U.S. v. Monroe, No. 02-12918.

• Decision Date: 24 December 2003
• Docket Number: No. 02-12918.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Wayne MONROE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

353 F.3d 1346

UNITED STATES of America, Plaintiff-Appellee, v. David Wayne MONROE, Defendant-Appellant.

No. 02-12918.

United States Court of Appeals, Eleventh Circuit.

Filed: December 24, 2003.

COPYRIGHT MATERIAL OMITTED

Timothy Cone, Fed. Pub. Def., Fort Lauderdale, FL, Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Defendant-Appellant.

Kathleen M. Salyer, Anne R. Schultz, Lisa T. Rubio, Lisette M. Reid, Miami, FL, Diana M. Acosta, Fort Pierce, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HULL, MARCUS and STAHL^*, Circuit Judges.

HULL, Circuit Judge:

After entering a guilty plea, David Wayne Monroe appeals his conviction for possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). For the first time on appeal, Monroe contends that the district court committed plain error during his Rule 11 plea colloquy by not explicitly informing him of his right against compelled self-incrimination. After review, we affirm.

I. FACTS

On April 3, 2001, Monroe pled guilty to possession with intent to distribute an amount greater than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). At the change-of-plea hearing, the district court read the charged offense from the indictment in full. The district court confirmed that Monroe had discussed the case thoroughly with his attorney and was satisfied with his attorney's advice.

The district court explained that it had to be satisfied that Monroe in fact had committed the crime charged and that he understood the rights that he waived by entering his guilty plea. The district court informed Monroe of those rights, stating: (1) that he did not have to plead guilty and that he may maintain his plea of not guilty and proceed to trial; (2) that he had a right to have a lawyer with him at all stages of the proceedings, including trial; (3) that if he went to trial, he had a right to have a jury of twelve persons and a right for the jury to determine whether the government had proved beyond a reasonable doubt the charge against him; and (4) that at trial he had the right to call witnesses on his own behalf and the right to confront and cross-examine any government witness who testified against him.

The district court informed Monroe about the essential elements of the drug offense charged in the indictment, the maximum and minimum sentences for that crime, and the possible fines. The court explained that by entering a guilty plea, Monroe would give up his right to a jury trial, and that if the court accepted the guilty plea, there would not be a trial. The court confirmed that Monroe had discussed the plea agreement thoroughly with his attorney and that he fully understood the consequences of his guilty plea.

During the plea colloquy, the district court also determined that a factual basis existed for Monroe's guilty plea. The government proffered that it would present evidence of still photographs and tapes showing Monroe selling 37.9 grams of cocaine base for $1600 to a confidential informant ("CI"). The government proffered that its evidence would show that the CI made a telephone call to Monroe and negotiated the purchase of cocaine base, commonly known as crack cocaine. Monroe then drove to the designated location, and the CI gave him $1600 in exchange for the crack cocaine. Monroe took the money, advised the CI that he had more cocaine to sell, and departed. The cocaine base that Monroe sold to the CI was taken to, and tested by, a forensic chemist, and it was in fact 37.9 grams of cocaine base or crack cocaine. Monroe admitted that the government's proffer was accurate as to what occurred.¹

After determining that Monroe was acting voluntarily and understood his rights and the consequences of his guilty plea, the district court accepted Monroe's guilty plea. During the hearing, Monroe never objected to the plea colloquy. Subsequently, the district court sentenced Monroe to 188 months' imprisonment. During sentencing, Monroe never objected to the earlier plea colloquy. Monroe also never filed a motion to withdraw his guilty plea.

Instead, for the first time on appeal, Monroe objects to the plea colloquy and contends that the district court erred under Rule 11 by not expressly informing him of his right against compelled self-incrimination. Monroe requests that his conviction and sentence be vacated based on that Rule 11 error.

II. STANDARD OF REVIEW

When a defendant, such as Monroe, fails to object to a Rule 11 violation in the district court, this Court reviews under the plain-error analysis. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002) ("hold[ing] that a silent defendant has the burden to satisfy the plain-error" standard in Rule 11 error).

Under plain-error review, the defendant has the burden to show that "there is (1) `error' (2) that is `plain' and (3) that `affect[s] substantial rights.'" United States v. Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir.2003) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error `seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'" Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997)) (other internal quotation marks and citations omitted).² Under plain-error review, the silent defendant has the burden "to show the error plain, prejudicial, and disreputable to the judicial system." Vonn, 535 U.S. at 65, 122 S.Ct. at 1050.

Further, in the Rule 11 context, the "reviewing court may consult the whole record when considering the effect of any error on substantial rights." Vonn, 535 U.S. at 59, 122 S.Ct. at 1046.³

III. DISCUSSION

A. Existence of Plain Error

Our first inquiry is whether there was error that was plain. Monroe claims that the district court committed plain error because it did not explicitly inform him of his right against compelled self-incrimination.

At the time of Monroe's guilty plea, Rule 11(c)(1)-(4) of the Federal Rules of Criminal Procedure provided that, before accepting a guilty plea, the district court must address the defendant personally in open court and must inform him of the following matters and rights:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; and

(2) if the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant; and

(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; and

(4) that if a plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere the defendant waives the right to a trial....

Fed.R.Crim.P. 11(c)(1)-(4) (2001) (emphasis added).⁴ These rules are neither precatory nor aspirational; they are mandatory and the district court is obliged to tell the defendants in words or in substance the matters contained in Rule 11(c)(1)-(4).

The record shows that the district court expressly referenced each item in Rule 11(c)(1)-(4) except for "the right against compelled self-incrimination" in Rule 11(c)(3). Monroe argues that the court's failure to state expressly that he had "the right against compelled self-incrimination" constitutes a clear Rule 11 violation and thus plain error.

In reply, the government emphasizes that the Advisory Committee Notes to Rule 11 explain that "[t]he rule takes the position that the defendant's right not to incriminate himself is best explained in terms of his right to plead not guilty and to persist in that plea if it has already been made." Fed.R.Crim.P. 11 advisory committee's note. In other words, the Advisory Committee Notes counsel that telling the defendant that he can continue to plead not guilty is, in effect, also telling him that he is not required to admit guilt or to incriminate himself by admitting guilt. Further, the United States Supreme Court has admonished, "In the absence of a clear legislative mandate, the Advisory Committee Notes provide a reliable source of insight into the meaning of a rule, especially when, as here, the rule [Rule 11] was enacted precisely as the Advisory Committee proposed." Vonn, 535 U.S. at 64 n. 6, 122 S.Ct. at 1049 n. 6 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 165-66 n. 9, 109 S.Ct. 439, 448 n. 9, 102 L.Ed.2d 445 (1988)). In addition, this Court has stated that Rule 11 "does not say that a court's only means of compliance is to read the specified items in haec verba." United States v. Hernandez-Fraire, 208 F.3d 945, 950 (11th Cir.2000). Instead, in Rule 11 proceedings, matters of substance, not form, are controlling. See United States v. Stitzer, 785 F.2d 1506, 1513-14 (11th Cir.1986); United States v. Bell, 776 F.2d 965, 971 (11th Cir.1985).⁵

Turning to the Rule 11 colloquy with Monroe, the district court informed Monroe, "I want you to know you don't have to plead guilty. You may continue in your plea of not guilty and go...