Kadwell v. United States, No. 17943.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: ORR, MERRILL and BROWNING, Circuit
• Citation: 315 F.2d 667
• Parties: Sydney B. KADWELL, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 17943.
• Decision Date: 04 April 1963

315 F.2d 667 (1963)

Sydney B. KADWELL, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17943.

United States Court of Appeals Ninth Circuit.

April 4, 1963.

315 F.2d 668

Ronald G. Alberts, Novato, Cal., for appellant.

John W. Bonner, U. S. Atty., Thomas R. C. Wilson, II, Asst. U. S. Atty., and Melvin D. Close, Jr., Reno, Nev., for appellee.

Before ORR, MERRILL and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

Appellant appeared before the District Court on a charge of violating the Dyer Act, 18 U.S.C.A. § 2312. An attorney present in the courtroom was appointed to represent him. Counsel was given a copy of a proposed information and waiver of indictment, and he and appellant were "excused temporarily * * * to consult * * * about this matter." Shortly thereafter¹ appellant appeared again before the court, waived indictment, and tendered a plea of guilty. In response to the court's questions, appellant disclaimed any promise, threat, or coercive influence, and stated that he offered the plea because he was guilty. The court accepted appellant's plea, and continued the matter three days for sentencing.

On the day set for sentencing, appellant moved to withdraw his plea of guilty. The motion was denied. The entire colloquy between the court and appellant's counsel with respect to the motion is set out in the margin.²

Appellant was sentenced and judgment was entered. He appealed, asserting that: (1) the court violated Rule 11, Federal Rules of Criminal Procedure, by accepting appellant's guilty plea without first determining whether it was made with an understanding of the nature of the charge and consequences of the plea; (2) he was denied his Sixth Amendment right to adequate representation by counsel; and (3) the court erred in denying his motion under Rule 32(d), Federal Rules of Criminal Procedure, to withdraw his plea of guilty.

(1) Rule 11 provides that the court "shall not accept" a plea of guilty "without first determining that the plea is

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made voluntarily with understanding of the nature of the charge."³ The court in the present case determined only that appellant's guilty plea was voluntary. The court did not determine whether the plea was made with understanding of "the nature of the charge"; i. e., the court took no steps to satisfy itself that appellant understood "the meaning of the charge, and what acts amount to being guilty of the charge, and the consequences of pleading guilty thereto." Edwards v. United States, 103 U.S.App. D.C. 152, 256 F.2d 707, 710 (1958).⁴

"Real notice of the true nature of the charge * * * is the first and most universally recognized requirement of due process." Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941). It is "indispensable to a valid plea." United States v. Davis, 212 F.2d 264, 267 (7th Cir. 1954). Rule 11 is intended to assure that the defendant possesses that understanding.

We need not decide whether noncompliance with Rule 11 in this case constituted reversible error, as in some circumstances it may.⁵ We are satisfied that this omission, together with other factors indicated below, required that appellant's motion under Rule 32(d) to withdraw his plea of guilty be granted.⁶

(2) Similarly, we do not reach the question of whether appellant was denied his constitutional right to effective assistance of counsel,⁷ but we hold that the brevity of appellant's consultation with his court-appointed attorney supports the conclusion that denial of

315 F.2d 670

the motion to withdraw his plea was error

(3) The right of an accused to trial by jury has a favored place in our law. Concern for its protection is reflected in the statutes by which Congress empowered the Supreme Court to promulgate procedural rules for the federal courts. Section 3772 of Title 18 contains an express proviso that the rules of criminal procedure may not "abridge the right of the accused to apply for withdrawal of a plea of guilty, if such application be made within ten days after entry of such plea, and before sentence is imposed."⁸ No other restriction upon the power of the Supreme Court over the content of the Rules was prescribed by Congress.

Accordingly, Rule 32(d) imposes no limitation upon the withdrawal of a guilty plea before sentence is imposed, and such leave "should be freely allowed." Poole v. United States, 102 U.S.App.D.C. 71, 250 F.2d 396, 400 (1957). See also Gearhart v. United States, 106 U.S.App. D.C. 270, 272 F.2d 499, 502 (1959).⁹ On the other hand, withdrawal of a guilty plea after sentence is conditioned by Rule 32(d) upon a showing of "manifest injustice." This distinction rests upon practical considerations important to the proper administration of justice.¹⁰ Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe.¹¹ The result would be to undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process.

Appellant's motion to withdraw his plea was submitted before sentencing and within three days of his plea of guilty. It was therefore to be freely allowed.¹²

The record disclosed substantial considerations in support of granting the

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motion, and little justifying denial. Appellant was faced with a serious charge. He was far from home. He had neither a lawyer nor funds to employ one. Appointed counsel, apparently selected from those available in the courtroom at the time of arraignment, presumably had no prior knowledge of appellant, of the charge against him, or of the legal and factual issues involved. The period of consultation and opportunity for deliberation were brief at best. Appellant was not informed by the court of either the nature of the accusation or the consequences of his plea. Appellant asserts that he in fact lacked that knowledge, and pleaded guilty under a misapprehension as to the possible penalty and despite the existence of a meritorious defense. No countervailing interest of the court or prosecution weighed against withdrawal; the record discloses no suggestion that either imposition upon the court or prejudice to the prosecution would have resulted

We conclude that in these circumstances denial of...