U.S. v. Guichard

Citation779 F.2d 1139
Decision Date08 January 1986
Docket NumberNo. 85-1096,85-1096
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Carl Thomas GUICHARD, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Steve John Williams, Irving, Tex. (Court-appointed), for defendant-appellant.

Marvin Collins, Fort Worth, Tex., James A. Rolfe, U.S. Atty., Christopher Lee Milner, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Carl Thomas Guichard appeals his conviction for mailing a threatening communication in violation of 18 U.S.C. Sec. 876, to which he pleaded guilty, claiming primarily that there was a failure to fully comply with Fed.R.Crim.P. 11 ("Rule 11"). We affirm.

Facts and Proceedings Below

Appellant was charged with four counts of violating 18 U.S.C. Sec. 876, which makes it a crime to send threatening communications through the mail. The indictment alleged that on four separate occasions between October 11 and October 28, 1984, the appellant knowingly and wilfully caused to be delivered by the United States Postal Service letters threatening to injure Lorraine Diane Karkosky, his common-law wife. 1 In one letter mentioned in the indictment, Pat Karkosky, Lorraine's mother, was also threatened. On December 20, 1984, appellant pleaded not guilty to these charges during his initial arraignment.

Pursuant to a later plea bargain, appellant subsequently pleaded guilty at his rearraignment to one count of mailing a threatening communication in return for the dismissal of the remaining three counts. A Rule 11 proceeding was then conducted and Judge Buchmeyer thereafter accepted appellant's guilty plea. On February 1, 1985, Judge Porter, after a sentencing hearing, assessed appellant a three-year sentence. At this hearing, appellant stated that he was prompted to mail the letters because Lorraine Karkosky had left him and taken their two children away from Houston, where he lived, to Dallas.

After being sentenced, appellant filed his notice of appeal. He now asserts four respects in which Rule 11 allegedly was not complied with and which he claims vitiate his conviction: (1) that he was not informed that a guilty plea waives his right to confront the witnesses against him, (2) that he was not informed of the exact nature of the charge against him, (3) that the district judge failed to inquire whether the plea was being made freely and voluntary, and (4) that his guilty plea lacked a sufficient basis in fact and should not have been accepted.

Discussion
Rule 11

Rule 11 "creates a prophylactic scheme designed to insure both that guilty pleas are constitutionally made and that a full record will be available in the event that a challenge is made to the plea." United States v. Adams, 634 F.2d 830, 837 (5th Cir.1981). To this end, Rule 11 specifies a long list of substantive and procedural requirements to be observed before a guilty plea is accepted. This Court does not, however, require "letter-perfect" compliance with all of these requirements. See United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). Indeed, in 1983 Rule 11(h) was added to ensure application of a harmless error rule in appeals based on noncompliance.

In Dayton, we held en banc that if the three core concerns of Rule 11 are met--that the guilty plea is free from coercion, that the accused understands the nature of the charges against him, and that the accused knows the direct consequences of his guilty plea--there is no violation of the body or spirit of Rule 11. Dayton, supra, at 939-40. We found that reversible error exists only when there is an "entire failure" to address any of the three core concerns of Rule 11. Id. at 939-40. However, an "inadequate address," or less than "letter-perfect" compliance with Rule 11, is harmless error if the three core concerns are met and the accused has shown a desire "to come to terms with the legal system, and to admit his fault." Id. at 940. We noted that an earlier intimation by the Supreme Court that "prejudice inheres in a failure to comply with Rule 11," McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 1173, 22 L.Ed.2d 418 (1969), concerned a much simpler version of Rule 11 than the Rule at issue in Dayton. Dayton, supra, at 939-40. McCarthy, we found, was concerned with the core values of Rule 11 and should not be extrapolated to require strict compliance with the "punctilios" of a now greatly expanded and more detailed Rule 11. Id. at 940. The dissent in Dayton disagreed with this analysis, observing that "[a]lone among the circuits that have considered the question, this court now refuses to require literal compliance with Rule 11." Id. at 948 (footnote omitted). Thus, even before the adoption of Rule 11(h) we held that specific Rule 11 rights are often ancillary to the larger McCarthy concerns, and that all Rule 11 errors do not therefore require automatic reversal.

Confrontation of Witnesses

Appellant claims that during the Rule 11 proceeding accompanying his guilty plea the district judge failed to warn him that his plea waived his right to confront the witnesses against him, as required by Rule 11(c)(3). 2 The record does indeed indicate that the district court neglected expressly to inform appellant that a guilty plea waived his right to confront witnesses, but the record also shows that all of the other requirements of Rule 11, in particular Rule 11(c), were met. 3 Thus, as appellant claims, the record contains technical error. As noted, however, reversal requires more than this; it requires an entire failure to meet a core concern. See id.

Of the three core concerns of Rule 11, only the requirement that the accused knows the direct consequences of his plea is implicated when the accused alleges that he was not informed that a guilty plea waived his right of confrontation. In determining whether the appellant was knowledgeable of these consequences, we observe that he was informed of all other Rule 11 rights, including, inter alia, that he waived the right to a jury trial, that he waived the right not to testify against himself, that he knew the maximum penalty against him, and that he waived the right to force the state to meet its burden of proof beyond a reasonable doubt. See note 3, supra. Where, as here, the only deficiency respecting this core concern is the singular failure to mention one Rule 11(c) right, here the right of confrontation, we cannot hold that this constitutes an "entire failure" to inform the appellant of the consequences of his plea. Appellant knew he had waived a trial at which he did not have to testify and the government had to affirmatively prove his guilt, and could not rely on any failure of his to testify, all of which to a significant extent implies a waiver of the right of confrontation. Moreover, we observe that appellant had competent counsel who obviously had advised him both of the charge and the ramifications of a guilty plea. We find, therefore, that appellant knew the consequences of his plea. United States v. Caston, 615 F.2d 1111, 1115-16 (5th Cir.), cert. denied, 449 U.S. 831, 101 S.Ct. 99, 66 L.Ed.2d 36 (1980).

Additionally, in the past we have held similar types of errors harmless. See Caston, supra, at 1115-16. In Caston, for example, we held that despite the district judge's failure to inform the defendant of his right to a jury, of his right to the assistance of counsel at trial, of his right not to incriminate himself at trial, and that his sworn answers to the court's questions could be used against him in perjury charges, all of which are required by Rule 11, the error was harmless. Caston, supra, at 1115-16. We stated, "Although the trial judge did not comply adequately with Rule 11(c), we find that he did sufficiently determine that Caston understood the direct consequences of his plea including his waiver of certain constitutional rights." Thus in Caston we found no entire failure of this core concern. Id. at 1115 (citing Dayton, supra, at 942-43). In Adams, supra, at 839, we focused on these broader core concerns by noting that "[t]he ban on judicial participation in plea discussions is not a 'technical' amendment to the Rule, as are, for example, the detailed explanations required of the judge by Rule 11(c)." We also note that even before the quite substantial 1974 amendments which added most of Rule 11(c), see Rule 11(c) advisory committee notes to 1974 amendments, this Court had held that an error similar to the one here did not allow the defendant to plead anew. United States v. Frontero, 452 F.2d 406, 415 (5th Cir.1971) (upholding guilty plea despite defendant not being informed that his plea waived the right of confrontation and the right of self-incrimination).

Our analysis is further strengthened by the addition of section (h) in the 1983 amendments to Rule 11, providing: "Any variance from the procedures required by this rule which does not affect substantive rights shall be disregarded." This amendment reversed the per se doctrine then in vogue for Rule 11 violations, see Dayton, supra, at 948 (dissent), and instituted a harmless error analysis. Like Fed.R.Crim.P. 52(a), the harmless error provision for most other criminal case procedural violations, see Rule 11(h) advisory committee notes (discussing how McCarthy led many appellate courts to reject harmless error for Rule 11 cases), the new Rule 11(h) does not attempt to define harmless error. 4

In the face of Rule 11(h), we are unwilling to expand the Dayton jurisprudence categories of Rule 11 transgressions which result in reversal. In United States v. Corbett, 742 F.2d 173, 179 n. 14 (5th Cir.1984), one of our first decisions to discuss Rule 11(h), we stated that "[w]e are convinced ... that the addition of ...

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