Mandamus Appropriate Remedy to Correct Violation of Fed. R. Crim. P. 11 and Rejection of Plea Agreement, Sixth Circuit Holds

In In re United States, No. 21-1318 (6th Cir. Apr. 26, 2022), the Sixth Circuit grants a writ of mandamus against a district court’s rejection of a plea bargain – and violation of Fed. R. Crim. P. 11 – based on the judge’s “longstanding practice” of rejecting plea agreements containing appeal waivers.

During a pretrial hearing on a felony gun and drug prosecution, the district court judge expressed in advance his disapproval of plea deals that “contain sentencing-appeal and collateral-review waivers (collectively, ‘appeal waivers’).” The judge stated that it was the court’s “practice over the years has not . . . to accept plea agreements that have waivers of rights to collateral review or the right to appeal a sentence determination or sentencing issue that is disputed.” The judge announced that he would not approve a plea deal containing such terms.

Nevertheless, the parties entered into a plea agreement with appeal waivers and jointly moved for its approval. Rather than accept the deal, the district court “appointed a retired United States District Judge for the Eastern District of New York to file a response [to the joint motion] as amicus curiae.” Six months after full briefing, “the court issued a written opinion denying the parties’ joint motion and rejecting the proposed plea agreement.” The government petitioned the Sixth Circuit for writ of mandamus.

The Sixth Circuit grants the writ, holding that the three conditions for mandamus were met, i.e., “(1) . . . no other adequate means of obtaining relief, (2) . . . a right to issuance that is clear and indisputable, and (3) . . . issuance of the writ is appropriate under the circumstances.”

As to (1), “[i]f we deny mandamus, the United States cannot file an interlocutory appeal under 18 U.S.C. § 3731, nor can it later file a direct appeal if Townsend pleads to the indictment, is convicted by a jury, or is acquitted after trial . . . . [W]here, as here, the normal appeals process does not suffice, mandamus is not merely a substitute [for a direct appeal]. In this case, mandamus is the only adequate means for the United States either to compel the district court to adhere to Rule 11 or to challenge the district court’s self-proclaimed ‘practice’” not to accept plea agreements with appeal waivers.

Regarding (2), the district court’s violation of Fed. R. Crim. P. 11 was “clear and undisputable.” The rule provides that “[a]n attorney for the government and the defendant’s attorney . . . may discuss and reach a plea agreement,” while “[t]he court must not participate in these discussions.” Fed. R. Crim. P. 11(c)(1). Although the district court is empowered to approve or reject a plea deal, “when a district court expresses its preference for or against certain plea-bargaining terms in an unfinalized or hypothetical plea agreement, the court impermissibly participates in plea negotiations in violation of Rule 11.” Here, the district court “left the parties with the legally insupportable impression that no defendant could waive his or her appellate rights in a plea agreement before that judge.”

Along with the Rule 11 violation, the Sixth Circuit also holds that the district court abused its discretion by rejecting the parties’ plea agreement. “In this case, we cannot ascertain any case-specific reason why the district court rejected the plea agreement. The district court’s opinion states none, and on appeal, neither the amici nor the district court point to one. For these reasons, the district court failed to articulate a ‘sound reason,’ and we conclude that it abused its discretion.” (At the same time, the panel rejects the government’s categorical position that district courts lack power to reject plea deals because they contain appeal waivers: “While it is true that the Judiciary wields significant power over criminal sentencing and has no authority over the Executive branch’s charging decisions, those separation of powers concerns are best addressed on a case-by-case basis, not with a bright-line rule.”)

Finally, as to (3), the petition presented important issues for resolution. “First, whether a judge may comment on hypothetical plea agreements that it would or would not accept under Rule 11 is an issue of first impression in this circuit. It is also the first time that we have found it to be an abuse of discretion for a district court to reject a plea agreement without citing case-specific reasons. Second, this case involves important questions regarding plea agreement procedure and judicial involvement in pleas, both of which bear on the ‘efficient administration of justice. . . .  And as stated earlier, those questions might evade review if not considered at this time.”

The panel remands the case for reconsideration of the plea agreement.

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