U.S. v. Rossillo, 1164

• Decision Date: 11 August 1988
• Docket Number: No. 1164,D,1164
• Citation: 853 F.2d 1062
• Parties: UNITED STATES of America, Appellee, v. Philip ROSSILLO, Defendant-Appellant. ocket 87-1437.
• Court: U.S. Court of Appeals — Second Circuit

Page 1062

853 F.2d 1062

UNITED STATES of America, Appellee, v. Philip ROSSILLO, Defendant-Appellant.

No. 1164, Docket 87-1437.

United States Court of Appeals Second Circuit.

Argued May 10, 1988.

Decided Aug. 11, 1988.

Louis M. Freeman, New York City (Freeman, Nooter & Ginsberg, New York City, of counsel), for defendant-appellant.

Michael A. Guadagno, Asst. Attorney-In-Charge, Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Edward A. McDonald, Attorney-In-Charge, U.S. Dept. of Justice, Organized Crime Strike Force, E.D.N.Y.), for appellee.

Before VAN GRAAFEILAND, PIERCE and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Philip Rossillo appeals from a judgment of conviction under 18 U.S.C. Sec. 1962(d), following a plea of guilty entered in the United States District Court for the Eastern District of New York (Bramwell, J.). Rossillo argues in this appeal that the district court erred in refusing to grant his motion pursuant to Fed.R.Crim.P. 32(d) to withdraw his plea of guilty prior to sentencing. Because the court failed to ensure that the plea of guilty was voluntarily and knowingly entered as required by Fed.R.Crim.P. 11, we vacate defendant's guilty plea.

BACKGROUND

The indictment charged Philip Rossillo and twenty-four others with, inter alia, conspiracy to commit a RICO violation, 18 U.S.C. Sec. 1962(d). After extensive plea negotiations between Rossillo's counsel and the government, a plea agreement was reached providing that Rossillo's sentence would not exceed fourteen years and that Rossillo would be allowed to bring relevant facts regarding his medical condition to the court's attention before sentencing.

On June 9, 1986, the fourteen defendants, including Rossillo, who had agreed to plead guilty to the RICO violation appeared before Judge Bramwell. Before accepting the guilty pleas, the district court advised the defendants as a group of their constitutional rights, the nature of the charges against them and the consequences of their pleas. Afterwards, Judge Bramwell inquired whether the defendants understood that the court could ask them questions about the offenses to which they offered to plead guilty. The court then asked each defendant individually what his answer was to its question. When it was Rossillo's turn to respond, he said "Yes, Your Honor." This procedure was followed throughout the plea proceedings. The court also informed defendants that if their pleas of guilty were accepted, there would be no trial and that they would be waiving this constitutional right. Rossillo indicated that he understood the consequences of his guilty plea.

Judge Bramwell then proceeded to determine the factual basis for the pleas by reading the relevant portions of the indictment to which the defendants were pleading. Since each defendant was charged with a different combination of racketeering acts, each attorney advised the court as to those acts his respective client would admit guilt. After Rossillo's attorney informed the court of the specific predicate acts with which Rossillo was charged, the district court asked Rossillo if the facts underlying the alleged predicate acts were true. Rossillo admitted that they were true. Next, the district court asked the defendants if they had been threatened or coerced in any way into pleading guilty. All of the defendants, including Rossillo, answered no. The district court then inquired whether defendants were under the THE COURT: At the present time, here and now, are you under the influence of any drug, alcohol or other intoxicants?

influence of any drug, alcohol or other substance:

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THE COURT: Mr. Philip Rossillo?

[MR. FREEMAN]: Your Honor, this is an exceptional circumstance.

THE COURT: He has--his heart condition.

[MR. FREEMAN]: Yes.

THE COURT: Thank you.

Finally, the court asked the defendants how they pleaded to the racketeering conspiracy count as charged in Count One of the indictment. Rossillo pleaded guilty.

At the conclusion of the proceedings, the court stated that it found a factual basis for the pleas and accordingly accepted the pleas of guilty to Count One as to each of the defendants including Rossillo, whose sentencing was postponed due to his deteriorating medical condition. Almost a year later, on May 8, 1987, Rossillo moved before sentencing to withdraw his plea pursuant to Fed.R.Crim.P. 32(d). Rossillo claimed that the court did not comply with Rule 11. The court found, however, that the Rule 11 requirements were satisfied and that there was "no evidence that [Rossillo's heart] condition or medical treatment in any way impaired his ... guilty plea." On July 17, 1987, the district court, therefore, denied Rossillo's motion to withdraw his plea.

According to the terms of his plea agreement, Rossillo then was given an opportunity to present before the court testimony regarding his medical condition and the effects of a lengthy term of incarceration on his physical health. After hearing the testimony on September 16, 1987, the court sentenced Rossillo to fourteen years imprisonment.

DISCUSSION

Rossillo contends on this appeal that in accepting his plea of guilty, the district court did not comply with the requirements of Fed.R.Crim.P. 11. Specifically, he argues that he was under the influence of medication rendering him unable to enter a voluntary and knowing guilty plea, and that the district court erred in failing to inquire whether the medication affected the voluntariness of his plea. Because in this case we believe that the district court should have inquired further into Rossillo's ability to offer his plea before finding that it was voluntarily and knowingly entered, we agree with defendant that his guilty plea must be vacated.

Before accepting a plea of guilty, Rule 11 requires that the district judge determine whether the defendant "understands the nature of the charge against him and whether he is aware of the consequences of his plea." McCarthy v. United States, 394 U.S. 459, 464, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969); see Fed.R.Crim.P. 11. The district court must "satisfy itself that the defendant is offering the plea voluntarily and that he is competent to understand the nature of the charge, his constitutional rights, and the scope of the penalty provided by law." Saddler v. United States, 531 F.2d 83, 85 (2d Cir.1976) (per curiam) (citations omitted). The Supreme Court has declared that a plea of guilty "cannot support a judgment of guilt unless it [is] voluntary in a constitutional sense." Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); see Saddler, 531 F.2d at 86 ("plea may be accepted only if the waiver is found to be voluntar[il]y and intelligently given"). A plea may be involuntary because the defendant does not understand that he is waiving constitutional rights or because the defendant has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Henderson, 426 U.S. at 645 n. 13, 96 S.Ct. at 2257 n. 13. Not only must the plea of guilty be voluntary, it must also be a knowing and intelligent act done with "sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).

In McCarthy, the Supreme Court set forth two purposes of Rule 11 First, ... it is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.

394 U.S. at 465, 89 S.Ct. at 1170. The Court noted that constitutional principles lie behind the rule, since a defendant who pleads guilty waives several fundamental constitutional rights. Id. at 466, 89 S.Ct. at 1170. Consequently, in order for the waiver to be valid under the due process clause, it must be " 'an intentional relinquishment or abandonment of a known right or privilege.' " Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

In rejecting the government's argument that the district court could assume that the defendant understood the charges against him, the McCarthy Court stressed the need for "on the record" determinations of defendant's understanding. Thus, the Court held that the district court could not make outside-the-record assumptions about defendant's ability to understand the nature of the proceedings because Rule 11 mandates that the district court personally interrogate the defendant. Personally questioning the defendant not only aids the court in determining the voluntariness of the guilty plea, it also serves to aid that determination in any post-conviction proceeding based on a claim that the plea was not voluntary. McCarthy, 394 U.S. at 467, 89 S.Ct. at 1171; see United States v. Gonzalez, 820 F.2d 575, 579 (2d Cir.1987) (per curiam) (explaining that faithful observance of Rule 11 eliminates basis for later claim by defendant that plea was defective).

In asserting that his plea was not knowingly and intelligently made, Rossillo contended before Judge Bramwell, as he does on appeal, that the court failed to determine whether he was taking medication that impaired his ability to understand the nature of the charges against him and the consequences of his plea. The district court refused to credit Rossillo's contention that he failed to understand the nature of the proceedings when he pleaded guilty since the underlying plea agreement was, in the court's words, the product of "complex and lengthy negotiations." The government argues that the district court made every effort to "expose[ ] the defendant's state of mind on the record through personal interrogation," McCarthy, 394 U.S. at 467, 89 S.Ct. at 1171, and that Rossillo and his attorney were obliged...