* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-5486

UNITED STATES of AMERICA,

Plaintiff-Appellee,

versus

FARICE DAIGLE, JR.

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

(CR-92-60032-03)

(February 14, 1995)

Bef ore POLITZ, Chief Judge, GARWOOD and BENAVIDES, Circuit

Judges.

BENAVIDES, Circuit Judge: *

Pursuant to a plea bargain, Farice Daigle, Jr. (Daigle) pled

guilty to one count of possession with intent to distribute cocaine

in violation of 21 U.S.C. § 841(a)(1). He appeals, arguing, among

other things, that the trial court's participation in the plea

agreement negotiations rendered his guilty plea involuntary. We

conclude that the trial court did participate i n the plea

negotiations in violation of Rule 11(e)(1) of the Federal Rules of2

Criminal Procedure and that the error was not harmless. Finding a

reversible error, we therefore vacate Daigle's conviction and his

sentence.

I. FACTS AND PROCEDURAL HISTORY

Daigle and nine codefendants were charged by indictment with

several narcotics offenses. Daigle pled not guilty. Subsequently,

Daigle and four codefendants went to trial on a superseding

indictment. On the second morning of trial, Daigle decided to

accept the government's offer to plead guilty to one count of

possessi on with intent to distribute 1550 grams of cocaine in

violation of 21 U.S.C. § 841(a)(1).

Prior to the judge accepting his plea in court, the

prosecutor, Daigle, the defense attorney, and the trial judge met

in the judge's chambers (at Daigle's request) for an off-the-record

discussion regarding the plea agreement and the length of sentence.

During this discussion, the trial judge informed Daigl e that he

followed the sentencing recommendation of the government

ap proximately 90% of the time. Daigle subsequently entered his

plea of guilty in open court.

The written plea agreement expressly provides that it is

pursuant to Rule 11(e)(1)(B), which provides that the sentencing

court is not bound by the government's sentencing recommendation.

The plea agreemen t further provides that the defendant agrees to

cooperate, which specifically included testifying truthfully

against his codefendants, if requested. In return, the government

agreed to: dismiss the remaining counts; not seek a sentencing1 The agreement further provided that if the government

filed a motion for downward departure based on substantial

assistance, it would recommend a sentence of 108 months. If

Daigle's cooperation was "extremely helpful," the government may

recommend a greater downward departure.

3 enhancement for prior convictions; recommend (1) an "acceptance of

responsibility" reduction and (2) a sentence at the lowest end of

the guideline range. Additionally, the agreement provided that, in

its discretion, the government may file a motion re questing the

court to downwardly depart based on the "substantial assistance" of

Daigle. 1 The district court, however, would have the final

decision whether to accept the government's sentencing

recommendation.

Daigle i nformed his codefendants of his decision to plead

guilty, and two of them pled guilty along with him. Daigle

testified against the two remaining codefendants. The government

later contended that Daigle's testimony was inconsistent with that

of the other codefendants and the physical evidence. Consequently,

the government refused to file a motion for downward departure

based on substantial assistance.

Daigle filed a motion to enforce the plea agreement, which the

court initially denied. The district court eventually held an

evidentiary hearing and determin ed that Daigle had provided

substantial assistance to the government. The court also

determined th at, although it could not compel the government to

file a U.S.S.G. §5K1.1 motion for downward departure, it would

enforce the plea agreement based on its finding that Daigle had

substantially assisted the government. In other words, the court4

would act as if the government had filed a motion for downward

departure. Nevertheless, the court refused to follow the

hypothetical r ecommendation (108 months) and instead, imposed a

sentence of 188 months.

II. WHETHER THE TRIAL JUDGE PARTICIPATED IN THE PLEA

NEGOTIATIONS IN VIOLATION OF RULE 11(e)(1).

Daigle contends that prior to entering his guilty ple a, the

trial judge entered into the plea negotiations in violation of Rule

11(e)(1) of the Federal Rules of Criminal Procedure. Rule 11(e)(1)

provides that "[t]he court shall not participate in any such [plea

negotiation] discussions." Although a district court may reject a

plea agreement and express its reasons for doing so, "Rule 11(e)(1)

prohibits absolutely a district court from `all forms of judicial

participation in or interference with the plea negotiation

process.'" U nited States v. Miles

, 10 F.3d 1135, 1139 (5th Cir.

1993) (quoting United States v. Adams

, 634 F.2d 830, 835 (5th Cir.

1981)) (other citations omitted). "Rule 11(e)(1) simply commands

that the judge not participate in, and remove him or herself from,

any discussion of a plea agreement that has not yet been agreed to

by the parties in open court ." M iles

, 10 F.3d at 1140 (quoting

United States v. Bruce

, 976 F.2d 552, 556 (9th Cir. 1992))

(emphasis added).

As we recently explained in Miles

, there are important reasons

for the rule admitting no exceptions. First, it diminishes the

possibility of judicial coercion of a guilty plea, regardless

whether the coercion would actually result in an involuntary guilty5

plea. 10 F.3d at 1139. Second, the judge's involvement in the

n egotiations is apt to diminish the judge's impartiality. By

encouraging a particular agreement, the judge may feel personally

involved, and thus, resent the defendant's rejection of his advice.

Id. Third, the judge's participation creates a misleading

impression of his role in the proceedings. Id. The judge's role

seems more like an advocate for the agreement than a neutral

arbiter if he joins in the negotiations. Because of these

potential problems, "Rule 11(e)(1) draws a bright line, prohibiting

judicial participation in plea negotiations." Id.

The colloquy between the judge and Daigle at the guilty plea

hearing reveals that there was an off-the-record discussion in

chambers among the parties and the judge regarding Daigle's guilty

plea and sentence. Daigle contends that, during the in chambers

discussion, the t rial judge indicated that he would most likely

follow any sentence recommendation by the government, which to

Daigle meant a "cap" of nine years imprisonment. Daigle cites the

following comment the judge subsequently made at the plea hearing,

"All right, so if nine years is what y'all agreed upon and that's

the recommendation made to me, and there is substantial

cooperation, that's the cap of nine years, okay?" This statement

strongly supports Daigle's contention that he understood the court

t o be indicating a "cap" of nine years if the government so

recommended.

In United States v. Werker

, 535 F.2d 198, 203 (2nd Cir.),2 We cited the Werker opinion in both Miles and Adams

.

6 cert. denied

, 429 U.S. 926, 97 S. Ct. 330 (1976), 2 the Second

Circuit opined that a "judge's indication of sentence necessarily

constitutes `participation in such discussions." We find the

Second Circuit's reasoning in Werker persuasive. During Daigle's

guilty plea hearing, the court acknowledged that it previously had

advised Daigle in chambers that if he "fully cooperated, that 90

percent of the ti me I will follow the recommendation of the U.S.

Attorney." Such an indication of sentence constitutes

participation. Accordingly, the judge's conduct violated the

bright line of Rule 11(e)(1) which prohibits any judicial

participation in plea negotiations.

That, however, is not the end of the inquiry. Although

judicial participation in plea negotiations is an error implicating

a core concern of Rule 11

, it nonetheless is subject to the

harmless error analysis. M iles

, 10 F.3d at 1140-41 (citing United

States v. Johnson , 1 F.3d 296 (5th Cir. 1993) (en banc)).

The government argues that any Rule 11 violation was harmless

because Daigle "was looking at a minimum sentence of twenty years

i f he were convicted of violating 21 U.S.C. § 848 and five years

consecutive to all sentences if convicted of 18 U.S.C. § 924(c) at

trial." The focus, however, of the harmless error inquiry is

whether the district cou rt's flawed compliance with Rule 11 may

reasonably be viewed as having been a material factor affecting the

defendant's decision to plead guilty. J ohnson

, 1 F.3d at 302.

Indeed, as the government candidly admits, Daigle requested to meet7

with the trial court because he was concerned "that the agreement

did not guarantee the specific nine year cap he wanted but left it

within the U.S. Attorney's discretion." The government further

acknowledges "that the sole purpose of the meeting with the judge

was to gain information concerning the judge's probable response to

a recommendation by the AUSA [prosecutor]." Here, it is apparent

that Daigle viewed the "cap" of nine years imprisonment as a

material factor in his decision to plead guilty. Thus, it cannot

be said that the trial court's participation in the plea

negotiations was harmless.

II. WHETHER DAIGLE IS ENTITLED TO SPECIFIC PERFORMANCE.

Daigle requests specific performance of the plea agreement,

which he contends the district court modified when it participated

in his plea negotiations. A defendant is entitled to specific

performance of a plea agreement when the agreement has been

breached. U nited States v. Wa tson , 988 F.2d 544, 553 (5th Cir.

1993), cert. denied

,

__ U.S.

__, 114 S.Ct. 698 (1994). Daigle does

not show a breach, but instead relies on his own mistaken

impression of a 108-month cap which he clai ms was created by the

plea bargaining process. He is not entitled to specific

performance.

Because of our Rule 11 holding, we do not rea ch any of

Daigle's remaining contentions. Finally, "in order to extend the

prophylactic scheme established by Rule 11," this case will be

ass igned to a different judge on remand. M iles

, 10 F.3d at 1142

(citation, internal quotation marks, and footnote omitted).

CONCLUSION

For the reasons stated above, Daigle's convictio n and his

sentence are VACATED ; and the case REM ANDED for further8

proceedings.