                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                      _____________________

                           No. 92-9074
                      _____________________

                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                             VERSUS

                       GREGORY LYNN MILES,

                                                Defendant-Appellant.

     *******************************************************

                     ______________________

                           No. 92-9091
                     ______________________


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                             VERSUS

                     GERALD JEHORAM GUSTUS,

                                                Defendant-Appellant.

      ____________________________________________________

          Appeals from the United States District Court
                for the Northern District of Texas
      _____________________________________________________
                        (December 27, 1993)

Before GOLDBERG, JOLLY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

     These appeals turn on whether the district court reversibly

erred by engaging in plea negotiations in contravention of Federal

Rule of Criminal Procedure 11(e)(1).   In asserting that it did,

Gregory Lynn Miles and Gerald Jehoram Gustus challenge their
convictions obtained through plea agreements.     We REVERSE their

convictions and VACATE their sentences.1

                                  I.

     Based upon five armed robberies over a two-month period in

late 1991, Miles and Gustus were charged with conspiracy to commit

robbery and four counts of robbery, all affecting interstate

commerce, in violation of 18 U.S.C. § 1951, and four counts of

using a firearm in committing a crime of violence, in violation of

18 U.S.C. § 924(c).   And, Gustus was charged with an additional §

924(c) count and robbery count.

     Through plea agreements, Miles pled guilty to the conspiracy

to commit robbery count, one § 924(c) count, and a charge of

possession of a firearm by a felon (violation of 18 U.S.C. §

922(g))2; Gustus, to the conspiracy count and two § 924(c) counts.

The district court, however, rejected both agreements.   Following

the discussion at issue with the district court, Miles and Gustus

entered into new agreements: Miles pled guilty to two additional §

924(c) counts; Gustus, to one additional § 924(c) count.       The

district court accepted their pleas, and imposed prison sentences

on Miles and Gustus of approximately 58 and 63 years, respectively.




1
     Miles and Gustus also challenge their sentences; but, because
we vacate them as a result of reversing the convictions, we do not
reach these issues.
2
     This charge was from a separate case.

                               - 2 -
                                 II.

     Miles and Gustus contend that their convictions should be

reversed   because   the   district     court   participated   in   plea

negotiations, in violation of Rule 11(e)(1).3       Under the original

plea agreements, Miles faced a sentence of approximately 17 years;

Gustus, approximately 40.    When the agreements were presented at

the sentencing hearing in September 1992,4 the district court, in

3
     In the briefs on appeal, only Gustus specifically raised this
issue; nevertheless, Miles did include the colloquy, quoted infra,
that gave rise to Gustus' Rule 11 contention.      Moreover, after
these appeals were consolidated sua sponte for oral argument, Miles
urged there the Rule 11 contention. Therefore, we consider the
issue raised by Miles for this appeal. In any event, see United
States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980), cert. denied,
449 U.S. 1091 (1981):

           Ordinarily we would limit each defendant's appeal
           to the issues raised in his brief.     However, we
           have discretion to suspend the Federal Rules of
           Appellate Procedure "for good cause shown," Fed. R.
           App. P. 2. Believing it anomalous to reverse some
           convictions and not others when all defendants
           suffer from the same error, we consider the
           arguments to be adopted.... This adoption does not
           prejudice the government which had the opportunity
           to fully brief all issues in response to the
           various contentions of the defendants.

(Citations omitted.) This notwithstanding, we caution counsel to
state specifically in the opening brief the issues raised on
appeal; the failure to do so will usually result in our not
considering them. Zuccarello v. Exxon Corp., 756 F.2d 402, 407-08
(5th Cir. 1985) (concluding that Fed. R. App. P. 28(a)(4) counsels
that "when an appellant raises an issue for the first time at oral
argument, the Court ordinarily will not consider it"); see also
Fed. R. App. P. 28(a)(4) ("The brief of the appellant shall contain
... the contentions of the appellant with respect to the issues
presented").
4
     Miles pled guilty before the district court on July 2, 1992;
Gustus, on July 10. It accepted both pleas, but, pursuant to Rule
11(e)(2), informed both that, after presentence reports were
prepared, it could reject the plea agreements.        A sentencing
hearing was scheduled; but, before that hearing, the court notified

                                - 3 -
addition to the indictment, had the following information, based on

stipulated    facts    and   presentence    reports:       Miles    and    Gustus

employed handguns in the robbery of five restaurants within two

months; both were on probation for aggravated robbery convictions

from prior, joint conduct (the convictions had been obtained within

two months of the first robbery at issue in this case); both had

state charges pending against them for other robberies (in some of

which they acted together); one of those other robberies in which

both participated occurred after the robberies giving rise to the

federal   offenses     (Gustus    pled   guilty    and   received    a    35-year

sentence;    charges    against   Miles    for    that   robbery    were   still

pending); and, during one of the robberies at issue in the instant

case, Gustus forced a female employee to perform oral sex on him.

     Accordingly, the following colloquy, on which appellants base

error, ensued:

                 THE COURT:     Okay. One of the things that
            none of you have touched on is the statutory
            objective of 924(c) of Title 18. And Congress told
            me by that that I shall give a 20-year sentence on
            each one above the first one.

                 I think that's one of the things -- though it
            doesn't specifically say so -- I think that is one
            of the things that should be taken into account and
            might be a determinative factor under [U.S.S.G.]
            policy statement 6B1.2.

                 I am impressed that in Title 18 [§] 924(c)
            Congress told me I shall not place on probation or
            suspend the sentence of any person convicted of a
            violation of that subsection, nor shall any term of
            imprisonment imposed under that subsection run
            concurrently with any other term of imprisonment,
            so on.


both that it had questions about the agreements.

                                    - 4 -
     I don't think Congress could have made it any
clearer to me what their intent is. Their intent
is in crimes of this kind that that person be put
in prison for five years the first time he commits
an offense -- is first convicted of one -- and for
20 years each time he is convicted of one
thereafter.   That is what Congress told me they
intended and expected of me.

     Even if we did not let that control, I'm not
satisfied that the sentences I can impose under the
plea agreements in these cases adequately reflect
the seriousness of the offenses.

     I am not sure that they would adequately
promote respect for the law, and I am not sure that
they would provide just punishment.         To the
contrary, I believe they would do none of those
things.

     I don't believe the sentences in this case
would provide adequate deterrence for the kind of
conduct these defendants engaged in. And I would
have some concern, if these defendants were to be
released from prison, even with the sentences as
long as they might be in this case, that the public
would not be protected from the possibility of
further crimes by these defendants.

     And, therefore, I am not accepting either one
of these plea agreements.

                     ...

     [UNITED STATES ATTORNEY]:      Can I ask a
question?     And I apologize,     if it is an
inappropriate question.

     THE COURT:     Yes.

     [UNITED STATES ATTORNEY]: Is there anything
short of a plea on all of the 924(c)s the court
might consider?

     THE COURT:     I think your initial comment is
correct --

     [UNITED STATES ATTORNEY]:   Thank you.

     THE COURT:     --    that    it    would be
inappropriate for me to say what I would or would
not accept.

                    - 5 -
                 I will say this:     If I was satisfied that
            these people likely would never get out of prison I
            would feel more comfortable.

                  [UNITED STATES ATTORNEY]:     And the comment
            I had, Your Honor, is simply I don't want to
            continue wasting the court's time if we were to set
            a date for a plea next Friday with additional time,
            if we are just going to be wasting the court's
            time.

                 THE COURT:   Well, it would just seem to me
            that in the Gustus case, if he had another 20 years
            to serve, and that in the Miles case, if he had
            another 40 years to serve beyond what is now
            contemplated -- or that wasn't contemplated -- that
            that could serve the objectives that I think were
            intended to be served.

     Miles and Gustus contend that, through the quoted colloquy,

the district court ran afoul of Rule 11(e)(1)'s admonition that

"[t]he court shall not participate in ... [plea negotiation]

discussions."     A district court is free, of course, to reject a

plea agreement, Fed. R. Crim. P. 11(e)(4), and may express its

reasons for doing so.       See United States v. Bean, 564 F.2d 700, 704

(5th Cir. 1977) (reviewing reasons proffered by district court for

rejecting plea agreement under abuse of discretion standard); cf.

U.S.S.G. § 6B1.2(a) (requiring that the court find, on the record,

that a plea agreement adequately reflects the seriousness of

offense conduct before accepting it). But, Rule 11(e)(1) prohibits

absolutely    a   district     court   from     "all   forms      of   judicial

participation     in   or   interference      with   the   plea    negotiation

process."    United States v. Adams, 634 F.2d 830, 835 (5th Cir.

1981); see also United States v. Corbitt, 996 F.2d 1132, 1134 (11th

Cir. 1993) (citing and quoting Adams for proposition that there is

"an absolute prohibition on all forms of judicial participation" in

                                   - 6 -
plea negotiations);      United States v. Barrett, 982 F.2d 193, 195

(6th Cir. 1992) ("Courts ... have uniformly held that [Rule 11]

means what it says:      the court shall not participate in any plea

agreement negotiations."); United States v. Bruce, 976 F.2d 552,

558 (9th Cir. 1992) ("the unambiguous mandate of Rule 11 prohibits

the participation of the judge in plea negotiations under any

circumstances:   it is a rule that ... admits of no exceptions.")

(emphasis in original).

     The reasons for the rule "admit[ting] of no exceptions",

Bruce, 976 F.2d at 555, have been iterated by this and other

circuits, but they merit brief reiteration. 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.           Adams, 634 F.2d 838-39;      see

also Barrett, 982 F.2d at 194 ("The primary reason for Rule 11 is

that a judge's participation in plea negotiation is inherently

coercive"); Bruce, 976 F.2d at 556 ("judicial involvement in plea

negotiations inevitably carries with it the high and unacceptable

risk of coercing a defendant to accept the proposed agreement").

Second, such involvement "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." Adams, 634

F.2d at 840;     see also Barrett, 982 F.2d at 195 ("a judge's

neutrality can be compromised"); Bruce, 976 F.2d at 557 ("Judicial

involvement   detracts     from   a    judge's   objectivity.").      Third,


                                      - 7 -
"judicial participation in plea discussions creates a misleading

impression of the judge's role in the proceedings.                     `As a result of

his participation, the judge is no longer a judicial officer or a

neutral arbiter. Rather, he becomes or seems to become an advocate

for the resolution he has suggested to the defendant.'"                    Adams, 634

F.2d at 841 (quoting and citing United States v. Werker, 535 F.2d

198, 203 (2d Cir.), cert. denied, 429 U.S. 926 (1976)); see also

Bruce,    976   F.2d    at   557    ("The    loss   of   judicial       integrity       is

particularly serious when ... the judge explicitly or implicitly

advocates a particular bargain.") (citation omitted).

     For    these      reasons,     Rule    11(e)(1)     draws     a    bright    line,

prohibiting judicial participation in plea negotiations.                               See

Bruce, 976 F.2d at 556 (describing Rule 11(e)(1) as a "bright-line

rule");    see also Adams, 634 F.2d at 839 (characterizing rule as

"strict" and     noting      that    it    establishes      an   "absolute       ban    on

judicial participation").            This notwithstanding, the government

presents three bases for urging that the district court's comments

do not constitute reversible error.

                                            A.

     First,     the    government     maintains      that    the       court   was     not

involved in plea negotiations.               But, 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.          After the district judge stated that "it

would be inappropriate for [him] to say what [he] would or would




                                          - 8 -
not accept", he stepped over the line and became involved in the

negotiations.

                                B.

     Next, although the government recognizes that the court "went

further than merely stating his reasons for rejecting the plea

agreement[s]", it counters that the comments did not violate Rule

11, because they were "in open court, at the time of sentencing,

after the court had reviewed the presentence report[s] and had

knowledge of all relevant facts."      Because no reported decisions

deal with such judicial participation at this time and in this

manner, the government seems to suggest that such comments are not

prohibited.     Moreover, without further support or comment, it

relies upon the following portion of the Advisory Committee's Notes

on the amendment to Rule 11 in 1974:5

               The amendment makes clear that the judge
          should not participate in plea discussions leading
          to a plea agreement. It is contemplated that the
          judge may participate in such discussions as may
          occur when the plea agreement is disclosed in open
          court.

Fed. R. Crim. Proc. 11(e)(1) Advisory Committee's Note, 1974

Amendment.

     Needless to say, a court must be free, in certain respects, to

take an "active role" once the agreement is disclosed.    See Adams,

634 F.2d at 835.      In fact, Rule 11 mandates it, to include:

"addressing the defendant personally in open court" to ensure "that

the plea is voluntary and not the result of force or threats or of

5
     Among other things, that amendment added subsection (e)(1) to
Rule 11.

                               - 9 -
promises apart from a plea agreement", Rule 11(d); inquiring "as to

whether    the    defendant's       willingness           to    plead    guilty       or   nolo

contendere results from prior discussions between the attorney for

the government and the defendant or the defendant's attorney", id.;

"making such inquiry as shall satisfy it that there is a factual

basis for the plea", Rule 11(f); and either accepting or rejecting

the plea agreement and stating the reasons for doing so, see Rule

11(e)(3).    Adams, 634 F.2d at 839 ("Rule 11 emphatically makes it

the responsibility of the trial judge to test the validity of the

bargain which          results    from     plea   negotiations:               the     judge   is

required     systematically           to     inquire           into     the      defendant's

understanding and intention, to examine the factual basis of the

plea, and to explain to the defendant the charges against him, the

maximum penalties he faces, and the rights he will waive by a plea

of guilty.")

     The commentary to the 1974 amendment merely made clear that

these     post-plea      discussions        do      not    violate        Rule      11(e)(1).

Obviously, the commentary does not trump the Rule and allow full-

blown judicial participation in crafting a new agreement once a

tendered agreement is rejected.                     To the contrary, the role a

district    court       must   play      after    a   plea      agreement        is    reached

"requires the greatest possible assurance of judicial neutrality";

therefore,       the     strict     rule     against           judicial       participation

calculated to lead to a plea agreement must remain inflexible. See

Adams, 634 F.2d at 839.




                                           - 10 -
     In sum, Rule 11 requires that a district court explore a plea

agreement once disclosed in open court; however, it does not

license discussion of a hypothetical agreement that it may prefer.

See Bruce, 976 F.2d at 556 ("Rule 11(e)(1) simply commands that the

judge not participate in, and remove him or herself from, any

discussion of a plea agreement that has not yet been agreed to by

the parties in open court.").      The district court's comments went

beyond exploring the presented agreements.

                                    C.

     Finally, the government urges harmless error, based upon Rule

11(h):   "Any variance from the procedures required by this rule

which does not affect substantial rights shall be disregarded."

Previously,     we   identified    judicial   participation   in   plea

negotiations as an error implicating a core concern of Rule 11.

Adams, 634 F.2d at 839.    As such, we might have found that a guilty

plea entered after judicial participation was reversible per se.

However, Rule 11(h) and our recent decision in United States v.

Johnson, 1 F.3d 296 (5th Cir. 1993) (en banc), compel harmless

error review.    Nevertheless, Johnson noted that "[i]t is difficult

to imagine a situation in which the trial court would neglect

entirely to mention one of what were formerly our `core concerns'

and ... not `affect substantial rights.'"       Id. at 302 n.26.

     The government does not cite, nor does our research find, one

instance in which a federal court has found judicial participation

in plea negotiations to be harmless error.      In fact, we concluded

in Adams that such participation constituted plain error under Rule


                                  - 11 -
52(b), even though the defendant did not plead guilty after that

participation.    Adams, 634 F.2d at 836.           Of course, plain error

occurs only when, inter alia, it is established that the error

affects substantial rights, which by definition forecloses finding

harmless error.   E.g., United States v. Lopez, 923 F.2d 47, 49 (5th

Cir.) (per curiam), cert. denied, 111 S. Ct. 2032 (1991).

     Moreover, the Sixth Circuit recently addressed a judicial

participation    claim   in    light    of   Rule   11(h)'s   harmless   error

requirement. It refused to look at statements made by the district

court that may have mitigated the effect of its participation,

stating:

           This court's role is not to weigh the judge's
           statements to determine whether they were so
           oppressive as to abrogate the voluntariness of the
           plea. "Rule 11 is obviously intended totally to
           eliminate   pressures   emanating  from   judicial
           involvement in the plea bargaining process...."
           Werker, 535 F.2d at 203 (emphasis added).       By
           trying to facilitate a plea bargain, the judge
           indicated that he desired an agreement; this is
           pressure enough.   [Appellant] must be allowed to
           withdraw his guilty plea.

Barrett, 982 F.2d at 196.              Indeed, the pressure inherent in

judicial participation would seem to be reason enough to reverse a

conviction when the defendant accedes to the plea suggested by the

district court.    See Barrett, 982 F.2d at 194 ("By intervening to

facilitate a plea, however, the judge communicated to the defendant

that he desired a plea.       He thereby raised the possibility, if only

in the defendant's mind, that a refusal to accept the judge's

preferred disposition would be punished.") (citations omitted);

Werker, 535 F.2d at 202 ("the defendant may ... believe himself to


                                   - 12 -
be prejudiced if he does not plead guilty in response to the

judge's proposed sentence").           Accordingly, the following review of

the government's bases for urging harmless error is necessarily

heightened by the alacrity with which this court and others have

upheld the prohibition against judicial participation in plea

negotiations.

                                         1.

       The government asserts that, insofar as Gustus is concerned,

he "benefited by the court's comments because subsequent plea

negotiations resulted in [his] pleading guilty to only one more

count ... than he had originally pled to."               This plea to one more

§ 924(c) count corresponded exactly to the court's suggestion that

another 20 years would be necessary before it would accept an

agreement.6      No     doubt,   the    court's      suggestion   dictated   this

outcome, as     "[s]tatements and suggestions by the judge are not

just one more source of information to plea negotiators; they are

indications of what the judge will accept, and one can only assume

that    they   will    quickly   become       `the   focal   point   of   further

discussions.'"    Adams, 634 F.2d at 835 (quoting Werker, 535 F.2d at

203).

       We cannot measure the harm to Gustus, because we cannot know

what agreement, if any, would have been reached absent the judicial

participation.        For example, he might have agreed to plead guilty


6
     Gustus planned to plead guilty pursuant to the second plea
agreement; but, at a hearing on October 16, 1992, he changed his
mind and pled not guilty. On October 19, the date on which trial
was to commence, he changed his mind again and pled guilty.

                                       - 13 -
to another of the robbery counts.              Under that scenario, he would

serve more time than under his initial agreement, but not incur

mandatory time as with another § 924(c) count.7             And, the court, if

presented with that option, might have accepted it.8                  We cannot

deem the error harmless so far as Gustus is concerned.

                                        2.

       As discussed supra, note 3, Miles did not raise specifically

the    Rule   11(e)(1)   issue   in    his     brief.   In    any    event,   the

government's discussion of harmless error in response to Gustus was

general; and, because we conclude that Miles raised the issue, we

will    assume   that    the   government's      harmless    error   contention

regarding Miles would track that for Gustus.

       As was the case with Gustus, Miles' second plea corresponded

exactly to the court's suggestion; he pled guilty to two additional

7
       18 U.S.C. § 924(c)(1) provides, in pertinent part:

              Whoever, during and in relation to any crime of
              violence ..., uses or carries a firearm, shall ...
              be sentenced to imprisonment for five years.... In
              the case of his second or subsequent conviction
              under this subsection, such person shall be
              sentenced to imprisonment for twenty years....

As the district court recognized, the "second or subsequent
conviction" need not be the product of a second or subsequent
judgment; if a defendant is found guilty on    separate § 924(c)
counts, each count after the first is subject to the 20-year
mandatory sentence. See Deal v. United States, ___ U.S. ___, ___,
113 S. Ct. 1993, 1995-99 (1993).
8
     Indeed, as discussed supra, a persuasive rationale for
prohibiting judicial participation in plea negotiation is the
effect such participation has on the judge's decision to reject or
accept the subsequent agreement.     "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." Adams, 634 F.2d at 840.

                                      - 14 -
§ 924(c) counts, raising his mandatory minimum by 40 years.   In the

absence of judicial participation, he might have bargained for only

one more § 924(c) count, or added another of the robbery counts

(or, perhaps more unlikely, gone to trial).     And, as was the case

with Gustus, we cannot know whether the court would have accepted

such a plea if it were presented in the absence of the court's

commitment to a particular sentence increase (40 years).

     In sum, because the error was not harmless, we reverse the

convictions and vacate the sentences; "a defendant who has pled

guilty after the judge has participated in plea discussions should

be allowed to replead".    Adams, 634 F.2d at 839; see also Corbitt,

996 F.2d at 1135 (reversing defendant's conviction obtained via a

plea agreement after judicial participation); Barrett, 982 F.2d at

196 (vacating conviction and judgment); Bruce, 976 F.2d at 559

(vacating conviction).     Under different circumstances in Adams,9

our court ruled that, upon remand, a different district judge

should be assigned, in order to "extend the prophylactic scheme

established by Rule 11".    Id. at 842-843.10




9
     In Adams, the defendant pled not guilty after judicial
participation in plea negotiations and went to trial; thus, our
court did not reverse the conviction (because no actual prejudice
could be shown).    Rather, our court remanded for resentencing
before a different judge because of the chance that judicial
participation might have infected the sentencing process. Adams,
634 F.2d at 842-43.
10
     Following this approach, other circuits have mandated that
when a sentence is vacated for judicial participation, the case
should be assigned to a different district judge. Corbitt, 996
F.2d at 1135; Barrett, 982 F.2d at 196.

                                - 15 -
                               III.

     For the foregoing reasons, the convictions of Gustus and Miles

are REVERSED; the sentences VACATED; and the cases REMANDED for

assignment to a different judge.

                      VACATED and REMANDED




                              - 16 -
