                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

IN RE MARCILIN ANNE BENVIN,               No. 14-72181

                                             D.C. No.
MARCILIN ANNE BENVIN,                     3:11-cr-00099-
                          Petitioner,      RCJ-WGC-1

                 v.
                                            OPINION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA,
RENO,
                      Respondent,

UNITED STATES OF AMERICA,
            Real Party in Interest.


             Petition for Writ of Mandamus
           to the United States District Court
                for the District of Nevada

                Argued and Submitted
      March 17, 2015—San Francisco, California

                  Filed June 29, 2015

 Before: Diarmuid F. O’Scannlain, Marsha S. Berzon,
          and Jay S. Bybee, Circuit Judges.

                  Per Curiam Opinion
2                          IN RE BENVIN

                           SUMMARY*


                   Criminal Law/Mandamus

    The panel granted a criminal defendant’s petition for a
writ of mandamus, and instructed the district court to reassign
the case to another district judge, in a case in which the
defendant asserted that the district court improperly
interjected itself into plea negotiations.

    The panel held that the district court’s suggestion that the
parties add a particular term to the plea agreement – i.e., that
the parties stipulate to a restitution amount of $3 million to
resolve the district court’s concerns that the alleged victims
of dismissed counts would not otherwise be entitled to
receive restitution – constituted impermissible involvement
in plea discussions. The panel held that the district court also
inappropriately involved itself in plea negotiations, in
violation of Fed. R. Crim. P. 11(c)(1), when it imposed
conditions on its approval of the government’s proposal to
dismiss counts.

    The panel concluded that the factors set forth in Bauman
v. United States District Court weigh in favor of granting
mandamus relief, and that the appearance of justice will best
be served by reassignment to a different judge.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       IN RE BENVIN                        3

                        COUNSEL

Michael J. Kennedy, Chief Assistant Federal Public
Defender, Federal Public Defender, Reno, Nevada, argued the
cause on behalf of the petitioner Marcilin Anne Benvin.

Elizabeth O. White, Appellate Chief and Assistant United
States Attorney, District of Nevada, Reno, Nevada, argued
the cause on behalf of the real party in interest the United
States. With her on the brief was Daniel G. Bogden, United
States Attorney, District of Nevada, Reno, Nevada.

No appearance for Respondent.


                        OPINION

PER CURIAM:

    We must decide whether a district court improperly
interjected itself into plea negotiations and, if it did so,
whether mandamus is the appropriate remedy in this case.

                              I

     On August 10, 2011, Marcilin Benvin was charged in a
fifty-count indictment alleging wire fraud, mail fraud,
aggravated identity theft, money laundering, embezzlement,
theft from an employee benefit plan, and false statements and
concealment of facts in employee benefit plan records. These
charges arose from the government’s investigation into
Benvin’s actions as president of Cetus Mortgage, a financial
services company which filed for bankruptcy protection while
4                          IN RE BENVIN

Benvin was president.1 Benvin entered a plea of not guilty to
the indictment.

    In due course, Benvin and the United States negotiated a
plea agreement under Fed. R. Crim. P. 11(c)(1)(A)–(B).
Under its terms, Benvin agreed to enter an unconditional
guilty plea to one count of embezzlement and theft from an
employee benefit plan (“Count 45”). Benvin further agreed
that the court could consider all relevant conduct in
determining the applicable guidelines sentencing range and
stipulated to restitution of $260,000 for the offense of
conviction. For its part, the government agreed to move to
dismiss the other forty-nine counts at sentencing and agreed
not to bring additional charges arising from the investigation.
The parties also stipulated to an eighteen-level enhancement
to Benvin’s advisory sentencing guidelines offense level.

                                  A

    On August 13, 2013, the parties appeared before the
district court for a change-of-plea hearing. During the
hearing, the district court questioned Benvin to ensure that
her unconditional guilty plea to Count 45 was knowing and
voluntary. After reviewing the terms of the plea agreement
with the prosecutor, the district court engaged in a lengthy
colloquy with counsel regarding the restitution provision in
the plea agreement, and whether it was “binding” upon the
court. Both defense counsel and the prosecutor explained that
the plea agreement itself did not bind the court regarding the


    1
    The bankruptcy proceeding resulted in entry of a $3 million non-
dischargeable judgment against Benvin and in favor of the estate, on the
ground that Benvin was personally responsible for the conduct of Cetus
Mortgage that resulted in damage to its creditors.
                        IN RE BENVIN                         5

amount of restitution, but that the restitution statute limited
the court’s ability to order restitution to the offense of
conviction. During the hearing, counsel also explained the
parties’ decision to reference the bankruptcy court’s $3
million judgment against Benvin in connection with the
criminal counts to be dismissed, and the difficulty of
determining restitution for those counts.

    The court stated that it would neither “accept the plea nor
the plea agreement” until it had reviewed the presentence
report. Defense counsel responded that, while the court could
defer a decision on the plea agreement under Rule 11(c), it
should accept the guilty plea once the requirements of Rule
11(b) were met. The court then explained that it would
“terminate the hearing and . . . not accept the plea today if
you take that position.” The court rejected defense counsel’s
contention that Benvin was seeking to enter an unconditional
guilty plea to Count 45, stating instead that Benvin’s plea was
conditional and that the plea agreement was binding on the
court as to restitution. The court then terminated the hearing.

    The next day, on August 14, 2013, the district court held
a status conference, which it opened by stating:

       The record should reflect that counsel from
       both sides appeared in chambers yesterday,
       and we discussed the potential of changing the
       plea agreement slightly so that it could go
       forward, and that is my understanding of what
       you intend to do.

       The Court required two additional steps. Since
       I did not believe that the plea to one count was
       a straightup, unconditional plea, I required
6                    IN RE BENVIN

    counsel, number one, to change the plea
    agreement to make it clear that it was binding
    on the Court at least with respect to one aspect
    of the sentencing.

    And, number two, with respect to all the other
    counts with different victims who thereby
    would be foreclosed from making statements
    at ultimate sentencing, I did require that
    before I took the plea, or concurrent with the
    plea hearing, that you noticed all potential
    victims of those other counts, actual counts, of
    the entry of a plea to one count only and the
    fact that therefore their restitution amounts
    could not, would not be included in any
    judgment of the district court. As we all know,
    that some of them are included, of course, in
    a nondischargeability judgment of the
    bankruptcy court.

    And that the Court then would be willing to
    proceed with a guilty plea colloquy, and
    based, of course, upon any appearance or
    presentation of victims of other charged
    counts.

    I’m not taking at that time their authorized
    witness statements because those statements
    are only authorized on behalf of people for
    counts to which she actually pleads guilty, but
    rather what I’m doing is I’m sampling the
    victims, if there are objections. If there are no
    objections, then I have no objection, of
    course. But if there are objections, I certainly
                         IN RE BENVIN                          7

        will hear that, by other victims on other
        counts.

        This is not to impair the U.S. Attorney’s
        prosecutorial discretion, but the Court just
        does not believe I can accept a binding plea
        agreement until I know that there’s no bigger
        dispute in the community over whether she
        should be pleading to additional counts.

        So those are the two steps I’ve asked counsel
        to comply with, in which case I’d be willing
        to go forward on a binding plea agreement.

The status conference concluded without further action.

                               B

    As the court required, the parties subsequently entered
into a revised plea agreement under Rule 11(c)(1)(A), (B),
and (C), which contained identical terms to the original
agreement, except for making the $260,000 restitution
amount binding on the court under Rule 11(c)(1)(C). The
government also notified the alleged victims of all counts in
the indictment to advise them of the upcoming change-of-plea
hearing.

                               C

   The district court held the next change-of-plea hearing on
November 4, 2013, which it began by stating: “This plea
agreement has a couple of problems, in my opinion, that I
need you to comment or help to resolve. The first and biggest
one is the binding nature of it with respect to restitution.” The
8                      IN RE BENVIN

court then heard from counsel for the bankruptcy trustee
regarding the scope of the $3 million bankruptcy judgment
against Benvin. The trustee’s counsel confirmed that any
person with a claim against the Cetus Mortgage estate would
be able to participate in any recovery against Benvin in the
bankruptcy proceedings.

    The court then suggested a revision to the terms of the
parties’ plea agreement:

       So that raises the biggest problem that I have.
       Why should I—why not stipulate to the
       restitution for the nondischargeable—the
       amount of the nondischargeable judgment?

       Here basically what we’re doing is we’re
       selecting one count of the indictment, to be
       sure, it’s your right to do that, but also we’re
       selecting one victim of that count as the
       recipient of restitution.

       The only amount that I can order restitution
       for is to that one pension fund, and so, in
       essence, I make the government the credit
       collector for that one victim. Any restitution,
       of course, would go to that one victim,
       nobody else. Under law, that’s all it could go
       to, and I don't see that that’s fair.

                            ***

       So that’s the biggest problem. I see that as
       unfair.
                        IN RE BENVIN                       9

       And number two is, under the federal criminal
       statutes victims have a right to have input at
       the sentencing phase. They have a right to file
       a statement, make a statement, and basically
       what I think we’re doing here is that we’re
       deleting the rights of all other victims to make
       such a statement and limiting it to the pension,
       the one pension fund to which we’re
       admitting the claim.

       So I think we’ve got a major problem with
       that process, and therefore I’ll let you
       persuade me that there’s not a problem first,
       please, before we go forward with the plea
       agreement, and, of course, we’ll hear anybody
       who wants to have input.

    The prosecutor subsequently confirmed that the
government had notified all alleged victims in the case, and
that the parties had revised the plea agreement to make the
restitution amount binding on the court. In addition, the
prosecutor advised the court that the parties reached their
agreement in part to avoid difficult issues of proof of loss,
and noted that the agreement provided that the court could
take all relevant conduct into account in determining the
applicable guidelines sentencing range.

    While acknowledging that it could not participate in the
parties’ plea negotiations, the court stated:

       And how do you respond to the Court’s
       suggestion—I mean, I can’t get involved, the
       Circuit has just recently reminded us, in your
       guilty pleas, but as far as fairness in accepting
10                    IN RE BENVIN

     this guilty plea agreement, I do have the right
     to ask the question I think.

     Why don’t you just simply stipulate, and
     make it binding upon me, a restitution amount
     of $3 million so that basically they all share—
     all the victims share in the restitution
     payments received by the government?

                          ***

     But, but, if you were willing to stipulate to the
     $3 million amount, whatever the amount of
     the bankruptcy court judgment is, that means
     that whatever you collect by way of restitution
     payments we could spread equally amongst
     those victims, not just to the one pension fund.

     Do you see what I’m saying?

                          ***

     Yeah, and I don’t want to get into a
     negotiating situation, the three of us. I don’t
     want to be in that position.

     I’m just saying that the problem with the
     present agreement is the restitution payments
     that go to the government who always stands
     first in line, as we all know, including our
     taxes, will only be the collector for one victim
     unless we modify the language of this
     stipulation.
                       IN RE BENVIN                       11

     After hearing from defense counsel, the court reiterated
its concerns with the parties’ proposed plea agreement, and
invited comment from any alleged victims:

       But I do want to take any input from victims
       who are alleged in any of the counts of the
       indictment, and primarily on the two
       questions, the two concerns I have about the
       plea agreement.

       One is the limitation of the restitution amount
       to just the one pension fund victim which
       means that the government, who will be
       involved in collection activities during
       supervised release time, for example, can
       collect on behalf of only that one victim, and
       the restitution payments would go only to that
       one victim.

       The other concern is the capping at 60 months
       by allowing her to plead to one count on
       which Congress has set an absolute maximum
       of five years, 60 months, limit in sentencing,
       even though the guidelines for some of the
       overall fraud counts would contemplate a 57-
       to 74-month guideline.

    After one alleged victim not named in the indictment
spoke, the court announced that it was rejecting the plea
agreement, saying:

       I can’t stop her from going forward with a
       plea of guilty to that one count, but I do
       caution you and her that I will not permit the
12                      IN RE BENVIN

       government to dismiss the other counts, even
       upon conviction, without a showing of one of
       two things, one, either consent by that victim
       listed in the indictment, or, if they’re not
       willing to consent, a showing by the
       government satisfactory to me that they would
       have difficulty proving that count of the
       indictment.

       And so I think that’s the caution that I would
       give her. She can plead guilty to one count, of
       course, but I am not going to let the
       government dismiss the other counts without
       one of those two showings.

Defense counsel objected, arguing that “authority to dismiss
counts is with the executive branch,” and that the court’s
“conditioning of their authority is contrary to law.” The court
rejected this argument and asked again whether Benvin
wanted to proceed with the guilty plea, given that the court
was rejecting the plea agreement. When defense counsel
suggested hearing from the government, the court reiterated:

       I am not going to let them enter into a plea
       agreement with the defendant on these terms.
       That’s all. That’s all we need to hear. I’m not
       going to let them say we’ll agree to part of the
       agreement. I’m not going to let them do that.

                            ***

       Okay. I do need an answer to my question.
       Without a plea agreement, do you want to
       proceed on a guilty plea to one count?
                        IN RE BENVIN                         13

After defense counsel expressed the need to discuss the
matter with his client, the court terminated the hearing and
ordered the case set for trial.

                               D

    In due course, Benvin brought this petition for a writ of
mandamus. She seeks an order directing the district court not
to condition its acceptance of the parties’ plea agreement on
the government’s obtaining consent from alleged victims
before dismissing the remaining counts. She also seeks an
order that would prevent the district court from conditioning
the United States Attorney’s dismissal of the remaining
counts in the indictment on a showing that the government
would struggle to prove Benvin’s guilt on those counts.
Finally, Benvin seeks reassignment to a different district
judge to preserve the appearance of justice. The United States
agrees that mandamus relief is appropriate under the
circumstances, and suggests that reassignment may be
necessary in light of the district court’s statements regarding
plea negotiations.

    We have jurisdiction to hear mandamus petitions pursuant
to the All Writs Act, 28 U.S.C. § 1651.

                               II

    Under Fed R. Crim. P. 11, a district court may accept or
reject the parties’ plea agreement, but Rule 11(c)(1) instructs
that “[t]he court must not participate in the[] [plea agreement]
discussions.” Fed. R. Crim. P. 11(c)(1). This rule is designed
“to keep the judge from shaping the plea bargain or
persuading the defendant to accept particular terms, and to
preserve judicial impartiality.” United States v. Frank,
14                      IN RE BENVIN

36 F.3d 898, 902 (9th Cir. 1994). Moreover, we have recently
“emphasize[d] that Rule 11(c)(1) is intended to eliminate all
judicial pressure from plea discussions.” United States v.
Kyle, 734 F.3d 956, 963 (9th Cir. 2013). “[W]hen a court
goes beyond providing reasons for rejecting the agreement
presented and comments on the hypothetical agreements it
would or would not accept, it crosses over the line established
by Rule 11 and becomes involved in the negotiations.” Id.
(internal quotation marks omitted).

                              A

    Here, the district court repeatedly suggested that the
parties stipulate to a restitution amount of $3 million to
resolve the court’s concerns that the alleged victims of the
dismissed counts would not otherwise be entitled to receive
restitution. As explained in Kyle, the court’s suggestion that
the parties add a particular term to the plea agreement
constitutes impermissible involvement in plea discussions.
Id. at 963–64.

    Further, the district court inappropriately involved itself
in negotiations when it imposed conditions on its approval of
the government’s proposal to dismiss forty-nine of the
indictment’s counts. Whether or not these conditions were
independently improper, they constituted judicial setting of
the terms in and processes for the plea agreement, and thus
violated Rule 11(c)(1)’s prohibition on judicial involvement
in plea discussions. See id. at 963.

                              B

    Having concluded that the district court erred by inserting
itself into the parties’ plea discussions, we must decide
                         IN RE BENVIN                          15

whether mandamus is the appropriate remedy. In making
such determination, we are guided by the five factors
identified in Bauman v. United States District Court,
557 F.2d 650 (1977). We consider whether: (1) petitioner has
any other adequate means of relief; (2) petitioner will be
damaged or prejudiced in a way not correctable on appeal;
(3) the district court clearly erred as a matter of law; (4) the
district court’s error is oft-repeated or manifests a persistent
disregard of the federal rules; and (5) the district court’s order
raises new and important issues. Id. at 654–55. Not all of the
factors need be met in order to grant mandamus relief. Id. at
655.

     Here, the Bauman factors weigh in favor of granting
mandamus relief. Given the district court’s refusal to accept
the parties’ plea agreement, Benvin is left with choosing
either to enter a guilty plea to Count 45 without a plea
agreement or to proceed to trial on all fifty counts. We have
repeatedly explained that these options do not provide
adequate relief and can cause prejudice not correctable on
appeal. See Vasquez-Ramirez v. U.S. Dist. Court, 443 F.3d
692, 701 (9th Cir. 2006) (quoting Ellis v. U.S. Dist. Court,
356 F.3d 1198, 1210–11 (9th Cir. 2004) (en banc)) (internal
quotation marks omitted) (holding that “going to trial” or
“pleading guilty to . . . and then appealing [a] conviction” are
“inadequate” remedies for purposes of mandamus, as they
would result in “substantial prejudice” to the defendant, the
government, and the judicial system). Therefore, Bauman’s
first two factors are met.

    Moreover, as we have already discussed, supra Part II.A,
the district court erred when it inserted itself into plea
negotiations. That error satisfies Bauman’s third factor.
Bauman, 557 F.2d at 654–55. Finally, the fourth Bauman
16                       IN RE BENVIN

factor is satisfied here. “Although the district judge’s error is
not oft repeated, it is contrary to the Federal Rules of
Criminal Procedure.” Vasquez-Ramirez, 443 F.3d at 700–01.
Therefore, as in Vasquez-Ramirez, we conclude that “a writ
of mandamus is the appropriate remedy.” Id. at 701.

                               C

    Benvin also seeks reassignment to a different district
judge. “We may remand to a different district judge if a party
can show personal biases or unusual circumstances, based on
an assessment of three factors: (1) whether on remand the
district judge can be expected to follow this court’s dictates;
(2) whether reassignment is advisable to maintain the
appearance of justice; and (3) whether reassignment risks
undue waste and duplication.” Kyle, 734 F.3d at 966–67
(internal quotation marks omitted); see also United States v.
Sears, Roebuck & Co., Inc., 785 F.2d 777, 779–80 (9th Cir.
1986) (discussing circuit court’s authority to reassign on
remand). Either of the first two Kyle factors will support
remand to a different district court judge. Kyle, 734 F.3d at
967; see Sears, 785 F.2d at 780.

    Here, the appearance of justice will best be served by
reassignment to a different judge. The current district judge
has already expressed explicit views on the appropriate terms
of the parties’ plea agreement, suggested the terms he would
and would not accept, and explained that he would not grant
any motion dismissing forty-nine counts of the indictment
unless the government complies with such terms. In such a
situation, “[w]hether or not [the district judge] would
reasonably be expected to put out of his mind the . . .
conclusions previously drawn, and without ourselves
reaching any determination as to his ability to proceed
                            IN RE BENVIN                             17

impartially, to preserve the appearance of justice, . . . we
conclude reassignment is appropriate.” Ellis, 356 F.3d at
1211.

                                   III

    The petition for a writ of mandamus is GRANTED.
Respondent shall order this case be reassigned to another
district judge in accordance with local court rules for further
proceedings consistent with this opinion.2




  2
    Petitioner’s unopposed motion to take judicial notice of the district
court’s order setting the jury trial date for August 10, 2015 is GRANTED.
