Petitioner was indicted on three counts for "willfully and
knowingly" attempting to evade federal tax payments and on
arraignment pleaded not guilty to each count. On the day set for
trial petitioner's counsel, after informing the court that he had
"advised . . . [petitioner] of the consequences of a plea," moved
to enter a plea of guilty to one count. In answer to the District
Judge's inquiry, petitioner stated that he desired to plead guilty
and understood that such a plea waived his right to a jury trial
and subjected him to as long as five years' imprisonment and as
much as a $10,000 fine. The Government consented to the plea change
and agreed to dismiss the other two counts if petitioner's guilty
plea to the one count was accepted. Replying to the judge's inquiry
made at the Government's request and before the plea was accepted,
petitioner stated that his plea was not the product of threats or
promises, but was entered of his "own volition." At the subsequent
sentencing hearing, petitioner asserted that his failure to pay
taxes was "not deliberate," and that they would have been paid had
he not been in poor health. The judge imposed a sentence of one
year and a $2,500 fine. Petitioner's counsel moved to suspend
sentence, stressing that petitioner, then 65, was in poor health
and that his "neglectful" and "inadvertent" bookkeeping practices
occurred during a period when he had been suffering from a very
serious drinking problem. The judge, declining to suspend sentence,
indicated that he had examined the presentence report and concluded
that petitioner's bookkeeping methods were not "inadvertent." On
appeal, petitioner urged the setting aside of his plea as violative
of Fed.Rule Crim.Proc. 11 on the grounds (1) that the District
Court had accepted his plea
"without first addressing [him] . . . personally and determining
that the plea [was] . . . made voluntarily with understanding of
the nature of the charge . . . ,"
and (2) that the court had entered judgment without determining
"that there [was] . . . a factual basis for the plea." The Court of
Appeals affirmed, implying that the Rule did not
require
the District Judge to address petitioner personally if petitioner
understood the nature of the charge and concluding that, at the
Page 394 U. S. 460
sentencing hearing the judge had satisfied himself from the
presentence report that the plea had a factual basis.
Held:
1. Fed.Rule Crim.Proc. 11 was not complied with in this case.
The Rule, which is designed (1) to assist the district judge in
making the constitutionally required determination that a guilty
plea is truly voluntary and (2) to produce a complete record when
the plea is entered of the factors relevant to the voluntariness
determination, mandates the district judge's direct inquiry of a
defendant pleading guilty as to whether the defendant understands
the nature of the charge against him and is aware of the
consequences of his plea. Pp.
394 U. S.
464-467.
2. Noncompliance by the District Court with Rule 11 requires
that the defendant's guilty plea be set aside and his case remanded
for another hearing at which he may plead anew. Pp.
394 U. S.
468-472.
387 F.2d 38, reversed and remanded.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case involves the procedure that must be followed under
Rule 11 of the Federal Rules of Criminal Procedure before a United
States District Court may accept a guilty plea and the remedy for a
failure to follow that procedure.
On April 1, 1966, petitioner was indicted on three counts in the
United States District Court for the Northern District of Illinois
for violating § 7201 of the Internal Revenue Code. He was charged
with "willfully and knowingly" attempting to evade tax payments of
$928.74 for 1959 (count 1), $6,143.70 for 1960 (count 2), and
$1,207.12 for 1961 (count 3). At his arraignment
Page 394 U. S. 461
two weeks later, petitioner, who was represented by retained
counsel, pleaded not guilty to each count. The court scheduled his
trial for June 30, but on June 29, it granted the Government's
motion to postpone the trial because of petitioner's illness. The
trial was rescheduled for July 15.
On that day, after informing the court that he had "advised . .
. [petitioner] of the consequences of a plea," defense counsel
moved to withdraw petitioner's plea of not guilty to count 2 and to
enter a plea of guilty to that count. The District Judge asked
petitioner if he desired to plead guilty and if he understood that
such a plea waived his right to a jury trial and subjected him to
imprisonment for as long as five years and to a fine as high as
$10,000. Petitioner stated that he understood these consequences
and wanted to plead guilty. The Government consented to this plea
change and informed the court that, if petitioner's plea of guilty
to count 2 were accepted, the Government would move to dismiss
counts 1 and 3. Before the plea was accepted, however, the
prosecutor asked the judge to inquire whether it had been induced
by any threats or promises. In response to the judge's inquiry,
petitioner replied that his plea was not the product of either. He
stated that it was entered of his "own volition." The court ordered
a presentence investigation and continued the case to September 14,
1966. [
Footnote 1]
At the commencement of the sentencing hearing on September 14,
petitioner asserted that his failure to pay taxes was "not
deliberate" and that they would have been paid if he had not been
in poor health. The prosecutor stated that the "prime
consideration" for the Government's agreement to move to dismiss
counts 1 and 3 was petitioner's promise to pay all taxes,
penalties, and
Page 394 U. S. 462
interest. The prosecutor then requested the court to refer
expressly to this agreement. After noting that petitioner possessed
sufficient attachable assets to meet these obligations, the court
imposed a sentence of one year and a fine of $2,500. Petitioner's
counsel immediately moved to suspend the sentence. He emphasized
that petitioner, who was then 65 years of age, was in poor health,
and contended that his failure to pay his taxes had resulted from
his "neglectful" and "inadvertent" method of bookkeeping during a
period when he had been suffering from a very serious drinking
problem. Consequently, asserted petitioner's counsel, "there was
never any disposition to deprive the United States of its due." The
judge, however, after indicating he had examined the presentence
report, stated his opinion that "the manner in which [petitioner's]
books were kept was not inadvertent." He declined, therefore, to
suspend petitioner's sentence. [
Footnote 2]
On appeal to the United States Court of Appeals for the Seventh
Circuit, petitioner argued that his plea should be set aside
because it had been accepted in violation of Rule 11 of the Federal
Rules of Criminal Procedure. Specifically, petitioner contended (1)
that the District Court had accepted his plea
"without first addressing [him] . . . personally and determining
that the plea [was] . . . made voluntarily with understanding of
the nature of the charge . . . [
Footnote 3]"
and (2) that the court had entered judgment without determining
"that there [was] . . . a factual basis for the plea." [
Footnote 4]
Page 394 U. S. 463
In affirming petitioner's conviction, [
Footnote 5] the Court of Appeals held that the District
Judge had complied with Rule 11. The court implied that the Rule
did not require the District Judge to address petitioner personally
to determine if he understood the nature of the charge. The court
also concluded that the colloquy at the sentencing hearing
demonstrated that the judge had satisfied himself by an examination
of the presentence report that the plea had a factual basis.
[
Footnote 6]
Because of the importance of the proper construction of Rule 11
to the administration of criminal law in the federal courts,
[
Footnote 7] and because of a
conflict in the courts of appeals over the effect of a district
court's failure to follow the provisions of the Rule, [
Footnote 8] we granted certiorari. 390
U.S. 1038 (1968). We agree with petitioner that the District Judge
did not comply with Rule 11 in this case, and, in reversing the
Court of Appeals, we hold that a defendant is entitled to plead
anew if a United
Page 394 U. S. 464
States district court accepts his guilty plea without fully
adhering to the procedure provided for in Rule 11. This decision is
based solely upon our construction of Rule 11 and is made pursuant
to our supervisory power over the lower federal courts; we do not
reach any of the constitutional arguments petitioner urges as
additional grounds for reversal.
I
Rule 11 expressly directs the district judge to inquire whether
a defendant who pleads guilty understands the nature of the charge
against him and whether he is aware of the consequences of his
plea. At oral argument, however, counsel for the Government
repeatedly conceded that the judge did not personally inquire
whether petitioner understood the nature of the charge. At one
point, counsel stated quite explicitly:
"The subject on which he [the District Judge] did not directly
address the defendant, which is raised here, is the question of the
defendant's understanding of the charges."
Nevertheless, the Government argues that, since petitioner
stated his desire to plead guilty, and since he was informed of the
consequences of his plea, the District Court "could properly
assume that petitioner was entering that plea with a
complete understanding of the charge against him." [
Footnote 9] (Emphasis added.)
Page 394 U. S. 465
We cannot accept this argument, which completely ignores the two
purposes of Rule 11 and the reasons for its recent amendment.
First, although the procedure embodied in Rule 11 has not been held
to be constitutionally mandated, [
Footnote 10] it is designed to assist the district judge
in making the constitutionally required determination that a
defendant's guilty plea is truly voluntary. [
Footnote 11] Second, the Rule is intended to
produce a complete record at the time the plea is entered of the
factors relevant to this voluntariness determination. Thus, the
more meticulously the Rule is adhered to, the more it tends to
discourage, or at least to enable more expeditious disposition of,
the numerous and often frivolous post-conviction attacks on the
constitutional validity of guilty pleas. [
Footnote 12]
Prior to the 1966 amendment, however, not all district judges
personally interrogated defendants before accepting their guilty
pleas. [
Footnote 13] With an
awareness of the confusion over the Rule's requirements in this
respect, the draftsmen amended it to add a provision "expressly
Page 394 U. S. 466
requir[ing] the court to address the defendant personally."
[
Footnote 14] This
clarification of the judge's responsibilities quite obviously
furthers both of the Rule's purposes. By personally interrogating
the defendant, not only will the judge be better able to ascertain
the plea's voluntariness, but he also will develop a more complete
record to support his determination in a subsequent post-conviction
attack.
These two purposes have their genesis in the nature of a guilty
plea. A defendant who enters such a plea simultaneously waives
several constitutional rights, including his privilege against
compulsory self-incrimination, his right to trial by jury, and his
right to confront his accusers. [
Footnote 15] For this waiver to be valid under the Due
Process Clause, it must be "an intentional relinquishment or
abandonment of a known right or privilege."
Johnson v.
Zerbst, 304 U. S. 458,
304 U. S. 464
(1938). Consequently, if a defendant's guilty plea is not equally
voluntary and knowing, it has been obtained in violation of due
process, and is therefore void. [
Footnote 16] Moreover, because a guilty plea is an
admission of all the elements of a formal criminal charge, it
cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts. [
Footnote 17]
Page 394 U. S. 467
Thus, in addition to directing the judge to inquire into the
defendant's understanding of the nature of the charge and the
consequences of his plea, Rule 11 also requires the judge to
satisfy himself that there is a factual basis for the plea. The
judge must determine
"that the conduct which the defendant admits constitutes the
offense charged in the indictment or information or an offense
included therein to which the defendant has pleaded guilty.
[
Footnote 18]"
Requiring this examination of the relation between the law and
the acts the defendant admits having committed is designed to
"protect a defendant who is in the position of pleading
voluntarily with an understanding of the nature of the charge but
without realizing that his conduct does not actually fall within
the charge. [
Footnote
19]"
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 subsequent 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 responses to his
inquiries. For this reason, we reject the Government's contention
that Rule 11 can be complied with although the district judge does
not personally inquire whether the defendant understood the nature
of the charge. [
Footnote
20]
Page 394 U. S. 468
II
Having decided that the Rule has no been complied with, we must
also determine the effect of that noncompliance, an issue that has
engendered a sharp difference of opinion among the courts of
appeals. In
Heiden v. United States, 353 F.2d 53 (1965),
the Court of Appeals for the Ninth Circuit held that, when the
district court does not comply fully with Rule 11 the defendant's
guilty plea must be set aside and his case remanded for another
hearing at which he may plead anew. [
Footnote 21] Other courts of appeals, however, have
consistently rejected this holding, either expressly [
Footnote 22] or tacitly. [
Footnote 23] Instead, they have
adopted the approach
Page 394 U. S. 469
urged by the Government, which is to place upon the Government
the burden of demonstrating from the record of the Rule 11 hearing
that the guilty plea was voluntarily entered with an understanding
of the charge.
See, e.g., Halliday v. United States, 380
F.2d 270 (C.A. 1st Cir.1967);
Lane v. United States, 373
F.2d 570 (C.A. 5th Cir.1967). [
Footnote 24] In these circuits, if voluntariness cannot
be determined from the record, the case is remanded for an
evidentiary hearing on that issue.
See, e.g., Kennedy v. United
States, 397 F.2d 16 (C.A. 6th Cir.1968);
Halliday v.
United States, supra.
We are persuaded that the Court of Appeals for the Ninth Circuit
has adopted the better rule. From the defendant's perspective, the
efficacy of shifting the burden of proof to the Government at a
later voluntariness hearing is questionable. In meeting its burden,
the Government will undoubtedly rely upon the defendant's statement
that he desired to plead guilty and frequently a statement that the
plea was not induced by any threats or promises. This
prima
facie case for voluntariness is likely to be treated as
irrebuttable in cases such as this one, where the defendant's reply
is limited to his own plaintive allegations that he did not
understand the nature of the charge and therefore failed to assert
a valid defense or to limit his guilty plea only to a lesser
included offense. No matter how true these allegations may be,
rarely, if ever, can a defendant corroborate them in a post-plea
voluntariness hearing.
Rule 11 is designed to eliminate any need to resort to a later
factfinding proceeding "in this highly subjective area."
Heiden
v. United States, supra, at 55. The Rule
"contemplates that disputes as to the understanding of the
defendant and the voluntariness of his
Page 394 U. S. 470
action are to be eliminated at the outset. . . ."
Ibid. As the Court of Appeals for the Sixth Circuit
explained in discussing what it termed the "persuasive rationale"
of
Heiden:
"When the ascertainment is subsequently made, greater
uncertainty is bound to exist, since, in the resolution of disputed
contentions problems of credibility and of reliability of memory
cannot be avoided. . . ."
Waddy v. Heer, 383 F.2d 789, 794 (1967). There is no
adequate substitute for demonstrating in the record at the time the
plea is entered the defendant's understanding of the nature of the
charge against him.
The wisdom of Rule 11's requirements and the difficulty of
achieving its purposes through a post-conviction voluntariness
hearing are particularly apparent in this case. Petitioner, who was
65 years old and in poor health at the time he entered his plea,
had been suffering from a serious drinking problem during the time
he allegedly evaded his taxes. He pleaded guilty to a crime that
requires a "knowing and willful" attempt to defraud the Government
of its tax money; [
Footnote
25] yet, throughout his sentencing hearing, he and his counsel
insisted that his acts were merely "neglectful," "inadvertent," and
committed without "any disposition to deprive the United States of
its due." Remarks of this nature cast considerable doubt on the
Government's assertion that petitioner pleaded guilty with full
awareness of the nature of the charge. Nevertheless, confronted
with petitioner's statement that he entered his plea of his "own
volition," his counsel's statement that he explained the nature of
the charges, and evidence that petitioner did owe the Government
back taxes, both the District Court and the Court of Appeals
concluded that petitioner's guilty plea was voluntary.
Despite petitioner's inability to convince the courts below that
he did not fully understand the charge against
Page 394 U. S. 471
him, it is certainly conceivable that he may have intended to
acknowledge only that he, in fact, owed the Government the money it
claimed without necessarily admitting that he committed the crime
charged; for that crime requires the very type of specific intent
that he repeatedly disavowed.
See Sansone v. United
States, 380 U. S. 343
(1965). Moreover, since the elements of the offense were not
explained to petitioner, and since the specific acts of tax evasion
do not appear of record, it is also possible that, if petitioner
had been adequately informed he would have concluded that he was
actually guilty of one of two closely related lesser included
offenses, which are mere misdemeanors. [
Footnote 26]
On the other hand, had the District Court scrupulously complied
with Rule 11, there would be no need for such speculation. At the
time the plea was entered, petitioner's own replies to the court's
inquiries might well have attested to his understanding of the
essential elements of the crime charged, including the requirement
of specific intent, and to his knowledge of the acts which formed
the basis for the charge. Otherwise, it would be apparent to the
court that the plea could not be accepted. Similarly, it follows
that, if the record had been developed properly, and if it
demonstrated that petitioner entered his plea freely and
intelligently, his subsequent references to neglect and
inadvertence could have been summarily dismissed as nothing more
than overzealous supplications for leniency.
We thus conclude that prejudice inheres in a failure to comply
with Rule 11, for noncompliance deprives the defendant of the
Rule's procedural safeguards that are
Page 394 U. S. 472
designed to facilitate a more accurate determination of the
voluntariness of his plea. 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.
We therefore reverse the judgment of the Court of Appeals for
the Seventh Circuit and remand the case for proceedings consistent
with this opinion.
It is so ordered.
|
394
U.S. 459appa|
APPENDIX A TO OPINION OF THE COURT
The relevant portion of the colloquy at the Rule 11 hearing on
July 15 is as follows:
"Mr. Sokol [petitioner's counsel]: . . . If the Court please, I
have advised Mr. McCarthy of the consequences of a plea. At this
time, in his behalf I would like to withdraw the plea of not guilty
heretofore entered to Count 2, and enter a plea of guilty to Count
2. There are three Counts."
"The Court: Is that satisfactory to the government?"
"Mr. Hughes [Government counsel]: Satisfactory to the
government, your Honor. The government will move to dismiss Counts
1 and 3. "
Page 394 U. S. 473
"The Court: There will be a disposition in regard to the other
Count?"
"Mr. Sokol: He has just moved to dismiss Counts 1 and 3."
"The Court: Not until the plea is accepted and there is a
judgment thereon."
"Mr. Hughes: Correct."
"The Court: This is tax evasion, five and ten?"
"Mr. Hughes: Yes, your Honor, a maximum penalty of five years
and $10,000."
"The Court: Mr. McCarthy, your lawyer tells me that you want to
enter a plea of guilty to this second Count of this indictment; is
that true?"
"Defendant McCarthy: Yes, your Honor."
"The Court: You understand on your plea of guilty to the second
Count of this indictment, you are waiving your right to a jury
trial?"
"Defendant McCarthy: Yes, your Honor."
"The Court: You understand on your plea of guilty you may be
incarcerated for a term not to exceed five years?"
"Defendant McCarthy: Yes, your Honor."
"The Court: You understand you may be fined in an amount not in
excess of $10,000?"
"Defendant McCarthy: Yes, your Honor."
"The Court: Knowing all that, you still persist in your plea of
guilty?"
"Defendant McCarthy: Yes, your Honor."
"The Court: The record will show that this defendant, after
being advised of the consequences of his plea to Count 2 of this
indictment, persists in his plea. The plea will be accepted. There
will be a finding of guilty in the manner and form as charged in
Count 2 of this indictment, judgment on that finding."
"Now, in regard to Counts 1 and 3? "
Page 394 U. S. 474
"Mr. Hughes: Your Honor, the government will move to dismiss
them. I would also request the Court to ask whether or not any
promises or threats have been made."
"Mr. Sokol: No, no promises or threats."
"The Court: I am going to ask the defendant himself. Have any
promises been made to you for entering a plea of guilty?"
"Defendant McCarthy: No, your Honor."
"The Court: Has anybody threatened you that, if you didn't enter
a plea of guilty something would happen to you?"
"Defendant McCarthy: I beg your pardon?"
"The Court: Has anybody threatened you to enter a plea of
guilty?"
"Defendant McCarthy: That's right, of my own volition, your
Honor."
"The Court: All right. Enter a pretrial investigation order and
continue the matter until the 14th day of September. Same bond may
stand."
|
394
U.S. 459appb|
APPENDIX B TO OPINION OF THE COURT.
The colloquy at the September 14 sentencing hearing included the
following:
"Mr. Sokol [petitioner's counsel]: . . . If the Court please,
apart from the wrecking of his physical health that has attended a
number of the problems that relate to the drinking in this case,
this man has experienced a kind of punishment, self-inflicted,
which almost is a categorical listing of how he flees, actually,
and I use that word advisedly, flees from consequence to punishment
to additional consequence. It is a sad thing when, at the age of
sixty-five, a man who has been able to rear, with the help of his
wife, a fine family, has to leave a legacy such as this. I submit
to the Court that he needs
Page 394 U. S. 475
no deterrent. I cannot imagine a man -- apart from the
conventional contrition, he has actively sought out help in order
to overcome what has become a very, very serious physical and
psychological problem."
"When I spoke with Mr. Sanculius [the probation officer], I knew
that we had given to him some reference to the fact and some
attestations of the facts, supported the facts, that there had been
a very, very serious psychological problem here."
"With respect to the tax case itself, he never took one single
step to delude the investigating officer from the very, very start,
and this was before Counsel was in the matter. He extended -- in
other words, he was open and he answered all questions
readily."
"The Court: Yes, but his books were in such shape that it made
it very difficult to -- and that, in my opinion, was not
inadvertent."
"
* * * *"
"Mr. Sokol: . . . When a man is neglectful and adopts a kind of
a devious way of secreting himself from the government, that is one
thing, and we are mindful they are kind of indicia of fraud. But
where a man's pattern is neglect of not only something like this --
he is sloppy with respect to that, but in gross, in gross,
unaccountable, so to speak."
"There was no direct relationship to the consequences of
taxation. Now, I would like to point out in that connection that,
when the investigation commenced it zeroed in, and very, very
properly, there was a disclosure made from the very, very first
that, in the case of the Blue Cross check, the matter of depositing
that, in a second account actually had absolutely nothing whatever
to do with the government. At that time he had been very, very
deeply involved in a protracted drinking situation
Page 394 U. S. 476
and had been in the hospital for several weeks. His family, in
order to avoid the matter of him really needing somebody to lead
him around by the nose said, and his wife said, 'You have to put
yourself under the jurisdiction of your brother,' and there was
some indication that he was supposed to deposit this and he would
not have disposition over his own assets. They did not feel that he
could look out for himself. He was oppressed, and there is no sense
in going over how people become so. In this particular case, with a
history after sixty-five years of this kind of a situation, one can
perhaps guess without going into Freudian terms he was oppressed,
and in order to free himself -- and this had nothing to do with the
government -- in order to free himself from what he felt was a trap
situation where he, at the age of sixty-two or sixty-three was
being treated like a little boy, he put it in a different bank
account. But there was never any disposition to deprive the United
States of its due."
"He has never acted, actually, in what you would call normal
consequence, because an interview with this man, even once,
indicates that, if he has -- and it is like a little boy -- if he
has the consequence lying before him he says, 'Oh, yes.'"
"
* * * *"
"Mr. Sokol: He did not act in contemplation of avoiding
taxation. That was a natural consequence of what can best be
described as gross neglect, and criminal neglect, if you
please."
"I could not have, in good conscience, recommended that he go
into a plea if I did not feel that neglect has become criminal when
it reaches a certain stage. But this was not a part of any
elaborate scheme or any devious course of conduct where he was
acting in contemplation of a tax return that -- "
Page 394 U. S. 477
"The Court: It took place over a series of four years, didn't
it, Counsel?"
"Mr. Sokol: No, your Honor, because the real problem related to
the matter of his avoiding the accountability not to his
government, but to the matter of the spending money."
"The Court: Well, I am sure that, if the government had not
stepped in, why, it would have lasted over a period of eight
years."
"Mr. Sokol: No, he had already done this, apart from the fact
that he had sought help with respect to the drinking, apart from
the fact that he had sought help with respect to the psychiatric
problem, and apart from the fact that he had already, so to speak,
contained himself, he did, in addition, seek out the help of Mr.
Abraham Angram, my associate counsel in the case, who was guiding
him, and he was on the right path. No, he had -- I want to point
out to the Court that this has occurred. This is
fait
accompli."
[
Footnote 1]
The relevant portion of the colloquy at this hearing is quoted
in
394
U.S. 459appa|>Appendix A.
[
Footnote 2]
Defense counsel's account of petitioner's personal problems
during the period he allegedly evaded his income taxes is quoted in
394
U.S. 459appb|>Appendix B.
[
Footnote 3]
Fed.Rule Crim.Proc. 11.
[
Footnote 4]
Ibid. Both of these provisions were added by the 1966
amendment to Rule 11. The amendment became effective on July 1,
1966. It is italicized on the next page in the following quotation
of the Rule:
"A defendant may plead not guilty, guilty or, with the consent
of the court,
nolo contendere. 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. If a defendant refuses to plead
or if the court refuses to accept a plea of guilty or if a
defendant corporation fails to appear, the court shall enter a plea
of not guilty.
The court shall not enter a judgment upon a plea
of guilty unless it is satisfied that there is a factual basis for
the plea."
[
Footnote 5]
387 F.2d 838 (C.A. 7th Cir.1968).
[
Footnote 6]
The Advisory Committee suggests three methods of determining
that a factual basis exists for a guilty plea: (1) inquiring of the
defendant; (2) inquiring of the prosecutor; (3) examining the
presentence report. Fed.Rule Crim.Proc. 11, Notes of Advisory
Committee on Criminal Rules.
[
Footnote 7]
During 1968, approximately 86% (22,055 out of 25,674) of all
convictions obtained in the United States district courts were
pursuant to a plea of guilty or its substantial equivalent, a plea
of
nolo contendere. 1968 Director of the Administrative
Office of the United States Courts Ann.Rep. 261.
[
Footnote 8]
See nn.
22 and |
22 and S. 459fn23|>23,
infra.
[
Footnote 9]
The Government agrees with the Court of Appeals that the record
of the September 14 sentencing hearing demonstrates that the
District Judge satisfied himself by examining the presentence
report that there was a factual basis for the plea. However,
because of the Government's concession at oral argument that the
judge did not inquire whether petitioner understood the nature of
the charge, and because of our holding that any noncompliance with
Rule 11 is reversible error, we need not consider the Government's
contention that the record adequately supports the Court of
Appeals' conclusion that the district judge satisfied himself that
there was a factual basis for the plea.
[
Footnote 10]
See Waddy v. Heer, 383 F.2d 789 (C.A. 6th
Cir.1967).
[
Footnote 11]
See, e.g., Machibroda v. United States, 368 U.
S. 487,
368 U. S. 493
(1962);
Von Molte v. Gillies, 332 U.
S. 708 (1948);
Waley v. Johnston, 316 U.
S. 101 (1942).
[
Footnote 12]
See Stephens v. United States, 376 F.2d 23 (C.A. 10th
Cir.),
cert. denied, 389 U.S. 881 (1967);
Rimanich v.
United States, 357 F.2d 537 (C.A. 5th Cir.1966);
Kadwell
v. United States, 315 F.2d 667, 669 n. 6 (C.A. 9th Cir.1963);
Orfield, Pleas in Federal Criminal Procedure, 35 Notre Dame Law. 1,
31-32 (1959).
Chief Judge Walter E. Hoffman of the United States District
Court for the Eastern District of Virginia has stated that
"[t]he multitude of questions presented by the arraignment and
plea under Rules 10 and 11 furnish the most frequent basis for
attack in the popular post-conviction remedy available to federal
prisoners."
Hoffman, What Next in Federal Criminal Rules?, 21 Wash. &
Lee L.Rev. 1, 8 (1964).
[
Footnote 13]
See Fed.Rule Crim.Proc. 11, Notes of Advisory Committee
on Criminal Rules.
[
Footnote 14]
Ibid.
[
Footnote 15]
See L. Orfield, Criminal Procedure Under the Federal
Rules § 11:12 (1966); A. Enker, Perspectives on Plea Bargaining,
President's Comm'n on Law Enforcement and Administration of
Justice, Task Force Report: The Courts, Appendix A, 116 (1967);
Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure
Guilty Pleas, 112 U.Pa.L.Rev. 865, 871-872 (1964).
[
Footnote 16]
See n 11,
supra.
[
Footnote 17]
See D. Newman, Conviction, The Determination of Guilt
or Innocence Without Trial 23 (1966); ABA Project on Minimum
Standards for Criminal Justice: Standards Relating to Pleas of
Guilty § 1.4(a), commentary (Tent.Draft 1967).
[
Footnote 18]
Fed.Rule Crim.Proc. 11, Notes of Advisory Committee on Criminal
Rules.
[
Footnote 19]
Ibid.
[
Footnote 20]
The nature of the inquiry required by Rule 11 must necessarily
vary from case to case, and, therefore, we do not establish any
general guidelines other than those expressed in the Rule itself.
As our discussion of the facts in this particular case suggests,
however, where the charge encompasses lesser included offenses,
personally addressing the defendant as to his understanding of the
essential elements of the charge to which he pleads guilty would
seem a necessary prerequisite to a determination that he
understands the meaning of the charge. In all such inquiries,
"[m]atters of reality, and not mere ritual, should be controlling."
Kennedy v. United States, 397 F.2d 16, 17 (C.A. 6th
Cir.1968).
[
Footnote 21]
After two separate panels had applied
Heiden
retroactively without discussion in
Geter v. United
States, 353 F.2d 208 (1965), and
Freeman v. United
States, 350 F.2d 940, 943 (1965), in a subsequent en banc
decision the Ninth Circuit held that it would not apply
Heiden to cases in which the guilty plea was accepted
before the date on which
Heiden was decided.
Castro v.
United States, 396 F.2d 345 (C.A. 9th Cir.1968).
[
Footnote 22]
Kennedy v. United States, 397 F.2d 16 (C.A. 6th
Cir.1968);
Halliday v. United States, 380 F.2d 270 (C.A.
1st Cir.1967) ("at least with respect to [pre-amended] Rule 11");
Stephens v. United States, 376 F.2d 23 (C.A. 10th Cir.),
cert. denied, 389 U.S. 881 (1967);
Brokaw v. United
States, 368 F.2d 508 (C.A.4th Cir.1966),
cert.
denied, 386 U.S. 996 (1967) (at least where the defendant
raises only the factual issues of voluntariness).
[
Footnote 23]
United States v. Del Piano, 386 F.2d 436 (C.A.3d
Cir.1967),
cert. denied, 392 U.S. 936 (1968);
Lane v.
United States, 373 F.2d 570 (C.A. 5th Cir.1967);
United
States v. Kincaid, 362 F.2d 939 (C.A.4th Cir.1966);
Bartlett v. United States, 354 F.2d 745 (C.A. 8th
Cir.1966).
[
Footnote 24]
See 8 J. Moore, Federal Practice � 11.03[1], at 11-22
(2d ed.1968).
But see United States v. Pate, 357 F.2d 911
(C.A. 7th Cir.1966).
[
Footnote 25]
Sansone v. United States, 30 U.
S. 343 (1965).
[
Footnote 26]
Willfully filing a fraudulent or false return is a misdemeanor
under § 7207 of the Internal Revenue Code, and willfully failing to
pay taxes is a misdemeanor under § 7203 of the Code. The close
interrelationship between these two offenses and the felony for
which petitioner was convicted under § 7201 is explained in detail
in
Sansone.
MR. JUSTICE BLACK, concurring.
I concur, though not without some doubt, in the reversal of the
judgment of conviction in this case. Rule 11 of the Federal Rules
of Criminal Procedure requires that the trial judge personally
address a defendant who pleads guilty in order to ascertain if he
understands the nature of the crime of which he has pleaded guilty.
In this case, the trial judge did not personally address the
defendant, but seems to have accepted the statement of the
defendant's lawyer that he had advised the petitioner of the
consequences of a plea of guilty. I base my concurrence in the
judgment not upon any "supervisory power" of this Court, however,
but exclusively on the failure of the judge to first address the
defendant personally, as required by Rule 11.