
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1800                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               GENARO MEDINA-SILVERIO,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                            Cyr and Stahl, Circuit Judges,                                           ______________                             and Pieras,* District Judge.                                          ______________                                                                                      ____________________             Rafael F. Castro Lang for appellant.             _____________________             Esther Castro  Schmidt, Assistant  United  States Attorney,  with             ______________________        whom Guillermo Gil, United  States Attorney, and Jos   A. Quiles-Espi-             _____________                               _____________________        nosa, Senior Litigation Counsel, were on brief for appellee.        ____                                                                                      ____________________                                    July 19, 1994                                                                                      ____________________                                    ____________________             *Of the District of Puerto Rico, sitting by designation.                    CYR,  Circuit Judge.  The only claim we need address in                    CYR,  Circuit Judge                          _____________          this appeal  is  whether the  district  court complied  with  the          procedural  safeguards  mandated by  Criminal  Rule  11 prior  to          accepting appellant's guilty plea to one felony count of  illegal          reentry into  the United States  following deportation.   We con-          clude that the plea acceptance procedure adopted by  the district          court  met neither  the letter  nor the  spirit of  Rule 11.   As          appellant's  guilty plea was  invalid, we remand  to the district          court for further proceedings.                                             I                                          I                                      DISCUSSION                                      DISCUSSION                                      __________                    The Rule 11 hearing  transcript discloses the following          colloquy:                     THE  COURT: .  . .  Mr.  Medina, I  have your                    petition to enter a  plea of guilty, which is                    a  long document consisting  of 13  pages and                    containing 45  questions  and answers.    You                    signed that  document at the  middle of  page                    13.  Is that your signature?                    THE DEFENDANT:  Yes.                    THE COURT:    And your  attorney,  Mr.  Laws,                    signed at the bottom.                    MR. LAWS:  That is correct, Your Honor.                    THE COURT:   Also both you  and your attorney                    initialed each page.  This means, Mr. Medina,                    that these answers are your answers.                    THE DEFENDANT:  Yes.                                          2                    THE COURT:  And are these answers truthful?                    THE DEFENDANT:  Yes.                    THE  COURT:   And if  I repeat  all of  these                    questions, your  answers will be  the same or                    will they be different?                    THE DEFENDANT:  The same.                    THE COURT:   Well, the petition  will be made                                       ___ ________  ____ __ ____                    part of  this change  of plea  proceeding be-                    ____ __  ____ ______  __ ____  __________ ___                    cause I adopt all the questions mentioned  or                    _____ _ _____ ___ ___ _________ _________  __                    included therein. . . .                    ________ _______          Hearing Tr. at  5-6, March 29, 1993  (emphasis added).   The dis-          trict court record discloses no other information relevant to the          content and sufficiency of  the Rule 11 colloquy.   Medina inter-          posed no objection to  the district court procedure.   See United                                                                 ___ ______          States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir. 1991) (appel-          ______    ____________          late court  must determine Rule  11 compliance without  regard to          whether the issue was raised below).                     Appellant contends  that  the district  court's  simple          incorporation  of the Petition to  Enter a Plea  of Guilty denied          him the procedural safeguards  prescribed by Rule 11.   He argues          that the failure to conduct a full and direct examination in open          court  compromised "core"  Rule  11 concerns  and undermined  the          validity of the  guilty plea.  See  United States v. Allard,  926                                         ___  _____________    ______          F.2d 1237,  1244-45  (1st Cir.  1991) (identifying  core Rule  11          concerns:  absence  of coercion,  understanding  of  charges, and          knowledge  of  consequences of  guilty  plea).   Further,  Medina          claims  that comments he made  during the Rule  11 hearing demon-                                          3          strate that his guilty plea was  not "voluntary and intelligent."          See, e.g., Parra-Ibanez, 936 F.2d at 590 (noting that the "stric-          ___  ____  ____________          tures  of Rule 11 [were]  calculated to insure  the voluntary and          intelligent character of the plea").                      The government  responds that  the Petition to  Enter a          Plea of Guilty was completed by appellant, with the assistance of          counsel, only moments before the Rule 11 hearing.  The government          therefore claims  that  any error  was harmless  and affected  no          substantial  rights.  See Fed.  R. Crim. P.  11(h) ("Any variance                                ___          from the procedures required  by this rule which does  not affect          substantial rights shall be disregarded.").  We disagree.                      Criminal Rule 11 provides in pertinent part:                     (c) Advice to Defendant.  Before  accepting a                        ___________________   ______  _________ _                    plea of guilty or  nolo contendere, the court                    ____ __ ______ __  ____ ___________ ___ _____                    must address the defendant personally in open                    ____ _______ ___ _________ __________ __ ____                    court and inform the defendant of, and deter-                    _____ ___ ______ ___ _________ ___ ___ ______                    mine  that  the  defendant  understands,  the                    ____  ____  ___  _________  ____________  ___                    following:                     _________                    (1)  the nature  of the  charge to  which the                    plea is offered, the mandatory minimum penal-                    ty provided  by law, if any,  and the maximum                    possible penalty provided  by law,  including                    the effect  of any  special parole  or super-                    vised release term,  the fact that  the court                    is  required  to   consider  any   applicable                    sentencing  guidelines  but  may depart  from                    those guidelines under some circumstances . .                    . and              *  *  *                      ___                    (3) that the defendant has the right to plead                    not guilty or to persist  in that plea if  it                    has already been made,  the right to be tried                    by  a jury and at that trial the right to the                    assistance of counsel, the right  to confront                    and cross-examine adverse witnesses,  and the                    right  against compelled  self-incrimination;                    and                    ___                                          4                    (4)  that  if  a   plea  of  guilty  or  nolo                    contendere  is accepted  by  the court  there                    will  not be a  further trial of  any kind so                    that  by pleading  guilty or  nolo contendere                    the defendant waives the right to trial; and                                                              ___                    (5)  if the  court  intends to  question  the                    defendant under  oath, on the record,  and in                    the  presence of counsel about the offense to                    which the  defendant  has pleaded,  that  the                    defendant's answers may later be used against                    the defendant in a prosecution for perjury or                    false statement.                    (d) Insuring that the Plea is Voluntary.  The                        ___________________________________   ___                    court shall  not accept  a plea of  guilty or                    _____ _____  ___ ______  _ ____ __  ______                    nolo contendere without first,  by addressing                                    _______ ______  __ __________                    the  defendant  personally  in   open  court,                    ___  _________  __________  __   ____  ______                    determining  that the  plea is  voluntary and                    ___________  ____ ___  ____ __  _________ ___                    not  the result  of  force or  threats or  of                    ___  ___ ______  __  _____ __  _______ __  __                    promises apart  from a plea  agreement.   The                    ________ _____  ____ _ ____  _________                    court shall  also inquire  as to  whether the                    defendant's  willingness  to plead  guilty or                    nolo  contendere  results from  prior discus-                    sions between the attorney for the government                    and the defendant  or the defendant's  attor-                    ney.          Fed. R. Crim. P. 11(c), (d) (emphasis added).                      The  district  court  procedure  adopted in  this  case          cannot  be harmonized with the plain language of Rule 11(c), (d).          At a Rule 11 plea hearing,  "the court must address the defendant                                           _____ ____          personally  in open court and inform the defendant of, and deter-                                        ______ ___ _________ __  ___ ______          mine that  the defendant understands," the  matters enumerated in          ____ ____  ___ _________ ___________          Rule 11.  Fed.  R. Crim. P. 11(c); see  also Fed. R. Crim.  P. 11                                             ___  ____          advisory committee's notes accompanying 1966  amendment (explain-          ing that the  rule was  amended to make  express the  requirement          that  the  district judge  personally  address  the defendant  to          ascertain that  the plea  is "voluntary and  intelligent").   The                                          5          authorities are in agreement that reliance on "a written document          is not a  sufficient substitute for personal examination  [by the          court.]"  James W.  Moore, 8 Moore's Federal Practice    11.05[2]                                       ________________________          (1994); Charles A. Wright,  1 Federal Practice & Procedure    172                                        ____________________________          (1982)  ("Since 1966 the rule  has required the  court to address          the defendant personally."); see also United States v. Del Prete,                                       ___ ____ _____________    _________          567  F.2d  928, 930  (9th Cir.  1978)  ("[a] written  document is          emphatically  not a substitute for the clear dictate of the rule,          which requires that the trial judge address the defendant in open          court").  Similarly, the Supreme Court has left no  room to doubt          the central  importance of  direct interrogation by  the district          judge  in determining  whether to  accept the  defendant's guilty          plea:                    To the  extent that the  district judge  thus                    exposes the defendant's state  of mind on the                    record through personal interrogation, he not                    only  facilitates his own  determination of a                    guilty  plea's  voluntariness,  but  he  also                    facilitates that determination in  any subse-                    quent post-conviction proceeding based upon a                    claim that the plea was involuntary.  Both of                    these goals  are undermined in  proportion to                    the  degree  the  district  judge  resorts to                    "assumptions" not based upon recorded respon-                                                 ________ _______                    ses to his inquiries.                      ___ __ ___ _________          McCarthy v. United  States, 394 U.S. 459, 466-67 (1969) (emphasis          ________    ______________          added); see also Fed.  R. Crim. P. 11 advisory  committee's notes                  ___ ____          accompanying  1983  amendment ("[S]ubdivision  (h) should  not be                                                                     ___          read as  an  invitation to  trial judges  to take  a more  casual          approach to Rule 11 procedures.  It is still true, as the Supreme                                          6          Court  pointed  out  in  McCarthy, that  thoughtful  and  careful                                   ________          compliance with  Rule 11 best serves the  cause of fair and effi-          cient administration of criminal  justice . . . .")  (emphasis in          original).   The present case is directly  in point.  But for the          district court's failure to  follow the explicit requirements set          out in Rule 11, in all likelihood no post-conviction challenge to          the validity of appellant's guilty plea would ever have occurred.          Thus,  it is  "not too  much to  require that,  before sentencing          defendants to years of imprisonment, district judges take the few          minutes necessary to inform them of their rights and to determine          whether they understand  the action they are taking."   McCarthy,                                                                  ________          394 U.S. at 472.         We  well  understand  the heavy  burdens          imposed on the district courts.  Yet no matter how repetitive the          required Rule 11 praxis  may become for busy district  judges, it          may  not  be presumed  so for  the  defendant; and  however time-          consuming for the court, it is surely less so than the  virtually          certain  prospect of remand  for further  Rule 11  proceedings or          trial.  There is no "talismanic test," Allard,  926 F.2d at 1245,                                                 ______          and we have never held the district courts to a formula of "magic          words" in meeting the requirements of  Rule 11.  It is abundantly          clear,  however,  that the  procedure  employed  below cannot  be          considered in  substantial compliance with Rule  11.1 "[A] viola-                                        ____________________               1"By entering a guilty plea, a  defendant, in effect, waives          a number  of constitutional rights.  In  order for that waiver to          be valid, due process  requires that the plea amount  to a volun-          tary and  'intentional relinquishment  or abandonment of  a known                                          7          tion that implicates one  of the rule's 'core  concerns' mandates          that the plea  be set aside."   Id. at 1244-45  (citing McCarthy,                                          ___                     ________          394 U.S. at  471-72; and United States  v. Cantor, 469  F.2d 435,                                   _____________     ______          437 (3d Cir. 1972)).                      Where  a  district  court  neither  conducts  a  direct          personal interrogation, nor advises  the defendant of his rights,          all  substantially as  required under  Rule 11,  there can  be no          sufficient basis for finding that the guilty  plea was voluntary,          intelligent or otherwise valid.                      A total  failure to conduct the  plea colloquy mandated          by  Rule  11 cannot  be  considered  harmless  error, even  where          writings  evidence  the defendant's  apparent  cognizance  of the          information  which  should  have  been imparted  in  open  court.          United States v. Bernal, 861 F.2d 434, 436 (5th Cir. 1988), reh'g          _____________    ______                                     _____          denied, 871 F.2d  490, 491  (5th Cir. 1989)  ("Acceptance of  the          ______          government's  [harmless error]  argument  would  obliterate  Rule          11(c)'s requirement  that the  court 'must address  the defendant          personally in open court' . . . . [S]ubsection (h) to Rule 11 was          not  intended  to  allow district  courts  to  ignore Rule  11['s          express  commands]"), cert. denied, 493 U.S. 872 (1989); see Fed.                                _____ ______                       ___          R.  Crim.  P. 11  advisory  committee's  notes accompanying  1983                                        ____________________          right or privilege.'"  Allard, 926 F.2d at 1244 (citing McCarthy,                                 ______                           ________          394  U.S. at 466).   "The . .  . rule requires  the court both to          inform the  defendant of  the  nature of  the charge  and make  a          determination that  he  understands it."    Id. (citing  Mack  v.                                                      ___          ____          United States, 635 F.2d 20 (1st Cir. 1980)).            _____________                                          8          amendment  (noting that  Rule 11(h)  harmless error  provision is          intended to excuse "minor and technical violation[s]," but cannot          be invoked  where the court's deviation  effectively "nullif[ies]          important Rule 11 safeguards");  see also Del Prete, 567  F.2d at                                           ___ ____ _________          930 (vacating  conviction where  district court failed  to inform          defendant  personally of parole  component of sentence; existence          of written  guilty plea  application cannot override  "clear dic-          tates" of  Rule 11); cf.  United States v.  Carter, 662 F.2d  274                               ___  _____________     ______          (4th Cir. 1981) (holding  that reversal is required where  clerk,          rather than district judge, conducted plea colloquy).  The guilty          plea must  therefore be set aside  and the case  must be remanded          for further Rule 11 proceedings or trial.                     The judgment  of  conviction and  sentence is  vacated.                    ___ ________  __  __________ ___  ________ __  _______          The guilty plea is set aside and the case is remanded for further          ___ ______ ____ __ ___ _____ ___ ___ ____ __ ________ ___ _______          proceedings consistent with this opinion.2          ___________ __________ ____ ____ _______                                        ____________________               2Appellant's "ineffective assistance" claim is mooted by our          resolution of the Rule 11 claim.                                            9
