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In re Benvin

United States Court of Appeals, Ninth Circuit

June 29, 2015

IN RE MARCILIN ANNE BENVIN, MARCILIN ANNE BENVIN, Petitioner,
v.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA, RENO, Respondent, UNITED STATES OF AMERICA, Real Party in Interest

Argued and Submitted, San Francisco, California: March 17, 2015.

Page 1097

Petition for Writ of Mandamus to the United States District Court for the District of Nevada. D.C. No. 3:11-cr-00099-RCJ-WGC-1.

SYLLABUS

SUMMARY[*]

Criminal Law/Mandamus

The panel granted a criminal defendant's petition for a writ of mandamus, and instructed the district court to reassign the case to another district judge, in a case in which the defendant asserted that the district court improperly interjected itself into plea negotiations.

The panel held that the district court's suggestion that the parties add a particular term to the plea agreement -- i.e., that the parties stipulate to a restitution amount of $3 million to resolve the district court's concerns that the alleged victims of dismissed counts would not otherwise be entitled to receive restitution -- constituted impermissible involvement in plea discussions. The panel held that the district court also inappropriately involved itself in plea negotiations, in violation of Fed. R. Crim. P. 11(c)(1), when it imposed conditions on its approval of the government's proposal to dismiss counts.

The panel concluded that the factors set forth in Bauman v. United States District Court weigh in favor of granting mandamus relief, and that the appearance of justice will best be served by reassignment to a different judge.

Michael J. Kennedy, Chief Assistant Federal Public Defender, Federal Public Defender, Reno, Nevada, argued the cause on behalf of the petitioner Marcilin Anne Benvin.

Elizabeth O. White, Appellate Chief and Assistant United States Attorney, District of Nevada, Reno, Nevada, argued the cause on behalf of the real party in interest the United States. With her on the brief was Daniel G. Bogden, United States Attorney, District of Nevada, Reno, Nevada.

No appearance for Respondent.

Before: Diarmuid F. O'Scannlain, Marsha S. Berzon, and Jay S. Bybee, Circuit Judges.

Per Curiam Opinion

OPINION

Page 1098

PER CURIAM:

We must decide whether a district court improperly interjected itself into plea negotiations and, if it did so, whether mandamus is the appropriate remedy in this case.

Page 1099

I

On August 10, 2011, Marcilin Benvin was charged in a fifty-count indictment alleging wire fraud, mail fraud, aggravated identity theft, money laundering, embezzlement, theft from an employee benefit plan, and false statements and concealment of facts in employee benefit plan records. These charges arose from the government's investigation into Benvin's actions as president of Cetus Mortgage, a financial services company which filed for bankruptcy protection while Benvin was president.[1] Benvin entered a plea of not guilty to the indictment.

In due course, Benvin and the United States negotiated a plea agreement under Fed. R. Crim. P. 11(c)(1)(A)--(B). Under its terms, Benvin agreed to enter an unconditional guilty plea to one count of embezzlement and theft from an employee benefit plan (" Count 45" ). Benvin further agreed that the court could consider all relevant conduct in determining the applicable guidelines sentencing range and stipulated to restitution of $260,000 for the offense of conviction. For its part, the government agreed to move to dismiss the other forty-nine counts at sentencing and agreed not to bring additional charges arising from the investigation. The parties also stipulated to an eighteen-level enhancement to Benvin's advisory sentencing guidelines offense level.

A

On August 13, 2013, the parties appeared before the district court for a change-of-plea hearing. During the hearing, the district court questioned Benvin to ensure that her unconditional guilty plea to Count 45 was knowing and voluntary. After reviewing the terms of the plea agreement with the prosecutor, the district court engaged in a lengthy colloquy with counsel regarding the restitution provision in the plea agreement, and whether it was " binding" upon the court. Both defense counsel and the prosecutor explained that the plea agreement itself did not bind the court regarding the amount of restitution, but that the restitution statute limited the court's ability to order restitution to the offense of conviction. During the hearing, counsel also explained the parties' decision to reference the bankruptcy court's $3 million judgment against Benvin in connection with the criminal counts to be dismissed, and the difficulty of determining restitution for those counts.

The court stated that it would neither " accept the plea nor the plea agreement" until it had reviewed the presentence report. Defense counsel responded that, while the court could defer a decision on the plea agreement under Rule 11(c), it should accept the guilty plea once the requirements of Rule 11(b) were met. The court then explained that it would " terminate the hearing and . . . not accept the plea today if you take that position." The court rejected defense counsel's contention that Benvin was seeking to enter an unconditional guilty plea to Count 45, stating instead that Benvin's plea was conditional and that the plea agreement was binding on the court as to restitution. The court then terminated the hearing.

The next day, on August 14, 2013, the district court held a status conference, which it opened by stating:

The record should reflect that counsel from both sides appeared in chambers yesterday, and we discussed the potential of changing the plea agreement slightly so that it could go forward, and

Page 1100

that is my understanding of what you ...

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