IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50483

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

PETER VICTOR AYIKA,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:11-CR-2126-1

Before REAVLEY, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

Peter Victor Ayika, acting pro se, appeals his conviction and sentence for 

health care fraud. Ayika alleges, among other errors, that the district court 

improperly participated in plea negotiations. We agree and accordingly vacate 

his conviction.

I

In April 2011, a grand jury returned a two-count indictment charging 

Ayika, a licensed pharmacist, with unlawfully possessing and distributing 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 12, 2014

Lyle W. Cayce

Clerk

 

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hydrocodone (the drug case). In August 2011, Ayika was separately indicted

on charges of health care fraud, mail fraud, and wire fraud (the fraud case). 

This latter indictment alleged that Ayika billed various healthcare benefit 

programs for medications that he never dispensed or distributed.

After a jury found him guilty on both counts in the drug case, Ayika 

indicated that he was interested in entering into a plea agreement in the fraud

case. He informed the court, however, that he was unwilling to concede that 

the amount involved in the fraud exceeded $1 million and would not plead 

guilty if doing so required him to make such a concession. Subsequently, in 

February 2012, Ayika filed a Request for Change of Plea, stating that he 

wished to plead guilty and no longer contested the amount involved in the 

fraud. Shortly thereafter, the district court held a status conference. At the 

conference, counsel for Ayika informed the district court that the “instructions

from my client have now changed,” and that Ayika was unwilling to plead 

guilty if doing so meant agreeing to a forfeiture of the property identified in 

the indictment. Counsel further indicated that he was unsure whether, under 

the law of the Fifth Circuit, his client could plead guilty and still contest the 

forfeiture. 

In response to these statements, the district court stated that “in the 

Fifth Circuit, the forfeiture is solid as can be. . . . [T]here’s no question in my 

mind that the forfeiture the government pled was well pled.” The court further 

stated that “the best chance[] here, quite frankly, for him is the plea of guilty 

and the concurrent sentencing [of the drug and fraud cases].” At a number of 

other points during the conference, the district court stated that it would 

sentence Ayika to a term of imprisonment below the guidelines range if he 

entered a guilty plea and did not contest the forfeiture sought by the 

Government. The court made clear, however, that Ayika had the right to 

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proceed to trial and that the court did not “have any problem” with Ayika’s 

choosing to exercise that right. Toward the conclusion of the conference, the 

court told Ayika that pleading guilty “is your chance to cut your losses short.” 

Counsel for Ayika did not object to these or any other statements made by the 

court.

The day after the conference Ayika executed a plea agreement with the 

Government. He agreed to plead guilty to health care fraud and admit the 

forfeiture allegations in the indictment. During the district court’s colloquy 

with Ayika regarding his desire to plead guilty, Ayika stated that no one had 

forced, threatened, or coerced him to enter the plea. After accepting Ayika’s 

guilty plea, the district court sentenced Ayika to 63 months in prison for the 

fraud charge, 60 months in prison for count one in the drug case, and 170 

months for count two in that case, all to run concurrently. The district court 

also ordered restitution in the amount of $2,498,586.86, and forfeiture of 

property as indicated in the indictment and plea agreement. The property 

forfeited included a parcel of real property, over $1,000,000 in specified bank 

accounts, more than $500,000 seized from other specified bank accounts, 

currency seized at specific locations, and two automobiles.

Ayika appealed the judgments in both cases. A panel of this court 

affirmed the judgment in the drug case.1 We now consider Ayika’s appeal of 

his sentence and conviction in the fraud case. The Government does not 

contend that Ayika’s waiver of the right “to appeal or collaterally attack any 

1 See United States v. Ayika, --- F. App’x ----, Nos. 11-51078, 12-50490, 2013 WL 

5651389, at *1 (5th Cir. Oct. 17, 2013).

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matter in connection with this prosecution and sentence, including the 

forfeiture” should be enforced.2

II

Ayika’s primary contention is that the district court participated in the 

plea negotiations in violation of Federal Rule of Criminal Procedure 11. As 

Ayika (who was represented by counsel at the time) failed to object to the 

district court’s statements, our review is limited to plain error.3 Plain error 

review, as the Supreme Court has explained, “involves four steps, or prongs.”4 

First, the appellant must demonstrate that the district court committed an 

error.5 “Second, the legal error must be clear or obvious, rather than subject 

to reasonable dispute. Third, the error must have affected the appellant’s 

substantial rights.”6 Lastly, “if the above three prongs are satisfied, the court 

of appeals has the discretion to remedy the error—discretion which ought to be 

exercised only if the error ‘seriously affects the fairness, integrity or public 

reputation of judicial proceedings.’”7 With this standard in mind, we consider 

Ayika’s claim.

III

Federal Rule of Criminal Procedure 11(c) provides that the Government

may negotiate a plea agreement with a defendant’s attorney or the defendant 

2 See generally United States v. Alvarado-Casas, 715 F.3d 945, 953 (5th Cir. 2013) 

(noting that defendant’s “appeal waiver does not bar our review of his claims of Rule 11 

error”).

3 See United States v. Davila, 133 S. Ct. 2139, 2147 (2013); United States v. Vonn, 535 

U.S. 55, 59 (2002).

4 Puckett v. United States, 556 U.S. 129, 135 (2009). See, e.g., United States v. Hughes, 

726 F.3d 656, 659 (5th Cir. 2013).

5 Puckett, 556 U.S. at 135.

6 Id. (internal citations omitted).

7 Id. at 135 (emphasis in original) (quoting United States v. Olano, 507 U.S. 725, 736 

(1993)) (internal alteration omitted).

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when proceeding pro se, but that “[t]he court must not participate in these 

discussions.”8 “We have characterized Rule 11’s prohibition of judicial 

involvement as a ‘bright line rule,’ and ‘an absolute prohibition on all forms of 

judicial participation in or interference with the plea negotiation process.’”9 As 

we have explained on numerous occasions, “there are important reasons for 

the rule admitting no exceptions.”10 “First, ‘it serves to diminish the possibility 

of judicial coercion of a guilty plea, regardless of whether the coercion would 

cause an involuntary, unconstitutional plea.’”11 “Indeed,” we have noted, 

“‘pressure is inherent in any involvement by a judge in the plea negotiation 

process.’”12 Second, judicial involvement in plea negotiations “is likely to 

impair the trial court’s impartiality,” as “[t]he judge who suggests or 

encourages a particular plea bargain may feel a personal stake in the 

agreement . . . and may therefore resent the defendant who rejects his 

advice.”13 Lastly, “a judge’s ‘participation in plea discussions creates a 

misleading impression of the judge’s role in the proceedings. As a result of his 

participation, the judge is no longer a judicial officer or neutral arbiter,’” but 

“‘becomes or seems to become an advocate for the resolution he has suggested 

to the defendant.’”14

8 FED. R. CRIM. P. 11(c)(1).

9 United States v. Pena, 720 F.3d 561, 570 (5th Cir. 2013) (quoting United States v. 

Rodriguez, 197 F.3d 156, 158 (5th Cir. 1999) and United States v. Adams, 634 F.2d 830, 835 

(5th Cir. Unit A 1981), respectively).

10 United States v. Daigle, 63 F.3d 346, 348 (5th Cir. 1995); see also Pena, 720 F.3d at 

570-71 (reiterating the reasons); United States v. Miles, 10 F.3d 1135, 1139 (5th Cir. 1993)

(same).

11 Pena, 720 F.3d at 570-71 (quoting Miles, 10 F.3d at 1139).

12 Id. at 571 (emphasis in original) (quoting Rodriguez, 197 F.3d at 159).

13 Id. (second alteration in original) (internal quotation marks and citation omitted).

14 Id. (quoting Miles, 10 F.3d at 1139).

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In light of these considerations, we have not hesitated to find a Rule 11 

error even when the court’s participation is minor and unintentional. In 

United States v. Daigle,15 for instance, we held that the district court violated 

Rule 11 when it stated in an off-the-record conference that it “would most likely 

follow any sentence recommendation by the government.”16 Similarly, in 

United States v. Rodriguez,17 we vacated a defendant’s guilty plea because the 

district court stated that “[r]ight now [the defendant is] looking at five years 

minimum and in about 30 minutes [i.e. if he declines to plead guilty] he’s going 

to be looking at ten years minimum.”18 We reasoned that such statements 

“indicated a belief that if [the defendant] opted for a trial, he likely would be 

found guilty.”19 And most recently, in United States v. Pena,20 we held that a 

district court committed plain error when it suggested during a status 

conference that the defendant resolve separate litigation prior to entering a 

guilty plea, in part because “the district court’s statements connote[d] the 

possibility that the court had already made a determination as to Pena’s guilt 

in the instant offense and preferred a guilty plea.”21 

Against the backdrop of these precedents, the district court’s comments 

during the status conference amounted to impermissible participation in the 

plea negotiations. As in Daigle, the district court told Ayika on multiple 

occasions that it would sentence him to a below-guidelines sentence if Ayika 

elected to plead guilty. Moreover, as in Rodriguez and Pena, the district court’s 

15 63 F.3d 346 (5th Cir. 1995).

16 Daigle, 63 F.3d at 348-49.

17 197 F.3d 156 (5th Cir. 1999).

18 Rodriguez, 197 F.3d at 158-60.

19 Id. at 159.

20 720 F.3d 561 (5th Cir. 2013).

21 Pena, 720 F.3d at 572 (emphasis in original).

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statements that Ayika’s “best chance” was to plead guilty and that doing so 

was his opportunity to “cut [his] losses short” suggested that the district court 

believed Ayika would be found guilty if he proceeded to trial. 

The Government argues that this case is distinguishable from our 

precedents because the district court’s statements were in open court. It 

further contends that this case is different because “the status conference was 

held in response to multiple motions by Ayika informing the court that he 

wanted to enter a guilty plea.” These arguments are meritless. The

Government does not explain why impermissible participation becomes 

permissible when it occurs on the record. Nor does the clear text of Rule 11 

contain an exception for circumstances in which the defendant indicates he is

interested in pleading guilty. Furthermore, we have previously held that the 

district court violated Rule 11 even though its statements were made on the 

record and after the defendant had executed a plea agreement.22

The Government asserts that there was no Rule 11 violation because the 

district court told Ayika at multiple junctures “that it was not opposed to 

conducting a trial.” Although these potentially curative statements, as 

discussed further below, may pertain to the question of whether the district 

court’s participation affected Ayika’s decision to plead guilty, they are not 

relevant to the issue of whether the court impermissibly participated in the 

negotiations in the first instance.23

We conclude that the district court’s comments ran afoul of Rule 11’s 

absolute prohibition on judicial participation in plea negotiations. Moreover, 

22 See United States v. Miles, 10 F.3d 1135, 1138-40 (5th Cir. 1993); see also Rodriguez, 

197 F.3d at 157-60 (holding that there was a violation of Rule 11 even though the district 

court’s comments were made in open court after the defendant had negotiated a plea 

agreement).

23 See, e.g., Pena, 720 F.3d at 571-77.

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in light of “our well-settled circuit law” on this issue and the substantial 

number of cases holding that far fewer and less assertive statements violated 

Rule 11, we hold that the district court’s error was clear and obvious.24 

IV

Having determined that Ayika has satisfied the first two prongs of plain 

error review, we must assess whether the district court’s statements affected 

his substantial rights.25 In recent years, the Supreme Court has clarified 

under what circumstances a violation of Rule 11 rises to this level. The Court 

has held that a Rule 11 error only affects a defendant’s substantial rights if 

there was “a reasonable probability that, but for the error claimed, the result 

of the proceeding would have been different.”26 Specifically, a defendant 

claiming impermissible judicial participation must demonstrate that “it was 

reasonably probable that, but for the [district judge’s] exhortations, [the 

defendant] would have exercised his right to go to trial.”27 In engaging in this 

inquiry, we assess the record as a whole, not simply the colloquy between the 

court and the defendant.28 In addition, as the Supreme Court has noted, the 

“particular facts and circumstances matter,” including the amount of time 

between the Rule 11 violation and the defendant’s decision to plead guilty.29

Ayika asserts that he would not have entered a plea of guilty in the 

absence of the district court’s participation because “the record shows that he 

24 Id. at 573.

25 Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Dominguez

Benitez, 542 U.S. 74, 81 (2004).

26 Dominguez Benitez, 542 U.S. at 81-82 (internal quotation marks and alterations 

omitted). 

27 United States v. Davila, 133 S. Ct. 2139, 2150 (2013).

28 Id.

29 Id. at 2149.

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was . . . not willing to accept the plea with the forfeiture contained in it.” The 

record supports this contention. Although Ayika indicated on a number of 

occasions that he wished to plead guilty, he made it abundantly clear that he 

objected to the forfeiture allegations and that these objections made him

reluctant to execute a plea agreement. In February 2012, for instance, Ayika, 

acting through counsel, filed a motion stating that “he wished to enter a guilty 

plea.” However, he disputed the indictment’s “allegation that the amount [of 

money] involved in the fraud was in excess of $1,000,000.00.” Since he could 

not both plead guilty and contest the amount involved, Ayika moved the court 

to hold a bench trial. While Ayika subsequently informed the court that he “no 

longer wishe[d] to contest this amount,” he again changed his mind prior to the 

status conference. As Ayika’s counsel told the district court at the conference, 

Ayika “now says or feels that some of the stuff [the Government] want[s] to 

forfeit can’t be actually legally forfeited.” Thus, at the moment of the district 

court’s comments, Ayika was, to quote his attorney, “back to square one.” 

Nonetheless, the day after the status conference, Ayika executed the plea 

agreement that included the forfeiture terms. 

Based on these facts, we find that there was a “reasonable probability 

that, but for the error, [Ayika] would not have entered the plea.”30 At the time 

of the status conference, Ayika was at best ambivalent about whether to enter 

into a plea agreement. He had vacillated as to whether he was willing to plead 

guilty if doing so meant conceding that the amount involved in the fraud 

exceeded $1 million. The day immediately after the district court’s statements, 

Ayika was willing to sign the agreement. As both this court and the Supreme 

30 Dominguez Benitez, 542 U.S. at 76.

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Court have noted, such “a temporal proximity . . . supports a finding of

prejudice.”31 

The Government argues that the district court’s statements did not 

affect Ayika’s substantial rights because it was impossible for him to admit to 

health care fraud and retain possession of the proceeds of the fraud. But, as

Ayika’s pleadings before the district court and his counsel’s statements make 

clear, Ayika understood that he could not plead guilty and contest the amount 

involved in the fraud. It was for this precise reason that he considered not 

pleading guilty. Had the district court refrained from telling Ayika that his 

“best chance” was to enter a guilty plea, there was a reasonable probability

that Ayika would have chosen not to plead guilty. 

The Government also asserts that the order of forfeiture did not affect 

Ayika’s substantial rights because he would have had to forfeit the funds in 

any event as a result of the restitution order. It is true that Ayika’s pro se brief 

states that he was opposed to a plea because of the inclusion of the forfeiture 

and fails to contain substantial discussion of restitution. As the Government 

knows, however, it is our duty to construe pro se briefs liberally so that a 

litigant will not suffer simply because he did not attend law school or find a 

suitable attorney.32 Notwithstanding Ayika’s focus on the term “forfeiture,” 

his brief and the record make clear that his dispute did not concern the specific 

forfeiture allegation in the indictment, but the indictment’s claim that the 

amount involved in the fraud exceeded $1 million. As one of Ayika’s motions 

before the district court stated, “although he wished to enter a guilty plea, the 

31 United States v. Pena, 720 F.3d 561, 574 (5th Cir. 2013) (citing Davila, 133 S. Ct. at

2149); see also Davila 133 S. Ct. at 2149 (suggesting that a finding that a magistrate judge’s 

impermissible participation affected the defendant’s substantial rights would be likely if the 

defendant’s “guilty plea followed soon after” the comments). 

32 See Abdul-Alim Amin v. Universal Life Ins. Co. of Memphis, Tenn., 706 F.2d 638, 

640 n.1 (5th Cir. 1983).

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government . . . has included in the indictment an allegation that the amount 

involved in the fraud was in excess of $1,000,000.00.” Had Ayika not entered 

a plea of guilty, he would have been able to contest this allegation. 

Lastly, the district court’s statements that it was willing to hold a trial 

did not ameliorate the effect of the court’s prior comments. As we have 

observed, “[o]nce the judge place[s] pressures on [a defendant], [the] impact 

[cannot] be so readily alleviated.”33 Thus, in Pena, we held that the district 

court’s comments affected the defendant’s substantial rights even though the 

court subsequently told the parties to disregard them because that 

“withdrawal” did not “alter Pena’s perception of the court’s desired 

disposition.”34 Likewise, in this case, the district court’s statements that it was 

willing to hold a trial could not alter Ayika’s perception that the court believed 

that he was guilty or that it would impose a harsher sentence as punishment 

if Ayika elected not to plead guilty. 

Because there was thus a reasonable probability that but for the district 

court’s comments, Ayika would not have entered into the plea agreement, we 

conclude that the Rule 11 error affected his substantial rights. 

V

As Ayika has demonstrated that the district court committed a clear 

error and that this error affected his substantial rights, we must consider the 

final element of plain error review. “The fourth prong of plain error asks 

whether the error affects ‘the fairness, integrity, or public reputation of judicial 

proceedings’ such that the appellate court should exercise its discretion to 

correct the error.”35 As we have previously noted, “we do not view the fourth 

33 United States v. Rodriguez, 197 F.3d 156, 160 (5th Cir. 1999).

34 Pena, 720 F.3d at 575.

35 United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc) 

(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).

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prong as automatic if the other prongs are met.”36 Rather, we must determine 

that a failure to rectify the error would result in a “miscarriage of justice.”37 

We conclude that the district court’s error rises to this level.

At the time it drafted the prohibition on judicial participation in plea 

negotiations, the Advisory Committee recognized that “it [was] common 

practice for a judge to participate in plea discussions.”38 Nevertheless, it 

recognized that there were many drawbacks to allowing this participation. 

Namely, judicial involvement “might lead the defendant to believe that he 

would not receive a fair trial” if he elected not to plead guilty.39 Moreover, 

“[s]uch involvement makes it difficult for a judge to objectively assess the 

voluntariness of the plea.”40 The Advisory Committee recognized, “[t]he 

unequal positions of the judge and the accused, one with power to commit to 

prison and the other deeply concerned to avoid prison, at once raise a question 

of fundamental fairness.”41 These concerns of objectivity, integrity, and 

fairness are the values we are tasked with preserving when determining 

whether to exercise our discretion on plain error review.

We conclude that the district court’s comments, while unintentional,

affected “the fairness, integrity, or public reputation of judicial proceedings.”42 

By stating that pleading guilty was Ayika’s “best chance,” the district court 

strongly indicated that it thought Ayika would be found guilty if a trial 

occurred. By encouraging Ayika to enter a guilty plea, the district court may 

36 Id.

37 Id. (citing United States v. Olano, 507 U.S. 725, 736 (1993)).

38 See FED. R. CRIM. P. 11 advisory committee’s note (1974).

39 Id.

40 Id.

41 Id.

42 United States v. Olano, 507 U.S. 725, 736 (1993) (internal quotation marks omitted).

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have compromised its ability to assess whether Ayika’s plea was voluntary. 

Lastly, by stating that this was Ayika’s opportunity to “cut [his] losses short,”

the district court may have led Ayika to believe that the court would punish 

him if he chose to not to plead guilty. 

The Government argues that the fourth prong is not met in this case 

because “Ayika’s alleged harm centers on his property rights, not his liberty.” 

This argument fails, as we have previously found plain error even when the

error only concerned the payment of funds or the timing of such a payment.43 

Accordingly, “this case presents those exceptional circumstances that warrant 

reversal on plain error.”44

* * *

For the foregoing reasons, we VACATE Ayika’s guilty plea and 

REMAND for further proceedings before a different district judge. Because we 

take this action, we do not reach Ayika’s other arguments challenging his 

conviction and sentence. 

43 See United States v. Myers, 198 F.3d 160, 169 (1999) (finding plain error when 

district court required defendant to pay restitution immediately even though he lacked the 

ability to do so).

44 United States v. Pena, 720 F.3d 561, 576 (5th Cir. 2013).

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