U.S. v. Journet, 300

• Decision Date: 01 November 1976
• Docket Number: No. 300,D,300
• Parties: UNITED STATES of America, Appellee, v. Michael JOURNET, Defendant-Appellant. ocket 76-1285.
• Court: U.S. Court of Appeals — Second Circuit

Page 633

544 F.2d 633

UNITED STATES of America, Appellee, v. Michael JOURNET, Defendant-Appellant.

No. 300, Docket 76-1285.

United States Court of Appeals Second Circuit.

Argued Oct. 8, 1976.

Decided Nov. 1, 1976.

David Gottlieb, New York City (William J. Gallagher, Jonathan J. Silbermann, The

Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant

Edward R. Korman, Chief Asst. U. S. Atty., Brooklyn, N.Y. (David G. Trager, U. S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before KAUFMAN, Chief Judge, MANSFIELD and MESKILL, Circuit Judges.

MANSFIELD, Circuit Judge:

This appeal raises a question of importance to district judges accepting guilty pleas, i. e., whether a guilty plea must be invalidated where the district judge, in ascertaining whether such a plea is voluntarily and intelligently made, advises the defendant of most of the constitutional rights referred to in the recently amended version of Rule 11(c), F.R.Cr.P., ¹ effective December 1, 1975, but fails explicitly to inform him of certain other constitutional rights and other matters enumerated in that Rule. We hold that unless the defendant is specifically informed of each and every element enumerated in Rule 11 the plea must be vacated.

On April 5, 1976, appellant Michael Journet, who was charged in Count One of an indictment filed against him in the Eastern District of New York with conspiracy to distribute narcotics and in Count Two with the distribution of narcotics in violation of 21 U.S.C. § 841(a)(1), offered through his Legal Aid counsel, to withdraw his plea of not guilty to Count Two and to plead guilty to that count. Thereupon Judge Mark A. Costantino, after explaining that Count Two charged appellant with a felony, obtained from him in open court an express waiver of his right to a jury trial, of his rights to confront witnesses against him and to have his attorney cross-examine them, and of his right "under the law as to the presumption of innocence." The judge then secured from the defendant an assurance that the plea was entered voluntarily and not as the result of any promises or duress and a statement from the defendant that he had given a half-ounce of cocaine to one Johnny Mustache, knowing this to be unlawful, which established a factual basis for the guilty plea. Finally the court advised the defendant that upon his guilty plea he could be sentenced to a maximum penalty of "fifteen . . . years and/or $25,000 fine, with a minimum of three years special parole term . . . if you receive a jail sentence." The guilty plea was thereupon accepted.

On June 4, 1976, appellant was sentenced by Judge Costantino to an eight-year prison term to be followed by a special parole term of seven years. From this judgment Journet appeals, claiming that the guilty plea was invalid because the judge, before accepting it, failed explicitly to inform him of the following rights and matters enumerated in new Rule 11, effective on December 1, 1975: (1) his right not to be compelled to incriminate himself; (2) that if he pleaded guilty there would be no further trial of any kind; (3) that his answers in response The government, relying upon our recent decision in Kloner v. United States, 535 F.2d 730 (2d Cir. 1976), argues that when viewed substantively and in the light of all the surrounding circumstances the record reveals that the guilty plea was a voluntary and knowing one, and that since the court's failure to comply with some of the detailed requirements of Rule 11 did not deprive the defendant of any substantial rights, the guilty plea should stand.

to the court's questions about the offense could be used against him in a prosecution for perjury or the making of false statements; and (4) that the maximum sentence could include, in addition to 15 years imprisonment, a life-time parole.

DISCUSSION

In Kloner v. United States, supra, we summarized the general principles governing compliance with Rule 11 as it stood prior to the amended version which went into effect December 1, 1975:

" 'Since a guilty plea is the equivalent of a conviction and involves the defendant's waiver of precious constitutional rights,' Saddler v. United States, 531 F.2d 83 (2d Cir. 1976), citing Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009, 1012 (1927); see also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the Supreme Court has emphasized that there must be strict adherence to its requirements in the acceptance of a guilty plea. Accordingly, in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), exercising its supervisory power over the federal courts, the Court determined that the sanction for non-compliance would thereafter be to set aside the plea and to offer the defendant the opportunity to plead anew to the charge." Kloner v. United States, 535 F.2d at 733.

In that case we held that the language of the old rule, which was general in nature, did not necessarily require the court to enumerate each and every right waived by the pleader as long as the record, viewed in the totality of the surrounding circumstances, demonstrated that the defendant was "sufficiently aware of the consequences of and alternatives to his guilty plea to render his plea a voluntary and intelligent one." However, we warned that our holding "should not be construed as an endorsement of the procedure followed by the district court in this case," and strongly urged that the district court adopt a set of instructions outlining the specific rights to be waived in each case as a means of insuring compliance with the rule.

It now appears that Congress, by its recent amendment of Rule 11, has decided to mandate just such a course in lieu of requiring appellate courts to interpret the old rule's general guidelines on a case-by-case basis. Subsection (c) of the new Rule 11 provides that before accepting a guilty plea the court "must" personally inform the defendant in open court of specifically enumerated rights and other matters pertaining to the question of whether the plea is a voluntary and knowing one. It is difficult to conceive of clearer language.

That Congress' purpose was to codify the advice required to be given by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), is further evidenced by the legislative history of the amendment. The Advisory Committee Notes state that subsection (c), "prescribes the advice which the court must give to the defendant as a prerequisite to the acceptance of a plea . . . . The amendment identifies more specifically what must be explained to the defendant." (Emphasis added). The Congressional Conference Committee also emphasized that this subsection, "enumerates certain things that a judge must tell a defendant before the judge can accept the defendant's plea." House Conf.Rep. No. 94-414, 94th Cong., 1st Sess. 9 (1975) (emphasis added). Congress' intent is further evidenced by its refusal to accept a more general version of Rule 11(c)(3) proposed by the Advisory Committee on Rules of Criminal Procedure, ² which had suggested that the district court "may want to explain some of the aspects of trial such as the right to confront witnesses, to subpoena witnesses, to testify in his own behalf, or, if he chooses, not to testify" (emphasis added) but that the scope of the due process warning "required, in this respect, to conform to Boykin is left to future case-law development," 62 F.R.D. at 280. This suggested permissive approach was rejected in favor of a mandatory one.

Congress thus adopted a standard, practical solution to the problems that had been frequently encountered by Courts of Appeals in determining whether there has been compliance by the district courts with the old formulation of the rule. Now a specific procedure is mandated rather than...