Michael L. Tabak, Asst. U. S. Atty., John S. Martin, Jr., U. S. Atty., S.D.N.Y., New York City, for plaintiff-appellee.

Clarence B. Jones, New York City, for defendant-appellant.

Before FRIENDLY, OAKES and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

On January 5, 1976 defendant Dunstan Wellington Burnett and two co-defendants were indicted on twenty-five substantive counts of immigration fraud and one count of conspiracy. Defendants were charged with providing alien residents of the United States with fraudulent job offer forms which they knew would be submitted to the Government in support of applications for permanent resident status in the United States. Defendant Burnett pleaded not guilty to the indictment and was scheduled for trial on April 26, 1976. On that date, however, Burnett requested permission to plead guilty to the conspiracy count. It was understood that in return the Government would not oppose dismissal of the twenty-five substantive fraud counts. The plea was accepted by the district judge in the robing room on the record while a panel of prospective jurors waited outside in the court room.

After several adjournments, defendant appeared before the district court for sentencing on December 15, 1976. On that date he requested additional time in order to travel to his native Jamaica and attempt to secure funds to make restitution prior to sentencing. The court granted a one-week adjournment, until December 22, 1976, and directed the Government, over its objection, to return defendant‘s passport. On December 22, 1976 defendant did not appear for sentencing and a bench warrant was issued.

Apparently defendant next returned to the United States in the summer of 1977, and arrangements were made for him to appear for sentencing on August 3, 1977. On that date defendant again failed to appear, and remained at large until finally arrested while attempting to re-enter the United States from Canada on March 10, 1981.

When Burnett appeared for sentencing on April 29, 1981 he requested leave to withdraw the guilty plea entered on April 26, 1976. Defendant‘s counsel thereupon moved to be relieved. The district judge granted the latter motion, and sentencing was postponed until May 27, 1981. This date was later adjourned to June 12, 1981 in order to give defendant‘s new counsel an opportunity to file papers on defendant‘s behalf. On June 12, 1981 defendant filed a written motion, with supporting affidavits, seeking to withdraw his guilty plea. On July 25, 1981 Judge Cooper denied defendant‘s motion, and, on August 13, 1981 he sentenced him to a three year term of imprisonment.

Defendant argues for reversal of the district judge‘s order denying his motion for leave to withdraw his guilty plea on the ground that the plea proceeding held on April 26, 1976 did not meet the requirements of Rule 11(c)(3), Fed.R.Cr.P.¹ Appellant contends that the plea proceeding was deficient in that the district judge failed to establish that there existed a factual basis for the plea and failed to personally address the defendant throughout the plea proceeding. In addition, it is contended that the court failed to inform the defendant that he had a right to remain silent; that he had a right to be tried by a jury; that he had a right to confront and cross-examine witnesses against him; and that he had a right to persist in his plea of not guilty.

All but the latter two claims are wholly without merit. From the record, we are satisfied that the trial judge did personally address defendant and did properly determine that there existed a factual basis for the plea being offered.² In addition, he adequately informed appellant that he had a right to be tried by a jury and to remain silent.³ In a strict sense, however, the district judge failed to comply fully with the provisions of Rule 11(c)(3) in that he did not specifically inform appellant in haec verba that he had a right to persist in his plea of not guilty (although this was the clear import to be drawn from the fact that a panel of 60 venire persons was then in the court-room awaiting the commencement of the jury selection process), and he did not inform him that he had a right to confront and cross-examine witnesses against him.

Defendant does not contend on appeal that the trial judge‘s omissions caused him any prejudice. He makes no claim that he did not understand his rights or that he would not have pleaded guilty had they been explained to him more fully. While the Supreme Court has stated that a guilty plea may be withdrawn, in the exercise of the discretion of the trial court, “if for any reason the granting of the privilege seems fair and just,”

Kercheval v. U. S., 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), a defendant has no absolute right to withdraw his plea.

U. S. v. Giuliano, 348 F.2d 217, 221 (2d Cir.), cert. denied,

382 U.S. 946, 86 S.Ct. 406, 15 L.Ed.2d 354 (1965) and cert. denied sub nom.

Prezioso v. U. S., 382 U.S. 939, 86 S.Ct. 390, 15 L.Ed.2d 349 (1965). On a motion to withdraw a plea, the burden is on the defendant to satisfy the trial judge that valid reasons for the grant of the privilege exist, taking into account any prejudice to the Government.

U. S. v. Michaelson, 552 F.2d 472, 475 (2d Cir. 1977);

Giuliano, supra, at 221.

At the time Burnett made his motion to withdraw his plea herein, more than five years had passed since it was accepted by Judge Cooper. It is of no small significance that the passage of all but the first five months of this time was attributable solely to defendant‘s flight and willful failure to appear for sentencing as ordered. Under these circumstances, if the defendant were permitted to withdraw his plea upon the mere showing of a technical failure by the district judge under Rule 11(c)(3), the effect, almost assuredly, would be to place the Government in a position of serious disadvantage in mounting a prosecution after the passage of so long a period of time.

In

U. S. v. Journet, 544 F.2d 633, 636 (2d Cir. 1976) this Court held that “as a minimum, before accepting a guilty plea each district judge must personally inform the defendant of each and every right and other matter set out in Rule 11.” This Circuit has held further that the detailed requirements of Rule 11(c) govern all pleas taken after December 1, 1975.

U. S. v. Saft, 558 F.2d 1073, 1078-79 (2d Cir. 1977).⁴ Nevertheless, we now hold that, in the peculiar circumstances of this case, appellant has forfeited his right to assert that technical violations of Rule 11 of the Federal Rules of Criminal Procedure rendered his guilty plea invalid. Therefore, his motion to withdraw his guilty plea was properly denied.

In

U. S. v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979), the Supreme Court held that absent a finding that a “complete miscarriage of justice” has occurred, or that a proceeding did not comport “with the rudimentary demands of fair procedure“, a guilty plea was not subject to collateral attack under 28 U.S.C. § 2255 when all that the petitioning defendant is able to allege is a failure to comply with the technical requirements of Rule 11.

We are not confronted here with a collateral attack on the validity of appellant‘s plea, but with a direct appeal from Judge Cooper‘s order. However, in

Del Vecchio v. U. S., 556 F.2d 106, 109 (2d Cir. 1977), this Court analyzed the considerations involved in the strict enforcement of Rule 11 when its technical violation is asserted on a direct appeal, as opposed to the review accorded to allegations of such violations when challenged by collateral attack long after acceptance of the guilty plea. We stated that when a district judge has failed to comply with Rule 11, and the defendant promptly files an appeal,

“allowing a defendant to replead will not ordinarily directly clash with society‘s interest in enforcing the penal laws. Witnesses in most cases will still be available. The price of a short delay and some extra expense is a modest one to pay to correct the error of a government official (a district judge). But when a defendant takes no appeal and collaterally attacks the conviction years later ... different considerations come into play.”

These “different considerations” were discussed by the

Del Vecchio Court, which stated that “rigid enforcement of the Rule many years after the plea has been taken erodes the principle of finality in criminal cases and may allow an obviously guilty defendant to go free because it is impossible, as a practical matter, to retry him. This is not a result that commends itself to many people, including judges.”

556 F.2d at 109 (citations omitted).

In this case the practical effect of invalidating appellant‘s plea as a result of a technical violation of Rule 11 would be to permit precisely the result which

Del Vecchio seeks to avoid. Therefore, the considerations which underlie the previous holdings in this Circuit dictate that in a situation where a criminal defendant has fled the jurisdiction of the court and thereby caused a significant lapse of time between plea and sentencing, that defendant forfeits his right to assert mere technical violations of Rule 11 as a basis for vacating a plea of guilty.⁵

Our disposition of Burnett‘s contentions with regard to the technical Rule 11 violations committed below render moot his claim that the trial judge erred when he denied defendant‘s motion to withdraw his plea without first conducting a hearing.

For all of the foregoing reasons, the judgment of the district court is affirmed.

FRIENDLY, Circuit Judge, concurring:

I join in Judge Pierce‘s opinion and write simply to add that in my view we could appropriately affirm on the authority of

United States v. Michaelson, 552 F.2d 472 (2d Cir. 1977), and

United States v. Saft, 558 F.2d 1073 (2d Cir. 1977), see note 4, without need of relying on Burnett‘s flight.