UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-9074

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GREGORY LYNN MILES,

Defendant-Appellant.

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______________________

No. 92-9091

______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GERALD JEHORAM GUSTUS,

Defendant-Appellant.

____________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

_____________________________________________________ (December 27, 1993)

Before GOLDBERG, JOLLY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

These appeals turn on whether the district court reversibly

erred by engaging in plea negotiations in contravention of Federal

Rule of Criminal Procedure 11(e)(1). In asserting that it did,

Gregory Lynn Miles and Gerald Jehoram Gustu s challenge their1 Miles and Gustus also challenge their sentences; but, because

we vacate them as a result of reversing the convictions, we do not

reach these issues.

2 This charge was from a separate case.

- 2 - con victions obtained through plea agreements. We R EVERSE their

convictions and VACATE their sentences. 1

I.

Based upon five armed robberies over a two-month period in

late 1991, Miles and Gustus were charged with conspiracy to commit

robbery and four counts of robbery, all affecting int erstate

commerce, in violation of 18 U.S.C. § 1951, and four co unts of

using a firearm in committing a crime of violence, in violation of

18 U.S.C. § 924(c). And, Gustus was charged with an additional §

924(c) count and robbery count.

Through plea agreements, Miles pled guilty to the conspiracy

t o commit robbery count, one § 924(c) count, and a ch arge of

possession of a firearm by a felo n (violation of 18 U.S.C. §

922(g)) 2 ; Gustus, to the conspiracy count and two § 924(c) counts.

The district court, however, rejected both agreements. Following

the discussion at issue with the district court, Miles and Gustus

entered into new agreements: Miles pled guilty to two additional §

924(c) counts; Gustus, to one additional § 924(c) count. The

district court accepted their pleas, and imposed prison sentences

on Miles and Gustus of approximately 58 and 63 years, respectively.3 In the briefs on appeal, only Gustus specifically raised this

issue; nevertheless, Miles did include the colloquy, quoted infra

, that gave rise to Gustus' Rule 11 contention. Moreover, after

these appeals were consolidated sua sponte for oral argument, Miles

urged there the Rule 11 contention. Therefore, we consider the

issue raised by Miles for this ap peal. In any event, s ee United

States v. Gray

, 626 F.2d 494, 497 (5th Cir. 1980), c ert. denied

, 449 U.S. 1091 (1981):

Ordinarily we would limit each defendant's appeal

to the issues raised in his brief. However, we

have discretion to suspe nd the Federal Rules of

Appellate Procedure "for good cause shown," Fed. R.

App. P. 2. Believing it anomalous to reverse some

convictions and not others when all defendants

suffer from the same error, we consider the

arguments to be adopted.... This adoption does not

prejudice the government which had the opportunity

to fully brief all issues in re sponse to the

various contentions of the defendants.

(Citations omitted.) This notwithstanding, we caution counsel to

state specifically in t he opening brief the issues raised on

a ppeal; the failure to do so will usually result in our not

considering them. Z uccarello v. Exxon Corp.

, 756 F.2d 402, 407-08

(5th Cir. 1985) (concluding that Fed. R. App. P. 28(a)(4) counsels

that "when an appellant raises an issue for the first time at oral

argument, the Court ordi narily will not consider it"); s ee also

Fed. R. App. P. 28(a)(4) ("The brief of the appellant shall contain

... the contentions of the appellant with respect to the issues

presented").

4 Miles pled guilty before the district court on July 2, 1992;

Gustus, on July 10. It accepted both pleas, but, pursuant to Rule

11(e)(2), informed both that, after presentence reports were

prepared, it could reject the plea agreements. A sentencing

hearing was scheduled; but, before that hearing, the court notified

- 3 - II.

Miles and Gustus contend that their convictions s hould be

reversed because the district court participated in plea

negotiations, in violat ion of Rule 11(e)(1). 3 Under the original

plea agreements, Miles faced a sentence of approximately 17 years;

Gustus, approximately 40. When the agreements were presented at

the sentencing hearing in September 1992, 4 the district court, inboth that it had questions about the agreements.

- 4 - addition to the indictment, had the following information, based on

stipulated facts and pres entence reports: Miles and Gustus

employed handg uns in the robbery of five restaurants within two

months; both were on probation for aggravated robbery convictions

from prior, joint conduct (the convictions had been obtained within

two months of the first robbery at issue in t his case); both had

state charges pending against them for other robberies (in some of

which they acted together); one of those other robberies in which

both participated occurred after the robberies giving rise to the

federal offenses (Gustus pled guilty and received a 35-year

sentence; charges against Miles for that robbery were still

pending); and, during one of the robberies at issue in the instant

case, Gustus forced a female employee to perform oral sex on him.

Accordingly, the following colloquy, on which appellants base

error, ensued:

THE COURT: Okay. One of the things that

none of you have to uched on is the statutory

objective of 924(c) of Title 18. And Congress told

me by that that I shall give a 20-year sentence on

each one above the first one.

I think that's one of the things -- though it

doesn't specifically say so -- I think that is one

of the things that should be taken into account and

might be a determinative factor under [U.S.S.G.]

policy statement 6B1.2.

I a m impressed that in Title 18 [§] 924(c)

Congress told me I shall not place on probation or

suspend the sentence of any person convicted of a

violation of that subsection, nor shall any term of

imprisonment imposed under that subsection run

concurrently with any other term of imprisonment,

so on.- 5 - I don't think Congress could have made it any

cle arer to me what their intent is. Their intent

is in crimes of this kind that that person be put

in prison for five years the first time he commits

an offense -- is first convicted of one -- and for

2 0 years each time he is convicted of one

thereafter. That is what Congress told me they

intended and expected of me.

Even if we did not let that control, I'm not

satisfied that the sentences I can impose under the

plea agreements in these cases adequately reflect

the seriousness of the offenses.

I am not sure that they would adequately

promote respect for the law, and I am not sure that

they would provide just punishment. To the

contrary, I believe they would do none of th ose things.

I don't believe the sentences in this case

would provide adequate deterrence for the kind of

conduct these defendants engaged in. And I would

have some concern, if the se defendants were to be

released from prison, even with the sentences as

long as they might be in this case, that the public

would not be protected fr o m the possibility of

further crimes by these defendants.

And, therefore, I am not accepting either one

of these plea agreements.

...

[UNITED STATES ATTORNEY]: Can I ask a

question? And I apologize, if it is an

inappropriate question.

THE COURT: Yes.

[UNITED STATES ATTORNEY]: Is there anything

short of a plea on all of the 924(c)s the court

might consider?

THE COURT: I think your initial comment is

correct --

[UNITED STATES ATTORNEY]: Thank you.

THE COURT:

-- that it would be

ina ppropriate for me to say what I would or would

not accept.- 6 - I will say this: If I was satisfied that

these people likely would never get out of prison I

would feel more comfortable.

[UNITED STATES ATTORNEY]: And the comment

I had, Your Honor, is simply I don't want to

continue wasting the court's time if we were to set

a date for a plea next Friday with additional time,

if we are just going to be wasting the court's

time.

THE COURT: Well, it would just seem to me

that in the Gustus case, if he had another 20 years

to serve, and that in the Miles case, if he had

anoth er 40 years to serve beyond what is now

contemplated

-- or that wasn't contemplated

-- that

that could serve t he objectives that I think were

intended to be served.

Miles and Gustus contend that, through the quoted colloquy,

the district court ran afoul of Rule 11(e)(1) 's admonition that

"[t]he court shall not participate in

... [ plea negotiation]

discussions." A district court is free, of course, to reject a

plea agreement, Fed. R. Crim. P. 11(e)(4), and may express its

reasons for doing so. S ee United States v. Bean

, 564 F.2d 700, 704

(5th Cir. 1977) (reviewing reasons proffered by district court for

rejecting plea agreement under abuse of discretion standard); cf.

U.S.S.G. § 6B1.2(a) (requiring that the court find, on the record,

that a plea agreement a dequately reflects the seriousness of

offense conduct before accepting it). But, 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. Ada ms , 634 F.2d 830, 835 (5th Cir.

1981); see also United States v. Corbitt

, 996 F.2d 1132, 1134 (11th

Cir. 1993) (citing and quoting Adams for proposition that there is

"an absolute prohibition on all forms of judicial participation" in- 7 -

plea negotiations); U nited States v. Barrett

, 982 F.2d 193, 195

(6th Cir. 1992) ("Courts

... have uniformly held that [Rule 11]

m eans what it says: the court shall not participate in any plea

agreement negotiations."); United Sta tes v. Bruce , 976 F.2d 552,

558 (9th Cir. 1992) ("the unambiguous mandate of Rule 11 prohibits

the participation of the judge in p lea negotiations under a ny

circumstances: it is a rule that ... admits of no exceptions.")

(emphasis in original).

The reasons for the rule "admit[ting] of no exceptions",

Bruce

, 976 F.2d at 555, have been iterated by this and other

circuits, but they merit brief reiteration. First and foremost, it

serves to diminish the possibility of judicial coercion of a guilty

plea, regardless o f whether the coercion would cause an

involuntary, unconstitutional plea. Adams , 634 F.2d 838-39; see

also Barrett , 982 F.2d at 194 ("The primary reason for Rule 11 is

that a judge's participat ion in plea negotiation is inherently

coercive"); Bruce , 976 F.2d at 556 ("judicial involvement in plea

negotiations inevitably carries with it the high and unacceptable

r isk of coercing a defendant to accept the proposed agreement").

Second, such involvement "is likely to impair the trial court's

impartial ity. The 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." A dams

, 634

F.2d at 840; s ee also Barrett

, 982 F.2d at 195 ("a judge's

neutrality can be compromised"); Bruce

, 976 F.2d at 557 ("Judicial

involv ement detracts from a judge's objectivity."). Third,- 8 -

"judicial participation in plea discussions creates a mis leading

impression of the judge's role in the proceedings. `As a result of

his participation, the judge is no longer a judicial officer or a

neutral arbiter. Rather, he becomes or seems to become an advocate

for the resolution he has suggested to the defendant.'" A dams

, 634

F.2d at 841 (quoting and citing United States v. Werker , 535 F.2d

198, 203 (2d Cir. ), cert. denied , 429 U.S. 926 (1976)); s ee also

Bruce

, 976 F.2d at 557 ("The loss of judicial integrity is

particularly serious when ... the judge explicitly or implicitly

advocates a particular bargain.") (citation omitted).

For these reasons, Rule 11(e)(1) draws a br ight line,

prohibiting judicial part i cipation in plea negotiations. S ee

Bruce

, 976 F.2d at 556 (describing Rule 11(e)(1) as a "bright-line

rule"); s ee also Adams , 634 F.2d at 839 (characterizing rule as

"strict" and noting that it establishes an "absolute ban on

judicial participation"). This notwithstanding, the government

presents three bases for urging that the district court's comments

do not constitute reversible error.

A.

First, the government maintains that the court wa s not

involved in plea negotiations. But, the statements by the court

went well beyond a mere rejection of the agreements and explanation

for it; they suggested, at the very least, the agreements that

would be acceptable. After the district judge stated that "it

would be inappropriate fo r [him] to say what [he] would or would5 Among other things, that amendment added subsection (e)(1) to

Rule 11.

- 9 - not accept", he stepped over the line and became involved in the

negotiations.

B.

Next, although the government recognizes that the court "went

further than merely stating his reasons for rejecting the plea

agreement[s]", it counters that the comments did not violate Rule

11, because they were "in open court, at the time of sentencing,

after the court had reviewed the presentence report[s] and had

knowledge of all relevant facts." Because no reported decisions

deal with such judicial participation at this time and in this

manner, the government seems to suggest that such comments are not

prohibited. Moreover, without further support or comment, it

relies upon the following portion of the Advisory Committee's Notes

on the amendment to Rule 11 in 1974: 5

The amendment makes clear that the judge

should not participate in plea discussions leading

to a plea agreement. It is contemplated that the

judge may participate in such discu ssions as may

occur when the plea agreement is disclosed in open

court.

Fed. R. Crim. Proc. 11(e)(1) Advisory Commi ttee's Note, 1974

Amendment.

Needless to say, a court must be free, in certain respects, to

take an "active role" once the agreement is disclosed. S ee Adams

,

634 F.2d at 835. In fact, Rule 11 mandates it, to include:

"addressing the defendant personally in open court" to ensure "that

the plea is voluntary and not the result of force or threats or of- 10 -

promises apart from a plea agreement", Rule 11(d); inquiring "as to

whether the defendant's w illingness to plead guilty or nolo

contendere results from prior discussions between the attorney for

the government and the defendant or the defendant's attorney", id. ;

"making s uch inquiry as shall satisfy it that there is a factual

basis for the plea", Rule 11(f); and either accepting or rejecting

the plea agreement and stating the reasons for doing so, see Rule

11(e)(3). Adams , 634 F.2d at 839 ("Rule 11 emphatically makes it

the responsibility of the trial judge to test the validity of the

bargain which results from plea negotiations: the judge is

required systematically to inquire into the defendant's

under standing and intention, to examine the factual basis of the

plea, and to explain to the defendant the charges against him, the

maximum penalties he faces, and the rights he will waive by a plea

of guilty.")

The comme ntary to the 1974 amendment merely made clear that

these post -plea discussions do not violate Rule 11(e)(1).

Obviously, the commentary does not trump the Rule and allow fullblown judicial participation in craftin g a new agreement once a

tendered agreement is rejected. To the contrary, the role a

district court must pla y after a plea agreement is reached

"requires the greatest possible assurance of judicial neutrality";

therefore, the strict rule against judicial participation

calculated to lead to a plea agreement must remain inflexible. S ee

Adams , 634 F.2d at 839.- 11 -

In sum, Rule 11 requires that a district court explore a plea

agreement onc e disclosed in open court; however, it does not

license discussion of a hypothetical agreement that it may prefer.

See Bruce

, 976 F.2d at 556 ("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."). The district court's comments went

beyond exploring the presented agreements.

C.

Finally, the government urges harmless error, based upon Rule

11(h): "Any variance from the procedures required by this rule

which does not affect substantia l rights shall be disregarded."

Previously, we identified judicial participation in plea

negotiations as an error implicating a core concern of Rule 11.

Adams

, 634 F.2d at 839. As such, we might have found that a guilty

plea entered after ju dicial participation was reversible p er se

.

However, Rule 11(h) and our recent decision in United States v.

Johnson

, 1 F.3d 296 (5th Cir. 1993) ( en banc ), compel harmless

error review. Nevertheless, J ohnson noted that "[i]t is difficult

to imagine a situation in which the trial court would neglect

entirely to mention one of what were formerly our `core concerns'

and ... not `affect substantial rights.'" Id. at 302 n.26.

The government does not cite, nor does our research find, one

instance in which a federal court has found judicial participation

in plea negotiations to be harmless error. In fact, we concluded

in Adams that such participation constituted plain error under Rule- 12 -

52(b), even though the defendant did not plead guilty after that

participation. A dams

, 634 F.2d at 836. Of course, plain error

occurs only when, inter alia

, it is established that the error

affects substantial rights, which by definition forecloses finding

harmless error. E .g.

, United States v. Lopez

, 923 F.2d 47, 49 (5th

Cir.) (per curiam), cert. denied , 111 S. Ct. 2032 (1991).

Moreover, the Sixth Circuit recently addressed a judicial

participation claim in light of Rul e 11(h)'s harmless error

requirement. It refused to look at statements made by the district

court that may have mitigated the effect of its participation,

stating:

This court's role is no t to weigh the judge's

statements to determine whether they were so oppressive as to abrogate the voluntariness of the

plea. "Rule 11 is obviously intended t otally to

eliminate pressures emanating from judic ial

involvement in the plea bargaining process...."

Werker

, 535 F.2d at 203 (emphasis adde d). By

trying to facilitate a plea bargain, the judge

indicated that he desired an agreeme nt; this is

pressure enough. [Appellant] must be allowed to

withdraw his guilty plea.

Barrett

, 982 F.2d at 196. Indeed, the pressure inherent in

judicial participation would seem to be reason enough to reverse a

conviction when the defendant accedes to the plea suggested by the

district court. See Barrett , 982 F.2d at 194 ("By intervening to

facilitate a plea, however, the judge communicated to the defendant

that he desired a plea. He thereby raised the possibility, if only

in the defendant's mind, that a refusal to accept the judge's

preferred disposition would be punished.") (citations omitted);

Werker

, 535 F.2d at 202 ("the defendant may

... believe himself to6 Gustus planned to plead guilty pursuant to the second plea

agreement; but, at a hearing on October 16, 1992, he changed his

mind and pled not guilty. On October 19, the date on which trial

was to commence, he changed his mind again and pled guilty.

- 13 - be prejudiced if he does not plea d guilty in response to the

judge's proposed sentence"). Accordingly, the following review of

the government 's bases for urging harmless error is necessarily

heightened by the alacrity with which this court and others have

upheld the prohibition against judicial participation in plea

negotiations.

1.

The government asserts that, insofar as Gustus is concerned,

he "benefited by the court's comments because subsequent plea

negotiations resulted in [his] pleading guilty to only one more

count ... than he had originally pled to." This plea to one more

§ 924(c) count corresponded exactly to the court's suggestion that

another 20 years would be necessary before it would accept an

agreement. 6 No doubt, the court's suggestion dictated this

outcome, as "[s]tatements and suggestions by the judge are not

just one more source of information to plea negotiators; they are

indications of what the judge will accept, and one can only assume

that they will quickly become `the focal point of further

discussions.'" A dams

, 634 F.2d at 835 (quoting Werker

, 535 F.2d at

203).

We cannot measure the harm to Gustus, because we cannot know

what agreement, if any, would have been reached absent the judicial

participation. For example, he might have agreed to plead guilty7 18 U.S.C. § 924(c)(1) provides, in pertinent part:

Whoever, during and i n relation to any crime of

violence ..., uses or carries a firearm, shall ...

be sentenced to imprisonment for five years.... In

t he case of his second or subsequent conviction

under this subsection, such person shall be

sentenced to imprisonment for twenty years....

A s the district court recognized, the "second or subseq uent

conviction" need not be the product of a second or subsequent

judgment; if a defendant is f ound guilty on separate § 924(c)

counts, each count after the first is subject to the 20-year

mandatory sentence. S ee Deal v. United States

,

___ U.S.

___, ___, 113 S. Ct. 1993, 1995-99 (1993).

8 Indeed, as discussed supra , a persuasive rationale for

prohi b iting judicial participation in plea negotiation is the

effect such participation has on the judge's decision to reject or

accept the subsequent agreement. "The 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." Adams , 634 F.2d at 840.

- 14 - to another of the robbery counts. Under that scenario, he would

serve more time than under his initial agreement, but not incur

mandatory time as with another § 924(c) count. 7 And, the court, if

presented with that option, might have accepted it. 8 We cannot

deem the error harmless so far as Gustus is concerned.

2.

As discussed supra , note 3, Miles did not raise specifically

the Rule 11(e)(1) issue in his brief. In any event, the

government's discussion of harmless error in response to Gustus was

general; and, because we conclude that Miles raised the issue, we

will assume that the government's harmle ss error contention

regarding Miles would track that for Gustus.

As was the case with Gustus, Miles' second plea corresponded

exactly to the court's suggestion; he pled guilty to two additional9 In Adams

, the defendant pled not guilty a fter judicial

participation in plea negotiations an d went to trial; thus, our

court did not reverse the conviction (because no actual prejudice

could be shown). Rather, our court remanded for resentencing

before a diff erent judge because of the chance that judicial

participation might have infected the sentencing process. Adams

, 634 F.2d at 842-43.

10 Following this ap proach, other circuits have mandated that

when a sentence is vacated for judicial participation, the case

should be assigned to a different district judge. C orbitt

, 996

F.2d at 1135; Barrett , 982 F.2d at 196.

- 15 - § 924(c) counts, raising his mandatory minimum by 40 years. In the

absence of judicial participation, he might have bargained for only

one more § 924 (c) count, or added another of the robbery counts

(or, perhaps more unlikely, gone to trial). And, as was the case

with Gustus, we cannot know whether the court would have accepted

such a plea if it were presented in the absence of the court's

commitment to a particular sentence increase (40 years).

In sum, because the error was not harmless, we reverse the

convictions and vacate the sentences; "a defend ant who has pled

guilty after the judge has participated in plea discussions should

be allowed to replead". A dams

, 634 F.2d at 839; see also Corbitt

,

996 F.2d at 1135 (reversing defendant's conviction obtained via a

plea agreement after judicial participation); Barrett

, 982 F.2d at

196 (vacating conviction and judgment); Bruce

, 976 F.2d at 559

(vacating conviction). Under different circumstances in A dams

, 9

our court ruled that, upon remand, a different district judge

should be assigned, in order to "extend the prophylactic scheme

established by Rule 11". Id. at 842-843. 10- 16 - III.

For the foregoing reasons, the convictions of Gustus and Miles

are REVERSED ; the sentences V ACATED ; and the cases REMANDED for

assignment to a different judge.

VACATED and REMANDED