U.S. v. Syal

• Decision Date: 11 May 1992
• Docket Number: No. 91-1871,91-1871
• Citation: 963 F.2d 900
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gyan Parkash SYAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 900

963 F.2d 900

UNITED STATES of America, Plaintiff-Appellee, v. Gyan Parkash SYAL, Defendant-Appellant.

No. 91-1871.

United States Court of Appeals Sixth Circuit.

Submitted April 9, 1992.

Decided May 11, 1992.

Patricia G. Blake (briefed), Blondell Morey, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Edmond Ralph Anderson, Jr. (briefed), Phoenix, Ariz., for defendant-appellant.

Before: MERRITT, Chief Judge; RYAN, Circuit Judge; and FORESTER, District Judge. ^*

MERRITT, Chief Judge.

Defendant Gyan Syal appealed from the District Court's denial of his motion to withdraw his guilty plea, made under Rule 32(d) of the Fed.R.Crim.P. Syal based his motion to withdraw his plea on the District Court's failure to comply with Rule 11 of the Fed.R.Crim.P. Rule 11 requires a court, before accepting a guilty plea, to "inform the defendant of, and determine that the defendant understands ... the nature of the charge to which the plea is offered ... and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term." Rule 11(c)(1). ¹ In this case the District Court failed, during the plea colloquy, to explain the elements of the offense, required as part of being certain the defendant understands the charges against him. The Court also failed to tell the defendant that his sentence would include supervised release and the effect that such a term of supervised release could have on his sentence.

The question before this Court is whether the District Court's failure to comply with Rule 11 in accepting the guilty plea requires vacation of the guilty plea and remand either for a new plea or for trial. For the reasons set out below, we hold that the failure to comply with Rule 11 in the plea hearing requires vacation of the guilty plea. We therefore vacate Syal's plea and remand to the District Court for further proceedings consistent with this opinion.

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Syal, his brother-in-law, Narav Sachdeva, and a third person, Keith McAllister, were indicted on six counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of 18 U.S.C. § 1341. The indictment charged a conspiracy to defraud sellers of valuable merchandise by falsely representing that Sachdeva's company, Pushpa Investments, Inc., had large assets. According to the indictment Syal gave false financial information for his company, Pushpa Investments, Inc., to Dun & Bradstreet, providing as a reference his brother-in-law, Sachdeva, who was an officer at Coast Savings Bank. The indictment identified McAllister as the person who applied for credit and filled out orders for the merchandise. McAllister applied in the name of Pushpa, Inc., and gave Sachdeva's name as a credit reference. When called at Coast Savings Bank by those inquiring about Pushpa, Inc.'s financial condition, Sachdeva verified accounts for Pushpa, Inc., when in fact Pushpa, Inc., had no accounts at that bank. The indictment specified multiple uses of the telephone, telefacsimile transmissions, and mail to carry out these transactions.

Syal and Sachdeva went to trial. McAllister pled guilty and testified against Syal and Sachdeva. After three days of trial, when the Government had nearly completed its case, Syal and Sachdeva entered guilty pleas on three counts of wire fraud, in violation of 18 U.S.C. § 1343, instead of proceeding with the trial. ² In exchange for their guilty pleas the Government agreed to drop all other counts in the indictment.

After entering his guilty plea but prior to sentencing, Syal moved, under Rule 32(d) of the Federal Rules of Criminal Procedure, to withdraw his plea on the grounds that he was not guilty and that the Court had not complied with Rule 11 in accepting the guilty plea. Syal asserted that the Court had not given "the required advisements" of Rule 11(c), although he did not object specifically to the Court's failure to explain the elements of the offense or the failure to tell him that the sentence would include supervised release. The plea colloquy is set out in a note below. ³ Before this Court Syal specifically objected to the failure of the District Court to explain the elements of his offense and to notify him that his sentence would include a period of supervised release.

At the sentencing hearing the District Court considered Syal's Rule 32 motion and denied it. ⁴ The Court then sentenced Syal to 18 months imprisonment and three years supervised release on each of three counts of wire fraud, all to run concurrently. This sentence resulted from a base offense level of 17 reduced by 2 for acceptance of responsibility with a Criminal History category of I. The Guideline range was 18 to 24 months with supervised release of 2 to 3 years.

* * * * * *

The Supreme Court has emphasized the value in a district court's adhering "meticulously" to Rule 11. See McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). While recognizing that the Rule 11 procedure itself is not constitutionally mandated, the Court in McCarthy described its purposes: "[I]t is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary.... and 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. McCarthy set out a rule that "a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11." 394 U.S. at 463-64, 89 S.Ct. at 1169-70.

McCarthy has been modified by the inclusion in Rule 11 of a harmless error provision. See Rule 11(h). A technical failure to comply with Rule 11 does not now require vacation of a plea and opportunity for a new plea. See United States v. Stead, 746 F.2d 355, 356 (6th Cir.1984), cert. denied, 470 U.S. 1030, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985) (noting the addition of the harmless error standard to Rule 11 and holding that the change in the Rule modified the analysis of a Rule 11 question, so that "substantial compliance" rather than the "strict compliance" set out in McCarthy is now required). Nevertheless failure to comply with Rule 11 is harmless only if the variance from the procedures "does not affect substantial rights." Rule 11(h). If a District Court fails to comply with Rule 11 and that failure cannot be said to be harmless, a defendant is entitled to a remedy. See United States v. Goldberg, 862 F.2d 101 (6th Cir.1988) (noting that vacation of plea and remand for repleading is appropriate remedy in case where it is not clear that defendant understood charges or that there was factual basis for plea).

Rule 11(c)(1) expressly requires that the defendant be told the "nature of the charge." When a defendant pleads guilty, that defendant is admitting "all the elements of a formal criminal charge," see McCarthy, 394 U.S. at 466, 89 S.Ct. at 1171, and so must have knowledge of all those elements. In a simple case the district court may need only to read the indictment and allow the defendant to ask questions about the charge. See United States v. Van Buren, 804 F.2d 888, 892 (6th Cir.1986). When the case is more complex, further explanation may be required. In any case the district court must be satisfied, after discussion with the defendant in open court, that the defendant understands the elements of the offense. See id. at 891. See also United States v. Edgecomb, 910 F.2d 1309 (6th Cir.1990) (holding that Government's reading of the indictment into record at the plea hearing, accompanied by court's reciting the count of the indictment as well as court's asking defendants if they understood the charge against them and if they had discussed the charge with their attorneys, was sufficient procedure to establish defendants' understanding of charge against them in case where conspiracy to possess cocaine with intent to distribute was simple enough for lay person to understand).

In this case the District Court did not rehearse the content of the indictment or explain the separate elements of the wire fraud offense. The prosecutor asked directly whether Syal had committed certain acts in order to establish the factual basis for the plea, but there was no explanation of the legal significance of those acts. See supra note 3, setting out the plea colloquy. Although Syal had heard three days of testimony presented by the Government to establish the case against him, the Court had not summarized the law or instructed the jury as to the elements of the wire fraud offense. Thus the three days of testimony did not tell Syal the elements of the offense. The indictment specified certain acts the defendants were said to have committed but did not explain each element of the offense. It is therefore not clear that Syal understood each element of the formal criminal charge. The Court's failure to explain to Syal the elements of the wire fraud offense thus affected Syal's substantial rights.

The district judge assumed that because Syal had heard the Government's case for three days and because he had had a good lawyer and was well-educated, the Court did not need to interrogate the defendant at great length. See District Court's explanation for denial of Rule 32(d) motion, supra note 4. While a defendant in Syal's circumstance may not need as much explanation as an unrepresented defendant, the District Court must meet the minimum requirements of Rule 11. Some rehearsal of the elements of the offense is necessary for any defendant. See United States v. Van Buren, 804 F.2d 888 (6th Cir.1986). Failure to identify the elements of the offense is error and cannot be said to be harmless, even for an educated, well-represented defendant.

Rule 11(c)(1) also expressly requires that the District Court tell the defendant the "maximum penalty provided by...