United States of America, Plaintiff-appellee, v. David Punch, Defendant-appellant, 709 F.2d 889 (5th Cir. 1983)

INTRODUCTION:

David Punch appeals his conviction for importation of marijuana and cocaine following the district court's denial of his motion to withdraw his prior guilty plea. We conclude that the district court's failure to adequately inform Punch of the nature of the charges against him requires automatic reversal of his conviction.

FACTS AND DISPOSITION BELOW:

On December 15, 1980 government agents in Dulac, Louisiana seized the M/V ARTISTA and its cargo of 46,000 pounds of marijuana and 200 pounds of cocaine.¹  Punch, the registered owner of the M/V ARTISTA, was subsequently charged in a four count indictment with possession with intent to distribute marijuana (Count I), possession with intent to distribute cocaine (Count II), importation of marijuana (Count III), and importation of cocaine (Count IV).

At a pre-trial conference, Punch's lawyer presented the court with a proposal to settle the case by having his client plead guilty to Counts III and IV of the indictment. Punch's lawyer stressed, however, that Punch persisted in maintaining that he was innocent of all charges, claiming that his ship had been used for criminal purposes without his authorization.

Although Punch believed that it was wrong for an innocent man to plead guilty, his lawyer later testified that he was able to convince him that, given the strength of the Government's case, it was in his best interest to enter a plea of guilty.²  The district judge accepted the plea under the rule of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), which permits the acceptance of a guilty plea even though the defendant persists in maintaining his innocence. The Government agreed to move for dismissal of the remaining counts at the time of sentencing.

Four days after he entered his plea, Punch was visited in jail by a probation officer assigned to prepare his pre-sentence report. In the course of the visit, Punch told the officer that he intended to withdraw his guilty plea. Since Punch's lawyer was on vacation at that time, Punch wrote a letter to the district judge informing him that he wished to withdraw the plea. Sentencing was postponed accordingly, and upon his return from vacation, Punch's lawyer filed a formal motion to withdraw the plea under Fed. R. Crim. P. 32(d).³  After hearing oral argument, the court denied the motion and sentenced Punch to concurrent four year terms on Counts III and IV. The court relied on its discretionary power to deny the motion, reasoning that: (1) Punch was ably represented by counsel at the Rule 11 proceeding; (2) Punch was afforded every constitutional safeguard; and (3) all of the participants in the proceeding fully understood what was going on.

ANALYSIS:

Core Concerns

Punch argues on appeal that his conviction must be reversed because the district court failed to properly inform him of the elements of the offense to which he pleaded guilty. Rule 11(c) (1) of the Federal Rules of Criminal Procedure provides in pertinent part:

Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, ... the nature of the charge to which the plea is offered.

Fed. R. Crim. P. 11(c) (1). In United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904, 100 S. Ct. 1080, 63 L. Ed. 2d 320 (1980), this Court set out a number of clear and definite guidelines governing the conduct of guilty plea hearings, and the standards for reviewing these hearings on appeal. In Dayton, we stated that: (1) The requirement that the judge personally inform the defendant of the nature of the charge against him, and determine that he understands it, is a "core concern" of Fed. R. Crim. P. 11. (2) The entire failure by the court to address this core concern requires automatic reversal under McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). (3) In some cases, mere failure to adequately address this core concern may authorize further examination of the alleged omission in light of the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). (4) For simple charges, "a reading of the indictment, followed by an opportunity given the defendant to ask questions about it, will usually suffice" to discharge the judge of his obligation to personally inform the defendant of the nature of the charge against him. (5) Charges of a more complex nature may require further explanation. Dayton, 604 F.2d at 939.

In Dayton, defendants pleaded guilty to charges of possessing a controlled substance with intent to distribute. The district court judge in that case read them the relevant counts of the indictment:

[COUNT 19]

That on or about August 15, 1976, in the Western District of Texas, [defendant] did unlawfully, knowingly and intentionally possess with intent to distribute approximately six hundred pounds of marihuana, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Section 841(a) (1).

....

[COUNT 28]

That on or about December 7, 1976, in the Western District of Texas, [defendant] did unlawfully, knowingly and intentionally possess with intent to distribute approximately one thousand pounds of marihuana, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Section 841(a) (1).

Id. at 941 (emphasis added). The judge then went on to ask defendant whether he understood these charges:

All right, Mr. Dayton, do you understand the nature of the charges that have been made against you in Counts 19 and 28?

MR. DAYTON: Yes, sir.

THE COURT: Mr. Dayton, any question about it?

MR. DAYTON: No, sir.

Id. In Dayton, we held that "the reading of this indictment, followed by an offer by the judge to answer any questions Dayton might have about it, was a satisfactory and sufficient explanation of the nature of this charge. His response that he understood and had no questions... was likewise a sufficient assurance in these circumstances." Id. at 943. See also United States v. Sanchez, 650 F.2d 745, 748 (5th Cir. 1981) (the district attorney's reading of the indictment and the opportunity given by the district court for defendant to ask questions constitutes sufficient compliance with Rule 11(c) (1)).

The indictments handed down in the present case, like those read in open court in Dayton, simply and unambiguously set forth the nature and elements of the charges lodged against defendant. Counts III and IV are reproduced below.

COUNT III

On or about December 15, 1980, in the Eastern District of Louisiana, David Punch knowingly and intentionally did unlawfully import into the United States and into the customs territory of the United States from a place outside thereof, approximately 45,711 pounds of marijuana, a Schedule I controlled substance, said marijuana having been aboard the M/V ARTISTA; all in violation of Title 21, United States Code, Section 952(a) and Title 21, United States Code, Section 960(a) (1).

COUNT IV

On or about December 15, 1980, in the Eastern District of Louisiana, David Punch knowingly and intentionally did unlawfully import into the United States and into the customs territory of the United States from a place outside thereof, approximately 200 pounds of cocaine hydrochloride, a Schedule II narcotic controlled substance, said cocaine having been aboard the M/V ARTISTA; all in violation of Title 21, United States Code, Section 952(a) and Title 21, United States Code, Section 960(s) (1).

(Emphasis added). In the present case, however, neither the judge nor the district attorney ever read these charges to the defendant. We reproduce below relevant excerpts from the transcript of the colloquy between the court, the district attorney, Punch and his counsel at the Rule 11 proceeding:

THE COURT: I want you then to in addition to that, to inform Mr. Punch of the specific counts of the indictment. You don't have to read them in full, but I think it's important that he understands.

[DISTRICT ATTORNEY]: You are charged in a four count indictment. Counts one and two charge you with possessing approximately 45,000 pounds of marijuana, possessing approximately 200 pounds of cocaine hydrochloride, with intent to distribute. Counts three and four charge you with the importation of these substances into the United States, count three charges the importation of the marijuana and court [sic] four charging [you] with the importation of cocaine. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: I understand from the statement that your attorney has made to me and the pleadings that he has filed and his discussions with me in the presence of the U.S. attorney, that you do not specifically acknowledge your guilt with respect to the charges here, but that you do acknowledge the clear fact that the Government has the proof of your guilt, is that a fair statement of your feeling about this matter at this time?

THE DEFENDANT: In a way, but I had no knowledge of that, you know.

THE COURT: Is it my understanding correct [sic] that you feel that the Government's ability to prove their case is so strong that you feel that it is in your interest to enter this plea at this time?

THE DEFENDANT: Yes, sir.

THE COURT: Is that a fair statement?

THE DEFENDANT: Yes, sir.

THE COURT: Do you know what I'm talking about?

THE DEFENDANT: I know what you are talking about now.

(Emphasis added). The record thus reveals that the judge did not have the district attorney read Punch the indictment setting forth the elements of the offense with which he was charged.⁴  Instead, Punch was read an abbreviated version of the indictment, which noticeably failed to mention a most crucial element of the two offenses; the requirement that Punch knowingly and intentionally imported controlled substances into this country. This element is especially critical in light of the fact that Punch strongly protested his innocence of these charges, maintaining before, during and after these proceedings that he did not know that his ship was being used to import marijuana and cocaine into the United States.⁵ 

Although Dayton tells us that in complex cases, a judge in a Rule 11 proceeding must do more than have the indictment read to the defendant, Dayton clearly states that in non-complex cases, a reading of the indictment "will usually suffice." Dayton, 604 F.2d at 938. Nowhere in Dayton do we find any intimation that anything less than a reading of the indictment will ever suffice in cases like this one; indeed, the statement that a reading of the indictment "will usually suffice" clearly implies that in some cases involving simple charges, even a reading of the indictment will not be enough.⁶  Although Punch did acknowledge in response to a separate inquiry by the court that he had had the opportunity to go over a copy of the indictment with his attorney, Dayton nowhere indicates that a judge may satisfy his obligation to inform the defendant of the nature of the charges against him by relying on representations by defense counsel that he has informed his client of these charges. In McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), the Supreme Court held that counsel's statement that he explained the nature of the charges to defendant did not absolve the judge of his personal obligation to inform the defendant of the nature of those charges. McCarthy, 89 S. Ct. at 1173; Id. 89 S. Ct. at 1176 (Black, J. concurring). Although a judge may have the district attorney read the indictment to the defendant in the judge's presence, instead of reading it to the defendant himself, a judge cannot personally assure himself that a defendant understands the nature of the offense with which he is charged without ensuring first-hand that both he and the defendant know what those charges consist of.⁷  Where some of the elements of the offense remain unstated, misunderstandings are likely to occur. United States v. Roberts, 570 F.2d 999, 1011 (D.C. Cir. 1977) ("Whenever the Rule 11 disclosure is incomplete, there is a possibility of a misunderstanding; and whenever this possibility is present and the defendant before sentencing claims that it was a reality, the courts should be loathe to deny an accused his right to trial.") aff'd, 445 U.S. 552, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980). We believe that such a misunderstanding occurred here. In response to the judge's question whether he acknowledged that the Government had strong proof of his guilt, Punch said: "In a way, but I had no knowledge of that, you know." This statement should have alerted the judge to the fact that he and Punch were on different wavelengths. Since Punch was not properly informed that knowledge was an element of the offenses, and maintained his innocence throughout the proceedings,⁸  his response may plausibly be construed as revealing his ignorance either that knowledge was an element of the offense⁹  to which he pled guilty, or that the Government had the burden of proof on knowledge. At the very least, his answer reveals considerable confusion on his part. Had the judge responded to Punch's hesitation by explaining to him that the Government bore the burden of proving beyond a reasonable doubt that he knowingly committed the alleged offense, or by asking Punch to explain what he meant by his response, he could have cleared up the misunderstanding which caused Punch to seek to withdraw his plea shortly thereafter.¹⁰ 

Although excellent reasons exist for permitting an Alford plea,¹¹  the logic underlying this type of plea is counter-intuitive. The average defendant may have some difficulty reconciling himself to the notion of pleading guilty while maintaining his innocence. Personal moral and ethical considerations may lead a person who genuinely believes he is innocent of any wrongdoing to seek to vindicate his innocence despite strong proof of guilt. It is essential that a court accepting an Alford plea make every effort to ensure that a defendant recognize precisely what his plea entails. Strict compliance with the Dayton requirement that the indictment at least be read to the defendant at the judge's direction will go a long way toward ensuring that the defendant is fully informed of the nature of the charges against him.¹² 

Harmless Error

In Dayton, we noted that although the entire failure by the court to address a core concern was inherently prejudicial and required automatic reversal of the conviction, " [t]here may, however, be room for application of [the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) ], to inadequate addresses of these matters or to unrelated constitutional errors arising from Rule 11 proceedings." Dayton, 604 F.2d at 939. While we believe that the application of the harmless error standard may be appropriate in cases of unrelated constitutional errors, or in complex cases where a simple reading of the indictment does not adequately inform the defendant of the nature of the charges against him, we do not believe that the harmless error standard need be applied in a case like this one where the full text of the indictment was not read to defendant in the judge's presence. Where defendant is not informed of one of the elements of the charge against him, there has been an "entire failure" to address a core concern. As used in Dayton, the term "entire failure" does not mean failure to make any mention of the charge whatsoever. It is difficult, if not impossible, to conceive of a Rule 11 proceeding in which a defendant could plead guilty to an unnamed charge. Rather, in a non-complex case, a court fails entirely to personally inform the defendant of the nature of the charges against him when it fails to comply with the requirement that the defendant be read the indictment, or otherwise fails to furnish the defendant the same information he would obtain by hearing the indictment read. Our interpretation of the phrase "entire failure to address a core concern" follows our definition of that phrase in Dayton. In Dayton, we said:

[T]he [Supreme] Court held in McCarthy that "prejudice inheres" in failure to comply with Rule 11 in its form at the time of that opinion. It happens, as we have also noted, that all the rule then treated were the values lying at the heart of the rule's concerns: absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea. The Court was presented there with an entire failure to address the second of these basic pillars of the rule, and it held the omission fatal. We could not, even if we would, alter that holding. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), had gone before McCarthy, but the Court showed no disposition to apply its "harmless beyond a reasonable doubt" formula for review of constitutional error to that Rule 11 context. Nor, logically, can we see how an error inherently prejudicial can be viewed as harmless under any standard of review. Thus, we are bound to conclude, as we do, that such a failure by the trial court to address any one or more of the rule's three core concerns as occurred in McCarthy requires automatic reversal.

Id. at 939. In McCarthy, defendant was told that the charge against him was tax evasion, that it carried a maximum penalty of five years imprisonment and a $10,000 fine, and that by entering a guilty plea he waived his right to a jury trial. In response to the court's inquiries, defendant stated that he fully understood all of these matters. The "entire failure" in McCarthy was therefore not a complete failure to mention the charges or ensure that defendant understood them, or their consequences. The legally significant failure in McCarthy consisted in the court's failure to apprise defendant that the offense required a "knowing and willful" attempt to defraud the Government of its tax revenues, despite defendant's unwaivering insistence that his acts were merely negligent and inadvertent. McCarthy, 89 S. Ct. at 1173. This was the "entire failure" upon which we relied in Dayton when we stated that an entire failure to address one of Rule 11's core concerns was inherently prejudicial, and obviated the need for further scrutiny of the omission in the light of the harmless error rule. In our case, as in McCarthy, the court failed to inform defendant that the offense required a "knowing" act. In our case, as in McCarthy, this omission constituted an "entire failure to address a core concern" as that phrase was defined in Dayton. In our case, as in McCarthy, application of the harmless error rule is therefore unnecessary.

We recognize that in two cases decided after Dayton, this Court has applied the harmless error standard to merely "inadequate" addresses of core concerns. See Wright v. United States, 624 F.2d 557, 560 (5th Cir. 1980); United States v. Caston, 615 F.2d 1111, 1115-16 (5th Cir.), cert. denied, 449 U.S. 831, 101 S. Ct. 99, 66 L. Ed. 2d 36 (1980). In neither of these cases, however, did we analyze what was meant in Dayton by our definition of "entire failure" in terms of the Supreme Court's holding in McCarthy. We believe the correct rule is that set out in a more recent analysis of Dayton, in United States v. Adams, 634 F.2d 830, 838 (5th Cir. 1981), where we said:

Taken together, McCarthy and Dayton provide a basis for determining the appropriate remedies to violations of Rule 11. In order to further the prophylactic scheme established by the Rule and to insure the most effective and efficient appellate review of purported violations, McCarthy requires that defendants whose guilty pleas are taken in procedures not fully in compliance with Rule 11 be allowed to replead, without having to show that actual prejudice results from the violation of the Rule. But in order to avoid an "iron rule of review directed at technical and literal compliance" with the many post-McCarthy additions to Rule 11, we have held that McCarthy's strict enforcement is not mandated where the Rule's "core concerns" are adequately addressed. United States v. Dayton, supra at 940.

Id. at 838 (emphasis added). It is clear from this passage that Rule 11's core concerns cannot be adequately addressed where the procedures used are not fully in compliance with the Rule. In such cases, defendants are automatically entitled to replead, without having to show that actual prejudice resulted from the Rule's violation. Adams indicates that the harmless error standard need only be applied when the court fails to adequately address non-core concerns. However, as we read Dayton, the harmless error standard may properly be applied to failures to address even core concerns, where these failures represent nothing more than purely formal, technical and insignificant deviations from the requirements of Rule 11. We do not in our interpretation of Dayton seek to fashion a rigid, inflexible standard; in Dayton, we made it very clear that errors of this sort were not susceptible to analysis under any simple or mechanical rule. Dayton, 604 F.2d at 937-38. Where, however, as here, the court's inadequate address of one of the elements of the charge results in less than full compliance with Rule 11, we can only conclude that there has been an entire failure to address a core concern, warranting automatic reversal of the conviction.¹³ 

We recognize that the district court throughout these proceedings exhibited considerable concern that Punch be accorded the full protection of the Constitution, and strove to comply with the strictures of Rule 11. Nevertheless, we feel that an error, though inadvertent, was committed. The district court's failure to properly inform Punch of the nature of the charges against him requires automatic reversal of his conviction.

Having disposed of the appeal on this ground, we need not address Punch's additional arguments; that the court failed to inform him of his right to cross-examine the witnesses against him, and that his will was overborne by that of counsel.

Accordingly, we REVERSE the conviction, VACATE the plea of guilty and REMAND with instructions that defendant be permitted to plead anew.