U.S. v. Dewalt

• Citation: 92 F.3d 1209,320 U.S. App. D.C. 68
• Decision Date: 20 August 1996
• Docket Number: No. 95-3103,95-3103
• Parties: UNITED STATES of America, Appellee, v. Wesley B. DEWALT, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1209

92 F.3d 1209

320 U.S.App.D.C. 68

UNITED STATES of America, Appellee, v. Wesley B. DEWALT, Appellant.

No. 95-3103.

United States Court of Appeals, District of Columbia Circuit.

Argued April 4, 1996.

Decided August 20, 1996.

Appeal from the United States District Court for the District of Columbia (No. 94cr00282-01).

Carmen D. Hernandez, Assistant Federal Public Defender, Beltsville, MD, argued the cause for appellant, with whom A.J. Kramer, Federal Public Defender, Washington, DC, was on the briefs.

Thomas C. Black, Assistant United States Attorney, Washington, DC, argued the cause for appellee. Eric H. Holder, Jr., United States Attorney, Washington, DC, John R. Fisher, San Francisco, CA, Roy W. McLeese, III, Washington, DC, William M. Sullivan, Jr., Washington, DC, and Leanne Shaltis, Assistant United States Attorneys, Los Angeles, CA, were on the brief.

Before: WALD, GINSBURG, and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge HENDERSON.

GINSBURG, Circuit Judge:

Wesley Dewalt pleaded guilty to one count of unlawfully possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d). The district court sentenced Dewalt to 33 months in prison, to be served after he completes an unrelated state sentence. Dewalt asks this court to vacate the plea on the ground that the district judge who presided at the plea hearing failed in two respects to comply with Rule 11 of the Federal Rules of Criminal Procedure. Dewalt also challenges his sentence as inconsistent with the United States Sentencing Guidelines. Because we conclude that the district court failed, in violation of Rule 11(c)(1), adequately to notify Dewalt of the nature of the charge to which he was pleading guilty, we vacate the plea without reaching Dewalt's other claims.

I. Background

At Dewalt's plea hearing the Government said it could prove the following facts: Police officers observed Dewalt carrying a blue tote bag through a bus terminal in Washington, D.C. The bag looked "a little odd" to the officers, and Dewalt appeared to them to be "having difficulty carrying [it]." The officers approached Dewalt, and asked for and received his permission to search the bag. Inside the officers found a J.C. Higgins .16 gauge bolt action shotgun with a sawed-off barrel 16 1/4 inches long, and several rounds of ammunition. A check with the National Firearms Registry revealed that neither the shotgun nor the ammunition was registered.

Based upon Dewalt's possession of this weapon and ammunition, the Government obtained a three-count indictment charging him with one violation of federal law, 26 U.S.C. § 5861(d) (unlawful possession of an unregistered firearm), and two violations of the District of Columbia Code, §§ 6-2311(a) (same) and 6-2361(3) (unlawful possession of unregistered ammunition). Dewalt pleaded guilty to the federal charge in exchange for which the Government agreed to dismiss the two D.C. charges. On appeal Dewalt argues that his guilty plea was not taken in accordance with the requirements of Rule 11.

II. Analysis

A guilty plea is not "voluntary in the sense that it constitute[s] an intelligent admission that [the defendant] committed the offense unless the defendant received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process'." Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976), quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941). "Real notice of the true nature of the charge" means notice sufficient to give the defendant "an understanding of the law in relation to the facts" of his case, McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). Specifically, a defendant's ignorance of the mens rea element of the offense with which he is charged renders his guilty plea involuntary as a matter of constitutional law. Henderson, 426 U.S. at 645-46, 96 S.Ct. at 2258 (defendant did not know that to convict him of second-degree murder state would have to prove he assaulted victim "with a design to effect [ ] death"); see also United States v. Frye, 738 F.2d 196, 199-201 (7th Cir.1984) ("the defendant was waiving her right to make the prosecution prove to a judge or jury beyond a reasonable doubt not only that she participated in the check-kiting scheme, but also that she did so with a culpable state of mind").

That the defendant's guilty plea is constitutionally infirm if he pleaded without understanding the nature of the offense charged does not imply a constitutional obligation on the part of the court to inform the defendant about the nature of the charge, Henderson, 426 U.S. at 644, 96 S.Ct. at 2257. In federal courts, however, Rule 11 prescribes a procedure "designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary ... [and] to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination." McCarthy, 394 U.S. at 465, 89 S.Ct. at 1170. Indeed, "Rule 11 is designed to eliminate any need to resort to a later [i.e., post-conviction] fact-finding proceeding in [the] highly subjective area of voluntariness." Id. at 469, 89 S.Ct. at 1172. To this end, Rule 11(c)(1) requires that the district judge who presides at the plea hearing inform the defendant of "the nature of the charge to which the plea is offered."

Neither Rule 11 nor the case law, however, specifies the minimum that a district judge must do to inform the defendant of the nature of the charge in question; rather, the plea hearing must meet a standard aptly stated by the Seventh Circuit: "[A] court must have a colloquy with the defendant that would lead a reasonable person to believe that the defendant understood the nature of the charge." Frye, 738 F.2d at 201. See also United States v. Dayton, 604 F.2d 931, 937-38 (5th Cir.1979) (en banc); United States v. Marks, 38 F.3d 1009, 1011-12 (8th Cir.1994) (where record shows defendant understood charge, court's failure to describe charge with greater specificity does not require reversal); United States v. Musa, 946 F.2d 1297, 1304 (7th Cir.1991) ("totality of the circumstances").

Dewalt pleaded guilty to a charge that he violated 26 U.S.C. § 5861(d), which makes it unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." As used in the statute, a "firearm" is defined as any weapon of a type listed at 26 U.S.C. § 5845(a). In this case, the Government charged that Dewalt possessed a firearm of the sort described in § 5845(a)(2)--namely, "a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length." More specifically, the Government charged Dewalt with having possessed a sawed-off shotgun with a barrel length of less than 18 inches.

The Government concedes that one of the elements it must prove in order to obtain a conviction under the charge is that when Dewalt possessed the weapon he knew that it had a barrel less than 18 inches long. We find that proposition dubious, see United States v. Barr, 32 F.3d 1320 (8th Cir.1994), but see United States v. Edwards, 90 F.3d 199 (7th Cir.1996); United States v. Mains, 33 F.3d 1222 (10th Cir.1994); United States v. Imes, 91 F.3d 1210 (9th Cir.1996), vacating 80 F.3d 1309, but the Government's express and unequivocal concession on this point leaves us without occasion to rule otherwise. Dewalt says that the district judge who presided at his plea hearing failed to inform him of this knowledge element and thus failed to comply with Rule 11(c)(1).

The district judge appears to have approached his solemn task with a somewhat casual attitude. He did not describe the nature of the charge to Dewalt and ascertain that Dewalt understood. Indeed, the judge did not even mention that the charge to which Dewalt was pleading concerned possession of a weapon, much less possession of a sawed-off shotgun with a barrel less than 18 inches long. Instead the judge asked Dewalt only whether he had received a copy of the indictment and whether he understood the charges contained therein; he did not squarely ask even whether Dewalt had read the indictment or whether he was relying upon counsel's (or anyone else's) representations regarding what it said. Nothing in the transcript of the plea colloquy, including the prosecutor's factual proffer, "would lead a reasonable person to believe that [Dewalt] understood" that the Government intended to (or, more to the point, was required to) prove that Dewalt knew at the time he possessed the shotgun that the barrel had been sawed-off and was less than 18 inches in length.

The Government argues that because Dewalt raised this issue for the first time after sentencing, he must show that vacating his plea is necessary to correct a "manifest injustice." The 1983 Amendments to the Federal Rules of Criminal Procedure do make it clear that once the district court has imposed sentence, the defendant's sole vehicle for obtaining relief in the district court is a motion under 28 U.S.C. § 2255. And in Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), the Supreme Court stated that in order to prevail under § 2255, a defendant must show that the plea proceeding was tainted either by "a fundamental defect which inherently results in a complete miscarriage of justice" or by "an omission inconsistent with the rudimentary demands of fair procedure."

The defendant is not appealing the denial of a § 2255 motion, however. On a direct appeal after sentencing, such as this, however, we must grant the defendant relief from the district court's failure to...