United States v. Tucker, 12618.

• Decision Date: 12 May 1970
• Docket Number: No. 12618.,12618.
• Parties: UNITED STATES of America, Appellee, v. Earl Lee TUCKER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

425 F.2d 624 (1970)

UNITED STATES of America, Appellee, v. Earl Lee TUCKER, Appellant.

No. 12618.

United States Court of Appeals, Fourth Circuit.

Argued November 3, 1969.

Decided May 12, 1970.

Marvin H. Schein, Baltimore, Md. (Court-appointed counsel), for appellant.

Paul M. Rosenberg, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., on brief), for appellee.

Before BOREMAN, BRYAN and BUTZNER, Circuit Judges.

BOREMAN, Circuit Judge:

Earl Lee Tucker appeals from his conviction on a charge of assault with intent to rape, following his plea of guilty in the district court. He was sentenced to twenty years imprisonment, but was made eligible for parole at any time under Title 18, U.S.C. § 4208(a) (2).

The prosecution stemmed from a 1965 multiple rape, in a Washington, D. C. warehouse, of a woman who was forcibly abducted from an automobile parked in Maryland along the Baltimore-Washington Parkway. Tucker was admittedly a passenger in a vehicle in which the abductors were riding but he now denies participation in the abduction, in assaulting the victim while in the car, or in the subsequent multiple rape. He contends that he was guilty of no more than a technical assault in touching the victim as he moved her legs which were draped across his lap.

The grand jury for the District of Maryland returned three-count indictments against six males, including this defendant, Tucker, charging them in count one with kidnapping, in count two with assault with intent to rape, and in count three with assault by striking and beating as well as by fondling, exploring and probing the private parts of the victim.

Tucker was arraigned on March 11, 1966, and entered a plea of not guilty to each count of the indictment. Eleven months thereafter, on February 13, 1967, upon rearraignment Tucker entered a plea of guilty to assault with intent to rape as charged in the second count. Upon the assertions of Tucker's court-appointed attorneys that there was a factual basis for the guilty plea and upon Tucker's indication that he had discussed the case with his attorneys and that he understood "all the facts in the case," the court accepted Tucker's plea of guilty and the Government dismissed the two remaining counts.

Wilson, one of the other defendants, was tried separately on October 2, 1967, for the same crimes, and Tucker testified, as a witness for the prosecution, that he had not participated in the abduction, that he was asleep in the back seat of the car when the abduction took place in Maryland, that he awoke to find the victim lying in the back seat with her legs across his lap, that he removed her legs from his lap, that he did not participate in any assault upon her person while in the car, that he did not molest her, and that he did not participate in the subsequent multiple rape. He did admit that there had been discussion in the car among the defendants concerning the order in which they would have sexual intercourse with the victim and that he was supposed to have been either fifth or sixth in line. At this same Wilson trial, another of the defendants, Turner, a close friend of Tucker, testified that Tucker had been sitting in the front seat of the car, had participated in the assault upon the victim's person while in the car and had sexual relations with the victim during the multiple rape in the District of Columbia.

Tucker was scheduled for sentencing in the District of Maryland on June 7, 1968, along with four other defendants whose cases were pending in that district. However, in the meantime, on April 8, 1968, the Supreme Court announced its decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), holding unconstitutional the death penalty provision of the Lindbergh Kidnaping Act¹ for the reason that it improperly encouraged a guilty plea to escape the possibility of a death sentence. In view of Jackson, the Government informed the district court that it would not oppose a motion by any of these defendants to withdraw a guilty plea prior to sentencing if based upon a claim that his guilty plea had been entered to a lesser count of the indictment because of fear of imposition of the death penalty upon a verdict of guilty on the kidnapping charge. Before the cases were called for sentencing, the district court advised the defendants and their counsel of the Government's position, explained the ramifications of the Jackson decision, told them that the kidnapping charge could result in a maximum sentence of life imprisonment, and requested that the defendants confer with their counsel and advise the court whether any defendant desired to withdraw his guilty plea. Tucker, after consultation with his counsel, informed the court that he still wanted the court to accept his plea of guilty, but he told the court that he did not participate in any of the criminal offenses against the victim and substantially repeated his testimony given in the Wilson trial that he was not an active participant in the crimes and that, at most, he was guilty of a technical assault by touching her legs when he removed them from his lap. The court advised Tucker that he had a right to withdraw his guilty plea and face trial on all three counts of the indictment, but again warned him that the kidnapping charge could possibly result in the imposition of a life sentence. Tucker insisted that it was still his desire that the court accept his plea of guilty to assault with intent to rape.

When Tucker claimed innocence at the later sentencing proceedings, government counsel gave the court two FBI reports of alleged oral interviews with Tucker on November 20, 1965, in which Tucker allegedly admitted having actively participated in the assault in the car and in the subsequent multiple rape. Tucker denied making any such statements to the FBI.

On appeal, Tucker takes the position that the district court erred in accepting his plea of guilty since the court was fully aware that the defendant denied participation in the charged offense.

Rule 11 of the Federal Rules of Criminal Procedure has long required that a district judge, prior to the acceptance of a guilty plea, should ascertain that the plea was understandingly and voluntarily entered. Effective July 1, 1966, Rule 11 was amended by adding the requirement that the district court personally address the defendant to determine that the guilty plea is voluntarily made with full understanding of the nature of the charge and the consequences of the plea, and also that the court defer entering judgment upon such plea unless the court is satisfied that there is a factual basis for the plea. In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Court held that Rule 11 must be strictly construed, that strict compliance therewith is required, and that the failure of the judge to personally address the defendant to ascertain that the plea is being tendered voluntarily with understanding of the nature of the charge and the consequences of the plea or to satisfy himself that there is a factual basis for the plea is not strict compliance.

Although counsel for both sides have failed to discuss or even refer to the McCarthy decision in briefs or at oral argument we feel bound to consider and apply the principles enunciated therein because Tucker is an indigent defendant represented by appointed counsel and because the facts pertaining to the arraignment proceedings in this case are quite similar to those in McCarthy. The McCarthy decision has two specific and divisible portions. The first portion of the opinion specified the procedures which must be followed in strict compliance with Rule 11 as amended July 1, 1966. In the second portion it was held that a defendant whose guilty plea has been accepted in violation of Rule 11 must be rearraigned and allowed to plead anew. Subsequently, in Halliday v. United States, 394 U.S. 831, 833, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), the Court said:

"In McCarthy we noted that the practice we were requiring had been previously followed by only one Circuit; that over 85% of all convictions in the federal courts are obtained pursuant to guilty pleas; and that prior to Rule 11\'s recent amendment, not all district judges personally questioned defendants before accepting their guilty pleas. Thus, in view of the general application of Rule 11 in a manner inconsistent with our holding in McCarthy, and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively. We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11." (Emphasis added.)

Thus, in Halliday, the Court held non-retroactive that portion of McCarthy which required a rearraignment, rather than merely a hearing on the voluntariness of a guilty plea; but the Halliday decision did not affect McCarthy's strict interpretation of amended Rule 11 since this portion of McCarthy, as was pointed out by Justice Harlan in his concurring opinion in Halliday,supra at page 834, 89 S.Ct. at page 1500 "* * * merely interpreted Rule 11 * * * as amended effective July 1, 1966."

In interpreting the requirements of Rule 11, the Court in McCarthy said that the Rule has two main purposes:

"* * * to assist the district judge in making the constitutionally required determination that a defendant\'s guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination. Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas." 394 U.S. 459, 465

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