U.S. v. Wetterlin

• Decision Date: 27 September 1978
• Docket Number: No. 77-1716,77-1716
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin C. WETTERLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 346

583 F.2d 346

UNITED STATES of America, Plaintiff-Appellee, v. Melvin C. WETTERLIN, Defendant-Appellant.

No. 77-1716.

United States Court of Appeals Seventh Circuit.

Argued April 10, 1978.

Decided Aug. 24, 1978.

Rehearing and Rehearing En Banc Denied Sept. 27, 1978.

Philip R. Melangton, Jr., Indianapolis, Ind., for defendant-appellant.

Peter F. Vaira, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS and WOOD, Circuit Judges, and SOLOMON, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant Wetterlin was indicted for his participation in a scheme which allegedly involved the unlawful taking by himself and others, ¹ including public officials and contractors, of more than two million dollars from a public works project in East Chicago. On January 31, 1977, after entering into negotiations with the government, ² Mr. Wetterlin entered pleas of guilty to Counts I and X of the indictment. In February the government sought to have the plea revoked, which the defendant resisted. The court permitted the plea to stand. ³ Subsequently the defendant obtained new counsel who challenged the procedures employed by the court at the January plea hearing, alleging that they failed to comply with the procedural requirements for accepting a guilty plea mandated by Rule 11 of the Federal Rules of Criminal Procedure, and asserted that Mr. Wetterlin was now denying his guilt. At the May 24, 1977, disposition hearing the court indicated that "serious questions" had been raised by the defendant and that it was not prepared to go forward with the sentencing. At the June 29, 1977, disposition hearing the district judge indicated that he felt he "had been had" and despite defendant's continued denials of guilt as to Counts I and X and his argument that the court had not complied with Rule 11, the court refused to either set aside the plea or to allow defendant to withdraw his plea of guilty to Counts I and X. ⁴ The court sentenced defendant under 18 U.S.C. § 4205(b)(2), to eighteen months on each count, to run concurrently, plus a $5,000 fine on Count I. Wetterlin appeals from his conviction and sentence and seeks to have his pleas of guilty vacated and to be allowed to plead again because the district court failed to comply with the requirements of Rule 11. ⁵

Specifically, defendant Wetterlin argues that the court did not comply with Rule 11(c)(1) because it failed to inform him of and determine that he understood the nature of the charge to which the pleas were offered, and did not comply with Rule 11(f) and (g) because it failed to establish on the record the factual basis for the pleas. The government in response argues that "based on all the circumstances surrounding the defendant's plea, there (is) substantial evidence that he understood the nature of the charges against him" in both Counts. The government also contends that the record of the plea hearing on January 31, 1977 reveals a sufficient factual basis for each of the pleas. In regard to the conspiracy count the government further argues that since judgment was not entered until later, under the language of Rule 11(f) the judge was free to consider the evidence he heard at the trial of defendant's alleged co-conspirators to determine whether there was a factual basis for that plea.

I. COUNT I

A. Advice Concerning the Nature of the Charge.

The Supreme Court has stated that because a plea of guilty is itself a conviction, it "shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences." Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Rule 11 has always required compliance with this mandate and now section (c), amended in 1975, sets forth with specificity not only the method to be used in giving this advice: "the court must address the defendant personally in open court and inform him of, and determine that he understands . . ."; but also the particular advice which must be given, subsection (1) specifying that the court must inform and determine that the defendant understands "the nature of the charges to which the plea is offered."

In Count I the defendant and six others were charged with a complex conspiracy involving the use of the mails in furtherance of a scheme to defraud the East Chicago, Indiana, Board of Sanitary Commissioners and the citizens of that district, as well as the use of interstate and foreign commerce with the intent to bribe public officials. The charge of "conspiracy" is not a self-explanatory legal term or so simple in meaning that it can be expected or assumed that a lay person understands it. That is particularly true of the conspiracy charge in this case, which took up 25 pages, involved 48 paragraphs and 64 overt acts. However, the district judge failed to ever mention at the time of the plea hearing the nature of the charges in Count I, even, to describe it generally as a conspiracy. The judge made no effort to explain the law of conspiracy generally or by reference to the specific charge of this case, nor did he personally inquire and determine that the defendant understood the nature of the charges. ⁶ Particularly under the circumstances of this case involving a complex conspiracy, we feel the judge should not have assumed that the defendant already knew and understood what the charges were, but rather the court should have assumed he was ignorant of the charges and thus used the hearing to inform the defendant "of some aspects of legal argot and other legal concepts that are esoteric to an accused." United States v. Coronado, 554 F.2d 166 (5th Cir. 1977). The Supreme Court in McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), noted that the purposes and goals of Rule 11 are undermined when the court resorts to "assumptions," instead of establishing a record based on defendant's responses to the court's questioning, finding that there cannot be compliance with Rule 11 where the "district judge does not personally inquire whether the defendant underst(ands) the nature of the charge." This court has also previously held that for the judge to inquire of the defendant whether he has discussed the charges with his attorney, as the judge did in the instant case, does not satisfy the McCarthy mandate or Rule 11. ⁷ Majko v. United States, 457 F.2d 790 (7th Cir. 1972). We feel that any burden the requirements of Rule 11 place on the court or the district judge is inconsequential in light of its salutary goal of insuring that guilty pleas are voluntarily and intelligently made.

We hasten to add that this colloquy between the judge and the defendant as to the nature of the charges will vary from case to case, depending on the peculiar facts of each situation, looking to both the complexity of the charges and the personal characteristics of the defendant, such as his age, education, intelligence, the alacrity of his responses, and also whether he is represented by counsel. Irizarry v. United States, 508 F.2d 960, 964 (2nd Cir. 1974). However, none of these characteristics can be a substitute for the explicit requirement of the rule that the judge personally, in open court, on the record, determine that the defendant knows and understands the nature of the charges. Having examined the record carefully, we find in the present case that the district judge failed to comply with the requirements of Rule 11(c)(1) as to Count I and accordingly, under McCarthy, that guilty plea must be vacated and the defendant allowed to plead anew.

B. The Factual Basis for Count I.

Even though we have already determined that it is necessary to vacate the guilty plea as to Count I because of the failure to comply with Rule 11(c)(1), we will also address the issue of whether the record reveals a factual basis for accepting the guilty plea on the conspiracy charge. ⁸

In the present case, after the defendant had been given the Rule 11 advice, the court moved to establish the factual basis for the plea. The district judge asked the government to state the overt acts the defendant was charged with and then added, "in order to shorten this . . . point out those parts of the indictment under Count I specifically involving this defendant." The record of the conduct about which the defendant was questioned is notable for what it fails to include or elicit from the defendant. There is no mention of or reference to the critical paragraphs in the indictment which identify the conspiracy scheme and object and spell out the means and manner by which the objects were to have been accomplished. There is no mention of his participation at the important Palmer House meeting, where the plan to hide two million dollars was discussed, and the fund created for bribing public officials; nor of his knowledge of the execution of the fraudulent performance bond; nor that he knew of the mailing of fraudulent service and rental contracts to transfer funds to Switzerland. At no point in the hearing does the government either summarize the evidence showing the conspiracy plan and agreement and the defendant concede his involvement, or does the defendant admit to conduct which would establish the critical elements of a conspiracy, i. e., "what role did this particular defendant play in the overall venture, when did he play that role, did he know the purpose and did he share in the specific criminal venture" of his alleged co-conspirators. Seiller v. United States, 544 F.2d 554 (2nd Cir. 1975). We find that the critical elements of the conspiracy charged were not admitted by the defendant and not established on the record at the January 31 plea hearing, when the court accepted the guilty plea on Count I.

The government, however, also argues that if the factual basis cannot be found on the record at the time of acceptance of the plea, this does not make a plea invalid, since, according to Rule 11(f), the...