United States v. Howard D. Brown

428 F.2d 1100, 138 U.S. App. D.C. 398, 1970 U.S. App. LEXIS 8936

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 3, 1970
• Docket: 23022_1
• Status: Published

Opinions

PER CURIAM.

Appellant was convicted of forgery, uttering and interstate transportation of forged securities; he was sentenced to terms of imprisonment of ten years on each count, the sentences to run concurrently. His primary point on appeal is that the trial judge accepted his counsel’s stipulation that he had committed the acts charged in the indictment “without first addressing the defendant personally” as required by Rule 11, Fed.R.Crim.P., before accepting a plea of guilty. We hold that Rule 11 is inapplicable in this case since a plea of guilty is not involved. We find, however, that the considerations which support the requirement of Rule 11 that the trial judge address the defendant personally are present in the limited circumstances of this case, those limited circumstances being the mental condition of the defendant and the stipulation of counsel admitting all of the acts charged. We therefore hold that, in the limited circumstances of this case, the trial judge here should have addressed the defendant personally before accepting the stipulation. While we apply our ruling in this case, it will not be applied otherwise except in cases tried after this date.

On March 18, 1970, this court remanded the case to the District Court to determine whether the waiver of appellant’s right to a trial on all issues except insanity “was in fact made by the appellant. Compare Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).” The three cases cited in this court’s remand order make clear that a plea of guilty in a criminal case is a waiver of three important constitutional rights: the Fifth Amendment right against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. These cases also make clear that the trial court, state or federal, has the responsibility to make certain that any such waiver complies with the requirement of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), as “an intentional relinquishment or abandonment of a known right or privilege.”

As to federal prosecutions, Rule 11, Fed.R.Crim.P., sets up a prophylactic procedure to insure that the trial judge personally undertakes his responsibility with respect to the waiver of constitutional rights in accepting a plea of guilty. He must address the defendant personally to determine that the plea “is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” ¹ Prior to 1966 some judges were not addressing the defendant personally, and Rule 11 was amended to require them to do so. And where this part of the Rule is not complied with, the conviction must be reversed. McCarthy v. United States, supra. The Court explained the reason for its ruling:

“ * * * Our holding that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.”

394 U.S. at 472, 89 S.Ct. at 1174.

This appeal does not involve a plea of guilty as such. It does involve a stipulation offered by counsel and accepted by the court that appellant committed all the acts charged' in the indictment. But for the reservation o: the mental issue this was a plea of guilty. The stipulation made out a prima facie case for the Government and shifted the burden to the defendant to produce “some evidence” to overcome the presumption of sanity and thus raise the insanity issue.² See McDonald v. United States, 114 U.S.App.D.C. 120, 122, 312 F.2d 847, 849 (1962) (en banc). While Rule 11 is not applicable here, no reason appears why the Rule 11 procedure of addressing the defendant personally should not be required. Most, if not all, of the constitutional rights Rule 11 seeks to protect were waived by the stipulation and the failure of the trial judge³ to determine that the stipulation was “an intentional relinquishment or abandonment of a known right” by appellant as distinguished from his counsel left the record subject to attack with motions under 28 U.S.C. § 2255 (1964). McCarthy v. United States, supra, 394 U.S. at 492, 89 S.Ct. 1166.

In fact, in this case the need for judicial intervention was greater than in the normal plea of guilty because here the court had before it a defendant admittedly suffering from a mental disorder. Both appellant’s and the Government’s psychiatrists so testified, but only appellant’s psychiatric witness stated that his acts were a product of his disease. Thus when, as here, defense counsel is placed in the position of stipulating, in one breath, that the defendant freely admits committing all the acts charged, and then in the same breath contending that the same defendant committed those same acts while suffering from a mental disease, a searching judicial inquiry is required to determine whether the defendant’s waiver of trial by jury on acts charged in the indictment was voluntary and with understanding of its consequences. We hold that where a defendant in a criminal case seeks to waive trial on all issues except insanity the trial judge should address the defendant personally in determining whether the waiver is made voluntarily with understanding of the consequences of his act.⁴

Reversed.

1 . Rule 11, Fed.R.Crim.P. The pertinent part of the Rule reads:

“ * * * 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. * * *»

(Emphasis added.)

2 . We have indicated approval of bifurcated trials where the insanity defense is to be raised. Holmes v. United States, 124 U.S.App.D.C. 152, 154, 363 F.2d 281, 283 (1966); see Higgins v. United States, 130 U.S.App.D.C. 331, 401 F.2d 396 (1968). The stipulation here eliminated any need for a separate trial on the acts charged in the indictment.

3 . The trial court in its memorandum in response to remand states:

“The real vice in this remand is that appellate procedures permit an attorney, who is wholly unfamiliar with the trial, to make representations and suggestions on appeal without having ascertained the basic facts as to how the proceeding was handled. * * * It will be increasingly difficult to call upon the bar to represent indigent defendants in the United States District Court if their professional conduct can be impunged [sic] by appellate counsel who do not even take the simplest precautions to verify in advance whether or not grounds intimated on appeal from a sterile record are in fact grounds that have any validity in fact.”

As the citations in the order of remand make clear, this court was not concerned about trial counsel's representation of the defendant. Indeed our study of the record indicates that trial counsel’s representation was of a high order of excellence. This court was concerned whether, in the circumstances of this case, the prophylactic procedure of Rule 11 should have been followed by the trial court. We reject, too, the suggestion in the trial court’s memorandum on remand that appellate counsel appointed by this court made “representations and suggestions on appeal without having ascertained the basic facts as to how the proceeding was handled.” Appellate counsel, like the appellate court, looks to the record to see how the proceeding was handled in the trial court. In this connection it should be noted that much of the information contained in the trial court’s memorandum on remand as quoted in the dissent is in neither the trial record nor the record on remand. Appellate counsel’s argument here was based on the record. His representation of appellant on appeal, like the representation of trial counsel, was completely consistent with the high quality of professionalism to which the judiciary in the District of Columbia has become accustomed from appointed counsel.

4 . Our ruling does not apply to “stipulation[s] made in open court during the course of a trial,” as suggested by our dissenting colleague, except in those instances in which the stipulation, like a plea of guilty, is an admission by a defendant of all the conduct charged to him as a crime, in which event the trial judge is to address the defendant personally with respect to the matter.