FSM SUPREME COURT APPELLATE DIVISION

Cite as Kinere v. Kosrae, 14 FSM Intrm. 375 (App. 2006)

[14 FSM Intrm. 375]

JOHN R. KINERE,

Appellant,

vs.

STATE OF KOSRAE,

Appellee.

APPEAL CASE NO. K2-2005

OPINION

Argued: May 2, 2006

Decided: August 28, 2006

BEFORE:

     Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

     Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

     Hon. Keske S. Marar, Temporary Justice, FSM Supreme Court*

           *Acting Chief Justice, Chuuk State Supreme Court, Weno, Chuuk

[14 FSM Intrm. 376]

APPEARANCES:

For the Appellant:   Harry A. Seymour, Esq.

                                 Office of the Public Defender

                                 P.O. Box 245

                                 Tofol, Kosrae   FM   96944

For the Appellee:   J.D. Lee, Esq.

                                 Attorney General, State of Kosrae

                                 P.O. Box 870

                                 Tofol, Kosrae   FM   96944

* * * *

HEADNOTES

Criminal Law and Procedure ) Pleas ) Withdrawal

    Kosrae Criminal Procedure Rule 32(d) provides that a motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. The burden of establishing manifest injustice lies with the defendant. To meet this burden, the defendant must show that his conviction was obtained through fraud, imposition upon him, or misapprehension of his legal rights, and/or that he is not guilty of the crimes charged. Kinere v. Kosrae, 14 FSM Intrm. 375, 381 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    The trial court’s denial of the Rule 32(d) motion to withdraw his guilty plea is reviewed for an abuse of discretion and the trial court’s underlying factual findings are reviewed for clear error. Kinere v. Kosrae, 14 FSM Intrm. 375, 381 (App. 2006).

Criminal Law and Procedure

    Although FSM courts must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courts’ decisions, when a court has not previously construed a criminal procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. Kinere v. Kosrae, 14 FSM Intrm. 375, 382 n.1 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    A trial court abuses its discretion when it renders a decision that is clearly unreasonable, arbitrary, or fanciful, based on an erroneous conclusion of law, or unsupported by the evidence. Kinere v. Kosrae, 14 FSM Intrm. 375, 382 (App. 2006).

Criminal Law and Procedure ) Pleas ) Withdrawal; Criminal Law and Procedure ) Right to Counsel

    Ineffective assistance of counsel during plea negotiations may invalidate a guilty plea if counsel’s deficient performance undermined the voluntary and intelligent nature of the defendant’s decision to plead guilty. Kinere v. Kosrae, 14 FSM Intrm. 375, 382 (App. 2006).

Criminal Law and Procedure ) Right to Counsel

    To prevail on an ineffective assistance of counsel claim, an appellant must show that 1) counsel’s performance was so deficient that it fell below an objective standard of reasonableness, and 2) the deficient performance prejudiced the defense. Under the first prong of the analysis, courts must

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indulge in a strong presumption of attorney competence. The second prong of the analysis requires an appellant to demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceedings would have been different (i.e., better). If the appellant cannot satisfy the first prong of this test, the court’s inquiry will proceed no further. Kinere v. Kosrae, 14 FSM Intrm. 375, 382 (App. 2006).

Criminal Law and Procedure ) Pleas ) Withdrawal; Criminal Law and Procedure ) Right to Counsel

    To meet the second prong of the ineffective assistance of counsel analysis in the context of plea negotiations, an appellant must demonstrate a reasonable probability that, but for attorney error, he would have proceeded to trial. Kinere v. Kosrae, 14 FSM Intrm. 375, 382 (App. 2006).

Criminal Law and Procedure ) Right to Counsel

    To resolve an argument that the defendant’s counsel was constitutionally ineffective for failing to raise a double jeopardy defense before the defendant entered his guilty pleas, the court must necessarily consider the merits of the defendant’s double jeopardy claim, since counsel may not be declared constitutionally ineffective for failing to raise a defense that would not have benefited the client. Kinere v. Kosrae, 14 FSM Intrm. 375, 382 (App. 2006).

Criminal Law and Procedure ) Right to Counsel

    It is axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective assistance of counsel. A position that as long as a defendant has a defense that has historically been recognized as meritorious, he automatically prevails on his ineffectiveness claim without having to prove that the defense would have been meritorious in his case is clearly flawed reasoning. Kinere v. Kosrae, 14 FSM Intrm. 375, 382 & n.2 (App. 2006).

Criminal Law and Procedure ) Double Jeopardy

    Both the FSM and Kosrae constitutions contain protections against double jeopardy. The purpose of these provisions is to prevent the government from making repeated attempts to convict an individual for the same alleged act. They protect against a second prosecution for the same offense following conviction or acquittal and against multiple punishments for the same offense. Kinere v. Kosrae, 14 FSM Intrm. 375, 383 (App. 2006).

Criminal Law and Procedure ) Double Jeopardy; Criminal Law and Procedure ) Sentencing

    There can be no cumulative punishment for a single offense absent clear legislative intent. Kinere v. Kosrae, 14 FSM Intrm. 375, 383 (App. 2006).

Criminal Law and Procedure ) Sexual Offenses

    In Kosrae law, sexual assault is intentionally subjecting another person to sexual penetration, or forcing another person to make a sexual penetration on himself or another or on an animal, against the other person’s will, or under conditions in which the offender knows or should know that the other person is mentally or physically incapable of resisting or understanding the nature of his conduct. Sexual penetration is sexual intercourse, cunnilingus, fellatio, anal or oral intercourse, or the causing of penetration of the genital, anal, or oral opening of another to any extent and with any object whether or not there is an emission. Kinere v. Kosrae, 14 FSM Intrm. 375, 383 n.4 (App. 2006).

Criminal Law and Procedure ) Double Jeopardy; Criminal Law and Procedure ) Sexual Offenses

    When the defendant committed three distinct acts upon the victim and the act of fellatio occurred at a different time and in a different location than did the acts of anal intercourse and the two acts of anal intercourse were separated by an act of battery (a bite) the defendant penetrated the victim’s body at least three times and he thus, did not receive multiple punishments for a single offense. On the contrary, he received multiple punishments for multiple offenses. The State was not required to prove

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that a significant amount of time elapsed between the three acts of penetration. Kinere v. Kosrae, 14 FSM Intrm. 375, 384 (App. 2006).

Criminal Law and Procedure ) Double Jeopardy

    A court will not approve any principle which exempts one from prosecution from all the crimes he commits because he sees fit to compound or multiply them. Such a principle would encourage the compounding and viciousness of the criminal acts. Kinere v. Kosrae, 14 FSM Intrm. 375, 385 (App. 2006).

Criminal Law and Procedure ) Double Jeopardy; Criminal Law and Procedure ) Information

    When, although the language of counts six and eight was identical, the two acts of anal penetration were separated by an act of battery and the defendant penetrated the victim three separate times and although counts six and eight should have included distinguishing language, the duplication in the information, in itself, did not compromise the defendant’s constitutional right against double jeopardy. Kinere v. Kosrae, 14 FSM Intrm. 375, 386 (App. 2006).

Criminal Law and Procedure ) Double Jeopardy; Criminal Law and Procedure ) Right to Counsel

    Having concluded that counsel was not constitutionally ineffective for failing to raise the defense of double jeopardy, the court must conclude that it is irrelevant whether counsel would have raised the defense if he had pondered the case longer. Kinere v. Kosrae, 14 FSM Intrm. 375, 386 (App. 2006).

Criminal Law and Procedure ) Sentencing

    A harsh sentence does not constitute manifest injustice, particularly when the sentence conforms to statutory guidelines. Kinere v. Kosrae, 14 FSM Intrm. 375, 386 n.8 (App. 2006).

Criminal Law and Procedure

    Since Kosrae’s Rules 11(e)(1) and 52(b) are derivative of their United States counterparts, the court therefore, may examine United States case law interpreting those rules. Kinere v. Kosrae, 14 FSM Intrm. 375, 387 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    When the defendant raised as a ground for his motion to recuse the trial judge that the trial judge participated in the plea negotiations, in violation of Kosrae Criminal Procedure Rule 11(e)(1), although the defendant did not argue that the trial court’s involvement in plea discussions violation warranted vacation of his conviction, (only that it warranted recusal), the issue was not forfeited. Kinere v. Kosrae, 14 FSM Intrm. 375, 387 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    When an issue has been forfeited through failure to raise and preserve the issue, an appellate court may address it only when there has been a plain error affecting the defendant’s constitutional rights; or when the error affects a criminal defendant’s substantial rights; or when the error is obvious and substantial and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Kinere v. Kosrae, 14 FSM Intrm. 375, 387 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    When an issue is not raised in the appellate briefs or oral argument, the appellate court should (but not must) exercise its discretion to notice a forfeited error if that error seriously affects the judicial proceeding’s fairness, integrity, or public reputation. Kinere v. Kosrae, 14 FSM Intrm. 375, 387 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases; Criminal Law and Procedure ) Pleas

    A judge’s involvement in plea discussions in violation of Rule 11(e)(1) is plain error. One of the principles behind the rigid enforcement of Rule 11(e)(1), is to protect the integrity of the judicial process so that the judge’s impartiality and objectivity shall not be open to any questions or suspicions when it becomes his duty to impose sentence. Kinere v. Kosrae, 14 FSM Intrm. 375, 387 (App. 2006).

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Criminal Law and Procedure ) Pleas

    The government attorney and the defendant’s attorney may engage in discussions with a view toward reaching a plea agreement. The court shall not participate in any such discussions. Kinere v. Kosrae, 14 FSM Intrm. 375, 387 (App. 2006).

Criminal Law and Procedure ) Pleas

    A conference, which counsel sought and at which they discussed their impasse in plea negotiations and presented the case and their positions to the trial judge is an improper and inappropriate procedure. Counsel should not ask the court to give any opinion on a possible plea agreement until a final agreement is properly presented to the court in its entirety. Kinere v. Kosrae, 14 FSM Intrm. 375, 387-88 & n.9 (App. 2006).

Criminal Law and Procedure ) Pleas

    A judge’s indication of sentence necessarily constitutes `participation in such [plea agreement] discussions. Rule 11(e)(1)’s command with regard to plea negotiations is simple and admits of no exceptions: the court shall not participate in any such discussions. Rule 11(e)(1) is an absolute prohibition on all forms of judicial participation in or interference with the plea negotiation process. The court’s role is to evaluate a plea agreement once it has been reached by the parties and discussed in open court. Prior to that time, a court should not offer comments touching upon proposed or possible plea agreements. Kinere v. Kosrae, 14 FSM Intrm. 375, 388 (App. 2006).

Criminal Law and Procedure ) Pleas

    Rule 11 means what it says: the court shall not participate in any plea negotiations. Rule 11(e)(1) is a bright-line rule prohibiting all forms of judicial participation before the parties have reached a plea agreement and disclosed the agreement in open court. Kinere v. Kosrae, 14 FSM Intrm. 375, 388 (App. 2006).

Criminal Law and Procedure ) Pleas

    The primary reason for Rule 11 is that a judge’s participation in plea negotiation is inherently coercive. Rule 11 is designed to totally eliminate judicial pressure from the plea bargaining process. Judicial participation in plea negotiation discussions also threatens the trial judge’s impartiality. Rule 11(e)(1)’s bar of judicial participation in the plea discussions also serves to preserve the judge’s impartiality after the negotiations are completed. This is because judicial participation in a plea discussion makes it difficult for a judge to later objectively assess the voluntariness of the plea; risks the loss (if the plea negotiations fail) of the judge’s impartiality during trial; and diminishes the judge’s objectivity in post-trial matters such as sentencing and motions for acquittal. Rule 11(e)(1) also protects the integrity of the judicial process ) so that the judge’s impartiality and objectivity shall not be open to any questions or suspicions when it becomes his duty to impose sentence. The judge’s role must be that of a neutral arbiter of the criminal prosecution: his involvement in the adversary process of plea negotiation is beyond and detracts from that judicial duty. Kinere v. Kosrae, 14 FSM Intrm. 375, 388 (App. 2006).

Criminal Law and Procedure ) Pleas

    A defendant who has pled guilty after the judge has participated in plea discussions should be allowed to replead, without having to show actual prejudice has resulted from the participation.

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Regardless of whether he has shown actual prejudice, a defendant who has pleaded guilty after the judge has participated in plea discussions is entitled to replead. Judicial participation in plea discussions is not harmless error. This is because the court cannot measure the harm to the defendant because it cannot know what agreement, if any would have been reached absent judicial participation. Kinere v. Kosrae, 14 FSM Intrm. 375, 388-89 (App. 2006).

Criminal Law and Procedure ) Pleas

    When a case is remanded to permit the defendant to replead because the trial judge had participated in plea discussion in violation of Rule 11(e)(1), the case will be reassigned to another judge as a prophylactic measure. Kinere v. Kosrae, 14 FSM Intrm. 375, 389 (App. 2006).

* * * *

COURT’S OPINION

MARTIN G. YINUG, Associate Justice:

    John R. Kinere appeals the Kosrae State Court May 6, 2005 order denying his motion to set aside the judgment of conviction and withdraw his guilty plea. Kinere was charged with seventeen counts of assault, assault and battery, kidnapping, and sexual assault. On October 31, 2001, he pled guilty to two counts of kidnapping, in violation of Kos. S.C. § 13.306, and four counts of sexual assault, in violation of Kos. S.C. § 13.311. The trial court entered a judgment of conviction on November 5, 2001.

    Kinere presents two issues for review: whether the trial court abused its discretion in denying (1) his Rule 32(d) motion to set aside the judgment of conviction and withdraw his guilty pleas and (2) his motion to recuse the trial judge. After carefully considering the record, the filings, the parties’ arguments, and the applicable law, we conclude that, on remand, Kinere ought to have the opportunity to withdraw his guilty pleas. If Kinere does so, then this case must be assigned to a different trial judge. Our reasoning follows.

I.   Facts and Procedural History

    The criminal information alleged the following. Around 8:00 p.m. on June 13, 2001, Kinere forced two young boys, S.S., age 13, and C.C., age 14, to accompany him to an abandoned house in Lelu Municipality. There, he terrorized and beat the boys. He then forced them outside, where he battered, threatened, and sexually assaulted them. Kinere released the boys around 2:00 a.m. on June 14, 2001. He threatened the boys with death if they told anyone about the attack.

    Kinere was arrested on June 15, 2001. On June 16, 2001, the State filed an information, charging him with seventeen counts of assault, assault and battery, kidnapping, and sexual assault. Eleven of the counts involved S.S., and six involved C.C. At the initial appearance on June 16, 2001, Kinere pled not guilty to all counts.

    On October 22, 2001, the State made an initial plea offer: If Kinere pled guilty to kidnapping and sexual assault, the State would recommend a sentence of fifteen years incarceration and fifteen years probation, or thirty years. Kinere rejected the State’s offer on October 23, 2001, and made a counteroffer: ten years imprisonment and ten years probation, on condition that the State drop the kidnapping charges, along with certain other charges. The State rejected the counteroffer.

    Having reached an impasse in their plea negotiations, the parties requested a conference with

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the trial judge. During the conference, which took place on October 29 or 30, 2001, the parties presented their positions to the judge, who advised that, if Kinere pled guilty, he would likely impose a sentence of sixty years, forty of which would be suspended. Afterwards, trial counselor Albert Welly, Kinere’s attorney, told Kinere that, if the matter proceeded to trial, he faced the possibility of a lengthy sentence.

    On October 31, 2001, the scheduled trial date, Kinere pled guilty to two counts of kidnapping, in violation of Kos. S.C. § 13.306, and four counts of sexual assault, in violation of Kos. S.C. § 13.311. On November 5, 2001, the trial judge entered a judgment of conviction and sentenced Kinere to sixty years, twenty of which would be served, and forty of which would be suspended.

    On January 5, 2005, Kinere, with the assistance of new counsel, filed a motion, pursuant to Criminal Procedure Rule 32(d), to set aside the judgment of conviction and permit withdrawal of his guilty pleas. The State did not initially file a response. The trial court held a hearing on February 1, 2005, after which it took the motion under advisement and informed the parties that it might issue a decision within two days. The following day, the State moved for permission to file a response out of time. Over Kinere’s objection, the trial court granted the motion.

    On February 15, 2005, Kinere moved for recusal, stating that he "intend[ed] to call several witnesses to testify that [the trial judge] has a judicial bias in this post trial matter." Two of the planned witnesses, both prosecutors, would testify that, following the February 1, 2005, hearing, the trial judge telephoned the Attorney General’s office concerning the State’s failure to respond to Kinere’s Rule 32(d) motion. A third witness, also a prosecutor, would testify that the trial judge told him that he was disappointed by the State’s failure to respond to the motion. Kinere also alluded to the trial judge’s "prior involvement in the case."

    On February 23, 2005, the trial court held a hearing on the recusal motion. The court denied the motion from the bench, on the ground that it was not supported by an affidavit. On May 6, 2005, the trial court denied Kinere’s Rule 32(d) motion. Kosrae v. Kinere, 13 FSM Intrm. 230 (Kos. S. Ct. Tr. 2005). Kinere appeals both denials as abuses of the trial court’s discretion.

II.  Analysis

A.   Whether the Trial Court Abused Its Discretion in Denying the Rule 32(d) Motion

    Kosrae Criminal Procedure Rule 32(d) provides: "A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea." The burden of establishing manifest injustice lies with the defendant. To meet this burden, the defendant must show that his "conviction was obtained through fraud, imposition upon him, or misapprehension of his legal rights, and/or that he is not guilty of the crimes charged." Trust Territory v. Edgar, 11 FSM Intrm. 303, 306 (Chk. S. Ct. Tr. 2002).

1.   Ineffective Assistance of Counsel Claim

    Kinere does not argue fraud, imposition, or that he is not guilty of the crimes charged. He contends that because his trial attorney, Albert Welly, was constitutionally ineffective, his conviction was the product of misapprehension of his legal rights. The trial court concluded that Kinere did not suffer manifest injustice as a result of ineffective assistance of counsel. We review the trial court’s denial of the Rule 32(d) motion for an abuse of discretion and the trial court’s underlying factual findings for clear error. United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005); United States v.

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Milquette, 214 F.3d 859, 861 (7th Cir. 2000); United States v. Lake, 709 F.2d 43, 45 (11th Cir. 1983). A trial court abuses its discretion when it renders a decision that is "clearly unreasonable, arbitrary, or fanciful," based on an erroneous conclusion of law, or unsupported by the evidence. Panuelo v. Amayo, 12 FSM Intrm. 365, 372 (App. 2004); Kosrae Island Credit Union v. Palik, 10 FSM Intrm. 134, 138 (App. 2001); Jano v. King, 5 FSM Intrm. 326, 330 (App. 1992).

    Ineffective assistance of counsel during plea negotiations may invalidate a guilty plea if counsel’s deficient performance "undermine[d] the voluntary and intelligent nature of [the] defendant’s decision to plead guilty." Arteca, 411 F.3d at 320. To prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) counsel’s performance was so deficient that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 478 (App. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Under the first prong of the analysis, courts must indulge in a strong presumption of attorney competence. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. The second prong of the analysis requires an appellant to demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceedings would have been different (i.e., better). Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. To meet the second prong in the context of plea negotiations, an appellant must demonstrate a reasonable probability that, but for attorney error, he would have proceeded to trial. Arteca, 411 F.3d at 320 (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370-71, 88 L. Ed. 2d 203, 210 (1985)). If Kinere cannot satisfy the first prong of this test, our inquiry will proceed no further.

a.   Kinere’s Double Jeopardy Argument

    Kinere’s primary argument is that Welly was constitutionally ineffective for failing to raise a double jeopardy defense before Kinere entered his guilty pleas. To resolve this argument, we must necessarily consider the merits of Kinere’s double jeopardy claim, since, contrary to Kinere’s statements on appeal, counsel may not be declared constitutionally ineffective for failing to raise a defense that would not have benefited the client. "[I]t is axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective assistance" of counsel. Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994). We will therefore discuss the merits of the double jeopardy defense for the purpose of determining whether Welly’s trial assistance was constitutionally ineffective. Kinere contends that he did not fully understand his legal rights because his trial attorney was constitutionally ineffective, and that he wanted to proceed to trial. This is essentially a properly-raised voluntariness argument.

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    Both the FSM and Kosrae constitutions contain protections against double jeopardy. FSM Const. art. IV, § 7; Kos. Const. art. II, § 1(f). The purpose of these provisions is "to prevent the government from making repeated attempts to convict an individual for the same alleged act." Laion v. FSM, 1 FSM Intrm. 503, 521 (App. 1984). They protect against a second prosecution for the same offense following conviction or acquittal and against multiple punishments for the same offense. Id. at 523.

    This case does not involve a second prosecution for the same offense following a conviction or an acquittal. It concerns an allegation of multiple punishments for the same offense. Kinere’s sixty-year sentence was based on the statutory maximum of ten years for each of the six category one felonies to which he pled guilty. Kos. S.C. §§ 13.1201, 13.306, 13.311. He first argues that the acts alleged in counts four, six, and eight of the information are part of one continuous event. In other words, in Kinere’s view, all of the acts he committed upon S.S. during the six-hour period in which he held S.S. captive constitute a single attack or act. Thus, in his view, he should have been given (at most) only ten years for counts four, six, and eight, rather than thirty years. He correctly states that there can be no cumulative punishment for a single offense absent clear legislative intent. Laion, 1 FSM Intrm. at 529.

    Count four charged Kinere with violating Kos. S.C. § 13.311 by forcing S.S. to perform fellatio in an abandoned house in Lelu Municipality. Counts six and eight charged Kinere with violating § 13.311 by performing anal intercourse on S.S. In its lengthy order denying the Rule 32(d) motion,

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the trial court reasoned that, because there were three distinct acts of sexual penetration that were separated by place and time, Kinere did not receive multiple punishments for the same offense. It made the following factual determinations: The act of fellatio (count four) occurred in an abandoned house at or near the premises of one John Mike. The first anal penetration of S.S. (count six) took place outside, near a cluster of trees. After this act, Kinere bit S.S. on the back. The second anal penetration of S.S. (count eight) occurred after the bite, in the same physical location. The two acts of anal penetration were, therefore, separated by Kinere’s act of biting or battering S.S. Kinere, 13 FSM Intrm. at 238.

    We concur in the trial court’s reasoning and write to augment the trial court’s thorough opinion. There are several factors to be considered when determining whether the acts alleged in counts four, six, and eight of the information are all part of one continuous attack or distinct crimes warranting separate punishments. Those factors include time, location, separation, and completion of the act. The following cases are instructive. People v. Marks, 229 Cal. Rptr. 107 (Cal. Ct. App. 1986), is closely analogous. There, the defendant inserted his penis into the victim’s anus, withdrew, forced the victim across the room, and penetrated her again. In upholding both of the defendant’s convictions for sodomy, the court reasoned that neither act of sodomy was incidental to the other, and the defendant was more culpable for committing two acts than he would have been for committing only one. Id. at 112.

    In State v. Dunbar, 657 So. 2d 429 (La. Ct. App. 1995), the defendant twice raped his victim in a car. The acts occurred within minutes of each other but in different districts within the city. The court concluded that the defendant had not been placed in double jeopardy by being twice prosecuted for aggravated assault, since each act was a separate violation of the victim, and each act occurred in a different place. Id. at 433.

    In People v. Harrison, 768 P.2d 1078 (Cal. 1989), the defendant broke into the victim’s bedroom and forcibly inserted his finger into her vagina three times. Each time, the victim was able to dislodge the defendant’s finger. Each penetration lasted only a few seconds, and the entire attack lasted only a few minutes. The defendant was convicted of three separate counts of penetration with a foreign object and received three consecutive sentences. The appellate court dismissed the defendant’s argument that he had received multiple punishments for the same offense. The court reasoned that penetration, however slight, completes the crime. Also, there is no minimum amount of time that must separate such acts. Nor must they be punctuated by significant nonsexual activity. Id. at 1081-82.

    Likewise, in People v. Clem, 163 Cal. Rptr. 552 (Cal. Ct. App. 1980), the defendant penetrated the victim five times within a period of two and one-half hours. He was convicted of five counts of rape. In rejecting the argument of multiple punishments, the court concluded that each act of rape, however slight, is sufficient to complete the crime. Id. at 559.

    Applying these authorities to this case, Kinere committed three distinct acts upon S.S. The act of fellatio occurred at a different time and in a different location than did the acts of anal intercourse. According to the trial court, the two acts of anal intercourse were separated by an act of battery (the bite). The State was not required to prove that a significant amount of time elapsed between the three acts of penetration. Kinere penetrated S.S.’s body at least three times. Thus, he did not receive multiple punishments for a single offense. On the contrary, he received multiple punishments for multiple offenses.

    Under Kinere’s continuing offense theory, he could have penetrated S.S. as many times as would have been physically possible within the six-hour period of captivity, and he would have been guilty of

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only a single act of penetration. The result of that theory, carried to its logical conclusion, would be not only untenable but absurd. At oral argument, the State asked, and we paraphrase, "If it makes no difference whether a defendant penetrates his victims one time or ten times, what’s to stop someone from committing the same act over and over?" As stated by one court, "We do not approve any principle which exempts one from prosecution from all the crimes he commits because he sees fit to compound or multiply them. Such a principle would encourage the compounding and viciousness of the criminal acts." Wilson v. State, 255 N.E.2d 817, 822 (Ind. 1970) (rejecting appellant’s argument that restraint and transportation of rape victim could not support additional charge for kidnapping).5

    Kinere also objects to the identical language used in counts six and eight of the information. Both counts read:

On or between 8:00 p.m. on June 13, 2001 and 2:00 p.m. on June 14, 2001, in the Finfoko Section of Lelu Municipality, defendant, JOHN R. KINERE, committed the crime of SEXUAL ASSAULT, by subjecting another person, to-wit: a minor child, [S.S.], to a sexual penetration against the will of [S.S.], or under conditions in which JOHN R. KINERE, knows or should know that [S.S.] was mentally or physically incapable of resisting or understanding the nature of his conduct, a category one felony in violation of Title 13, Section 13.311 of the Kosrae State Code, by performing anal intercourse on [S.S.].

    Kinere’s argument is that the information is repetitive (or, rather, duplicative) and charges him twice for the same act.6

    Kinere cites no authority to support his argument that the information was unconstitutionally duplicative. He argues that the State could have cured the information by simply inserting the word "again" into count eight. The State responds that the language of counts six and eight is identical because it is statutory and Kosrae has only one statute dealing with sexual assault – Kos. S.C. § 13.311.

    In Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005), a habeas corpus petitioner claimed that the State violated his right to due process by filing an indictment containing twenty identical counts of child rape and twenty identical counts of felonious sexual penetration. The petitioner argued that the lack of specific dates and times was prejudicial because it prevented him from presenting alibi defenses.

    The Valentine court granted habeas corpus relief on the ground that the "carbon copy" indictments deprived the petitioner of adequate notice and violated the constitutional proscription against double jeopardy. Id. at 636. The court clarified that "the constitutional error in this case is traceable not to the generic language of the individual counts of the indictment but to the fact that there

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was no differentiation among the counts." Id. The only evidence as to the number of incidents of abuse was the victim’s description of "typical" abuse and her testimony that typical abuse occurred "twenty or fifteen" times. The State made no attempt to set forth the factual bases for the forty alleged incidents of rape and penetration. Id. at 632-33. The court admonished the State for relying on estimation and inference and concluded, "Courts cannot uphold multiple convictions when they are unable to discern the evidence that supports each individual conviction." Id. at 636-37.

    Among the cases that have distinguished Valentine is State v. Register, 125 P.3d 1089, 2006 WL 90077 at *1 (Kan. Ct. App. Jan. 13, 2006) (unpublished) (per curiam), which, although unpublished, provides useful guidance. The appellant in that case appealed a conviction of two counts of rape and three counts of aggravated indecent liberties with a child. The appellate court explained that, despite the fact that the charging instrument included carbon copy counts of aggravated indecent liberties with a child, the evidence presented at trial clearly identified three separate incidents. Thus, there was no double jeopardy violation. Id. at *6-*7.

    The situation here, likewise, is drastically different from that presented in Valentine. We have not been called upon to review a twenty-count indictment that rests upon a victim’s vague assertions. Although the language of counts six and eight is identical, the trial court, in its May 6, 2005 order, clarified that the two acts of anal penetration were separated by an act of battery. In his February 22, 2005 affidavit, Welly stated that, based on his reading of the file, Kinere penetrated S.S. "three separate times." Also, the plea agreement stated that the State had established a factual basis for each of the six counts to which Kinere pled, and the trial court explained the charges to Kinere. When considering all of these factors, we conclude that, although counts six and eight should have included distinguishing language, the duplication in the information, in itself, did not compromise Kinere’s constitutional right against double jeopardy.

b.   Kinere’s Other Arguments

    In his brief and at oral argument, Kinere made much of the fact that Welly did not spend enough time deliberating before rejecting the State’s plea offer. Welly proposed a counteroffer on the same day that Kinere received the State’s offer. It appears that Kinere is relying on this as a distinct basis for ineffectiveness. However, Kinere’s Rule 32(d) motion argued only that Welly was ineffective because he is a trial counselor, rather than a lawyer, and because he failed to raise the double jeopardy defense. The trial court addressed only those two arguments. In his brief, Kinere conceded that Welly’s trial counselor status cannot supply a basis for a finding of ineffectiveness. The only argument that is properly before us, then, is the argument that Welly was constitutionally ineffective for failing to raise the defense of double jeopardy prior to the entry of Kinere’s plea. We do not consider the length of time Welly spent considering the State’s offer as a distinct ineffectiveness argument. We will consider the length of deliberation time only to the extent that it impacted the double jeopardy issue. Having concluded that Welly was not constitutionally ineffective for failing to raise the defense of double jeopardy, we further conclude that it is irrelevant whether he would have raised the defense if he had pondered the case longer.

[14 FSM Intrm. 389]

c.   Summary

    In sum, the defense of double jeopardy, if it had been raised, would not have benefited Kinere. His counsel’s assistance was not constitutionally ineffective. Thus, the trial court did not err in determining that Kinere suffered no manifest injustice.

2.   Trial Judge’s Involvement in Plea Discussion

    Our analysis of the Rule 32(d) motion, however, does not end here. Kinere raised as a ground for his motion to recuse the trial judge that the trial judge participated in the plea negotiations, in violation of Kosrae Criminal Procedure Rule 11(e)(1). Although Kinere did not argue that the trial court’s involvement in plea discussions violation warranted vacation of his conviction, (only that it warranted recusal), we conclude that the issue was not forfeited and that even if it had been we could consider it under the plain error doctrine. Kos. Crim. 52(b).

    Kosrae’s Rules 11(e)(1) and 52(b) are derivative of their United States counterparts. We, therefore, may examine United States case law interpreting those rules. Cf. Engichy v. FSM, 1 FSM Intrm. 532, 541 (App. 1984); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984); FSM v. Fritz, 13 FSM Intrm. 88, 90 (Chk. 2004); FSM v. Wainit, 12 FSM Intrm. 405, 409 n.3 (Chk. 2004); FSM v. Wainit, 11 FSM Intrm. 1, 11 n.2 (Chk. 2002); Trust Territory v. Edgar, 11 FSM Intrm. 303, 306 n.2 (Chk. S. Ct. Tr. 2002) (all holding that when a criminal procedural rule is derived from a U.S. counterpart and has not been interpreted by an FSM court, U.S. sources may be used for guidance in interpreting the rule).

    When an issue has been forfeited through failure to raise and preserve the issue, an appellate court may address it only when there has been a plain error affecting the defendant’s constitutional rights; or when the error affects a criminal defendant’s substantial rights; or when the error is obvious and substantial and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Neth v. Kosrae, 14 FSM Intrm. 228, 232 (App. 2006), and authorities cited therein. Rule 52(b) is permissive, not mandatory. When an issue is not raised in the appellate briefs or oral argument, the appellate court should (but not must) exercise its discretion to notice a forfeited error if that error seriously affects the judicial proceeding’s fairness, integrity, or public reputation. United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508, 520-21 (1993).

    United States courts interpreting Rule 11(e)(1) violations have held that a judge’s involvement in plea discussions is plain error. See, e.g., United States v. Diaz, 138 F.3d 1359, 1362 (11th Cir. 1998); United States v. Anderson, 993 F.2d 1435, 1437 (9th Cir. 1993); United States v. Garfield, 987 F.2d 1424, 1427 (9th Cir. 1993); United States v. Bruce, 976 F.2d 552, 554, 558 (9th Cir. 1992); United States v. Adams; 634 F.2d 830, 831-32, 836 (5th Cir. Unit A Jan. 1981). One of the principles behind the rigid enforcement of Rule 11(e)(1), as will be seen below, is to protect the integrity of the judicial process so that the judge’s impartiality and objectivity shall not be open to any questions or suspicions when it becomes his duty to impose sentence. Bruce, 976 F.2d at 557; United States v. Werker, 535 F.2d 198, 203 (2d Cir.), cert. denied, 429 U.S. 926 (1976). We will therefore consider the issue.

    Rule 11(e)(1) provides: "The attorney for the government and the attorney for the defendant . . . may engage in discussions with a view toward reaching [a plea] agreement . . . . The court shall not participate in any such discussions." During a conference, which counsel sought and at which counsel discussed their impasse in plea negotiations and presented the case and their positions to the trial

[14 FSM Intrm. 388]

judge,9 the judge indicated that, if Kinere pled guilty, he would likely impose a sentence of sixty years, forty of which would be suspended. The trial judge thus violated Rule 11(e)(1)’s prohibition of judicial participation in plea agreement discussions. A "judge’s indication of sentence necessarily constitutes `participation in such [plea agreement] discussions.’" Werker, 535 F.2d at 203. "The command of [Rule 11(e)(1)] with regard to plea negotiations is simple and admits of no exceptions: ‘[t]he court shall not participate in any such discussions.’" Bruce, 976 F.2d at 555. Rule 11(e)(1) is "an absolute prohibition on all forms of judicial participation in or interference with the plea negotiation process." Adams, 634 F.2d at 835. The court’s role is to evaluate a plea agreement once it has been reached by the parties and discussed in open court. Prior to that time, a court should not offer comments touching upon proposed or possible plea agreements. Id. "Courts . . . have uniformly held that [Rule 11] means what it says: the court shall not participate in any plea negotiations." United States v. Barrett, 982 F.2d 193, 195 (6th Cir. 1992). Rule 11(e)(1) is "a ‘bright-line rule’ prohibiting ‘all forms of judicial participation’ before the parties have reached a plea agreement and disclosed the agreement in open court." Garfield, 987 F.2d at 1426.

    In United States v. Werker, 535 F.2d 198 (2d Cir. 1976), the government petitioned for a writ of mandamus to prevent a trial judge from telling the defendants in a pending case the sentence they would receive if they pled guilty. The court granted the petition, explaining, "Rule 11 is obviously intended totally to eliminate pressures emanating from judicial involvement in the plea bargaining process, and this necessarily includes any involvement of the court in divulging pre-plea sentence proposals which are equally likely to generate such pressures." Id. at 203. The court pointed out that the parties do not generally solicit the court’s involvement until the negotiations have fallen through or reached a standstill. Thus, "[t]he judge’s promise to indicate a specific sentence soon becomes the focal point of further discussions." Id.

    The Werker court discussed the dangers inherent in judicial participation in plea negotiation discussions. The principal danger is the potential for coercion. Id. at 202. Even when a judge is objective, it is the defendant’s perception of the judge – whose power is exponentially greater than that of the defendant – that will determine whether there is coercion. Id. Thus, "judicial intervention may coerce the defendant into an involuntary plea that he would not otherwise enter." United States v. Corbitt, 996 F.2d 1132, 1135 (11th Cir. 1993). "The primary reason for Rule 11 is that a judge’s participation in plea negotiation is inherently coercive." Barrett, 982 F.2d at 194. Rule 11 is designed to totally eliminate judicial pressure from the plea bargaining process. Id. at 196. Judicial participation in plea negotiation discussions also threatens the trial judge’s impartiality. Werker, 535 F.2d at 203. Rule 11(e)(1)’s bar of judicial participation in the plea discussions also serves "to preserve the judge’s impartiality after the negotiations are completed." Bruce, 976 F.2d at 557 (emphasis in original). This is because judicial participation in a plea discussion makes it difficult for a judge to later objectively assess the voluntariness of the plea; risks the loss (if the plea negotiations fail) of the judge’s impartiality during trial; and diminishes the judge’s objectivity in post-trial matters such as sentencing and motions for acquittal. Id. at 557-58. Rule 11(e)(1) also protects the integrity of the judicial process ) so that the judge’s "`impartiality and objectivity shall not be open to any questions or suspicions when it becomes his duty to impose sentence.’" Id. at 557 (quoting Werker, 535 F.2d at 203). "The judge’s role must be that of a neutral arbiter of the criminal prosecution: his involvement in the adversary process of plea negotiation is beyond and detracts from that judicial duty." Id.

    Therefore, "a defendant who has pled guilty after the judge has participated in plea discussions

[14 FSM Intrm. 389]

should be allowed to replead, without having to show actual prejudice has resulted from the participation." Adams, 634 F.2d at 839; see also Bruce, 976 F.2d at 554. "Regardless of whether he has shown actual prejudice, a defendant who has pleaded guilty after the judge has participated in plea discussions is entitled to replead." Anderson, 993 F.2d at 1438-39. Judicial participation in plea discussions is not harmless error. United States v. Miles, 10 F.3d 1135, 1141 (5th Cir. 1993). This is because the court "cannot measure the harm to [the defendant] because [it] cannot know what agreement, if any would have been reached absent judicial participation." Id. See also United States v. Daigle, 63 F.3d 346, 349 (5th Cir. 1995) (asking whether trial court’s Rule 11(e)(1) violation was "a material factor" in the defendant’s decision to plead guilty when the trial judge informed the defendant that he would most likely follow any government sentencing recommendation, which to the defendant meant a "cap" of nine years).

    Therefore, on remand, Kinere shall be permitted, if he so chooses, to withdraw his guilty pleas and enter not guilty pleas to all seventeen counts of the information against him and proceed from there either to trial or another plea agreement.

B.   Whether the Trial Court Abused Its Discretion in Denying Kinere’s Recusal Motion

    Appellate courts, when remanding a case to permit the defendant to replead because the trial judge had participated in plea discussion in violation of Rule 11(e)(1) have ordered that the case be reassigned to another judge as a prophylactic measure. Daigle, 63 F.3d at 349; Crowell, 60 F.3d at 207; Miles, 10 F.3d at 1142; Corbitt, 996 F.2d at 1135; Barrett, 982 F.2d at 196; Adams, 634 F.2d at 842-43. A couple of appellate courts did not order the case’s reassignment or the trial judge’s recusal. One was where recusal was sought on a different ground, Garfield, 987 F.2d at 1427 (counsel’s assistance not ineffective because he failed to move for recusal based on trial judge’s inappropriate remark, made while advising the defendant about the merits of pleading guilty, that the defendant "had too many rights"), and the other because the defendant had not sought the judge’s recusal, Bruce, 976 F.2d at 559. In another case, Anderson, 993 F.2d 1135, the point was never mentioned. In this case, Kinere sought the judge’s recusal for his involvement in plea discussions. We therefore order that, on remand, if Kinere chooses to withdraw his guilty pleas, this matter shall be assigned to a different trial judge.

    In light of this remand and reassignment, it becomes unnecessary to consider whether the trial court abused its discretion in denying Kinere’s motion for recusal.

[14 FSM Intrm. 390]

III. Conclusion

The trial court violated Rule 11(e)(1) by indicating a likely sentence during the October 2001 plea negotiations discussion. This was plain error and the case is remanded so that John R. Kinere may withdraw his guilty pleas if he so chooses, enter not guilty pleas to all seventeen counts against him, and proceed from there either to trial or another plea agreement. Kinere’s assertions that he was denied effective assistance of counsel are without merit since Kinere was not subjected to double jeopardy.

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Footnotes:

1.   Although FSM courts must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courts’ decisions, when a court has not previously construed a criminal procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. See, e.g., Engichy v. FSM, 1 FSM Intrm. 532, 541 (App. 1984); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984); FSM v. Fritz, 13 FSM Intrm. 85, 87 n.1 (Chk. 2004); FSM v. Wainit, 12 FSM Intrm. 376, 381 n.3 (Chk. 2004); FSM v. Wainit, 12 FSM Intrm. 105, 109 n.1 (Chk. 2003); Trust Territory v. Edgar, 11 FSM Intrm. 303, 306 n.2 (Chk. S. Ct. Tr. 2002).

2.   Kinere’s position seems to be that, as long as he has a defense that has historically been recognized as meritorious, he automatically prevails on his ineffectiveness claim without having to prove that the defense would have been meritorious in his case. He relies on People v. Belcher, 520 P.2d 385 (Cal. 1974). The Belcher court, however, did consider the merit of the defense that the defendant’s attorney failed to advise him to raise. Id. at 389. Kinere’s reasoning is clearly flawed.

3.   The State argued below that Kinere waived the double jeopardy defense by failing to raise it before he entered his guilty pleas. The State relied on Kosrae Criminal Procedure Rule 12(b)(2), which requires defenses and objections based on defects in the information (with two exceptions that do not apply here) to be raised before trial. The trial court’s May 6, 2005 order noted the State’s opposition but nonetheless addressed the merits of Kinere’s double jeopardy argument. Given the trial court’s approach, and the fact that the State does not attack the raising of the double jeopardy defense on appeal, we will treat it as if timely raised. See United States v. Young, 503 F.2d 1072, 1074-75 (3d Cir. 1974) (when trial court decides an untimely double jeopardy argument on the merits, the court implicitly determines that it has not been waived).

    An issue never raised by the State is whether Kinere waived the double jeopardy defense by pleading guilty. The general rule in the United States is that a voluntary plea of guilty "waives all non-jurisdictional defenses including constitutional violations not logically inconsistent with the valid establishment of factual guilt." United States v. Nash, 29 F.3d 1195, 1201 (7th Cir. 1994). Double jeopardy arguments are not exempt from this general rule. United States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 762, 102 L. Ed. 2d 927, 935-36 (1989). When a defendant waives the defense of double jeopardy by pleading guilty, he may only attack the voluntariness of his plea. Id. at 574, 109 S. Ct. at 765, 102 L. Ed. 2d at 939. The Broce Court explained that a claim of ineffective assistance of trial counsel may form the basis for setting aside a guilty plea. Id. In Mabry v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 2546-47, 81 L. Ed. 2d 437, 443 (1984), the court stated: "It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked."

    Kinere contends that he did not fully understand his legal rights because his trial attorney was constitutionally ineffective, and that he wanted to proceed to trial. This is essentially a properly-raised voluntariness argument.

4.   Kosrae State Code, Section 13.311 provides:

Sexual assault. Sexual assault is intentionally subjecting another person to sexual penetration, or forcing another person to make a sexual penetration on himself or another or on an animal, against the other person’s will, or under conditions in which the offender knows or should know that the other person is mentally or physically incapable of resisting or understanding the nature of his conduct. Sexual penetration is sexual intercourse, cunnilingus, fellatio, anal or oral intercourse, or the causing of penetration of the genital, anal, or oral opening of another to any extent and with any object whether or not there is an emission.

5.   We have intentionally omitted from this opinion the cases cited by the parties. The trial court gave those relevant cases thorough review. We see no reason to lengthen this opinion by re-analyzing those cases. One case mentioned at oral argument was Engichy v. FSM, 1 FSM Intrm. 532 (App. 1984). The analysis in that case focused on aiding and abetting, rather than double jeopardy. In light of the cases we have discussed, we do not believe that a discussion of Engichy would be particularly helpful.

6.   We have intentionally omitted from this opinion the cases cited by the parties. The trial court gave those relevant cases thorough review. We see no reason to lengthen this opinion by re-analyzing those cases. One case mentioned at oral argument was Engichy v. FSM, 1 FSM Intrm. 532 (App. 1984). The analysis in that case focused on aiding and abetting, rather than double jeopardy. In light of the cases we have discussed, we do not believe that a discussion of Engichy would be particularly helpful.

7.   Even if count eight had not been included in the information, Kinere’s actual prison sentence might have been the same, since he received prison time for only two of the six felonies.

8.   At oral argument, Kinere bemoaned the fact that his sentence is the harshest recorded sentence in Kosrae’s history. A harsh sentence, however, does not constitute manifest injustice, particularly when the sentence conforms to statutory guidelines.

9.   This is an improper and inappropriate procedure. Counsel should not ask the court to give any opinion on a possible plea agreement until a final agreement is properly presented to the court in its entirety. See United States v. Crowell, 60 F.3d 199, 202 n.1 (5th Cir. 1995).

10.  In United States v. Crowell, 60 F.3d 199, 204-07 (5th Cir. 1995), the trial judge’s comment on what would be an acceptable sentence while the parties were preparing a second plea agreement (the judge had already rejected the first) violated the Rule 11 bar against judicial participation, but the appellate court did not vacate the conviction since the defendant had proceeded on his not guilty plea and was convicted by a jury after a fair trial, but, because of the Rule 11 violation, his sentence was vacated and the case remanded for a new sentence to be imposed by a different judge.

11.  In United States v. Sammons, 918 F.2d 592 (6th Cir. 1990), the appellant argued that the trial judge should have recused himself on four grounds, including the judge’s participation in plea negotiations. The court rejected the recusal argument, explaining that prejudice or bias must be personal or extra-judicial in order to warrant recusal, id. at 599, and further noted that the record was "devoid of any indication whatsoever of such participation [in plea discussions]." Id. at 601. In United States v. Diaz, 138 F.3d 1359, 1363 (11th Cir. 1998), a Rule 11(e)(1) violation found when a trial judge, on the day the trial was to begin, commented on the strength of the government’s case and the improbability that the prosecutor would accept the defendant’s proposed plea agreement, but the defendant elected for trial and was convicted after trial in which the appellate court could find no error, so no relief was granted and new judge was not assigned.

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