U.S. v. Cross, 94-2176
| Decision Date | 18 July 1995 |
| Docket Number | No. 94-2176,94-2176 |
| Citation | 57 F.3d 588 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alfred L. CROSS, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Larry A. Mackey, Asst. U.S. Atty., James Warden (argued), Indianapolis, IN, for U.S.
Jessie A. Cook (argued), Hellmann, Cook & Alexander, Terre Haute, IN, for Alfred L. Cross, Jr.
Before POSNER, Chief Judge, CUMMINGS and BAUER, Circuit Judges.
In this direct appeal, defendant Alfred L. Cross, Jr. challenges the validity of his guilty plea and his conviction for escaping from the custody of the Attorney General. Cross argues that the district court violated Federal Rule of Criminal Procedure 11(d) when it failed to conduct a specific inquiry to determine that his guilty plea was voluntary and given without fear, coercion, or undisclosed promises. The only issue before us is whether the district court's noncompliance with Rule 11(d) is excused under the harmless error standard of Rule 11(h). We believe that it is. Because the totality of the circumstances surrounding Cross' plea shows that he tendered his plea of guilty voluntarily and
without coercion, the district court's omission constituted harmless error. We affirm.
In August 1980, Cross pleaded guilty to multiple counts of mail fraud and bank larceny. He was sentenced to ten years' imprisonment and was remanded to the custody of the Attorney General of the United States. In September 1981, while serving that ten-year sentence, Cross escaped from the Federal Prison Camp at Terre Haute, Indiana. Cross was not arrested until years later, and in October 1991 was indicted on one count of escape in violation of 18 U.S.C. Sec. 751(a).
Following plea negotiations with the government, Cross entered a plea of guilty to the one-count indictment. In exchange for Cross' plea, the government agreed to stipulate that a consecutive sentence of fifteen months' imprisonment was an appropriate disposition. Cross' plea agreement stated that "[t]he parties jointly acknowledge that the proposed sentence is a fair and appropriate resolution of the charges against the Defendant in this case[,]" and that "[n]o other promises, representations or agreements as to this matter exist among the parties herein." In his petition to enter a plea of guilty that was filed along with the plea agreement in the district court, Cross declared that he offered his plea of guilty freely and voluntarily and of his own accord. A certificate of counsel accompanying Cross' petition expressed the opinion of Cross' attorney that Cross made his plea of guilty voluntarily and understandingly.
At Cross' plea hearing, the district court informed him of the nature of the charges against him and reviewed with Cross the terms of the plea agreement. When the court then asked if he understood the sentence proposed in the plea agreement, Cross responded affirmatively. Significantly, however, at no time during the plea colloquy did the district court personally address Cross to determine whether his plea was voluntary and not the result of force or threats or promises apart from the plea agreement, as required under Rule 11(d).
After the court informed Cross that he would waive his right to appeal the sentence if the plea agreement were accepted, Cross repeatedly assured the court that he would have no reason to appeal the sentence as long as he received the fifteen-month sentence that he had negotiated:
(Tr. of Guilty Plea Hearing of 12/14/93, at 9-10, 14.) The court determined that Cross' plea of guilty was knowing and voluntary, and took the plea under advisement until after it was able to review Cross' presentence report and conduct a sentencing hearing.
At his sentencing hearing, Cross reaffirmed that he was satisfied with the plea agreement. Cross told the court that he believed a sentence of fifteen-months' imprisonment was a "fair deal," and that he did not "have a problem with the 15 months, period." (Tr. of Sentencing Hearing of 5/4/94, at 12.) Cross added that the fifteen-month offer represented "[p]robably the first time [Assistant U.S. Attorney] Mackey did something right...." Id. at 11. The court accepted Cross' guilty plea and sentenced him to fifteen-months' imprisonment.
Cross filed a notice of appeal. In light of Cross' express promise in the plea agreement not to appeal his sentence, we limited the scope of Cross' appeal to the validity of the plea and conviction.
Cross argues on appeal that the district court failed to comply with Federal Rule of Criminal Procedure 11(d), that his plea is therefore invalid, and that his conviction should be reversed. Rule 11(d) provides:
(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 or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty ... results from prior discussions between ... the government and the defendant or the defendant's attorney.
We agree with Cross that the district court failed during the Rule 11 plea colloquy to address Cross directly to ensure that his plea was voluntary and not motivated by threats, coercion, or undisclosed promises. Thus the district court violated Rule 11(d).
Initially, we note that Cross did not raise this argument in the district court. Although an appellate court will not normally consider a matter raised for the first time on appeal, United States v. Groll, 992 F.2d 755, 758 (7th Cir.1993), a claim of non-compliance with Rule 11(d) will not be deemed waived if a party fails to present it in the district court. See United States v. Ruiz-del Valle, 8 F.3d 98, 102 (1st Cir.1993); United States v. Young, 927 F.2d 1060, 1061 (8th Cir.), cert. denied, 502 U.S. 943, 112 S.Ct. 384, 116 L.Ed.2d 334 (1991); United States v. Coronado, 554 F.2d 166, 170 n. 5 (5th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). "Rule 11 objections, so far as they affect the 'knowing' character of the plea, are treated with extra solicitude." United States v. Padin-Torres, 988 F.2d 280, 283 (1st Cir.1993) (citing United States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir.1991)). Because Cross belatedly attempts to withdraw his plea on appeal rather than before sentencing, we review for plain error. Id.; United States v. Bashara, 27 F.3d 1174, 1178 (6th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); see also United States v. Lopez-Pineda, 55 F.3d 693, 696-97 (1st Cir.1995).
The government argues that any error on the part of the district court in failing to comply with Rule 11(d) is reviewed for harmless error under Rule 11(h). Section (h), which was added to Rule 11 as part of the 1983 amendments, provides that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." According to the government, the totality of the circumstances shows that Cross' plea was entirely voluntary and that the district court sufficiently complied with the requirements of Rule 11(d). The government emphasizes that Cross did not assert--and has not suggested even to this day--that his plea was the result of force or threats.
Our lone precedent in this Circuit for analyzing a Rule 11(d) violation is the pre-1983 case United States v. Fels, 599 F.2d 142 (7th Cir.1979), where we held that a district court's failure to address the voluntariness of a plea in the plea colloquy mandated vacating the defendant's conviction and remanding the case to allow the defendant to plead anew. We observed that Rule 11(d)'s requirement that the record reflect the voluntariness of the plea was "of constitutional dimension," and that voluntariness had "no meaning" if the plea could not be shown to be free from force, threats, or undisclosed promises. Id. at 149. Thus the district court's failure to inquire whether the defendant's guilty plea was coerced "goes to the heart of Rule 11's purposes" and "cannot be described as inconsequential." Id. 1
Significantly, however, Fels pre-dated the 1983 amendment to Rule 11 that introduced subsection (h), the harmless error provision. According to the advisory notes accompanying the 1983 amendment, that provision was added to Rule 11 in response to the practice of several courts of continuing to follow McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), which held that a defendant whose plea was accepted in violation of Rule 11 was entitled to plead anew. Notes of Advisory Committee on Rules, 1983 Amendment, Fed.R.Crim.P. 11(h). The committee pointed out that "[t]hough the McCarthy per se rule may have been justified at the time and in the circumstances which obtained when the plea in that case was taken, this is no longer the case." Id. In support, the committee cited the expansions and revisions to Rule 11 that had occurred since McCarthy and noted that McCarthy, which involved the review of a guilty plea on direct appeal, was primarily directed at proceedings under 28 U.S.C....
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