Rule 11(c)(1) Line-Drawing: A Judge May Address Counsel-Withdrawal Fallout and Note Plea-Offer Revocability Without “Participating” in Plea Negotiations

1. Introduction

United States v. Eckstein (10th Cir. Jan. 9, 2026) arises from a breakdown in the attorney–client relationship after a plea agreement had already been signed by the defendant, retained counsel, and the government. The case presented two Rule 11-adjacent questions:

Whether the district court, during an ex parte discussion prompted by defense counsel’s request to withdraw at a change-of-plea hearing, improperly participated in plea negotiations in violation of Fed. R. Crim. P. 11(c)(1).
Whether the district court committed reversible plain error by failing, during the plea colloquy, to advise the defendant that the right to counsel includes the right to appointed counsel upon a showing of financial need, as required by Fed. R. Crim. P. 11(b)(1)(D).

The Tenth Circuit affirmed, holding that the judge’s handling of the withdrawal-related dilemma did not amount to plea-negotiation participation and that the Rule 11(b)(1)(D) omission—though conceded as obvious error—was not shown to have affected the defendant’s substantial rights.

2. Summary of the Opinion

No Rule 11(c)(1) violation. The court held the district judge did not “participate” in plea negotiations by explaining, in the context of deciding whether counsel should be allowed to withdraw, that the government could revoke a plea offer any time before the court accepted it, and by asking the defendant what he wanted to do. The panel emphasized that the plea agreement had already been signed and there were no ongoing negotiations.
Rule 11(b)(1)(D) error, but no prejudice shown. The district court failed to state that the right to counsel included appointed counsel if the defendant could not afford one. Applying plain-error review, the Tenth Circuit held the defendant did not show a reasonable probability he would have pleaded not guilty had the omitted advisement been given.
No cumulative error. Because the panel found at most one error, the doctrine of cumulative prejudice did not apply.

3. Analysis

A. Precedents Cited

1) Plain-error framework and burdens

United States v. Herrera, 51 F.4th 1226 (10th Cir. 2022): Cited for the general rule that failure to object triggers plain-error review. Eckstein uses Herrera as the default procedural posture for unpreserved claims.
United States v. Marshall, 307 F.3d 1267 (10th Cir. 2002): Cited for the “rigorous” nature of plain-error review (error must be obvious and prejudicial). The court referenced Marshall while noting it ultimately did not need to resolve which standard applied to the Rule 11(c)(1) claim because it found no participation at all.
United States v. Tignor, 981 F.3d 826 (10th Cir. 2020): Cited for the proposition that even obvious errors are disregarded without a showing of effect on substantial rights. Tignor anchors the panel’s insistence on prejudice for the Rule 11(b)(1)(D) omission.
United States v. Dominguez Benitez, 542 U.S. 74 (2004): Provides the governing prejudice standard for unpreserved Rule 11 errors: a defendant must show a reasonable probability that, but for the error, he would not have entered the plea. Eckstein applies this directly to the omitted appointed-counsel advisement.

2) The Rule 11(c)(1) “participation” line

United States v. Cano-Varela, 497 F.3d 1122 (10th Cir. 2007): Supplies the purposes behind Rule 11(c)(1)’s ban on judicial participation: (i) minimizing coercion, (ii) preserving impartiality, and (iii) avoiding appearance of impropriety; and clarifies that participation may be explicit or implicit, while also recognizing that not “every comment about a plea” is prohibited. Eckstein uses Cano-Varela’s framework to evaluate whether the judge’s remarks were case-management commentary or negotiation pressure.
United States v. Sandoval-Enrique, 870 F.3d 1207 (10th Cir. 2017) (quoting United States v. Davila, 569 U.S. 597 (2013)): Cited for the contextual, “full record” inquiry into improper participation. Eckstein relies on this to treat the judge’s remarks as part of a counsel-withdrawal assessment, not as plea bargaining.

3) Plea offers are revocable pre-acceptance

United States v. Novosel, 481 F.3d 1288 (10th Cir. 2007): Cited for the proposition that the government may revoke a plea offer any time before the district court accepts it. In Eckstein, this precedent is pivotal: it supplies the legal accuracy of the judge’s warning and reframes the warning as informational rather than coercive.

4) Measuring prejudice for Rule 11 omissions; information from “other sources”

United States v. Edgar, 348 F.3d 867 (10th Cir. 2003): Cited for a prejudice metric in Rule 11 violations—whether the defendant would have pleaded not guilty if properly advised. Eckstein uses Edgar by analogy to the omitted appointed-counsel advisement.
United States v. Ferrel, 603 F.3d 758 (10th Cir. 2010): Cited for the principle that when a defendant receives omitted information from other sources, it is generally difficult to show he would have rejected the plea. Eckstein relies on Ferrel to credit the initial appearance advisement and other reminders of the right to counsel.
United States v. Umeh, 132 F.4th 573 (1st Cir. 2025) (quoting United States v. Vonn, 535 U.S. 55 (2002)): Cited for the notion that defendants may be presumed to recall information provided prior to the plea proceeding (e.g., at the initial appearance). Eckstein uses this to blunt the argument that the two-year gap erased the defendant’s prior understanding of appointed counsel.

5) Cumulative error limits

United States v. Starks, 34 F.4th 1142 (10th Cir. 2022): Cited for the concept that multiple plain errors can cumulatively create prejudice. Eckstein acknowledges the doctrine but finds it inapplicable on the facts.
United States v. Joseph, 108 F.4th 1273 (10th Cir. 2024): Cited for the straightforward limitation that a single error cannot yield “cumulative error.” Eckstein uses Joseph to foreclose the cumulative-prejudice argument once it finds only one possible error.

B. Legal Reasoning

1) Why the judge’s ex parte discussion was not “participation” in plea negotiations

Eckstein’s central move is contextual categorization: the panel treats the district court’s ex parte discussion as a necessary inquiry into a motion-to-withdraw and attorney–client breakdown, not as an attempt to broker plea terms.

No ongoing bargaining. The plea agreement had been signed; the defendant’s hesitation did not reopen negotiations in the panel’s view. The “immediate question” was whether counsel should be permitted to withdraw, not how to adjust plea terms.
Informational accuracy, not leverage. The judge’s statement that the government did not have to keep the offer open tracks United States v. Novosel. The panel thus characterizes the statement as a truthful description of procedural risk attendant to delay, not a judicial “nudge” toward pleading guilty.
Anti-coercion safeguards in the record. The district court twice disclaimed any view on whether the plea was good or bad and twice disclaimed pressuring the defendant. The judge also offered three options, including a two-day continuance to think and consult—facts the panel uses to rebut the claim that “right now” meant “plead now.”
Need to manage counsel withdrawal. The court reasoned that deciding withdrawal required knowing whether the defendant wished to proceed with the plea with existing counsel, seek new counsel, or delay—because withdrawal would introduce delay and uncertainty while the plea offer could evaporate.

Doctrinally, the opinion narrows “participation” toward conduct that injects the court into bargaining over plea terms or pressures a plea decision, and it treats court-driven case-management explanations—especially those tied to a motion to withdraw—as potentially permissible when framed neutrally.

2) Why the appointed-counsel omission did not warrant reversal

The panel accepts (via the government’s concession) that the district court obviously erred by not stating during the plea colloquy that the right to counsel includes appointed counsel if the defendant cannot afford one (Fed. R. Crim. P. 11(b)(1)(D)), but it denies relief for lack of prejudice under United States v. Dominguez Benitez.

Timing matters. The panel rejects the idea that the omission created earlier “uncertainty” during the withdrawal discussion, emphasizing that Rule 11(b)(1)(D) governs what must be said when taking the plea.
Record-based improbability of a different plea. The court points to: (i) the defendant’s reaffirmation that he would carry out the plea agreement; (ii) three separate advisements that he had a right to counsel (initial appearance, plea agreement, and plea colloquy); and (iii) the earlier explicit advisement that he was entitled to appointed counsel if he could not afford one, with the defendant acknowledging understanding.
“Other sources” cure the omission for prejudice purposes. Drawing on United States v. Ferrel and the “presumed recall” concept echoed in United States v. Umeh (quoting United States v. Vonn), the panel treats the initial appearance advisement as strongly undermining any claim that the plea decision hinged on the missing sentence in the later colloquy.

3) Cumulative prejudice rejected

Applying United States v. Starks and United States v. Joseph, the panel holds cumulative error cannot apply because it found only one possible error.

C. Impact

Practical guidance for “plea-day” crises. The opinion gives district judges a defensible path when a defendant hesitates at a change-of-plea hearing and counsel seeks to withdraw: the court may inquire into the breakdown and may candidly explain case-management consequences (including plea-offer revocability), so long as it avoids recommending a plea or discussing sentencing outcomes in a way that pressures the defendant.
Reinforces a contextual Rule 11(c)(1) standard. By leaning on United States v. Sandoval-Enrique (quoting United States v. Davila), Eckstein signals that “participation” turns on how judicial remarks function in the real-time setting—withdrawal management versus bargaining—rather than on isolated phrases.
Clarifies prejudice showing for Rule 11(b)(1)(D) omissions. The decision underscores that defendants face a steep burden to overturn pleas for incomplete advisements where the missing information was conveyed earlier (e.g., at initial appearance) or elsewhere (e.g., in the plea agreement).
Encourages meticulous plea colloquies. Although the conviction was affirmed, the court’s acceptance of “obvious error” highlights that failure to recite appointed-counsel language remains a real appellate risk; the win for the government here turned on the specific record.

4. Complex Concepts Simplified

Rule 11(c)(1) “participation” in plea negotiations: Judges must not get involved in bargaining over whether a defendant should plead guilty or what the deal should be. But judges can still manage their courtrooms. Eckstein holds that explaining accurate procedural realities (like “the prosecutor might withdraw the offer if there’s delay”), in a neutral way tied to a decision about counsel withdrawal, is not necessarily the same as negotiating a plea.
Plain-error review: If a defendant did not object at the time, an appellate court will reverse only for serious mistakes. Typically, the defendant must show: (1) an error, (2) that is obvious, and (3) that likely affected the outcome (plus an additional fairness/integrity consideration). In Eckstein’s Rule 11(b)(1)(D) claim, the fight centered on the “likely affected the outcome” part.
“Substantial rights” / prejudice in guilty-plea errors: For Rule 11 mistakes, the key question is often: “Is there a reasonable probability the defendant would have refused the plea and pleaded not guilty if properly advised?” The court said “no” here because the defendant already knew (from earlier proceedings) that appointed counsel was available if needed.
Cumulative error: Sometimes multiple small errors can combine to cause unfairness even if each one alone would not. But there must be at least two errors. Eckstein rejects cumulative prejudice because it found only one possible error.

5. Conclusion

United States v. Eckstein draws a workable boundary around Rule 11(c)(1): a district court does not “participate” in plea negotiations merely by neutrally addressing a last-minute attorney–client breakdown, explaining the procedural risk that a signed plea offer may be revoked before acceptance, and offering non-coercive options (including time to think). At the same time, the opinion reaffirms that Rule 11 advisements must be complete—especially the appointed-counsel component of Fed. R. Crim. P. 11(b)(1)(D)—but that reversal on an unpreserved omission depends on a concrete, record-supported showing that the defendant likely would have rejected the plea.