U.S. v. Dayton

• Citation: 604 F.2d 931
• Decision Date: 18 October 1979
• Docket Number: No. 78-5271,78-5271
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Winston Eugene DAYTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 931

604 F.2d 931

UNITED STATES of America, Plaintiff-Appellee, v. Winston Eugene DAYTON, Defendant-Appellant.

No. 78-5271.

United States Court of Appeals Fifth Circuit.

Oct. 18, 1979.

E. Lee Yeakel, III, Austin, Tex., for Winston Eugene Dayton.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for the United States.

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

Before BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, and KRAVITCH, Circuit Judges. ^*

GEE, Circuit Judge:

The records reaching us for review in appeals after guilty pleas indicate that trial courts of this circuit are in doubt about the standards we apply in reviewing such matters. We took this case en banc to pass on its merits, of course, but also as a vehicle by which to review and harmonize our holdings on the subject. This opinion, the result of that review, is meant to be a clear and definitive statement of how trial courts should conduct guilty plea hearings and how we review those proceedings. As for their conduct, the governing principle can be simply stated: full adherence to Rule 11, Fed.R.Crim.P. What is not so simple to state is what constitutes that "full adherence" and what we will do when it has not been accorded. This we shall attempt below.

Guilty Pleas and Rule 11: A Little History

Guilty pleas are very important to the administration of criminal justice. It is common knowledge that most federal criminal prosecutions terminate in pleas of guilty or nolo contendere ¹ and that, especially given the strictures of the Speedy Trial Act, the system could not function without them. Doubtless they have other desirable features as well: permitting the guilty defendant to recommence cooperation with society by a free acknowledgment of his fault, shortening the conviction process so that service of sentences may commence and end sooner, and the like.

That receiving such pleas is a process beset with pitfalls is also common knowledge, however. Of these, the two most dangerous have long been recognized: coerced pleas and ignorant ones. The first of these plainly is condemned by the Fifth Amendment's mandate that no one "be compelled in any criminal case to be a witness against himself." The second arises from the guilty plea as perhaps the supreme instance of waiver known to our system of justice, one by which all of its trial rights and safeguards are voluntarily foregone, and the defendant deliberately submits to conviction. If this is to be permitted, at the minimum a decent system of justice will concern itself that the admission is voluntary and the defendant knows what it is he is admitting, so that he does not mistakenly consent to be punished for a crime he did not commit. These are core considerations, requirements that manifestly must lie at the heart of any respectable system for settling (as opposed to trying) criminal charges.

This core is addressed in the original 1944 version of Rule 11, which reads in its entirety, so far as is pertinent here:

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 with understanding of the nature of the charge. ²

It will be noted that this early version of the rule, like later ones, both states requirements for accepting the plea that it be voluntary and informed and provides means for ensuring that these are present. The latter are somewhat general and rudimentary, but they are real: discretion in the judge to reject the plea entirely and a duty on his part to "determine" that the rule's substantive requirements are satisfied before he accepts the plea.

And so matters rested with basic Rule 11 until 1966, when two important developments took place. The first of these occurred on July 1, when amendments significantly expanding the rule took effect. These added two substantive requirements and two procedural ones. The former were that defendant be made aware of what might happen as a result of his plea and that the court be satisfied that a factual basis existed for it. ³ The latter, again quite general but real, were that the court itself address the defendant and that it be satisfied ⁴ there was a factual basis for the plea. So expanded, the pertinent portions of the rule read as follows:

The court may refuse to accept a plea of guilty, and shall not accept such a 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 consequences of the plea. . . . The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

The second 1966 event important to the development of Rule 11 occurred on July 15 of that year, when a district court in Illinois accepted a guilty plea of William J. McCarthy to tax evasion without personally inquiring whether he understood the nature of the charge. Indeed, the transcript of their colloquy, reported in the court of appeals opinion, United States v. McCarthy, 387 F.2d 838, 839-40 (7th Cir. 1968), and in an appendix to that of the Supreme Court, McCarthy v. United States, 394 U.S. 459, 472-74, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), makes very clear that the subject was not addressed at all in the course of the plea's acceptance. Despite this circumstance, the appeals court affirmed. The Supreme Court, however, granted certiorari and reversed.

The Court first noted the fact, conceded by the government, that at arraignment no personal inquiry Whatever was made about McCarthy's understanding of the nature of the charge. Next, it categorically rejected the government's contention that such a proceeding complied with Rule 11, going on to point out specific, "conceivable" ways (and one rather likely one) in which McCarthy may have misunderstood what it took to commit the crime with which he was charged. The crux of the opinion, for our present purposes, is to be found near its end, where the Court announced that Any noncompliance with Rule 11 constitutes reversible error. In so concluding, the Court relied heavily on the need to conduct a thorough exploration and to produce a full record at the time of the arraignment so as to obviate the need for later, after-the-fact proceedings in this highly subjective area. Its crucial language is:

We thus conclude that prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the Rule's procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea. Our holding that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.

McCarthy v. United States, 394 U.S. 459, 471-72, 89 S.Ct. 1166, 1173-1174, 22 L.Ed.2d 418 (1969).

At the time of McCarthy, Rule 11 was still a relatively short and general pronouncement of little more than 100 words. Since then, however, the rule has undergone vast expansion and complication. As of its last amendment, fully effective December 1, 1975, it comprises over 1,000 words, grouped in 20 paragraphs and subparagraphs. For convenience, we set it out in the Appendix. The basic questions that we now address are when and whether a want of literal compliance with its current, more complex provisions activates the automatic reversal rule laid down in McCarthy for its simpler predecessor. We are somewhat aided in our task by the Court's recent, unanimous opinion in United States v. Timmreck, --- U.S. ----, ----, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979), where the Court, denying habeas relief for a mere technical violation ⁵ of Rule 11, noted in passing:

His only claim is of a technical violation of the rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U.S. 459 (89 S.Ct. 1166, 22 L.Ed.2d 418), but was not. And there is no basis here for allowing collateral attack "to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (67 S.Ct. 1588, 1590, 91 L.Ed. 1982). ⁶

An Analysis of the Current Rule

Like its predecessors, Rule 11 in its present form contains both substantive requirements and procedures to effectuate them. Substantively, the court must determine, before accepting the plea, the following:

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

(2) If the defendant is not represented by an attorney, that he understands he has the right to be represented by an attorney at every stage of the proceedings against him and that, if necessary, one will be appointed to represent him. Though the rule does not require it, we think careful practice will usually add, in appropriate circumstances, that the services of appointed counsel will be furnished without expense to the defendant.

(3) That he understands he has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury, with the right at that trial to have the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.

(4) That if he pleads guilty or nolo...