Is wrongfully admitted evidence relevant to a Rule 11(a)(2) inquiry?

Contrary to the Government's arguments, our precedent is not inconsistent with a Rule 11(a)(2) inquiry that looks to the decision to plead guilty rather than the relationship of the wrongfully admitted evidence to the conviction. Although we noted in United States v. Sines , 761 F.2d 1434, 1442 (9th Cir. 1985), that the evidence wrongfully admitted was immaterial to [the defendant's] conviction, that case did not mention, much less consider, the essential distinction between evidence of underlying guilt and evidence that could contribute to a plea decision in the Rule 11(a)(2) context. Moreover, even if it had, it is unlikely that that distinction would have made a difference to the outcome of that particular case. Sines was an example of the rare case in which it was clear that the wrongfully admitted evidence made no difference either to the decision to plead guilty or to the conviction. The evidence at issue in Sines was the defendant's passport, which the prosecution could have used to corroborate a witness's testimony that the defendant was in Thailand at the relevant time. Id. We determined, however, that the passport was entirely unnecessary for that purpose because other ample and admissible evidence served the same function. Id. Furthermore, the prosecution did not even mention the passport as part of the evidence against the defendant during the defendant's nolo contendere plea colloquy, despite mentioning all of the other evidence that proved his presence in Thailand. Id. The passport was thus unambiguously not a factor in the case.¹⁶

[830 F.3d 1091]