United States v. Wesley B. Dewalt

92 F.3d 1209, 320 U.S. App. D.C. 68, 1996 U.S. App. LEXIS 20887

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 20, 1996
• Docket: 95-3103
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge HENDERSON.

GINSBURG, Circuit Judge:

Wesley Dewalt pleaded guilty to one eount of unlawfully possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d). The district court sentenced De-walt to 33 months in prison, to be served after he completes an unrelated state sentence. Dewalt asks this court to vacate the plea on the ground that the district judge who presided at the plea hearing failed in two respects to comply with Rule 11 of the Federal Rules of Criminal Procedure. De-walt also challenges his sentence as inconsistent with the United States Sentencing Guidelines. Because we conclude that the district court failed, in violation of Rule 11(c)(1), adequately to notify Dewalt of the' nature of the charge to which he was pleading guilty, we vacate the plea without reaching Dewait’s other claims.

I. Background

At Dewait’s plea healing the Government said it could prove the following facts: Police officers observed Dewalt carrying a blue tote bag through a bus terminal in Washington, D.C. The bag looked “a little odd” to the officers, and Dewalt appeared to them to be “having difficulty carrying [it].” The officers approached Dewalt, and asked for and received his permission to search the bag. Inside the officers found a J.C. Higgins .16 gauge bolt action shotgun with a sawed-off barrel 16% inches long, and several rounds of ammunition. A check with the National Firearms Registry revealed that neither the shotgun nor the ammunition was registered.

Based upon Dewait’s possession of this weapon and ammunition, the Government obtained a three-count indictment charging him with one violation of federal law, 26 U.S.C. § 5861(d) (unlawful possession of an unregistered firearm), and two violations of the District of Columbia Code, §§ 6-2311(a) (same) and 6-2361(3) (unlawful possession of unregistered ammunition). Dewalt pleaded guilty to the federal charge in exchange for which the Government agreed to dismiss the two D.C. charges. On appeal Dewalt argues that his guilty plea was not taken in accordance with the requirements of Rule 11.

II. Analysis

A guilty plea is not “voluntary in the sense that it constitute^] an intelligent admission that [the defendant] committed the offense unless the defendant received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process’.” Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976), quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941). “Real notice of the true nature of the charge” means notice sufficient to give the defendant “an understanding of the law in relation to the facts” of his case, McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). Specifically, a defendant’s ignorance of the mens rea element of the offense with which he is charged renders his guilty plea involuntary as a matter of constitutional law. Henderson, 426 U.S. at 645-16, 96 S.Ct. at 2258 (defendant did not know that to convict him of second-degree murder state would have to prove he assaulted victim “with a design to effect [ ] death”); see also United States v. Frye, 738 F.2d 196, 199-201 (7th Cir.1984) (“the defendant was waiving her right to make the prosecution prove to a judge or jury beyond a reasonable doubt not only that she participated in the check-ldting scheme, but also that she did so with a culpable state of mind”).

That the defendant’s guilty plea is constitutionally infirm if he pleaded without understanding the nature of the offense charged does not imply a constitutional obligation on the part of the court to inform the defendant about the nature of the charge, Henderson, 426 U.S. at 644, 96 S.Ct. at 2257. In federal courts, however, Rule 11 prescribes a procedure “designed to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary ... [and] to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.” McCarthy, 394 U.S. at 465, 89 S.Ct. at 1170. Indeed, “Rule 11 is designed to eliminate any need to resort to a later [i.e., post-conviction] fact-finding proceeding in [the] highly subjective area of voluntariness.” Id. at 469, 89 S.Ct. at 1172. To this end, Rule 11(c)(1) requires that the district judge who presides at the plea hearing inform the defendant of “the nature of the charge to which the plea is offered.”

Neither Rule 11 nor the case law, however, specifies the minimum that a district judge must do to inform the defendant of the nature of the charge in question; rather, the plea hearing must meet a standard aptly stated by the Seventh Circuit: “[A] court must have a colloquy with the defendant that would lead a reasonable person to believe that the defendant understood the nature of the charge.” Frye, 738 F.2d at 201. See also United States v. Dayton, 604 F.2d 931, 937-38 (5th Cir.1979) (en banc); United States v. Marks, 38 F.3d 1009, 1011-12 (8th Cir.1994) (where record shows defendant understood charge, court’s failure to describe charge with greater specificity does not require reversal); United States v. Musa, 946 F.2d 1297, 1304 (7th Cir.1991) (“totality of the circumstances”).

Dewalt pleaded guilty to a charge that he violated 26 U.S.C. § 5861(d), which makes it unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” As used in the statute, a “firearm” is defined as any weapon of a type listed at 26 U.S.C. § 5845(a). In this case, the Government charged that Dewalt possessed a firearm of the sort described in § 5845(a)(2)—namely, “a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length.” More specifically, the Government charged Dewalt with having possessed a sawed-off shotgun with a barrel length of less than 18 inches.

The Government concedes that one of the elements it must prove in order to obtain a conviction under the charge is that when Dewalt possessed the weapon he knew that it had a barrel less than 18 inches long. We find that proposition dubious, see United States v. Barr, 32 F.3d 1320 (8th Cir.1994), but see United States v. Edwards, 90 F.3d 199 (7th Cir.1996); United States v. Mains, 33 F.3d 1222 (10th Cir.1994); United States v. Imes, 91 F.3d 1210 (9th Cir.1996), vacating 80 F.3d 1309, but the Government’s express and unequivocal concession on this point leaves us without occasion to rule otherwise. Dewalt says that the district judge who presided at his plea hearing failed to inform him of this knowledge element and thus failed to comply with Rule 11(c)(1).

The district judge appears to have approached his solemn task with a somewhat casual attitude. He did not describe the nature of the charge to Dewalt and ascertain that Dewalt understood. Indeed, the judge did not even mention that the charge to which Dewalt was pleading concerned possession of a weapon, much less possession of a sawed-off shotgun with a barrel less than 18 inches long. Instead the judge asked Dewalt only whether he had received a copy of the indictment and whether he understood the charges contained therein; he did not squarely ask even whether Dewalt had read the indictment or whether he was relying upon counsel’s (or anyone else’s) representations regarding what it said. Nothing in the transcript of the plea colloquy, including the prosecutor’s factual proffer, “would lead a reasonable person to believe that [Dewalt] understood” that the Government intended to (or, more to the point, was required to) prove that Dewalt knew at the time he possessed the shotgun that the barrel had been sawed-off and was less than 18 inches in length.

The Government argues that because De-walt raised this issue for the first time after sentencing, he must show that vacating his plea is necessary to correct a “manifest injustice.” The 1983 Amendments to the Federal Rules of Criminal Procedure do make it clear that once the district court has imposed sentence, the defendant’s sole vehicle for obtaining relief 'in the district court is a motion under 28 U.S.C. § 2255. And in Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), the Supreme Court stated that in order to prevail under § 2255, a defendant must show that the plea proceeding was tainted either by “a fundamental defect which,inherently results in a complete miscarriage of justice” or by “an omission inconsistent with the rudimentary demands of fair procedure.”

The defendant is not appealing the denial of a § 2255 motion, however. On a direct appeal after sentencing, such as this, however, we must grant the defendant relief from the district court’s failure to comply with Rule 11 unless the error was harmless. That a defendant can escape the burden of showing a manifest injustice merely by filing a notice of appeal within the allotted time might at first seem incongruous, but that is just what the Advisory Notes accompanying the 1983 Amendments indicate—at least where the claim is that the district court has failed substantially to comply with Rule 11. The note accompanying the amendment to Rule 11(h) (harmless error “shall be disre-? garded”) explains: Because the public interest in the finality of a guilty plea is “of somewhat lesser weight when a direct appeal [as opposed to a § 2255 motion] is involved ... the Hill standard is obviously inappropriate in that setting”; on the other hand, the finality interest on direct appeal is “sufficiently compelling to make unsound the proposition that reversal is required even where it is apparent that the Rule 11 violation was of the harmless error variety.”

The seeming incongruity of giving the defendant a break on direct appeal is further diminished once one realizes that, whereas Rule 32(e) governs motions to withdraw generally, Rule 11(h) governs the special case of a motion to withdraw based upon the district court’s substantial non-compliance with the requirements of Rule 11. See United States v. Jaramillo-Suarez, 857 F.2d 1368, 1370 n. 2 (9th Cir.1988) (defendant’s burden in challenge to guilty plea based upon Rule 11 greater in collateral attack than on direct appeal); United States v. Martinez-Martinez, 69 F.3d 1215, 1219-20 (1st Cir.1995) (recognizing but reserving question of which standard applies on direct appeal). A direct appeal based upon Rule 11 is subject to a different standard because Rule 11 cracks open the door behind which plea bargains are struck; appellate review and supervision of guilty pleas is facilitated by the district court’s making a record from which we can discern whether the defendant’s plea was knowing and voluntary. That record provides at least formal assurance that the plea is not wholly the product of the defendant’s confusion or the prosecutor’s deceit.

The Government points to a statement in our decision in United States v. Farley, 72 F.3d 158 (1995), that appears to contradict the Rules Advisory Committee on this point. See id. at 162 (“On direct appeal the defendant must show that withdrawal of his plea is necessary to correct a ‘manifest injustice’ ’’). Later in that same opinion, however, the court recognized that the harmless error standard applies to Rule 11 claims. Id. at 163. Indeed, the court concluded that “setting aside Farley’s plea [was not] necessary to correct a manifest injustice because any variance from Rule ll’s provisions was harmless, at most.” Id. Although the court also noted that Farley had failed to “advance an objectively reasonable argument that he is innocent,” the “more important” reason for concluding that any error was harmless was that the district court had adequately determined that Farley’s plea was voluntary. Id. In substance, therefore, Farley is not inconsistent with the commentary to Rule 11 indicating that on direct appeal the Government must show that a Rule 11 violation was harmless in order to prevail; indeed in United States v. Lyons, 53 F.3d 1321, 1322 n. 1 (1995), in which the Government argued that a departure from Rule 11 warrants reversal only if it rises to the level of plain error under United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), we stated expressly that “[a]ny deviation from the requirements of Rule 11 is reversible [on direct appeal after sentencing] unless the government demonstrates that it was ‘harmless’.”

In order to show that a Rule 11 violation caused no harm, of course, the Government must show that the error did not affect the outcome of the district court proceeding. Lyons, 53 F.3d at 1322. A district court’s failure to comply with Rule 11(c)(1) is harmless if the record reveals either that the defendant had actual notice of the information that the district judge failed to convey or that the information would not have been important to the defendant. See, e.g., United States v. Liboro, 10 F.3d 861, 864 (D.C.Cir.1993) (“Liboro was sufficiently apprised of the charges and comprehended them”); Lyons, 53 F.3d at 1323 (defendant’s failure to protest at sentencing indicates that amount of fine had not been important factor in decision to plead guilty).

The record in this case permits neither inference, however. Because the district court dispensed with any substantive colloquy at Dewait’s plea hearing, the indictment is the one item in the record that merits attention in this regard, and it is at best ambiguous concerning the mens rea element of the charge. In the indictment the Government charged that Dewalt

knowingly received and possessed a firearm, that is, J.C. Higgins sawed-off shotgun, with an overall length of 29% inches and a barrel length of 16% inches, which had not been registered to him....

What terms are modified by “knowingly” in this passage? “Received and possessed” for sure, but what about “with ... a barrel length of 16% inches”? The indictment is not clear on that, and the more obvious reading is that the adverb “knowingly” modifies only the verbs, not the adjectival phrase. In any event, Dewait’s affirmative response when asked at the plea hearing whether he understood this charge is a poor indicator indeed of what he really understood. Unlike the jury instruction that the Tenth Circuit approved in Mains, 33 F.3d at 1229 (“knowingly possessed a shotgun with a barrel length of less than 18 inches or an overall length of less than 26 inches”), Dewalt could reasonably have read the indictment as charging him with knowing possession of a firearm that, whether he knew it or not, happened to be a sawed-off J.C. Higgins shotgun with an overall length of 29% and a 16% inch barrel. In other words, the indictment appears first to describe the crime and then to describe the evidence. There is no reason for Dewalt to have inferred even that “a barrel length of 16% inches” is a substantive element of the crime, much less that his knowledge of that fact is also an element. After all, that J.C. Higgins manufactured the shotgun and that the overall length was 29% inches are merely descriptive details-—they do not bring the weapon within the statutory definition of a “firearm,” and are therefore irrelevant to the sufficiency of the charge.

Moreover, if Dewalt did not read the indictment to say that he had to know that the barrel was less than 18 inches, then nothing that occurred at his plea hearing would have informed him that he misunderstood the charge. At the plea hearing Dewalt was in the same position, vis-a-vis the indictment, as a student who emerges from a French movie impressed with how much of it he understood; without some authoritative guidance, he cannot know whether he understood anything correctly.

The Government argues that the charge against Dewalt was “not unduly complicated” and Dewalt was represented throughout by competent counsel who “concurred” in De-walt’s decision to plead guilty. As noted earlier, however, one purpose of Rule 11 is to create a record that clearly establishes whether the defendant made an intelligent and voluntary plea. That purpose would be ill-served by our surmising that a court’s failure to comply with Rule 11(c)(1) was harmless because competent counsel would have advised his or her client of the “nature of the charge.” See Harvey v. United States, 850 F.2d 388, 395 (8th Cir.1988) (“the court should have explained the charges ... instead of relying on counsel”).

Finally, the Government observes that De-walt has not claimed that he is innocent or that he would not have pleaded guilty had he been apprised of the mens rea element in the charge against him. That observation would be compelling if Dewalt had the burden of demonstrating a manifest injustice, but here, as we have explained, the Government has the burden of persuading us that the Rule 11 error did not affect the outcome of this prosecution. “[Wjhere [a] defendant has shown his plea was taken in violation of Rule 11, we have never hesitated to correct the error,” even if the defendant failed to assert a legally cognizable defense. United States v. Cray, 47 F.3d 1203, 1207 (D.C.Cir.1995). Moreover, nothing in this record indicates whether Dewalt, had he understood the knowledge element of the charge, would nonetheless have pleaded guilty — nor, for that matter, whether the Government, if forced to go to trial, could prove that Dewalt knew at the time he possessed the shotgun that the barrel had been sawed-off to ■ a length of less than 18 inches.

III. Conclusion

Because the district court failed to comply with Rule 11(c)(1) at Dewait’s plea hearing we must vacate his plea. We need not, therefore, address his argument under Rule 11(f) (district court must make “such inquiry as shall satisfy it that there is a factual basis for the plea”), or his claims of sentencing error. Accordingly, Dewait’s conviction is vacated and this ease is remanded to the district court for further proceedings consistent with the foregoing opinion.

So ordered.