9 Cir: Operation Streamline proceeding violates Rule 11; vacates conviction

The U.S. Court of Appeals for the Ninth Circuit held that a criminal conviction obtained through Operation Streamline violated Rule 11 of the Federal Rules of Criminal Procedure and vacated the noncitizen defendant’s conviction. United States v. Arqueta-Ramos, No. 10-10618, slip op. (9th Cir. September 20, 2013) (Fernandez, Paez, and Berzon, JJ.). Judge Paez wrote the panel’s opinion.

This case involved a woman who pleaded guilty to illegally entering the United States, a misdemeanor violation of INA § 275(a). The Arizona federal district court, where this occurred, accepted Arqueta-Ramos’ plea during the course of an Operation Streamline proceeding. Under Operation Streamline, federal prosecutors pursue criminal charges against almost everyone caught unlawfully crossing the border. Arqueta-Ramos, No. 10-10618, slip op. at 4. As I described in an article in the Maryland Law Review, Operation Streamline

“has resulted in skyrocketing criminal dockets in federal district and magistrate courts. According to the Ninth Circuit’s Judicial Council, ‘Tucson division magistrate judges hear 70 Operation Streamline cases per workday. During Calendar Year 2010, the Tucson Division disposed of 20,066 immigration petty offense cases, of which 16,981 were part of Operation Streamline.’ This caseload, the Judicial Council added, is ‘crushing’ and ‘taking a severe toll on staff.’”

César Cuauhtémoc García Hernández, Stricklane-Lite: Padilla’s Two-Tiered Duty for Noncitizens, 72 Maryland Law Review 844, 915-16 (2013) (internal citations omitted).

To cope with the large number of prosecutions, the federal court “‘has adopted a procedure for the taking of pleas en masse intended to preserve the rudiments of [Federal Rule of Criminal Procedure] 11 and the [C]onstitution.” Arqueta-Ramos, No. 10-10618, slip op. at 4-5 (quoting United States v. Roblero-Solis, 588 F.3d 692, 693 (9th Cir. 2009)).

That’s exactly what occurred in Arqueta-Ramos’ criminal proceeding. The presiding magistrate judge “took a roll call of sixty-six defendants” represented by fifteen lawyers. Arqueta-Ramos, No. 10-10618, slip op. at 5-6. The judge addressed the group of sixty-six defendants collectively and asked them to stand up if they had a question, did not understand, or had trouble hearing through their headphones. Arqueta-Ramos, No. 10-10618, slip op. at 6. No one stood. The judge then proceeded to advise them of their pre-trial and trial rights. Arqueta-Ramos, No. 10-10618, slip op. at 6.

After advising them of their rights in this way, the judge had the defendants come to the front of the courtroom in groups of five with their attorney. The judge then addressed those groups of five, inquiring whether they understood their rights and asking their attorneys whether they thought the clients understood. Arqueta-Ramos, No. 10-10618, slip op. at 8. The record does not indicate whether any given individual responded. Instead, the record simply states “All answer yes” or “All answer no” for the series of questions that the judge posed. Arqueta-Ramos, No. 10-10618, slip op. at 7-8. The only individual response that appears in the record was when the judge asked Arqueta-Ramos how she wished to plead and she responded “Guilty.” Arqueta-Ramos, No. 10-10618, slip op. at 9.

This, the Ninth Circuit concluded, did not meet Rule 11(b)(1)’s requirement that the court address each defendant “personally.” Arqueta-Ramos, No. 10-10618, slip op. at 13. According to the panel, “the [plea] court did not engage in ‘person to person’ speech during the advisement of rights or or the subsequent small group questioning of the defendants.” Arqueta-Ramos, No. 10-10618, slip op. at 13.

The court then went on to conclude that this Rule 11 violation prejudiced Arqueta-Ramos. Importantly, the court noted that Arqueta-Ramos, through her attorney, properly raised an objection to the proceedings on the grounds that the Streamline proceeding violated Rule 11. By properly preserving her objection, the burden at the appellate level fell on the government to show that she would have pleaded guilty even had Rule 11 not been violated. Arqueta-Ramos, No. 10-10618, slip op. at 14. This proved crucial because the government could not overcome this burden.

Interestingly, the Ninth Circuit identified a fatal flaw in the proceeding. According to the court, the record provides almost no information about what Arqueta-Ramos did, said, or thought. As the court put it, “we are not certain that the magistrate judge would have detected if Arqueta-Ramos failed to answer one of the questions.” Arqueta-Ramos, No. 10-10618, slip op. at 16. In other words, the record doesn’t indicate whether the magistrate judge even knew whether Arqueta-Ramos said anything, nonetheless whether she too said “yes” or “no” in response to a specific question.

In the end, this is a remarkable development in the ongoing litigation against Operation Streamline’s en masse hearings. It doesn’t, however, mean the end of Operation Streamline. On the contrary, the Ninth Circuit limited its holding in a rather significant manner by noting that “the [plea] court did not err by advising the defendants of their rights en masse.” Arqueta-Ramos, No. 10-10618, slip op. at 3. It only went astray “by not questioning Arqueta-Ramos individually to ensure that she understood her rights.” Arqueta-Ramos, No. 10-10618, slip op. at 3-4. In other words, the plea court can advise defendants of their rights en masse as Operation Streamline courts do every day, but they must follow this with individualized questioning of defendants to ensure that every defendant understood the rights described by the court. Had the plea court asked Arqueta-Ramos individually whether she understood the rights she was being asked to waive, things might have turned out differently.

For a wonderful article discussing Operation Streamline, see Jennifer M. Chacón, Managing Migration Through Crime, 109 Columbia Law Review Sidebar 135 (2009).