United States v. Donnie M. Young

McMILLIAN, Circuit Judge,

concurring in part and dissenting in part.

I respectfully dissent. I do not agree that the district court’s failure to comply with Fed.R.Crim.P. 11(c)(1) was harmless error. Accordingly, I would reverse Young’s conviction and remand with instructions to allow Young to plead anew.

At the outset, I take issue with the majority’s failure to acknowledge that the instant case does, in fact, present a violation of Rule 11(c)(1). 1 Rule 11 provides in pertinent part:

(c) Advice to Defendant. Before accepting a plea of guilty or nolo conten-dere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term....

The Rule unequivocally places an affirmative duty on the district judge to personally inform the defendant of, inter alia, the range of available legal penalties. As the Supreme Court stated in McCarthy v. United States, 394 U.S. 459, 467 , 89 S.Ct. 1166, 1171 , 22 L.Ed.2d 418 (1969), “we reject the Government’s contention that Rule 11 can be complied with although the district judge does not personally [make the Rule 11 inquiries].” 2

Here, the district judge did not personally advise Young of the minimum and maximum sentences to which he was subject. The fact that the judge established that Young had read the indictment and plea agreement is, in my opinion, insufficient to satisfy the unequivocal dictates of Rule 11(c)(1). I therefore would hold, without reservation, that the district judge violated Rule 11(c)(1). See, e.g., Harvey v. United *1065 States, 850 F.2d 388, 395 (8th Cir.1988) (Rule 11 violation where district judge did not read indictment to defendants though each said he had read it and one said he understood charges against him; court should have explained charges instead of relying on counsel to do so); United States v. Bernal, 861 F.2d 434, 437 (5th Cir.1988) (same; even if in presence of court defendant reads plea agreement containing nature of charges); Mack v. United States, 635 F.2d 20, 26 (1st Cir.1980) (same; where court depended on private reading of indictment by defendant and counsel, and accepted counsel’s statement that defendant appreciated meaning of plea) (subsequent history omitted); United States v. Wetterlin, 583 F.2d 346, 351 (7th Cir.1978) (reading indictment is not substitute for explicit requirement that judge personally, in open court, on record, determine defendant knows and understands nature of charges); United States v. Coronado, 554 F.2d 166 , 172-73 & n. 11 (5th Cir.1977) (Rule 11 and McCarthy v. United States require district court to address defendant personally).

Whether or not, in light of Rule 11(h), certain Rule 11 violations may still result in a per se reversal, 3 here, harmless error clearly was not established. The Conference Committee Notes to Rule 11(h), 1983 amendment, provide that “subdivision (h) should not be read as supporting ... speculative harmless error claims.... 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.”

Notably absent from the majority’s opinion is the standard utilized in its harmless error analysis. Because Rule 11 is grounded on constitutional principles, I believe that the proper standard is harmless error beyond a reasonable doubt. See United States v. Kamer, 781 F.2d 1380, 1386 (9th Cir.1986) (“establish beyond doubt”). Even considering a clear and convincing standard, cf. United States v. Drummond, 903 F.2d 1171, 1175 (8th Cir.1990) (Rule 32(a)(2) violation was harmless error where government established by clear and convincing evidence that defendant knew of right to appeal), my opinion in the instant case remains the same.

I do not agree with the majority’s conclusion that “the Rule 11 transcript clearly discloses that Young actually knew of the statutory maximum and minimum sentences,” supra p. 1063, and thus, that the facts permit a finding of harmless error. Indeed, if anything, the transcript is indicative of the district court’s and the parties’ confusion about the proceedings, and, as evidenced in footnote 1 of the majority’s opinion, the government’s own confusion about the sentencing ranges.

First, although Young had the indictment before him, I find untenable the majority’s reliance upon the cryptic notions (“NLT ...” and “NMT ... ”), located to the right of the caption of the eight-page, eighteen-count indictment, in concluding that Young was adequately informed of and understood the statutory maximum and minimum sentences of the two counts to which he pleaded. Moreover, I do not understand the majority’s reliance on the fact that Young declined the court’s offer to read counts one and sixteen from the indictment, for these counts did not set forth the *1066 relevant minimum and maximum penalties Young faced.

I further take issue with the majority’s statements, “The district court also asked Young whether he had read, understood and discussed with counsel the plea agreement, [Rule 11 Transcript] at 5-6-Young replied that he had read the plea agreement.” Supra p. 1062. I believe that the majority erroneously relies upon the colloquy at pages 5-6 of the guilty plea transcript as establishing Young’s knowledge of the sentences he faced. The transcript reveals at page 7 that all antecedent dialogue between the district court and Young relative to the plea agreement had been based upon the district court’s erroneous belief that a prior record had been made of Young’s change of plea in this case. At pages 7-8, counsel informed the court that earlier in the week, Young had actually indicated he did not wish to enter into the plea agreement, and that there was no prior record regarding Young’s change of plea. After the error was brought to the court’s attention, the court stated, “All right. Let’s start all over then. We had several other pleas in this case but we’ll start all over. Is that agreeable with you, Mr. Young? Let’s just start from the very beginning.” (Tr. at 8). The only subsequent discussion of the plea agreement is found at page 11 of the transcript, where the following dialogue took place:

THE COURT: You’ve not had anything promised to you that is not in the written plea bargain and you’ve not had anybody try and lean on you or pressure you into making these pleas of guilty, rather they are in fact your voluntary pleas, correct?

YOUNG: Yes.

THE COURT: And you told me that you want me to accept the plea bargain and I think I asked you, but if not, I’ll ask you now — who has the plea bargain agreement? Do I have it?

DEFENSE COUNSEL: I’ve got it.

THE COURT: I just want to ask him — is this your signature that’s on the plea bargain agreement, sir?

YOUNG: Yes, sir.

THE COURT: And is that your voluntary signature?

YOUNG: Yes, sir.

THE COURT: And you’re joining in the plea bargain as your voluntary act?

YOUNG: Yes, sir.

In addition, upon my review of the plea transcript, including pages 5-6, I see no indication that anyone asked Young if he understood the plea agreement, and more importantly, the sentencing information contained therein. Thus, even if Young actually had read the agreement, I would not find harmless error, as I do not consider the ability to read to be synonymous with the ability to understand what one has read. I emphasize this point because I find the dispositive question regarding Rule ll(h)’s harmless error analysis to be whether Young understood the possible minimum and maximum sentences when he pleaded guilty. Furthermore, a defendant’s statement that he had discussed with counsel a document containing, amongst many other things, the range of available sentences does not, in my opinion, establish that the defendant necessarily understood the minimum and maximum sentences he faced.

As to the majority’s reliance on the fact that the prosecutor advised Young during the plea hearing of the statutory minimum sentence on count one and the mandatory sentence on count sixteen, I point out that the plea proceeding was devoid of any colloquy informing Young of the maximum penalty on count one, or the possible terms of supervised release and fines on counts one and sixteen.

Last, I find inapposite three of the four cases the majority cites in support of its conclusion of harmless error. In United States v. Kearney, 750 F.2d 787 (9th Cir.1984), the issue was whether Kearney’s conviction was invalid because he was not informed at his guilty plea hearing that he could be sentenced as a second offender. At the plea hearing, the magistrate expressly stated, “I can tell you right now that I’ll view [Kearney] as a second offender” for purposes of sentencing. Id. at 790 . In United States v. Peden, 872 F.2d 1303 (7th Cir.1989), the court failed to inform the *1067 defendant that his sentence could include restitution. The Seventh Circuit found harmless error, because Peden stated that he understood restitution could be a part of his sentence, and he argued for probation in order to meet the requirement of making restitution. Id. at 1307 . He also said that he had read a copy of the presentence report, which included a comment that restitution could be ordered by the court as part of his sentence, and that he understood its contents. Id. at 1308-09 & n. 4.

In United States v. Coronado, 554 F.2d 166, 169 (5th Cir.1977), the defendant pleaded guilty to a drug conspiracy. At the plea hearing, the prosecutor read to Coronado the indictment, which charged that Coronado and two codefendants knowingly and intentionally combined, conspired, confederated, and agreed to unlawfully possess cocaine. Id. Although the district court did not explain to Coronado the meaning of “conspiracy,” the Fifth Circuit found no reversible error “because the Rule 11 proceeding on its face disclose[d], despite the trial court’s failure sufficiently to make the required explication of the charges, that Coronado understood them.” Id. at 173 . Moreover, “[m]any of the statements upon which [the court] rel[ied] in concluding that Coronado understood the charges came as part of a direct discussion between Coronado and the judge.” Id. at 173 n. 11. Thus, unlike the case at bar, the record in each of the above cases evidenced the defendants’ actual knowledge of the consequences of their guilty pleas. 4

I believe that the instant case is analogous to United States v. McCarthy, 394 U.S. 459 , 89 S.Ct. 1166 , where there was no inquiry by the trial judge into defendant’s understanding of the nature of the charge, and to United States v. Crook, 526 F.2d 708 (5th Cir.1976) (per curiam), where the judge abdicated to the prosecutor the responsibility for giving the Rule 11 warnings. The Conference Committee Notes to Rule 11(h), 1983 amendment, cite both of these cases as illustrative instances where there would not be harmless error.

Accordingly, I respectfully dissent as to the majority's Rule 11 holding. I would reverse Young's conviction and remand with instructions to permit Young to plead anew.

. The majority holds that "the district court's violation of Rule 11, if it occurred at all, was harmless error,” see supra p. 1062; and “the district court’s error, if any, was harmless,” see supra p. 1063.

. While McCarthy v. United States, 394 U.S. 459 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969), was decided before the Rule 11(h) amendment, providing for harmless error, the Conference Committee Notes on Rule 11(h), 1983 amendment, provide that "[sjubdivision (h) makes no change in the responsibilities of the judge at Rule 11 proceedings.”

. The Conference Committee Notes to Rule 11(h), 1983 amendment, illustrate instances where there would not be harmless error under subdivision (h) with examples such as:

where ... as in McCarthy , there had been absolutely no inquiry by the judge into defendant's understanding of the nature of the charge and the harmless error claim of the government rests upon nothing more than the assertion that it may be "assumed" defendant possessed such understanding merely because he expressed a desire to plead guilty[;] ... [or where] the trial judge totally abdicated to the prosecutor the responsibility for giving to the defendant the various Rule 11 warnings, as this "results in the creation of an atmosphere of subtle coercion that clearly contravenes the policy behind Rule 11.” United States v. Crook, 526 F.2d 708 (5th Cir.1976).

See also United States v. Pierce, 893 F.2d 669, 679 (5th Cir.1990) (district court’s complete failure to address Rule 11 core requirement ordinarily requires reversal and will not be treated as harmless error); United States v. Gonzalez, 820 F.2d 575, 579-81 (2d Cir.1987) (per curiam) (district judge’s failure to make any Rule 11(d) inquiry not of kind Conference Committee on Rules considered might constitute harmless error; guilty plea vacated).

. In United States v. Vance, 868 F.2d 1167, 1171 (10th Cir.1989), also relied upon by the majority, the sparse record made it impossible to determine whether the district court had informed the defendant that restitution was a sentencing possibility. The Tenth Circuit concluded, assuming the judge failed to so inform the defendant, that there was harmless error because the plea agreement informed the defendant of the possibility of a fine in excess of the restitution amount ultimately ordered, and the defendant’s petition to enter a plea of guilty specifically stated that his attorney had informed him of the possibility of restitution. Id. at 1171-72 . I would disagree with this conclusion; in any event, Vance is distinguishable on the ground that it involved merely the restitution aspect of the sentence.