U.S. v. Fountain

• Decision Date: 30 December 1985
• Docket Number: 84-3053,Nos. 84-3054,s. 84-3054
• Citation: 777 F.2d 351
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott A. FOUNTAIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Matthew D. GRANGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 351

777 F.2d 351

UNITED STATES of America, Plaintiff-Appellee, v. Scott A. FOUNTAIN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Matthew D. GRANGER, Defendant-Appellant.

Nos. 84-3054, 84-3053.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 13, 1985.

Decided Nov. 13, 1985.

Rehearing and Rehearing En Banc Denied Dec. 30, 1985.

Adrian Cohen, Milwaukee, Wis., for Matthew D. Granger.

Thomas L. Shriner and John R. Hovel, Milwaukee, Wis., for Scott A. Fountain.

John R. Byrnes, U.S. Atty., Madison, Wis., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, BAUER and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Defendants-appellants Granger and Fountain appeal from the lower court's refusal to allow the withdrawal of their guilty pleas to the charge of murder of a federal prison guard. Defendant Fountain alone also challenges the sufficiency of the factual basis of guilt established at his plea hearing held pursuant to Federal Rule of Criminal Procedure 11. While we conclude that the trial court did not abuse its discretion in denying either defendant's withdrawal of his plea, we are not satisfied that Fountain's plea hearing adequately complied with Rule 11(f). Accordingly, we affirm Granger's conviction but must vacate Fountain's plea and remand for further proceedings.

I.

At all times relevant to this case all the defendants were inmates at the Federal Correctional Institution at Oxford, Wisconsin. On April 20, 1984 a grand jury returned an indictment charging Granger, Fountain, and a third inmate, who was subsequently acquitted after a jury trial, with the murder of a federal correctional officer in violation of 18 U.S.C. Secs. 1111 and 1114 and conspiracy to murder in violation of the aforementioned sections. On the eve of trial Fountain and Granger pled guilty to the murder count and the conspiracy count was dismissed with prejudice.

The factual basis of the government's case at the time of the plea hearing can be constructed from the transcript, the briefs on appeal, and the indictment. In the early morning of January 29, 1984 correctional officer Boyd Spikerman was found lying in a puddle of blood by a fellow guard. The only other person within proximity of the body was the defendant Granger. Granger told the guard that he "heard voices and didn't mean to do it." At this time the guard also observed that Granger's hands were cut and covered with blood. An autopsy revealed that death was caused by multiple stab wounds and repeated blows to the head presumably inflicted by the fire extinguisher that was found laying across the victim's body. A fingerprint found on the fire extinguisher was discovered to be that of Granger.

At the plea hearing the government also claimed to have other inmates who would testify that Granger and Fountain had stated that they planned to kill a correctional officer and that after the murder Granger and Fountain discussed with them their involvement. The only other apparent link between Fountain and the murder are the claims in the indictment that Fountain acquired the knife used in the murder one day prior to the event and that he, along with the third defendant, had served as "lookouts" for Granger. At no point during the course of the proceedings, particularly at the plea hearing, did the government ever expand upon or claim to have evidence in support of these allegations against Fountain.

Two days prior to the trial date the defendants reached a plea agreement with the government and appeared before the trial court for a hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. At the hearing the United States attorney stated the factual basis of the guilty plea of Granger as it was described above. Granger admitted to all the facts except the allegation that he had made any statements prior to the murder. The district judge questioned Granger in detail about his appreciation of the crime he was being charged with and the consequences of his guilty plea.

The judge then turned her attention to Fountain. The court incorporated by reference the factual basis that was used to support Granger's plea. The government added that it had the evidence of prior and subsequent incriminating statements, although Fountain, like Granger, refused to acknowledge the making of any statements prior to the murder. No mention was made of the alleged procurement of the murder weapon or the alleged participation as a lookout. Fountain was then interrogated by the court pursuant to Rule 11. In reference to his role in the crime, Fountain was questioned as follows:

BY THE COURT:

Q Mr. Fountain, I am going to ask you as I did with Mr. Granger to tell me in your own words what you understand the Government is saying that you did in count 1?

A The Government is saying that on the night or the early morning of January 29, 1984, that I murdered Officer Boyd Spikerman with malice of forethought. He was at that time employed as a federal employee at the institution at Oxford and that the weapons that I used were a fire extinguisher and a knife.

Q Do you understand that the government says that you did that knowingly--that means you knew what you were doing--they say you did it intentionally, on purpose, and that you did it against the law?

A Yes, your Honor.

Q And, you understand that the Government says that at the time he was killed Officer Spikerman was engaged in the performance of his official duties at the Federal Correctional Institution at Oxford?

A Yes.

* * *

THE COURT: Mr. Byrnes [the assistant United States attorney], what would you be prepared to prove if the case went to trial?

MR. BYRNES: Would you like me to repeat the items I stated for Mr. Granger?

THE COURT: No, that's not necessary. I will assume you can prove what you stated earlier with the exceptions of statements Mr. Granger allegedly made on the 28th.

MR. KERNATS [Fountain's trial counsel]: Excuse me, so that it is clear--the factual basis you established for Mr. Granger then will be used to establish the factual basis for Mr. Fountain in this hearing as well?

THE COURT: That's right.

MR. KERNATS: But we are just not going to repeat those matters at this time?

THE COURT: That's it.

MR. FOUNTAIN: The same with the exception that I would contest the--

THE COURT: I am ignoring that aspect that relates to the testimony that Mr. Granger made on the 28th.

MR. FOUNTAIN: Anything I may have made previous on the 28th?

THE COURT: Right.

MR. BYRNES: I would say in that regard in addition to the other statements I made that we would also offer the testimony of some inmate witnesses to the effect that Mr. Fountain made statements to them after the time that he was apprehended in connection with this crime acknowledging his involvement in it.

THE COURT: Mr. Kernats, from what you know about this matter would you dispute this last remark that Mr. Byrnes made or anything in that statement he made earlier in connection with Mr. Granger?

MR. KERNATS: No, your Honor.

THE COURT: Mr. Fountain, would you dispute anything that Mr. Byrnes said?

MR. FOUNTAIN: No, your Honor.

THE COURT: All right. Then upon the basis of this discussion with the defendant and with his attorney and upon the basis of the entire record in the case, I find and conclude that the defendant has entered a plea of guilty knowingly, understandingly, and voluntarily after an adequate opportunity to consult with his attorney, with an understanding of the nature of the charge, and with an understanding of the consequences of the plea of guilty. I am satisfied there is a factual basis for the plea.

Accordingly I find and adjudge the defendant guilty of the charge contained in count 1 of the indictment.

Immediately prior to the sentencing hearing both defendants filed identical motions to withdraw their pleas of guilty. The pro se motions stated in a series of conclusory sentences that the defendants were not guilty, that they were suffering duress due to retaliatory treatment by correctional officials, that appointed counsel did not provide them with an adequate defense, and that they did not understand the charges against them. The district judge did allow Granger to expand on his motion, and he discussed at length his problems with drug treatment and his separation from counsel. The court stated that it was satisfied that the guilty pleas were made intelligently, voluntarily, and knowingly so that no evidentiary hearing was necessary.

On appeal defendant Fountain argues that his plea of guilty must be set aside because the trial judge failed to elucidate the factual background supporting guilt as required by Rule 11(f) of the Federal Rules of Criminal Procedure. Alternatively, Fountain, joined by Granger with respect to this issue only, asks the court to remand for an evidentiary hearing on their motions to withdraw their pleas.

II.

Rule 11 is designed to provide protection for the rights of defendants who for whatever motivation decide to plead guilty. While guilty pleas serve a vital role in the judicial processing of criminal defendants, it must be remembered that those persons who plea are sacrificing, albeit voluntarily, important constitutional protections. See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969) (defendant who pleas waives "his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers"). Because of the gravity of what is at stake it is essential that the presiding judge engage the accused in a colloquy sufficient to (1) satisfy the court that the plea was voluntary, both in the sense that the defendant was not coerced and that he comprehended the nature of the charges against him, and (2) establish a complete record for appeal. McCarthy at 465, 89 S.Ct. at 1170. "Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least enable more expeditious...