United States v. William D. Adams, A/K/A Bill Adams
566 F.2d 962
5th Cir.
1978
Check Treatment

*2 Before GEE, WISDOM and Circuit Judges, *, and VAN PELT District Judge.

WISDOM, Judge: Circuit D. William Adams appeals from his con- upon viction plea of possessing cocaine with intent to distribute it in viola- 841(a)(1). tion 21 U.S.C. He contends that his involuntary was and that the comply district court failed to with Federal Rule of Criminal Procedure which estab- procedures lishes detailed for accepting guilty pleas. We hold that comply strictly court must with Rule 11. bargains “Plea have accompanied history whole of this juris nation’s criminal prudence.” Bryan v. United 775, 780, denied, cert. (1974). pragmatic need bar- * Nebraska, Judge sitting designation. Senior District of the District of reconciled, however, On December Fed.R.Crim.P. 11 be gaining providing tightened was amendments requirement the constitutional judges accepting guilty pleas In 1966 the rule was amend- “must address forbid the court ed to court”, of certain constitu- inform him addressing first “without consequences of his rights, certain tional *3 personally charges to which and the of the plea, nature voluntarily with of the made judge must also pleading.1 he is charge and the voluntariness understands determine that the defendant Even after the 1966 amend- plea”. of the In v. Al what he is told. courts still held substantial ment some dridge, 1977, 5 553 F.2d 922 cu Cir. Waddy satisfy rule. would the compliance riam), the new adoption we held that the of Heer, 789, 794, cert. 1967, 6 383 F.2d this change amendments did not the rule in denied, 2069, 911, 20 88 S.Ct. 392 U.S. “compliance with Rule 11 must circuit (1968). McCarthy v. United be literal”.2 States, 1969, 459, 1166, 22 394 U.S. 418, that view put an end to of Here, L.Ed.2d judge complied the trial Rule supervisory power, the informing Rule 11. Under its 11 in the of maxi- McCarthy right in that there sentence he faced of Supreme Court held mum and his rule. compliance jury trial. The defendant had received the be strict must 11, amended, plea agreement. provides inquire in relevant The court shall also as 1. Rule part: willingness plead to whether the defendant’s guilty prior accepting or nolo (c) contendere results from a to Defendant. Before Advice contendere, attorney discussions the plea the court between for the of or nolo personally open government attorney. in address the defendant and the defendant or his of, that he him and determine court and inform understands, following: the recognize Appeals 2. We that the Courts of (1) to which the the nature Eighth approved the Second and Circuits have offered, mandatory pen- minimum is slight compliance certain deviations from strict law, any, alty provided by if provided by and the maxi- Michaelson, with Rule 11. See United States v. law; possible penalty and mum 1977, 472, 477; 2 Cir. 552 F.2d United States v. represented by (2) is not if the defendant Journet, 1976, 633, n.6; 2 Cir. 544 F.2d attorney, right repre- he has the to be an Saft, 1977, United States v. 2 Cir. attorney every stage sented 1073, 1080; Scharf, United States v. 8 Cir. and, necessary, against proceeding him if one 1977, 1124, him; appointed represent and will be (3) right Supreme that he has the The Court announced in 1969 that persist already or to made, in that if it has been “any noncompliance with Rule 11 is reversible right and that he has the to be tried error”. jury right a and at that trial has to the 1166, 1170, S.Ct. counsel, right assistance of to confront procedure 424 n.9. The L.Ed.2d embodied him, against and cross-examine witnesses “First, purposes: in Rule 11 has two . right compelled and the not to be to incrimi- designed judge to assist himself; nate making constitutionally required determi- (4) pleads guilty that if he or nolo conten- guilty plea truly nation that a defendant’s dere there will not be a further trial of kind, Second, the Rule is intended to by pleading guilty nolo con- so produce complete record at the time the trial; right tendere he waives the of is entered the factors relevant to this volun- (5) pleads guilty that if he or nolo conten- Thus, tariness determination. the more metic- dere, questions ask him about to, ulously the Rule is adhered the more it pleaded, which he and if he the offense to has discourage, tends to or at least to enable more oath, questions answers these under on the of, expeditious disposition the numerous and counsel, record, presence and in the his post-conviction often attacks on the frivolous against later answers be used him in validity guilty pleas.” constitutional McCar- perjury prosecution for or false statement. States, thy v. United (d) Insuring Voluntary. That the Plea is (foot- 424-25 guilty or nolo court shall not omitted). *4 you in this case? THE COURT: You at understand such trial Yes, THE DEFENDANT: sir. you opportunity would be afforded an to you opportuni- THE COURT: Have had an government cross-examine the witnesses the ty go your to over it with counsel? brought against you, bring and to witnesses Yes, THE DEFENDANT: sir. testify your behalf, you to waiving on and are it, you THE COURT: As I understand your right to that? pleaded guilty originally mag- not before the THE I DEFENDANT: do. you istrate and at this time wish to be re-ar- THE COURT: You understand that raigned. Is that correct? penalty impose upon you the court could true, THE DEFENDANT: That is sir. years $25,000 penitentiary in the or fine or you ready plead THE COURT: Are now to both? to the indictment? THE DEFENDANT: I do. Yes, THE DEFENDANT: sir. sorry interrupt. MR. ROZAN: I’m to Ad- you you THE COURT: Do want it read ditionally apprise we would like to him the you reading or will waive the of it? parole fact that there is an additional term of Attorney]: MR. JOSEPH [The Defense We years. at least three agree will to it. Yes, you THE COURT: do understand appre- MR. ROZAN [The Prosecutor]: that? indulgence ciate the court’s in this matter for THE DEFENDANT: Yes. re-arraignment, arraign and I would like to prom- THE COURT: Have threats or the defendant on count two. you you ises been made to to induce right. All THE COURT: guilty in this case? (COUNT TWO OF THE INDICTMENT No, THE DEFENDANT:' sir. READ) anyone you THE COURT: Has told that MR. ROZAN: To count two of this indict- you be more lenient with if ment, you plead, Adams, how do William D. you pleaded guilty rather than stand trial? guilty guilty? or not No, THE DEFENDANT: sir. Guilty. THE DEFENDANT: you THE COURT: Did indeed commit the Honor, seeking MR. ROZAN: Your we are offense? re-arraignment as to count and two de- THE I DEFENDANT: did. ferring any subsequent re-arraignment on briefly your THE COURT: Tell be three, counts one and ing and we will be dismiss- you words what did. that, course, sentencing. at the time of Well, THE I DEFENDANT: or received Adams, right. THE COURT: All I Mr. my place, found some cocaine what the accept your plea guilty can’t I am unless there, throwing and had a choice willfully convinced that and away somebody, giving give it or it to and I it you guilty. made and are in fact So 1 that guy gave that —1 it to undercover going you am to ask the clerk swear so I agent and told him to it find you check out and questions can ask some this time worth, got out what it was that’s how I and oath. under thing. involved in the (SWORN) you Adams, THE COURT: you Did intend to distribute Mr. do under- THE COURT: it it? or sell pleading entering that and this vol- stand untary plea Well, guilty you up your THE give DEFENDANT: didn’t start that way, just got speedy out thing, right that involved in the whole trial before either a you thing you jury, you your right and the next know nar- waive understand agents get speedy public cotic say back with me later and and trial? on hundred, partial pay- “here’s DEFENDANT: I do. fifteen THE ment,” they say, they give You trial THE COURT: understand at such to me and I give person indulged presumption put touch, would be that me imposes procedural requirements strict announced Attorney quy, the United bargaining acceptable within keep plea entered into a had parties addition, un- constitutional standards. agreed government The bargain. Supreme supervisory power, Court’s der two, count plea to Adams’ return is allowed no latitude two the other dismiss move it would depart from Rule 11. He must inform the addition, government counts.4 rights, of the nature of his testifying Adams’ return for that in agreed understands determine that the defendant codefendants, op- it would not against his giving he is rights what his are and what Finally, the pose probation. away. of the territorial expansion to seek agreed to seek Adams’ bond and of Adams’ limits rights. A. Constitutional bond. codefendant’s surety on the release person judge did Here the trial written executed also Adams that he “has the ally inform presence. court’s in the form counsel, right to the assistance of “the Adams understood stated . . witnesses to confront . offense”, recounted that elements him, compelled to not to be to counsel and had Adams 11(c)(3)requires himself”. incriminate regardless guilt, right to stand informed of a defendant be in- sentence the maximum accurately listed therefore must rights.5 three those term. The form parole plead again. cluding special be allowed *5 had received United that Adams also stated 418; v. Al United States pleading guilty nor leniency for promise of F.2d 922 cu dridge, 5 Cir. standing trial and for threat of harshness riam). leniency would be bind- promise of that no announced that court. The form ing on the judge instructed Adams that he government’s bargain “speedy had been a trial before either only had a that statement does judge jury”, the three a but dismiss two of agreement belongs to clearly state that the choice counts. that he under- Adams. The defendant said guilty plea. accepted The court right. We waiving he was this stood that later, January on Three months could be clari- suggest that this statement sentencing. He told appeared for that it is the defendant by specifying fied he the cocaine at his found the choice whether to be tried who makes given it to an undercover home and had jury. a Neverthe- before a or before was. The court find out what it agent to less, respect we conclude in this years imprisonment him to three sentenced judge comports trial with language of the special parole term. three-year a the rule. II. charge. B. Nature of the constitu bargaining passes things three Plea did voluntary. Rule inform the of the nature of the only if it is defendant muster tional charged conspiracy. agent, and I Count one five hundred dollars U.S.C. narcotic charged possession it and that’s what 1 did. a thousand of 846. Count two § took you, Joseph, I will Mr. ask 841(a)(1). THE COURT: intent distribute. U.S.C. why you reason the defend- do know charged three Id. Count distribution. plead guilty? should not No, Honor, 1 do not. Your MR. JOSEPH: 11(c)(3) specifies 5. Rule I find that there a factual THE COURT: must be informed of “the to confront and your plea and that basis for Al- cross-examine witnesses him”. willfully therefore made and though to cross-examine be sub- you your plea your plea guilty and on find right, sumed the confrontation the statute written execute the and ask requires that both be mentioned. at this time. SIGNED) (WRITTEN PLEA charge pleaded to which he and to deter- must inform the defendant of mine that the defendant understood the charge nature of the pleads. to which he First, charge. also, The trial court must as we have held determined from Adams that he had re- previously, determine that ceived the indictment and over it with understands the nature of charge.7 Second, attorney. charge his was read To inform a defendant of the nature Third, to Adams. after Adams described charge must mean more having the transfer of the cocaine in his read to the defendant. words, the trial judge asked him if he “in- Reading the indictment informs the defend to distribute or sell” the cocaine he tend[ed] ant of the technical charge. But the trial transferring.6 described Curiously, spite proceed should “on assumption bargain, Adams denied that he ignorant defendant is of the nature cocaine, had intended to distribute the a charges”. United States v. Corona statement that have aroused doubts do, 172. In most as to plea. Adams’ of his cases sophisticated the most defendant court, however, made no at- would be informed of the nature of the tempt the charge and did not ask charge by reading of the indictment with he Adams whether understood it. out more. We hold that the trial Coronado, Judge properly Goldberg, writ inform Adams of the nature of the ing Count, for the suggested the jury he faced and did use of not determine that pattern instructions as he charge. explaining understood dictum in defendants the nature of the charges which they are pleading. we reserved the need not adopt now, such requirement whether amended Rule ll’s additional re for different quirement that the trial cases require court inform the explanations. different of the nature of the Some defendants sophisticated are more literally than Following McCarthy Saft, construed. others. See United States v. *6 States, 1969, 394 459, 1977, v. United 1073, 89 Cir. 558 F.2d 1079. Some 1166, 418, charges and United v. States are more difficult to understand Aldridge, 1977, 5 Cir. 553 F.2d 922 than others. United Coronado, States v. curiam), we now hold that the trial court 554 F.2d at 172.8 But “no matter how charge. addition, Burroughs 6. The contends the written stood the In in we plea proceeding emphasized form cures the deficien- reliance on a written form disagree. explicitly requires cies. We Rule 11 performance “hazards the due of the solemn “personally the court to address the defendant responsibility plea taking ap- and beclouds by writing— in court” —not means of a pellate challenges review of Rule 11 to those and we have reversed convictions on this basis. proceedings”. years 515 F.2d at 828. Two See, g., Crook, 1976, e. United States v. 5 Cir. later, prosecutors is time for courts and “Writings provide 526 F.2d 708. no substitute grasp message. sum, In to whatever ex- requirement personal for the rule’s of a inter- Sapp Burroughs tent survive the interven- change between court and defendant.” United ing 11, they revision of help cannot Coronado, 1977, 166, v. 5 Cir. 554 F.2d government here. 175 n.13. States, 1977, 5 7. See Sassoon v. United Cir. 561 Burroughs While it is true that v. United 1154; States, Canady F.2d 5 Cir. States, 1975, 824, 5 Cir. 515 F.2d and United 1977, 203; 554 F.2d United States v. 1971, 817, Sapp, States v. 5 Cir. 439 F.2d we 1977, 166; 5 Cir. 554 F.2d Sierra v. Govern- approved “par- the use of a written form as a Zone, 1977, ment of Canal 5 546 F.2d 77. Cir. surrogate dialogue tial record for oral between defendant”, Burroughs, the court and the 828, 8. “The method F.2d at we which the defendant’s did so on the basis of oral under- dialogues considerably standing charge of the more is extensive than deter- bar, case, vary depending involved here. mined the case at unlike from case to Burroughs Sapp, complexity the district court failed on the of the circumstances and the particular cases, even to ask the defendant whether he under- defendant. In some charges, possible a district court should simple availability of affirma- time and defenses, the minor investment of tive make and of the elements of the necessary meaning set forth their effort affirmative defenses. Such instruction on the record and demonstrate would make it clearer that the defendant when understands”. Id. And intelligently pleaded guilty. offense, as in this there is a lesser included As we stated in Coronado : simple possession, “personally ad- case with adhering to the rule’s mandate that as to his under- dressing the defendant it address the defendant personally, the standing the essential elements of the engage should in extensive in- charge pleads guilty” which he seems terchange necessary as to assure itself essential. v. United any subsequent reader of the tran- 459, script that the defendant does indeed ful- 418, 426 n.20. 8 Moore’s L.Ed.2d See ly charges. understand the respect With 11-25, ¶ citing Federal Practice 11.02[1] points to some choose to States, 1967, Dorough v. United 5 Cir. have the defendant recount his or her 887, J., (Goldberg, dissenting). F.2d charges in narrative Wright, also 1 Federal Practice and See language. his or her own Procedure 173. suggest doWe an arcane definition of Here, made at legal concepts, nor a law review exe- tempt charge or to assure gesis, enough simple language but that a himself that the defendant understood it. unlearned, person untutored and un- Canady Cf. schooled could understand the charges. Asking 205. whether 554 F.2d at 173. he intended to distribute the cocaine was Moreover, a determination insufficient determine whether he under defendant has over the charge. stood the indictment question Such a would be with his attorney is not the determination proper taking charge requires. that Rule 11 procedure, This used taking distribution as in here, the trial court possession possibly help could with intent to distribute. the trial court determine that This is little help explaining voluntary, as the Constitution re to a defendant the nature of the quires. It does not fulfill the other pleading purpose which he is or in determining that provide of Rule a record that will charge. he understands the See Sierra show that Zone, was Government Canal See Zone, Sierra v. Government of Canal 80-81. possible In this case that Adams has *7 entrapment colorable defense. Adams consequences C. The plea. contended that he found the cocaine and

that, originally, amended, at least he did not intend to Rule requires that it. intelligently distribute Adams could not the trial inform the defendant of the decide whether to without knowing minimum and maximum sentences he faces charge, including the basic elements of the from the to which pleads. he requirement. the intent The trial court correctly informed the defend ignorant faced; should treat defendant as of the maximum sentence he charges against the nature of the him. there is no minimum sentence for posses United F.2d at 172. States sion of cocaine with intent to distribute. 21 defenses, plausible 841(b). In cases where there are U.S.C. complied § a trial aspect well inform the defend- with this of Rule 11. The Rule as

defendants.” explaining the elements do this by reading 1975 Committee the offense to the Note to Rule by reprinted [4] at 11-9. in 8 Moore’s Federal Practice ¶ 11.- stringent predeces is less than its amended Rule Before December

sor. America, UNITED STATES that the be required Plaintiff-Appellee, informed consequences plea”. “the special parole CALHOUN, Gerrold E. required 841(b) term in connection § Defendant-Appellant. all active explana sentences. Such an No. 77-5175. required is no lan longer tion under the Rule. guage Appeals, new See 8 Moore’s Court Fifth Circuit. (August Federal ¶ 11.02[1] Practice supp. 71-72). Wright, See also 1 cum. Jan. 1978. Federal Practice and Procedure Nevertheless, explanation of such an will helpful be

ten voluntary, requires. as the Constitution

was the trial court did not follow

Because literally, we must remand so that may plea again. McCarthy v. Unit-

ed

22 L.Ed.2d 418. AND REMANDED.

REVERSED

GEE, concurring: Judge, specially Circuit general agreement am in with the ma-

jority opinion and the result. I write to view, briefly precise which I my

state majority. think is in

do not conflict essentially given,

For the reasons and be- it is painstakingly specific,

cause now so

seems me that Amended Rule 11 intends litany. one, sure, mere Not

recitation; carefully personally explore the defendant’s

understanding of each its items. But a

litany light- in the we sense that should not all,

ly, perhaps not at undertake to add or diminish it construction. In-

to it

stead, written, simply to be followed as followed, if so suffices. notes v. Government of See Sierra first, by addressing contendere without the de- Zone, 77, 79; F.2d Sas- Canal court, open fendant 1977, 561 soon v. United voluntary result of and not the 1154, 1157. apart promises from a force or threats or of indictment and had over it with his pleaded. Because 11 required judge, however, counsel. The trial inform of these matters, judgment we must reverse the “personally” inform that he remand the case district court. counsel, “has assistance of . confront . . witnesses him, against and the not to com- pelled to incriminate himself”. The colloquy between the person- did not inform the defendant the defendant on which this appeal is based ally nature which he is set margin.3 forth After the collo- following colloquy 3. The between the defend- proved innocence until the place ant and the trial your guilt beyond took court: a reasonable doubt. You copy THE COURT: Have received a understand that? that has been filed THE DEFENDANT: Yes.