U.S. v. Adams

• Decision Date: 27 January 1978
• Docket Number: No. 77-5151,77-5151
• Citation: 566 F.2d 962
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William D. ADAMS, a/k/a Bill Adams, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 962

566 F.2d 962

UNITED STATES of America, Plaintiff-Appellee, v. William D. ADAMS, a/k/a Bill Adams, Defendant-Appellant.

No. 77-5151.

United States Court of Appeals Fifth Circuit.

Jan. 27, 1978.

Dan Ryan, Houston, Tex., for defendant-appellant.

J. A. Canales, U. S. Atty., James R. Gough, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM and GEE, Circuit Judges, and VAN PELT ^*, District Judge.

WISDOM, Circuit Judge:

William D. Adams appeals from his conviction upon a guilty plea of possessing cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). He contends that his plea was involuntary and that the district court failed to comply with Federal Rule of Criminal Procedure 11, which establishes detailed procedures for accepting guilty pleas. We hold that the district court must comply strictly with Rule 11.

"Plea bargains have accompanied the whole history of this nation's criminal jurisprudence." Bryan v. United States, 5 Cir. 1974, 492 F.2d 775, 780, cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). The pragmatic need for plea bargaining must be reconciled, however, with the constitutional requirement that the plea be voluntary. In 1966 the rule was amended to forbid the court to accept the plea "without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the voluntariness of the plea". Even after the 1966 amendment some courts still held that substantial compliance would satisfy the rule. Waddy v. Heer, 6 Cir. 1967, 383 F.2d 789, 794, cert. denied, 392 U.S. 911, 88 S.Ct. 2069, 20 L.Ed.2d 1369 (1968). McCarthy v. United States, 1969, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, put an end to that view of Rule 11. Under its supervisory power, the Supreme Court held in McCarthy that there must be strict compliance with the rule.

On December 1, 1975, Fed.R.Crim.P. 11 was tightened by amendments providing that trial judges accepting guilty pleas "must address the defendant personally in open court", inform him of certain constitutional rights, certain consequences of his plea, and the nature of the charges to which he is pleading. ¹ The trial judge must also determine that the defendant understands what he is told. In United States v. Aldridge, 5 Cir. 1977, 553 F.2d 922 (per curiam), we held that the adoption of the new amendments did not change the rule in this circuit that "compliance with Rule 11 must be literal". ²

Here, the trial judge complied with Rule 11 in informing the defendant of the maximum sentence he faced and of his right to a jury trial. The defendant had received the indictment and had gone over it with his counsel. The trial judge, however, did not inform the defendant "personally" that he "has the right to the assistance of counsel, the right to confront . . . witnesses against him, and the right not to be compelled to incriminate himself". The trial judge did not inform the defendant personally of the nature of the charge to which he pleaded. Because Rule 11 required the trial judge to inform the defendant of these matters, we must reverse the judgment and remand the case to the district court.

I

The colloquy between the trial judge and the defendant on which this appeal is based is set forth in the margin. ³ After the colloquy the United States Attorney announced that the parties had entered into a plea bargain. The government agreed that in return for Adams' guilty plea to count two, it would move to dismiss the other two counts. ⁴ In addition, the government agreed that in return for Adams' testifying against his codefendants, it would not oppose probation. Finally, the government agreed to seek expansion of the territorial limits of Adams' bond and to seek Adams' release as surety on the codefendant's bond.

Adams also executed a written guilty plea form in the court's presence. The form stated that Adams understood "the elements of the offense", recounted that Adams had the right to counsel and the right to stand trial regardless of guilt, and accurately listed the maximum sentence including the special parole term. The form also stated that Adams had received no promise of leniency for pleading guilty nor threat of harshness for standing trial and that no promise of leniency would be binding on the court. The form announced that the only bargain had been the government's agreement to dismiss two of the three counts.

The court accepted the guilty plea. Three months later, on January 25, 1977, Adams appeared for sentencing. He told the court that he found the cocaine at his home and had given it to an undercover agent to find out what it was. The court sentenced him to three years imprisonment and a three-year special parole term.

II.

Plea bargaining passes constitutional muster only if it is voluntary. Rule 11 imposes strict procedural requirements to keep plea bargaining within acceptable constitutional standards. In addition, under the Supreme Court's supervisory power, the trial judge is allowed no latitude to depart from Rule 11. He must inform the defendant of the nature of his rights, and determine that the defendant understands what his rights are and what he is giving away.

A. Constitutional rights.

Here the trial judge did not personally inform the defendant that he "has the right to the assistance of counsel, the right to confront . . . witnesses against him, and the right not to be compelled to incriminate himself". Rule 11(c)(3) requires that a defendant be personally informed of those three rights. ⁵ Adams therefore must be allowed to plead again. McCarthy v. United States, 1969, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; United States v. Aldridge, 5 Cir. 1977, 553 F.2d 922 (per curiam).

The trial judge instructed Adams that he had a right to a "speedy trial before either a judge or jury", but that statement does not clearly state that the choice belongs to Adams. The defendant said that he understood that he was waiving this right. We suggest that this statement could be clarified by specifying that it is the defendant who makes the choice whether to be tried before a judge or before a jury. Nevertheless, in this respect we conclude that the language of the trial judge comports with the rule.

B. Nature of the charge.

The trial judge did three things to inform the defendant of the nature of the charge to which he pleaded and to determine that the defendant understood the nature of the charge. First, the trial judge determined from Adams that he had received the indictment and gone over it with his attorney. Second, the charge was read to Adams. Third, after Adams described the transfer of the cocaine in his own words, the trial judge asked him if he "intend(ed) to distribute or sell" the cocaine he described transferring. ⁶ Curiously, in spite of the plea bargain, Adams denied that he had intended to distribute the cocaine, a statement that might have aroused doubts as to Adams' understanding of his plea.

The trial court, however, made no attempt to explain the charge and did not ask Adams whether he understood it.

We hold that the trial judge did not properly inform Adams of the nature of the charge he faced and did not determine that he understood the charge. In dictum in United States v. Coronado, 5 Cir. 1977, 554 F.2d 166, 174 n.12, we reserved the question whether amended Rule 11's additional requirement that the trial court inform the defendant of the nature of the charge must be literally construed. Following McCarthy v. United States, 1969, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, and United States v. Aldridge, 5 Cir. 1977, 553 F.2d 922 (per curiam), we now hold that the trial court must personally inform the defendant of the nature of the charge to which he pleads. The trial court must also, as we have held previously, determine that the defendant understands the nature of the charge. ⁷

To inform a defendant of the nature of the charge must mean more to having the indictment read to the defendant. Reading the indictment informs the defendant of the technical charge. But the trial court should proceed "on the assumption that the defendant is ignorant of the nature of the charges". United States v. Coronado, 5 Cir. 1977, 554 F.2d 166, 172. In most cases only the most sophisticated defendant would be informed of the nature of the charge by a reading of the indictment without more.

In Coronado, Judge Goldberg, writing for the Count, suggested the use of jury instructions as a pattern for explaining to defendants the nature of the charges to which they are pleading. We need not adopt such a requirement now, for different cases may require different explanations. Some defendants are more sophisticated than others. See United States v. Saft, 2 Cir. 1977,558 F.2d 1073, 1079. Some charges are more difficult to understand than others. United States v. Coronado, 554 F.2d at 172. ⁸ But "no matter how simple the charges, a district court should make the minor investment of time and effort necessary to set forth their meaning and demonstrate on the record that the defendant understands". Id. And when there is a lesser included offense, as in this case with simple possession, "personally addressing the defendant as to his understanding of the essential elements of the charge to which he pleads guilty" seems essential. McCarthy v. United States, 1969, 394 U.S. 459, 467 n.20, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 426 n.20. See 8 Moore's Federal Practice P 11.02(1) at 11-25, citing Dorough v. United States, 5 Cir. 1967, 385 F.2d 887, 894 (Goldberg, J., dissenting). See also 1 Wright, Federal Practice and Procedure § 173.

Here, the trial judge made no attempt to explain the charge or to assure himself that the defendant understood it. Cf. Canady v. United States, 5 Cir. 1977, 554 F.2d 203, 205....