U.S. v. Fuller, 90-10263
| Citation | 941 F.2d 993 |
| Decision Date | 13 August 1991 |
| Docket Number | No. 90-10263,90-10263 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Felicitas N. FULLER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Harold F. Parker, Agana, Guam, for defendant-appellant.
Karon V. Johnson, Agana, Guam, for plaintiff-appellee.
Appeal from the United States District Court for the District of Guam.
Before SCHROEDER, FLETCHER and FERGUSON, Circuit Judges.
Felicitas Ngalot Fuller appeals from the district court's denial of her motion to withdraw an uncounseled guilty plea. We are presented with a clear violation of the sixth amendment's guarantee of the right to counsel. It is apparent from the record below that in agreeing to the plea, Fuller was uninformed and was relying solely upon the advice of the government. We reverse and remand with instructions to the district court to permit Fuller to withdraw her guilty plea.
Appellant-defendant Felicitas Ngalot Fuller was arrested on November 8, 1989, after her husband reported to the Immigration and Naturalization Service that she had previously been married and had entered this country from the Philippines on a visa falsely stating that she was unmarried. The government detained her until November 22, when she appeared for the first time in district court and, without benefit of counsel, first waived the right to a grand jury indictment and then pled guilty to one count of use of a false visa. See 18 U.S.C. § 1546(a). The plea agreement had been drafted by the government. The entire inquiry of the court into Fuller's understanding of her right to counsel and her waiver of that right is set forth in the margin. 1
From that colloquy, it is apparent that Fuller had never consulted with counsel, that she had discussed her situation only with INS agents and the Assistant U.S. Attorney, and that she expressly relied on the "assistance" of the Assistant U.S. Attorney to understand the plea agreement. The district court did not advise her of her right to have counsel appointed for her if she could not afford counsel, nor did the district court make any attempt to explain to her how counsel could be of assistance. Nothing in the record suggests that Fuller ever made a conscious, voluntary and informed decision to represent herself. The record does make clear that she was 23 years old, had a limited command of English, had received only a sixth-grade education, and had been told by the government that if she pled guilty she would go home to the Philippines.
The district court accepted Fuller's guilty plea, sentenced her to three years of unsupervised probation and ordered her not to enter the United States again illegally. The INS then instituted deportation proceedings.
It was in connection with the deportation proceedings that Fuller received the assistance of a public defender. In April 1990, Fuller's counsel filed a section 2255 habeas corpus motion to withdraw her guilty plea, contending, we conclude correctly, that government misconduct denied her her right to counsel during the plea negotiations and that her inability to understand the charges against her and their consequences rendered her guilty plea invalid.
The district court held a hearing on the section 2255 motion. Fuller testified that the INS informed her of her rights but she did not understand them; the government's witnesses testified that she did understand them. She testified that she repeatedly asked for counsel during the course of the plea negotiations, and government witnesses disputed this as well. There was no evidence that the INS or U.S. Attorney's Office ever explained how counsel might have assisted Fuller, or that she made a decision, informed or otherwise, to represent herself. The district court denied the section 2255 motion because it considered the plea to have been valid so long as the record showed Fuller's acknowledgment that she understood her right to counsel at the time she entered the plea. This appeal followed.
Our law has long recognized that a defendant has the right to assistance of counsel in deciding whether or not to plead guilty. "A waiver of the constitutional right to the assistance of counsel is of no less moment to an accused who must decide whether to plead guilty than to an accused who stands trial." von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948) (plurality). To ensure enforcement of this constitutional right, the law has developed a number of safeguards designed to ensure that a defendant who pleads guilty without counsel does so in the exercise of free and intelligent choice. See generally, 2 W. Lafave & J. Israel, Criminal Procedure § 11.3 (1984); 1 C. Wright, Federal Practice and Procedure, Criminal 2d § 171.1 (1982). All of these safeguards were absent in this case.
Under Fed.R.Crim.P. 11(c)(2), a district court is not to accept a plea of guilty until it is satisfied that the defendant understands that she has a right to counsel at every stage of the proceedings. In this case, the district court never advised Fuller that she had a right to counsel during plea negotiations. In fact, in denying the motion to withdraw the plea, the district court stated that whether Fuller had ever been advised of her rights by the INS before she appeared in court was irrelevant.
If Fuller had wished to waive her absolute right to representation by counsel and to represent herself voluntarily, then the record should establish that she made the choice of self-representation "with eyes open." Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (quoting Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). This record does not show that Fuller ever made a knowing and intelligent choice to represent herself.
We have held that, to ensure knowing waiver of counsel, the accused must appreciate the possible consequences of mishandling the case and must be aware that a lawyer's experience and professional training may be of great benefit in assisting the defendant. See United States v. Gillings, 568 F.2d 1307, 1308-09 (9th Cir.) (the record must show "that the defendant understands the charges and the manner in which an...
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