DEFENDER SERVICES OFFICE
TRAINING DIVISION





The Defender Services Office Training Division furthers the right to effective assistance of counsel by providing training and other resources to attorneys appointed under the Criminal Justice Act.






    June 27, 2013
    Supreme Court Grants Cert to Address Restitution in Child Porn Cases; Issues Opinion in Hobbs Act Case

    Today, the Supreme Court granted certiorari in Paroline v. United States (No.12-8561), to address the following question:

    What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution in a child pornography case under 18 U.S.C. Sec. 2259?

    The Court also granted certiorari in a death penalty case, White v. Woodall (No. 12-794), to review the Sixth Circuit's grant of habeas relief on the ground that the trial court's failure to provide a no adverse inference instruction at the sentencing phase of the trial violated the defendant's Fifth Amendment right against self-incrimination. 

    In addition, yesterday, the Court issued an opinion in Sekhar v. United States (No. 12-357), holding that attempting to compel a person to recommend that his employer approve an investment does not constitute "the obtaining of property from another" under the Hobbs Act.  For more on the case, see this SCOTUSblog post.


    June 25, 2013
    Supreme Court Rules on SORNA Challenge Under Necessary and Proper Clause
    Yesterday, the Supreme Court issued an opinion in United States v. Kebodeaux (No. 12-418), holding that, as applied to respondent Anthony Kebodeaux, the registration requirements of the Sex Offender Registration and Notification Act fall within the scope of Congress’s authority under the Necessary and Proper Clause.  For more on the case, see this SCOTUSblog analysis, and this Volokh Conspiracy post.


    June 20, 2013
    Supreme Court Rules in ACCA Case That Modified Categorical Approach Only Applies to Divisible Statutes with Alternative Elements

    Today, the Supreme Court issued an opinion in Descamps v. United States, (No. 11-9540) holding that the "modified categorical approach" of determining whether a prior conviction under a state statute qualifies as a violent felony under ACCA does not apply to statutes that have only one set of indivisible elements. 

    In an 8-1 decision by Justice Kagan, with Justice Alito dissenting, the Court ruled that Descamps' conviction for California burglary under section 459 of the California Code does not qualify as a violent felony because the elements of the offense sweep more broadly than "generic" burglary, i.e., unlawfully entering a building, under ACCA.  In fact, the state statute is so broad as to cover shoplifting. The Court declined to apply the modified categorical approach, which would have permitted the examination of the underlying records of conviction to determine whether Descamps had actually unlawfully entered a building. Instead, the Court held that the modified categorical approach applies only to divisible statutes that set forth alternative elements.  Thus, whether Descamps admitted in his plea colloquy to breaking and entering was irrelevant because breaking and entering is not an element of section 459.

    The Court reaffirmed the reasons for the elements approach set forth in Taylor: (1) it comports with the ACCA text and history; (2) it avoids Sixth Amendment concerns; and (3) it avoids the "practical difficulties and potential unfairness of a factual approach." 

    The Court left open whether a sentencing court may look to judicial rulings interpreting a statute to determine its elements.  It also noted that the government forfeited the issue of whether California burglary qualifies as a violent felony under the residual clause.

    Justice Thomas, concurred, reiterating his view that Almendarez-Torres, should be overruled. 

    For more on the opinion, see this SCOTUSblog post.


    June 17, 2013
    Supreme Court Overrules Harris v. United States
    In Alleyne v. United States (No. 11-9335), issued today, the Supreme Court overruled Harris v. United States, to hold that any facts which increase a defendant's mandatory minimum sentence must be proved to a jury beyond a reasonable doubt.  

    The Court also issued an opinion in Salinas v. Texas (No. 12-246), holding that it was permissible for the prosecution at trial to comment on the defendant's pre-arrest silence during questioning.  Last week, the Court also handed down its opinion in United States v. Davila (No. 12-167), holding that when a judge participates in plea negotiations, contrary to Federal Rule of Criminal Procedure 11(c), the defendant's guilty plea need not be vacated if there is no evidence of prejudice.

    In Alleyne, a jury had convicted petitioner of using or carrying a firearm in relation to a crime of violence, 18 U.S.C. §924(c)(1)(A).  Under the statute, the mandatory minimum of five years increases to seven if the firearm is "brandished."  The jury indicated on the verdict form that Alleyne had used or carried a firearm, but did not indicate a finding that the firearm was "brandished."  Notwithstanding the verdict form, and over Alleyne's objection, the district court determined the evidence did support a finding of brandishing, and, citing Harris, imposed the mandatory minimum sentence of seven years.  The Court of Appeals affirmed. 

    In Harris, the Court held that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment, in contrast to factfinding that increases the statutory maximum.  In overruling Harris, the 5-4 Alleyne majority found that the distinction between mandatory maximums and minimums is inconsistent with Apprendi v. New Jersey and with the original meaning of the Sixth Amendment.  Writing for the majority Justice Thomas concluded, "Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt.  Mandatory minimum sentences increase the penalty for a crime.  It follows, then, that any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury."  The majority also made clear, however, that judges may still find uncharged facts by a preponderance when exercising broad discretion within a statutory range.

    For more on Alleyne, Salinas and Davila see these SCOTUSblog posts:
    Analysis of Alleyne v. United States
    Analysis of Salinas v. Texas
    Analysis of United States v. Davila

    June 10, 2013
    Supreme Court Holds That Ex Post Facto Clause Applies to Advisory Guidelines
    Today, the Supreme Court issued an opinion in Peugh v. United States (No. 12-62), holding that there is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.  This is so, notwithstanding that the Guidelines are now advisory, because “[a] retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”   For more on the opinion see this SCOTUSblog post.

    June 03, 2013
    Supreme Court Upholds Maryland Statute Permitting Routine Collection of DNA Samples from Arrestees
    Today, the Supreme Court issued an opinion in Maryland v. King (12-207), which addressed the constitutionality of the Maryland DNA Collection Act.  The Court held: "DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment."  For an analysis of the opinion, see this SCOTUSblog post.

    May 29, 2013
    Supreme Court Grants Cert on Aiding/Abetting Use of a Firearm; Issues Opinions in Two Habeas Cases
    Yesterday, the Supreme Court granted cert in Rosemond v. United States (No. 12-895) to address the elements required to prove the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime. In addition, the Court issued opinions in Trevino v. Thaler (No. 11-10189), allowing the petitioner's IAC claim to survive notwithstanding a procedural default, and McQuiggen v. Perkins (No. 12-126), holding that an actual innocence claim can survive the expiration of AEDPA's statute of limitations.  

    In Rosemond, the Court will determine whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

    In Trevino the Court held that when a state’s procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise on direct appeal a claim that his trial counsel provided ineffective assistance, the good cause exception recognized in Martinez v. Ryan applies.  '[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.'"  Whether raising such claims on direct appeal is explicitly barred, as in Martinez, or implicitly barred, as in Trevino, "[i]n both instances failure to consider a lawyer's 'ineffectiveness' during an initial-review collateral proceeding as a potential 'cause' for excusing a procedural default will deprive the defendant of any opportunity at all for review of an ineffective-assistance-of-trial-counsel claim." For an analysis of the opinion see this SCOTUSblog post.

    The Perkins majority held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in [Schlup v. Delo and House v. Bell], or as in this case, expiration of the statute of limitations."  The Court, however, also clarified that "[u]nexplained delay in presenting new evidence bears on the determination of whether the petitioner has made the requisite [miscarriage of justice] showing."  In other words, "[u]ntimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual innocence."  For more on the case, see this SCOTUSblog post.



    May 21, 2013
    Supreme Court Grants Cert on Consent to Search Issue; Also Rules on Denial of Defense Claim

    Yesterday, the Supreme Court granted cert in Fernandez v. California (No. 12-7822).  The issue presented is whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.

    The Court also issued an opinion in Metrish v. Lancaster (No. 12-547), holding that because the Michigan Court of Appeals did not unreasonably apply clearly established federal law when it retroactively applied a decision of the Michigan Supreme Court rejecting the diminished-capacity defense to petitioner, he was not entitled to habeas relief.  For more on the opinion, see this SCOTUSblog post.


    April 29, 2013
    Supreme Court to Determine Whether Distribution of Drugs Causing Death Is a Strict Liability Crime
    Today, the Supreme Court granted certiorari in Burrage v. United States (No. 12-7515).  The questions presented are:

    1. Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement.

    2. Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed “contributed to, ” death by “mixed drug intoxication,” but was not the sole cause of death of a person.

    The Court also dismissed Boyer v. Louisiana as improvidently granted.  The Court had granted cert on the question whether  "a state’s failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution’s choice to seek the death penalty, should be weighed against the state for speedy trial purposes."

    April 23, 2013
    Supreme Court Holds That Minor Marijuana Offense Is Not an Aggravated Felony Under INA

    In Moncrieffe v. Holder (No. 11-702) the Supreme Court held today that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute “illicit trafficking in a controlled substance” under section 1101(a)(43) of the Immigration and Nationality Act, and is thus not an aggravated felony subjecting a noncitizen to mandatory deportation and ineligibility for certain forms of discretionary relief. 

    Adrian Moncrieffe possessed 1.3 grams of marijuana, which was accepted as a "small amount." The Court applied the categorical approach, and concluded:
     
    This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as "illicit trafficking in a controlled substance," and thus an "aggravated felony."  Once again we hold that the Government’s approach defies "the 'commonsense conception' of these terms." Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, "does not fit easily into the ‘everyday understanding''' of "trafficking," which “‘ordinarily . . . means some sort of commercial dealing.’” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an "aggravated felony."  We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.


    April 23, 2013
    Sentencing Resource Counsel Rebut Sentencing Commission's Booker Report

    April 17, 2013
    Supreme Court Rejects Blanket Fourth Amendment Exigency Exception for Warrantless DUI Blood Tests
    In a decision handed down today in Missouri v. McNeely (No. 11-1425), the Supreme Court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.  Instead, "exigency in this context must be determined case by case based on the totality of the circumstances."  For an analysis of the opinion see this SCOTUSblog post

    April 12, 2013
    Sentencing Commission Votes to Promulgate Amendments to Guidelines
    On April 10, 2013, the Sentencing Commission voted to promulgate Amendments to the sentencing guidelines. These Amendments will be submitted to Congress by May 1, 2013. Barring congressional action, they will take effect November 1, 2013. For the full text of the Amendments see the Reader-Friendly Version. For an explanation of the changes made by the Amendments read this Summary of 2013 Proposed Amendments to the Sentencing Guidelines by the Sentencing Resource Counsel Project, and the Defender Letter to the Sentencing Commission Commenting on the Commission's Proposed Amendments.

    March 26, 2013
    Supreme Court Holds That Using a Drug Sniff Dog at the Front Door of A Home Constitutes a Search
    Today, the Supreme Court issued a decision in Florida v. Jardines (No. 11-564), holding that "The government's use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment." 

    The police had approached Jardines' home with a drug sniffing dog.  While the dog was on the porch, its handler informed the accompanying detective that the dog had alerted for narcotics.  On the basis of the positive alert, the detective applied for a warrant, searched the home and found the marijuana plants that later became the basis for drug trafficking charges. 

    Writing for the majority in a 5-4 decision, Justice Scalia based the Court's holding on property rights grounds: "One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred."

    For more on the opinion, see this SCOTUSblog post.

    February 26, 2013
    Supreme Court to Address Duties of Attorneys in Plea Bargaining; Admissibility of Evidence Challenging Mental Incapacity Defense
    Yesterday, the Court granted certiorari in Burt v. Titlow (No. 12-414) and Kansas v. Cheever (No. 12-609). 

    The issues presented in Burt v. Titlow are: (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

    In Cheever, the issues presented are:  (1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.

    For more on the cases see this SCOTUSblog post.

    February 22, 2013
    Supreme Court Hands Down Opinions in 6 Cases of Interest to Criminal Defense Practitioners
    Earlier this week the Supreme Court issued opinions addressing Fourth Amendment challenges to drug sniffing dogs (Florida v. Harris, No. 11-817) and to the detention of an individual incident to a search warrant (Bailey v. United States, No. 11-770); the retroactivity of Padilla v. Kentucky (Chaidez v. United States, No. 11-820); the definition of plain error under Rule 52(b) (Henderson v. United States, No. 11-9307); Double Jeopardy (Evans v. Michigan, No. 11-1327); and when a federal habeas claim has been adjudicated by a state court (Johnson v. Williams No. 11-465).

    In Florida v. Harris the Court reversed the Florida Supreme Court's holding that, to demonstrate a drug detection dog's reliability, the state must produce the dog's training and certification records, along with a checklist of evidence relating to the dog's reliability.  Instead, in a 9-0 opinion written by Justice Kagan, the Court held "[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a
    reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test."  The state can introduce evidence of a dog's reliability and the defendant can challenge that evidence, but the state is not subject to "an inflexible set of evidentiary requirements."   For more on the opinion see this SCOTUSblog post.

    In Bailey v. United States the Court held that Michigan v. Summers, 452 U.S. 692 (1981), which authorizes law enforcement officers “to detain the occupants of the premises while a proper search is conducted" without need for any level of suspicion, does not extend to the detention of a person who is not within the premises being searched or its "immediate vicinity."   As a result, the detention of an individual who had left the premises before the search began and was a mile away before police detained him was not lawful.  Justice Kennedy, writing for the majority, added that "[i]n closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors."  For an analyis of the opinion see this SCOTUSblog post.

    Reversing the judgment of the Fifth Circuit, the Court held in Henderson v. United States that regardless of whether a legal question was settled or unsettled at the time of trial, an error is “plain” within the meaning of Rule 52(b)so long as the error was plain at the time of appellate review. The district court had increased the length of Henderson's sentence so that he could participate in RDAP.  Henderson’s counsel did not object to the sentence, but, on appeal, Henderson claimed that the district court committed plain error by increasing his sentence solely for rehabilitative purposes. While the appeal was pending, the Supreme Court decided Tapia v. United States, holding that it is error for a court to "impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation."  Though the district court had committed legal error,  the Fifth Circuit held that the error was not "plain" because, in its view, an error is "plain" under Rule 52(b) only if it was clear under current law at the time of trial, whereas here circuit law was unsettled at the time of trial.  For more on the opinion see this SCOTUSblog post.

    In Chaidez v. United States the Court held that its decision in Padilla v. Kentucky, holding that the Sixth Amendment requires defense attorneys to inform criminal defendants of the deportation risks of guilty pleas, does not apply retroactively to cases already final on direct review.  For more on the opinion see this SCOTUSblog post.

    Reversing the judgment of the Supreme Court of Michigan in an 8-1 opinion authored by Justice Sotomayor, the Court in Evans v. Michigan held that the Double Jeopardy Clause bars retrial where the trial court directed a verdict of acquittal based on an error of law regarding the required elements of the offense. 

    In Johnson v. Williams the Court held that, for purposes of 28 U.S.C. § 2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant’s claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits.  For more on the opinion, see this SCOTUSblog post.






    January 22, 2013
    Supreme Court Grants Cert to Consider State's Retroactive Withdrawal of Diminished Capacity Defense; Application of Chemical Weapons Treaty to Poisoning Prosecution
    On Friday, January 18th, the Supreme Court granted certioriari in Bond v. United States (No. 12-158) and Metrish v. Lancaster (No. 12-547).Bond involves the use ofa global chemical weapons treaty as the basis for prosecuting a woman accused of attempting to poison her husband's lover.  In the habeas case of Metrish v. Lancaster, the Court will address whether the Michigan Supreme Court violated the defendant's due process rights when it retroactively withdrew a diminished capacity defense available at the time of the offense.  

    For more on these cases, see this SCOTUSblog post.

    January 14, 2013
    Supreme Court Takes Cases Addressing 5th Amendment Right Against Self-Incrimination, SORNA, and Hobbs Act Interpretation of Property
    On Friday, January 11, the Supreme Court granted certiorari in three cases of interest to federal criminal defense practitioners: Salinas v. Texas (No. 12-246); United States v. Kebodeaux (No. 12-418); and Sekhar v. United States (No. 12-357).

    In Salinas the question presented is "Whether or under what circumstances the Fifth Amendment's self-incrimination clause protects a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights."

    In Kebodeax the Court will address two questions: (1) "Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender."  (2) "Whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted."

    The question presented in Sekhar is: "Whether the 'recommendation' of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. §1951(a)(the Hobbs Act) and 18 U.S.C. §875(d)."

    January 11, 2013
    Supreme Court Rules Defendant Must Prove Withdrawal from Conspiracy; Federal Habeas Petitioner Has no Right to Halt Proceedings When Incompetent
    Earlier this week, the Supreme Court issued an opinion in Smith v. United States, holding that the defendant bears the burden of proving his withdrawal from a conspiracy.  The Court also issued opinions in the companion cases of Tibbals v. Carter and Ryan v. Gonzales (Nos. 10-930, 11-218) holding that state prisoners do not have a right to delay their federal court habeas challenges until they are mentally competent enough to proceed.  For more on Smith see this Federal Evidence Review analysis.  For more on Tibbals v. Carter and Ryan v. Gonzales see this SCOTUSblog post.

    January 07, 2013
    Supreme Court to Address Judicial Participation in Plea Discussions
    On Friday, January 4, the Supreme Court granted certiorari in United States v. Davila (No. 12-167), in which it will decide: "Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant’s guilty plea, irrespective of whether the error prejudiced the defendant."

    According to the opinion of the Eleventh Circuit, during an in camera hearing before a magistrate judge, Davila requested a new attorney because counsel had not discussed defense strategies with him, other than pleading guilty. The magistrate judge responded that "there may not be viable defenses to these charges," and that pleading guilty sometimes was the best advice an attorney could provide his client. The magistrate judge proceeded to inform Davila that "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 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 believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance."

    Davila later pleaded guilty.  On appeal he argued that the magistrate judge's comments at the in camera hearing amounted to improper participation in his plea discussions, requiring that his conviction be vacated, despite his failure to object to the magistrate judge's comments, because the comments clearly  violated his substantial rights and undermined the integrity of the proceedings.

    The Eleventh Circuit held that magistrate judge's comments amounted to judicial participation in plea discussions and that Davila need not show any individualized prejudice.

 

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