U.S. v. Smith

• Decision Date: 17 July 1995
• Docket Number: No. 93-50770,93-50770
• Citation: 60 F.3d 595
• Parties: , 95 Cal. Daily Op. Serv. 5493, 95 Daily Journal D.A.R. 9369 UNITED STATES of America, Plaintiff-Appellee, v. James Earl SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 595

60 F.3d 595

32 Fed.R.Serv.3d 1195, 95 Cal. Daily Op. Serv. 5493,

95 Daily Journal D.A.R. 9369

UNITED STATES of America, Plaintiff-Appellee, v. James Earl SMITH, Defendant-Appellant.

No. 93-50770.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1994.

Decided July 17, 1995.

Susan Dunleavy, Los Angeles, CA, for defendant-appellant.

J. Daniel McCurrie, Asst. U.S. Atty., Santa Ana, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CANBY, LEAVY and T.G. NELSON, Circuit Judges.

CANBY, Circuit Judge:

I.

James Earl Smith appeals his conviction for bank robbery, entered upon his plea of guilty. He argues that his plea must be set aside because the district court failed to explain the nature of the charges to him in open court, as required by Fed.R.Crim.P. 11(c)(1). We vacate Smith's plea and conviction, and remand for entry of a new plea and further appropriate proceedings.

II.

Before proceeding to the merits, we address a threshold jurisdictional issue. Smith filed his notice of appeal seven days late. We remanded his case to the district court for a determination whether Smith was to be granted an extension of time on the ground that his late filing was due to excusable neglect. See Fed.R.App.P. 4(b). The district court found that Smith's neglect was excusable, rendering his appeal timely. We then directed the parties to address in their briefs the question whether the district court abused its discretion in finding excusable neglect.

We now conclude that there was no abuse of discretion. The district court found that Smith and his attorney had attempted to contact each other regarding whether to file a notice of appeal, but that it was difficult for Smith's attorney to locate Smith because Smith was moved to prisons in different states three times during the period immediately following entry of the judgment. These findings provide the requisite "reasonable basis" for the court's ruling, see United States v. Houser, 804 F.2d 565, 569 (9th Cir.1986), especially in light of our special deference to the district courts with regard to findings of excusable neglect in criminal cases. See United States v. Prairie Pharmacy, Inc., 921 F.2d 211, 213 (9th Cir.1990). Indeed, the government on remand deferred to the judgment of the district court on the question of excusable neglect, although in response to our briefing order it now challenges the district court's finding. In light of all the circumstances, we find no abuse of discretion.

III.

We proceed then to the merits of Smith's appeal. ¹ The facts are not complicated. Smith and his four codefendants robbed a Wells Fargo Bank in Upland, California. They were promptly arrested and charged with bank robbery. All five defendants entered plea agreements and pleaded guilty to one count of bank robbery in violation of 18 U.S.C. Sec. 2113(a).

During Smith's plea hearing, Smith's attorney waived the reading of the indictment. The court did not mention or explain the nature of the charges to Smith. The district court therefore did not comply in terms with Fed.R.Crim.P. 11(c), which states at its outset:

Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) the nature of the charge to which the plea is offered....

We have held that the failure to explain the nature of the charge requires the vacation of a plea of guilty. United States v. Bruce, 976 F.2d 552, 559-60 (9th Cir.1992). The fact that the defendant waives the reading of the indictment does not excuse the omission. Id. at 560. It is true that we have permitted the prosecutor, at the court's request, to explain the nature of the charges at the plea hearing, United States v. Sharp, 941 F.2d 811, 816 (9th Cir.1991), but in the present case the prosecutor made no such explanation of the charges. The deviation from the requirement of Rule 11(c), therefore, appears to be a fatal one.

The government argues, however, that other events at the plea hearing communicated to Smith the nature of the charges against him. The district court carefully complied with all of the remaining requirements of Rule 11(c). In the course of so doing, the court asked the prosecutor to establish the factual basis for the plea. The prosecutor stated, among other things:

Defendant Smith, Defendant Haggens, and Defendant Galbreath entered the bank while Defendant Dulley waited in the station wagon outside. Defendant Smith and Defendant Haggens hopped over the teller counter and took money from the tellers--took money from the teller stations. They left the bank, entered the station wagon, and made their getaway.

Smith then admitted to all of these facts. In addition, the district court asked Smith if he had discussed the case, "including the charges," thoroughly with his counsel, and whether he was satisfied with his counsel. Smith answered "yes" to both questions. Counsel later stated that he believed that Smith was making the plea "with a full understanding of the nature of the charges and the consequences of the plea."

While these recitations may satisfy other requirements of Rule 11(c), they do not convey to Smith the nature of the charges against him. Unquestionably he was informed of, and admitted, the facts underlying his plea. But an admission of the facts does not speak to the nature of the charge. "[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). In judging compliance with Rule 11, we are confined to the record of the plea proceeding. Jaramillo-Suarez, 857 F.2d 1368, 1372-73 (9th Cir.1988); 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). The record of the plea proceeding does not establish that Smith understood the charge or how it related to the facts.

The recitations by both Smith and his attorney that they had discussed the nature of the charges with each other are also insufficient to satisfy the first requirement of Rule 11(c). Neither recitation specifies the crime charged or refers to its nature. The purpose of Rule 11(c) in requiring the judge to inform the defendant in open court of the nature of the charges and other matters is to create a record complete on its face, to forestall later attacks on the plea. See Jaramillo-Suarez, 857 F.2d at 1372-73. Even if we assume (without deciding) that the judge may delegate to defense counsel the responsibility to explain the charge, it is necessary that counsel inform the defendant in open court, so that in reviewing the record we may know what was said to the defendant. Here, neither Smith nor his counsel specified the crime charged or stated its nature in open court. The vague references to discussion of "the charges" and "the nature of the charges" does not provide a complete record showing compliance with Rule 11(c).

It is true that two decisions of this court, decided under a prior version of Rule 11(c), held it sufficient for the judge to ascertain that counsel had discussed the charges with the accused. United States v. O'Donnell, 539 F.2d 1233, 1236 (9th Cir.1976); Guthrie v. United States, 517 F.2d 416, 418 (9th Cir.1975). Both cases were decided under the version of the Rule that preceded the 1974 amendments. That version required the court to address the defendant personally, and to determine that the plea was made "with understanding of the nature of the charge," but did not specify that the court in open court must inform the defendant of the nature of the charge. See Jaramillo-Suarez, 857 F.2d at 1371 n. 3. Thus in applying this earlier version of the Rule in Guthrie, we said: "We do not believe the rule was ever intended to require needless colloquy and time consuming padding of the record. Rather, as long as the judge has satisfactorily demonstrated in the record the voluntariness of an accused's plea, and there appears a basis in fact to support the plea, the judge has followed the intent of the rule." Guthrie, 517 F.2d at 418.

It was exactly this permissive approach that the 1974 amendments were intended to counteract. As the Notes of the Advisory Committee on Rules state in discussing the 1974 amendments:

Subdivision (c) prescribes the advice which the court must give to the defendant as a prerequisite to the acceptance of a plea of guilty. The former rule required that the court determine that the plea was made with "understanding of the nature of the charge and the consequences of the plea." The amendment identifies more specifically what must be explained to the defendant....

While a general assurance of counsel barely may have sufficed under the former rule, it clearly cannot under the present one. "It is incumbent upon a district judge accepting a plea to make the minor investment of time and effort necessary to set forth the meaning of the charges and to demonstrate on the record that the defendant understands." Kamer, 781 F.2d at 1385. There has been no such demonstration on the record in this case.

The government argues that the plea agreement adequately described and explained the crime. It was established at the plea hearing that Smith and his counsel had the plea agreement before them at the lectern, and Smith's counsel acknowledged that Smith and he had signed the agreement. The agreement, which is in the form of a letter to Smith's counsel, states that the charge is one count of bank robbery in violation of 18 U.S.C. Sec. 2113(a), and that to be guilty, "your client must have knowingly taken from Deborah Gunter, on April 15, 1993, by force or intimidation, money...