United States v. Rawlins, 20455.

• Decision Date: 29 March 1971
• Docket Number: No. 20455.,20455.
• Citation: 440 F.2d 1043
• Parties: UNITED STATES of America, Appellee, v. Jerome RAWLINS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

440 F.2d 1043 (1971)

UNITED STATES of America, Appellee, v. Jerome RAWLINS, Appellant.

No. 20455.

United States Court of Appeals, Eighth Circuit.

March 29, 1971.

Patrick J. Foley, Rerat, Crill, Foley & Boursier, Minneapolis, Minn., for appellant.

Robert G. Renner, U. S. Atty., Minneapolis, Minn., for appellee.

Before MEHAFFY and ROSS, Circuit Judges, and STEPHENSON, District Judge.

STEPHENSON, District Judge.

Appellant appeals from the judgment and conviction entered upon his plea of guilty and the trial court's denial of his motion to withdraw his plea of guilty filed herein prior to the imposition of sentence.

The record essential to a determination of the issues presented on this appeal is as follows: (1) On March 13, 1970, appellant plead not guilty to all six counts of an indictment charging him with unlawfully possessing and passing counterfeit money; (2) at that time the trial court, the Honorable Earl R. Larson, United States District Judge, District of Minnesota, advised appellant that trial would commence in about two weeks; (3) on April 1, 1970, appellant appeared before Judge Larson, accompanied by his retained counsel, and asked leave of court to withdraw his plea of not guilty to Count I of the indictment and to enter a plea of guilty to the same count; (4) the Court then addressed the appellant personally and interrogated him concerning whether the plea was made voluntarily, with understanding as to the nature of the charge and the consequences of the plea;¹ (5) the Judge's interrogation of the appellant was then, upon invitation of the Court, supplemented by interrogation by the Assistant United States Attorney with some questions also being asked by appellant's counsel;² (6) as a result of the Court's personal interrogation, the appellant stated that he entered his plea of guilty to Count I "voluntarily" and "willingly"; that no threats or coercion or promises had been made to him by any representative of the Government; that he was 34 years of age and had two years of college; that he understood the nature of the charge, and in his own words: "I feel I am charged with possession of counterfeit notes, your Honor;" that he understood the maximum penalty was a fine of $5,000 or 15 years imprisonment; (7) in response to inquiry by the Assistant United States Attorney the appellant affirmed in more detail that he possessed the counterfeit notes on the approximate date charged in the indictment; that he intended to purchase money orders with them; that he understood: (a) his rights to trial by jury; (b) the burden of proof on the Government to prove each and every element of the crime; (c) the presumption of innocence; (d) his rights to take the stand or not to; and (e) his rights to produce evidence and cross examine; (8) thereupon, the Court directed that the plea of guilty to Count I be entered and deferred sentencing pending a presentence investigation and report and continued appellant's bond previously posted; (9) on May 26, 1970, at the time fixed for sentencing, appellant through his counsel filed written motion to withdraw his plea of guilty and to enter a plea of not guilty and stand trial thereon; (10) in an affidavit in support of said motion, appellant stated that his motion to withdraw his plea of guilty was based on the following facts:

"1. That he was unaware that the instruments, Twenty-dollar Federal Reserve Notes, were in fact forged and counterfeit.

2. That he was impressed by Secret Service Agents with the fact that any information given to them would be kept in confidence and would in fact not be used against him."

(11) on May 27, 1970, the Court conducted a hearing on appellant's motion to withdraw his plea of guilty. Appellant commenced the hearing by announcing through counsel that he would stand on the affidavit submitted in support of the motion. The Government then called the two Secret Service Agents who had interrogated appellant before and after the indictment was filed herein. The latter interview took place after appellant entered his plea of guilty and was conducted in the presence of appellant's counsel. Appellant then testified in rebuttal; (12) on May 27, 1970, Judge Larson announced his findings "* * * I find that the plea of guilty was voluntarily, advisedly, intentionally and understandingly entered, and I will therefore deny the motion to withdraw the plea of guilty to Count I of the indictment." The Court then proceeded with sentencing and imposed a six-year indeterminate sentence under the provisions of Title 18 § 4208(a) (2); (13) on June 5, 1970, appellant filed notice of appeal setting out the grounds of appeal as follows:

"1. That evidence was obtained by trick or artifice by Government Agents and that defendant was informed, by Government Agents, that it would not be used against him.

2. That defendant was advised to and did in fact, plead guilty upon advice of counsel, who was not informed as to how evidence was obtained until after the plea was entered."

(14) on June 16, 1970, the trial court denied appellant's motion for reduction of bond pending appeal and among other things noted that "the appeal is frivolous."

Appellant specifies one error in his brief as follows: "The Trial Court erred in allowing interrogation with respect to the truth of the appellant's confession." (Said interrogation took place during the hearing on defendant's motion to withdraw his plea of guilty). However, a fair reading of his entire brief indicates appellant's principal complaint on this appeal is that the trial court abused its discretion in refusing to allow appellant to withdraw his plea of guilty before sentencing despite the fact that he "disavowed the volition incident to the oral confession." In substance, appellant claims in this appeal that Government agents obtained information (an oral confession) from him under the guise and promise that the same would be kept in confidence and not be used against him.

In considering appellant's claims we observe that a defendant has no absolute right to withdraw a plea of guilty before sentence. Allowance of the same is within the sound discretion of the trial court which will be reversed only upon a finding of an abuse of that discretion. Pitt v. United States, 378 F.2d 608, 611 (8th Cir. 1967); Hughes v. United States, 371 F.2d 694 (8th Cir. 1967); Smith v. United States, 359 F.2d 481, 483 (8th Cir. 1966).

Before accepting a guilty plea the trial court must comply with Rule 11 of the Federal Rules of Criminal Procedure as follows: "* * * The court may refuse to accept a plea of guilty, and shall not accept such plea * * * without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. * * * The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea." McCarthy v. United States, 394 U.S. 459, 463-464, 89 S.Ct. 1166, 1169, 22 L.Ed.2d 418 makes it abundantly clear "that a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11."³ The record establishes that the District Judge complied with Rule 11. He addressed the defendant personally and made the requisite inquiries. In addition, the Court invited the Assistant United States Attorney to make supplemental inquiry of the defendant. The latter was more detailed in some areas and, when added to the Judge's personal inquiry, it fully developed a record that demonstrates appellant's plea of guilty was freely and intelligently made with full knowledge of the consequences thereof and that there was a basis for the plea.⁴

Appellant's complaint that a Secret Service Agent tricked him into giving information under the guise that the same was confidential and would not be used against him and that appellant's counsel advised appellant to plead guilty without being informed as to how such evidence was obtained, is without merit. We have already found that appellant's guilty plea was accepted by the trial court after full compliance with Rule 11, Federal Rules of Criminal Procedure. Once it has been established that Rule 11 has been fully complied with the occasion for setting aside a guilty plea should seldom arise. This record demonstrates the soundness of Rule 11. In this instance, since judgment had not been imposed, the Court properly granted a hearing on defendant's motion to withdraw his plea of guilty. Despite compliance with Rule 11, there remained a slight possibility that the defendant may not have understood all of the essential elements of the crime. Compare McCarthy, supra, Fn. 20 at 467, 89 S.Ct. 1166. However, the post-plea hearing demonstrates the frivolity of appellant's claim in this regard.

Appellant's further claim that the Court erred in permitting counsel for the Government to cross-examine appellant regarding the falsity of his affidavit is frivolous. And his claim that he was tricked into orally admitting certain matters and that the same prompted his plea of guilty is equally devoid of merit and requires no discussion.

In summary we find: (1) that the trial court complied with Rule 11 in this case; (2) that supplemental inquiry of the defendant by counsel on the record before the plea is accepted by the Court, although not a substitute for the duties of personal interrogation required of the Court by Rule 11, is helpful in developing a record that will demonstrate that defendant's plea of guilty is an informed plea, voluntarily given, with full knowledge of the consequences, and that there exists a factual basis for the plea;⁵ (3) that the evidence presented at the hearing on appellant's motion to withdraw his guilty plea when considered in light of the record made at the time appellant entered his guilty plea demonstrates the frivolity of appellant's claims; ...