Archive | Rule 11

Wednesday, November 22nd, 2017

Second Circuit Enforces Rule 11

Yesterday the Second Circuit vacated a conviction because a Northern District court violated the requirements of Rule 11 concerning the acceptance of a guilty plea. The summary order in United States v. Coffin (Walker, Raggi, Hall) is available here.

Mr. Coffin agreed to plead guilty to one count of possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) . “Rule 11 requires that the district court, before accepting a plea of guilty, ‘determine that the defendant understands . . . the nature of each charge to which the defendant is pleading.'” Slip op. at 3-4 (quoting Fed. R. Crim. P. 11(b)(1)(G)). The district court, however, did not adduce any facts that would establish such an understanding. Instead, it simply said that the plea agreement contained facts that would support his guilty plea, and asked Mr. Coffin whether those facts were true.…

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Categories: 924(c), Rule 11

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Categories: 924(c), Rule 11

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Wednesday, August 3rd, 2016

Court reporter’s inability to provide a complete transcript of the guilty plea allocution does not, in itself, warrant vacating a guilty plea.

United States v. Jiamez-Dolores, et al., No. 14-1840(L), 14-1842 (CON) (Circuit Judges:  Hall, Lynch, Chin).

In addition to today’s decision in Elvin Hill, the Circuit also issued this Opinion in United States v. Jiamez-Dolores, et al.

Incomplete transcript of the guilty plea.   Here, only a partial transcript of the Rule 11 colloquy was produced by the court reporter. “Both the government and the defendant agree[d] that a considerable portion of the transcript of the Rule 11 proceedings is unavailable despite their diligent efforts to locate it.” Op. at 3. Missing from the transcript were the parts of the Rule 11 proceeding that would have concerned inquiries about the defendant’s competence, his knowing waiver of various trial and constitutional rights, and his understanding of the nature of  the charges.

The defendant argued that “the absence of a complete transcript makes it impossible for this Court to determine whether …


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Categories: plea allocution, Rule 10(c), Rule 11

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Monday, May 23rd, 2016

Remand for resentencing to consider the difference between substantive conspiracy liability and the scope of relevant conduct for guidelines purposes; Remand for resentencing under § 3582(c)(2)

The Second Circuit issued four summary orders in criminal cases today.

United States v. Rigo, 15-1914, remanded the case for resentencing. The Second Circuit held that the district court committed plain error in calculating the loss amount for the purposes of determining the guideline range. The Circuit explained that “the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy.” Order at 2. The “emphasis in substantive conspiracy liability is the scope of the entire conspiracy” but the guidelines are concerned with “the scope of the individual defendant’s undertaking.” Id. (emphasis in original). In other words, even if the acts of co-conspirators were foreseeable to the defendant, they do not constitute relevant conduct for guidelines purposes if they were “not within the scope of the defendant’s agreement.” Id. at 3. …


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Categories: 3582(c)(2), conspiracy, relevant conduct, Rule 11, sentencing findings

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Thursday, April 21st, 2016

Second Circuit “Disturb[ed] That District Courts Do Not Routinely Follow” Rule 11

rule 11 meme

Today in United States v. Pattee, the Second Circuit (Calabresi, Lynch, Lohier, CJJ.) found it “disturbing that district courts do not routinely follow the minimal procedures put in place to protect defendants’ rights.”

In accepting a guilty plea to producing, distributing and possessing child pornography, the district court (Geraci, Ch.J.) failed to advise the defendant of “five of the approximately fifteen rights” listed in Federal Rule of Criminal Procedure 11.  The Circuit found this troubling, as the “Court has stated time and again that [w]e have adopted a standard of strict adherence to Rule 11” and that “compliance with Rule 11 is not a difficult task” because “errors can be avoided if a district or magistrate judge has a standard script for accepting guilty pleas. . . .  Yet failures to meet those requirements are a recurring issue.”  The Court further cautioned that “even strict adherence to Rule 11 …


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Categories: child pornography, ineffective assistance of counsel, Rule 11

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Monday, March 7th, 2016

Sentence Imposing Imprisonment is Final Even if the Amount of Restitution is Undetermined; Pro Se Litigant’s Third 2255 Motion Deemed Successive Petition

The Second Circuit issued two opinions today.

UNITED STATES v. TULSIRAM, No. 14-2483 (2d Cir. March 7, 2016)(Cabranes, Parker, and Lynch).

The Circuit addresses two issues in this case: the first concerns its jurisdiction to review a judgment of conviction that imposes a sentence of imprisonment and restitution but leaves the restitution undetermined; the second, whether the district court’s failure to advise the defendant about mandatory restitution, during the plea allocution, is plain error warranting vacutur of the defendant’s guilty plea.

The Circuit holds (1) that a judgment of conviction imposing both a sentence of imprisonment and restitution, but that leaves the amount of restitution for a later determination — and one that here, never happens — is nevertheless “final” under 28 U.S.C. § 1291, and the Circuit therefore has jurisdiction to review the judgment; and (2) that a district court’s failure to advise the defendant of mandatory restitution …

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Sunday, February 12th, 2012

Five and Time

United Sates v. Culbertson, 10-1766-cr (2d Cir. February 3, 2012) (Hall, Lynch, Lohier, CJJ)

Defendant Culbertson was arrested during an investigation into the importation of heroin and cocaine into the United States from Trinidad, after his girlfriend was arrested at the airport. He was charged with offenses that, based on the drug type and quantity alleged – 100 grams or more of heroin and five kilograms or more of cocaine – carried a ten-year mandatory minimum.

Culbertson was a difficult guy – he went through so many appointed attorneys that the district court finally forced him to go pro se- and consistently disputed the quantity of drugs attributable to him. At his plea, Culbertson insisted that the offense involved only “three kilos” of cocaine – that is what he said his girlfriend had been recruited to import, even though she in fact had more than five in her luggage – …


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Thursday, March 10th, 2011

Peter Paul and Money

United States v. Paul, No. 09-3191-cr (2d Cir. March 7, 2011) (Cabranes, Chin, CJJ, Crotty, DJ)

Defendant Peter Paul pled guilty to securities fraud, in connection with a stock manipulation scheme that permitted him to fraudulently obtain multi-million dollar margin loans, which he never repaid, from two brokerage houses. The district court sentenced Paul principally to 120 months’ imprisonment and more than $11.4 in restitution.

He raised three main claims on appeal, all without success.

At a pretrial conference, the district judge remarked that he had a reputation for giving a Guideline sentence after trial but for being lenient with defendants who pled guilty. The judge also remarked that the twenty-five months Paul spent fighting extradition in Brazil – he apparently fled there as his scheme was unraveling – would not be credited if he did not plead guilty. On appeal, Paul claimed that these remarks violated Fed.R.Cr.P. 11(c)(1), which …


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Categories: restitution, Rule 11, speedy sentencing, Uncategorized

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Saturday, June 14th, 2008

Breach Blanket Bingo

United States v. Bell, No. 07-0715-cr (2d Cir. June 10, 2008) (Jacobs, Calabresi, Sack, CJJ) (per curiam)

In this case, the circuit had to sift through competing claims as to which party breached the plea agreement.

Defendants Brumer and Klein pled guilty to various offenses relating to healthcare fraud. Their agreements with the government stipulated to a loss amount, and specified that neither party would seek a departure or adjustment other than those contained in the agreement. Based on the proof at a related trial, however, the government offered to amend the agreement and reduce the loss amount. The defendants rejected this offer, and instead sought a Fatico hearing, after which the court held them accountable for a significantly lower loss amount. In exchange, the government sought adjustments for mass marketing and vulnerable victims that were not part of the plea agreement.

So who breached first? The defendants. According to …


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Categories: breach, right to counsel, Rule 11, Uncategorized

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Friday, October 26th, 2007

“Might” Makes Right

United States v. Zhang, No. 05-6662-pr (2d Cir. October 23, 2007) (Winter, Cabranes, CJJ, Korman, DJ)

During a plea allocution, advising a defendant that he might be deported was good enough, even though ICE believed that deportation was mandatory.

Zhang, a chemist, manufactured and sold an illegal bodybuilding supplement, DNP. One of his customers died after taking Zhang’s concoction, while another was in a coma for ten days. Zhang ultimately pled guilty to one count of mail fraud. During the plea allocution, the prosecutor stated that Zhang was subject to “possible” deportation as a result of the plea. The magistrate judge echoed this, saying that the plea “could” result in his deportation. Similar equivocal statements about the possibility of deportation were made by the prosecutor and district judge at Zhang’s sentencing.

Once sentenced, however, Zhang was served a notice by ICE indicating that he faced mandatory deportation as a result …


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