United States v. Brown, No. 23022.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: PER CURIAM
• Citation: 428 F.2d 1100
• Parties: UNITED STATES of America v. Howard D. BROWN, Appellant.
• Decision Date: 03 June 1970
• Docket Number: No. 23022.

428 F.2d 1100 (1970)

UNITED STATES of America
v.
Howard D. BROWN, Appellant.

No. 23022.

United States Court of Appeals, District of Columbia Circuit.

Argued March 6, 1970.

Decided June 3, 1970.

428 F.2d 1101

Mr. John M. Cleary, Boston, Mass. (appointed by this court), for appellant.

Mr. James L. Lyons, Asst. U.S. Atty., with whom Messrs. Thomas A. Flannery, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee. Mr. Roger E. Zuckerman, Asst. U.S. Atty., also entered an appearance for appellee.

Before FAHY, Senior Circuit Judge, and WRIGHT and ROBB, Circuit Judges.

PER CURIAM.

Appellant was convicted of forgery, uttering and interstate transportation of forged securities; he was sentenced to terms of imprisonment of ten years on each count, the sentences to run concurrently. His primary point on appeal is that the trial judge accepted his counsel's stipulation that he had committed the acts charged in the indictment

428 F.2d 1102

"without first addressing the defendant personally" as required by Rule 11, Fed.R.Crim.P., before accepting a plea of guilty. We hold that Rule 11 is inapplicable in this case since a plea of guilty is not involved. We find, however, that the considerations which support the requirement of Rule 11 that the trial judge address the defendant personally are present in the limited circumstances of this case, those limited circumstances being the mental condition of the defendant and the stipulation of counsel admitting all of the acts charged. We therefore hold that, in the limited circumstances of this case, the trial judge here should have addressed the defendant personally before accepting the stipulation. While we apply our ruling in this case, it will not be applied otherwise except in cases tried after this date

On March 18, 1970, this court remanded the case to the District Court to determine whether the waiver of appellant's right to a trial on all issues except insanity "was in fact made by the appellant. Compare Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed. 2d 314 (1966); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)." The three cases cited in this court's remand order make clear that a plea of guilty in a criminal case is a waiver of three important constitutional rights: the Fifth Amendment right against self-incrimination, the right to trial by jury, and the right to confront one's accusers. These cases also make clear that the trial court, state or federal, has the responsibility to make certain that any such waiver complies with the requirement of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), as "an intentional relinquishment or abandonment of a known right or privilege."

As to federal prosecutions, Rule 11, Fed.R.Crim.P., sets up a prophylactic procedure to insure that the trial judge personally undertakes his responsibility with respect to the waiver of constitutional rights in accepting a plea of guilty. He must address the defendant personally to determine that the plea "is made voluntarily with understanding of the nature of the charge and the consequences of the plea."¹ Prior to 1966 some judges were not addressing the defendant personally, and Rule 11 was amended to require them to do so. And where this part of the Rule is not complied with, the conviction must be reversed. McCarthy v. United States, supra. The Court explained the reason for its ruling:

"* * * Our holding that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking."

394 U.S. at 472, 89 S.Ct. at 1174.

This appeal does not involve a plea of guilty as such. It does involve a stipulation offered by counsel and

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accepted by the court that appellant committed all the acts charged in the indictment. But for the reservation of the mental issue this was a plea of guilty. The stipulation made out a prima facie case for the Government and shifted the burden to the defendant to produce "some evidence" to overcome the presumption of sanity and thus raise the insanity issue.² See McDonald v. United States, 114 U.S.App.D.C. 120, 122, 312 F.2d 847, 849 (1962) (en banc). While Rule 11 is not applicable here, no reason appears why the Rule 11 procedure of addressing the defendant personally should not be required. Most, if not all, of the constitutional rights Rule 11 seeks to protect were waived by the stipulation and the failure of the trial judge³ to determine that the stipulation was "an intentional relinquishment or abandonment of a known right" by appellant as distinguished from his counsel left the record subject to attack with motions under 28 U.S.C. § 2255 (1964). McCarthy v. United States, supra, 394 U.S. at 492, 89 S.Ct. 1166

In fact, in this case the need for judicial intervention was greater than in the normal plea of guilty because here the court had before it a defendant admittedly...