U.S. v. Kamer

• Decision Date: 05 February 1986
• Docket Number: No. 85-5013,85-5013
• Citation: 781 F.2d 1380
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Reink KAMER, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1380

781 F.2d 1380

UNITED STATES of America, Plaintiff/Appellee, v. Reink KAMER, Defendant/Appellant.

No. 85-5013.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 6, 1985.

Decided Feb. 5, 1986.

Robert C. Bonner, U.S. Atty., Robert L. Brosio and Nancy Wieben Stock, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff/appellee.

David Hinden, Beverly Hills, Cal., for defendant/appellant.

Appeal from the United States District Court for the Central District of California.

Before SNEED, NELSON and NORRIS, Circuit Judges.

NELSON, Circuit Judge:

Defendant Reink Kamer was charged with 57 counts of conspiracy, mail fraud, and wire fraud, in violation of 18 U.S.C. sections 371, 1341, and 1343, respectively. Pursuant to a binding plea agreement with the government, Kamer withdrew his plea of not guilty and pled guilty to three counts. Kamer appeals to this court contending that the judgment must be vacated because (1) his guilty plea violated Rule 11 of the Federal Rules of Criminal Procedure in that the trial court failed to (a) ascertain whether the plea was voluntary, (b) establish the factual basis for the plea, and (c) inform Kamer of the nature of the charges against him; and because (2) his sentence did not comply with the terms of the plea agreement. Alternatively, and yet interrelated, Kamer argues that the indictment should be dismissed for failure to comply with the Speedy Trial Act because there was no basis for excludable time for trial preparation.

We vacate the district court's judgment with respect to each of Kamer's Rule 11 claims; we hold similarly with respect to his contention that his sentence did not conform to the plea agreement. We affirm, however, the district court's judgment that there was not a violation of the Speedy Trial Act.

BACKGROUND

On October 26, 1983, a federal grand jury charged Kamer, a citizen of the Netherlands, and an American co-defendant, Bernard Whitney, with 57 counts of conspiracy, mail fraud, and wire fraud, in violation of sections 371, 1341, and 1343 of Title 18 of the United States Code. The indictment alleged that Kamer and Whitney jointly owned and operated entities which sold American land at greatly inflated prices to European investors. Apparently, it was not disclosed to investors that the land was inappropriate for large-scale development and that Whitney and Kamer lacked the expertise and financing to insure development. In fact, Kamer and Whitney After extradition from Europe, Kamer was arraigned on July 10, 1984. Trial was set for September 18, 1984, but on August 23, 1984, despite Kamer's objections, his appointed Deputy Public Defender made an application for, and was granted, a continuance of trial until January 8, 1985. Kamer thereafter made a motion to represent himself, and the motion was granted on September 25, 1984. The Deputy Public Defender, however, was appointed standby counsel.

made no effort to develop the properties, and the prices charged for the land were such that it was highly unlikely that any of the investors could ever make a profit. Investors were also misled about potential sources of financing for the projects and about placement of their money in trust accounts. As a result of this scheme, investors lost millions of dollars.

On December 11, 1984, Kamer, acting pro se, entered into a binding plea agreement whereby Kamer agreed to plead guilty to three counts. In return, Kamer would receive a maximum sentence of three years with full credit for time already served.

The trial court accepted the plea and on January 21, 1985, sentenced Kamer to sixteen months in custody with credit for time served. The trial court also imposed a five-year probationary sentence on the condition that Kamer make restitution and that he re-enter the United States only with the approval of the Attorney General.

ISSUES PRESENTED

I. Did the trial court violate Rule 11 by failing to (A) ascertain whether the plea was voluntary, (B) establish the factual basis for the plea, or (C) inform defendant of the nature of the charges against him?

II. Did the sentence comply with the plea agreement?

III. Should the indictment be dismissed for failure to comply with the Speedy Trial Act?

DISCUSSION

I. THE GUILTY PLEA: RULE 11

A. Failure to inform as to the nature of the charges and penalties: Rule 11(c)(1)

Section (c)(1) of Rule 11 provides, in pertinent part:

Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands...:

(1) the nature of the charge to which the plea is offered....

The government maintains that Kamer's "over-technical" focus on the plea proceeding ignores the overall effort made by the court throughout the entire criminal proceedings. The government argues that a thorough examination of the entire record reveals compliance with the mandates of Rule 11(c)(1). We disagree; the trial court's inquiry was wholly inadequate and thus does not comply with Rule 11.

One of the purposes of Rule 11 is to develop a complete record at the plea proceeding so as to decrease the number and facilitate the disposition of often frivolous post-conviction attacks. McCarthy, 394 U.S. 459 at 465, 89 S.Ct. 1166 at 1170, 22 L.Ed.2d 418 at 424 (1969). As the McCarthy Court noted, "[t]here is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant's understanding of the nature of the charge against him." Id. at 470, 89 S.Ct. at 1172 (emphasis in original). The dictates of Rule 11 and the federal policy of fair and efficient judicial administration require that the reviewing court look solely to the record of the plea proceeding. United States v. Coronado, 554 F.2d 166, 170 n. 5 (5th Cir.1977) ("[C]laims of noncompliance with rule 11 must be resolved solely on the basis of the rule 11 transcript. That transcript provides all that is needed and all that is allowed for the resolution of such claims."); Fed.R.Crim.P. 11(h) advisory committee note (1983 Amendment) (same). See also United States v. Dayton, 604 F.2d In his prepared pre-sentencing statement to the court, Kamer declared in conclusory fashion that he violated several sections of the United States Code. Kamer's statement, however, does not indicate that he, in fact, understood the charges to which he pled. Nevertheless, the trial judge discussed with Kamer the nature of the charges only to the extent of the following colloquy:

931, 939 (5th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980) ("it will be a rare case and one that we cannot presently envision in which we look beyond the transcript of the arraignment in passing on an appeal after a guilty plea."). The requirement that the trial judge adequately inquire of the defendant, at the plea proceeding, as to the nature of the charge effectuates the purposes of Rule 11 and the policy of efficient judicial administration. The government's contention that this court should review the entire record, therefore, is baseless.

THE COURT: You understand the nature of the charges here against you, I think, very thoroughly, because the statement you just made demonstrates that. You don't have any questions about what the nature of the charges are?

DEFENDANT KAMER: After fourteen months, no more.

Clearly, the sufficiency of any particular colloquy between the judge and the defendant as to the nature of the charges will "vary from case to case, depending on the peculiar facts of each situation, looking to both the complexity of the charges and the personal characteristics of the defendant, such as his age, education, intelligence, the alacrity of his responses, and also whether he is represented by counsel." United States v. Wetterlin, 583 F.2d 346, 351 (7th Cir.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). In the instant case, the district court judge neither caused the indictment to be read, see United States v. Punch, 709 F.2d 889, 892-94 (5th Cir.1983) (in non-complex cases, a reading of the indictment may suffice); Dayton, 604 F.2d at 938 (same); nor did he give any explanation as to the nature of the charges to which the plea was offered. See Wetterlin, 583 F.2d at 350-52; Irizarry v. United States, 508 F.2d 960, 965-66 (2nd Cir.1974) (trial judge should at least set out the bare bones elements of the offense). See also McCarthy, 394 U.S. at 467 n. 20, 89 S.Ct. at 1171 n. 20.

In Wetterlin, the Seventh Circuit vacated a guilty plea to a complex conspiracy charge for failure to ascertain whether the defendant understood the nature of the charges. Similar to the case sub judice, the Court of Appeals observed that "the judge made no effort to explain the law of conspiracy generally or by reference to the specific charge of this case, nor did he personally inquire and determine that the defendant understood the nature of the charges." 583 F.2d at 350 (footnote omitted).

Granted, Kamer exhibited above-average intelligence. As the trial judge noted, however, this was a complex case. And, although there was standby counsel, Kamer essentially represented himself. That Kamer did not fully appreciate the nature of the charge against him is reflected in his conclusory and somewhat contradictory prepared statement to the court. Indeed, the statement tends to evidence a misunderstanding of the alleged offenses and their requisite elements. The charged offenses all require a showing of specific intent. See United v. Clevenger, 733 F.2d 1356, 1358 (9th Cir.1984); United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir.1980). Nonetheless, reading from his declaration to the court, Kamer stated that he was advised that United States law was not applicable to his activities and that mail fraud and wire fraud are unknown to the Netherlands. These remarks, coupled with Kamer's conclusory admission to criminal nondisclosure "because of ...