United States v. Curtis Drummond

903 F.2d 1171, 1990 U.S. App. LEXIS 7831, 1990 WL 61462

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 14, 1990
• Docket: 89-1775WA
• Status: Published

Opinions

ELMO B. HUNTER, Senior District Judge.

The government appeals the decision of the district court’s order granting appel-lee’s motion pursuant to 28 U.S.C. § 2255 and ordering a new trial on charges for which a jury convicted appellee in 1982. We reverse.

I. BACKGROUND

A jury convicted appellee Curtis Drum-mond in 1982 of aiding and abetting the unlawful manufacture of marijuana and of possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced Drummond to five years imprisonment, all but six months of which was suspended in favor of probation. In 1985, while on probation, a jury again convicted Drummond of aiding and abetting the unlawful manufacture of marijuana and of possessing marijuana with intent to distribute. The court sentenced Drummond to five years imprisonment on the 1985 convictions, revoked the probationary term, and sentenced Drummond to one year for the 1982 convictions. Drummond unsuccessfully appealed one of the 1985 convictions. See United States v. Short, 805 F.2d 335 (8th Cir.1986).

In 1987, Drummond requested a transcript from the court reporter of the 1982 trial, and the clerk’s office advised Drummond that the tapes were no longer available for transcribing. On January 20, 1988, Drummond filed a motion with the district court to obtain a copy of the 1982 trial transcript. The district judge wrote a letter to Drummond explaining that a transcript was not available. Drummond then filed a motion pursuant to 28 U.S.C. § 2255 (1982) attacking his 1982 convictions. Following an evidentiary hearing, the district court found that the trial judge had failed, in violation of Federal Rule of Criminal Procedure 32(a)(2),¹ to inform Drummond of his right to appeal. Relying on case law from other circuits, the court concluded that the remedy for a Rule 32(a)(2) violation is reinstatement of the right to appeal.² The court reasoned, however, that reinstatement of the right to appeal would ultimately result in the vacation of the conviction, due to the lack of a trial transcript. Thus, the most expeditious and just resolution would be to grant Drummond a new trial on the 1982 charges. The government has appealed, arguing that the violation of Rule 32(a)(2) constitutes harmless error under Rule 52(a)³ because Drummond was aware of his right to appeal.

II. DISCUSSION

Although strict compliance with Fed.R.Crim.P. 32(a)(2) is not required under Eighth Circuit law, this Circuit has not considered the effect of a trial court’s complete disregard for the rule. Johnson v. United States, 453 F.2d 1314 (8th Cir.), cert. denied, 406 U.S. 927, 92 S.Ct. 1802, 32 L.Ed.2d 129 (1972). Other circuits have expressly held that when a trial court fails to inform a defendant of his right to appeal, the right to appeal must be reinstated without regard to whether the defendant actually knew of his right to appeal. In United States v. Benthien, 434 F.2d 1031 (1st Cir.1970), the court held that a trial court’s failure to inform a defendant of his right to appeal in compliance with Rule 32(a)(2) constitutes per se reversible error. Accord United States v. Deans, 436 F.2d 596, 599, n. 3 (3rd Cir.), cert. denied, 403 U.S. 911, 91 S.Ct. 2211, 29 L.Ed.2d 688 (1971); Nance v. United States, 422 F.2d 590 (7th Cir.1970); Paige v. United States, 443 F.2d 781 (4th Cir.1970).

In support of its holding, the Benthien court relied on McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), in which the Supreme Court held that a trial court’s failure to comply with Fed.R.Crim.P. 11⁴ is per se reversible error. Benthien, 434 F.2d at 1032. The 1983 amendment to Rule 11 eliminated McCarthy’s “extreme sanction of automatic reversal” by making “clear that the harmless error rule of Rule 52(a) is applicable to Rule 11.”⁵ Notes of Advisory Committee on Rules, 1983 Amendment. Thus, the Benthien court’s reliance on the automatic reversal rule of McCarthy seriously undermines its per se approach to 32(a)(2) violations. In addition, the Benthien, Nance, Paige and Deans cases are problematic because they fail to discuss the applicability of Fed.R.Crim.P. 52(a) which, if germane, requires a reviewing court to employ a harmless error analysis when reviewing errors committed by a trial court. Significantly, the Supreme Court has said that “Rule 52(a) admits of no broad exceptions to its applicability.” United States v. Lane, 474 U.S. 438, 448 n. 11, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986).

In Lane the Court considered whether misjoinder in violation of Rule 8(b)⁶ is per se reversible error. Six circuits, including the Eighth Circuit, had held that misjoinder was indeed per se reversible error. Id. at 440 n. 1, 106 S.Ct. at 727 n. 1. The Supreme Court disagreed, holding “that an error involving misjoinder ‘affects substantial rights’ and requires reversal only if the misjoinder results in actual prejudice....” Id. at 449, 106 S.Ct. at 732, 88 L.Ed.2d at 826. “Only by so holding can we bring Rules 8 and 52(a) ‘into substantial harmony, not into square conflict.’ ” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

The Court again considered the propriety of a per se rule of reversibility in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). In Mechanik the prosecutor had obtained an indictment after two witnesses appeared jointly before the grand jury in violation of Rule 6(d).⁷ The Fourth Circuit held that Rule 6(d) violations require automatic reversal of any subsequent conviction regardless of the lack of prejudice because the language of the rule is so “plain and unequivocal in limiting who may appear before a grand jury.” United States v. Mechanik, 735 F.2d 136, 139 (4th Cir.1984).

The Supreme Court reversed, holding that the Rule 52(a) harmless error analysis must be applied to errors occurring before a grand jury. 475 U.S. at 71, 106 S.Ct. at 942. The Court emphasized the social costs of reversing convictions:

[I]t forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences. The “[pjassage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.” Thus, while reversal “may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with the complete freedom from prosecution,” and thereby “cost society the right to punish admitted offenders.” Even if a defendant is convicted in a second trial, the intervening delay may compromise society’s “interest in the prompt administration of justice,” and impede accomplishment of the objectives of deterrence and rehabilitation. These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence.

Id. at 72, 106 S.Ct. at 942 (citations omitted). The Court concluded that the balance tips decidedly in favor of not reversing convictions when the errors complained of are harmless. We believe that disturbing the finality of a judgment by reinstating a defendant’s right to appeal entails similarly high social costs that are acceptable only when a defendant has actually been deprived of the right to appeal. In light of Lane and Mechanik, we decline to adopt the per se approach to Rule 32(a)(2) violations and instead hold that Rule 52(a) requires the reviewing court to determine whether the Rule 32(a)(2) violation actually prejudiced the defendant’s right to appeal.

The standard for proving whether an error is harmless depends on whether the error is a “constitutional error.” Lane, 474 U.S. at 446 n. 9, 106 S.Ct. at 730 n. 9. Errors of constitutional magnitude must be shown to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1969). A non-constitutional error is harmless unless it had a “substantial influence” on the outcome or leaves one in “grave doubt” as to whether it had such an effect. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). A court’s failure to comply with Rule 32(a)(2) is obviously not a constitutional error, nor does it affect a constitutional right. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (“There is, of course, no constitutional right to an appeal”).⁸ Consequently, the Chapman requirement that error be proven harmless beyond a reasonable doubt does not apply. At the same time, however, the Kotteakos “substantial influence” test is inapposite because the outcome of the trial is not the focus. Thus, we must adopt a test for determining when a Rule 32(a)(2) violation is harmless.

In a pre-Rule 32(a)(2) ease, the Second Circuit held that when a petitioner claims he has been denied his right to appeal, the burden is upon the government to establish by clear and convincing evidence that the petitioner waived his right to appeal. Felder v. United States, 429 F.2d 534, 535 (2d Cir,), cert. denied, 400 U.S. 908, 91 S.Ct. 152, 27 L.Ed.2d 147 (1970). We believe .that the Felder standard is compatible with Kotteakos and is appropriate for determining whether a Rule 32(a)(2) violation actually prejudiced a defendant’s right to appeal.

The district court found that Drummond knew of his right to appeal. One of Drummond’s former attorneys, Eugene Wahl, testified that he and another of Drummond’s former attorney’s, Bill Murphy, informed Drummond of his right to appeal. “Wahl’s testimony was supported by numerous exhibits, including the court’s stay of judgment pending appeal, time sheets mentioning discussions of appeal, and a telephone message regarding appeal from Murphy.” United States v. Drummond, No. 88-2107, slip op. at 3-4 (W.D.Ark. March 6, 1989). This evidence satisfied the district court that Drummond knew of his right to appeal, and we agree. The evidence that Drummond knew of his right to appeal is clear and convincing. Therefore, the sentencing court’s violation of Rule 32(a)(2) did not prejudice Drum-mond’s right to appeal and must be disregarded.

Accordingly, we reverse the district court’s grant of the writ of habeas corpus, and we reinstate Drummond’s conviction and sentence. Because the district court did not rule upon Drummond’s other claims, we remand to the district court for further proceedings consistent with this opinion.

1 . Fed.R.Crim.P. 32(a)(2) provides in relevant part: "After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal...."

2 . The procedure for reinstating the right to appeal is to vacate the sentence and remand to the trial court for resentencing. In Williams v. United States, 402 F.2d 548 (8th Cir.1968), the Eighth Circuit indicated approval of this procedure as a remedy for unconstitutional denials of the right to appeal.

3 .Fed.R.Crim.P. 52(a) provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."

4 . Fed.R.Crim.P. 11 governs the procedure for the entry of pleas, especially pleas of guilty and nolo contendere.

5 . The 1983 amendment to Rule 11 included adoption of subsection (h) which provides:

Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.

6 . Fed.R.Crim.P. 8(b) provides:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

7 .Fed.R.Crim.P. 6(d) provides:

Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.

8 . The right to appeal a criminal conviction, however, is unquestionably a substantial right. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).