Del Vecchio v. U.S.

• Citation: 556 F.2d 106
• Decision Date: 24 May 1977
• Docket Number: No. 805,D,805
• Parties: Joseph DEL VECCHIO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 76-2165.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 106

556 F.2d 106

Joseph DEL VECCHIO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 805, Docket 76-2165.

United States Court of Appeals Second Circuit.

Argued March 15, 1977.

Decided May 24, 1977.

Roy M. Cohn, New York City (Saxe, Bacon & Bolan, P. C.; Michael Rosen, Ronald F. Poepplein, New York City, of counsel), for petitioner-appellant.

Thomas M. Fortuin, Asst. U. S. Atty., New York City (Daniel R. Murdock, Chief Asst. U. S. Atty., S. D. N. Y., Frederick T. Davis, Asst. U. S. Atty., New York City, of counsel), for respondent-appellee.

Before FEINBERG and TIMBERS, Circuit Judges, and DAVIS, Associate Judge. ^*

FEINBERG, Circuit Judge:

This case is another of the many we have had that attack a conviction on a guilty plea because the district judge allegedly failed to follow the directions of Fed.R.Crim.P. 11. Joseph Del Vecchio appeals from the denial of his petition, under 28 U.S.C. § 2255, by the United States District Court for the Southern District of New York, Kevin T. Duffy, J. We hold that although the judge did not technically comply with certain provisions of Rule 11, the error does not require that the conviction be set aside on this collateral attack.

I

Del Vecchio was indicted in December 1973, along with Carmine Tramunti and 30 others, for various violations of the federal narcotics laws. The indictment named Del Vecchio in nine of the 30 counts; five of these charged violation of old narcotics laws, 21 U.S.C. §§ 173, 174, three with violation of the new narcotics laws, 21 U.S.C. §§ 821, 841(a)(1) and 841(b)(1)(A), and one with conspiracy to violate the narcotics laws under 21 U.S.C. §§ 173, 174 and 846, which has been treated as a count under the new narcotics law. The following month, Del Vecchio pleaded guilty to the conspiracy count and six of the substantive counts, three under the old narcotics laws and three under the new. Trial proceeded against 18 of the remaining defendants, most of whom were found guilty. See United States v. Tramunti, 513 F.2d 1087, 1094 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). When the guilty plea was taken, Judge Duffy advised Del Vecchio that he could be sentenced to 30 years on each count or, in effect, a total of 210 years. ¹

Two months after the trial ended, Judge Duffy sentenced Del Vecchio to 15 years imprisonment on the conspiracy count, with three years special parole to follow upon completion of his prison term, and concurrent sentences of five years on each of the substantive counts. Del Vecchio took no appeal. Almost two and one-half years later, Del Vecchio filed the section 2255 petition that is the subject of this appeal. He sought to withdraw his guilty plea because he had not been advised of "the minimum mandatory penalty" under the old narcotics laws or "the mandatory special parole for which he would be liable at the end of his sentence" under the new narcotics laws. Without a hearing and apparently without any answering papers from the Government, Judge Duffy denied the petition in a two page memorandum opinion.

II

When Del Vecchio pleaded guilty in January 1974, Rule 11 read in pertinent part 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.

Construing this language, we have held that ineligibility for parole was a "consequence" of a guilty plea of which a defendant had to be advised, Bye v. United States, 435 F.2d 177, 179 (2d Cir. 1970), and we have indicated that a mandatory minimum sentence is similarly a "consequence" of a guilty plea. ² Cf. United States ex rel. Hill v. Ternullo, 510 F.2d 844, 847 (2d Cir. 1975); Serrano v. United States, 442 F.2d 923, 925 (2d Cir. 1971). We have also held that the "special parole" involved here ³ "is comparable." See Michel v. United States, 507 F.2d 461, 463 (2d Cir. 1974); Ferguson v. United States, 513 F.2d 1011 (2d Cir. 1975). Since Judge Duffy concededly did not advise Del Vecchio as to these "consequences" of taking the guilty plea, we must consider the effect of these violations of Criminal Rule 11.

The Rule has been a fertile breeding ground for litigation since it first became effective. In a series of cases, the meaning of "voluntarily" and "consequences" was expanded considerably, ⁴ a development that culminated in the 1975 revision of the Rule to spell out in great detail the nature of the inquiry a trial judge must make when taking a guilty plea. ⁵ The commendable policy behind these decisions and the revision of the Rule was to make sure that a defendant acted voluntarily and knowledgeably before taking the grave step of pleading guilty and waiving various constitutional rights. For this reason, we have only recently exhorted trial judges to insure strict compliance with the Rule by adopting a "set of instructions . . . as a means of insuring compliance with the rule." United States v. Journet, 544 F.2d 633, 635 (2d Cir. 1976). On the other hand, rigid enforcement of the Rule many years after the plea has been taken erodes the principle of finality in criminal cases and may allow an obviously guilty defendant to go free because it is impossible, as a practical matter, to retry him. ⁶ See Blackledge v. Allison, --- U.S. ----, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Henderson v. Kibbe, --- U.S. ----, ---- N. 13, 97 s.CT. 1730, 52 l.ED.2d 203 (1977). thIs is not a result that commends itself to many people, including judges. Accordingly, courts have been struggling in the last few years particularly to accommodate this clash of policies in applying the Rule. The Government suggests that a reasonable means of doing so is to limit the relief available in a collateral attack based on a Rule 11 violation.

There should be no doubt after Journet, supra, that on a direct criminal appeal there will be little room for minimizing the effect of a failure to comply with Rule 11. Our recent decision in United States v. Michaelson, 552 F.2d 472 (2d Cir. 1977), probably represents the limit of how far we should go in that direction on a direct appeal. The policies behind Rule 11 are important and should be strictly enforced. When a district judge has failed to do so, allowing a defendant to replead will not ordinarily directly clash with society's interest in enforcing the penal laws. Witnesses in most cases will still be available. The price of a short delay and some extra expense is a modest one to pay to correct the error of a government official (a district judge). But when a defendant takes no appeal and collaterally attacks the conviction years later, the different considerations we have already referred to come into play. The Government contends that therefore we should, and under Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), we can, hold that Del Vecchio has failed to state a claim that can be raised under 28 U.S.C. § 2255. Alternatively, the Government argues that Del Vecchio's petition should be denied because he did not demonstrate any prejudice and because he did not appeal directly from his sentence.

III

In Davis v. United States, supra, the Supreme Court held § 2255 relief available to vacate a conviction because of an intervening change in the Ninth Circuit's interpretation of the selective service laws. Of more significance for this case, the court added:

This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. In Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), for example, we held that "collateral relief is not available when all that is shown is a failure to comply with the formal requirements" of a rule of criminal procedure in the absence of an indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was "a fundamental defect which inherently results in a complete miscarriage of justice," and whether "(i)t . . . present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id., at 428, 82 S.Ct. 468 (internal quotation marks omitted).

417 U.S. at 346, 94 S.Ct. at 2305. In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), quoted in the language above, the court held that technical non-compliance with Fed.R.Crim.P. 32(a) was not a sufficient ground for collateral attack.

Citing these cases, the Government argues that the technical violations here of Rule 11 did not amount to any "miscarriage of justice," much less a "complete" one, and that there are no "exceptional circumstances" justifying use of the collateral writ. Appellant rejoins that in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court established a stringent penalty for non-compliance with Rule 11, and it does not make any difference whether the defect is pointed out on direct appeal or by collateral attack. Appellant also points to decisions of this court in which we have considered Rule 11 claims on section 2255 petitions. E. g., Ferguson v. United States, supra; Michel v. United States, supra. In response, the Government correctly points out that the possible differences between collateral and direct review of a Rule 11 violation were evidently not briefed or argued in these cases or discussed in the opinions. Moreover, the cases are distinguishable on their facts: in Michel, the court's actual holding was that the defendant had been adequately informed of the special parole term; and in Ferguson, the sentence imposed exceeded the maximum sentence of which the...