequences of pleading guilty, the maximum sentence, and

supervised release.   (A-99-100.)       Tien again indicated that he

understood.   The district court also confirmed with Tien that he


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was not pressured into or threatened to induce a guilty plea and

that it was his “free choice.”    (A-103.)

    Finally, since there was no written allocution, the Court

looked to the factual allegations set forth in a prior plea

agreement the Government had offered Tien, but had since

withdrawn.    Judge Sharpe asked the interpreter to translate the

paragraph for Tien, and the following conversation ensued:

    The    Court: Are those facts true?
    The    Defendant: Basically, yes.
    The    Court: What’s that mean, “basically”?
    The    Defendant: The answer is yes.

(A-104.)    The district court then accepted Tien’s guilty plea.

    On August 25, 2010, Tien filed a pro se motion to withdraw

his guilty plea in the bribery case.    He argued that he had a

“good and substantial defense to the charges” and that there was

a “fair and just” reason to allow him to withdraw his plea, in

that he was not guilty.    Tien also argued that the guilty plea

violated the “tenor of Rule 11(b)(1)(C) through (E)” because at

the time of the plea he “did not fully understand his rights.”

(A-123.)    Tien alleged that his attorney misled him by

representing that “if he agreed to plead guilty . . . , the

Government had agreed not to pursue any further prosecutions

against him.”    Tien stated that the Government’s representation

turned out to be false, since he was prosecuted in the Eastern

District for a passport fraud scheme.
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    In a one-paragraph order issued on December 22, 2010, the

district court denied Tien’s motion to withdraw his guilty plea

in the bribery case, finding that “[t]here is no[] factual basis

for the motions to withdraw the guilty plea.”    (A-167.)

           B. Eastern District Indictment and Guilty Plea

    On May 18, 2010, Tien was indicted in the Eastern District

on one count of furnishing a forged passport, in violation of 18

U.S.C. § 1543.   The parties consented to transfer the case to

Judge Sharpe in the Northern District.    On May 24, 2011 (about

sixteen months after he pleaded guilty to the bribery charges),

Tien entered a plea of guilty to the single forged passport

count, pursuant to a plea agreement.

    At the plea, Judge Sharpe confirmed that Tien had reviewed

the plea agreement with his attorney.    The Court then told Tien:

    Mr. Tien, this is the same kind of proceeding that we did
    based upon the charge here in the Northern District of New
    York. And just as in the former charge here in the
    Northern District, I need to be satisfied that you
    understand the consequences of pleading guilty to this
    Eastern District charge, that it’s your free choice to do
    so and there are facts that would support your admission to
    the crime.

(A-332.)   Tien said he understood and was sworn.   The Court then

said:

    Since I accepted Mr. Tien’s plea to the Northern District
    charge, I will incorporate into the record of these
    proceedings all the answers he gave me during the prior
    proceedings. I will, therefore, focus on those events that
    are relevant to this charge out of the Eastern District.
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(A-333.)   Judge Sharpe reviewed Tien’s right to a trial, the

maximum penalties connected with his guilty plea, and the

various rights he waived by entering a guilty plea.   The

Government then proffered the factual allegations as described

in the plea agreement, which Tien acknowledged as true upon

pleading guilty.   (A-334-337.)

    After accepting the plea, the district court observed the

following:

    As I always do, I’ve watched Mr. Tien as he and I have
    spoke. I may have said this the last time, but I repeat it
    this time: It’s clear to me that Mr. Tien has some
    fundamental understanding of English, but I have watched as
    he and the interpreter have spoken and it is clear to me
    that he understands the consequences of pleading guilty,
    it’s his free choice to do so, and there is a factual basis
    that would support his plea.

(A-337.)

    Judge Sharpe sentenced Tien to eight months on the forged

passport case, six of which were to run consecutively to a

sixty-three month sentence imposed in the bribery case.      (A-194-

195.)

                          II. Discussion

                        A. Statement of Law

    “It is a settled principle of federal constitutional law

that a guilty plea violates due process and is therefore invalid

if not entered voluntarily and intelligently.”   Wilson v.
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McGinnis, 413 F.3d 196, 199 (2d Cir. 2005) (citing Brady v.

United States, 397 U.S. 742, 748 (1970)).       A district court may

not accept a guilty plea “without an affirmative showing that it

was intelligent and voluntary.”       Boykin v. Alabama, 395 U.S.

238, 242 (1969).   Federal Rule of Criminal Procedure 11 sets

forth requirements of the district court’s plea allocution to

assist the court with “making the constitutionally required

determination that a defendant’s guilty plea is truly

voluntary.”   McCarthy v. United States, 394 U.S. 459, 465

(1969).   The district court must advise the defendant of the

right to plead not guilty, the rights waived by pleading guilty,

and other consequences of pleading guilty, such as the maximum

penalties he faces, “including imprisonment, fine, and term of

supervised release.”   Fed. R. Crim. P. 11(b)(1); see Zhang v.

United States, 506 F.3d 162, 168 (2d Cir. 2007) (“Rule 11 sets

forth requirements for a plea allocution and is designed to

ensure that a defendant’s plea of guilty is a voluntary and

intelligent choice.” (internal quotation marks omitted)).

    Where a Rule 11 violation is raised in the district court,

we review for harmless error, but where the defendant has

remained silent in the district court, he has the burden of

satisfying the plain error standard on appeal.       See United

States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012).       The

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Government appears to argue that the court should review both

pleas for “plain error,” but does not address the fact that in

the bribery case, Tien filed a pro se motion to withdraw his

plea, in which he included that the plea “violated the tenor” of

Rule 11.   In light of the fact that Tien raised the Rule 11

argument before the district court, the plea in the bribery case

will be reviewed for harmless error.     Because no such objection

was interposed in the forged passport case, that plea will be

reviewed for plain error.    See id.; see also United States v.

Vonn, 535 U.S. 55, 60-62 (2002).

    In demonstrating harmless error, “it is not enough to

negate an effect on the outcome of the case.”     United States v.

Dominguez Benitez, 542 U.S. 74, 81 n.7 (2004).    Rather, the

Government must prove that the error was harmless beyond a

reasonable doubt.   Id.   On the other hand, to show plain error

in the context of Rule 11, “a defendant must establish that the

violation affected substantial rights and that there is a

reasonable probability that, but for the error, he would not

have entered the plea.”     United States v. Garcia, 587 F.3d 509,

515 (2d Cir. 2009) (quotation omitted).

                B. Guilty Plea in the Bribery Case

    Tien argues that the district court did not adequately

inquire into whether he understood the proceedings during his

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first guilty plea.     The Government maintains that because the

district court ascertained that Tien’s medications affected only

his nerves, and advised Tien to let the interpreter know if he

was “having a problem,” no further inquiry was required.       In

this case we believe that the district court should have

inquired further into Tien’s ability to offer his plea before it

could proceed.

    Many of the answers that the Appellant provided at the

outset of the plea should have caused the district court to

conduct further investigation into whether Tien understood the

proceedings.   As an initial matter, Tien had difficulty even

providing his age; he first said he was 80-years-old, and

provided two more answers, the first of which was his correct

age (60).   (A-96.)    Next, he told the judge that he understood

only fifty percent of what was happening.      When Tien’s counsel

attempted to clarify the situation, asking Tien whether his

medications affected his ability to “hear or think,” Tien

responded, “[y]eah.”     (A-97.)   Upon being asked again whether

Tien understands the court, Tien said “No.”      (A-98.)   Without an

on-the-record statement from the defendant that he understood

the proceedings, the district court should not have continued

with the plea.




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     This does not appear to be merely a language barrier that

was ameliorated by using an interpreter during the plea.   The

record below does not reflect that the interpreter helped Tien

comprehend the proceedings or the consequences of his guilty

plea.   The district court inquired only into whether Tien could

understand the interpreter, which is entirely different from

whether Tien understood the proceedings.

     Moreover, once the district court learned that Tien was on

a series of medications, there should have been further inquiry

into the specific medicines and their side effects.   In United

States v. Rossillo, 853 F.2d 1062 (2d Cir. 1988), the district

court was informed that the defendant took drugs for a heart

condition, yet conducted no further inquiry.   In vacating the

defendant’s guilty plea, this Court held,

     the district court’s failure to further question defendant
     about any medication he was taking for his heart condition,
     the possible effects that that medication might have on his
     decision to plead guilty, and his ability to understand the
     plea proceedings, dictates, consistent with our prior
     holdings . . . that we once again reaffirm our commitment
     to strict compliance with Rule 11. We believe that if
     there is any indication, as there was in this case, that
     defendant is under the influence of any medication, drug or
     intoxicant, it is incumbent upon the district court to
     explore on the record defendant’s ability to understand the
     nature and consequences of his decision to plead guilty.
     We know of no other way to ensure both that defendant
     understands the constitutional rights that he is
     relinquishing by pleading guilty and that the plea is truly
     voluntary.

Id. at 1066 (emphasis in original).
                                11
    Here, the district court learned that Tien took

medications, yet did not make an on-the-record finding as to the

side effects of the medications and whether they interfered with

his understanding of the proceedings.   Indeed, there is no

indication that after the district court learned that Tien took

medications, it endeavored to ascertain whether they could

impact his ability to proceed.   See id.; see also United States

v. Parra-Ibanez, 936 F.2d 588 (1st Cir. 1991) (vacating sentence

where district court learned that defendant was taking

medications that affected his nerves but failed to probe deeper

into the medications, even though the judge received assurances

from the Appellant that he understood the proceedings).    This

critical omission precludes a finding that Tien’s plea in the

bribery case was knowing and voluntary, and dictates that the

plea be vacated.

          C. Guilty Plea in the Forged Passport Scheme

    Tien next argues that his plea in the forged passport case

was insufficient because (1) the district court erred by

“incorporating” Tien’s answers from his plea to the bribery

charges into the record of his plea to the passport scheme

charges, and (2) that the District Court failed to establish

that the plea was knowing and voluntary, omitting the

requirements of Rule 11(b)(1) and (2), and “focus[ing only] on
                                 12
those events that are relevant to this charge.”   (A-333.)   The

Government did not address this issue in its brief.

    Unlike the first plea, the district court in this plea

failed to ask any questions about the medicine Tien was taking.

This is especially glaring because the district court learned at

a plea just sixteen months earlier that Tien was on myriad

medications.   As discussed above, when a court learns that a

defendant is on medications, it must determine on the record

that they are not interfering with the defendant’s understanding

of the plea.   The district court failed to (1) ascertain whether

Tien was still taking the medications he reported taking sixteen

months earlier, (2) ask about the effects of Tien’s medications,

and (3) conduct an inquiry into the defendant’s state of mind.

As a result, Tien did not have the opportunity to express

confusion or demonstrate an inability to render a knowing and

voluntary plea.

    Additionally, Rule 11(b)(1) is not satisfied by reference

to an earlier plea.   Even if the first plea were adequate, it is

not always the situation that a knowing and voluntary plea in

one case necessarily means the second plea will occur under the

same circumstances.   Here, the district court improperly

conflated the proceedings, assuming the defendant was taking the

same medications at the time of the next plea, and that he

                                13
remembered the proceedings from the plea that happened sixteen

months earlier.

    In vacating Tien’s plea in the forgery case, this Court

holds that the district court committed plain error.     First, as

the Rossillo court has made clear, failure to inquire into the

effects of medications on a defendant’s state of mind is a

substantial defect calling into question the validity of the

plea, see Rossillo, 853 F.2d at 1066.   Second, we conclude that

there is a reasonable probability that Tien would not have

entered the plea if Tien’s medications and comprehension had

been properly examined.   Indeed, had Tien provided answers

similar to those he provided in the first plea, such as that he

understood only about fifty percent of what was happening, the

district court should have rejected the plea.   This conclusion

is further supported by the fact that Tien had already filed a

motion to withdraw his prior plea.   Accordingly, we conclude

that the district court’s error affected Tien’s substantial

rights.

    Finally, we find that the fact that the District Court

stated that it believed the Appellant understood what was

happening because it observed Tien is insufficient.    The Supreme

Court and this Court have both held that a plea will not be

considered voluntary when a district court “resorts to

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‘assumptions’ not based upon recorded responses to his

inquiries.”   McCarthy, 394 U.S. at 467; see also Rossillo, 853

F.2d at 1065 (Rule 11 violated where district judge “assumed”

defendant’s medication did not interfere with defendant’s

ability to comprehend proceedings).

    In finding plain error, we note that this Circuit has

“adopted a standard of strict adherence to Rule 11,” United

States v. Lora, 895 F.2d 878, 880 (2d Cir. 1990), and “therefore

. . . ‘we examine critically even slight procedural deficiencies

to ensure that the defendant’s guilty plea was a voluntary and

intelligent choice, and that none of the defendant’s substantial

rights ha[s] been compromised.’”     United States v. Maher, 108

F.3d 1513, 1520 (2d Cir. 1997) (quoting United States v.

Parkins, 25 F.3d 114, 117 (2d Cir. 1994)).

                          III. Conclusion

    The remainder of Tien’s arguments need not be addressed, as

the Court concludes that neither plea was knowing and voluntary.

For the foregoing reasons, Tien’s convictions are VACATED and

the cases are REMANDED to the district court for proceedings

consistent with this Opinion.




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