United States v. Lloyd Nickle , 816 F.3d 1230 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-30204
Plaintiff-Appellee/ 14-30229
Cross-Appellant,
D.C. No.
v. 2:13-cr-00023-
SEH-1
LLOYD NICKLE,
Defendant-Appellant/ OPINION
Cross-Appellee.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, Senior District Judge, Presiding
Argued and Submitted
October 15, 2015—Seattle, Washington
Filed March 21, 2016
Before: Alex Kozinski, William A. Fletcher
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Kozinski
2 UNITED STATES V. NICKLE
SUMMARY*
Criminal Law
The panel vacated a jury conviction and sentence for
conspiracy and possession of a controlled substance with
intent to distribute, and, on the government’s cross-appeal,
vacated the district court’s order that the defendant’s forfeited
assets be used to reimburse the court for payment to his
appointment counsel.
The panel held that the defendant should not have
received a trial and should instead have been permitted to
plead guilty. The panel explained that the judge’s stated
reason for rejecting the defendant’s guilty plea—that the
defendant’s limited admissions left no “clear record that
warrants this Court in making the kind of decision that I think
I am obligated to make”—was inapt. The panel observed that
the defendant never suggested that the government did not
have sufficient evidence for a jury to conclude that he is
guilty, and that armed with the defendant’s admission of guilt
and the government’s offer of proof, the district court had all
it needed to fulfill its duty under Fed. R. Crim. P. 11(b)(3) to
determine that there is a factual basis for the plea.
Because a new trial is possible, the panel reviewed the
defendant’s claims of error as to the trial to help guide the
parties and the district court on remand. The panel held that
the district court did not act within the area of permissible
discretion in preventing the defendant from questioning three
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. NICKLE 3
of the government’s cooperating witnesses about their plea-
agreement terms providing that the government may move for
a reduction of sentence pursuant to Fed. R. Crim. P. 35 to
reward the witnesses for any substantial assistance. The
panel explained that it is the fact that the government had not
yet made a Rule 35 motion that would give the witnesses the
greatest incentive to tailor their testimony to please the
prosecution.
The panel vacated the district court’s sua sponte order
directing that the defendant’s forfeited cash and proceeds
from the sale of his forfeited property be used to pay past and
future court-appointed counsel. Citing 18 U.S.C. § 3006A(f),
the panel explained that once the district court ordered the
defendant’s assets forfeited, it was as if the government had
title to them all along, and they were not available for
payment from or on behalf of the defendant. The panel also
held that the district court could not achieve this result by
amending the original judgment under Fed. R. Crim. P. 35(a),
where no error for which Rule 35(a) permits amendment
occurred here.
To preserve the appearance of justice, the panel remanded
to a different judge.
COUNSEL
Palmer A. Hoovestal (argued), Hoovestal Law Firm, PLLC,
Helena, Montana, for Defendant-Appellant/Cross-Appellee.
Michael S. Lahr, Assistant United States Attorney (argued),
Office of the United States Attorney, Helena, Montana,
Michael W. Cotter, United States Attorney, Zeno B. Baucus,
4 UNITED STATES V. NICKLE
Assistant United States Attorney, Office of the United States
Attorney, Billings, Montana, for Plaintiff-Appellee/Cross-
Appellant.
OPINION
KOZINSKI, Circuit Judge:
We consider whether the district court abused its
discretion by rejecting defendant’s guilty plea or by
preventing him from cross-examining cooperating witnesses
regarding the scope of their plea agreements.
FACTS
Lloyd Nickle faced two hefty charges involving at least
500 grams of a controlled substance. He agreed to plead
guilty to one count involving the greatly reduced minimum of
50 grams; in exchange, the government agreed to dismiss the
two more severe charges and make favorable sentencing
recommendations.
The district judge, however, refused to accept the plea.
During the plea colloquy, the following exchange took place:
THE COURT: [I]f I’m going to consider
accepting a plea from you to admit to this
charge, you are going to have to tell me what
happened. That is, you are going to have to
tell me what you did, and what your part in
this undertaking was, and why that activity,
whatever it may have been, would bring you
here to court today to admit to having violated
UNITED STATES V. NICKLE 5
the law in whatever way the government has
charged. If you intend to make a statement on
it, this is the time to do it.
THE DEFENDANT: Well, I admit I was in
conspiracy with other people to, uhm—with
50 grams or more of meth, to have bought it.
THE COURT: Where did this take place, Mr.
Nickle?
THE DEFENDANT: In Montana.
The district judge pressed Nickle for more details about
his involvement in the crime, stating that defendant had to
“admit enough information for [the judge] to make a
reasonable decision about [his] drug activity.” The district
judge made clear that he would reject the plea unless Nickle
gave more detailed answers. But Nickle added only that “the
conspiracies were other than Montana, in other states.” The
district judge ended the hearing, refusing to “accept a plea
from this man under these circumstances.”
At trial, the government called three cooperating
witnesses who claimed to have participated in the meth
conspiracy with Nickle. All had already pleaded guilty and
been sentenced, but each of their plea agreements contained
the following language: “Under appropriate circumstances,
the United States may move, but has not made any
commitment as part of this agreement to move, for a
reduction of sentence pursuant to Rule 35, Federal Rules of
Criminal Procedure, to reward the Defendant for any
substantial assistance the Defendant provides after
sentencing.” Defense counsel wanted to cross-examine the
6 UNITED STATES V. NICKLE
witnesses regarding the scope of their deals with the
government but the district judge would have none of it.
The jury found Nickle guilty of conspiracy and possession
with intent to distribute, and the court sentenced him to 30
years in prison. After Nickle filed his notice of appeal, the
district court ordered that his forfeited assets be used to
reimburse the court for payment to Nickle’s appointed
counsel. Nickle appeals his conviction and sentence; the
government appeals the reimbursement order.
DISCUSSION
The Plea Hearing
A district court must accept an unconditional guilty plea
so long as it meets the requirements of Federal Rule of
Criminal Procedure 11(b). In re Vasquez-Ramirez, 443 F.3d
692, 695–96 (9th Cir. 2006). To comply with Rule 11(b), the
court must determine that the plea is knowing, voluntary and
intelligent, and has a factual basis. See Fed. R. Crim. P.
11(b); see also Vasquez-Ramirez, 443 F.3d at 695 & n.4. The
factual-basis requirement “ensure[s] that the defendant is not
mistaken about whether the conduct he admits to satisfies the
elements of the offense charged.” United States v. Mancinas-
Flores, 588 F.3d 677, 682 (9th Cir. 2009) (as amended). A
district court’s discretion in this area is limited. It can only
reject a plea for lack of a factual basis if the defendant
“denie[s] committing a specific element of the offense or
protest[s] his innocence even after demonstrating that he
underst[ands] the charge.” Id. at 685.
Nickle never denied committing an element of the
offense, nor did he protest his innocence. If the judge had
UNITED STATES V. NICKLE 7
doubts about whether Nickle understood the charge or was
disputing guilt, that would have been a proper basis for
rejecting the plea. But the judge would then have been
required to disclose those as his reasons. See id.The judge’s stated reason for rejecting the plea—that
Nickle’s limited admissions left no “clear record that
warrants this Court in making the kind of decision that I think
I am obliged to make”—was inapt. There is no requirement
in Rule 11(b) that the defendant himself give an in-depth
account of his crime or confirm that everything in the
government’s offer of proof is true. Although Nickle claimed
“some of the things that the witnesses say [in the
government’s offer of proof] are untrue,” he never suggested
that the government did not have “sufficient evidence for a
jury to conclude that he is guilty.” United States v. Webb,
433 F.2d 400, 403 (1st Cir. 1970). Armed with the
defendant’s admission of guilt and the government’s offer of
proof, the district court had all it needed to fulfill its duty
under Rule 11(b)(3), which is to “determine that there is a
factual basis for the plea.” Fed. R. Crim. P. 11(b)(3); see
United States v. Alvarado-Arriola, 742 F.2d 1143, 1144 (9th
Cir. 1984). Once the court identifies facts supporting the
plea, it must accept a tendered guilty plea that otherwise
satisfies Rule 11(b). Vasquez-Ramirez, 443 F.3d at 695–96,
700. Nickle “should not have received a trial at all and
instead been permitted to plead guilty.” United States v. Rea-
Beltran, 457 F.3d 695, 703 (7th Cir. 2006).1
1
The district judge gave Nickle a second opportunity to plead guilty, but
gave no indication he would reconsider the terms on which he would
accept the plea. Nickle thus cannot be faulted for failing to take this
opportunity, as the government argues.
8 UNITED STATES V. NICKLE
The district court’s error made Nickle significantly worse
off: He was convicted of two offenses that carried
substantially higher maximum sentences than the single
offense to which he was ready to plead guilty.2 Under these
circumstances, “the verdict resulting from the jury trial
cannot stand.” Id. We therefore vacate Nickle’s convictions
and remand so that he may plead guilty pursuant to the terms
of his original plea agreement. See id.Trial Errors
Although the district court must give Nickle the
opportunity to plead guilty under the terms of his original
plea agreement, that doesn’t mean he is required to so plead.
Nickle could choose to hold out for a better deal or to go to
trial anew.3 Because a new trial is possible, we review
2
Nickle would have pleaded guilty to participating in a conspiracy
involving at least 50 grams, which carried a statutory sentencing range of
5 to 40 years. 21 U.S.C. § 841(b)(1)(B)(viii); see id. § 846. The jury
convicted him of two counts (possession and conspiracy) and found that
each offense involved at least 500 grams. The statutory sentencing range
for that amount is 10 years to life. Id. § 841(b)(1)(A)(viii).
3
We have found authority suggesting that a defendant in Nickle’s
circumstances should not have the option of a new trial. Rather, he should
be forced to choose between accepting the original plea offer or accepting
the result of the trial where he was properly convicted. In United States
v. Maddox, which also involved the erroneous rejection of a guilty plea,
the D.C. Circuit ordered the district court to vacate the jury verdicts
“[u]pon satisfactory completion of plea proceedings.” 48 F.3d 555, 561
(D.C. Cir. 1995); see also Lafler v. Cooper, 132 S. Ct. 1376, 1389 (2013)
(noting that the proper remedy when ineffective assistance of counsel
leads a defendant to reject a plea offer “may be to require the prosecution
to reoffer the plea proposal,” after which the judge may “accept the plea
or leave the conviction undisturbed”). And Mancinas-Flores, though
more vague about the precise remedy it was ordering, noted that it was
UNITED STATES V. NICKLE 9
Nickle’s claims of error as to the first trial to help guide the
parties and the district court on remand.
Nickle argues that the district court violated his
confrontation right by preventing him from questioning three
of the government’s cooperating witnesses about the Rule 35
terms of their plea agreements. When Nickle’s counsel tried
to do so with the first of these witnesses, the district judge sua
sponte interjected, “[W]e’re not going to get into introduction
of the plea agreement in this proceeding . . . . There’s no Rule
35 that’s been filed.” Addressing the jury, he added that Rule
35 was “irrelevant to the issues in this case at this time.” The
second witness denied knowing what a Rule 35 motion was
and claimed she wasn’t sure what her plea agreement said.
And when defense counsel tried to question the third witness
about his plea agreement, the district judge again intervened:
“We’re not going to go into the content of the plea agreement
in this trial. There is no Rule 35 motion before the Court.”
The Confrontation Clause guarantees criminal defendants
the right to cross-examine government witnesses regarding
their “biases and motivations to lie.” United States v. Larson,
495 F.3d 1094, 1102 (9th Cir. 2007) (en banc); see also Davis
v. Alaska, 415 U.S. 308, 318 (1974). But “trial judges retain
wide latitude insofar as the Confrontation Clause is concerned
to impose reasonable limits on such cross-examination.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). When,
following the procedure utilized in Maddox. Mancinas-Flores, 588 F.3d
at 686. But Nickle asked us to “reverse [his] conviction and remand so as
to place Nickle in the position that he was in prior to the termination of the
change of plea proceedings.” The government did not contest Nickle’s
proposed remedy and has therefore waived the argument. For this reason,
we leave to another day the question of the proper remedy for a court’s
erroneous rejection of a plea.
10 UNITED STATES V. NICKLE
as here, a trial judge allows some inquiry into “the biases and
motivations to lie of the Government’s cooperating
witnesses” but limits the scope of that inquiry, we review the
defendant’s claims for abuse of discretion. Larson, 495 F.3d
at 1102. We consider three questions: (1) whether the district
court excluded relevant evidence; (2) whether “there were
other legitimate interests outweighing the defendant’s interest
in presenting the evidence”; and (3) whether the jury had
“sufficient information to assess the credibility of [each]
witness.” Id. at 1102–03.
As the government concedes, the excluded testimony was
unquestionably relevant.4 Rule 35 provides that “[u]pon the
government’s motion . . . the court may reduce a sentence if
the defendant, after sentencing, provided substantial
assistance in investigating or prosecuting another person.”
Fed. R. Crim. P. 35(b)(1). Each plea agreement roughly
tracked the language of Rule 35, but also suggested the
government might move for a Rule 35 reduction “[u]nder
appropriate circumstances” and characterized Rule 35
motions as “reward[s]” for cooperation. As this language
suggests an exchange between the witnesses and the
government, Nickle had a right to ask whether any of the
witnesses had a particular understanding of the terms of such
an exchange.
4
While Larson instructs us to “review the limitation on the cross-
examination of each witness separately,” 495 F.3d at 1103, the limitation
here was the same as to all three witnesses: The district court precluded
defense counsel from questioning them in detail about the Rule 35
provisions in their plea agreements. Accordingly, the answers to the first
two questions are the same for each witness.
UNITED STATES V. NICKLE 11
Our law is clear: “Where a plea agreement allows for
some benefit or detriment to flow to a witness as a result of
his testimony, the defendant must be permitted to cross
examine the witness sufficiently to make clear to the jury
what benefit or detriment will flow, and what will trigger the
benefit or detriment.” United States v. Schoneberg, 396 F.3d
1036, 1042 (9th Cir. 2005) (as amended). The district court
had it precisely backwards: It is the fact that the government
had not yet made a Rule 35 motion that would give the
witnesses the greatest incentive to tailor their testimony to
please the prosecution.
In Schoneberg, we held that the district court abused its
discretion by preventing the defendant from cross-examining
the government’s key witness regarding the Rule 35 term of
his plea agreement. Id. at 1042–43. As in Schoneberg, the
witnesses here may have been hoping to “trigger” a
benefit—specifically, the “reward” of a Rule 35 motion by
the government. Because it was entirely up to the
government to determine, after the witnesses testified,
whether they had earned that benefit by providing
“substantial assistance,” they had a strong incentive to testify
in a way that would please the government. See id. at 1043.
The witnesses could reasonably believe that the more
incriminating their testimony against Nickle, the more likely
it would be that they would be rewarded with a Rule 35
motion. See Larson, 495 F.3d at 1107 & n.14. Certainly, a
juror might believe that the lure of that reward would color
the witnesses’ testimony.
Nor did the district judge articulate a reason that could
have outweighed Nickle’s interest in cross-examining the
witnesses about their plea deals, such as precluding
“repetitive and unduly harassing interrogation.” Schoneberg,
12 UNITED STATES V. NICKLE
396 F.3d at 1042. Instead, the district judge determined that
the witnesses “had no promise of a Rule 35, and no
expectation of such, and there is no justification in this record
for attempting to go into a legal matter that is . . . dependent
upon a motion that has not been filed, and . . . dependent
upon action of this Court.” But, as explained above, it is
precisely the hope that the government will file a Rule 35
motion that may motivate a witness to tailor his testimony to
serve the government’s purposes. Indeed, the incentive is far
stronger when the government has not filed a Rule 35 motion
than if it has.
In Larson, the same district judge who presided over
Nickle’s case had prevented defense counsel from asking
cooperating witnesses what mandatory minimums they faced
absent their testimony against the defendants. 495 F.3d at
1096, 1102–04. He reasoned that “all matters related to
sentencing are the decision of the court and the court only.”
Id. at 1104. We explained that this statement was inaccurate
because the government had the discretion to move to reduce
the witnesses’ sentences if it was pleased with their
testimony. Id. at 1104–05. “[T]he fact that [the witnesses]
had not yet been sentenced” was “of no consequence”
because their sentences were subject to “the Government’s
evaluation of the quality and significance of [their] testimony
at . . . trial and its subsequent recommendation . . . regarding
a sentence reduction.” Id. at 1107 n.14. Undaunted by
Larson, the district judge this time didn’t merely shut down
defense counsel’s valid efforts to vindicate his client’s right
to confrontation, he threatened sanctions: “Your effort to
inject this issue into the case is . . . entirely inappropriate,
borders on being reprehensible, and I am cautioning you not
to repeat it in this courtroom again.” It was the district judge,
not defense counsel, who was out of line in making such a
UNITED STATES V. NICKLE 13
heavy-handed threat against an advocate seeking to serve his
client zealously and ethically.
The limitations on cross-examination did not leave the
jury “with sufficient information to assess the credibility of
[each] witness.” Id. at 1103. The first witness testified as to
his crude understanding of Rule 35 (“People get a reduction
in their sentence for testifying”) and admitted that, while the
government had made no promises, he “hope[d] that
anything,” including a Rule 35 motion, would reduce his
sentence. This witness also mentioned that he “would like to
get out sometime before” his two young children were
“grown and old.” Cf. Larson, 495 F.3d at 1109–10 (Graber,
J., concurring in part and specially concurring in part) (noting
that a jury’s awareness that an incarcerated witness has
children helps it assess that witness’s credibility). Left alone,
this may have been sufficient impeachment. But the district
judge’s “emphatic admonition[],” Schoneberg, 396 F.3d at
1043, that Rule 35 was “irrelevant to the issues in this case”
fatally undermined the inference defense counsel was seeking
to present.
The second witness testified on direct that she wasn’t
promised a sentence reduction. She added on cross that she
hadn’t heard of Rule 35, that she wasn’t sure what her plea
agreement said and that she was only testifying “to tell the
truth about what happened.” Had defense counsel had the
opportunity to cross-examine her regarding the Rule 35 term
in her plea agreement, he could have shown that she stood to
benefit by testifying against Nickle and he might have led the
jury to question her claims that she knew nothing about a key
14 UNITED STATES V. NICKLE
term in a document she had signed.5 As with the first
witness, the jury was left with insufficient information with
which to assess the second’s credibility.
The third witness testified on cross that his plea
agreement contained a Rule 35 provision “just stating what
the rule was” and added that he had no expectation or hope of
Rule 35 treatment. In fact, his plea agreement—like that of
the other two—did more than just state the rule; it added that
“[u]nder appropriate circumstances,” the government might
make a Rule 35 motion as a “reward” for cooperation.
Defense counsel should have been allowed to chip away at
this witness’s credibility by exposing an inconsistency
between what he testified about his plea agreement and what
it actually said. Instead, the jury only heard this witness
testify that he wasn’t even hoping to receive Rule 35
treatment and that “[t]he only thing I was told is if I lied
today, I’d get five more years on my sentence.” Those
statements, combined with the judge’s earlier comment in the
presence of the jury that Rule 35 was irrelevant and the
reminder that there was “no Rule 35 motion before the
Court,” disabled defense counsel from effectively calling this
witness’s credibility into question.
The district judge’s rulings were not “within the area of
permissible discretion” with respect to any of the above
witnesses. Schoneberg, 396 F.3d at 1043. In the typical case,
5
Although defense counsel did not press the second witness on Rule 35
or seek to refresh her recollection with her plea agreement, the district
judge had already forcefully rejected counsel’s efforts to do the same with
the first witness. “[I]n light of the district court’s clear ruling,” Nickle did
not forfeit his Confrontation Clause claim with respect to the second
witness. Larson, 495 F.3d at 1104 n.8.
UNITED STATES V. NICKLE 15
we would next ask whether the jury verdict could
nevertheless stand because the trial errors were harmless
beyond a reasonable doubt. See Larson, 495 F.3d at 1107.
That would be a close call here, as the witnesses all gave
highly incriminating testimony that tied Nickle to various
drug deals. But, because we vacate Nickle’s conviction on
other grounds, we need not conduct a harmlessness analysis.6
The Government’s Cross-Appeal
The original judgment ordered Nickle to forfeit cash and
property that the government had seized from him. After
Nickle moved the court to appoint counsel on appeal, the
district judge issued a sua sponte order directing that Nickle’s
forfeited cash and proceeds from the sale of Nickle’s forfeited
property “be held and disbursed as appropriate in
reimbursement of” the costs of Nickle’s past and future court-
appointed representation. We address the government’s
challenge to this order in case the issue arises again on
remand. See United States v. Mancuso, 718 F.3d 780, 796
(9th Cir. 2013).
The Criminal Justice Act (CJA) requires the government
to provide funds for the representation of indigent federal
criminal defendants. 18 U.S.C. § 3006A(a), (i). Whenever
a district court “finds that funds are available for payment
from or on behalf of a person furnished representation, it may
6
Nickle appeals his sentence, but that sentence may well be significantly
different on remand. Thus, although we have in the past addressed a
defendant’s claims of sentencing error despite vacating his conviction “in
case the same issues arise on remand,” United States v. Mancuso,
718 F.3d 780, 796 (9th Cir. 2013), we decline to do so here. See
Mancinas-Flores, 588 F.3d at 679.
16 UNITED STATES V. NICKLE
authorize or direct that such funds be paid . . . as a
reimbursement” for CJA-related spending. Id. § 3006A(f).
The question is whether the forfeited assets were “available
. . . from or on behalf of” Nickle, the person furnished
representation.
A defendant must forfeit, upon conviction, all property
constituting or derived from the proceeds of federal drug
crimes. 21 U.S.C. § 853(a); see also United States v.
Monsanto, 491 U.S. 600, 607–08, 612 (1989). Moreover,
“[a]ll right, title, and interest in [forfeited] property . . . vests
in the United States upon the commission of the act giving
rise to forfeiture.” 21 U.S.C. § 853(c); see also Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617, 627
(1989) (explaining that Ҥ 853(c) reflects the application of
the long-recognized and lawful practice of vesting title to any
forfeitable assets, in the United States, at the time of the
criminal act giving rise to forfeiture”). Thus, once the district
court ordered Nickle’s assets forfeited, it was as if the
government had title to them all along. Because the assets
belonged to the government, they were not “available for
payment from or on behalf of” Nickle. 18 U.S.C. § 3006A(f).
Additionally, federal law requires that “all amounts from
the forfeiture of property under any law enforced or
administered by the Department of Justice” be deposited,
28 U.S.C. § 524(c)(4)(A), in a special fund used for various
law enforcement purposes, see id. § 524(c)(1). That fund is
entirely separate from the money “appropriated to the United
States courts . . . to carry out the provisions of” the CJA.
18 U.S.C. § 3006A(i). The district court had no authority to
redirect money earmarked for the Justice Department’s fund.
UNITED STATES V. NICKLE 17
Nor could the district judge achieve such a result by
amending the original judgment under Federal Rule of
Criminal Procedure 35(a), as he attempted to do at the same
time he filed the sua sponte order. The amended judgment
added a note that “[t]he defendant shall pay . . . [a]ll
previously expended and future fees and costs of CJA
representation from forfeited assets.” Rule 35(a) provides
that, “[w]ithin 14 days after sentencing, the court may correct
a sentence that resulted from arithmetical, technical, or other
clear error.” Fed. R. Crim. P. 35(a). Because no such error
occurred here, the district court could not amend the
judgment to correct it. See United States v. Bennett, 423 F.3d
271, 277 (3d Cir. 2005); see also United States v. Ceballos,
671 F.3d 852, 854 (9th Cir. 2011) (per curiam).
Reassignment
On remand, the court may have to re-sentence Nickle,
whether following a guilty plea or retrial. The judge who
presided over Nickle’s first trial has seen a jury convict him
of two offenses that are not part of the plea agreement. More
critically, in determining Nickle’s original sentence, the
district judge relied in part on the testimony of witnesses
whom he prevented Nickle from effectively cross-examining.
We find it unlikely that the district judge would be able to put
out of his mind his already-developed notions about what
Nickle’s punishment should be. Therefore, “to preserve the
appearance of justice,” we remand to a different judge. See
United States v. Hernandez-Meza, 720 F.3d 760, 769–70 (9th
Cir. 2013); see also United States v. Rivera, 682 F.3d 1223,
1237 (9th Cir. 2012).
VACATED and REMANDED.