United States v. Steele, 609

• Decision Date: 09 June 1969
• Docket Number: Docket 33206.,No. 609,609
• Citation: 413 F.2d 967
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest Norman STEELE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

413 F.2d 967 (1969)

UNITED STATES of America, Plaintiff-Appellee, v.Ernest Norman STEELE, Defendant-Appellant.

No. 609, Docket 33206.

United States Court of Appeals Second Circuit.

Argued May 12, 1969.

Decided June 9, 1969.

Phylis Skloot Bamberger, New York City(Milton Adler, The Legal Aid Society, New York City), for defendant-appellant.

Vincent T. McCarthy, U. S. Atty., and Georgiana O. Miranda, Asst. U. S. Atty., Eastern District of New York, for plaintiff-appellee.

Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.

J.JOSEPH SMITH, Circuit Judge:

Ernest Norman Steele, indicted for theft of typewriters, the property of the United States, in the Eastern District of New York, pleaded guilty before Judge Bruchhausen, was sentenced by Chief Judge Zavatt to a term of imprisonment, and appeals.We hold that the requirements of Rule 11,Federal Rules of Criminal Procedure¹ were not satisfied, and reverse and remand for further proceedings.

Steele, represented by counsel, was put to plea on the first count of a 26-count indictment.The clerk read to him that count,² advised him of his right to speedy trial, to subpoena and confront witnesses, of the possible penalty of imprisonment and asked if the plea was voluntary.He responded that it was.An assistant United States Attorney advised as to the maximum penalty, the clerk told of the possibility of Youthful Offender treatment.The court asked if the answers would be the same if he asked the questions and Steele stated that they would.The plea of guilty was thereupon accepted.Steele contends that this procedure was fatally defective in two respects: (1) the failure of the judge personally to advise the nature and consequences of the plea and carry on the interrogation of the defendant to determine that the plea was understandingly and voluntarily entered, and (2) the lack of a factual basis for the plea in the explanation by the clerk and the responses of Steele.

Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16(per curiam)(May 5, 1969) holds that the requirements of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418(April 2, 1969) are not retroactive, and the United States argues here that interrogation by the clerk adopted by the judge satisfies the requirement that the interrogation be of the defendant personally, as that requirement was understood before McCarthy was decided.We need not, however, determine whether the interrogation met pre-McCarthy standards in this regard, for it plainly failed to meet the other requirements of the rule, as amended in 1966, that the judge satisfy himself as to the factual basis of the plea.A bare recitation that the defendant"stole" a typewriter from a certain place does not sufficiently portray the facts necessary to satisfy the court that the elements of larceny were present, and particularly where more than one defendant is charged, a sufficient statement of the acts and intent of the particular defendant, what the defendant did and intended, is necessary to an intelligent determination of whether there was a factual basis for the plea.

Reversed and remanded for vacation of the plea and further proceedings in accordance herewith.

1Rule 11 reads in relevant part:

* * * 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.

2The Court: * * * The Clerk will question the Defendant.

The Clerk: Yes, your Honor.

Ernest Steele, before accepting your plea of guilty you must be informed of the charges called against you.

In Indictment68 CR 123, the Grand Jury charges in Count One, on or about and between the 6th and the 8th day of November, 1965, both dates being approximate and inclusive, within the Eastern District of New York, the DefendantErnest Norman Steele, stole a Royal manual typewriter, model #FTE16, bearing Serial #7048422, of a value in excess of $100.00, property of the United States Department of the Air Force, located at Building #197, John F. Kennedy International Airport.It is Title 18, United States Code, section 641.

Ernest N. Steele, do you understand that you have a right to a speedy and public trial by an impartial jury?

The Defendant: Yes.

The Clerk: Do you understand that if you should go to trial, you would have the right to compulsory process to obtain witnesses in your behalf.

The Defendant: Yes.The Clerk: The right to be confronted by witnesses against you.

The Defendant: Yes.

The Clerk: Do you further understand that if you should plead guilty in this cause the Court has the power to and may sentence you to a term of imprisonment.

The Defendant: Yes.

The Clerk: Has anyone made any threats or promises of any kind to induce you to plead guilty.

The Defendant: No.

The Clerk: Is this plea being made voluntarily on your...