ROBERT C. BRACK, District Judge.
This matter comes before the Court on the Government's Motion to Reconsider this Court's Memorandum Opinion and Order (MOO) denying Defendant Oscar Garcia's Motion to Withdraw his Plea of Guilty. (See Doc. 135.) Having reviewed the accompanying briefing and being otherwise fully advised, the Court will deny the Motion.
Defendant is facing multiple charges related to the trafficking of methamphetamine and money laundering. (See Docs. 3; 104.) On April 21, 2016, a grand jury returned an Indictment against Defendant, charging: in Count 1, Conspiracy to Possess with the Intent to Distribute 500 Grams and More of a Mixture and Substance Containing Methamphetamine, contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), in violation of 21 U.S.C. § 846; in Count 7, Possession with Intent to Distribute 500 Grams and More of a Mixture and Substance Containing Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); in Count 8, Conspiracy to Commit Money Laundering, in violation of 18 U.S.C. § 1956(h); and in Count 9, Money Laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i). (Doc. 3.)
On October 7, 2016, Defendant appeared before the Honorable Stephan Vidmar, United States Magistrate Judge, for a change of plea hearing. Defendant pled guilty to a two count Information charging in Count 1, Conspiracy to Possess with Intent to Distribute 500 Grams and More of Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); and in Count 2, Money Laundering Conspiracy, in violation of 18 U.S.C. § 1956(h). (Docs. 104; 132.) Judge Vidmar conducted Defendant's plea colloquy and accepted Defendant's plea of guilty as to these counts, but deferred final acceptance of the plea agreement to the District Judge. (Doc. 132 at 16.)
On July 12, 2017, Defendant filed a Motion to withdraw his plea of guilty. (Doc. 129.) The Government filed its response opposing the motion on July 26, 2017. (Doc. 133.) On August 22, 2017, the Court issued a MOO denying Defendant's motion on the basis that Judge Vidmar possessed the authority to conduct Defendant's plea hearing and that the plea colloquy rendered Defendant's guilty plea accepted for purposes of Rule 11. (Doc. 134.) On August 23, 2017, the Government filed a motion for reconsideration. (Doc. 135.)
Prior to commencing this case, the Government conducted a three-month wiretap operation in cooperation with one of defendant's alleged co-conspirators. (Doc. 133 at 9, 16.) As a result of this investigation, the Government alleges that evidence establishes the following facts concerning the counts to which Defendant pled guilty:
As to Count One, the Government contends that from June 1, 2015, until May 19, 2016, in Luna County in the District of New Mexico and elsewhere, the defendant conspired with others to distribute methamphetamine. (Doc. 132 at 14.) During that timeframe, the defendant used a smuggled cell phone from his prison cell in Oklahoma and arranged for the distribution of approximately 4.5 kilograms of a mixture and substance containing methamphetamine. (Id.) The methamphetamine was in fact distributed to others in Deming, New Mexico. (Id.)
As to Count Two, the Government contends that from February 8, 2016, until February 10, 2016, Defendant committed money laundering. (Id.) Specifically the Government alleges that during that timeframe, Defendant made arrangements for someone to travel from Arizona to Deming, New Mexico to pick up drug proceeds and to deliver the drug proceeds to a co-conspirator. (Id.) Mr. Garcia allegedly knew that the drug proceeds would travel across state lines and be paid to a drug trafficking co-conspirator with the intent to promote the carrying on of his illegal drug trafficking activities. (Id.)
Although the Federal Rules of Criminal Procedure do not include specific provisions for a motion to reconsider, the Tenth Circuit has allowed such motions under common law and considerations of judicial economy recognized in United States v. Healy, 376 U.S. 75 (1964). See, e.g., United States v. Corey, 999 F.2d 493, 495 (10th Cir. 1993). "Courts have evaluated motions to reconsider in criminal cases under the same standards governing a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e)." United States v. Sims, 252 F.Supp.2d 1255, 1260-61 (D.N.M. 2003). Consequently, the Court may grant reconsideration on any of the following grounds: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. Id.; see also Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981). A motion for reconsideration "is not a second chance for the losing party to make its strongest case or to dress up arguments that previously failed." Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D. Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). Stated differently, such motions are inappropriate if their purpose is merely to compel the reviewing court to revisit issues already addressed or to present new arguments or supporting facts that could have been offered originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). "The decision to grant or deny a motion for reconsideration is committed to the reviewing court's sound discretion." Sims, 252 F. Supp. 2d at 1261 (citing Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988)).
In this highly unusual situation, the Government as the prevailing party seeks reconsideration of this Court's MOO by attempting to undermine the very rationale the Government put forth in opposing Defendant's Motion. (Doc. 135.) Specifically, the Government now adopts Defendant's argument that, contrary to its cited Tenth Circuit precedent, the Magistrate Judge did not have the authority to accept Defendant's guilty plea and that, because the plea has not been accepted by a District Judge, Defendant may withdraw his guilty plea as a matter of right. (Id.) The addition of Rule 59 to the Federal Rules of Criminal Procedure is the sole basis upon which the Government contends that reconsideration is appropriate. (Id.)
Despite the peculiar nature of this case's procedural posture, the motion is subject to the same standard as any other reconsideration request. Under this standard, reconsideration is not an appropriate avenue to advance the Government's argument. First, Rule 59, on which the Government bases its argument, was not altered in any way between the issuance of this Court's MOO and the Government's motion, and thus does not constitute an intervening change in law. Further, the Government does not allege the existence of any new evidence and concedes that the Court's initial decision is consistent with current precedent and thus devoid of clear error. (Doc. 135 at 2.) Most importantly, the parties were given ample opportunity to discuss in detail the issue of a Magistrate Judge's authority to accept Defendant's guilty plea. As noted, reconsideration motions are not a vehicle to revisit issues already addressed or to present new arguments that could have been offered originally. Van Skiver, 952 F.2d at 1243. Here, both parties addressed the issue of whether a magistrate judge possesses authority to accept a guilty plea and whether Defendant's plea was considered accepted for purposes of Rule 11. (See Docs. 129 at 3-7; 133 at 3-7.) After considering these arguments, the Court addressed this question, concluding that "Judge Vidmar possessed the authority to conduct Defendant's plea hearing and that the recitation of the plea colloquy rendered Defendant's guilty plea accepted for purposes of Rule 11." (Doc. 134 at 9.) Further, the Government had the opportunity to present its position of non-opposition to the motion originally and chose instead to rely on Tenth Circuit precedent to advance the position that Defendant's plea could not be withdrawn as a matter of right. (See generally Doc. 133.) Accordingly, the Government has failed to present a new or unaddressed issue to form a legitimate basis for reconsideration. See Van Skiver, 952 F.2d at 1243; Voelkel, 846 F. Supp. at 1483.
Notwithstanding the above, evaluation of the merits of the Government's unusual motion reveals no argument which would undermine the soundness of the MOO's rationale. In addressing the pertinent question of whether Article III allows a federal magistrate judge, with the consent of the parties, to accept a guilty plea on behalf of the District Court under Rule 11, the Court noted that "binding precedent from our Circuit has held explicitly that `[m]agistrate judges have the authority to conduct plea hearings and accept guilty pleas.'" (Doc. 134 at 5 (citing United States v. Salas-Garcia, 698 F.3d 1242, 1253 (10th Cir. 2012); United States v. Ciapponi, 77 F.3d 1247, 1251 (10th Cir. 1996) ("[W]e hold that, with a defendant's express consent, the broad residuary `additional duties' clause of the Magistrates Act authorizes a magistrate judge to conduct a Rule 11 felony plea proceeding, and such does not violate the defendant's constitutional rights"); United States v. Gonzales, No. CR 14-1760-003 RB, 2015 WL 12859404, at *3 (D.N.M. Apr. 13, 2015)).) The Court further explained that "the Tenth Circuit has held that a guilty plea is considered accepted by the District Court for purposes of Rule 11 following a plea colloquy, even if a magistrate judge defers a final decision on acceptance." (Id. (citing Salas-Garcia, 698 F.3d at 1253; United States v. Byrum, 567 F.3d 1255, 1262 (10th Cir. 2009); United States v. Blattner, 195 F.Supp.3d 1205, 1234 (D.N.M. 2016)).) Applying this binding guidance to the facts of this case, the Court concluded that Defendant's guilty plea was accepted by the District Court for purposes of Rule 11 and withdrawal of this plea is not a matter of right, but must instead be supported by a fair and just reason. (Id.)
The Government explicitly acknowledged that "the current practice in this District of magistrate judges accepting guilty pleas is supported by, and consistent with, Tenth Circuit authority." (Doc. 135 at 2.) However, the Government now maintains that this Court need not apply this precedent, as these cases did not address Rule 59 of the Federal Rules of Criminal Procedure. (Id. at 1-2.)
The purpose of Rule 59 was to create explicit procedures for district judges to review magistrate judges' dispositive and non-dispositive decisions, similar to Federal Rule of Civil Procedure 72.
Of particular note, the committee specifically considered and rejected a proposal to "specifically identify felony guilty plea proceedings under Fed. R. Crim. P. 11 as case-dispositive" under Rule 59. See Magistrate Judges Committee Agenda for Dec. 2002, at 1 (attached as Ex. 1) (hereafter "MJC Agenda Dec. 2002"). The original proposed rule included "a felony guilty plea under Rule 11" under the list of "Dispositive Matters." See id, Attachment 1-5. However, the Magistrate Judges Committee expressed concern about this proposal, stating that:
MJC Agenda Dec. 2002, at 9; see also Magistrate Judges Committee Agenda for June 2003, at 1-3 (attached as Ex. 2) (hereafter "MJC Agenda June 2003"). The Advisory Committee on Criminal Rules agreed with the Magistrate Judges Committee and voted in June 2003 to recommend a new Rule 59 that did not specify whether felony guilty plea proceedings were either dispositive or non-dispositive, acknowledging differing approaches to magistrate judge authority in this area and allowing circuits the flexibility to define the extent of this authority through case law. See MJC Agenda June 2003 at 2-3.
As Ciapponi and Salas-Garcia remain good law and specifically address a magistrate judge's authority regarding the acceptance of Rule 11 guilty pleas, (698 F.3d at 1253; 77 F.3d at 1251), this Court is required to affirm the holding of its August 22, 2017 MOO. See, e.g., S. Utah Wilderness All. & Nat. Res. Def. Council v. Bureau of Land Mgmt., No. 2:08CV64DAK, 2008 WL 5245492, at *2 (D. Utah Dec. 16, 2008) (Circuit decision which has not been overturned by the Supreme Court or an en banc panel remains binding precedent which a district court must follow).
For the foregoing reasons, the Court finds that a motion for reconsideration is an inappropriate vehicle to re-litigate questions already addressed by the original MOO and determines that the Government has not shown an intervening change in controlling law, new evidence, or a need to correct clear error or prevent manifest injustice.
At the April 2002 meeting of the Judicial Conference Advisory Committee on Criminal Rules, Judge Edward C. Carnes, Chairman of the Committee, requested that Magistrate Judge Tommy E. Miller, Eastern District of Virginia, and District Judge John M. Roll, District of Arizona, develop a proposal for a criminal rule counterpart to Fed. R. Civ. P. 72, Magistrate Judges; Pretrial Orders. The rationale for the proposed rule is discussed below. In addition, a related proposal by Judge Roll and Judge Miller seeks to use the rule-making process as an opportunity to address issues arising from the use of magistrate judges to conduct felony guilty plea proceedings under Fed. R. Crim. P. 11.
These proposals were further discussed by the Advisory Committee on Criminal Rules at its September 2002 meeting. At that meeting, the Committee tentatively endorsed a proposed new rule tentatively numbered as a new Rule 12(i) that would: (1) constitute a counterpart criminal rule to Fed. R. Civ. P. 72; (2) include waiver language under which failure to raise timely objections to a magistrate judge's order in a non-case-dispositive pretrial matter or a report and recommendation in a case-dispositive pretrial matter would preclude "any review" by the district court; and (3) specifically identify felony guilty plea proceedings under Fed. R. Crim. P. 11 as case-dispositive pretrial matters subject to this waiver rule. The Advisory Committee, through an October 21, 2002 letter from Judge Carnes to Judge Schlesinger, "solicits and would appreciate the comments and recommendations of the Magistrate Judges Committee concerning these proposals. Judge Carnes's letter, which includes a draft version of a proposed new Rule 12(i), is set forth as Attachment I.
This report examines the legal and policy issues raised by the proposed new rule. In particular, it addresses the three questions raised in Judge Carnes's October 21, 2002 letter:
Although Fed. R. Civ. P. 72 sets forth procedures that apply when magistrate judges are referred pretrial non-case-dispositive and case-dispositive matters in civil cases, there is no corresponding procedural rule governing matters referred to magistrate judges in criminal cases. The lack of a criminal rule counterpart to Rule 72 was noted by the Ninth Circuit
Judge Carnes states that "Nile proposed rule would have the effect of requiring that nondispositive rulings of magistrate judges be appealed to district judges before they could be appealed to the court of appeals." The proposed rule would therefore remedy situations, such as occurred in Abonce-Barrera and other cases, where the lack of clear procedures when a magistrate judge issues a ruling or report and recommendation, has led to a split among the circuits concerning the requirements for appeal. (See Attachment II, which is Appendix C, "Waiver Under 28 U.S.C. § 636(b)(1)(B)," INVENTORY OF UNITED STATES MAGISTRATE JUDGE DUTIES (Third Edition, December 1999.)
At its September 2002 meeting, the Administrative Office's Advisory Group of Magistrate Judges briefly discussed the proposed rule and generally agreed that such a rule would be beneficial. Accordingly, since the proposed new rule would clarify whether it is necessary for a party to appeal a magistrate judge's ruling in the district court to preserve the right to appeal the ruling in the court of appeals, and, thus, resolve a split among the circuits, staff recommends that the Committee endorse a criminal rule counterpart to Fed. R. Civ. P. 72.
Staff suggests some changes to the draft rule submitted with Judge Carnes's letter. The proposed new rule would specifically apply to pretrial matters. It does not mention other non-case-dispositive and case-dispositive matters in felony cases that are referred to magistrate judges during or after trial, such as voir dire proceedings, supervised release revocation proceedings, and probation revocation proceedings. It thus may be more appropriate to promulgate a stand-alone criminal rule of procedure counterpart to Fed. R. Civ. P. 72 that would include additional felony duties that are not specifically pretrial matters.
In addition, the draft rule submitted with Judge Carnes's letter in subsection (1) states that for non-case-dispositive matters, "[a] district judge may refer to a magistrate judge for
Judge Carnes states that the Advisory Committee's proposed rule "would provide that the failure to object to a magistrate judge's report and recommendation waives the right to have an issue covered in that report and recommendation considered by either the district judge or the court of appeals." Judge Carnes also states that the proposed rule "would require a de novo review by a district judge . . . only if the defendant timely objects; otherwise, it is waived." Finally, the proposed rule would also include waiver language that provides that objections to a magistrate judge's order in a non-case-dispositive matter would also be waived if not raised in a timely fashion.
Establishing waiver provisions in a rule of criminal procedure applicable to both case-dispositive and non-case-dispositive matters handled by magistrate judges would clarify conflicting court of appeals decisions concerning the need to object to magistrate judge's orders and reports and recommendations to preserve appellate review. There are literally hundreds of cases discussing waiver doctrines applied to matters handled by magistrate judges. (See Attachment II for a partial listing.) The Supreme Court recognized the authority of courts to fashion waiver rules applicable to matters handled by magistrate judges when it stated in Thomas v. Arn, 474 U.S. 140, 155 (1985):
Under this reasoning, it would be appropriate to include a waiver provision in a national procedural rule governing matters handled by magistrate judges in criminal cases.
In addition, inclusion of a waiver provision in a federal rule of criminal procedure governing case-dispositive matters handled by magistrate judges would be consistent with the Supreme Court's reasoning in Peretz v. United States, 501 U.S. 923 (1991) and United States v. Raddatz, 447 U.S. 667 (1980). In discussing the requirement for de novo review in felony voir dire proceedings handled by a magistrate judge in Peretz, Justice Stevens, quoting from Raddatz, wrote, "that, to the extent 'de novo review is required to satisfy Article 111 concerns, it need not be exercised unless requested by the parties.'" Id. at 939. A rule specifying that a party waives the right to de novo review of a magistrate judge's report and recommendation if he or she fails to file timely objections would therefore be consistent with Supreme Court caselaw.
The proposed waiver language contained in the draft rule, however, appears to go too far in limiting review if a party fails to raise timely objections. The waiver provision applicable to case-dispositive matters referred to a magistrate judge states that, "[f]ailure to object in accordance with this rule precludes any review." Identical language (except that the proposed rules uses "to" instead of "with") would apply to non-case-dispositive matters referred to magistrate judges under the proposed rule. To the extent that the language precludes a district judge, if no objections are filed, from exercising discretionary authority to conduct de novo or any review of a magistrate judge's ruling or report and recommendation sua sponte or at the request of a party, it would be contrary to the Federal Magistrates Act and articulated Supreme Court decisions.
The constitutionality of the Federal Magistrates Act rests in large part on the principle that Article III judges maintain supervisory control over non-Article III magistrate judges. A primary manifestation of this control has been the discretionary authority of a district judge to review, de novo or otherwise, the rulings of a magistrate judge whenever the judge decides that such review is necessary, regardless of whether the parties have filed timely objections to the magistrate judge's ruling. The Supreme Court affirmed this view when it upheld the waiver rule promulgated by the Sixth Circuit in Thomas v. Arn, 474 U.S. 140 (1985):
In keeping with these views, the proposed waiver provisions should make clear that the district judge retains the discretionary authority to review the magistrate judge's ruling sua sponte or at the request of a party, regardless of whether objections have been filed. Accordingly, it is recommended that the waiver provisions in the draft rule be changed to state as follows: "Failure to object in accordance with this rule waives a party's right to review."
In his October 21, 2002 letter, Judge Carnes observes that the Advisory Committee's proposed rule would specifically include felony guilty plea proceedings conducted by magistrate judges as case-dispositive matters. In particular, Judge Carnes states that his Committee believes that there should be three requirements for a magistrate judge to conduct a felony guilty plea proceeding:
Judge Carnes's letter notes that the primary impetus behind this proposal is the Ninth Circuit's decision in United States v. Reyna-Tapia, 294 F.3d 1192 (9th Cir. 2002). In holding that a magistrate judge could conduct a felony guilty plea proceeding, the court stated that, "when a defendant explicitly consents, a magistrate judge may administer the Rule 11 plea colloquy in a felony case, so long as the district court reviews the proceedings de novo." This language on its face requires de novo review by a district judge whenever a magistrate judge conducts a felony guilty plea proceeding under Fed. R. Crim. P. 11, regardless of whether the defendant raises any objection to the magistrate judge's report and recommendation that the plea be accepted.
Judge Carnes's letter describes the substantial impact the Ninth Circuit's decision will have on district judges in the Ninth Circuit if it becomes binding precedent:
The Advisory Committee therefore urged that the proposed rule specifically include felony guilty plea proceedings as case-dispositive matters, subject to de novo review if a party objects.
The Committee's proposed rule raises significant concerns. As noted in Judge Carnes's letter, the Tenth Circuit held in United States v. Ciapponi, 77 F.3d 1247 (10
From its inception, the Federal Magistrates Act was intended to encourage district courts to be flexible and to experiment in referring matters to magistrate judges. The proposed rule arguably would be contrary to the intent and spirit of the Act in that it would prohibit the approach taken in New Mexico and approved by the Tenth Circuit of using magistrate judges to accept felony guilty pleas. It may be more appropriate to leave district courts with the flexibility and discretion to use magistrate judges to accept felony guilty pleas in different ways.
Moreover, it may not be necessary to attempt to resolve the problem raised by the Ninth Circuit's decision in Reyna-Tapia through the promulgation of a nationwide procedural rule. As explained in footnote 2, above, the judgment in the Ninth Circuit's decision in Reyna-Tapia has not been finalized and the case may be reheard en banc. It is possible that the mandatory de novo review requirement set forth in Reyna-Tapia will not stand as the law of the Ninth Circuit, which would resolve the immediate matter without resorting to the lengthy rule-making process. Under these circumstances, it may be appropriate to defer final consideration of whether felony guilty plea proceedings should be treated as case-dispositive matters in the proposed rule until the law in the Ninth Circuit is clear.
It must be noted that in recent years the Magistrate Judges Committee has declined to endorse several proposals to amend the Federal Magistrates Act to make the statute more explicit about magistrate judge authority to conduct specific proceedings, including proceedings in felony cases.
Accordingly, the Administrative Office recommends that the proposed new rule not enumerate felony guilty plea proceedings or any other matters as case-dispositive or non-case-dispositive. By not specifying felony guilty plea proceedings as case-dispositive matters in the proposed new rule, courts would remain free to refer them to magistrate judges under subsection (1), which contains language that provides that review of a magistrate judge's order in a non-dispositive matter is waived if a party fails to file timely objections, or under subsection (2), treating guilty plea proceedings as case-dispositive matters, which would subject them to an explicit waiver provision governing de novo review.
Such an approach would provide courts with the flexibility either to refer felony guilty plea proceedings to magistrate judges on a report and recommendation basis or to follow the practice upheld by the Tenth Circuit of having magistrate judges accept felony guilty pleas with the defendant's consent, subject only to the defendant's right to withdraw the plea under Fed. R. Crim. P. 32. The Advisory Committee note to the proposed new rule could acknowledge the different approaches the circuits have taken regarding the extent of magistrate judges' authority in this area.
An alternative approach that could address the concerns discussed above may be to have a separate subsection of the proposed rule dedicated to felony guilty plea proceedings conducted by magistrate judges. Such a subsection could more easily address the two different approaches upheld by the circuits. It could also include more procedural detail including, at a minimum, the requirement for the defendant's consent.
In an October 12, 2002, letter to Judge Schlesinger, Judge Edward E. Carnes, Chairman of the Judicial Conference Advisory Committee on Criminal Rules, requested that the Magistrate Judges Committee consider a proposal to add a counterpart to Fed. R. Civ. P. 72 to the Federal Rules of Criminal Procedure. After extensive discussion of the issue at its December 2002 meeting, the Magistrate Judges Committee voted to make several specific recommendations to the Advisory Committee on Criminal Rules concerning the proposal. The recommendations were memorialized in a December 13, 2002, letter from Judge Schlesinger to Judge Carnes. The Magistrate Judges Committee's recommendations, are summarized briefly below.
The Committee endorsed promulgation of a new criminal rule, similar to Fed. R. Civ. P. 72, that would establish procedures for both non-case-dispositive and case-dispositive matters in felony cases referred to magistrate judges. It also endorsed inclusion of waiver language provided that the new provision would retain a district judge's discretionary authority to review a magistrate judge's ruling sua sponte or at the request of a party, regardless of whether timely objections have been filed.
The Committee disagreed with the proposal that acceptance of guilty pleas in felony cases be specified as case-dispositive matters requiring magistrate judges to prepare reports and recommendations that a guilty plea be accepted by a district judge. The Committee noted that, from its inception, the Federal Magistrates Act was intended to encourage district courts to be flexible and to experiment in referring matters to magistrate judges. It also noted that, while in most circuits magistrate judges prepare reports and recommendations recommending that a guilty plea be accepted by a district judge, in one circuit magistrate judges accept felony guilty pleas with the defendant's consent subject only to the defendant's right to withdraw the plea under Fed. R. Crim. P. 32. To leave district courts with the flexibility and discretion to use magistrate judges to accept felony guilty pleas in different ways, the Committee recommended to the Advisory Committee that any new criminal rule promulgated as a counterpart to Fed. R. Civ. P. 72 not specify felony guilty plea proceedings as case-dispositive matters or otherwise prescribe specific procedures that would limit a magistrate judge's authority to accept felony guilty pleas in the criminal rules.
At its April 2003 meeting, the Advisory Committee on Criminal Rules further considered a specific proposal to add a new Rule 59 to the Federal Rules of Criminal Procedure as a counterpart to Fed. R. Civ. P. 72. The agenda item analyzing this proposal for the Advisory Committee, that includes all correspondence between Judge Carnes and Judge Schlesinger on this issue, is set forth as Attachment I.
Agreeing with the views of the Magistrate Judges Committee, the Advisory Committee voted to recommend that a new Fed. R. Crim. P. 59 be endorsed by the Judicial Conference Committee on Rules of Practice and Procedure at its June 2003 meeting and submitted for public comment. The proposed Fed. R. Crim. P. 59 and accompanying committee note are set forth as Attachment II.
In addition, the Advisory Committee also considered, but voted unanimously not to proceed with, a proposed Rule 11(i) of the Federal Rules of Criminal Procedure that would have set out a specific felony guilty plea procedure for magistrate judges.
