Kermit Nello Burton v. United States

483 F.2d 1182, 1973 U.S. App. LEXIS 8024

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 6, 1973
• Docket: 26070
• Status: Published

Opinions

ELY, Circuit Judge.

Burton originally pleaded not guilty to a single-count indictment charging conspiracy, 18 U.S.C. § 371, and interstate transportation of an implement fitted for counterfeiting federal securities, 18 U.S.C. § 2314. On November 4, 1968, he appeared with counsel, changed his plea to guilty, and was thereafter sentenced to prison for a term not to exceed two years.

The entire colloquy between Burton and the court concerning acceptance of the guilty plea is as follows:

“ •» * *

MR. DE LEON [Burton’s attorney] : Your Honor, the defendant wishes to change his plea to guilty, from not guilty to guilty.

THE COURT: Mr. Burton, you have heard your counsel’s statement. You previously pleaded not guilty to this charge, involving a violation of Title 18, United States Code, Section 371 and Section 2314. The cause has been set for trial. Is it your present desire to change your plea from not guilty to guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Are you pleading guilty, Mr. Burton, because you are guilty and for no other reason?

THE DEFENDANT: Yes, sir. That’s right.

THE COURT: Has anybody made any threats to you in order to encourage you to plead guilty to this charge? [Emphasis supplied] ¹

THE DEFENDANT: No, sir.

THE COURT: Has anybody made any promises of leniency or otherwise to encourage you to plead guilty to this charge? [Emphasis supplied]²

THE DEFENDANT: No, sir.

THE COURT: Are you pleading guilty freely and voluntarily ?

THE DEFENDANT: Yes, sir.

THE COURT: Have you talked this over with your attorney, Mr. De Leon?

THE DEFENDANT: Yes, sir.

THE COURT: Are you satisfied with his counsel and advice?

THE DEFENDANT: Yes, I am.

THE COURT: Is this plea in accord with your best judgment, Mr. De Leon?

MR. DE LEON: Yes, it is, sir.

THE COURT: Very well. The plea of guilty will be received, and time for sentencing set for Monday, November 18, at two o’clock, p.m. * * * ”

On Monday, November 18, there occurred the following exchange:

“THE CLERK: Case No. C-18167, United States of America vs. Kermit Nello Burton, for sentence, and C-17912, for further proceedings.

MR. MALINSKY: Is your true name Kermit Nello Burton?

THE DEFENDANT: That’s right.

MR. MALINSKY: Are you represented by your attorney, Armando De Leon?

THE DEFENDANT: Yes, that is correct.

MR. MALINSKY: Mr. Burton, you have previously entered a plea of guilty to a charge of violating Title 18, 371 and 23H, conspiracy to transport counterfeit tools in interstate commerce. [Emphasis supplied] ³ Do you wish to stand on your plea of guilty on November 4, 1968?

THE DEFENDANT: Yes.

MR. MALINSKY: Do you understand, Mr. Burton, that on the plea of guilty to this charge you can-be sentenced up to $10,000, imprisoned up to five years, or both ?

THE DEFENDANT: Yes.

MR. MALINSKY: You still wish to stand on your plea ?

THE DEFENDANT: Yes.

THE COURT: Mr. Burton, I will repeat what the United States Attorney said. On November 4 you entered a plea of guilty to a charge of conspiracy to transport counterfeit tools in interstate commerce, actually in violation of two federal statutes. The charge was only in one count.

As I understand it, you desire to stand on your plea of guilty as you have entered it on November 4.

THE DEFENDANT: Yes, sir.

THE COURT: You know you don’t have to. If you prefer to have the matter tried, you can withdraw your plea and enter a plea of not guilty. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: But you don’t want to do that?

THE DEFENDANT: No. I may as well stand on the plea.

THE COURT: Have you talked this over with your attorney, Mr. De Leon?

THE DEFENDANT: Yes, sir.

THE COURT: You are satisfied with his counsel and advice ?

THE DEFENDANT: Yes, I am.

THE COURT: You are satisfied, are you, Mr. De Leon, that this is the appropriate procedure for Mr. Burton?

MR. DE LEON: Yes, sir.

THE COURT: Mr. Burton, now is the time for the Court to pass sentence upon you. Do you have anything to say in your own behalf before sentence is pronounced ?

THE DEFENDANT: Well, only that I ask the Court to show me leniency, because the matter of this conspiracy consisted of actually five of us. It is my understanding that two others have pled guilty, also. So that I think the matter is probably a question of degree of guilty, which I must also stand on. But as far as investigation by the probation officer, I am sure he has turned up information that probably doesn’t do my record too much good. So I just ask the Court to show as much leniency as possible.”

On August 28, 1969, appellant moved the District Court, pursuant to 28 U.S.C. § 2255, to vacate the conviction and to allow him to plead anew contending, inter alia that his plea was not voluntarily entered. It is from the denial of that motion that Burton appeals.

Rule 11, Fed.R.Crim.P., provides:

“A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere 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. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. 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.”

From the foregoing record, there is no indication that the trial court undertook sufficiently to satisfy itself that there was a factual basis for the guilty plea.⁴ The short statement by the accused that “Well, only that I ask the Court to show me leniency, because the matter of this conspiracy consisted of actually five of us. It is my understanding that two others have pled guilty also . . .,” was not a sufficient foundation upon which to find a factual basis for the plea. At most, that statement merely reflects Burton’s unlearned explanation and is the very kind of unskilled conclusion that the trial court must carefully examine.

The prosecution emphasizes that Burton twice assured the trial judge that he was satisfied with the advice and assistance of his appointed counsel. We have long held, however, that assistance of counsel is but one factor to be considered and is far from conclusive.⁵ Moreover, mere presence of counsel in the case at hand is particularly inconclusive, for the record rather clearly suggests that defense counsel himself was not even certain of either the charge or the possible penalty.⁶

The prosecution also contends that Burton admitted to the presentence probation officer that he had sent a check cashing machine to one of his co-defendants, and that this contention, if true, provides a factual basis for the plea. This argument also fails. First, since the alleged admission occurred subsequent to the acceptance of the guilty plea, no reliance upon it could have been placed by the court in making the prior Rule 11 determination. In Heiden v. United States, 353 F.2d 53 (9th Cir. 1965), we emphasized:

“It is contemplated by that Rule, and is the holding in Johnson v. Zerbst [304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461], that the fact that a plea was intelligently entered and that counsel was intelligently waived must be ascertained at the time of arraignment or of waiver and not after the fact. When this is done the facts can be made to appear of record; the understanding of the defendant can actually be accomplished and its accomplishment demonstrated beyond dispute. When the ascertainment is subsequently made after disputes have arisen, a degree of uncertainty is bound to creep in since, in the resolution of disputed facts, problems of credibility and of reliability of memory cannot be avoided.”

Id. at 55.

Secondly, Burton stresses that he accompanied the alleged statement with repeated protestations of innocence based upon the absence of either his knowledge of any illegal use to be made of the machine, or of his intent to participate in the crime. This denial of guilt, even if combined with an admission of some involvement, should, we think, have prompted the court to pursue further inquiry.⁷

Having concluded that there was a failure to heed the strict requirements of Rule 11, we now consider the appropriate remedy. We are urged both to vacate the District Court’s Order denying the section 2255 motion and to set aside Burton’s convictions for violation of 18 U.S.C. §§ 371, 2314, thus affording him a new opportunity to plead.

In Castro v. United States, 396 F.2d 345, 348 (9th Cir. 1968), which reaffirmed Heiden v. United States, supra, our court declared:

“Under Heiden, it was held that the facts necessary for a determination that the defendant voluntarily and intelligently pleaded guilty must appear in the record at the time the plea is accepted. If the record indicates that this procedure was not followed, and the defendant later asserts facts which indicate that he did not voluntarily and intelligently enter his plea, and a proper examination of the defendant by the judge at the time the plea of guilty was received would have disclosed such facts, Heiden holds that prejudice to the accused is established when he is later required to prove or disprove his state of mind at the time of his plea. To avoid this prejudice, according to Heiden, the defendant is, under these circumstances, entitled to have his conviction and sentence set aside, and is given a new opportunity to plead to the indictment.” (Footnote omitted).

The aim of the Heiden court was apparently to encourage trial courts to follow the mandate of Rule 11, and, in the absence of such compliance, to protect defendants from any resulting prejudice.

“If, by its [Rule ll’s] disregard, issues of fact are permitted to arise the defendant has suffered prejudice in being required to resort to the relatively uncertain business of their resolution.”

Heiden, 353 F.2d at 55. The proper construction of our rule was adopted in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1968):

' “We are persuaded that the Court of Appeals for the Ninth Circuit has adopted the better rule. From the defendant’s perspective, the efficacy of shifting the burden of proof to the Government at a later voluntariness hearing is questionable. In meeting its burden, the Government will undoubtedly rely upon the defendant’s statement that he desired to plead guilty and frequently a statement that the plea was not induced by any threats or promises. This prima facie case for voluntariness is likely to be treated as irrebuttable in cases such as this one, where the defendant’s reply is limited to his own plaintive allegations that he did not understand the nature of the charge and therefore failed to assert a valid defense or to limit his guilty plea only to a lesser included offense. No matter how true these allegations may be, rarely, if ever, can a defendant corroborate them in a post-plea voluntariness hearing.”

394 U.S. at 469, 89 S.Ct. at 1172.

Thus, under established principles, Burton was undeniably prejudiced by the court’s failure wholly and fully to comply with the specific mandates of Rule 11. Were we to simply remand this cause with instructions to conduct a hearing to determine whether appellant knowingly and voluntarily entered his plea, and whether there was, at the time of pleading, a sufficient factual basis upon which to accept the plea of guilt, Burton would be put to the very burden which, under Heiden, those in his position were sought to be spared.

Finally, we conceive it to be our duty, exercising our supervisory power, to assure that there be the strictest compliance with the requirements of Rule 11.⁸ That this court has such supervisory power is hardly deniable. In La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the United States Supreme Court held that “ . . . supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system.” Id. at 259-260, 77 S.Ct. at 315.⁹ Moreover, this pronouncement by the Nation’s supreme judicial authority has been reaffirmed by every Court of Appeals, including our own, that has confronted the issue. In a very recent opinion of this court, Guam v. Camacho, 470 F.2d 919 (9th Cir. 1972), Chief Judge Chambers' acknowledged the existence of the “supervisory power” of this court. See also United States v. Thomas, 146 U.S.App. D.C. 101, 449 F.2d 1177 (1971) (en banc); United States v. Daniels, 446 F. 2d 967 (6th Cir. 1971); In re Ellsberg, 446 F.2d 954 (1st Cir. 1971); United States v. Jones, 140 U.S.App.D.C. 70, 433 F.2d 1176 (1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120 (1971) ; Dellinger v. Mitchell, 143 U.S. App.D.C. 60, 442 F.2d 782 (1971); Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), cert. denied, 408 U.S. 942, 92 S. , 33 L.Ed.2d 766 (1972); United States v. Butera, 420 F.2d 564 (1st Cir. 1970); United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied, 396 U. S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969) ; United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970) ; Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc); United States v. Dooling, 406 F.2d 192 (2d Cir. 1969), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); Pea v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627, 637 (1968) (rehearing en banc); ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir. 1967), cert. denied, 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140 (1968); Government of Virgin Islands v. Lovell, 378 F.2d 799 (3d Cir. 1967); Thomas v. United States, 368 F.2d 941 (5th Cir. 1966); Tate v. United States, 123 U.S. App.D.C. 261, 359 F.2d 245 (1966); United States v. Freeman, 357 F.2d 606 (2d Cir. 1966); Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965); United States v. Inman, 352 F.2d 954 (4th Cir. 1965); Ford v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965) (en banc); Smith v. Katzenbach, 122 U.S.App.D.C. 113, 351 F.2d 810; Natural Resources, Inc. v. Wineberg, 349 F.2d 685 (9th Cir. 1965), cert. denied, 382 U.S. 1010, 86 S.Ct. 617, 5 L.Ed.2d 525 (1966); Jones v. United States, 119 U.S.App.D.C. 284, 342 F.2d 863 (1964) (en banc); United States v. D’Angiolillo, 340 F.2d 453 (2d Cir.), cert. denied, 380 U.S. 955, 85 S.Ct. 1090, 13 L.Ed.2d 972 (1965); United States ex rel. Sturdivant v. New Jersey, 289 F.2d 846 (3d Cir.), cert. denied, 368 U.S. 864, 82 S.Ct. 109, 7 L.Ed.2d 61 (1961); Wildeblood v. United States, 106 U.S.App.D.C. 338, 273 F.2d 73 (1959) (Burger, J.); Delaney v. United States, 199 F.2d 107 (1st Cir. 1952); Helwig v. United States, 162 F.2d 837 (6th Cir. 1947).

Accordingly, the District Court’s Order is reversed. Upon remand, the judgments of conviction will be vacated and Burton will be allowed a new opportunity to plead to the charges of the indictment.

Reversed and remanded.

1 . There were two charges, alleged in the same count, not a simple “this” charge.

2 . See footnote 1, supra.

3 . Only § 371 pertained to conspiracy.

4 . Burton’s statement, in response to one of the Court’s inquiries, to the effect that he was pleading guilty “because [he was] guilty,” goes to the question of the volun-tariness of his plea but is not significantly relevant, in the whole context, to the question of whether this Court, upon the record and in the concluding words of Rule 11, “satisfied [itself] that there [was] a factual basis for the plea.” (Emphasis supplied.)

5 . Gomez v. United States, 396 F.2d 323 (9th Cir. 1968) ; Munich v. United States, 337 F.2d 356 (9th Cir. 1964).

6 . “MR. DE LEON [Burton’s attorney] : Excuse me. The charge is on conspiracy, is it not?

MR. MALINSKY: There is a one-count charge which alleges a violation of

Title 18, 371 and 2314, both in the same count.

MR. DE LEON: I just have a question. Is the maximum governed by Section 371 — five years?

MR. MALINSKY: Your Honor, there is a violation of two provisions of the Code alleged in the single count, and there is a different penalty for each violation.

I think that the maximum possible sentence that could be imposed is imprisonment up to ten years, because that is the penalty for violation of Title 18, Section 2314.

THE COURT: That’s probably true, but as long as you join them both, I would take the low one.

MR. DE LEON: Your Honor, the defendant wishes to change his plea to guilty, from not guilty to guilty.” (Emphasis supplied).

7 . Our recent decision in United States v. Sherman, 474 F.2d 303 (9th Cir. 1973), is clearly distinguishable. In contrast to our case, the appellant there “ . discussed the details of the crime at some length” with the trial judge thus providing the court with the required factual basis for acceptance of the plea. Id. at 307.

8 . Our dissenting Brother characterizes our comments concerning the supervisory power of this court as “dictum.” The majority does not intend that it be so interpreted. The overwhelming body of authority which the majority has cited establishes, beyond doubt, that supervisory power is vested in the courts of appeal, and it is most assuredly appropriate for that power to be exercised in a case such as this. We recognize, of course, that the McCarthy holding is not retroactive, but long before the opinion in McCarthy was issued, this court’s opinion in Heiden had become, and, as expressly approved by the Supreme Court in McCarthy, remains viable. Thus, the majority, mindful of Heiden’s controlling principle, has relied upon the existence of this court’s supervisory power in reaching its dispositive conclusion.

9 . See also Lego v. Twomey, 404 U.S. 477, 479 n.1, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).