In United States v. Davila, the defendant pled guilty to conspiracy to defraud the United States by obtaining false tax refunds. Prior to his plea, the defendant requested that the magistrate judge discharge his court-appointed attorney for failing to discuss any strategies aside from pleading guilty. At this hearing, the magistrate judge instructed the defendant as follows:
"The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means that you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and . . . someone with your criminal history needs a three-level reduction for acceptance."
On appeal, the Eleventh Circuit held that the magistrate judge’s comments violated Federal Rule of Criminal Procedure 11(c)(1), which prohibits “the participation of the judge in plea negotiations under any circumstances.” Even though the defendant failed to raise a Rule 11 violation on appeal, the Eleventh Circuit held that a violation of this rule is plain error and the defendant was not required to show actual prejudice. Although other circuits recognize harmless error in this context, the Eleventh Circuit made clear that it does not, explaining that even if judicial participation is well-intentioned it will result in convictions being vacated, remanded, and reassigned to another judge.