Appeals from the United States District Court for the Central District of California. D.C. No. CR-90-0074-WDK. William D. Keller, District Judge, Presiding.
Before: J. Clifford Wallace, Jerome Farris and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kleinfeld.
KLEINFELD, Circuit Judge:
Appellant attacks his guilty plea. He claims that the Judge impermissibly participated in plea bargaining, his attorney rendered ineffective assistance, and his plea was coerced. The record does not support him.
Andrade-Larrios pleaded guilty to two drug charges. In exchange, the government promised a 151 month prison sentence and dismissal of a firearms charge. His attorney had negotiated the agreement with the prosecutor orally. It had not been put in writing when Andrade-Larrios changed his plea of "not guilty" to "guilty" in open court.
Eleven months after pleading guilty, Andrade-Larrios moved to vacate the judgment. He submitted a declaration alleging that his lawyer told him to plead guilty, or else the government would prosecute his brothers. Andrade-Larrios asserted that what the police characterized as a struggle when he resisted arrest, was really a brutal beating, and his attorney rendered ineffective assistance of counsel because he did not seek to have the charges dismissed because of the beating. The district Judge denied an evidentiary hearing on the motion, because Andrade-Larrios had submitted nothing but conclusory allegations to support his claim, and the record conclusively showed that he was not entitled to relief. Andrade-Larrios appealed. That is the first of the two consolidated appeals before us as case number 92-50018.
A few months later, while his appeal was pending, Andrade-Larrios filed another motion in district court to vacate his conviction. It purported to be a motion pursuant to Federal Rule of Civil Procedure 60(b). Additional evidence was attached to his motion to support the coercion claim. A brother and several sisters said in sworn declarations that the defense attorneys had told them that if Andrade-Larrios did not plead guilty, the United States would prosecute all the Andrade brothers, so "we went and talked to our brother and pressured him to plead guilty in order that we not be prosecuted." The district court denied this motion on two grounds. First, the Federal Rules of Civil Procedure do not apply to criminal cases. Second, if construed as a petition for habeas corpus relief under 28 U.S.C. § 2255, the same issues had been raised in the previous motion, which was then on appeal. The appeal from this order is before us as case number 92-50160.
Andrade-Larrios's statement of issues and arguments does not address the district court's order denying his second motion, the one made while his appeal from the first order was pending. Accordingly, appellant waived his appeal of all the issues from the second order. See Fed. R. App. P. 28(a)(5); Wilks v. Reyes, 5 F.3d 412, 416-17 (9th Cir. 1993) (holding that appellant's brief satisfied Rule 28(a)(5)).
B. Judge's Participation in Plea Bargaining
Andrade-Larrios argues that the district Judge improperly participated in plea bargaining, in violation of Federal Rule of Criminal Procedure 11(e)(1). This is his lead argument on appeal, but he did not present it in district court. We consider it nevertheless, because this kind of error can be raised initially on appeal, at least where the putative wrongful judicial participation is fully developed and preserved in the transcript. United States v. Bruce, 976 F.2d 552, 554 (9th Cir. 1992).
Rule 11(e)(1) allows the parties in a criminal action to "engage in Discussions with a view toward reaching [a plea] agreement." It also requires that "the court shall not participate in any such Discussions." We must decide whether there was "participation" by the Judge for purposes of the proscription in Rule 11.
At the change of plea proceeding, Andrade-Larrios's attorney told the Judge that "an understanding was reached," subject to judicial approval, between the defense and prosecution that Andrade-Larrios would change his plea to guilty on the two drug counts, and the government would dismiss the gun count, which would have added as much as five additional years to the time Andrade-Larrios would have to serve. The guidelines sentence on the two drug counts would be 151 to 188 months, and under the plea agreement, the government would recommend a sentence at the bottom of the guidelines. Here is what was said after these terms had been established. This is what appellant argues was improper judicial participation:
MR. MICHAELSON [Andrade-Larrios' counsel]: I have spoken with Mr. Andrade. And what I am asking essentially is this. And the government, after a review of the case, believes that a 12 and a half year sentence is not something that they would oppose. I am telling your honor - that is 151 months. I am telling your honor that Mr. Andrade is willing to plead guilty to Counts One and Two, if in fact, your honor would impose a 12 ...