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Second Circuit Reminds District Courts to Adhere to Plea Colloquy Rule Requirements

In a summary order in United States v. Zea, No. 15-1531-cr, issued by the Court (Walker, J., Cabranes, J., Lohier, J.) on September 1, 2016, the Court affirmed a conviction for attempted provision of material support to a foreign terrorist organization.  As in many recent cases, the Court considered an argument that a guilty plea should be undone because of deficiencies in the plea allocution.  In this instance, the defendant identified three aspects of Rule 11 of the Federal Rules of Criminal Procedure with which the district court did not comply.  The Court held that this was not reversible error under the applicable plain error standard because there was no “reasonable probability” that but for the error the defendant would not have entered the guilty plea. 

This order is not remarkable in any way except that, after the Court ruled against the defendant, the Court added that it was “tak[ing] this opportunity—in exercise of our supervisory authority over the district courts and the members of the bar of this Court. . .  to remind the District Court that ‘[w]e have adopted a standard of strict adherence to Rule 11,’ and that ‘[t]echnical errors can be avoided if a district or magistrate judge has a standard script for accepting guilty pleas, which covers all of the required information.’”  (quoting United States v. Pattee, 820 F.3d 496, 503 (2d Cir. 2016)).  The Court continued to explain that defense attorneys and prosecutors both are obliged to alert the district court if there are Rule 11 errors in the allocution.  The Court directed that a copy of this order be conveyed to the Chief Judge of all six districts within the Second Circuit and that it be brought to the attention of all district court and magistrate judges.  This unusual step suggests that the Court is perturbed with the many cases in which preventable Rule 11 issues form the basis for an appeal.  The invocation of the Court’s supervisory authority also raises the possibility that the Court will reverse some guilty pleas even if there is no plain error simply to make sure that their message—use a script or checklist for a guilty plea—is heard loud and clear.

-By Patrick D. Gibson and Harry Sandick