United States v. Curtis Drummond

HEANEY, Senior Circuit Judge,

dissenting.

The majority analyzes the failure of a trial court to inform a defendant of his right to appeal, as is required by Fed.R. Crim.P. 32(a)(2), under a harmless error standard. I cannot agree. Whether we should apply a harmless error analysis must be determined by the purposes of the violated rule. Rule 32(a)(2) was not intended to be subject to harmless error analysis because it was adopted to eliminate litigation over whether the defendant had been apprised of his appeal rights by his attorney. The reasons for requiring strict compliance with the Rule have not diminished, although Rule 32(a)(2) may have successfully made faint our collective memory of the problems which preceded its adoption. Accordingly, I would follow the First, Third, Fourth, Sixth and Seventh Circuits and hold that a trial court’s failure to comply with Rule 32(a)(2) requires reinstatement of a defendant’s appeal rights.

Discussion

Rule 32(a)(2) replaced Rule 37(a)(2), which required a court to inform only unrepresented defendants of their right to appeal. See Fed.R.Crim.P. 32, Advisory Committee Notes, 1966 amendment, reprinted in Fed.Crim.Code & Rules 105 (1989). Rule 32(a)(2) requires a trial court to inform a defendant at the conclusion of sentencing that he has a right to appeal and that he may proceed in forma pauperis if necessary. 1 A bright-line rule requiring notice in all cases was adopted to eliminate persistent litigation over whether the defendant had been fully informed of his rights by his counsel. Id.; see, e.g., Henderson v. Cardwell, 426 F.2d 150, 153-54 (6th Cir.1970) (collecting cases); Nelson v. Peyton, 415 F.2d 1154, 1156-58 (4th Cir.1969), ce rt. denied sub nom, Cox v. Nelson, 397 U.S. 1007 , 90 S.Ct. 1235 , 25 L.Ed.2d 420 (1970); Dillane v. United States, 350 F.2d 732, 733 (D.C.Cir.1965) (per curiam). In Dillane , the court welcomed Rule 32(a)(2), noting that “[t]he problem presented by the case before us is, thus, in the process of becoming academic.” Dillane, 350 F.2d at 733 n. 1.

Rule 52 provides that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Fed.R.Crim.P. 52(a). The majority concedes that the right to appeal is *1176 itself a substantial right. Maj. op. at 1174 n. 8. It is not apparent, however, on the face of either Rule 52 or Rule 32 whether harmless error analysis should apply to violations of Rule 32. No circuit which has considered the question, however, has applied harmless error analysis to violations of Rule 32(a)(2). See Paige v. United, States, 443 F.2d 781, 782 (4th Cir.1971); United States v. Deans, 436 F.2d 596 , 599 n. 3 (3d Cir.), cert. denied, 403 U.S. 911 , 91 S.Ct. 2211 , 29 L.Ed.2d 688 (1971); United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir.1970); Nance v. United States, 422 F.2d 590, 592 (7th Cir.1970); United States v. Smith, 387 F.2d 268, 270 (6th Cir.1967).

These circuits have reasoned that strict compliance is necessary to avoid repeated litigation over whether the defendant may have otherwise been aware of his right to appeal.

Rule 32(a)(2) is specific in its command. It is obviously designed to insure that a convicted defendant be advised precisely of his right to appeal and to avoid a situation where the Government claims a defendant is otherwise aware of his right to appeal while the defendant denies such knowledge.

Paige, 443 F.2d at 782 .

The obvious purpose of Rule 32(a)(2) is to insure that all defendants who might wish to appeal are fully aware of their appeal rights. The purpose, we believe, is best served by allowing a section 2255 motion to reinstate an appeal whenever the trial court has failed to comply with the rule, without regard to whether or not the defendant had obtained knowledge of his rights from some other source. Determination of the extent of a defendant’s actual knowledge will often turn solely upon judgments as to the veracity of conflicting witnesses and the reliability of their memories.... such a proceeding is a poor substitute for initial compliance with the rule.

Benthien, 434 F.2d at 1032 .

The result reached by these circuits is supported by the Supreme Court’s treatment of the violation of Rule 32(a)(2)’s predecessor, Rule 37(a)(2). In Rodriguez v. United States, 395 U.S. 327 , 89 S.Ct. 1715 , 23 L.Ed.2d 340 (1969), the defendant’s counsel withdrew at the close of sentencing. The trial court failed to apprise the defendant of his appeal rights. The Court vacated the defendant’s sentence because of this failure and without remanding for any further findings. Id. at 331-32 , 89 S.Ct. at 1717-18 . Only Justice Harlan dissented, arguing that there was, at most, a harmless error in Rodriguez’s case. Id. at 334 , 89 S.Ct. at 1719 (Harlan, J., dissenting). The Supreme Court rejected this approach and cited favorably the Sixth Circuit decision in Smith , which had adopted a per se error rule in interpreting Rule 32(a)(2). Id. at 332 , 89 S.Ct. at 1718 . Rodriguez clearly rejects harmless error analysis where a court is required to inform a defendant of his appeal rights.

Moreover, I read our earlier opinion in Johnson v. United States, 453 F.2d 1314, 1315-16 (8th Cir.) (per curiam), cert. denied, 406 U.S. 927 , 92 S.Ct. 1802 , 32 L.Ed.2d 129 (1972), as clearly requiring that the trial court itself provide notice to the defendant. There, we rejected the defendant’s claim that the trial court had erred because it provided him with notice of his appeal rights upon the return of the jury’s verdict rather than at sentencing. We stated:

It needs no extended analysis to demonstrate that the central purpose of the rule is to achieve prompt and final disposition of criminal cases by securing to the convicted defendant timely and adequate notice of his appellate rights. The master issue in this case is whether or not the notification given here is consistent with that purpose. Of course, in considering this question, it must not be lost sight of that the sentencing judge’s responsibility under the rule is one couched in explicit and mandatory terms. Hence, a refusal to discharge that responsibility may require vacation of the sentence and a concomitant remand for resentencing.

Id. In support of our admonition that the failure of the trial court to carry out its responsibilities would result in the vacation *1177 of a defendant’s sentence, we cited to Nance and Smith. Id. n. 7. In light of Johnson , the Supreme Court’s decision in Rodriguez , and the decisions of the other circuits, I must conclude that the majority is wrong. 2

The majority argues that harmless error analysis should nevertheless apply to violations of Rule 32(a)(2) because “[r]ule 52(a) admits of no broad exceptions to its applicability.” Maj. op. at 1173 (quoting United States v. Lane, 474 U.S. 438 , 448 n. 11, 106 S.Ct. 725 , 731 n. 11, 88 L.Ed.2d 814 (1986)). The majority notes that, in two recent eases, the Supreme Court has applied Rule 52 to violations of Rule 8(b) (joinder) and Rule 6(d) (grand jury procedures). See Lane, supra, (Rule 8(b)); United States v. Mechanik, 475 U.S. 66 , 106 S.Ct. 938 , 89 L.Ed.2d 50 (1986) (Rule 6(d)). Lane and Mechanik each applied Rule 52 after considering whether the purpose of the respective procedural rules that were violated would be undermined by harmless error analysis. Mechanik concluded that the purpose of Rule 6(d) was to protect grand juries from undue influence and rejected the view that the simultaneous presentment of two witnesses to a grand jury necessarily tainted the issuance of an indictment where a second jury subsequently convicted the defendants upon a higher standard of proof. Mechanik, 475 U.S. at 70 , 106 S.Ct. at 941-42 . Rule 8(b) allows the joining of defendants in the same trial where “they are alleged to have participated in the same act or transaction....” Fed.R.Crim.P. 8(b). In light of the fact that Rule 14 requires prejudice for severance, Lane simply rejected the view that misjoinder was inherently prejudicial. Lane, 474 U.S. at 444 , 106 S.Ct. at 729 . 3 In light of Lane and Mechanik , the majority concludes that Rule 52 should apply to violations of Rule 32(a)(2). Maj. op. at 1174. 4

*1178 What the majority fails to appreciate is that the very purpose of Rule 32(a)(2) is to avoid a case-by-case evaluation of whether the defendant learned of his appeal rights through other means and a determination of the quality of his understanding. Rules 6(d) and 8(b) do not share that purpose, and Lane and Mechanik thus shed little light on the issue in this case. The application of harmless error analysis to violations of Rule 32(a)(2) would subvert the particular purposes of the Rule.

Conclusion

For reasons of judicial economy, it is imperative to have a bright-line rule requiring that judges inform convicted defendants of their right to appeal. The costs of something less include increased habeas litigation, featuring swearing matches between prisoners and their former attorneys over whether or not each defendant was informed of his right to appeal, and more claims of ineffective assistance of counsel. Rule 32(a)(2) was enacted to eliminate the need for fact-finding hearings. Harmless error analysis is inconsistent with the purposes of the Rule. Accordingly, I dissent.

. It provides:

(2) Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant’s right to appeal, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.

Fed.R.Crim.P. 32(a)(2). The Rule is mandatory and its text is unambiguous. Moreover, the Federal District Court Benchbook informs the trial court that it must advise the defendant of his right to appeal. Benchbook §§ 1.18A-3, 1.18B-5.

. See Hoskins v. United States, 462 F.2d 271, 275 (3d Cir.1972) (interpreting Johnson as requiring notice by the court). I am also concerned that our decision conflicts with a recent unpublished per curiam opinion involving exactly the issue we consider today. United States v. Wixson, 902 F.2d 1574 (8th Cir.1990). In Wixson , the trial court failed to inform Wixson of his right to appeal, but the record indicated that his attorney informed him of his appeal rights. We reversed stating: “It is not necessary that a defendant be informed of his right to appeal at sentencing so long as it is clear that such information was conveyed by the sentencing court to the defendant at some point. See, e.g., Johnson v. United States, ...” Id. While unpublished opinions are not precedent, I am dismayed that we would give two similar petitioners different results in opinions that squarely conflict.

. In Lane , two defendants were indicted on several charges, and misjoinder was found only with respect to one count. 474 U.S. at 442-43 , 106 S.Ct. at 728-29. The Court relied for its holding, in part, on the fact that Rule 8(b) requires for joinder only that the defendants have allegedly participated in the same acts or transaction, while Rule 14, governing relief from misjoinder, requires prejudice for severance once defendants or claims are joined. Id. at 447, 106 S.Ct. at 731.

. The majority also finds support for its view in the alleged implied condemnation of a case cited by the First Circuit in Benthien, McCarthy v. United States, 394 U.S. 459 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969). I reach the opposite conclusion.

McCarthy held that failure to comply with Rule 11 is per se reversible error. 394 U.S. at 463-64 , 89 S.Ct. at 1169-70. Rule 11 was amended in 1983 to allow for harmless error analysis. Fed.R.Crim.P. 11(h). The Advisory Committee Notes indicate, however, that section (h) was added only because Rule 11 was substantially changed in 1975 in ways which significantly increased the chances of “a truly harmless error.” Fed.R.Crim.P. 11, Advisory Committee Notes, 1983 amendment, reprinted in Fed.Crim.Code & Rules 54 (1989) (emphasis in original). The Committee was careful to note that "McCarthy ... may have been justified at the time_” Id.

Moreover, the Committee noted that “it would not be harmless error if the trial judge totally abdicated to the prosecutor the responsibility for giving to the defendant the various Rule 11 warnings ...” Id. (emphasis in original). This last comment of the Committee touches upon that portion of the duties imposed on a court under Rule 11 that most closely resemble the duty imposed under Rule 32(a)(2). It indicates that, under Rule 11(h), harmless error is determined by the importance of the duty breached by the trial court, rather than by the actual effect of the trial court’s omission on the defendant. Some violations of Rule 11 are thus still subject to per se reversal. "Indeed, it is fair to say that the kinds of Rule 11 violations which might be found to constitute harmless error upon direct appeal are fairly limited_” Id. (emphasis added).

The majority also considers the social costs of reversing convictions. A bright-line rule requiring post-conviction notice to the defendant of his right to appeal, however, usually requires, in *1178 the case of error only, resentencing. In contrast, Lane and Mechanik both involved errors committed at trial, and reversal for nonprejudicial errors would have required new and costly trials. Many of those very concerns argue in favor of a bright-line rule that would prevent needless post-conviction litigation. Today's case is unusual because the 1982 trial tapes are not available despite the fact that transcripts are supposed to be retained for ten years. 28 U.S.C. § 753 (1982).