U.S. v. Gastelum
| Decision Date | 09 February 1994 |
| Docket Number | No. 92-10492,92-10492 |
| Citation | 16 F.3d 996 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Abelardo Elenes GASTELUM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John P. Balazs, Federal Public Defender's Office, Fresno, California, for the defendant-appellant.
Kathleen A. Servatius, Assistant United States Attorney, Fresno, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before: REINHARDT and LEAVY, Circuit Judges, and MERHIGE, * Senior District Judge.
I. INTRODUCTION
On May 13, 1992, Abelardo Elenes Gastelum pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute (21 U.S.C. Sec. 846), and one count of possession of cocaine with intent to distribute (21 U.S.C. Sec. 841(a)(1)). Although Fed.R.Crim.Pro. 11(c)(3) requires a district court to inform a defendant of certain constitutional rights "before accepting a plea of guilty," the court below did not inform Gastelum of those rights until after it had already accepted his guilty plea. The court tried to correct its mistake by subsequently informing Gastelum of his rights. However, the court never gave Gastelum the opportunity to withdraw his guilty plea and to plead anew.
We conclude the district court violated Rule 11(c)(3) by failing to inform Gastelum of his rights until after it had already accepted his guilty plea. We also conclude that the district court's error was not harmless under Rule 11(h). Accordingly, we are required to VACATE Gastelum's conviction and plea and to REMAND in order to afford him an opportunity to enter a new plea.
II. FACTS
On May 13, 1992, Abelardo Elenes Gastelum pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute (21 U.S.C. Sec. 846), and one count of possession of cocaine with intent to distribute (21 U.S.C. Sec. 841(a)(1)). 1 The district court accepted Gastelum's guilty pleas, but it did so without informing him of the constitutional rights that he would be waiving. The government reminded the court that it had not yet done so, and the court acknowledged its error:
The court attempted to correct the mistake. It then instructed Gastelum on his constitutional rights and asked him whether he understood them. 2 He answered "yes." However, the court never gave him the opportunity to withdraw his guilty plea and to plead anew. On appeal, Gastelum contends that the district court violated Fed.R.Crim.Pro. 11(c)(3) by failing to instruct him on his constitutional rights until after it had accepted his guilty plea.
III. ANALYSIS
Gastelum argues that the district court violated Fed.R.Crim.Pro. 11(c)(3) because the court did not inform him of certain constitutional rights until after it had accepted his guilty plea. Under Rule 11(c)(3), the district court is required to inform the defendant of certain constitutional rights "before accepting a plea of guilty." The rule provides in relevant part:
(c) Advice to Defendant. Before accepting a plea of guilty ..., the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
....
(3) that the defendant 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 and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination.
Fed.R.Crim.Pro. 11(c)(3) (emphasis added). 3
As noted above, the record shows that the court below did not inform Gastelum of any constitutional rights before it accepted his plea of guilty. See text supra at p. 1582. Nor did the court give Gastelum the opportunity to withdraw his guilty plea and to plead anew after he had been informed of his rights. Accordingly, the court violated Rule 11(c)(3), which expressly requires that a district inform a defendant of his constitutional rights "before accepting a plea of guilty." Id. (emphasis added).
The government contends that Gastelum's prior Rule 11 hearing was sufficient to satisfy the timing requirements of Rule 11(c)(3). We reject this argument. Gastelum's original plea had been withdrawn by the district court. See United States v. Gastelum, No. CR-F-91-188-OWW (E.D.Ca. Feb. 3, 1992) (). The earlier Rule 11 proceeding tells us nothing about whether the district court complied with Rule 11(c)(3) in the present proceeding, and it is the present proceeding we must look to exclusively in order to resolve the claims of noncompliance with Rule 11. See, e.g., United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372-73 (9th Cir.1988) ; see also United States v. Kamer, 781 F.2d 1380, 1383 (9th Cir.) ( , cert. denied, 479 U.S. 819, 107 S.Ct. 80, 93 L.Ed.2d 35 (1986). This requirement ensures that a defendant is fully aware of his rights when his plea is entered--that he is aware of them at the time they are being waived. Earlier or later knowledge is insufficient to provide that assurance. Accordingly, the government's argument fails. 4
The government argues that even if the district court erred in applying Rule 11(c)(3), the error was harmless under Fed.R.Crim.Pro. 11(h). Rule 11(h) provides:
(h) Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.
The government contends that the district court's error did not affect the defendant's "substantial rights" because the court subsequently informed the defendant of his constitutional rights. We disagree.
The harmless error clause of Rule 11 permits us to uphold guilty pleas only when there has been "a minor or technical violation of Rule 11." United States v. Graibe, 946 F.2d 1428, 1433 (9th Cir.1991). For example, in United States v. Rubalcaba, 811 F.2d 491 (9th Cir.), cert. denied, 484 U.S. 832, 108 S.Ct. 107, 98 L.Ed.2d 66 (1987), we held that an instruction telling the defendant he was waiving his right to a "trial" instead of a "jury trial" was harmless. See id. at 493.
As the advisory committee to Rule 11(h) has noted, "the kinds of Rule 11 violation which might be found to constitute harmless error upon direct appeal are fairly limited." Fed.R.Crim.Pro. 11(h), Notes of Advisory Committee to the 1983 Amendment (emphasis added). 5 We must reverse guilty pleas whenever the district court's violation of Rule 11 affects a defendant's "substantial rights." Put differently, we must reverse if the violation would "nullify or dilute important Rule 11 safeguards." See, e.g., Jaramillo-Suarez, 857 F.2d at 1371.
We hold that the district court's failure to follow the timing requirements of Rule 11(c)(3) nullified a critical Rule 11 safeguard. The district court's error goes to the very heart of what Rule 11(c)(3) was intended to prevent--an unintelligent or uninformed waiver of important constitutional rights. That waiver occurs at the moment the defendant pleads guilty. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 1712-13, 23 L.Ed.2d 274 (1969). We have previously explained that "Rule 11 is designed to ensure that the defendant is aware of his fundamental rights before he pleads guilty, not that he will become aware of those rights some time after the plea." See Graibe, 946 F.2d at 1434 (emphasis added). To put our explanation even more precisely: the rule is designed to ensure that the defendant is aware of those rights at the time he pleads guilty.
In any event, the essential requirement of Rule 11(c)(3)--that the defendant be placed in a position where his plea will be intelligent and informed--was simply not met. The district court's post hoc attempt to instruct Gastelum of his constitutional rights did not cure the violation--Gastelum had already entered his guilty plea. Thus, the violation was neither minor nor technical. Rather than attempting to correct it retroactively, the court should have given Gastelum the opportunity to withdraw his plea and to plead anew. 6
In sum, the district court's failure to follow Rule 11(c)(3) affected Gastelum's "substantial rights." The district court's error deprived him of a significant protection afforded by that rule: specifically, an explanation by the court of his constitutional rights before he entered the plea that served to waive them. Thus, the error cannot be harmless under Rule 11(h). We are required to vacate Gastelum's plea and to give him an opportunity to enter a new one. See McCarthy v. United States, 394 U.S. 459, 468-72, 89 S.Ct. 1166, 1172-74, 22 L.Ed.2d 418 (1969). 7
IV. CONCLUSION
We conclude that the district court violated Rule 11(c)(3) by failing to instruct Gastelum of his rights until after he had already pleaded guilty. Because that error affected his substantial rights, it was not harmless under Rule 11(h). Accordingly, we are required to VACATE Gastelum's conviction and plea and to REMAND so that the district court may afford him the opportunity to enter a new plea.
VACATED and REMANDED.
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