*3
SNEED,
NORRIS,
expertise
financing
lacked the
to insure
Before
NELSON and
fact,
Whitney
development. In
Kamer and
Judges.
Circuit
made
effort
no
to develop the properties,
DISCUSSION
prices
and the
charged for the land were
I. THE GUILTY PLEA: RULE 11
such that it was highly unlikely
A. Failure to
toas
the nature
inform
the investors could ever
profit.
make a
the charges and penalties: Rule
Investors were also
potential
misled about
11(c)(1)
sources of financing
projects
for the
(c)(1)
Section
of Rule
placement
about
11 provides,
in per-
their money in trust
part:
tinent
accounts. As a result
scheme,
of this
in-
Before accepting
vestors lost millions of
of guilty
dollars.
contendere,
nolo
the court must address
After extradition from Europe, Earner
the defendant personally
open
arraigned
was
July
1984. Trial of,
him
inform
and determine that he
set for September 18, 1984, but on August
understands...:
23, 1984, despite Earner’s objections, his
(1) the nature of
charge
to which
appointed Deputy Public Defender made an
*4
plea
the
is offered....
application for, and
granted,
was
a continu-
government
The
maintains that Earner’s
ance of trial until January 8, 1985. Earner
“over-technical” focus on
plea
the
proceed-
thereafter made a
represent
motion to
him-
ing ignores the overall effort
by
made
the
self, and the
granted
motion was
Sep-
court throughout
the entire
pro-
criminal
25,
tember
The Deputy
1984.
Public De-
ceedings.
The
argues that a
fender, however,
appointed
was
standby
thorough examination of the entire record
counsel.
reveals compliance with the mandates of
11,
On December
1984, Earner, acting
11(c)(1).
Rule
We disagree;
the trial
se,
pro
entered into a binding plea agree-
inquiry
court’s
wholly
inadequate and
ment whereby Earner agreed
plead
to
thus does not comply with Rule 11.
guilty to three
return,
counts.
In
Earner
One of the purposes of Rule 11 is to
would receive a maximum sentence of develop complete
record at
plea
the
pro
years
three
with full credit for
already
time
ceeding so as to decrease the number and
served.
facilitate
disposition
the
of often frivolous
The trial court accepted
post-conviction
plea
the
and on
attacks. McCarthy, 394
January 21, 1985,
sentenced
U.S. 459
Earner to six-
at
ISSUES PRESENTED
judicial
efficient
require
administration
I.
Did the
the reviewing
trial court
violate
look
Rule 11
to
by
solely
the
failing
(A)
record of
to
the
proceeding.
ascertain
whether the
United
States v.
(B)
Coronado,
was voluntary,
554 F.2d
establish
the
n. 5
factual ba-
(5th Cir.1977) (“[Cjlaims
plea,
sis for
of
(C)
noncompliance
the
inform defendant of
with rule 11 must be
the
resolved
nature of
solely
the
on the
charges against him?
basis of the rule 11 transcript. That tran
II. Did the sentence comply
with the
script provides all that is needed and all
agreement?
that is allowed for the resolution of such
III. Should the indictment be dismissed claims.”);
11(h)
Fed.R.Crim.P.
advisory
for failure to comply
Speedy
Trial
(1983'
committee note
Amendment) (same).
Act?
See also United
Dayton,
States v.
604 F.2d
(same);
he
nor did
F.2d at 938
denied,
Dayton,
Cir.1979), cert.
931, 939
of
the nature
explanation as to
give any
L.Ed.2d
plea was offered.
the
charges to which
one that
case
(“it
be a rare
(1980) will
350-52; Irizar
Wetterlin,
F.2d at
in which
See
envision
presently
we cannot
States,
965-66
arraign
transcript
ry
beyond the
look
at least
Cir.1974) (trial
should
judge
guilty
(2nd
appeal after
anon
passing
inment
bones elements
trial
the bare
out
set
requirement
The
plea.”).
at
defendant,
394 U.S.
McCarthy,
offense).
also
See
inquire
adequately
nature
at
n.
n.
89 S.Ct.
plea proceeding,
at the
purposes
charge effectuates
Circuit vacat-
Wetterlin,
Seventh
judicial
of efficient
policy
11 and the
conspiracy
complex
to a
guilty plea
a ed
conten
government’s
administration.
ascertain whether
charge
failure to
the en
review
court should
that this
tion
nature of
understood
defendant
therefore,
baseless.
record,
tire
judice,
sub
case
charges. Similar
that “the
observed
Appeals
the Court
pre-sentencing
prepared
In his
the law
explain
no effort
made
court,
Kamer declared
statement
generally or
reference
conspiracy
several
he violated
conclusory fashion
case,
he
nor did
this
charge of
specific
Earn
Code.
the United States
sections
determine that
inquire and
not indicate
statement,
personally
does
er’s
the nature
charges to
understood
fact,
he, in
understood
(footnote omit-
Nevertheless,
charges.” 583 F.2d
pled.
which
*5
ted).
nature
the
Kamer
discussed
judge
fol
of the
extent
only to the
charges
the
above-average
Granted,
exhibited
Kamer
colloquy:
lowing
noted, how
judge
trial
As
intelligence.
the
the na-
You understand
COURT:
And,
THE
al
complex case.
ever,
awas
this
I
you,
against
charges here
of the
counsel,
ture
Kamer
standby
though there
the
think,
thoroughly,
very
That
represented himself.
essentially
demonstrates
just made
you
statement
the nature
fully appreciate
did not
Kamer
questions
any
You don't have
that.
in his
him is reflected
against
charge
of the
charges
of the
the nature
what
about
contradictory
somewhat
conclusory and
Indeed,
are?
the court.
to
statement
prepared
fourteen
After
KAMER:
a misun
DEFENDANT
to evidence
tends
the statement
months,
no more.
alleged offenses
derstanding of the
charged of
requisite elements.
their
any particular
sufficiency of
Clearly, the
specific
showing of
require a
all
fenses
defend
and the
judge
the
colloquy between
733 F.2d
Clevenger,
v.
intent. See United
charges will
the
nature of
as to the
ant
Cir.1984);
v.
States
(9th
United
1358
case,
on the
depending
to
“vary from case
(9th
Cir.
Andreen,
situation, looking to
each
facts of
peculiar
his dec
Nonetheless, reading from
1980).
the
charges and
the
complexity
the
both
court,
stated that
Kamer
the
defendant,
to
laration
characteristics
personal
not
law was
States
that United
was advised
education,
the
intelligence,
age,
such
that mail
his activities
to
applicable
whether
and also
responses,
alacrity of his
to
are
wire fraud
unknown
fraud
United
counsel.”
represented
he is
remarks, coupled with
These
Netherlands.
Wetterlin,
v.
States
criminal
conclusory admission
denied, 439 U.S.
Cir.1978), cert.
ig
culpable
“because
nondisclosure
(1979).
[his]
L.Ed.2d
disclosing infor
necessity of
norance of
nei
judge
case,
instant
sort,”
have alerted
should
of that
read,
mation
see
the indictment
ther caused
may not
fact that Kamer
judge
Punch,
892-
awareness
a full
guilty with
pled
cases, a have
(in non-complex
Cir.1983)
McCarthy,
charges. See
suffice);
nature
may
indictment
reading of the
1172;
Punch,
S.Ct. at
resorts to “assumptions” as to the defend-
tice.
scienter.
requisite
voluntarily.
of the
been made
to have
er's
however,
us,
we
before
the bare record
On
of sec
alleged violation
Earner’s
a review
perform
adequately
cannot
from
371, 1341,
derive
and 1343 all
tions
When, as
determination.
judge’s
facts. See
material
disclose
failure to
establish, beyond
to
here,
are unable
duty
Mandel,
Absent
F.2d at 1363.
voluntarily en-
doubt,
that the
does
nondisclosure
speak,
to
to
no choice but
have
plea, we
his
tered
See id.
proportions.
to criminal
rise
11(d).2
with Rule
noncompliance
find
indicate
Earner’s statements
1362-63.
duty. His
no such
he owed
was advised
he
basis
to establish
C. Failure
factual
disclose, therefore,
have
may not
to
failure
11(f)
plea: Rule
to deceive.
by an intent
motivated
been
of sections
alleged violation
record,
infer
“we cannot
present
From
failure
from a
derive
1343 all
and
doubt,
had,
specif
beyond
that [Earner]
States
See United
material facts.
disclose
v.
States
defraud.” United
intent
ic
Cir.1979),
(4th
1347, 1363
Mandel,
F.2d
v.
Cir.),
(9th
1350, 1359
McDonald,
961, 100 S.Ct.
denied, 445 U.S.
rt.
v. United
ce
Stewart
nom.
cert. denied sub
ar
(1980). Earner
64 L.Ed.2d
S.Ct.
States, 439 U.S.
vacated
plea must be
that the
gues
sub nom.
cert. denied
L.Ed.2d
inquiry
“such
make
did not
court
States,
439 U.S.
v. United
Bresbis
basis
factual
there is a
satisfy
it
shall
(1978). Accord
58 L.Ed.2d
Specifi
11(f).
plea.” Fed.Crim.P.
below failed
the court
hold that
ingly, we
insufficient
alleges that there
cally,
11(f).
Rule
comply with
defraud,
requisite
of intent
evidence
pled
to which he
the offenses
element
COMPLIANCE
THE SENTENCE:
II.
Clevenger,
States v.
guilty. See United
AGREEMENT
WITH PLEA
Cir.1984);
1356, 1358
plea pursuant
guilty
entered
Earner
1236, 1248
Andreen, 628 F.2d
conditioned
to a written
Cir.1980).
in conform-
by the
acceptance
upon
ob-
Court
Supreme
McCarthy,
(C).
11(e)(1)(A)
Rule
ance
ac-
11(f)
the court
served,
requires
provided that Earn-
plea agreement
written
“ex-
make an
guilty to
cepting
1, 2,
to counts
guilty plea
enter a
er would
law
relation between
amination
return,
indictment, and in
21 of the
having
admits
acts the defendant
by the
imposed
sentence
maximum
“[t]he
expose
committed,
designed to
a task
less,
(3) years or
three
shall be
Court
record
*7
of
on
state
mind
11,
defendant’s
October
served since
credit for time
full
interrogation....”
personal
through
1984,
the court
On December
1983.”
at
467, 89 S.Ct.
at
McCarthy,
U.S.
sentenced
agreement. When
accepted the
1171).
re-
Earner
January
on
with credit
imprisonment
16 months
ap-
ceived
I.A.,
Earner was
supra,
As noted in
proba-
on
placed
and was
time served
that
impression
parently under
im-
further
The
years.
for five
tion
his activities.
applicable
was not
law
that Earn-
probation
of
conditions
posed as
offenses
Moreover,
expressed that
by
pro-
as ordered
er “make restitution
his coun-
are unknown
herein
involved
court,”
not
that he
or the
office
reason,
was
bation
that
try,
[Earner]
“[a]nd
“without
the United
re-enter
a viola-
of such
possibility
of the
unaware
Here, however,
voluntariness
we cannot discern
evidenced,
judge’s
a trial
it is elsewhere
2.
If
Therefore, we
transcript
entire record.
even the
from
on the
to demonstrate
failure
may
voluntary
be
that issue now.
not decide
was
need
a defendant's
11(h).
Fed.R.Crim.P.
See
error.
harmless
permission of the Attorney General or an
probation
part
not
of a “sen-
thereof,”
authorized agent
and that he “re-
tence.” Therefore, it claims that Earner
port to the
probation
nearest
office within unreasonably concluded
probation
forty-eight hours” of re-entry. Earner
could not
imposed.
complains that the sentence imposed fails
government
The
contends that Gammar-
to comply with the terms
agreement.
supports
ano
its claim that Earner intended
only to avoid
agreements
Plea
incarceration.
subject
are
to con
Gammara-
no, however, is distinguishable
tract-law
interpretation.
standards
its facts.
Determining
Arnett,
States v.
“reasonable
under-
standing
expectations
Cir.1979).
parties,”
As
previous
this court
ly
Gammarano court
stated:
looked to counsel’s
argument at the sentencing hearing
determining
whether a
agree-
Gammarano’s reaction immediately after
ment
broken,
has been
courts look to
the sentence had
imposed.
been
732 F.2d
“what was ‘reasonably understood by
at 276. The court stressed the fact that
[the
when he
entered his
defendant]
”
counsel had “argued eloquently in favor of
guilty.’
Arnett,
United States v.
term,”
noncustodial
Gammarano and
628 F.2d
Cir.1979)
(quot-
his counsel thanked the court after sen-
Crusco,
United States
536 F.2d
tencing, and that he did not
(3d
immediately
Cir.1976)).
disputed,
If
the terms
file a
appeal.
direct
Id. The
Cir-
Second
will be
determined
cuit interpreted Gammarano’s behavior as
objective standards.
objective “evidence that his reasonable ex-
Travis,
United States v.
pectations
he would not
[that
be incarcerat-
(9th Cir.1984).
In order to determine
ed for more than two years] had been
whether the
imposed
sentence
comports
fulfilled.” Id.
with the reasonable understanding and ex-
By contrast,
pectations
Earner
filed a
ap-
notice of
defendant as to the sen-
peal immediately
tence
after the
for which he
sentence
bargained,
had
was
we look
imposed. Also unlike
objective
proof
Gammarano, no-
on the record.
where in the record is
there
reference
As previously mentioned,
the written
by anyone
ato
noncustodial
prior
term
plea agreement refers to a “maximum sen-
sentencing.
actual
See 732
F.2d.at
tence” of
years
three
less,
but is silent
Finally, while the record does not indicate
as to any probationary
govern-
term. The
objected
Earner
time
sentence
argues
ment
that imposition proba-
imposed,
acting
he was
as his own
tionary term did not
agree-
breach the plea
counsel
may
not have believed that
ment because
only
Earner’s
desire was to
objection
oral
was appropriate at the time.
avoid
incarceration
more than three
Accordingly,
See id.
appears
Earner
rea-
years. See Gammarano
States,
v. United
sonably justified in expecting the sentence
(2d
Cir.1984).
comply
terms
“literal
government further
pro-
contends that the
agreement.” Travis,
1388 (including years ten exceeded of sentence analysis However, Judge Wisdom’s we find 38. Id. at of period probation)_” the States, 505 F.2d in Smith Writing for the Cir.1974), (5th instructive. be to probation for uncommon It is not “In determin Circuit, explained: plea of elements Fifth the considered one of properly provide defined Thus, expressly is probation failure to whether ing bargain. termino be construed 'sentence,' term must probationary avoid needless for a aas pre- designed origin; we omission intentional of artificial as an logical distinctions imposition. its sta clude reality probationary of the on focus similarly urge at 895. We F.2d tus.” the suggests that additionally Burruezo be distinctions semantic antiquated that imposition of restitution court’s disposi and similar “Probation aside. plea laid to a breach amounts likewise as, sen be viewed are, should There, appellate and court tions the agreement. disposition fol any other of magnitude just comparative like tences that “the found at [$400,500] is an ... Probation restitution lowing conviction.... of the amount plea that the bar impose change a sanction in society to a material tempt created (quoting United just as other at 38 goals, F.2d accomplish gain.” its will (8th Runck, A.B.A., Standards States v. Ill is.” sentence 1015, 100 denied, Cir.1979), 444 U.S. (1980). of cert. We are 18.80 Justice Criminal (1980)). L.Ed.2d bargaining plea within the opinion that the as imposed Runck, the district court reasonable under context, the where $87,- of probation restitution of a condition parties the expectations standing and because, reversed court 400. The Runck commonly understood is probation prevail, case, the the instant Burruezo as in a sentence. to be the issue of on silent agreement was plea restitution: is a probation that Our conclusion aof of restitution the condition bargaining context plea the While within sentence acceptable be- might be amount Cir small by the Second supported further materially necessarily not it would cause v. Burrue holding United cuit’s parties the expectations of alter Cir.1983). (2d The defend zo, F.2d 33 large restitution bargain, agree plea entered into in Burruezo ant part of the have been should amount govern The government. ment of its inclusion possibility bargain or the “any prison sentences that agreed ment made known probation a condition pleas guilty shall imposed [the] bargainers. by agreed to At sentenc years.” Id. at 34. ten exceed at 970. 601 F.2d “imprisonment imposed the trial five-year a consecutive eight years agreement fails Here, the written fines, $3,000 Nonetheless, probation, term restitution. mention ne- throughout make restitu that that urges requirement [defendant] possi- Circuit vacat The Second was aware gotiations Id. at Kamer tion.” record, how- judgment, bility imposition. court’s of its ed the district contrary; several ever, not follow indicates to observing “the court did indicate seemed to incorporated the court sentencing times limitations Fur- ordered.4 not be would imposed restitution arrangement: sentence plea agree- signing the ther, subsequent the terms from materially different it was Kamer told length ment possible “it’snot 3653”); point court told Kamer one meaning 4. At section within ‘sentence’ material financial States, likely would there 536 a Napoles v. United here, happens Cir.1976) to whatever ("probation within attached sentence conditions okay?” provisions §of meaning States, 3653’’); v. United Smith § Cir.1974) like ("probation is a sentence sentence”). any other *9 understanding that no restitution would be would imposed not be all, we find this imposed. requirement additional to be a material breach of bargain.
Restitution, here, is presumably in the millions. Under the circumstances, we Since agree with Kamer that agree that restitution of less “[i]f than was breached, we vacate the $90,000 Runck is material enough [in to judgment. ] Santobello v. York, New express demand in inclusion a agree- 257, 262-63, 498-99, ment, it ineluctably follows that restitution L.Ed.2d (1971). of some million-plus] [one must likewise be III. included.” SPEEDY Garcia, United States v. TRIAL ACT (1st Cir.1983) (restitution in complains Kamer that the district $900,000 amount is material alteration of in entering erred an of justice” “ends plea agreement). pursuant continuance 18 U.S.C. 3161(h)(8)(A).5 respect § With Earner’s imposition court’s trial was origi nally re-entry restrictions, scheduled September government main- 1984. August On 23, 1984, however, tains there is no material variance with the Earner’s court-appointed plea agreement attorney since moved for Kamer a already would four- to-five month be subject to continuance. such Counsel general restrictions as indi a cated to the court August matter of law. government, 29 that Kam er go wanted to trial appears only scheduled, partially but correct. Present law said that if the grant court did not enables the Attorney contin General to exclude uance, counsel would be aliens forced to who have been with convicted of crimes draw because of inadequate involving trial prepara turpitude. moral 8 U.S.C. government tion. The agreed 1182(a)(9) (1970 that in order & Supp.). § More- trial, insure a fair over, continuance should Earner’s offense would be considered granted. On September 11,1984, pursu a crime of turpitude moral within the mean- ant to a 3161(h)(8)(A) section hearing, of section 1182. See McNaughton v. (1) court found that the complexity Immigration and Service, Naturalization required case additional time for Cir.1980)(fraud a crime preparation trial (2) even if the case involving turpitude). moral complex, Kamer’s counsel needed Accordingly, ordering Kamer “not additional time for trial preparation. Kam to enter the United States per without the er does not challenge findings, and, these mission Attorney General or an au moreover, they do not appear clearly to be agent thorized thereof” merely subjects erroneous. See United States v. Perez- Kamer to conditions already he was re Reveles, 2n. Cir. quired to obey. The imposition of this re 1983) (findings that justice ends of require therefore, striction, is harmless error. continuance reviewed error). for clear requirement As to the report that Kamer Rather, argues Kamer September that on probation to a office within 48 hours of 25, 1984,when his motion for self-represen re-entry, however, cites no granted, tation was appointed counsel’s authority for the proposition Kamer need additional time for preparation required would have been to do so absent being ceased a factor. Accordingly, he the court’s imposition of sentence. In light concludes that period Septem between express language of the agreement ber 1984, and January 1985, was not expectations probation properly excludable, and, therefore, 3161(h)(8)(A) forth, Section provides, of Title 18 case, in the record of the orally either pertinent part: writing, or in its finding reasons for that the period delay No such resulting justice from a ends granting served of such granted by continuance the court accord- outweigh continuance the best interests of the paragraph ance with this shall be excludable public and the speedy trial. under this subsection unless the court sets *10 misunder- for opportunities reduce the Eam- occurred. Act violation Trial Speedy part of the standing on although the however, that note, er fails paid for be that must price court. The for motion granted court
district solely reversal an occasional is this benefit retained self-representation, to conform to of failure basis on the as Defender Public Deputy appointed that price the usual This is formalities. as- Contrary to Earner’s standby counsel. to be are taken if formalities paid ap- must therefore, sertion, preparation they Rule 11 in seriously, the instance being did not cease counsel pointed price leads pay Not to be. should September factor the formali- the benefits forfeiture of observed, the As the achieve. were intended ties nu were one. There complex case was century or has so in the last Formalism documents, of which most overseas merous It it deserved. critics than harsher had And, language. Dutch are aspects be beneficent reassuring to see its witnesses, many reside than 70 more recog- setting in which in a recognized opin are of Accordingly, Europe. honored by our more bolstered nition of an “ends grant trial court’s ion that crime. for those accused concern to 18 pursuant continuance justice” its discre 3161(h)(8)(A)was within U.S.C. § Trial Act therefore, Speedy no and, tion, occurred.
violation
CONCLUSION the district Earner agree with
We of Rule comply with several did not court thus, and, judgment requirements, ll’s Se, LOFTON, Pro Jimmy Dale hold the Similarly, we should be vacated. Plaintiff-Appellant, to have been breached inde- on this judgment vacate therefore no find Finally, we ground.
pendent Secretary HECKLER, As Margaret M. thus decline Act violation Trial Speedy Services, et and Human Health indictment. to dismiss Defendant-Appellee. al., judgment vacate Accordingly, we No. 84-2190. the district cause remand Appeals, Court hold- above with our consistent proceedings Ninth Circuit. ings. * May Submitted concurring sepa- Judge, SNEED, Circuit 6, 1986. Feb. Decided rately: I do opinion. Judge Nelson’s I concur in harboring the belief while
this in this himself represented appellant has than considerably better
prosecution attorneys. by most served been have would affirm- no basis provides belief
That
ance, however. fairly trial courts upon imposes designed to requirements formal
precise 34(a). * Fed.R.App.P. 3(f) R. appropriate for submis- this case panel finds Cir. argument pursuant to 9th oral without sion