UNITED STATES of America, Appellee, v. Earl Lee TUCKER, Appellant.
No. 12618.
United States Court of Appeals, Fourth Circuit.
Decided May 12, 1970.
Argued Nov. 3, 1969.
The testimony of the two tugboat captains, both intimately familiar with these waters, was that beaching was an idea that would have occurred to a reasonable master as soon as it became evident that pumping would not succeed. The judge‘s questioning made it clear that all work on the stern manhole cover was over by around 9:35 P.M., and Morrissey‘s first bout with the telephone had concluded by 10 P.M., more than an hour before the debacle. The case is not as if the tug personnel had chosen between beaching and pumping, the latter choice had proved unsuccessful, and they were sought to be held liable for making it. Neither is it like one where they considered beaching and rejected it as impractical. Captain Morrissey admitted that he gave no thought to beaching at all. Despite the majority‘s contrary statement, the trial court did not regard the captain as having been confronted with an emergency in which the failure to consider a possible course of action might be excusable; it specifically found there was time for deliberation. To be sure a negligent failure to decide to beach would not support a recovery unless Howlett sustained its burden of showing that the effort would have succeeded. But this surely is a question of fact and I see no basis for deeming clearly erroneous the finding that this could probably have been accomplished if Morrissey had tried it around 10 P.M.
By second-guessing the district judge in a case like this, we encourage appeals on what are largely factual issues, thus needlessly produce further work for ourselves, and impair the confidence which the district courts deserve. See C. Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn.L.Rev. 751, 778-82 (1957). I would therefore affirm the judgment. However, if it is decided to reverse, I see no justification whatever for attempting, as the majority apparently would do, to foreclose Judge Cannella‘s consideration of other claims of imprudent seamanship on which he found it unnecessary to pass; he particularly noted that it was “difficult to believe that the deckhand and the engineer were unable to remove the [stern manhole] cover with the power tools available.”
Paul M. Rosenberg, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., on brief), for appellee.
Before BOREMAN, BRYAN and BUTZNER, Circuit Judges.
BOREMAN, Circuit Judge:
Earl Lee Tucker appeals from his conviction on a charge of assault with intent to rape, following his plea of guilty in the district court. He was sentenced to twenty years imprisonment, but was made eligible for parole at any time under
The prosecution stemmed from a 1965 multiple rape, in a Washington, D. C. warehouse, of a woman who was forcibly abducted from an automobile parked in Maryland along the Baltimore-Washington Parkway. Tucker was admittedly a passenger in a vehicle in which the abductors were riding but he now denies participation in the abduction, in assaulting the victim while in the car, or in the subsequent multiple rape. He contends that he was guilty of no more than a technical assault in touching the victim as he moved her legs which were draped across his lap.
The grand jury for the District of Maryland returned three-count indictments against six males, including this defendant, Tucker, charging them in count one with kidnapping, in count two with assault with intent to rape, and in count three with assault by striking and beating as well as by fondling, exploring and probing the private parts of the victim.
Tucker was arraigned on March 11, 1966, and entered a plea of not guilty to each count of the indictment. Eleven months thereafter, on February 13, 1967, upon rearraignment Tucker entered a plea of guilty to assault with intent to rape as charged in the second count. Upon the assertions of Tucker‘s court-appointed attorneys that there was a factual basis for the guilty plea and upon Tucker‘s indication that he had discussed the case with his attorneys and that he understood “all the facts in the case,” the court accepted Tucker‘s plea of guilty and the Government dismissed the two remaining counts.
Wilson, one of the other defendants, was tried separately on October 2, 1967, for the same crimes, and Tucker testified, as a witness for the prosecution, that he had not participated in the abduction, that he was asleep in the back seat of the car when the abduction took place in Maryland, that he awoke to find the victim lying in the back seat with her legs across his lap, that he removed her legs from his lap, that he did not participate in any assault upon her person while in the car, that he did not molest her, and that he did not participate in the subsequent multiple rape. He did admit that there had been discussion in the car among the defendants concerning the order in which they would have sexual intercourse with the victim and that he was supposed to have been either fifth or sixth in line. At this same Wilson trial, another of the defendants, Turner, a close friend of Tucker, testified that Tucker had been sitting in the front seat of the car, had participated in the assault upon the victim‘s person while in the car and had sexual relations with the victim during the multiple rape in the District of Columbia.
Tucker was scheduled for sentencing in the District of Maryland on June 7, 1968, along with four other defendants whose cases were pending in that district. However, in the meantime, on April 8, 1968, the Supreme Court announced its decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), holding unconstitutional the death penalty provision of the Lindbergh Kidnaping Act1 for the reason that it improperly encouraged a guilty plea to escape the possibility of a death sentence. In view of Jackson, the Government informed the district court that it would not oppose a motion by any of these defendants to withdraw a guilty plea prior to sentencing if based upon a claim that his guilty plea had been entered to a lesser count of the indictment because of fear of imposition of the death penalty upon a verdict of guilty on the kidnapping charge. Before the cases were called for sentencing, the district court advised the defendants and their counsel of the Government‘s position, explained the ramifications of the Jackson decision, told them that the kidnapping charge could result in a maximum sentence of life imprisonment, and requested that the defendants confer with their counsel and advise the court whether any defendant desired to withdraw his guilty plea. Tucker, after consultation with his counsel, informed the court that he still wanted the court to accept his plea of guilty, but he told the court that he did not participate in any of the criminal offenses against the victim and substantially repeated his testimony given in the Wilson trial that he was not an active participant in the crimes and that, at most, he was guilty of a technical assault by touching her legs when he removed them from his lap. The court advised Tucker that he had a right to
When Tucker claimed innocence at the later sentencing proceedings, government counsel gave the court two FBI reports of alleged oral interviews with Tucker on November 20, 1965, in which Tucker allegedly admitted having actively participated in the assault in the car and in the subsequent multiple rape. Tucker denied making any such statements to the FBI.
On appeal, Tucker takes the position that the district court erred in accepting his plea of guilty since the court was fully aware that the defendant denied participation in the charged offense.
Although counsel for both sides have failed to discuss or even refer to the McCarthy decision in briefs or at oral argument we feel bound to consider and apply the principles enunciated therein because Tucker is an indigent defendant represented by appointed counsel and because the facts pertaining to the arraignment proceedings in this case are quite similar to those in McCarthy. The McCarthy decision has two specific and divisible portions. The first portion of the opinion specified the procedures which must be followed in strict compliance with
“In McCarthy we noted that the practice we were requiring had been previously followed by only one Circuit; that over 85% of all convictions in the federal courts are obtained pursuant to guilty pleas; and that prior to Rule 11‘s recent amendment, not all district judges personally questioned defendants before accepting their guilty pleas. Thus, in view of the general application of Rule 11 in a manner inconsistent with our holding in McCarthy, and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively. We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11.” (Emphasis added.)
Thus, in Halliday, the Court held nonretroactive that portion of McCarthy which required a rearraignment, rather than merely a hearing on the voluntariness of a guilty plea; but the Halliday decision did not affect McCarthy‘s strict interpretation of amended
In interpreting the requirements of
“* * * to assist the district judge in making the constitutionally required determination that a defendant‘s guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination. Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.” 394 U.S. 459, 465, 89 S.Ct. 1166, 1170.
The Court also made it clear that a trial judge must make certain that the defendant admits to conduct which would establish a factual basis for a plea of guilty, as the Court said at 467, 89 S.Ct. at 1171:
“Thus, in addition to directing the judge to inquire into the defendant‘s understanding of the nature of the charge and the consequences of his plea, Rule 11 also requires the judge to satisfy himself that there is a factual basis for the plea. The judge must determine ‘that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.’ Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to ‘protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.‘” (Emphasis added.) (Footnotes omitted.)
In determining whether or not the trial judge complied with the strict requirements of
At Tucker‘s rearraignment on February 13, 1967 (subsequent to July 1, 1966, the effective date of the amendment to
The Government contends that at the June 7, 1968, presentencing proceeding (at which Tucker was given the opportunity to withdraw his guilty plea in light of Jackson) the district court had before it sufficient factual information to meet Rule 11‘s requirement that the court be satisfied of the existence of a factual basis for a guilty plea. It is true that the same district judge presided at Tucker‘s February 13, 1967, rearraignment, at Tucker‘s June 7, 1968, presentencing proceeding, and at the trial of codefendant Wilson where the judge had heard testimony which implicated Tucker. Also, the judge was made aware of FBI reports in which Tucker had allegedly made statements to the FBI incriminating himself, which statements Tucker denied having made. However, the judge was also aware at this time of Tucker‘s continuing assertions of innocence, his denial of active participation in the criminal acts and his contention that he had merely been a victim of circumstance, which statements were made at his presentencing proceeding as well as during his testimony at the trial of his codefendant, Wilson. It would be unreasonable to say that the court had ascertained a sufficient factual basis for accepting Tucker‘s guilty plea when the court was also then aware of Tucker‘s persistent and repeated assertions of innocence. Moore on Federal Practice2 contains a pertinent discussion of this type situation at page 11-51:
“* * * [I]t is important to differentiate between two categories of cases. In the first category are cases where the defendant denies the commission of any act or conduct which might constitute a criminal offense — i. e., a complete denial of involvement. The ‘factual basis’ provision by its own terms does not reach this situation since it deals only with the legal implications to be drawn from admitted conduct. Regardless of the human tendency of defendants ‘to deny or gloss over their involvement,’ if at ‘the moment of truth’ such denial persists, no judge may conscientiously accept a plea, and no counsel may insist upon it, though he can and should give his client the benefit of a realistic appraisal of the situation. To accept a plea in the face of a complete denial of involvement, regardless of the strength of the incriminating evidence, is to invite a collateral attack.”
Even had there been a sufficient factual basis for the guilty plea at this time, there was no revelation in the record that the court personally addressed Tucker to determine that he understood the nature of the charges against him. We conclude that the presentencing proceeding did not cure the
Having determined that Tucker‘s plea of guilty was accepted in violation of
“If the district court finds * * * that the guilty plea was not understandingly and voluntarily tendered the conviction and sentence under attack shall be vacated, the prisoner shall be rearraigned and such further proceedings shall be had as necessary and proper in the circumstances.”
Accordingly, the judgment below is vacated and the case is remanded with instructions to the district court to hold a hearing. If the court finds that the plea was entered voluntarily and with understanding the judgment below shall be reinstated; however, if the court finds that the plea was entered involuntarily and without understanding Tucker shall be rearraigned and such further proceedings shall be had as necessary and proper in the circumstances.
Judgment vacated and the case remanded with instructions.
ALBERT V. BRYAN, Circuit Judge (concurring):
The District Judge, I think, was devoutly faithful to Rule 11. For me the appellant overpictures his contra convention. Moreover, the trial judge endeavored to observe the universal truth that a plea of guilty, to be acceptable and accepted, must be unequivocal: otherwise it is to be rejected, and a plea of not guilty, with a trial, substituted.
However, I am apprehensive that Tucker‘s was not a “full” plea of guilty. Instead, it might be termed a guilty-yet-not-guilty plea — that is one voluntarily given with an understanding of the nature of the charge and the consequences of the plea, but tendered nonetheless with an uncertainty. In the circumstances here, there is, to me, an obscurity about the uncertainty, but it seems to pertain to his factual part in the indictment conduct. For this reason I approve vacation of the sentence, with inquisition on remand upon whether the defendant‘s plea was free of any reservation in acknowledging his guilt.