United States v. Medina-Silverio

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 93-1800
                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                               GENARO MEDINA-SILVERIO,

                                Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                   [Hon. Gilberto Gierbolini, U.S. District Judge]
                                              ___________________

____________________

                                        Before

                            Cyr and Stahl, Circuit Judges,
                                           ______________

                             and Pieras,* District Judge.
                                          ______________

____________________

Rafael F. Castro Lang for appellant.
             _____________________
             Esther Castro  Schmidt, Assistant  United  States Attorney,  with
             ______________________
        whom Guillermo Gil, United  States Attorney, and Jos   A. Quiles-Espi-
             _____________                               _____________________
        nosa, Senior Litigation Counsel, were on brief for appellee.
        ____

____________________

                                    July 19, 1994
                                                     
                                 ____________________

____________________

             *Of the District of Puerto Rico, sitting by designation.

CYR,  Circuit Judge.  The only claim we need address in
                    CYR,  Circuit Judge
                          _____________

          this appeal  is  whether the  district  court complied  with  the

          procedural  safeguards  mandated by  Criminal  Rule  11 prior  to

          accepting appellant's guilty plea to one felony count of  illegal

          reentry into  the United States  following deportation.   We con-

          clude that the plea acceptance procedure adopted by  the district

          court  met neither  the letter  nor the  spirit of  Rule 11.   As

          appellant's  guilty plea was  invalid, we remand  to the district

          court for further proceedings.   

I
                                          I

                                      DISCUSSION
                                      DISCUSSION
                                      __________

The Rule 11 hearing  transcript discloses the following

          colloquy: 

                    THE  COURT: .  . .  Mr.  Medina, I  have your
                    petition to enter a  plea of guilty, which is
                    a  long document consisting  of 13  pages and
                    containing 45  questions  and answers.    You
                    signed that  document at the  middle of  page
                    13.  Is that your signature?

                    THE DEFENDANT:  Yes.

                    THE COURT:    And your  attorney,  Mr.  Laws,
                    signed at the bottom.

                    MR. LAWS:  That is correct, Your Honor.

                    THE COURT:   Also both you  and your attorney
                    initialed each page.  This means, Mr. Medina,
                    that these answers are your answers.

                    THE DEFENDANT:  Yes.

2

THE COURT:  And are these answers truthful?

                    THE DEFENDANT:  Yes.

                    THE  COURT:   And if  I repeat  all of  these
                    questions, your  answers will be  the same or
                    will they be different?

                    THE DEFENDANT:  The same.

                    THE COURT:   Well, the petition  will be made
                                       ___ ________  ____ __ ____
                    part of  this change  of plea  proceeding be-
                    ____ __  ____ ______  __ ____  __________ ___
                    cause I adopt all the questions mentioned  or
                    _____ _ _____ ___ ___ _________ _________  __
                    included therein. . . .
                    ________ _______

          Hearing Tr. at  5-6, March 29, 1993  (emphasis added).   The dis-

          trict court record discloses no other information relevant to the

          content and sufficiency of  the Rule 11 colloquy.   Medina inter-

          posed no objection to  the district court procedure.   See United
                                                                 ___ ______

          States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir. 1991) (appel-
          ______    ____________

          late court  must determine Rule  11 compliance without  regard to

          whether the issue was raised below). 

                    Appellant contends  that  the district  court's  simple

          incorporation  of the Petition to  Enter a Plea  of Guilty denied

          him the procedural safeguards  prescribed by Rule 11.   He argues

          that the failure to conduct a full and direct examination in open

          court  compromised "core"  Rule  11 concerns  and undermined  the

          validity of the  guilty plea.  See  United States v. Allard,  926
                                         ___  _____________    ______

          F.2d 1237,  1244-45  (1st Cir.  1991) (identifying  core Rule  11

          concerns:  absence  of coercion,  understanding  of  charges, and

          knowledge  of  consequences of  guilty  plea).   Further,  Medina

          claims  that comments he made  during the Rule  11 hearing demon-

3

strate that his guilty plea was  not "voluntary and intelligent."

          See, e.g., Parra-Ibanez, 936 F.2d at 590 (noting that the "stric-
          ___  ____  ____________

          tures  of Rule 11 [were]  calculated to insure  the voluntary and

          intelligent character of the plea").  

                    The government  responds that  the Petition to  Enter a

          Plea of Guilty was completed by appellant, with the assistance of

          counsel, only moments before the Rule 11 hearing.  The government

          therefore claims  that  any error  was harmless  and affected  no

          substantial  rights.  See Fed.  R. Crim. P.  11(h) ("Any variance
                                ___

          from the procedures required  by this rule which does  not affect

          substantial rights shall be disregarded.").  We disagree.  

                    Criminal Rule 11 provides in pertinent part: 

                    (c) Advice to Defendant.  Before  accepting a
                        ___________________   ______  _________ _
                    plea of guilty or  nolo contendere, the court
                    ____ __ ______ __  ____ ___________ ___ _____
                    must address the defendant personally in open
                    ____ _______ ___ _________ __________ __ ____
                    court and inform the defendant of, and deter-
                    _____ ___ ______ ___ _________ ___ ___ ______
                    mine  that  the  defendant  understands,  the
                    ____  ____  ___  _________  ____________  ___
                    following: 
                    _________
                    (1)  the nature  of the  charge to  which the
                    plea is offered, the mandatory minimum penal-
                    ty provided  by law, if any,  and the maximum
                    possible penalty provided  by law,  including
                    the effect  of any  special parole  or super-
                    vised release term,  the fact that  the court
                    is  required  to   consider  any   applicable
                    sentencing  guidelines  but  may depart  from
                    those guidelines under some circumstances . .
                    . and              *  *  *
                      ___
                    (3) that the defendant has the right to plead
                    not guilty or to persist  in that plea if  it
                    has already been made,  the right to be tried
                    by  a jury and at that trial the right to the
                    assistance of counsel, the right  to confront
                    and cross-examine adverse witnesses,  and the
                    right  against compelled  self-incrimination;
                    and
                    ___

4

(4)  that  if  a   plea  of  guilty  or  nolo
                    contendere  is accepted  by  the court  there
                    will  not be a  further trial of  any kind so
                    that  by pleading  guilty or  nolo contendere
                    the defendant waives the right to trial; and 
                                                             ___
                    (5)  if the  court  intends to  question  the
                    defendant under  oath, on the record,  and in
                    the  presence of counsel about the offense to
                    which the  defendant  has pleaded,  that  the
                    defendant's answers may later be used against
                    the defendant in a prosecution for perjury or
                    false statement.

                    (d) Insuring that the Plea is Voluntary.  The
                        ___________________________________   ___
                    court shall  not accept  a plea of  guilty or
                    _____ _____  ___ ______  _ ____ __  ______
                    nolo contendere without first,  by addressing
                                    _______ ______  __ __________
                    the  defendant  personally  in   open  court,
                    ___  _________  __________  __   ____  ______
                    determining  that the  plea is  voluntary and
                    ___________  ____ ___  ____ __  _________ ___
                    not  the result  of  force or  threats or  of
                    ___  ___ ______  __  _____ __  _______ __  __
                    promises apart  from a plea  agreement.   The
                    ________ _____  ____ _ ____  _________
                    court shall  also inquire  as to  whether the
                    defendant's  willingness  to plead  guilty or
                    nolo  contendere  results from  prior discus-
                    sions between the attorney for the government
                    and the defendant  or the defendant's  attor-
                    ney.

          Fed. R. Crim. P. 11(c), (d) (emphasis added).  

                    The  district  court  procedure  adopted in  this  case

          cannot  be harmonized with the plain language of Rule 11(c), (d).

          At a Rule 11 plea hearing,  "the court must address the defendant
                                           _____ ____

          personally  in open court and inform the defendant of, and deter-
                                        ______ ___ _________ __  ___ ______

          mine that  the defendant understands," the  matters enumerated in
          ____ ____  ___ _________ ___________

          Rule 11.  Fed.  R. Crim. P. 11(c); see  also Fed. R. Crim.  P. 11
                                             ___  ____

          advisory committee's notes accompanying 1966  amendment (explain-

          ing that the  rule was  amended to make  express the  requirement

          that  the  district judge  personally  address  the defendant  to

          ascertain that  the plea  is "voluntary and  intelligent").   The

5

authorities are in agreement that reliance on "a written document

          is not a  sufficient substitute for personal examination  [by the

          court.]"  James W.  Moore, 8 Moore's Federal Practice    11.05[2]
                                       ________________________

          (1994); Charles A. Wright,  1 Federal Practice & Procedure    172
                                        ____________________________

          (1982)  ("Since 1966 the rule  has required the  court to address

          the defendant personally."); see also United States v. Del Prete,
                                       ___ ____ _____________    _________

          567  F.2d  928, 930  (9th Cir.  1978)  ("[a] written  document is

          emphatically  not a substitute for the clear dictate of the rule,

          which requires that the trial judge address the defendant in open

          court").  Similarly, the Supreme Court has left no  room to doubt

          the central  importance of  direct interrogation by  the district

          judge  in determining  whether to  accept the  defendant's guilty

          plea:

                    To the  extent that the  district judge  thus
                    exposes the defendant's state  of mind on the
                    record through personal interrogation, he not
                    only  facilitates his own  determination of a
                    guilty  plea's  voluntariness,  but  he  also
                    facilitates that determination in  any subse-
                    quent post-conviction proceeding based upon a
                    claim that the plea was involuntary.  Both of
                    these goals  are undermined in  proportion to
                    the  degree  the  district  judge  resorts to
                    "assumptions" not based upon recorded respon-
                                                 ________ _______
                    ses to his inquiries.  
                    ___ __ ___ _________

          McCarthy v. United  States, 394 U.S. 459, 466-67 (1969) (emphasis
          ________    ______________

          added); see also Fed.  R. Crim. P. 11 advisory  committee's notes
                  ___ ____

          accompanying  1983  amendment ("[S]ubdivision  (h) should  not be
                                                                     ___

          read as  an  invitation to  trial judges  to take  a more  casual

          approach to Rule 11 procedures.  It is still true, as the Supreme

6

Court  pointed  out  in  McCarthy, that  thoughtful  and  careful
                                   ________

          compliance with  Rule 11 best serves the  cause of fair and effi-

          cient administration of criminal  justice . . . .")  (emphasis in

          original).   The present case is directly  in point.  But for the

          district court's failure to  follow the explicit requirements set

          out in Rule 11, in all likelihood no post-conviction challenge to

          the validity of appellant's guilty plea would ever have occurred.

          Thus,  it is  "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."   McCarthy,
                                                                  ________

          394 U.S. at 472.         We  well  understand  the heavy  burdens

          imposed on the district courts.  Yet no matter how repetitive the

          required Rule 11 praxis  may become for busy district  judges, it

          may  not  be presumed  so for  the  defendant; and  however time-

          consuming for the court, it is surely less so than the  virtually

          certain  prospect of remand  for further  Rule 11  proceedings or

          trial.  There is no "talismanic test," Allard,  926 F.2d at 1245,
                                                 ______

          and we have never held the district courts to a formula of "magic

          words" in meeting the requirements of  Rule 11.  It is abundantly

          clear,  however,  that the  procedure  employed  below cannot  be

          considered in  substantial compliance with Rule  11.1 "[A] viola-
                              
          ____________________

               1"By entering a guilty plea, a  defendant, in effect, waives
          a number  of constitutional rights.  In  order for that waiver to
          be valid, due process  requires that the plea amount  to a volun-
          tary and  'intentional relinquishment  or abandonment of  a known

                                          7

tion that implicates one  of the rule's 'core  concerns' mandates

          that the plea  be set aside."   Id. at 1244-45  (citing McCarthy,
                                          ___                     ________

          394 U.S. at  471-72; and United States  v. Cantor, 469  F.2d 435,
                                   _____________     ______

          437 (3d Cir. 1972)).  

                    Where  a  district  court  neither  conducts  a  direct

          personal interrogation, nor advises  the defendant of his rights,

          all  substantially as  required under  Rule 11,  there can  be no

          sufficient basis for finding that the guilty  plea was voluntary,

          intelligent or otherwise valid.  

                    A total  failure to conduct the  plea colloquy mandated

          by  Rule  11 cannot  be  considered  harmless  error, even  where

          writings  evidence  the defendant's  apparent  cognizance  of the

          information  which  should  have  been imparted  in  open  court.

          United States v. Bernal, 861 F.2d 434, 436 (5th Cir. 1988), reh'g
          _____________    ______                                     _____

          denied, 871 F.2d  490, 491  (5th Cir. 1989)  ("Acceptance of  the
          ______

          government's  [harmless error]  argument  would  obliterate  Rule

          11(c)'s requirement  that the  court 'must address  the defendant

          personally in open court' . . . . [S]ubsection (h) to Rule 11 was

          not  intended  to  allow district  courts  to  ignore Rule  11['s

          express  commands]"), cert. denied, 493 U.S. 872 (1989); see Fed.
                                _____ ______                       ___

          R.  Crim.  P. 11  advisory  committee's  notes accompanying  1983

____________________

          right or privilege.'"  Allard, 926 F.2d at 1244 (citing McCarthy,
                                 ______                           ________
          394  U.S. at 466).   "The . .  . rule requires  the court both to
          inform the  defendant of  the  nature of  the charge  and make  a
          determination that  he  understands it."    Id. (citing  Mack  v.
                                                      ___          ____
          United States, 635 F.2d 20 (1st Cir. 1980)).  
          _____________

                                          8

amendment  (noting that  Rule 11(h)  harmless error  provision is

          intended to excuse "minor and technical violation[s]," but cannot

          be invoked  where the court's deviation  effectively "nullif[ies]

          important Rule 11 safeguards");  see also Del Prete, 567  F.2d at
                                           ___ ____ _________

          930 (vacating  conviction where  district court failed  to inform

          defendant  personally of parole  component of sentence; existence

          of written  guilty plea  application cannot override  "clear dic-

          tates" of  Rule 11); cf.  United States v.  Carter, 662 F.2d  274
                               ___  _____________     ______

          (4th Cir. 1981) (holding  that reversal is required where  clerk,

          rather than district judge, conducted plea colloquy).  The guilty

          plea must  therefore be set aside  and the case  must be remanded

          for further Rule 11 proceedings or trial. 

                    The judgment  of  conviction and  sentence is  vacated.
                    ___ ________  __  __________ ___  ________ __  _______

          The guilty plea is set aside and the case is remanded for further
          ___ ______ ____ __ ___ _____ ___ ___ ____ __ ________ ___ _______

          proceedings consistent with this opinion.2
          ___________ __________ ____ ____ _______

____________________

               2Appellant's "ineffective assistance" claim is mooted by our
          resolution of the Rule 11 claim.  

                                          9