U.S. v. Nuckols

• Decision Date: 14 November 1979
• Docket Number: No. 79-1042,79-1042
• Citation: 606 F.2d 566
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aubrey Leroy NUCKOLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 566

606 F.2d 566

UNITED STATES of America, Plaintiff-Appellee, v. Aubrey Leroy NUCKOLS, Defendant-Appellant.

No. 79-1042.

United States Court of Appeals Fifth Circuit.

Nov. 14, 1979.

Alan M. Glassman, Dallas, Tex. (Court Appointed), for defendant-appellant.

John M. Potter, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before WISDOM, HILL and VANCE, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Aubrey L. Nuckols, appellant, pleaded guilty to one count of conspiracy to distribute marijuana. 21 U.S.C. § 841(a)(1) (1976). He was sentenced to five years imprisonment plus five years special parole. Nuckols now claims that his guilty plea was invalid, and seeks vacatur of his sentence by way of federal habeas corpus. 28 U.S.C. § 2255 (1976). As grounds therefor, Nuckols advances a variety of arguments, including (1) violation of Fed.R.Crim.P. 11(c)(3), in that the District Court did not timely advise him of his privilege against self-incrimination; (2) inducement, in that the prosecuting attorney "impliedly promised" him a lenient sentence; (3) inducement, in that the prosecuting attorney allegedly threatened to indict appellant's wife; and (4) violation of a pre-existing plea bargain. From a rejection of these claims by the District Court, Nuckols appeals.

At appellant's arraignment, the District Judge questioned him before advising him of the privilege against self-incrimination. The questions related principally to the truth of the matters alleged in the indictment, and appellant's understanding of the conspiracy concept. Thereafter, the court did advise appellant of the privilege against self-incrimination, after which appellant reaffirmed his wish to plead guilty. Appellant contends that the District Judge's delay in advising him of his Fifth Amendment privilege against self-incrimination constituted a violation of Fed.R.Crim.P. 11(c)(3). We disagree.

Fed.R.Crim.P. 11(c)(3) provides that "(b)efore accepting a plea of guilty", federal courts must advise accused persons, Inter alia, of the privilege against self-incrimination. This was unquestionably done in the instant case. However, appellant contends that if the rule "is to have any effect," we must interpret it as requiring that defendants be advised of the privilege before any colloquy with the court takes place. We decline to adopt such a rigid rule.

The purpose of Rule 11(c) is to assure that guilty pleas are understandingly made, that the decision to forego trial reflects knowledge of constitutional rights that reduce the likelihood of conviction. That purpose is fully served so long as defendants are apprised of their rights before a negotiated plea is finally entered. Appellant does not here contend that he would have pleaded not guilty had the district court earlier advised him of the privilege against self-incrimination. Rather, appellant asserts that the delay resulted only in his making incriminating statements that may have exacerbated his sentence. This contention is without merit. By pleading guilty, appellant waived his privilege against self-incrimination. See, e. g., McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Thus, even if the self-incrimination warning had preceded all other questioning, the trial judge could have required answers to the same damaging questions following acceptance of appellant's guilty plea. We hold that the trial judge complied with Fed.R.Crim.P. 11(c)(3).

As an alternative ground for vacating his sentence, appellant contends that the prosecuting attorney unlawfully induced him to plead guilty by "venturing a guess" as to the length of sentence appellant "could expect." Without denying that "implied promises" can render a guilty plea involuntary, See United States v. Pihakis, 545 F.2d 973 (5th Cir. 1977), appellant's assertions here, even if true, do not make out such a promise. See United States v. Battle, 467 F.2d 569 (5th Cir. 1972). Appellant makes the further claim, however, that the prosecuting attorney induced his guilty plea by threatening "to prosecute appellant's wife if he fought the case." The Government has not denied that it made such threats; its position, which the court below adopted, consistently has been that appellant is "precluded" from making this argument because he swore at his arraignment that his plea was not the product of threats. The Government overstates the law.

(T)he barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable. In administering the writ of habeas corpus and its § 2255 counterpart, the federal courts cannot fairly adopt a Per se rule excluding all possibility that a defendant's representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment.

Blackledge v. Allison, 431 U.S. 63, 74-75, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977) (footnotes omitted). See Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973) (per curiam); United States v. Sanderson, 595 F.2d 1021 (5th Cir. 1979) (per curiam). Appellant's prior attestation of voluntariness is not an absolute bar to his contentions here, although it imposes upon him a "heavy burden." Barnes v. United States, 579 F.2d 364 (5th Cir. 1978).

As for whether that burden has been carried in this case, we are faced with an unusual situation. In support of his assertion that the prosecuting attorney threatened his wife with indictment, appellant alleges only that such threats were made, and that his own attorney acted as a " conduit" for communicating them to him. Normally, such sparse and vague allegations would be insufficient to overcome the "presumption of verity", Allison, 431 U.S. at 74, 97 S.Ct. 1621, borne by prior sworn statements. However, as previously indicated, in this case the Government has made no effort specifically to deny that it threatened to indict appellant's wife; its sole response has been to cite an erroneous proposition of law that appellant's prior statements "preclude" his raising the issue here. While perhaps not amounting to a technical negative pregnant, See 2A J. Moore, Moore's Federal Practice § 8.24 (2d ed. 1979), the Government's response plainly does nothing to controvert the substance of appellant's claims. We therefore hold that, in the particular circumstances of this case, appellant's prior sworn statements do not foreclose his challenging collaterally the prosecuting attorney's alleged threats to indict his wife. The trial court erred in failing to dispose of this claim on the merits.

Appellant's factual allegations raise a substantial constitutional question: the extent to which prosecutors in plea bargaining may utilize threats...