Murray v. United States
Decision Date | 22 December 1969 |
Docket Number | No. 124-68.,124-68. |
Citation | 419 F.2d 1076 |
Parties | Ralph Raymond MURRAY, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
Frederick L. Haag, Wichita, Kan., for appellant.
Richard V. Thomas, U. S. Atty. (Tosh Suyematsu, Asst. U. S. Atty., with him on the brief), for appellee.
Before HILL, SETH and HOLLOWAY, Circuit Judges.
The appellant has taken this appeal from a denial of his motion filed under 28 U.S.C. § 2255. The appellant entered a plea of guilty on two counts, one under 18 U.S.C. § 2113(b) for stealing money from a bank, and the second count under 18 U.S.C. § 2113(d) for putting in jeopardy the lives of several persons with a gun during the bank robbery. He was represented by court appointed counsel at arraignment, entry of his plea, and at sentencing. Appellant's motion asserts that the trial judge did not comply with the provisions of Rule 11 of the Federal Rules of Criminal Procedure before accepting the plea of guilty, and further that in attempting to comply with Rule 11 the trial judge induced appellant to enter the guilty plea through coercion. Appellant was sentenced to twenty years under concurrent sentences on the two counts. He was also sentenced for other bank robberies at the same time, but these are not here involved.
Appellant filed a previous motion under section 2255 which alleged that he was denied effective assistance of counsel at the time of sentencing in that counsel failed to inform him of his right to speak in mitigation of punishment, and of the true nature of the possible punishment. This motion was denied and no appeal was filed.
Appellant thereafter filed the motion under consideration in which he asserts the failure to comply with Rule 11 and the coercion of his plea. This motion was initially denied on the grounds that it constituted a repetitive application. The appellant filed a motion for rehearing which was denied without a hearing. In the order denying the motion for rehearing the court found that the records showed conclusively that Rule 11 had been complied with, and that the court's statement of the potential sentence did not constitute pressure or coercion to induce the appellant to enter a plea of guilty. It is this order that appellant appeals from.
The Government urges on appeal that the section 2255 motion of appellant here considered was repetitious of the one previously filed as determined by the trial court in its initial ruling on the motion. However, as indicated above, the court on the motion for rehearing considered the merits, and the issue of repetition need not be considered here.
The issue of conformance with the requirements of Rule 11 of the Federal Rules of Criminal Procedure is the basic one on this appeal. On this point the record shows that the following colloquy took place between the court and the appellant:
When appellant entered his plea of guilty on June 10, 1965, Rule 11, hereinafter referred to as the old rule, read as follows:
"The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily and with understanding of the nature of the charge."
On February 28, 1966, Rule 11 was amended and now provides:
The amendment became effective on July 1, 1966.
It is apparent that in cases of this nature, the basic question is the voluntary nature of the plea of guilty. The Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, pointed out that Rule 11 sets out procedures which are not "constitutionally mandated," but which are designed to assist the district judge in making his "constitutionally required determination that a defendant's guilty plea is truly voluntary." The question in the McCarthy case, which considered the new rule, was whether the judge was required to address the defendant and to elicit responses directly from him that he understood the charge. This is a somewhat different matter than is before us on this appeal; however, the Court's references to the importance of the record are significant although McCarthy is not applied retroactively. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16, the Court said that there was no adequate substitute for demonstrating in the record of the proceedings that the plea was made with an understanding of the charge. The record here does show a direct interrogation of the appellant, and his response that he did so understand the charges. On this aspect of Rule 11, the standards then applicable were complied with.
This leaves the question of whether the record shows that Rule 11, generally as it existed and was construed in 1965, was complied with and that the appellant's plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea. This court has held that the district court need not follow any particular ritual in complying with the old Rule 11, nor did it require the court to make a specific finding that the defendant's guilty plea was voluntarily and knowledgeably made. Baker v. United States, 404 F.2d 787 (10th Cir.); Bailey v. United States, 312 F.2d 679 (10th Cir.); Nunley v. United States, 294 F.2d 579 (10th Cir.). There is no set formula for compliance with the rule. It is apparent that the best method to determine the defendant's understanding of the charge was a brief discussion with the defendant before accepting the plea. This was the method used by the district court in the case before us. The appellant complains here of a failure to comply with the rule as it existed at the time, but the record indicates that the court did so comply in all aspects and on voluntariness generally. Crow v. United States, 397 F.2d 284 (10th Cir.).
We come now to appellant's contention that the district court coerced him to plead guilty when it advised him that the maximum sentence was thirty-five years, adding that the court was not saying it would necessarily impose such a sentence if the appellant pled guilty.
Appellant cites two cases dealing with asserted coerced pleas of this nature. In Euziere v. United States, 249 F.2d 293 (10th Cir.), this court held that the court had coerced a guilty plea when it informed the defendant after he had entered a plea of not guilty that it would impose the maximum sentence if he stood trial and was found guilty because he would have put the Government...
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