The first indictment in a federal prosecution is rarely the last indictment.  Often, it charges a count that permits a lesser sentence so that the government can cut a plea and use the threat of a superseding indictment as the big stick to beat the defendant into submission.  But sometimes, the original indictment isn’t undercharged on purpose, but because an AUSA blew it.  What happens then?

That’s the ball game, according to Judge Alex Kozinski, writing for a unanimous panel of the 9th Circuit Court of Appeals in Garcia-Aguilar v. U.S., on a writ of mandamus.

These consolidated cases show again why the ten most terrifying words in the English language may be, “I’m from the government and I’m here to help you.” Defendants pled guilty to re-entering the country illegally after having been previously removed, in violation of 8 U.S.C. § 1326. Their guilty pleas were taken by magistrate judges, who conducted the plea colloquies required by Rule 11(b) of the Federal Rules of Criminal Procedure, and who thereafter recommended that the district court accept the pleas.

When the cases came before the district court for acceptance of the pleas, the U.S. Attorney objected on the ground that the magistrate judges had erred in conducting the Rule 11(b) colloquies. The district judges agreed and refused to accept any of the defendants’ guilty pleas.

Well that’s not supposed to happen.  The difference, you see, is 18 years, as the original indictment omitted a charge that the defendant had been previously removed from the country for conviction of a prior felony.  the maximum sentence without this detail was two years versus 20.

The issue with the Magistrate Judge’s Rule 11(b) colloquy was that they told the defendants that, under the statute, they faced a maximum punishment of imprisonment for 20 years.  The government argues that they should have said 2 years, which would have alerted the drowsy AUSA of his screw-up.  But Rule 11(b) doesn’t exist for the benefit of the government.  It’s there for the defendant.

Rule 11(b) is there for the defendant’s benefit, so it seems quite noble at first for the U.S. Attorney to stick up for defendants’ rights. But this generosity comes at a steep price: The U.S. Attorney has already arraigned defendants on superseding indictments that specifically charge a violation of 8 U.S.C. § 1326(b)(2), which is punishable by twenty years in prison. This is eighteen years more than the two-year maximum sentence available under defendants’ original indictments, which did not charge any conduct that could increase the maximum penalty above two years.

You’ve got to admit, Judge Kozinski is a hoot.  If all circuit decisions were this much fun, lawyers might actually read them.

Criminal defense lawyers have a tendency to think that AUSAs never make mistakes, and if there’s something beneficial staring us in the face, we suspect there’s some trick attached that we haven’t caught onto.  Yet.  But try to enjoy the benefit and the government will smack you so hard it will make your head spin.  Often, this is the case.  But as this case shows, mistakes not only happen, but can happen in a big way.

What is surprising is that the 9th Circuit did not react as so many of us would expect, finding some loophole to let the government back into the game.  We see small errors constantly, but experience shows that any effort to capitalize on it is a dangerous game.  Most courts just ignore minor gaps and improprieties by the government as if they didn’t exist, and look askance at the defendant’s argument that he is entitled to rely on the law.  That’s when they toss out the old “hypertechnical” lingo to show us that we won’t get away easy.

Indeed, here the District Judge did exactly that, rejecting the Magistrate Judge’s plea and letting the prosecution off the hook.  Had it ended there, it meant an 18 year difference for the defendants.  But they took it to the Circuit, and the Circuit put its foot down:

But whatever legal significance may attach to a guilty plea taken by a magistrate judge, the plea also carries significant real-world consequences. A defendant’s guilty plea is a confession, freely and publicly made, that he is a criminal. This has immediate and enduring effects on the defendant’s standing in the community, and for that reason and many others is often an excruciating experience.

The defendants took the plea, and the government’s chance to up the ante was over.  This quote from the decision is of particular interest.  A guilty plea isn’t merely some technical mechanism, used to shift the proceedings from start to finish.  It’s a confession to the world that the defendant is a criminal.  Once said, it can never (in real-world terms) be unsaid. 

Having extracted that confession from the defendant, the integrity of the law demands that the deal is done and the government doesn’t get a mulligan.