*1 however, order, not con- The court’s does be entitled
template plaintiff may that the The order voluntary dismissal.
to take to file shall be in terms that failure
states The of the cause.
taken as “abandonment” referring to an makes that it clear
involuntary by its reference to dismissal prose-
Local Rule dismissal for failure to paragraph was first
cute. Nor misleading by providing
November order failure to the exhibits within fif- file in a with- days dismissal
teen would result paragraph referred to prejudice.
out That and did not contem-
an immediate action
plate very prosecute, failure which requires noncompliance.
nature extended 41(b) only read Rule plaintiff needed eight inactivity in the
know that months preju- would
action lead to dismissal with
dice.
The effect the first dismissal adjudication on the merits of
therefore
plaintiff’s undisputed It is claim.
present action claim. presents same
This action is the doc- therefore barred judicata.
trine’ of res The District Court ordering summary judgment
was correct defendant, hereby
for the and its order
AFFIRMED. America,
UNITED STATES
Plaintiff-Appellee, DAYTON, Eugene
Winston
Defendant-Appellant.
No. 78-5271. Appeals,
United States Court of
Fifth Circuit. 18, 1979.
Oct.
HILL, FAY, RUBIN, VANCE, KRAV ITCH, Judges.* Circuit GEE, Judge: Circuit reaching The records us for review in appeals guilty pleas after indicate courts of this circuit doubt about the we apply reviewing standards such mat- ters. took this en pass We case banc to merits, course, but also as a vehicle holdings which to review and harmonize our *4 subject. on opinion, This result review, is meant to be and a clear definitive statement how trial courts plea hearings should conduct guilty and how we review proceedings. those As for conduct, their governing principle can be simply stated: full adherence to Rule simple is Fed.R.Crim.P. What not so state is what constitutes that “full adher- ence” and what we will do it has when not attempt been accorded. This shall be- low.
Guilty A Pleas and 11: History Little Guilty pleas very important are justice. administration of criminal It knowledge common most crimi federal prosecutions nal pleas guilty terminate in that, especially giv or nolo contendere 1 and Act,, en the Speedy strictures of the Trial system could not function without they them. have desirable Doubtless other permitting guilty features as well: de III, Yeakel, Austin, Tex., E. Lee for Win- cooperation fendant to recommence with Eugene Dayton. ston society aby acknowledgment free of his fault, shortening process the conviction so LeRoy Jahn, Morgan Asst. U. S. Atty., that service of may sentences commence Antonio, Tex., San for the United States. sooner, and end like. and the such receiving pleas proc is a
That ess pitfalls beset also common BROWN, Judge, Before these, Chief knowledge, COLE- however. Of two MAN, GOLDBERG, AINSWORTH, dangerous long recognized: GOD- most been have BOLD, CLARK, RONEY, GEE, TJOFLAT, ignorant pleas coerced and ones. The first * Johnson, Garza, Henderson, Judges year 1978, Reavley, 1. In federal fiscal over of all 85% Politz, Hatchett, pleas guilty Anderson did or nolo and Randall convictions occurred on participate Report in the consideration decision contendere. Annual of the Di- rector, case. The case was taken sub- Administrative Office of the United en mission the court banc June States Courts expanding the took cantly .rule effect. the Fifth plainly of these is condemned requirements that no “be These added two substantive Amendment’s mandate one former were procedural wit- two ones. The any criminal case be a and compelled in of what be made aware against The second arises that defendant ness himself.” plea and happen as a result of plea perhaps supreme might from the satisfied that factual system to our the court be instance of waiver known latter, again quite rights existed for it.3 justice, one which all of basis real, itself voluntarily foregone, but were that the court general safeguards and deliberately and that satis- submits to address defendant defendant plea. for the permitted, this is at the there was a factual basis conviction. If to be fied portions justice expanded, pertinent of the system minimum a decent So read as concern itself that the admission is volun- rule follows: he tary and defendant knows what it is accept may The court refuse to admitting, mistakenly so that does not guilty, accept shall not such a for a crime he did punished consent to be addressing . without the de- first considerations, These are core commit. personally determining that fendant manifestly lie at requirements must voluntarily with is made under- any respectable system the heart of standing charge nature of the settling (as opposed trying) criminal . consequences *5 charges. judgment The not court shall enter plea it is upon a of unless satisfied original This in the 1944 core addressed plea. that there is á factual basis for the 11, in version of Rule which reads its entire- so here: ty, pertinent far as is important The second 1966 event plea may accept
The court
refuse to
11
on
development
July
of Rule
occurred
15
accept
of
guilty, and shall
the
in
year,
when a district court
Illinois.
of
determining that
without first
the
of
accepted
guilty plea
William J. McCar-
voluntarily
understanding
made
thy
personally
to tax
without
in-
evasion
the
the charge.2
nature of
quiring whether
understood
nature
Indeed,
transcript of
charge.
early
It will be noted that
this
version
reported
ap-
in the court of
colloquy,
their
rule,
ones,
require-
like later
both states
McCarthy,
v.
United States
opinion,
peals
accepting
ments for
it be
—that
(7th
1968),
838,
in
F.2d
839-40
Cir.
387
voluntary
provides
and informed —and
Court,
Supreme
appendix
to that
ensuring
means
present.
are
States,
459,
McCarthy
v. United
U.S.
general
The latter are somewhat
and rudi-
1166,22
472-74,
(1969),
L.Ed.2d
89 S.Ct.
mentary,
they
but
are real: discretion
very
subject
makes
was
clear
reject
plea entirely
and a
of the plea’s
in the course
addressed at all
on
duty
part
his
“determine” that
circumstance,
acceptance. Despite
this
requirements
rule’s substantive
are. satis-
appeals
Supreme
affirmed.
accepts
fied before he
Court, however, granted
re-
certiorari and
And so matters rested with basic Rule 11
versed.
1966,
develop-
important
until
when two
fact,
place.
ments
took
The first
these oc-
The Court first noted
conceded
1,
curred
July
signifi-
government,
arraignment
on
no
when amendments
at
early
Wright
In
*6
whose
accepted
has been
in violation
418], but
And
22 L.Ed.2d
was not.
there
11
oppor-
should be afforded the
allowing
no basis
here
collateral
plead
to
tunity
only
anew not
will insure
appeal.”
attack “to do
for an
service
Su-
every
that
pro-
accused is afforded those
Large,
nal v.
332 U.S.
S.Ct.
[67
safeguards,
cedural
but
help
also will
re-
1588, 1590,
judges take the necessary few minutes to ing: rights inform them of their and to deter- they mine whether understand the action (1) That the defendant understands the they taking. charge nature of the to which the offered, McCarthy States, any mandatory penalty minimum v. United 394 U.S. 471-72, law, 1166, 1173-1174, provided by possible 89 S.Ct. 22 L.Ed.2d and maximum (1969). penalty provided by law. judge conclusive, 5. The scarcely failed to advise Timmreck 6. This statement how- mandatory special ever, parole being arguably term. We had dictum and somewhat am- harmless, biguous: say the same conclusion to .reached as to matter could have States, necessarily say technical errors in raised Keel v. United been is not that rais- (5th produced 1978). ing it F.2d 110 would have a reversal. The Cir. not,” moreover, “but lends its re- Court’s a faint mark redolence waiver. present now from the rule’s We turn by (2) represented is not If the defendant speci the procedures matter to substantive he has the understands attorney, that he an the court in by be by fied it to followed an at by attorney right represented to be determinations re the substantive proceedings against making him every stage of the quired. These are: appointed that, necessary, will be if one and the rule does not represent Though him. foregoing As to the first six of A. it, practice will we careful require think personally ad- court must requirements, the circumstances, add, usually appropriate this, say Of we more dress defendant. will appointed services of counsel that the is not C D below. This paragraphs expense without to the defend- seventh, be furnished though doubt- specified as usually ant. so as wish to do less the court will it as well. right he (3) he has That understands these, five of B. About first guilty persist or to plead All of “inform” defendant. must made, right been to be already if it has relatively except these five first one are right jury, with the at that by tried simple straightforward, and statement counsel, right have the assistance of usually will suffice.8 judge them witnesses confront and cross-examine penalty information The same is true of the him, right not to be com- against by the requirement. called for first himself. pelled to incriminate provisions five note these We (4) if or nolo con- pleads That he vague “conse replace open-ended tendere he there will be understands plea” language of the 1966 quences of the kind, plead- further trial so that and, rule,9 noting, so we version of the ing guilty or nolo contendere he waives the were meant to be both they conclude that right to a trial. By this mean inclusive and exclusive. (5) if or nolo con- pleads guilty That he is informed of these that if the defendant tendere, may he the court ask understands consequences, he need informed critical questions him offense to which he about the consequent possible no others—such pleaded, ques- has and if answers By or the like.10 civil disenfranchisement record, oath, tions under on the token, however, we conclude that the same counsel, presence may answers later judge him of these and must inform against prosecution him in a used do so entire failure statement. perjury false ordinarily reversal. The rule require *7 (6) is plea voluntary this, That the and not the selecting plainly says he “must” do promises or consequences result of force or threats as the mini these five critical agreement, essentials; apart from a and whether and if the task it sets be mum onerous, willingness plead the defendant’s slightly it is not difficult. prior or nolo contendere results from discus- of the As for the first clause C. govern- attorney sions for the between the judge requirement personal first —that attorney.7 or his and the defendant
.ment inform the defendant of nature of ly (7) that he under charge That is a factual basis for the and determine there simple to state a stands it—we are unable Adams, so, provisions 566 F.2d 968-69 If further of the rule 9. United States v. elaborate 1978). applicable. (e), (5th paragraph in- become See its Cir. corporating subparagraphs. six numbered in this connection that 10. We have held rights, 8. As in the of Miranda another case stage at this need not be informed defendant waiver, judicially critical instance of which we . parole mandatory special United term usually merely suspects read to from know (1978). But 566 F.2d States v. Adams doubtless, who, by police cards —often officers Timmreck, supra. see United States always grasp scope do full and mean- their ing anyway. but must read to them general investigating
or mechanical rule but offer some must follow. for As hope helpful. observations that we will be plea’s basis, present factual formulation simple charges For such as those in this lays of the rule down a test is less case, indictment, reading of the followed clearly subjective than that the 1966 opportunity given an the defendant same, All the rule.12 it retains its clear it, questions usually ask about will suffice. judge’s subjective reference to sat- Charges nature, complex incorpo- a more isfaction, and we conclude that this remains rating esoteric terms or concepts unfamiliar judge. the test for that We must review mind, lay may require explica- more discretion, however, the exercise if charges tion. In the case of extreme it, appeal an is taken from we must and do complexity, explanation of the elements proceeding. so on the record of the Rule 11 given jury of the offense like that in its upon is judge It therefore incumbent this, may required; instructions be produce a record on the basis of which we course, limit, for the outer if an instruc- can determine that his discretion was not jury tion informs of the nature of the abused. charge sufficiently convict the de- it, surely fendant of it informs the defend- D. As for the rule’s several in sufficiently ant for him to convict himself. junctions judge personally that the address We can do no more than commit matters, or inform the defendant of we do court, good judgment matters of the judicial not understand these to command a to its calculation difficulty relative of monologue, though approve this as the comprehension charges of the and suffice, practice. usually best It will how sophistication defendant’s intelli- ever, judge the inquiry dominate gence.11 and involve personally himself it on each (and desirably of the first six heads on the require
Much the same is true of last) charge as to each ments six and each defendant. seven that be un spirit do not judge coerced and that We think the letter of be satisfied it has a factual basis. again, require Here no me the rule that the be sole ora stated, lector, be chanical rules can and the more tor or especially multiple where complex or doubtful the situation as to ei charges and defendants are concerned. requirement, ther searching more Judges, too, get sore throats. inquiry be the dictated judg sound Finally, a E. verbatim record defendant, ment and discretion. Should the made, proceedings must both to when addressed the judge, give any seri preserve against possible them ous indication future asser result of tions at promises apart force or threats or of variance with them and as a from a basis plea agreement, prosecution swearing, the fifth of untruthful amendment im as mediately directly implicated, a well may order that review of them searching most inquiry into these opinion, matters had if In its McCarthy desired. rely quiry 11. If the court wishes to on the if defendant’s there is other information available sophistication, case, say, *8 satisfy however—as the of to it sufficient to it of the factual basis' a member of the bar—it would be advisable to plea. of the In addition it is clearer under the get by questioning it on the record him. adopted as amendment earlier one, than it under the subjective proposal a that the test is Speaking proposed of a formulation of the satisfied, is the court rather than an version, Wright 1966 Professor noted: test, objective is there a factual basis. significant There is a difference between the Wright, Federal and Practice Procedure: Crimi- finally adopted pro- amendment as and that 174, pp. (footnotes omitted). nal § 375-76 It posed Advisory earlier Committee on is, any- will be if noted that the current rule proposal Criminal Rules. The earlier had thing, subjective proposed even less than the judgment that the court was not to enter said Wright, being version discussed Professor upon plea making such “without except replacement text the same for the inquiry may satisfy as it that there ais factu- “may” by “shall.” plea.” al basis for the Under the rule as finally adopted the court need make in-
939 noted, have that all the happens, on as we also great prophylactic stress laid Court at lying the values rule then treated were of such a record: value absence of of the rule’s concerns: heart produce intended to com- Rule is [T]he accusation, coercion, understanding of time is en- plete record at consequences knowledge the direct to this vol- of the factors relevant tered 13 presented there The Court was determination. untariness the second with an entire failure to address meticulously Rule is more ad- [T]he rule, it held pillars of these of the to, basic discourage, hered the more tends not, if fatal. We could even expeditious omission or at least to enable more would, holding. of, Chapman alter that numerous and often we disposition California, 17 post-conviction 386 U.S. S.Ct. frivolous attacks 'the guilty pleas. (1967), gone validity had before McCar- constitutional L.Ed.2d 705 disposition no thy, showed but the Court at We see no at 394 U.S. S.Ct. beyond a apply its “harmless reasonable changes in the rule since why reason of constitutional doubt” formula review pronounce- McCarthy should affect Nor, logical- error to that Rule context. ment, and we therefore conclude that a inherently can see how an error ly, we proceedings Rule com- failure record can be viewed as harmless prejudicial ordinarily require and verbatim pletely Thus, of review. we are any standard Indeed, matters could appeal. reversal on conclude, do, we such a bound to as otherwise, be a be since it will rare scarcely any one failure the trial court to address presently and one that we cannot envi- case rule’s core concerns as or more of the three beyond transcript in which we look sion McCarthy requires automatic occurred in appeal arraignment passing on an of the however, may, There room for reversal. guilty plea. after a application Chapman’s rule to inade- Standards of Review quate of these matters or to unre- addresses represents we arising What said thus far lated errors from have constitutional analyze present our best effort proceedings. Rule 11 courts suggestions 11 and offer trial we view question next is how should applied. counsel about how it should be We fallings the post-McCarthy off from elabo- no will cure entertain illusions all rations 11. Should these meet auto- of Rule ills; hope they may our is that modest so matic as well? To do would reversal something constitute the nature of a hold, about the rule’s McCarthy did rule, application checklist for the concerns, central that no violation commentary, for practice with a related can be harmless and to part of the rule ever used, bench use and bar. So requirements raise all to a uniform they should reduce to minimum meritori- higher sanctity level of than accorded guilty pleas. There appeals ous from re- plane on a with many rights, constitutional mains, however, question of what we counsel, This right example. as one appeal should do when an reveals failure course, at wholly seems to us an unwise compliance with the or an rule inade- of such finality variance with need for quate or one. erroneous such pleas. The rule now at a level proper letter-perfect We ap complexity conclude that as to com- render proach requires pliance many provisions to review of such cases each with of its distinguish -type McCarthy very pled between er difficult who has indeed. One above, guilty voluntarily, rors As we noted under- and others. have and done so knowledge “prejudice of the con- McCarthy standing^, the Court held in *9 compli- sequences in to with Rule 11 the strict comply inheres” failure —as require we opinion. McCarthy today in its form time of It ance that at the clear, in the of “informed” as well as that 13. As the context makes the Court in- senses by tends this term to “voluntariness” embrace “uncoerced.” spirit exclusionary a in ensures —has evinced desire to waive what rule’s tech- nicalities, misconduct, legal attempt police to come to terms with the to seems deter system, and to admit his fault. There is to held that inappropriate. us We have act, something foreign spirit followed, fully faithfully to the rule must be invariably today almost done on advice we not district courts do doubt that the counsel, encourages in a rule follow- of this circuit will make all efforts follow ing by appeal grounded it mincing in a our is question mandate. The here insistance the punctilios 11. As whether such efforts should be made but n we Mr. Justice Powell has in observed a some- appraise they how should them when what related context: Nothing requires are. from us to above judicial system
No effective
can afford to
fallings
post-McCarthy
view
addi-
off from
continuing
concede the
possi-
theoretical
meriting
tions
the rule as
automatic re-
in
bility
every
that there is error
trial and
versal, and we
do
decline to
so. Where each
every
is
incarceration
unfounded.
inquiries
of Rule ll’s core
has been reason-
At
point
convey
some
the law must
ably implicated
required
in the rule’s
collo-
wrong
in custody
those
that a
has been
quy, we
will examine
treatment
de-
committed,
punishment
that consequent
sufficiently
termine whether
it has been
imposed,
has been
one
should no exposed
inquiry
If
and determination.
longer look back with the view to resur-
so, we will not disturb the result. As for
recting every imaginable basis for fur-
post-McCarthy
many,
additions
rule —
litigation
ther
but rather should look for-
all,
require
(cid:127)if
which
determinations
becoming
ward
rehabilitation and to
a
scarcely
of fact
that can
be described
constructive citizen.
nothing
prevent
would
the trial
ultimate —
Bustamonte,
218,
making
subject
Schneckloth v.
of a
U.S.
court from
each the
262,
2041, 2065,
so,
93 S.Ct.
An iron rule of [pp. review directed rule di 936-937]. compliance at technical rects him accept and literal our not to without de brothers on post- termining things. reviewing the district bench with the In such McCarthy therefore, elaborations of Rule some- proceedings, we are warranted in bearing 14. The matter harmless error cidence number as the treated crimi- same 52(a), so, factfindings Fed.R.Crim.P. That nal “there harmless-error rule. Even judges subject general ‘clearly agreement in criminal cases is the erroneous’ 23(c) which, findings by judges applied” of those rules unlike its civil coun- test should be terpart, clearly jury proceedings does not enunciate a erroneous criminal where has been findings. Wright, supra, p. standard review of See such waived. § 52(a), Fed.R.Civ.P., by slightly confusing coin-
941 second, against him and the trial regarding acceptance the court’s of each, satisfactorily determine judge did not positive finding on reviewable as a basis a there was a factual standard. whether clearly erroneous finding guilt on these two counts. his we shall do so. Hereafter therefore, over, the other re-
Passing
Dayton’s Case
11,
quirements
only
of Rule
we recount
exchanges touching
arraignment
banc,
our
Speaking en
freed of
are
upon
Dayton.
these two assertions
panel
one
restriction that
self-imposed
Initially,
judge explained
the trial
our
does not overrule another. We
charges
read the
Dayton that he would
reject
such of our
therefore
and overrule
and he did so:
in Count 19
contained
as
at variance with what we
precedents
are
1976,
15,
August
on
in
That
or about
requires
This
affirmance
today.
hand down
Texas,
the Western District of
Defend-
Dayton’s
Obedient to these
conviction.
Henry Krueger,
Louis
John Mor-
ants
panel of
existing precedents, a
our court
Jack,
gan Flanagan, Bob David
Win-
guilty plea.
his conviction on
reversed
Lewis
Eugene Dayton,
ston
Donald
principal
so
measure
A load of
Dayton?
was subse-
Mr.
marihuana
quently smuggled by
Kelly
Thomas
Yes,
DEFENDANT DAYTON:
Your
the pilot.
It landed at a ranch in the
Honor.
Western District of Texas
in and
exchanges directly
Prior to these
Texas,
Llano,
around
owned
Donald
Day-
Dayton,
judge
the trial
had asked
Lewis Holeman.
It was flown in a
fully
ton’s counsel whether he had
ex-
plane
owned Donald Lewis Holeman
plained to his
client the nature of
Henry Krueger.
Defendant Louis
charges
against
that had been made
defendant,
Eugene
The
Winston
consequences
client and the
Dayton,
crew,
ground
helped
acted as a
guilty
Dayton’s attorney
had assured
unload
marihuana and transported
the trial
that he had done so. The
airstrip.
from the
Defendants Hole-
arraignment
requirements
other
man
Krueger
approxi-
received
taking
and the
of a
were
mately ten thousand
on Septem-
dollars
question
fulfilled
no
is raised con-
ber 18th
Morgan Flanagan
from John
cerning them.
and Arthur
Stout at
Tom Ball Mo-
[******] adult, which no one disputes Dayton was, so, agreeing sense basis for did further what he to be told needs accused specif- charged that on a will not disturb its actions. hearing it of after juris- date, court’s place at a within the ic *12 AFFIRMED. diction, specific illegally possessed he drug with of a named forbidden amount Thus, reading it. the of to distribute
intent APPENDIX by indictment, by an offer the followed Pleas Dayton any questions judge to answer it, satisfactory was a and have about might may plead (a) A defendant Alternatives. explanation of the nature of this sufficient or contendere. If a guilty, not nolo guilty, His that he understood charge. response to or if a defendant plead refuses defendant though it was questions, no even and had the shall corporation appear, fails court Sierra, in “single response” condemned the guilty. not plea enter a of was like- panel opinion, the Lincecum and may A defendant (b) contendere. Nolo in these circum- a sufficient assurance wise only with the consent plead contendere nolo stances. accepted plea shall of the court. Such only after due consideration by the court Likewise, pros by the narration the parties and the interest the views record, ecutor, in presence on the the the administration public the in the effective defendant, specific the and the and at judge justice. request judge, and direction of the what prove against Dayton on he meant —that (c) accept- Advice to defendant. Before ground he as a specified occasions acted two ing plea contendere, guilty nolo the or handling a load of flown-in crew member court must personal- address the defendant response marijuana Dayton’s sworn —and ly of, him and open court and inform proven had could be he done so and that understands, determine that he the follow- doubt beyond have done so reasonable ing: plea that a factual basis for established (1) charge the nature of the which the properly deem satisfactor the could offered, mandatory the minimum His conviction must therefore af y.16 provided law, penalty any, if and the firmed. possible provided maximum penalty law; and In closing, reemphasize that (2) if represented by the defendant is not such a colloquy pass muster attorney, an that the right he has to be case, every fully gener and we endorse represented by an attorney stage at every al thrust and Sierra Lincecum that a proceeding against and, him if mere ritual does not suffice for compliance necessary, one appointed rep- will be with Rule 11. is necessary What is that the him; resent and court, given trial charges nature (3) has right plead that he capacities and the character and of the de guilty persist or to fendant, if it has personally participate in the collo already made, been and that he has the quy by Rule 11 satisfy mandated him right to be tried jury fully that, limits, self and at that within those de trial right has the to the assistance of fendant understands what he is admitting counsel, right and cross- and what confront consequences of that admis him, be, against examine witnesses may sion as well as that what he right compelled not to be to incriminate admitting constitutes charged, crime himself; and and that his voluntarily admission is made. If the court does those things, (4) pleads .if the if he or guilty nolo con- hearing record of that shows a common- tendere there will not be a further subjective one, 16. As we at note observed the standard here is a p. but see our discussion at
camera, at the time the is offered. kind, or by pleading guilty Thereupon so may accept the court or reject right to a nolo contendere waives agreement, may defer decision trial; and acceptance or rejection until (5) pleads there been opportunity if he or nolo con- has to consider tendere, may questions presentence the court ask him report. plead- about the offense to he has which (3) Acceptance plea agreement. of a If ed, questions and if he answers accepts plea agreement, court oath, record, shall inform defendant counsel, presence may his answers la- *13 embody judgment in the and sen- against prosecution ter be in a used him disposition provided tence the for in the perjury for or false statement. plea agreement. (d) Insuring that plea voluntary. the is (4) Rejection agreement. of plea a If the accept plea The court a guilty shall of rejects plea agreement, court the the first, or by nolo contendere without ad- shall, record, court on the inform the dressing the defendant personally open in fact, parties this of advise the defendant court, determining plea the is volun- or, open in personally showing court on a and not tary the result of force or threats cause, camera, good of in that the court is promises plea or apart agreement. of from a by agreement, plea bound the afford inquire The court shall also as to whether opportunity the defendant the to then the willingness plead defendant’s guilty plea, his the withdraw and advise defend-
or prior nolo contendere results from discus- persists ant in guilty plea that if he or sions attorney between the for govern- the plea disposition of the nolo contendere of ment the or defendant his attorney. may the case be less favorable to the (e) agreement Plea procedure. contemplated than by defendant the (1) general. In The attorney for the plea agreement. government attorney and the for the de- agreement procedure. (5) plea of Time acting fendant or the pro defendant when shown, Except good for cause notification may engage se in discussions awith view plea of a to the court of the existence reaching that, agreement toward an upon agreement given arraign- shall at the entering plea of of guilty a or nolo time, trial, prior to ment or at such other a charged contendere to offense or to a fixed the court. may as offense, lesser or attorney related for government any will do of the follow- (6) pleas, Inadmissibility offers of ing: pleas, Except and related statements. (A) move for dismissal of other provided paragraph, in evi- otherwise charges; or plea guilty, dence a later with- (B) recommendation, make a agree or drawn, contendere, plea a or or of nolo not to oppose request, the defendant’s plead guilty an or nolo offer conten- sentence, a particular with the charged any dere to crime or other. understanding that such recommenda- crime, made in or statements connec- tion or request binding shall not be with, to, any tion of the relevant court; upon the or offers, foregoing pleas is not or admissi- agree (C) specific that a sentence any ble in proceeding civil or criminal appropriate disposition of the case. against person plea made the who or participate any However, The court shall not in offer. evidence of a statement such with, discussions. to, made in connection and relevant withdrawn, plea guilty, plea later
(2) agreement. plea Notice of such aIf contendere, plead of nolo or an agreement offer par- has been reached ties, guilty nolo shall, record, or contendere to require court on the crime crime, charged the disclosure of the or other agreement open in admissible or, good cause, proceeding in a showing perjury criminal or Court, holding, reaching relies Rule 11 was amend- heavily on the fact that was if statement statement false oath, on Supreme Court’s decision defendant ed after made of counsel. record, presence in the dissent, I find the McCarthy. Like the plea. Not- accuracy of (f) Determining compo- old and new Court’s breakdown into plea of a acceptance withstanding the unpersuasive and believe of the Rule nents judg- not enter a court should guilty, provisions applies to all McCarthy making such upon plea such without ment Note, Pleading Guilty: ll.1 See new it that there satisfy inquiry as shall 402 and the Supreme Court Rule Illinois for the factual basis Rule of Criminal Procedure Federal New A (g) proceedings. Record of verbatim ("although 1975 U.Ill.L.Forum proceedings record at which the de- interpreta- McCarthy the issue and, enters fendant shall be made if is neverthe- of old Rule the decision tion contendere, is a there nolo proper important indication less include, limitation, the record shall without new Rule because construction of defendant, the court’s advice same.”). objectives are the policies and basic inquiry into the voluntariness of the *14 including agreement, any plea and the in- dissent, However, I believe the unlike quiry plea. into the accuracy guilty a enough flexibility provides McCarthy that BROWN, Judge, R. Chief concur- JOHN reason. The dissent allow for a rule of to ring: plea can automati- that a be suggests I agree with the Court that the failure of a Trial Court makes even cally vacated if a Trial to-the-letter with comply Court to applying technical error in Rule the most automatically 11 entitle a Rule does not arriving position, In at the dissent 11. plea to vacated. How- defendant have stating McCarthy passage on a relies ever, by majority I am troubled how the comply inheres in a failure to "prejudice I importantly, decision. More reaches its McCarthy 11.” Yet also with Rule indicates I by opinion. am tenor troubled “[mjatters reality, and not mere strongly emphasize that the vast would ritual, controlling.” at should 394 U.S. be cases, to majority comply the failure 1171, n.20, quoting Kennedy 467 89 at S.Ct. with Rule 11 should not be considered Cir., 1968, 16, States, 6 397 F.2d v. United Only harmless. technical or insubstantial Moreover, departures from 11 should be McCarthy deviations Rule tolerated. 17.2 (e) 11, by 11(c)(3) proposed Apart of Rule which ed a version 1. from subdivision of Rulé negotiations plea bargaining Advisory involves and is not Pro- Rules of Committee on Criminal here, essentially “may- 11 provided relevant new Rule an cedure which the court elaboration and clarification of old Rule 11. explain aspects want to some of the trial example, simply whereas old 11 For Rule re- Witnesses, right as the to confront such to sub- Judge quired the Trial find to that the witnesses, testify behalf, poena in his own “understanding made with of the nature of or, chooses, testify.” (Emphasis if he charge consequences plea,” and the of the added.) Consequently, signals by Congress all specifically new Rule 11 “identifies more what suggest teachings McCarthy are explained must Advisory the defendant . . . .” fully applicable to the various clarifications and Notes to the 1974 Amend- Committee I find of the new Rule. can abso- elaborations 11, to Rule 18 U.S.C.A. 11 ment F.R.Crim.P. lutely nothing support view that the Court’s Thus, (1975) (emphasis added). the new apply to new standards of review should two Rule, specif- the defendant must be informed 11, pillars,” other Rule one for “basic rights by constitutional that are waived ic guilty post-McCarthy “fallings off from the elabora- (or contendere) 11(c)(3), nolo Rule Rule 11.” tion of Congressional (4). The Conference Committee (c) emphasized that subdivision new As observed: one commentator things judge “enumerates certain that a Rule approach Though Rule 11] flexible judge [to [a] tell a defendant before can must accept (prophylactic) effect plea.” weakens the absolute that defendant’s House Conf. standard, 414, presumed prejudice Cong., (1975) it remains Rep. No. 94th 1st Sess. 9 94— analysis. McCarthy added). Congress, considering im- (emphasis In an faithful 11, caveat, reject- McCarthy empha- specifically portant old Rule amendments to Court 946 clearly clearly prejudicial
from Rule were so erroneous harmless error tests that the had finding Court no reason to consider the of any “as in the case other possible application sitting of harmless error.3 in a criminal case where jury has at Op. been waived.” couple A of examples why will indicate language signals This excessive tolerance reality” “matters of demand that a harm- for deviations from Rule 11. 'The Court approach less error read into Rule 11. recognize unique posture fails to Suppose initially a defendant elects to have 11, interpreted by McCarthy. Rule If jury trial, Midway during trial. de- McCarthy anything, means it means that plead fendant guilty. decides to Rule gov- Rule is different from other rules 11(c)(3) provides that the Court must in- erning trial court conduct. And since right struct defendant of his to a trial Judges have should the Rule in front of jury. Obviously already defendant knows conducting guilty plea them when proceed- Court, this and a in an Trial effort to make ings, Finally, most are errors inexcusable. ritual, 11 something may Rule other than a appeal stage, at the direct costs choose not to mention this. Under the dis- judicial system vacating a guilty view, sent’s the defendant’s would simply not that enormous.4 Similarly, 11(c)(3) have be vacated. Rule requires the Court to instruct defendant I would therefore eliminate all references at right trial he “has the to assistance clearly erroneous standard. so Since of counsel.” If already ap- the Court has based, much of the is constitutionally defendant, pointed lawyer defendant see, g., Alabama, Boykin 1969, 395 e. U.S. prejudiced have could not been I S.Ct. L.Ed.2d would give Court’s failure to this instruction. See no only proper leave doubt that stan Comment, supra, at Clara 693-97 Santa applica dard is the harmless error standard *15 (giving examples departures of “technical” infringements, i.’e., ble to constitutional 11). from Rule doubt, beyond a harmless reasonable see 1967, California, 18, hand, Chapman
On the
v.
other
while I
that
386
87
believe
U.S.
824,
705,
flexibility
necessary,
some
Rule 11 is
S.Ct.
17 L.Ed.2d
and on
under
occasion
substantial,
things
although technically
I think the Court carries
too far.
not satis
majority
fied,
The
holds
post-McCarthy
compliance.
emphasize,
that
ele-
I would
more
subject
ments of
to
over,
the Rule should be
rarely
that
Courts should
Trial
under
ritual,
1978,
1302,
reality,
(Trial
sized that matters of
not mere
568 F.2d
1306
Court’s re-
proceed-
were to control in
prosecutor
the
of
review
liance on
of
to inform defendant
ings.
gives
Flexible review
reasonable effect
possible penalties
affirming
plea; in
precaution
defeating
pur-
to this
without
conviction,
emphasized that “Rule 11
Court
pose of the strict review standard.
not
the vehicle to transform
[should]
become
Comment, Appellate
Guilty
Review of
Plea Ac-
plea hearings
performances”);
into ritualistic
ceptances in Federal Court: Harmless Error in
Saft, Cir., 1977,
United States v.
2
558 F.2d
1978,
Proceeding?
a Rule 11
18 Santa Clara
1073,
(failure
right
1080
to
advise
to counsel
687,
(hereinafter
L.Rev.
707
cited as Santá
already
in situation
had
where defendant
been
Comment).
Clara
assigned lawyer;
emphasized
mat-
Court
that
reality
govern);
ters
Michaelson,
should
United States v.
3. The
dissent contends
the Fifth
Circuit
Cir.,
472,
1977,
2
552 F.2d
477
only
require
Circuit that refuses to
literal
against
(failure
privilege
to advise of
compliance
self-in-
(although
accompanying
an
foot-
crimination;
deference,
slightly).
Court observed
a “minimum
note recants
With
flexibility”
Rule).
strictly
must be read into the
correct.
It is true that no Circuit
phrase
far-reaching
approach
“harmless error” is used
has
Whether the
taken as
an
as and, indeed,
1976,
merely
majority
.
of these cases is
the Second
describe the rationale
Cir-
explicitly rejected
ap-
question
cuit
a harmless error
of semantics.
Journet,
proach
1976,
Cir.,
United States v.
2
2. See United States v.
8 Cir.
pleas
challenges
guilty
on
11. In
to
based
Rule
851, 855;
Fels,
599 F.2d
United States v.
7 Cir.
explained
each
its decision as
case
court
1979,
142,
5;
599 F.2d
149 & fn.
United States
being
on the basis of
consistent with Journet
Journet,
1976,
633, 634;
v.
2 Cir.
544 F.2d
Unit
11(c)(5)
practice,
local
warn
which made the
Boone,
1976,
1090,
ed States v.
4 Cir.
543 F.2d
ings unnecessary,
peculiar
of
and of the
facts
1092;
O’Donnell,
1976,
United
v.
States
9 Cir.
cases,
rights
which made it clear that the
1233,
denied,
960,
539 F.2d
cert.
429 U.S.
97
explicitly
by
not
un
mentioned
the court were
386,
S.Ct.
949
every appeal
guilty plea.
of
following
sis
a number of
considered
has
circuit
Our
procedure
claim of
is
pleas in which the
The substitution of this
neither
guilty
appeals
supposed
11 was made.3
with Rule
who was
to
comply
fair
the defendant
failure
facts demonstrate
Rule
protection
the statistical
recorded
ll’s
Yet
receive the
compliance
judicial
of exact
requirements
precise provisos
good
nor is
past
our
more
no
on
produced
burden
have,
Rule 11 have
lights
we
administration. Given
According to
justice.
the administration
portions
from
respectfully
dissent
Report of
Director
1978
Annual
opinion in which it concludes
the majority’s
United
Administrative Office
compliance with
11 is
that substantial
Rule
11,743
Courts,
criminal
the cases of
States
enough.6
in the
terminated
Fifth
defendants were
ending June
during the 12 months
Circuit
III.
30,
Applying the na-
D-l).
(Table
1978.
bound,
only
We
but
remain
con-
convictions, 79.5%, and the
tional rate of
vinced, McCarthy’s reasoning:
by
85.23%,(Table
4) to
pleas,
guilty
ratio of
D—
holding
plea
Our
that a defendant whose
that more than
indicates
these terminations
accepted
has been
in violation of Rule 11
7,900
taken in
pleas must have been
guilty
opportunity
should be afforded the
during
one-year period
past
this circuit
plead
only
anew not
will insure that ev-
guilty
Fewer than a dozen
alone.
ery
procedural
accused
afforded those
set
proceedings have been
aside
safeguards,
help
but also
reduce the
only
and in
one of
McCarthy’s stricture4
required
great
judicial
waste of
resources
have been altered
them would that result
process
on
the frivolous attacks
today
standard
an-
adoption
encouraged,
plea convictions that
nounced.5
dispose
of when the
are more difficult
new
of Rule 11
today’s
layering
With
into
original
inadequate.
record is
“post-McCarthy”
re-
“pre-McCarthy”
impresses
plunged
majority
court
into a
The en banc
now
quirements,
rec-
analy-
on
11
ord-by-record, sentence-by-sentence
analysis
error
future Rule
harmless
Hart,
See,
Benavides,
1978,
g.,
v.
5
5. See United States v.
5 Cir.
566
e.
United States
Cir.
1979,
137;
majority’s
F.2d
To
596 F.2d
United States v. Sander
the extent
son,
1979,
1021;
opinion
only
standard for
5
595
new
Cir.
F.2d
United States
establishes
Cobos,
1338;
1979,
post-amendment
reviewing
addi-
v.
5
590 F.2d
United
violations
Cir.
964;
Kahn,
1979,
11,
judicial
v.
5 Cir.
588 F.2d
Unit
tions
rewrites
States
but also
1978,
178;
Taylor,
gloss placed
pre-amendment Rule 11
ed States v.
5
583 F.2d
Cir.
Broussard,
1978,
5
United States v.
Cir.
582
such
as
v. Government of
cases
Sierra
Canal
Zone,
1977,
77,
impact
F.2d 10.
546 F.2d
5 Cir.
prior
opinion on
decisions would be
our
decisions,
greater.
reported
but
4. There are ten
some
involve
See
States
consolidated cases.
United
Benavides,
1979,
137;
requires
example,
v.
5 Cir.
596 F.2d
United
rule
the court
6. For
Cobos,
1979,
1338;
personally
open
States v.
5 Cir.
590 F.2d
ses-
address the defendant
Kahn,
1979,
him,
v.
5
588 F.2d
United States
Cir.
sion and inform
determine that
964;
Boatright,
1979,
States
5
United
v.
Cir.
understands each of the matters enumerated
471;
Gray,
v.
5
588 F.2d
United States
Cir.
(c).
subparagraphs
(l)-(5)
paragraph
It also
1978,
96;
Clark,
584 F.2d
United States v.
5
specifies that
the court address the defendant
1357;
1978,
F.2d
States
Cir.
574
United
v.
open
personally in
court
determine that
Lincecum,
1978,
1229;
F.2d
5 Cir.
United
voluntary
(d).
provided
paragraph
as
Adams,
962;
v.
States
566 F.2d
Cir.
similarly
(e)
paragraph
exact
rule is
Hart,
977;
F.2d
United States v.
5 Cir.
requirement
inquiry
made
must be
T.,
Government of Canal Zone
Tobar
Cir.
discussions,
paragraph
and in
Subsequent
develop-
constitutional or non-constitutional failure
to comply diametrically with Rule 11 is
contrary McCarthy's holding “preju-
dice comply inheres in a failure
Rule 11.” It meet for an inferior Supreme
court to precedent, overrule Court
and we any part disavow in this venture. JOHNSON, Plaintiff-Appellant
Susie Mae
Cross-Appellee,
WILLIAM C. ELLIS & IRON SONS
WORKS, INC., etc.,
Defendant-Appellee.
Long Manufacturing, Reach a Division Anderson, Clayton Co., & Defend-
ant-Appellee Cross-Appellant.
No. 77-1919.
United Appeals, States Court of
Fifth Circuit. 18, 1979.
Oct.
this
form
notes
under the 1966
the rule did little more than
4. Professor
one,
subjective
Boykin
state
constitutional minima. See
v. Al
version
the rule this test “is a
,
238,
satisfied,
1709,
objective
abama 395 U.S.
89 S.Ct.
23 L.Ed.2d
is the court
rather than an
(1969).
test,
Wright,
is there a factual basis.”
Federal
(1969)
Practice and Procedure: Criminal
1974, p.
376. The context of
comment
change
§.
3. This
was
effected to avoid
doubtless
current version
the rule
indicates that the
such circumstances
Long
in “The
as are recounted
contemplates
clearly subjective,
less
a test
Veil.”
Black
opinion.
which more later
the text of our
personal inquiry
McCarthy,
whatever
made about
At
time of
Rule 11 was
McCarthy’s understanding of the
nature
relatively
general pro
still a
short and
Next,
charge.
rejected
categorically
it
of little more than 100
nouncement
words.
government’s
contention that such a
however,
then,
has
the rule
under
Since
proceeding
11,
complied
going
with Rule
on gone
expansion
vast
and complication. As
point
specific,
ways
out
“conceivable”
amendment,
last
fully
effective De
(and
one)
one rather
likely
which McCar-
1, 1975,
1,000
over
comprises
cember
thy may have
it took
misunderstood what
words, grouped
paragraphs
in 20
and sub-
to commit the crime with which he was
paragraphs.
convenience,
For
setwe
it out
charged. The
opinion,
crux of the
for our
Appendix.
in the
The basic questions that
present purposes, is to be found near its
we now
are when
address
and whether a
end, where the
Court announced that
compliance
current,
want of literal
with its
noncompliance with Rule 11
re-
constitutes
complex provisions
more
activates
auto
concluding,
versible error.
In so
the Court
matic reversal
laid
McCarthy
rule
down in
heavily
relied
on
need
to conduct a
simpler
for its
predecessor. We are some
exploration
thorough
produce
and to
a full
what aided in our task
Court’s
arraignment
record at the time of the
so as
recent,
opinion
unanimous
in United States
later,
to obviate the need for
after-the-fact
Timmreck,—U.S.—,—,
v.
99 S.Ct.
proceedings
highly subjective
in this
area.
2085, 2087,
(1979),