United States v. Brown

• Decision Date: 03 June 1970
• Docket Number: No. 23022.,23022.
• Citation: 428 F.2d 1100
• Parties: UNITED STATES of America v. Howard D. BROWN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

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.

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 "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 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.²See 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 suffering from a mental disorder. Both appellant's and the Government's psychiatrists so testified, but only appellant's psychiatric witness stated that his acts were a product of his disease. Thus when, as here, defense counsel is placed in the position of stipulating, in one breath, that the defendant freely admits committing all the acts charged, and then in the same breath contending that the same defendant committed those same acts while suffering from a mental disease, a searching judicial inquiry is required to determine whether the defendant's waiver of trial by jury on acts charged in the indictment was voluntary and with understanding of its consequences. We hold that where a defendant in a criminal case seeks to waive trial on all issues except insanity the trial judge should address the defendant personally in determining whether the waiver is made voluntarily with understanding of the consequences of his act.⁴

Reversed.

ROBB, Circuit Judge (dissenting).

Counsel for the appellant argued in this court that the district judge committed error by accepting the stipulation of the appellant's counsel at trial, that the appellant had committed the acts charged in the indictment, without first addressing the appellant personally. Over my dissent this court remanded the case to the district court to determine whether the "appellant himself, as distinguished from his counsel, waived his right to a trial on all issues" except the issue of insanity. In response to that remand District Judge Gesell has filed a memorandum in which he states in part:

"Defendant was indicted for forgery and uttering and found guilty by a jury. At the trial, defendant\'s counsel relied solely on the defense of insanity. The facts on the merits were stipulated after defense counsel had advised the jury on opening that the defendant admitted the facts. It has apparently escaped the attention of the Court of Appeals that when a written stipulation covering the facts was offered the following appears in the transcript:

"`THE COURT. The stipulation is satisfactory to the defendant, is it not?

"`TRIAL COUNSEL. Yes, Your Honor, we have agreed to it.\'

"Counsel for defendant, having thus twice stated in open court in the presence of the defendant that the defendant conceded the facts, there was not then and there cannot now be any question in this Court\'s mind but that the statements of counsel were honestly made and correct. Daily a United States Distict Court proceeds on the assumption, proven reliable by long experience, that representations made in open court by trial counsel as officers of the Court are candid, truthful and may be accepted at face value. Were it otherwise, trials would bog down and the simplest issue of agreed fact could become the subject of repeated colloquy out of the jury\'s presence. It would make some trials a complete farce.

"There was no need for the Court, given the assurances that this Court received, to interrogate the defendant to find out whether or not his counsel was making a truthful statement to the Court.

...