United States v. Daniel Parker ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0665n.06
Case No. 19-3909
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 19, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE
DANIEL PARKER, ) NORTHERN DISTRICT OF
) OHIO
Defendant-Appellant. )
)
BEFORE: SILER, DAUGHTREY, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Daniel Parker asks this court to overturn his
convictions for sexual exploitation of children and receipt and distribution of child
pornography. His first two claims center on the argument that the trial court
inappropriately participated in his plea-bargaining process and harbored a negative
disposition toward him. His second two claims concern the delay in providing
contraband images to the jury deliberation room and the decision to resume
deliberations with the full set of evidence provided. Because he does not state any
claim that warrants reversal, we AFFIRM the trial court in full.
No. 19-3909, United States v. Parker
I.
Daniel Parker and Candis Wynn together made child pornography using
Wynn’s daughter, a three-year old. Parker gave Wynn explicit text-message
instructions on how to molest her daughter on film. And Wynn complied by sending
pictures and videos to Parker’s phone, which Parker continued to encourage and
request.
Before trial, Parker and the government were negotiating a plea agreement.
When the parties provided the district court with a copy of the proposed agreement,
the court said that it likely would not accept the plea because it was “wildly
inconsistent” with the sentence in another child pornography case. (R. 74, Final
Pretrial Trans., PageID 832–46.) The court recessed, and the government offered
Parker a different, less favorable plea. Parker consulted with his attorney and did
not accept the new plea deal.
Parker’s defense was that there was insufficient evidence that he was the user
of the phone receiving the messages, videos, and images. And he objected to admitting
the messages, videos, and images because he claimed that the government had not
tied Parker to the phone. But the government presented evidence connecting Parker
with the phone, including recorded conversations between Wynn and Parker while
Parker was using the phone number and a later search in which officers seized the
phone with that number from Parker. Police also found a picture of Parker on
Facebook that showed him holding the same type of phone. The court overruled
Parker’s objection and admitted all of the government’s exhibits. The government
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displayed the contraband images and videos to the jury during the government’s case-
in-chief.
The court arranged to provide a computer system to display exhibits in the jury
room during deliberations. The computer system allowed the jury to view the text
messages and most other evidence. But because of an oversight on the part of the
court, the secured contraband pornographic images and videos were not on the
computer system. And before the government could transfer the images to the
computer system, the jury revealed that they had reached a verdict.
Despite previously objecting to contraband evidence, Parker’s attorney moved
for a mistrial because the jury had reached its verdict without access to that evidence
in the jury room. In response, the government stated that the jury had been able to
consider most of the relevant evidence, and that they had seen the images during the
trial. But given the defendant’s objection, the government suggested that the jury
could deliberate with the benefit of the additional exhibits before announcing their
verdict. The court proposed to bring the jury in, explain that there had been a delay
in giving them the exhibits, and instruct them to deliberate more. Parker’s attorney
did not object. After resuming, the jury then asked for a list of the new exhibits by
number, and Parker’s attorney stated that it would be “appropriate” to send them a
list of the added exhibit numbers. (R. 73, Trial Trans., PageID 811.) After renewed
deliberations, the jury convicted Parker of sexual exploitation of children under 18
U.S.C. § 2251(a) and receipt and distribution of child pornography under 18 U.S.C. §
2252(a)(2).
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No. 19-3909, United States v. Parker
II.
We first look at Parker’s claim that the district court impermissibly
participated in the plea negotiations. We review for plain error any alleged Rule 11
error to which the defendant did not object. United States v. Vonn, 535 U.S. 55, 59
(2002). Showing plain error requires “‘(1) error, (2) that is plain, and (3) that affects
substantial rights.’” United States v. Dyer, 908 F.3d 995, 1004 (6th Cir. 2018), cert.
denied, 139 S. Ct. 1610 (2019) (quoting Johnson v. United States, 520 U.S. 461, 466–
67 (1997) (alteration removed)). Even then, review is discretionary, and we only
correct the error if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993) (quoting
United States v. Young, 470 U.S. 1, 15 (1985) (alteration removed)).
Parker contends that the district court knew that the plea agreement was not
yet final and improperly inserted itself, causing the government to abandon the deal
and offer a less favorable plea. The first proposal had involved dismissing Counts I
and IV in exchange for a guilty plea on Count II—a five-year minimum and 20-year
maximum sentence. The second was to dismiss Counts II and IV in exchange for a
guilty plea on Count I—a 15-year minimum and 30-year maximum.
A district court judge may not engage in plea negotiations. A judge cannot try
to influence a defendant to plead guilty. See United States v. Herron, 551 F.2d 1073,
1077 (6th Cir. 1977) (noting that it would be “serious” if a judge “delivered an
ultimatum” threatening “the maximum sentence allowed by law” if the defendant
refused to plead guilty). The court also cannot disclose the probation officer’s sentence
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recommendations or the likely sentence before the defendant decides whether to
plead or go to trial. See United States v. Harris, 635 F.2d 526, 528 (6th Cir. 1980). It
also cannot consent to transfer the case as part of the plea bargain. Id.
Parker fails to note, however, that the trial court must be involved in the
acceptance or rejection of the plea. Rule 11 makes clear that the parties “must
disclose” the agreement to the court, and the court “may accept the agreement, reject
it, or defer a decision until the court has reviewed the presentence report.” FED. R.
CRIM. P. 11(c)(2), (c)(3)(A). He offers no reason that the court violated his rights by
indicating rejection before he formally accepted the plea. Thus, Parker cannot show
the first or second prongs of the plain error requirement since there is no obvious
error.
Parker also cannot show that the error impacted substantial rights because
there is no right to a plea offer or the court’s acceptance of a plea offer. See Missouri
v. Frye, 566 U.S. 134, 148–49 (2012). “A court may reject a plea in exercise of sound
judicial discretion.” Santobello v. New York, 404 U.S. 257, 262 (1971). Because Parker
had no right to the more favorable plea, losing the plea is not a loss of substantial
rights.
Parker argues that the trial court here acted similarly to the trial court in
United States v. Ushery, 785 F.3d 210 (6th Cir. 2015). There, the trial court set a
“tentative plea date” on which the defendant would either plead guilty or “jeopardize”
his points for acceptance of responsibility. Id. at 214. At the rearraignment on that
date, the court reiterated that it was the “drop-dead date” for pleading guilty and
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No. 19-3909, United States v. Parker
receiving the points for accepting responsibility. Id. The parties, in front of the sitting
court, then negotiated the terms that the defendant preferred to change in the plea.
The court weighed in with suggestions about the disputed items of forfeiture and a
summary of what it understood the new plea agreement to be. On appeal, we stated
that “[b]y allowing the parties to negotiate the final terms of a plea agreement in its
presence, the district court at the very least did not follow best practices, and may in
fact have violated Rule 11(c)(1).” Id. at 218.
Even if the conduct in Usury constituted participation in plea negotiation, this
case is different. Here, after the court stated that it would likely reject the plea
agreement that the parties had reached, the court recessed proceedings to allow the
parties to discuss a new plea agreement. And, importantly, the court did not suggest
any negative consequences of failing to plead guilty. Instead, it reminded Parker of
his right to proceed to trial. The only discussion the court had with counsel was to
question the disparity between this case and another child pornography case and to
approximate the sentence minimum and maximum that the plea would carry.
Nothing in the record here shows that the trial judge participated in the plea
negotiations and thereby committed plain error.
III.
Parker next argues that the trial court erred by not recusing itself after
allegedly showing a negative disposition toward Parker. Under 28 U.S.C. § 455(a), a
judge “shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” This does not require recusal every time a defendant
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No. 19-3909, United States v. Parker
asserts that the judge’s impartiality is dubious, “no matter how strongly that view is
held.” United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990). Rather, a judge
has a duty not to recuse when there is not a reason for it. United States v. Hoffa, 382
F.2d 856, 861 (6th Cir. 1967). Here, the court stated during pretrial conference that
the facts here were potentially “worse” than another child pornography case. (R. 74,
PageID 834–35.)
Our standard of review here is tricky. Parker did not request recusal in the
trial court, forfeiting the argument. Typically, we would review a forfeited argument
for plain error in a criminal case, as Parker requests and as many of our sister circuits
have done.1 See Fed. R. Crim. P. 52; United States v. Powell, 236 F. App’x 194, 200
(6th Cir. 2007) (citing United States v. Mahon, 444 F.3d 530, 532 (6th Cir.2006)). But
1See, e.g., United States v. Caramadre, 807 F.3d 359, 373–74 (1st Cir. 2015);
United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008); United States v. Antar, 53
F.3d 568, 573 (3d Cir. 1995), overruled on other grounds by Smith v. Berg, 247 F.3d
532, 538 (3d Cir. 2001); United States v. Davis, 529 F. App’x 375, 378 (4th Cir. 2013);
United States v. Perez, 956 F.3d 970, 974–75 (7th Cir. 2020) (§ 445(a)); United States
v. Dorsey, 829 F.3d 831, 835 (7th Cir. 2016) (§ 455(b)); United States v. Delorme, 964
F.3d 678, 680 (8th Cir. 2020); United States v. Holland, 519 F.3d 909, 911–12 (9th
Cir. 2008); United States v. Nickl, 427 F.3d 1286, 1297–98 (10th Cir. 2005); United
States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004).
The Fifth Circuit, however, rejects recusal motions raised for the first time on
appeal in a criminal case if the appellant “waited to see if he liked an outcome before
springing the recusal issue.” United States v. Sanford, 157 F.3d 987, 989 (5th Cir.
1998); see also United States v. York, 888 F.2d 1050, 1053–56 (5th Cir. 1989). The
Tenth Circuit has also denied review of a waived recusal motion in a criminal case.
See United States v. Stenzel, 49 F.3d 658, 661 (10th Cir. 1995). In addition, many
older circuit decisions favored a harsher approach, recognizing “the sensible principle
that a defendant cannot take his chances with a judge and then, if he thinks that the
sentence is too severe, secure a disqualification and a hearing before another judge.”
United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990) (citation, alteration, and
quotation marks removed) (collecting cases); see also United States v. Barrett,
111 F.3d 947, 951–52 (D.C. Cir. 1997) (collecting cases).
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No. 19-3909, United States v. Parker
the government says that because § 455 imposes an independent duty to recuse and
is therefore “self-executing,” we should review for abuse of discretion.2 Because we
would reject Parker’s arguments under either standard, we will review for an abuse
of discretion.3
“Not all unfavorable disposition towards an individual (or his case) is properly
described [as bias or prejudice].” Liteky v. United States, 510 U.S. 540, 550 (1994).
Rather, there must be a wrongfulness in that the view is either “undeserved” or “rests
upon knowledge that the subject ought not to possess.” Id. For this reason, claims of
bias based on opinions formed during current or prior proceedings face an “uphill
battle.” Burley v. Gagacki, 834 F.3d 606, 616 (6th Cir. 2016). Only “personal” bias—
also called “extrajudicial” bias—will justify recusal. Wheeler v. Southland Corp., 875
2Parker also mentions the idea of § 455 being self-executing and cites Latham
v. United States, 106 Fed. App’x 395, 397 (6th Cir. 2004). Latham states that § 455 is
self-executing but otherwise does not support abuse of discretion review in this case.
In that case, the habeas petitioner made a recusal motion, which the district court
denied. Id. at 396. The court reviewed that denial for abuse of discretion, though it
noted that it would consider allegations of bias raised for the first time on appeal
because § 455 is self-executing. Id. at 396–97.
3 There is some controversy about whether the parties can ever waive or forfeit
the applicable standard of review. Compare United States v. Williams, 641 F.3d 758,
763–64 (6th Cir. 2011) (“[B]ecause the United States failed to request that we apply
plain-error review, it has forfeited any argument that we should apply that standard
. . . .”); United States v. Wilson, 802 F. App’x 976, 981 (6th Cir. 2020) (“And in her
reply, Wilson concedes that her course of conduct at the district court results in plain-
error review now. That is the standard we will apply.”); with Williams, 641 F.3d at
771 (Thapar, J., concurring) (“[A]llowing parties to unilaterally waive plain error
review is hard to square with the language of Rule 52, which says nothing about the
ability to waive the standard of review.”); Wilson, 802 F. App’x at 982 (“We have
carved out an exception to this general rule, applying a less-deferential standard of
review in cases where the government waives plain-error review . . . But we should
not extend the exception to allow criminal defendants to stipulate to a less-
favorable standard of review.”). This is also an issue we need not resolve.
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No. 19-3909, United States v. Parker
F.2d 1246, 1251–52 (6th Cir. 1989). This requires “some source other than
participation in the proceedings or prior contact with related cases.” Id. And opinions
formed based on the facts introduced during the proceeding will generally “not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Liteky,
510 U.S. at 555. Even “hostile” comments are not enough to mandate recusal unless
they are extreme or derived from an extrajudicial source. Id. An example of such bias
would be disparaging the nationality of the defendant by declaring that all people of
that nationality have “hearts [that] are reeking with disloyalty.” Id.
The judge’s assessment of the severity of Parker’s offense was an opinion based
on the facts of the proceeding and prior contact with Wynn’s related case and similar
cases. And Parker has not shown that the judge’s opinion was extreme or threw into
question the ability to judge fairly. There is no evidence of improper bias.4
IV.
Parker next argues that the district court abused its discretion by denying his
motion for a mistrial. The parties agree that the abuse of discretion standard applies.
See United States v. Forrest, 17 F.3d 916, 919 (6th Cir. 1994).
Parker asserts that, because the presumption of innocence was “fully intact”
until the jury announced the verdict, this court should assume that the verdict the
trial court ordered the jury to disregard was a not-guilty verdict. But the presumption
4Indeed, the trial court granted a substantial downward variance here when
it sentenced Parker, suggesting that it harbored no ill-will toward him.
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No. 19-3909, United States v. Parker
of innocence is an assurance that the burden remains on the government to establish
guilt beyond a reasonable doubt. See Herrera v. Collins, 506 U.S. 390, 398 (1993). It
does not mean that the court presumes the jury has reached a defendant-friendly
verdict until they announce a contrary verdict. Here, the jury’s first verdict may well
have been a guilty verdict, even though the jury never disclosed it and no one else
was in the room where it happened.
Parker adds that the court had two other choices: It could have declared a
mistrial, or it could have simply allowed the jury to announce the first verdict. But
Parker objected to hearing the first verdict without the jury seeing the omitted
exhibits.
Under the doctrine of “invited error,” a party may not induce a ruling—even in
good faith—and later try to “profit from the legal consequences of having the ruling
set aside.” Harvis v. Roadway Exp. Inc., 923 F.2d 59, 61 (6th Cir. 1991). Since Parker
now argues that the trial court would have been right to take the very action
(announcing the original verdict) that it would have if he had not objected, this
doctrine prevents Parker’s complaint now. Parker casts the decision to resume
deliberations with the exhibits as one that the government thrust upon the court, but
the transcript reveals that Parker first objected to announcing the original verdict.
This led directly to the government’s proposal of a less extreme solution of resuming
the deliberations with the evidence at hand. And Parker did not object to this result.
It is true that a court can still review invited error when the interests of justice
require. United States v. Howard, 947 F.3d 936, 945 (6th Cir. 2020). This is
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No. 19-3909, United States v. Parker
particularly salient when the government is equally at fault or the defendant seeks
to vindicate a constitutional right. See id. But even if this justified review here,
Parker has no argument that the absence of the evidence, or adding the contraband
images to the computer system, did anything to affect the fairness of the verdict. The
parties agree that Parker’s defense hinged on questioning the link between Parker
and the phone, not the nature of the photographs or videos. And neither party
disputes that the jury had seen the exhibits during the trial. Even if omitting the
contraband images from the deliberation room were error, the interests of justice
would still not require reversal on these facts.
V.
Finally, Parker argues that the court erred when it nullified the first verdict
and directed continued deliberations “with an emphasis upon specific additional
government exhibits.” This complaint repeats much of the previous one, but in the
context of a due process challenge. We review this for plain error because Parker did
not object to starting the new deliberations or to designating the new exhibits. Olano,
507 U.S. at 731–32.
This claim also fails under the invited error doctrine. Not only did Parker’s
counsel not object to noting the new exhibit numbers for the jury, but he stated that
it would be “appropriate.” (R. 73, Trial Trans., PageID 811.) He cannot now claim
relief based on the supposed undue influence this caused.
VI.
For these reasons, we AFFIRM the district court.
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