     Case: 13-50267   Document: 00512616629    Page: 1   Date Filed: 05/02/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                No. 13-50267                             FILED
                                                                      May 2, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

                                          Plaintiff-Appellee
v.

EMMANUEL ANTIONE HEMPHILL, also known as Emmanuel Hemphill,
also known as Emanuel Hemphill,

                                          Defendant-Appellant




                Appeals from the United States District Court
                      for the Western District of Texas


Before REAVLEY, JONES, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge:
      Emmanuel Hemphill pleaded guilty to one count of conspiracy to possess
with intent to distribute cocaine base and one count of possession with intent
to distribute cocaine base. The district court sentenced him consistent with
the plea agreement to concurrent terms of five years on each count. Hemphill
now appeals, contending that the district court improperly engaged in the plea
negotiations. We VACATE Hemphill’s conviction and REMAND for further
proceedings.
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                                 No. 13-50267
                                           I.
      In March and April 2012 police used a confidential informant (CI) to
purchase crack cocaine from Hemphill on two separate occasions. During at
least one of the encounters, the CI wore a concealed video camera to record his
interaction with Hemphill. The Government indicted Hemphill for conspiracy
and substantive drug offenses, and it filed a notice of enhanced penalty
pursuant to 21 U.S.C. § 851.       Although he was represented by counsel,
Hemphill filed several pro se motions concerning suppression and other issues.
Trial was set to begin on September 24, 2012.
      On September 20, 2012, the district court conducted a pretrial docket
call. Defense counsel announced that the defense was ready to proceed with
trial as scheduled. The district court then noted that Hemphill faced two
different charges, which could result in consecutive sentences. The court asked
the prosecutor about the statutory minimum and maximum sentences, and the
prosecutor informed the court that because of the notice of enhancement
Hemphill faced a minimum of ten years and a maximum of life in prison. The
court addressed Hemphill personally, stating that it “did not want to get too
much involved in this, but you look like a nice young fellow.” The district court
noted that the handwriting on Hemphill’s pro se motions was the same as on
motions filed by a defendant named Williams, who had appeared before the
court the previous week. The district judge stated that Williams had been
charged with similar crimes as Hemphill and had been facing a minimum of
twenty years in prison, although the Government had offered a five year plea
deal. The court stated, “[a]nd the case took a day and a half, two days. I mean
I’ve got plenty of time.” The court then stated:
            So that’s not a problem if you want to do that. But I -- and
      by the way, we went through a very extensive, because of -- and
      you may want to do this. I mean, it’s up to you. There’s a recent
      Supreme Court case where -- it was on a writ I think. But at any
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                                 No. 13-50267
      rate, the allegation was -- and I guess there were findings or
      something. But it got sent back because there wasn’t anything in
      the record that defense counsel had affirmatively explained to the
      defendant the downside of going to trial and losing. And so,
      frankly, given that case, I think we need to do that. In the case
      last week . . . the defense counsel acknowledged that he had told
      the defendant the same thing. So the defendant knew that if he
      went to trial, it was going from five to twenty. Now, obviously I’ve
      said that, but that’s not – I’m not his lawyer. I mean, I’ve said
      what happened last week.

      In response to the court’s inquiry, the prosecutor then informed the court
that the Government had offered Hemphill a plea agreement with an agreed-
to sentence of seven years. Defense counsel confirmed that he had discussed
the plea offer with Hemphill. Nevertheless, the district court then discussed
the sentencing guidelines and Hemphill’s potential criminal history score,
which could have led to a fifteen to twenty year sentence, and the court stated,
“Well, Mr. Hemphill, I’m going to tell you one other true story, and then I’m
going to give you 15 minutes to confer with [defense counsel] to decide.”
      The court then engaged in an extensive colloquy about two defendants,
the Nutall brothers, who had appeared before the court facing robbery charges
many years earlier. The court told Hemphill that the Government had offered
the Nutall brothers seven years, but rather than accept the deal they had
listened to the advice of a relative instead of their lawyers. They proceeded to
trial, were found guilty, and were sentenced to 35 years in prison. The court
explained that several years later the Nutall brothers wrote letters to the
court, that they had been model prisoners, and that the court felt sorry for
them and wanted to help get them released. The court was unable to do so,
however, because the Government would not agree to release them. The court
then stated:
           So the Court doesn’t have any choice. And I don’t know
      whether ten years from now if [the prosecutor] would do something
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                                  No. 13-50267
        different or not, although [the prosecutor] and I may not be here
        ten years from now. But you’ll still be in prison if you lose. You
        understand that?

        Hemphill asked the court several questions about the court’s
impartiality, and the court assured Hemphill that it “was not for anybody.”
Hemphill stated, however, that “I’m not going to lay down because the federal
people have a 90 something conviction rate on something that I feel like it’s not
– it’s not righteous. That’s not cool.” The court stated that it was up to the
jury.
        The court turned to a discussion of Hemphill’s pro se motions. During
this discussion, it was revealed to the court that the CI had worn a recording
device. The district court immediately returned to the earlier case of Williams
and informed Hemphill that in Williams’s case there had also been video and
audio recordings admitted at Williams’s trial. The court stated that “we had a
big screen TV here showing Mr. Williams getting into the car, talking about all
the drug stuff. . . . And the jury found him guilty.” Hemphill said he had a
different argument to make, but the court noted “that’s factual stuff as to
whether the jury wants to believe beyond a reasonable doubt the testimony of
the . . . undercover agent.” The court denied Hemphill’s motions and stated
“what that leaves then are the facts that the government says it can prove.
That’s not up to me. It’s up to the jury. And so if you want to do that, we’re
going to do it Monday morning. So you’ve got 15 minutes to confer.” Because
Hemphill wanted to proceed to trial, defense counsel said there was no need to
confer.    The court then proceeded to take up other pretrial matters in
anticipation of trial the following Monday.
        On the scheduled trial date, Monday, September 24, 2012, the
Government stated that over the weekend it had discovered two additional
videotapes involving its witnesses that it was disclosing to the defense. It

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                                 No. 13-50267
further indicated that it was disclosing information about recorded telephone
calls that Hemphill had allegedly made from the jail. The telephone calls
allegedly involved a threat against the CI, who also had been shot at by
someone.
      The district court indicated that, although it had not listened to the
telephone recordings, they could have “a serious bearing” on its sentencing
decision if the jury found Hemphill guilty. It was eventually determined that
Hemphill was not involved in any threats, but before that fact was known, the
district court stated at the September 24 proceedings that Hemphill should be
given additional time to consider the Government’s plea offer.
      The Government had by then modified its offer to allow Hemphill to
plead guilty with an agreed-to sentence of five years instead of seven years.
The district court stated, “I think the Court, has an obligation to make sure
that before a young person like Mr. Hemphill turns down and now extend it
for one -- for five days, a five-year plea opportunity, that he be given enough
time to think about that and make that final decision in light of this new
evidence which has come to the Court’s attention.” Defense counsel indicated
that he appreciated the opportunity to review the new evidence to see if it
would be of any benefit, but the court indicated that the evidence could also be
to the defense’s detriment. The court stated that in order for Hemphill to be
fully apprised of “the ups and downs of either going to trial or taking this five
year offer,” it would extend the deadline for accepting the plea offer until 8:30
a.m. on Friday, September 28, 2012.
      The court and the parties then proceeded to discuss several evidentiary
issues that might come up during the trial. Because the CI had been shot at
and threatened, allegedly in telephone calls made by Hemphill, the
Government apparently had relocated the CI. Defense counsel raised the
possibility that questioning of the CI at trial could lead to a discussion of the
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                                   No. 13-50267
Government’s relocation payments.         The court indicated, however, that it
“look[ed] at those jail calls more as a sentencing issue if we get to that point
after a trial. If there’s a plea, of course, the Court would approve the plea
agreement, and there wouldn’t be reasons to look at – and listen to those jail
calls.”
          Defense counsel and the prosecutor both indicated there was nothing
further for the court to take up. The court said, however, that it “ha[d] one
other matter with Mr. Hemphill.” Directly addressing the defendant, the court
reminded Hemphill of the story it had told previously about the Nutall
brothers, “that these young men, instead of doing – I think their case it was
going to be six years. They’re now doing 35.” The court then said that “another
example” was the case of “Mr. Mouton,” who had played college football just as
Hemphill had done but who “got into crack cocaine and weapons.” The district
court informed Hemphill that Mouton had been facing a 35- or 40-year
sentence but eventually “got with the program” and accepted a ten-year offer
from the Government. The court explained that after five years, it had granted
a motion from the Government to reduce the sentence to five years and Mouton
was released. According to the district court, Mouton returned to school,
played football again, and went on “to play several years in arena football.”
The district court stated that Mouton was “married, doing well” and was “a
success story.” The transcript shows that the district court then appeared to
give Hemphill a copy of a newspaper article about Mouton, stating that “Mr.
Hemphill can take that back and think about it, think about his life, so forth.”
          The Court’s colloquy with Hemphill concluded as follows:
                All right. So Mr. Hemphill, the marshals are going to bring
          you back over here Friday morning, this Friday [September 28,
          2012], at 8:30. [Defense counsel] is going to talk with you about
          these jail phone calls, the videos, so forth. And then Friday
          morning at 8:30 you need to be ready to say yes or no to what the

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                                  No. 13-50267
      government has offered. If you say no, and that’s fine, that’s your
      choice, then we will go to trial on Monday, October the 15th.
            Do you understand that, Mr. Hemphill?
            THE DEFENDANT: Yes, sir.
            THE COURT: And there will be -- now, theoretically, after
      Friday, you can still plead what we call ‘straight up,’ but there
      won’t be any agreement. If you just want to say, ‘Okay, I plead
      guilty,’ that’s fine. But there won’t be anything like what [the
      prosecutor] has suggested in terms of punishment, and the Court
      has indicated it will approve as of right now and as of Friday. But
      after that, it’s either go to trial or plead straight up to the
      indictment to both crimes.
            Do you understand that?
            THE DEFENDANT: Yes, sir.
      On the morning of September 28, 2012, Hemphill appeared in court and
accepted the plea offer.    Defense counsel initially indicated that “extreme
developments” had occurred in the plea negotiations and asked to confer with
Hemphill.    After a twelve minute recess, Hemphill indicated that he had
“[m]ore than enough” time to decide about accepting the offer. During the plea
colloquy, the district court stated:
            And so, Mr. Hemphill, the good part of this, the really good
      part is the government agreeing, number one, to waive its right to
      a jury trial, in which case it could prosecute you to the fullest
      extent of the law. And I think we calculated if the government
      were successful, you could have been looking at a sentence around
      somewhere 20 to 30 years. But the government has agreed to give
      up that right to fully prosecute, recommend -- or agree to five years
      in the penitentiary.
      Hemphill filed a pro se motion to withdraw the plea on November 25,
2012, arguing in part that he had been under duress and that he had not
received information that he had requested from his counsel until after his
guilty plea. He also argued that the district court had violated Rule 11 by


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                                   No. 13-50267
improperly participating in the plea discussions. Hemphill also filed a pro se
motion to withdraw counsel.
        At a subsequent hearing, defense counsel disputed that he had not
provided Hemphill with information but conceded that communication had
broken down with his client. The district court granted the motion to withdraw
counsel but denied the motion to withdraw the plea. The court then appointed
Hemphill new counsel.
        Hemphill’s new counsel filed a second motion to withdraw the guilty
plea.    Counsel argued that Hemphill had construed the district court’s
comments about other defendants who had not accepted plea agreements as a
threat designed to coerce him into accepting the plea.         Through counsel,
Hemphill argued that because of the court’s comments he had not believed that
he would receive a fair trial and that the risk of not accepting a plea agreement
apparently desired by the court was too great. He further argued that he had
been under duress because, despite repeated requests, he did not receive a copy
of the plea agreement until reviewing it in court on September 28, and he had
not been able to review the full details of the plea agreement prior to entering
his plea. Hemphill separately filed another pro se motion to withdraw the plea
making the same arguments.
        At sentencing, the district court denied the motion to withdraw the guilty
plea.    The court approved the plea agreement and sentenced Hemphill,
consistent with the terms of the agreement, to concurrent terms of 60 months
in prison and eight years of supervised release. Hemphill now appeals.




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                                  No. 13-50267
                                            II.
      The Federal Rules of Criminal Procedure permit an attorney for the
Government and the defendant’s attorney, or the defendant when proceeding
pro se, to discuss and reach a plea agreement. Fed. R. Crim. P. 11(c)(1). “The
court must not participate in these discussions.”        Id.     The prohibition of
participation by the district court in plea discussions is a “bright line rule” and
constitutes “an absolute prohibition on all forms of judicial participation in or
interference with the plea negotiation process.” United States v. Pena, 720
F.3d 561, 570 (5th Cir. 2013) (internal quotation marks and citation omitted).
      We have explained that this blanket prohibition admits of no exceptions
and serves several important concerns. United States v. Miles, 10 F.3d 1135,
1139 (5th Cir. 1993). “First and foremost, it serves to diminish the possibility
of judicial coercion of a guilty plea, regardless of whether the coercion would
cause an involuntary, unconstitutional plea.” Id. Second, any participation by
the court “is likely to impair the trial court’s impartiality. The judge who
suggests or encourages a particular plea bargain may feel a personal stake in
the agreement . . . and may therefore resent the defendant who rejects his
advice.”   Id. (internal quotation marks and citation omitted).                Third,
participation by the court “‘creates a misleading impression of the judge’s role
in the proceedings.’” Id. (citation omitted). This is because the judge no longer
is a neutral arbiter but rather appears to be an advocate for the suggested plea
agreement. Id.
      We review allegations of a Rule 11 violation for harmless error. United
States v. Rodriguez, 197 F.3d 156, 160 (5th Cir. 1999). We must consider
whether it was reasonably probable that, but for the district court’s comments,
the defendant would have exercised his right to go to trial. United States v.
Davila, 133 S. Ct. 2139, 2150 (2013); United States v. Daigle, 63 F.3d 346, 349
(5th Cir. 1995) (“The focus . . . of the harmless error inquiry is whether the
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                                 No. 13-50267
district court’s flawed compliance with Rule 11 may reasonably be viewed as
having been a material factor affecting the defendant’s decision to plead
guilty.”).
                                           III.
      Hemphill argues that the district court impermissibly interfered with
the plea negotiations in four ways: (1) by telling multiple stories about other
defendants who faced a choice between going to trial and accepting a plea
agreement; (2) by imposing a deadline on accepting the plea offer; (3) by
making statements about the negative effects that the jail calls would have at
sentencing; and (4) by describing the plea process as “good” during the plea
colloquy. As noted above, we must address these contentions by asking, first,
whether the district court’s comments violated Rule 11, and, second, whether
any error was harmless. See United States v. Crowell, 60 F.3d 199, 204 (5th
Cir. 1995).
      With respect to Hemphill’s challenge to the district court’s comments
during the plea colloquy after Hemphill agreed to accept the offer, we perceive
no error. “The district court is expected to take an active role in evaluating a
plea agreement, once it is disclosed.” Id. This evaluation “may include a
consideration of the punishment allowable under the agreement, as compared
to the punishment appropriate for the defendant’s conduct as a whole.” Id.
Here, the district court’s comment during the plea colloquy about the “really
good part” being the Government’s waiver of its right to prosecute Hemphill to
the fullest extent of the law was an explanation by the court that Hemphill
was facing a five-year sentence as opposed to 20 or 30 years. The comment
was made after Hemphill had agreed to accept the offer. The comment was
permissible and did not constitute error.
      With respect to the court’s comments occurring before Hemphill accepted
the Government’s plea offer, we come to a contrary conclusion. See Pena, 720
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                                        No. 13-50267
F.3d at 572 (noting the distinction between a sentencing court’s comments
made before the parties have agreed to a plea offer and disclosed its terms to
the court, and the court’s statements made after that time); Crowell, 60 F.3d
at 204. Our main concern is with the district court’s repeated description of
similarly situated defendants and the consequences that befell them when they
did not accept plea offers. 1 The Government contends that the court was
responding to Hemphill’s pro se motions and that the comments were meant
to ensure that Hemphill was aware of the consequences of rejecting the
proposed plea agreement. In context, and read in their entirety, however, the
comments were coercive.
       The district court’s participation in plea discussions is necessarily
limited in nature because such participation itself is generally coercive. See
Rodriguez, 197 F.3d at 159 (holding that “pressure is inherent in any
involvement by a judge in the plea negotiation process”).                       Thus, after a
defendant has agreed to accept a plea offer, the district court is expected to
take an active role by, inter alia, addressing the defendant in open court;
determining that the plea is voluntary and not the result of force or threats;
ensuring that there is a factual basis for the plea; and either accepting or
rejecting the plea and stating its reasons for doing so. See Crowell, 60 F.3d at
203; see also Rodriguez, 197 F.3d 156, 159 (5th Cir. 1999) (“Appropriate
discussion of a plea agreement properly presented to the judge is limited to
exploration of the agreement in order to determine whether it is voluntary and
just.”). The proper inquiry is whether the court was actively evaluating a



       1 We find no fault per se with the court’s imposition of a deadline for Hemphill to
decide whether to accept the plea offer. See United States v. Ellis, 547 F.2d 863, 868 (5th Cir.
1977) (affirming district court’s strict adherence to plea bargaining deadline as part of district
court’s control and management of its docket); see also United States v. Cannady, 283 F.3d
641, 645 (4th Cir. 2002) (indicating that giving the defendant “a relatively short time to
decide” whether to accept a plea agreement was not coercive).
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properly disclosed plea agreement, as the court is required to do, rather than
suggesting what should occur or injecting comments while the parties are still
negotiating. Crowell, 60 F.3d at 204.
      The district court’s comments here, made before Hemphill had accepted
any plea, did not evaluate the effects of a plea agreement that had been
properly presented by the parties. Instead, they tended to pressure Hemphill
into accepting an offer that the court preferred. They further could be viewed
as suggesting that the court already thought Hemphill was guilty.
      On September 20, the court implicitly compared Hemphill’s case with
the cases of Williams and the Nutall brothers. On that date, Hemphill had
already declared himself ready for trial, and he stated that he was not going
“to lay down” by pleading guilty. The court conveyed that Williams and the
Nutall brothers had also chosen to refuse plea offers and ended up serving
much harsher sentences. The court even compared the video evidence in
Williams’s case with the video recordings in Hemphill’s case, with the
implication that, like Williams, Hemphill would also be found guilty based on
such evidence.
      Then on September 24, the day of trial, the district court unilaterally
addressed Hemphill after the parties indicated there was nothing further to
discuss. The court contrasted the prior case of Mr. Mouton, who the court
characterized as a “success story” after Mouton accepted a plea offer and
received a favorable sentence.    The court clearly compared Mouton and
Hemphill, noting that both men were about the same age and played football,
suggesting that Hemphill could also expect positive results from accepting the
plea but negative effects if he rejected the plea. The court then apparently
gave Hemphill a newspaper article about Mouton, and stated that Hemphill
should be given more time to consider the plea offer. The court’s conduct and
comment that Hemphill should “think about his life” were improperly coercive.
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See Rodriguez, 197 F.3d at 159 (finding coercive district court’s discussion of
probable consequences of defendant’s decisions and, when defendant indicated
he wanted to go to trial, asking if the defendant was sure he wanted to do that).
      Several of the district court’s comments tended to exert pressure on
Hemphill because they suggested the court had a predisposition to believe that
Hemphill was guilty, even if such belief was only in Hemphill’s mind. See Pena,
720 F.3d at 575 (“The pre-plea proceedings before the court, therefore,
illustrate one of the core concerns that Rule 11 was intended to combat, i.e.,
the indeterminate effects of the court’s involvement in plea negotiations, even
if only in the defendant's mind.”). On September 20, the court indicated that
it had been unable to help the Nutall brothers because the Government would
not agree to a release, and suggested uncertainty about being able to help
Hemphill in a similar situation in the future because in “ten years” Hemphill
would “still be in prison if you lose.” The court’s comparison of the video
evidence in Williams’s case with the evidence in Hemphill’s case also tended to
suggest a belief that Hemphill, like Williams, was guilty. On September 24,
when discussing the jail calls, the court indicated that it viewed the calls as
very important to sentencing, even though it had not yet listened to them. The
court also indicated that if there were a plea agreement, of course, there would
be no need to listen to the calls. The comments about the video evidence, the
jail calls, and the probability of Hemphill still being in jail in ten years all
suggest the possibility that the court had already made up its mind about
Hemphill’s guilt, and that therefore a plea agreement would be best. See Pena,
720 F.3d at 572 (holding district court’s comments were improper where “the
district court’s statements connote the possibility that the court had already
made a determination as to [the defendant’s] guilt in the instant offenses and
preferred a guilty plea”); Miles, 10 F.3d at 1141 (“By trying to facilitate a plea


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                                  No. 13-50267
bargain, the judge indicated that he desired an agreement; this is pressure
enough.” (internal quotation and citation omitted)).
      The Government suggests that the district court’s discussions were part
of the court’s effort to ensure that Hemphill was fully informed of the plea offer,
and thereby comply with Supreme Court precedent. In two recent cases, the
Supreme Court held that defendants could have viable claims for ineffective
assistance if their counsel fails to communicate a plea offer and the defendant
thereby loses the opportunity to plead to less serious charges or to receive a
less serious sentence. See Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012);
Missouri v. Frye, 132 S. Ct. 1399, 1408-09 (2012).          The Supreme Court
suggested that, in order to guard against later, frivolous claims of ineffective
assistance, trial courts could adopt certain measures to ensure that defendants
are fully informed, such as by documenting the terms of the negotiation
process, by requiring that all plea offers be in writing, and by making any
formal offers part of the record. See Frye, 132 S. Ct. at 1408-09.
      Here, however, defense counsel had already indicated on the record that
he had fully discussed the plea offer with Hemphill.         The district court’s
comments then went much farther than documenting the plea offer or
informing Hemphill of its terms, as contemplated in Frye. The district court
clearly implied that a plea would be preferred, and it twice specifically stated
that it would approve the Government’s plea deal. See Miles, 10 F.3d at 1139
(holding that “the statements by the court went well beyond a mere rejection
of the agreements and explanation for it; they suggested, at the very least, the
agreements that would be acceptable”).
      Hemphill’s case is similar to United States v. Baker, 489 F.3d 366 (D.C.
Cir. 2007). Like the district court here, the district court in Baker unilaterally
initiated a colloquy about a prior defendant who had received a lenient
sentence of a year and a day after accepting a plea offer even though the
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defendant had been facing a guideline range of approximately twelve years.
Id. at 361. The district court stated that it would be consistent to the extent it
could, and it encouraged the parties to talk again. Id. The District of Columbia
Circuit held that the district court improperly engaged in plea discussions
because the “only reasonable explanation” for the court’s discussion of the prior
defendant was to encourage a plea, in violation of Rule 11. The same is true
here.
        Hemphill’s comments on the record indicate that he was reticent to
accept a plea.      The district court’s repeated and extensive description of
adverse consequences to other defendants who rejected pleas, and its
discussion of the “success story” defendant who accepted a plea, were akin to
the court advocating a preference for the proposed plea offer and the belief that
the plea was in Hemphill’s best interest. See Rodriguez, 197 F.3d at 160 (“The
clear implication of the judge’s statements at the pretrial hearing was that the
judge desired a plea.”); Miles, 10 F.3d at 1139 (quoting United States v. Bruce,
6 F.2d 552, 557 (9th Cir. 1992) (“The loss of judicial integrity is particularly
serious when . . . the judge explicitly or implicitly advocates a particular
bargain.”)). This may have been laudable on the court’s part, and we ascribe
no ill motive to the district court. However, “Rule 11 and its interpretive case
law unmistakably prohibit all forms of [judicial] participation.” Rodriguez, 197
F.3d at 159 (emphasis added). The district court’s actions, done with even the
best of intentions, simply went too far, and there was error. 2
        Our next step is to determine whether the error was harmless. The
Government bears the burden of showing that the district court’s Rule 11 error


        2Hemphill also argues that his placement in 24-hour lockdown immediately after the
September 24 proceedings further contributed to the coercion of his plea. We need not decide
the effect, if any, that the lockdown had on Hemphill’s decision to plead guilty because the
pressure exerted by the district court’s commentary was sufficient to undermine confidence
in the outcome of the plea proceedings.
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was harmless in this case because Hemphill preserved the error. See Davila,
133 S. Ct. at 2147; United States v. Vonn, 535 U.S. 55, 62, 122 S. Ct. 1043, 1048
(2002). The Government argues that any violation of Rule 11 was harmless
because Hemphill agreed to his guilt and the voluntariness of his plea under
oath at his plea hearing; the district court directly reassured Hemphill of the
court’s impartiality; and the court made it clear to Hemphill that it was
prepared to conduct a trial. The Government’s argument misses the mark.
      The district court’s commentary occurred before Hemphill agreed to
accept the offer and to enter his plea at the plea hearing. For the reasons noted
above, the district court’s commentary thereby created pressure in Hemphill’s
mind to accept a plea agreement or face a potentially harsher sentence as
punishment. See Rodriguez, 197 F.3d at 159-60. Although the district court
did indicate that it would be impartial and that Hemphill could proceed to trial,
once a court has exerted pressure on a defendant it is difficult, if not
impossible, to undo the coercive effects of that pressure. See Pena, 720 F.3d at
575 (holding that even district court’s instruction to disregard an earlier,
improper condition on entering a plea could not alter defendant’s perception of
court’s desired disposition); Rodriguez, 197 F.3d at 160 (“Once the judge placed
pressures on Rodriguez, their impact could not be so readily alleviated.”).
      We have held that “it is difficult to imagine a situation in which the court
would find a judge’s participation in the plea negotiation process to be
harmless given the inherent pressure placed on the defendant.” Rodriguez,
197 F.3d at 160. The Government argues, however, that rather than attribute
Hemphill’s acceptance of the plea offer to coercion by the district court, we may
logically conclude that Hemphill accepted the plea offer on September 28
because the Government had reduced the agreed-to sentence from seven years
to five years. But what “we do not and cannot know [is] whether [Hemphill]


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                                 No. 13-50267
would have accepted the plea agreement absent participation by the court.” Id.
The record in fact suggests otherwise.
      Hemphill indicated on September 20 that he wanted to proceed to trial,
he was diligently preparing for trial, and he gave no contrary indication prior
to accepting the plea offer on the morning of September 28. The district court
imparted the knowledge that several defendants who had rejected plea offers
ended up suffering grave consequences, even though the district court had
desired to help them. Then on the day of trial, September 24, the court
contrasted the case of Mouton and said Hemphill should have more time to
think about the plea offer.      The district court at that time specifically
referenced a five-year plea deal. The district court’s comments were extensive,
repeated, and unilaterally raised, and they were followed by the admonition
for Hemphill to think about his life and whether to enter a plea. See Baker,
489 F.3d at 375 (finding harmfulness where district court’s remarks “were
lengthy, repetitive, initiated and pursued by the court, and accompanied by
several concurrent suggestions that the parties ‘talk again’ and ‘resolve this
case’”). Four days later, after being admonished about similar defendants who
had rejected pleas and receiving positive information about a defendant who
had accepted a plea, Hemphill accepted the Government’s plea offer. This
temporal proximity between the district court’s comments and the acceptance
of the plea also supports a finding that the court’s comments influenced
Hemphill’s plea. See Davila, 133 S. Ct. at 2149 (noting that a plea coming
“soon after” judicial participation differs from one that follows a three-month
delay); Pena, 720 F.3d at 574 (holding that a guilty plea entered five days after
district court’s participation was “a temporal proximity that supports a finding
of prejudice”).
      We conclude that there is at least a reasonable probability that Hemphill
would not have entered a guilty plea absent the district court’s injection of
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                                 No. 13-50267
comments that went beyond merely evaluating a properly disclosed plea
agreement. See United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993) (en
banc) (holding that under harmless-error review of Rule 11 errors we “‘examine
the facts and circumstances’” of the case to discern if the error “may reasonably
be viewed as having been a material factor affecting [defendant’s] decision to
plead guilty’” (citation omitted)); cf. United States v. Dominguez Benitez, 542
U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004) (holding that a “reasonable
probability” is one that, in the judgment of the reviewing court, is “‘sufficient
to undermine confidence in the outcome’ of the proceeding” (citation omitted)).
                                            IV.
      The district court did more than offer generic commentary about the pros
and cons of plea offers.    It gave specific examples of negative results for
defendants who rejected plea offers, it compared the evidence in Hemphill’s
case with other cases, and it suggested through a “success story” that favorable
results could occur when a defendant pleads guilty. The appropriate remedy
is vacatur of Hemphill’s judgment of conviction and remand for proceedings
before a different district judge. See Pena, 720 F.3d at 576; Rodriguez, 197
F.3d at 160.
      For the foregoing reasons, we VACATE the district court’s judgment and
REMAND for further proceedings before a different district judge.




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