United States v. Sherman

• Decision Date: 01 February 1973
• Docket Number: No. 71-2120.,71-2120.
• Citation: 474 F.2d 303
• Parties: UNITED STATES of America, Respondent-Appellee, v. John William SHERMAN, Petitioner-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

474 F.2d 303 (1973)

UNITED STATES of America, Respondent-Appellee, v. John William SHERMAN, Petitioner-Appellant.

No. 71-2120.

United States Court of Appeals, Ninth Circuit.

February 1, 1973.

John William Sherman, in pro. per.

Sidney I. Lezak, U. S. Atty., Vinita Jo Neal, Asst. U. S. Atty., Portland, Or., for respondent-appellee.

Before DUNIWAY, HUFSTEDLER and CHOY, Circuit Judges.

DUNIWAY, Circuit Judge:

On September 3, 1969 Sherman pled guilty to a charge of violating the Dyer Act, 18 U.S.C. § 2312. Later he moved to vacate his conviction under 28 U.S.C. § 2255, alleging that the record of the proceedings at the taking of his plea did not show that he was advised of his right against compulsory self-incrimination. This, he says, is contrary to the decision in Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and Rule 11, F.R.Crim.P. as interpreted in McCarthy v. United States, 1969, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418. The district court denied the motion, and Sherman appealed.

On March 2, 1972 we filed an opinion reversing the denial of Sherman's motion. On the government's petition for rehearing, we vacated that opinion. Having now concluded that Sherman's guilty plea was properly taken, we affirm the order of the district court.

The record does not show that Sherman was advised, eo nomine, of his right against compulsory self-incrimination. However, no decision of the Supreme Court imposes such a requirement. In McCarthy, the Court held only that district courts must adhere strictly to the provisions of Rule 11, and that failure to do so requires that the defendant be afforded an opportunity to replead. 394 U.S. at 466, 472, 89 S.Ct. 1166. Neither the Rule nor the opinion state that the trial judge must specifically inform the defendant of his Fifth Amendment rights. In Boykin, the appellant had been convicted on a guilty plea in a proceeding of which there was no record. The Court held that such a plea violates due process because a guilty plea waives several constitutional rights, and prior cases had required that the waiver of similar rights be spread upon the record. It therefore seemed anomalous to allow a guilty plea to be taken with no formal inquiry as to its voluntariness. The Court's precise holding was "that there was reversible error `because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.'" 395 U.S. at 244, 89 S.Ct. at 1713.

In short, neither McCarthy nor Boykin requires that a defendant be specifically advised of all of his constitutional rights by the trial court if his plea is to be valid. Nor do we think that due process or Rule 11 impose such a requirement. A criminal defendant possesses a great number of rights which he is foreclosed from asserting by the entry of a guilty plea, see United States v. Frontero, 5 Cir., 1971, 452 F. 2d 406, 415. Requiring a specific waiver of every one would only sow the seeds for later collateral attack. See Boykin v. Alabama, supra, 395 U.S. at 244, 89 S.Ct. 1709.

The three rights emphasized by the Supreme Court in the cited cases —the right against self-incrimination, the right to a jury trial, and the right to confront witnesses—do provide guidance for district courts in determining whether a guilty plea is knowingly and intelligently entered. Among other things,¹ the court must ascertain that the defendant knows that he is not required to plead guilty, and that if he chooses not to do so the government will be put to its proof before a jury, at which time he may cross-examine witnesses and put on a defense. While this inquiry must be fully developed on the record, it need not assume any predetermined, ritualistic form. See McCarthy v. United States, supra, 394 U.S. 465-466 n. 20, 89 S.Ct. 1166; United States v. Tabory, 4 Cir., 1972, 462 F.2d 352, 353; United States v. Frontero, supra, 452 F.2d at 413-414; United States v. Berlin, 7 Cir., 1971, 437 F.2d 901.

A plea of guilty is the most complete form of self-incrimination. By the plea, the defendant admits that he is guilty of the offense charged. Indeed, Rule 11 requires that the court be "satisfied that there is a factual basis for the plea." It is therefore essential that the defendant know that he has a right not to plead guilty, and that the record show that he knows it. Here, the record makes it perfectly clear that Sherman knew that he had that right. We see no need to go farther and attach to such knowledge the talismanic phrase "right not to incriminate himself." He certainly knew that he had a right not to plead guilty, and that by pleading guilty he was incriminating himself.

The district court had previously entered a plea of not guilty on Sherman's behalf, and he petitioned to withdraw that plea after extensive consultations with his counsel, with whom he was "entirely" satisfied. In his written and signed petition, Sherman recited:

"(5) I understand that I may plead `Not Guilty\' to any offense charged against me. If I choose to plead `Not Guilty\' the Constitution guarantees me (a) the right to a speedy and public trial by jury, (b) the right to see and hear all witnesses called to testify against me, (c) the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor, and (d) the right to have the assistance of a lawyer at all stages of the proceedings.

. . . . . .

(10) I know that the Court will not permit anyone to plead `GUILTY\' who claims to be innocent and, with that in mind and because I am `GUILTY\' and make no claim of innocence, I wish to plead `GUILTY\' and respectfully request the Court to accept my plea of `GUILTY\' and to have the Clerk enter my plea of `GUILTY\' as follows:

Guilty as charged in the indictment.

(11) I OFFER MY PLEA OF `GUILTY\' FREELY AND VOLUNTARILY AND OF MY OWN ACCORD AND WITH FULL UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE INDICTMENT AND IN THIS PETITION AND IN THE CERTIFICATE OF MY LAWYER WHICH IS ATTACHED TO THIS PETITION."

In the certificate referred to, his lawyer stated:

"(6) In my opinion the plea of `GUILTY\' as offered by the defendant in paragraph (10) of the petition is voluntarily and understandingly made. I recommend that the Court accept the plea of `GUILTY.\'"

Sherman told the trial judge that he had read the petition, had gone over it with his attorney, and that the facts stated in the petition were true.² In open court, in response to several questions by the court, Sherman stated that no threats had been made to him, that he knew the penalty for violation of the Dyer Act, and that he did not expect leniency. He freely admitted that he was guilty, and discussed the details of the crime at some length. Finally, the court informed him that if he did not plead guilty he could have a jury trial, confront the witnesses against him, and summon witnesses in his own behalf. Nonetheless, he persisted in his desire to plead guilty. In view of this record, we cannot conclude that Sherman's plea was not intelligently entered merely because the words "self-incrimination" were not used.³

Affirmed.

HUFSTEDLER, Circuit Judge (dissenting):

I dissent because I believe that the record does not establish compliance with Rule 11, as that rule was interpreted in McCarthy v. United States (1969) 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418.

Rule 11 provides in pertinent part that "The court . . . shall not accept a plea of guilty 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." This version of the rule, requiring a personal colloquy, is a product of a 1966 amendment. Before the amendment, not all judges personally addressed the defendant, and there was common confusion over the matter. (E. g., compare United States v. Diggs (6th Cir. 1962) 304 F.2d 929 with Meeks v. United States (5th Cir. 1962) 298 F.2d 204.)

McCarthy construed Rule 11 to require the United States District Court to interrogate the defendant personally to ascertain if he knowingly and intelligently waived his constitutional rights, including his right to a jury trial, his right of confrontation, and his privilege against self-incrimination. 394 U.S. at 466, 89 S.Ct. 1166. If a plea is taken "without fully adhering to the procedure provided for in Rule 11," a defendant is entitled to plead anew. 394 U.S. at 463-464, 89 S.Ct. at 1169.¹

When compliance with Rule 11 is not in issue because the plea is taken in state court (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274) or because the Rule 11 proceeding was conducted before McCarthy was decided (Halliday v. United States (1969) 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16), the validity of the plea rests on compliance with the less rigorous demands of due process. The Court did not impose the personal interrogation requirement of Rule 11 as a constitutional standard. Compliance with due process can be established from an examination of the whole record; it is not confined to the colloquy between the court and the defendant as is true of post-McCarthy Rule 11 proceedings. (Boykin v. Alabama, supra; Halliday v. United States, supra at 832, 89 S.Ct. 1498; see also 394 U.S. at 834-835, 89 S.Ct. 1498 (Harlan, J., concurring).)

Appellant's plea was taken after McCarthy was decided. Our inquiry, therefore, is whether the district court's interrogation of appellant complied with post-McCarthy Rule 11. All pertinent parts of the Rule 11 colloquy are set forth below:

"THE COURT: How many times have you talked to Mr. Allen (defense counsel) about this case?

THE DEFENDANT: Quite a few, sir.

THE COURT: Do you think you have talked to him sufficiently to be able to make an intelligent determination of what you want to do?

THE DEFENDANT: Yes, I do, Your Honor.

. . . . . .

THE COURT: How do you want to

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