United States v. Dunstan Wellington Burnett

671 F.2d 709, 1982 U.S. App. LEXIS 22163
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 1, 1982
Docket455, Docket 81-1340
StatusPublished
Cited by17 cases

This text of 671 F.2d 709 (United States v. Dunstan Wellington Burnett) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dunstan Wellington Burnett, 671 F.2d 709, 1982 U.S. App. LEXIS 22163 (2d Cir. 1982).

Opinions

PIERCE, Circuit Judge:

On January 5, 1976 defendant Dunstan Wellington Burnett and two co-defendants were indicted on twenty-five substantive counts of immigration fraud and one count of conspiracy. Defendants were charged with providing alien residents of the United States with fraudulent job offer forms which they knew would be submitted to the Government in support of applications for permanent resident status in the United States. Defendant Burnett pleaded not guilty to the indictment and was scheduled for trial on April 26, 1976. On that date, however, Burnett requested permission to plead guilty to the conspiracy count. It was understood that in return the Government would not oppose dismissal of the twenty-five substantive fraud counts. The plea was accepted by the district judge in the robing room on the record while a panel of prospective jurors waited outside in the court room.

After several adjournments, defendant appeared before the district court for sentencing on December 15, 1976. On that date he requested additional time in order to travel to his native Jamaica and attempt to secure funds to make restitution prior to sentencing. The court granted a one-week [710]*710adjournment, until December 22, 1976, and directed the Government, over its objection, to return defendant’s passport. On December 22, 1976 defendant did not appear for sentencing and a bench warrant was issued.

Apparently defendant next returned to the United States in the summer of 1977, and arrangements were made for him to .appear for sentencing on August 3, 1977. On that date defendant again failed to appear, and remained at large until finally arrested while attempting to re-enter the United States from Canada on March 10, 1981.

When Burnett appeared for sentencing on April 29, 1981 he requested leave to withdraw the guilty plea entered on April 26, 1976. Defendant’s counsel thereupon moved to be relieved. The district judge granted the latter motion, and sentencing was postponed until May 27, 1981. This date was later adjourned to June 12,1981 in order to give defendant’s new counsel an opportunity to file papers on defendant’s behalf. On June 12, 1981 defendant filed a written motion, with supporting affidavits, seeking to withdraw his guilty plea. On July 26, 1981 Judge Cooper denied defendant’s motion, and, on August 13, 1981 he sentenced him to a three year term of imprisonment.

Defendant argues for reversal of the district judge’s order denying his motion for leave to withdraw his guilty plea on the ground that the plea proceeding held on April 26, 1976 did not meet the requirements of Rule 11(c)(3), Fed.R.Cr.P.1 Appellant contends that the plea proceeding was deficient in that the district judge failed to establish that there existed a factual basis for the plea and failed to personally address the defendant throughout the plea proceeding. In addition, it is contended that the court failed to inform the defendant that he had a right to remain silent; that he had a right to be tried by a jury; that he had a right to confront and cross-examine witnesses against him; and that he had a right to persist in his plea of not guilty.

All but the latter two claims are wholly without merit. From the record, we are satisfied that the trial judge did personally address defendant and did properly determine that there existed a factual basis for the plea being offered.2 In addition, he [711]*711adequately informed appellant that he had a right to be tried by a jury and to remain silent.3 In a strict sense, however, the district judge failed to comply fully with the provisions of Rule 11(c)(3) in that he did not specifically inform appellant in haec verba that he had a right to persist in his plea of not guilty (although this was the clear import to be drawn from the fact that a panel of 60 venire persons was then in the courtroom awaiting the commencement of the jury selection process), and he did not inform him that he had a right to confront and cross-examine witnesses against him.

Defendant does not contend on appeal that the trial judge’s omissions caused him any prejudice. He makes no claim that he did not understand his rights or that he would not have pleaded guilty had they been explained to him more fully. While [712]*712the Supreme Court has stated that a guilty plea may be withdrawn, in the exercise of the discretion of the trial court, “if for any reason the granting of the privilege seems fair and just,” Kercheval v. U. S., 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), a defendant has no absolute right to withdraw his plea. U. S. v. Giuliano, 348 F.2d 217, 221 (2d Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 406, 15 L.Ed.2d 354 (1965) and cert. denied sub nom. Prezioso v. U. S., 382 U.S. 939, 86 S.Ct. 390,15 L.Ed.2d 349 (1965). On a motion to withdraw a plea, the burden is on the defendant to satisfy the trial judge that valid reasons for the grant of the privilege exist, taking into account any prejudice to the Government. U. S. v. Michaelson, 552 F.2d 472, 475 (2d Cir. 1977); Giuliano, supra, at 221.

At the time Burnett made his motion to withdraw his plea herein, more than five years had passed since it was accepted by Judge Cooper. It is of no small significance that the passage of all but the first five months of this time was attributable solely to defendant’s flight and willful failure to appear for sentencing as ordered. Under these circumstances, if the defendant were permitted to withdraw his plea upon the mere showing of a technical failure by the district judge under Rule 11(c)(3), the effect, almost assuredly, would be to place the Government in a position of serious disadvantage in mounting a prosecution after the passage of so long a period of time.

In U. S. v. Journet, 544 F.2d 633, 636 (2d Cir. 1976) this Court held that “as a minimum, before accepting a guilty plea each district judge must personally inform the defendant of each and every right and other matter set out in Rule 11.” This Circuit has held further that the detailed requirements of Rule 11(c) govern all pleas taken after December 1, 1975. U. S. v. Saft, 558 F.2d 1073, 1078-79 (2d Cir. 1977)4 Nevertheless, we now hold that, in the peculiar circumstances of this case, appellant has forfeited his right to assert that technical violations of Rule 11 of the Federal Rules of Criminal Procedure rendered his guilty plea invalid. Therefore, his motion to withdraw his guilty plea was properly denied.

In U. S. v. Timmreck, 441 U.S. 780, 784, 99 S.Ct.

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