                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        MAY 21 1998
                                  PUBLISH                           PATRICK FISHER
                                                                             Clerk
              UNITED STATES COURT OF APPEALS
                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.
                                                      No. 97-3117
 GINA R. GIGOT, also known as Gina
 R. Herrmann,

       Defendant-Appellant,


                  Appeal from the United States District Court
                            for the District of Kansas
                           (D.C. No. 96-10025-DES)


James Martin Davis of Omaha, Nebraska, for Defendant-Appellant.

Michael G. Christensen, Assistant United States Attorney (Jackie N. Williams,
United States Attorney, and Montie R. Deer, Assistant United States Attorney,
with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.


Before SEYMOUR, Chief Judge, EBEL and KELLY, Circuit Judges.


SEYMOUR, Chief Judge.
      Gina Gigot was convicted on December 18, 1996, of one count of mail

fraud in violation of 18 U.S.C. § 1341, and one count of making willful false

statements relating to matters before the United States Department of Agriculture

in violation of 15 U.S.C. § 714m(a), after she pled guilty pursuant to a plea

agreement. Following the entry of her guilty plea, the district court sentenced

Ms. Gigot on each count to concurrent fifteen-month terms of imprisonment and

three-year terms of supervised release, and ordered her to pay a fine in the amount

of $200,000. Ms. Gigot now appeals her conviction, arguing that the district

court neglected in various ways to follow Fed. R. Crim. P. 11, and that due to this

failure her plea was involuntary and therefore invalid. We reverse.



                                         I.

      The facts surrounding the district court’s and the government’s conduct

prior to and during the hearing on Ms. Gigot’s plea are essentially

uncontroverted. 1 On February 28, 1996, the government filed a four-count

indictment in the district court. Count I charged Ms. Gigot with mail fraud, while

Counts II through IV charged her with making willful false statements to the

Department of Agriculture. After several weeks of trial Ms. Gigot agreed to



      1
       The facts relating to the substantive charges against Ms. Gigot and her
actual guilt or innocence are not relevant to this appeal.

                                         -2-
plead guilty to Counts I and II and to testify in a related matter in exchange for

the government’s agreement to move for dismissal of Counts III and IV, to

recommend a two-level reduction in Ms. Gigot’s sentence for acceptance of

responsibility, and to move for a downward departure pursuant to section 5K1.1

of the sentencing guidelines to a sentence of eighteen months’ home confinement

and a $200,000 fine in lieu of imprisonment. Ms. Gigot was made aware that the

district court was not bound by the plea agreement and could therefore impose

any sentence permitted by statute and the relevant sentencing guidelines.

However, the plea proceeding was marred by an unfortunate series of events

culminating in the present appeal.

      Rather than personally addressing Ms. Gigot during the change of plea

proceeding, the district court directed the government through the Assistant

United States Attorney (AUSA) to recite the minimum and maximum penalties for

each charge against her. This exchange proceeded as follows:

       THE COURT:          Would the United States attorney tell the Court for
                           the record what the penalties are for the crimes
                           alleged in Counts I and II of this indictment?
       AUSA:               I believe the maximum, Your Honor, is 30 years,
                           and it’s a minimum of two years. Is that right?
       MORIARTY:           Post-release?
       AUSA:               Yes.




                                           -3-
         MORIARTY:          Two to three years and a fine not to exceed $1
                            million.


         THE COURT:         On each count?
         AUSA:              Yes, sir.

Aplt. App. at A-6. In discussing the penalties, neither the court, the AUSA, nor

defense counsel explained whether the penalties applied to the mail fraud charge,

the false statements charge, or both. The same sentence does in fact apply to both

charges.

        Likewise, rather than explicitly informing Ms. Gigot of the elements of the

various charges, the district court asked Ms. Gigot’s defense counsel whether he

wished to have the indictment read in open court. Defense counsel explicitly

waived the reading of the indictment and stated his belief that Ms. Gigot fully

understood the charges. When the district court asked Ms. Gigot whether she

understood the charges against her, she replied: “Yes, I do.” Id. at A-4. This

succinct colloquy represents the sum total of the district court’s inquiry into Ms.

Gigot’s understanding of the charges against her and the consequences of her

plea.

        It is undisputed that the AUSA (as well as Ms. Gigot’s own counsel)

misstated the minimum and maximum penalties for the charges against Ms. Gigot.

In actuality, because the crimes with which she was charged did not involve a



                                          -4-
financial institution, the maximum penalty was five years’ imprisonment, three

years’ supervised release, and a fine not to exceed $250,000. The charged

offenses carry no mandatory minimum sentence. It is further undisputed that the

written plea agreement signed by Ms. Gigot during the change of plea hearing

made no reference at all to supervised release and did not set forth the maximum

penalties for the charged counts. Moreover, the petition to plead guilty signed by

Ms. Gigot that same day, while correctly stating the period of supervised release,

again misstated the maximum penalty as thirty years. The indictment did not

specify the elements of either count with which Ms. Gigot was charged, nor were

the elements set forth in the written plea agreement signed prior to the change of

plea hearing. 2 It is undisputed that the Presentence Investigation Report (PSR),


       2
           The essential elements for obtaining a conviction under 18 U.S.C. § 1341
are:

       (1) the devising of a scheme or artifice either (a) to defraud or (b) for
       obtaining money by means of false or fraudulent pretenses,
       representations, or promises, (2) the specific intent to defraud, and
       (3) the use of the United States mails to execute the scheme.

United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir. 1995).

     The essential elements for obtaining a conviction under 15 U.S.C. §
714m(a) are:

       1) a statement; 2) that is false; 3) the defendant knows it to be false;
       and 4) the defendant makes it for the purpose of either influencing
       action of the [Commodity Credit Corporation (CCC)] or obtaining
                                                                         (continued...)

                                           -5-
provided to Ms. Gigot two months after the plea hearing, correctly stated the

relevant penalties. 3 It is also undisputed, however, that Ms. Gigot was never at

any point explicitly informed of the elements of the charges against her.

      At sentencing, the district court accepted the government’s recommendation

that Ms. Gigot be fined $200,000. The court declined, however, to follow the

government’s recommendation to depart downward to a sentence of eighteen

months’ home confinement and instead sentenced Ms. Gigot to concurrent terms

of fifteen months’ imprisonment and three years’ supervised release.

      Ms. Gigot asserts on appeal that in accepting her plea the district court

failed to follow the procedures mandated by Fed. R. Crim. P. 11. Specifically,

she alleges the following deficiencies: 1) the district court failed to advise her

personally of any of the penalties she would face; 2) the court allowed her to

accept a plea agreement containing a recommended sentence the court could not

legally impose; 3) the court failed to advise her that she could face a term of

supervised release and the effects thereof; and 4) the court failed to advise her in


      2
       (...continued)
      something of value under an act applicable to the CCC.

United States v. Huntsman, 959 F.2d 1429, 1437 (8th Cir. 1992).
      3
       Although she does not dispute the PSR’s statement of the applicability of
supervised release to her case or the maximum and minimum terms contained
therein, Ms. Gigot does contend that she did not understand the meaning of
“supervised release” at least partly because the PSR did not give a definition.

                                         -6-
any form of the elements of the offenses with which she was charged or the

correct minimum and maximum penalties she faced. As a result of these alleged

errors, Ms. Gigot contends her plea was not knowingly, intelligently, and

voluntarily made and must therefore be set aside. We conclude that the court’s

failure to advise Ms. Gigot of the elements of the offenses and the correct

penalties mandates reversal and we therefore do not address her other allegations

of error.



                                        II.

                                            A.

       Rule 11 of the Federal Rules of Criminal Procedure “is designed to assist

the district judge in making the constitutionally required determination that a

defendant’s guilty plea is truly voluntary.” McCarthy v. United States, 394 U.S.

459, 465 (1969). Whether a district court has complied with Rule 11 in accepting

a defendant’s plea and, accordingly, whether the defendant’s plea was knowing,

intelligent, and voluntary, is a question of law we review de novo. See United

States v. Browning, 61 F.3d 752, 753 (10th Cir. 1995); United States v. Gomez-

Cuevas, 917 F.2d 1521, 1524 (10th Cir. 1990).

       Rule 11 provides in relevant part:

       (c) Advice to Defendant. Before accepting a plea of guilty or nolo
       contendere, the court must address the defendant personally in open

                                            -7-
      court and inform the defendant of, and determine the defendant
      understands, the following:

             (1) the nature of the charge to which the plea is offered, the
             mandatory minimum penalty provided by law, if any, and the
             maximum possible penalty provided by law, including the
             effect of any special parole or supervised 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, when applicable, that the court may also
             order the defendant to make restitution to any victim of the
             offense . . . .

Fed. R. Crim. P. 11(c)(1). The court must further determine, “by addressing the

defendant personally in open court,” that the plea sought to be entered is

voluntary. Fed. R. Crim. P. 11(d). “[T]o determine whether a plea is voluntary, a

court must assess whether the defendant fully understood the consequences of the

plea.” United States v. Williams, 919 F.2d 1451, 1456 (10th Cir. 1990).

      Although district courts are required to comply with the procedures set

forth in Rule 11, their failure to do so does not call for automatic reversal on

direct appeal. Rather, “[a]ny variance from the procedures required by this rule

which does not affect substantial rights shall be disregarded” as harmless error.

Fed. R. Crim. P. 11(h). However, subdivision (h) “should not be read as

supporting extreme speculative harmless error claims or as, in effect, nullifying

important Rule 11 safeguards.” Fed. R. Crim. P. 11(h) advisory committee’s note

(1983 Amendment). Rule 11 clearly contemplates that departures from mandated

procedures will be considered harmless only in “limited” circumstances. Id.

                                          -8-
(“[I]t is fair to say that the kinds of Rule 11 violations which might be found to

constitute harmless error upon direct appeal are fairly limited . . .”); Gomez-

Cuevas, 917 F.2d at 1524 & nn.2-3 (noting that one who knowingly and

voluntarily pleads guilty evinces a desire to waive “technicalities,” but that

careful compliance with Rule 11 remains best way to serve ends of fair and

efficient administration of criminal justice); United States v. Barry, 895 F.2d 702,

705 (10th Cir. 1990) (subsection 11(h) harmless error rule not applied lightly);

United States v. Theron, 849 F.2d 477, 481 (10th Cir. 1988) (same). Application

of the analysis contemplated by Rule 11(h) is part of our de novo review of the

plea proceeding. See United States v. Vaughn, 7 F.3d 1533, 1535 (10th Cir.

1993). See generally United States v. Dewalt, 92 F.3d 1209 (D.C. Cir. 1996).

      An error in a Rule 11 proceeding is not harmless unless “we are convinced

that . . . substantial rights were not detrimentally affected and that the district

court’s error had no significant influence on [the] decision to plead guilty.”

Vaughn, 7 F.3d at 1535. We will not hold a Rule 11 defect harmless where the

plea is a product of a “material misrepresentation” relied on by the defendant.

See Williams, 919 F.2d at 1456. Nor will we find harmless error where “[t]here

is a reasonable possibility that [defendant] was confused in a way that compliance

with Rule 11 could have remedied.” Theron, 849 F.2d at 481. This standard was

succinctly articulated by the Fifth Circuit as follows:


                                           -9-
             To determine whether a Rule 11 error is harmless (i.e., whether
      the error affects substantial rights), we focus on whether the
      defendant’s knowledge and comprehension of the full and correct
      information would have been likely to affect his willingness to plead
      guilty. Stated another way, we “examine the facts and circumstances
      of the . . . case to see if the district court’s flawed compliance with . .
      . Rule 11 . . . may reasonably be viewed as having been a material
      factor affecting [defendant]’s decision to plead guilty.”

United States v. Johnson, 1 F.3d 296, 302 (5th Cir.1993) (en banc) (quoting

United States v. Bachynsky, 934 F.2d 1349, 1360 (5th Cir. 1991) (en banc)). 4

      This formulation of the inquiry is faithful both to the constitutional

concerns Rule 11 was meant to further, as well as to the requirement that errors in

such proceedings be carefully scrutinized in order to ensure that pleas are not set

aside for purely formal reasons. In applying this standard, we keep in mind that

“‘the values lying at the heart of the rule’s concerns [are] absence of coercion,

understanding of the accusation, and knowledge of the direct consequences of the

plea.’” Gomez-Cuevas, 917 F.2d at 1525 (quoting United States v. Dayton, 604


      4
        Versions of this rule are in force in several circuits. See, e.g., United
States v. Richardson, 121 F.3d 1051, 1058 (7th Cir. 1997) (harmlessness inquiry
focuses on “‘whether the defendant’s knowledge and comprehension of the full
and correct information would have been likely to affect his willingness to plead
guilty’”) (quoting United States v. Padilla, 23 F.3d 1220, 1221 (7th Cir. 1994));
United States v. McCarthy, 97 F.3d 1562, 1575 (8th Cir. 1996) (adopting Seventh
Circuit analysis); United States v. Dewalt, 92 F.3d 1209, 1214 (D.C. Cir. 1996)
(error harmless if record reveals defendant had actual notice of information court
failed to convey or that the information would not have been important to
defendant in entering his plea); United States v. Goins, 51 F.3d 400, 402 (4th Cir.
1995) (citing Johnson, 1 F.3d at 302).


                                         -10-
F.2d 931, 939 (5th Cir. 1979) (en banc)).



                                        B.

      Ms. Gigot alleges that the district court’s failure to inform her of the

elements of the crimes with which she was charged, as well as its failure to

inform her of the proper penalties she faced, kept her from making a knowing,

intelligent, and voluntary plea. At oral argument the government candidly (to its

credit) admitted the procedural deficiencies in Ms. Gigot’s change of plea

proceeding. 5 Ms. Gigot did not receive explanation of the elements of the charges

from any other source. Moreover, not only did she fail to receive notice of the

proper maximum penalties she faced, Ms. Gigot was actually given material

misinformation.

      Rule 11(c) requires the district court to inform the defendant of and to

ensure she understands the nature of the offenses to which she is pleading. While


      5
       The government acknowledged at oral argument that Ms. Gigot was not
explicitly informed of the elements of the offenses, that she was misinformed of
the penalties, and that neither the government nor the court had any reason to
believe Ms. Gigot had a correct understanding of any of these issues at the time of
sentencing. The government further acknowledged that neither it nor the court
had any basis on which to conclude Ms. Gigot had any idea she could make a
motion to the district court to withdraw her plea. Finally, the government
conceded neither the government nor the court ever told Ms. Gigot she had
received inadequate and incorrect information, and that the record offers no basis
on which to conclude that Ms. Gigot had sufficient information to prompt her to
make a motion to withdraw in the district court based on Rule 11 violations.

                                        -11-
the procedures mandated by Rule 11 are not themselves constitutionally required,

the court is constitutionally required to determine that a defendant’s plea is “truly

voluntary.” McCarthy, 394 U.S. at 466. “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.” Id. In most cases, therefore, “[s]ome rehearsal of the elements of

the offense is necessary.” United States v. Syal, 963 F.2d 900, 905 (6th Cir.

1992). In this case, it is undisputed that Ms. Gigot was never informed by the

indictment or otherwise of the elements of the offenses to which she pled guilty.

See supra note 2. It is also undisputed that the charges against Ms. Gigot were far

from simple or straightforward. Although the indictment details certain acts Ms.

Gigot is alleged to have committed, it does not explain the legal significance of

those factual allegations, set out each element of the offenses, or in any way

identify what the government was required to prove in order to obtain a

conviction. See Syal, 963 F.2d at 905. While Ms. Gigot did sit through several

weeks of trial, she entered her plea prior to the reading of any jury instructions

and the trial itself did not otherwise reveal the elements of the offenses. Id. Nor

did the court inquire into the basis for Ms. Gigot’s belief that she was guilty of

the crimes charged. Compare Gomez-Cuevas, 917 F.2d at 1525 (finding harmless

error where it was clear from defendant’s statements at plea hearing that he


                                         -12-
understood elements of offense even though elements not formally explained).

      Rule 11(c) also requires the district court, prior to accepting a plea, to

inform the defendant of the maximum possible penalty and any mandatory

minimum penalty. In this case, the district court (through the AUSA) 6

misinformed Ms. Gigot that the maximum penalty for the offense with which she

was charged was thirty years when in fact it was five years, and that the maximum

fine was $1 million when the correct amount was $250,000. This error was

repeated in the petition to plead guilty, which Ms. Gigot signed and certified she

“understood.” Obviously, however, this “understanding” was based on an

underlying erroneous predicate. A plea must “constitute a deliberate, intelligent

choice between available alternatives” in order to be knowingly and intelligently

made. United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990) (quoting

United States v. Fernandez, 877 F.2d 1138, 1142 (2d Cir. 1989) (internal


      6
       In her brief, Ms. Gigot argues that in deferring to the AUSA, the district
court violated the plain terms of Rule 11(c) which provides that “the court must
address the defendant personally and in open court.” Because we vacate the plea
on other grounds, we do not reach this claim or consider whether such error may
be harmless. Nor do we reach the question of whether such an error might be
held harmless in a case (unlike this one) where the information provided by the
government is correct. However, we do point out that the Advisory Committee’s
notes specifically provide “it would not be harmless error if the trial judge totally
abdicated to the prosecution the responsibility for giving to the defendant the
various Rule 11 warnings, as this ‘results in the creation of an atmosphere of
subtle coercion that clearly contravenes the policy behind Rule 11.’” Fed. R.
Crim. P. 11(h) advisory committee’s note (1983 Amendment) (quoting United
States v. Crook, 526 F.2d 708 (5th Cir. 1976)).

                                         -13-
quotations omitted)). Because Ms. Gigot did not know the elements of the crimes

with which she was charged and because she was not informed of the correct

penalties for those crimes, her plea necessarily was not a “deliberate” choice

between “available alternatives.”

      We must next address whether these deficiencies in Ms. Gigot’s plea

affected her substantial rights or were “minor and technical violation[s] of Rule

11 which amount[] to harmless error.” Fed. R. Crim. P. 11(h) advisory

committee’s note (1983 Amendment). We conclude that the district court’s

failure to ensure that Ms. Gigot was informed of the elements of the crimes with

which she was charged, its failure to inform her of the correct maximum penalties

she faced, and the fact that the record contains no evidence she actually did know

the elements or the penalties, when taken together, would have been reasonably

likely to affect Ms. Gigot’s decision to plead guilty. In particular, as we have

pointed out above, Rule 11(h) “should not be read as . . . nullifying important

Rule 11 safeguards,” id. Here, two of the three core values of Rule 11 were not

served. First, the record contains no evidence that Ms. Gigot could have or did

understand the charges against her. Moreover, given that she was inundated with

erroneous information regarding the maximum penalty, she could not have had

knowledge of the direct consequences of her plea. That the correct penalties were

at long last set forth in the PSR does not cure the defects in the Rule 11


                                         -14-
proceeding, not least because Ms. Gigot did not receive the PSR until after her

plea had already been accepted. See Goins, 51 F.3d at 404 (holding violations of

Rule 11 cannot be cured by the PSR).

      That Ms. Gigot subsequently received a sentence far less onerous than the

thirty-year maximum she believed she faced does not favor the government. It is

more than possible that Ms. Gigot might have chosen to take her chances with a

jury trial had she thought the worst-case scenario was a five-year prison sentence

and a $250,000 fine rather than the thirty years of confinement and $1 million

fine she mistakably believed she faced. Moreover, we do not find Ms. Gigot’s

failure to attempt to withdraw her plea prior to sentencing significant as she was

operating under misinformation up until the moment she was sentenced and

beyond. 7 In short, a case such as this one, where the defendant was not merely

deprived of a mandated procedure but was actually deprived of the substantive

material information contemplated by Rule 11 as necessary to make a voluntary

plea, is not one of those “limited” instances in which we will hold an error to be

harmless on direct appeal. See Theron, 849 F.2d at 481; see also United States v.

Longoria, 113 F.3d 975, 977 (9th Cir. 1997) (harmless error meant to apply to

“minor or technical” violations of Rule 11). We thus cannot conclude Ms.


      7
       It is worth noting in this context that Ms. Gigot’s trial counsel contributed
to the misinformation that abounded at the plea proceeding and apparently did not
notice the procedural defects prior to or at sentencing.

                                        -15-
Gigot’s plea was entered knowingly, intelligently, and voluntarily.



                                        III.

      In conclusion, the district court’s failure to inform Ms. Gigot of the charges

against her and the correct penalties she faced in violation of Fed. R. Crim. P. 11

was not harmless. Because Ms. Gigot’s substantial rights were thereby impaired,

we REVERSE and REMAND to the district court with instructions to vacate the

guilty plea and conduct further proceedings consistent with this opinion.




                                        -16-
