© 2015 The Texas Lawbook.
By Natalie Posgate
(May 11) – It’s a predicament many white-collar and other criminal lawyers will never have to face, but certainly would want guidance on if, God forbid, it ever happens: What if the trial court fails to record your client’s plea hearing, and how harmless is that error?
As it stands right now, it either could be like striking gold for the lawyer handling the appeal or it would make no difference, but no one knows which one it would be.
Appellate associate Jason Steed of Bell Nunnally is seeking to solve the mystery. This past week, he filed an appeal that probes the issue, which is a question of first impression for the U.S. Court of Appeals for the Fifth Circuit.
The question arose after Steed’s client, Shane Patrick Land, was indicted and pleaded guilty of one count of wire fraud in March 2014 in the U.S. District Court for the Eastern District of Texas.
Magistrate Judge Don D. Bush, who presided over the case, filled out a form from the plea hearing that indicated completion of typical checklist items of criminal proceedings – “that Land’s guilty plea was ‘voluntary, knowledgeable and that it has a basis in fact’ ” – but his court failed to record the hearing itself, the appeal says.
The hearing was a component of Rule 11 in the Federal Rules of Criminal Procedure. Rule 11 addresses the official guidelines that lawyers and judges must follow regarding pleas. Rule 11(g) requires the district court to record the hearing in which the defendant enters a plea. If there is a guilty plea or a nolo contendere plea, the record must include the inquiries and advice to the defendant – which are required by components (b) and (c) of Rule 11.
Less than a week after the hearing, Magistrate Judge Bush recommended to U.S. District Judge Richard A. Schell to accept Land’s guilty plea. Judge Schell found Land guilty of one count of wire fraud.
The presentence investigation report (PSIR) recommended that Land serve a 41-month sentence in custody and three years of unsupervised release, as well as pay nearly $1 million in restitution.
Land objected to various recommendations in the PSIR, including the restitution amount, but his lawyer did not bring up any of his objections during the Dec. 30, 2014 sentencing hearing, according to the appeal. The judge in the hearing sentenced Land in accordance with the PSIR’s guidelines.
According to the appeal, Land, “dissatisfied with his trial counsel” and “feeling he had not been adequately informed of his rights or of the possible consequences of his guilty plea,” called Bell Nunnally white-collar partner Jeff Ansley for help, who brought Steed on board to handle Land’s appeal.
Steed requested transcripts from Land’s proceedings to investigate the grounds for appeal, but the district court notified him that there was no transcript for the plea 11 hearing because it was not recorded.
Steed argues in his brief that the Fifth Circuit should automatically vacate Land’s conviction and remand the case to the district court for a new pleading because “it is impossible to discern whether the district court made the personal inquiry required by Rule 11 to establish that Land’s plea was made knowingly and voluntarily” – a big deal in the world of criminal law because the defendant is waiving important constitutional rights when he or she pleads guilty.
“The Court should hold that a district court’s failure to record the Rule 11 hearing, in violation of Rule 11(g), constitutes structural error because it renders the proceeding an unreliable vehicle for determining the defendant’s guilt,” Steed writes. “Alternatively, the Court should hold that this violation of Rule 11(g) constitutes harmful error because it deprives Land of a meaningful appeal.”
Because of that, Steed is arguing that the district court’s violation of Rule 11(g) “is not only obvious error; it’s constitutional error.”
The Obstacle
Steed said historically, any violation of Rule 11 at the district level would result in an automatic reversal at the appellate level.
But in 1983, Rule 11 was amended to add section (h), which put an end to the practice of automatically reversing judgments for any Rule 11 error, the appeal says, and determined that any violation of Rule 11 would be a harmless error unless the violation affects substantial rights.
The amendment could pose a challenge for Land’s case because, according to the brief, the Fifth Circuit decided to embrace the harmless-error standard in the 1990s. Since then, the Fifth Circuit has developed a reputation for finding harmless error in most criminal appeals.
The Fifth Circuit also has issued two unpublished decisions that involved a failure to record, but the court affirmed both convictions without reaching the question about the district court’s failure to record the hearing.
The government has filed a motion to summarily dismiss Land’s appeal and requested a 30-day extension to file a full brief if the court denies the motion.
In the motion, Assistant United States Attorney Terri Hagan argues the appeal should be dismissed because Land waived his right to appeal his conviction when he pleaded guilty.
Hagan also cited a previous Fifth Circuit decision, United States v. Palmer, which said other parts of the record may establish that a defendant knowingly and voluntarily agreed to an appeal.
“The minute entry from the plea hearing reflected that Land was informed of his rights, including his right to appeal, in addition to the changes and the range of penalties he faced,” writes Hagan, who is based in the Eastern District of Texas. “It also stated that the judge had reviewed the plea agreement and factual statement with Land, and that the government had reviewed the essential elements with him.
“Under the circumstances, the record establishes that Land’s appeal waiver was knowing and voluntary. Thus, the government urges the Court to enforce it,” she writes later.
But Steed urges a plea-hearing transcript still could have made a difference for the appeal if there had been one.
“We need the transcript to know whether there were other reasons to appeal,” he said. “Without a record, we can’t know whether everything was done correctly.”
Steed said if his client wins at the Fifth Circuit, the outcome will incentivize the district court to be more careful about ensuring formal proceedings are recorded.
“A win would tell the district courts that they really need to obey Rule 11, including the requirement to record their hearings,” he said. “If the court of appeals says the district courts can fail to record the hearing, so that defendants have no record for an appeal, then the district court could commit all kinds of error and there wouldn’t be anything anyone could do about it.”
If his client does not prevail, Steed said the case is potentially a good candidate for review by the U.S. Supreme Court, because the Fifth Circuit would be contradicting the Ninth Circuit, which is the only other federal appellate circuit to rule on the issue. The Ninth Circuit held that the government could not show that the failure to record the hearing was harmless; therefore, it was reversible error.
“It seems like potentially a big deal, so we’ll see what happens,” Steed said.
© 2015 The Texas Lawbook. Content of The Texas Lawbook is controlled and protected by specific licensing agreements with our subscribers and under federal copyright laws. Any distribution of this content without the consent of The Texas Lawbook is prohibited.
If you see any inaccuracy in any article in The Texas Lawbook, please contact us. Our goal is content that is 100% true and accurate. Thank you.