Mack v. U.S.

Decision Date03 December 1980
Docket NumberNo. 80-1073,80-1073
Citation635 F.2d 20
PartiesHarold Omar MACK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — First Circuit

Jan L. Nielsen, Yale University Law Student, with whom Dennis E. Curtis, New Haven, Conn., Renee D. Chotiner, Boston, Mass., Stephen Wizner, Alice Bussiere, New Haven, Conn., and Fredric Goldstein, Yale University Law Student, were on brief, for appellant.

Anna R. Tretter, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, WYZANSKI, Senior District Judge. *

BOWNES, Circuit Judge.

Defendant-appellant Harold Omar Mack appeals the denial by the district court of a motion to vacate sentence, pursuant to 28 U.S.C. § 2255. The issues are whether the district court failed to comply with Fed.R.Crim.P. 11, and whether it erred in dismissing the motion to vacate sentence without ordering the United States Attorney to file an answer, pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings.

We reverse the decision of the district court and remand for a hearing at which the defendant shall be afforded the opportunity to plead anew.

I.

Defendant was arrested on December 19, 1977, for transmitting an extortion demand via telephone in interstate commerce, in violation of 18 U.S.C. §§ 875(b) and 1952. A grand jury returned a four count indictment on February 22, 1978. Count I charged that Mack willfully and knowingly, and with the intent to extort money from S. Prestley Blake, threatened to injure the son of Blake, in violation of 18 U.S.C. §§ 875(b) and 2. Counts II and III charged that he, willfully and knowingly, and with intent to extort money from Blake, threatened to injure Blake's reputation in violation of 18 U.S.C. §§ 875(d) and 2. Count IV charged that Mack used and caused to be used telephone facilities in interstate commerce, and did cause S. Prestley Blake to travel in interstate commerce, with the intent to promote, manage, carry on and facilitate the promotion of an unlawful activity, that is, the extortion and attempted extortion of a sum of money, in violation of Mass.Gen.Laws ch. 265, § 25, 53a Conn.Gen.Stat. §§ 119 and 49, and 18 U.S.C. §§ 875(b) and (d), and that he thereafter did perform and attempt to perform those acts of unlawful activity in violation of 18 U.S.C. §§ 1952 and 2.

Prior to the indictment proceedings, the district court, pursuant to 18 U.S.C. § 4244, and upon the motion of the United States Attorney, committed Mack for sixty days to the Medical Center for Federal Prisoners in Springfield, Missouri, for a determination of his mental competency. During Mack's stay, the staff reported that on one occasion he engaged in behavior that was "agitated" and "assaultive," and concluded, therefore, that additional observation was necessary. At the request of the government, and with the assent of Mack's attorney, the district court, on March 8, 1978, extended its commitment order for thirty days.

A Report of Psychiatric Staff Examination, issued on March 24, 1978, concluded that Mack was competent to stand trial and that he was responsible at the time of his alleged offenses. He was released to the district court on April 7, 1978, after a 107-day stay at the Medical Center.

On June 26, 1978, Mack appeared before the District Court of Massachusetts at a change of plea hearing. When the court asked him if he wished to comment on the psychiatric report of the Medical Center, Mack responded:

THE DEFENDANT: Yes. In Springfield, Missouri I was confronted with harassment from the medial staff. I was beaten. I was drugged. Ever since that particular incident, I haven't been functioning properly. And I would like to state that I am being pressured into making the plea. I am not doing it of my own free will.

They said if I go to trial and if I get convicted on all these counts, it carries a maximum of 20 years.

THE COURT: Just a minute. I am asking you whether you wish to comment at this time on the psychiatric and psychological examinations which I ordered on January 5, 1978. I am only asking whether or not you have seen the report, and whether you have any comments based upon it.

THE DEFENDANT: I haven't seen any report.

(emphasis added). After this exchange, but without further questioning from the court as to the claim that the plea was coerced, the defendant pleaded guilty to Count IV of the indictment. A plea bargain had been struck between defense counsel and the United States Attorney. In return for the plea, the government agreed to dismiss the other three remaining counts of the indictment and to recommend to the court a sentence of not more than five years imprisonment. On July 14, 1978, nineteen days after the change of plea hearing, the district court sentenced Mack to a five-year term of imprisonment and stated that he would be given credit for the time served awaiting trial.

A little more than a year later, on July 28, 1979, the appellant filed pro se in the district court a motion to vacate sentence, pursuant to 28 U.S.C. § 2255, alleging, inter alia, that while he was committed to the Medical Center, he "was beaten and forcefully given drugs continuously" and that "prison conditions in conjunction with inhumane treatment and the use of drugs coerced the Petitioner into pleading under very extreme circumstances, as is further stated by Petitioner in the record." The district court, calling the motion "frivolous," denied it on December 28, 1979, without ordering the government to answer and without an evidentiary hearing. On March 7, 1980, Mack filed a motion for relief from judgment, pursuant to Fed.R.Civ.P. 60(b), requesting the district court to issue a memorandum of intent to grant relief from its order dismissing the motion to vacate sentence. The district court denied the motion and this appeal followed.

II.

The major contention of Mack is that the district court failed to comply with the mandate of Fed.R.Crim.P. 11 in accepting the guilty plea, because it did not insure that the plea was voluntary, did not inform him of the nature of the charge to which he pleaded, and did not determine that he understood the nature of the charge.

At the core of Fed.R.Crim.P. 11 is the policy that a court should not accept a guilty plea unless it determines that the plea is voluntary and the defendant understands the nature of the charges. Since its original enactment in 1944, the Rule has twice been amended, each time to afford defendants even greater protection from involuntary and ignorant pleas. In 1966, the Rule was expanded, requiring that the court address the defendant "personally," that it ascertain that "the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea," and that the court "not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea." In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1967), the Supreme Court sought to resolve any doubts about the effect of less than complete compliance with Rule 11 when it declared that "prejudice inheres in a failure to comply with Rule 11," id. at 471, 89 S.Ct. at 1173, that "any noncompliance with Rule 11 is reversible error," id. at 464 n.9, 89 S.Ct. at 1170 n.9, and that "a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew," id. at 472, 89 S.Ct. at 1174. Effective December 1, 1975, Rule 11 was expanded once more. The provisions relevant to the instant case state:

(c) Advice to Defendant. Before accepting a plea of guilty ..., the court must address the defendant personally in open court and inform him of, and determine that he understands the following:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; ...

(d) Insuring that the plea is voluntary. The court shall not accept a plea of guilty ... without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats of promises apart from a plea agreement.

There is a difference in the standard of review for alleged violations of Rule 11 on direct appeal and via section 2255 proceedings. On direct appeal, the standard of review is more advantageous to the defendant than on collateral appeal. See United States v. Jacob John Gordon, 634 F.2d 638, (1st Cir. 1980); United States v. DiCarlo, 575 F.2d 952, 954-55 (1st Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 129 (1978); Miller v. United States, 564 F.2d 103, 105-06 (1st Cir. 1977), cert. denied, 435 U.S. 931, 98 S.Ct. 1504, 55 L.Ed.2d 528 (1978). The Supreme Court has distinguished between the standard of review of a collateral appeal of a Rule 11 violation and a direct appeal, holding that a guilty plea is not subject to collateral relief when all that is shown is a formal violation of Rule 11. See United States v. Timmreck, 441 U.S. 780, 785, 99 S.Ct. 2085, 2088, 60 L.Ed.2d 634 (1979). Since the requirements allegedly unsatisfied in the instant case are so obviously central to the policy considerations underlying Rule 11, Timmreck does not apply. 1 Here, we follow the holding of McCarthy that "prejudice inheres in a failure to comply with Rule 11." McCarthy v. United States, 394 U.S. at 471, 89 S.Ct. at 1173.

III.

Mack's claim that the court failed to insure that his plea was voluntary arises from the exchange directly after the judge asked him if he had any comments about the psychiatric report of the Medical Center staff. Mack contends that to comply with Rule 11, the court should have delved specifically into his statement that he was "being pressured into making the plea." It is clear from the...

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