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The Eleventh Circuit Holds That A District Court Can’t Ask Folks Who Have Been Charged With A Crime If They’ve Talked About A Plea Yet

You’ve got to feel for federal district judges.

Their caseloads are going up as the Senate refuses to confirm judges to replace those who have left the bench. Justice Scalia doesn’t respect them. Their pay hasn’t been meaningfully increased in years.

So you could understand why a federal district court judge would want to have fewer trials.

Of course, the easiest way to see a case not go to trial is to see it result in a plea.

But a federal judge isn’t allowed to participate in the plea negotiations between the parties (it’s in the rules – Federal Rule of Criminal Procedure 11(c)).

What counts as participating in plea negotiations? As it happens, the Eleventh Circuit recently opined on that question in United States v. LaCour.

1213599_pills.jpgMr. LaCour’s Internet Drug Emporium

Jude LaCour ran a business called the Jive Network. In an effort to cut down on the spiraling cost of prescription medicines, and how expensive it can be to find a doctor to write a prescription, the Jive Network ran a number of webpages.

Customers of the Jive Network would fill in an online form about their health. They would order drugs that they thought would ameliorate whatever health condition they suffered from.

A doctor would review the web form. The doctor had no ability to change the amount or kind of drug, but the doctor did have to sign off on the prescription. The Jive Network would then issue a prescription in the doctor’s name and send out the drugs.

One doctor who worked at the Jive Network filled prescriptions in as little as six seconds.

From 2002 to 2005, the Jive Network had more than $85 million in revenue.

Mr. LaCour’s Federal Criminal Case

Mr. LaCour was indicted, along with a few of the doctors who worked for the Jive Network, in a 53 count indictment that accused them of conspiracy to distribute Schedule III and Schedule IV prescriptions without a valid prescription, a few individual counts of distributing drugs without a prescription, and a rack of money laundering charges.

Many folks pled.

The district court judge assigned to the case wanted to make sure that everyone who didn’t plead knew that they had the option of trying to negotiate a plea.

During a status conference, the district court asked the government and the lawyers for the people accused of a crime if plea negotiations had happened. The district court specifically talked about whether there’s a way to structure a plea so that it would have less affect on the professional licenses of the doctors who were accused.

The district court concluded the conversation by telling everyone that he would be the judge to sentence everyone – apparently some of the cases were assigned to another judge – and that knowing who the judge is would matter a lot to the defendants.

Then, a few weeks later, the district court raised plea possibilities again. As the Eleventh Circuit described it:

The District Court stated, “I want to now address each of the defendants individually and talk about the possibility of other resolutions of this matter other than a trial.” The District Court acknowledged that it is “strictly prohibited from attempting to work out any kind of an agreement upon resolution of the case short of a trial.” The Court nonetheless went on to note that “[t]his case if there is a conviction requires the Court [to] determine here that defendant fits with respect to the sentencing guidelines.” The Court then distributed a chart that, based on the record, may have shown the sentencing guidelines ranges, and it went on to discuss the history of the federal sentencing regime and the applicable law as it stands. In describing the current sentencing regime, the District Court stated that “the Supreme Court has made it pretty clear . . . that we judges have a great deal of discretion in that area.”

That last statement is kind of odd. It’s sort of like “remember, I’m the guy you want to make sure is happy at the end of the day.”

The District Court did state, “Remember, I’m not permitted to engage in plea negotiations, so I’m not suggesting to any defendant that you should consider pleading guilty.” The District Court, however, said: “But I am concerned that you understand what the position of the government is if in fact you should want to think about pleading guilty. . . . I’m not interested in the details [of any offer], but I want to be sure that each defendant for whom the government has presented a proposition knows about the proposal.” The District Court then asked the government to indicate whether it had presented a proposal to the defendants. The government stated that it did put forward a proposal for each defendant. The District Court then directly asked each individual defendant, including all five appellants, whether they had seen the proposal.”

Not more than two weeks later, the trial started.

The court of appeals held that this was over the line. Because “the district court explicitly indicated that it would like the defendants to begin and engage in plea negotiations” it violated the commandment in Rule 11 not to participate in the negotiation.

As most folks know, the Supreme Court recently held that defense counsel can be ineffective in messing up plea negotiations. If the district court had said, instead of what he did here, something like “I just want to make sure everyone’s being constitutionally effective – defense counsel, have you talked about plea negotiations” would that violate Rule 11? I suppose we’ll have to find out.

Mr. LaCour, as a result, had his sentence reversed and remanded so that he could be resentenced in front of a different judge.

Interestingly, the other folks who the district court encouraged to plead won’t be eligible for resentencing because they didn’t appeal anything else in connection with their sentences. Deeply unlucky.

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