
USCA1 Opinion

	




          November 13, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1110                                   DAVID WILLIAMS,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                             Torruella, Cyr and Boudin,                                    Circuit Judges.                                   ______________                                _____________________               Jeffrey S. Cohen, with whom Sulloway, Hollis & Soden, was on               ________________            ________________________          brief for appellant.               Peter E. Papps, First Assistant United States Attorney, with               ______________          whom  Jeffrey R. Howard, United States Attorney, was on brief for                _________________          appellee.                                 ____________________                                 ____________________                    TORRUELLA,  Circuit  Judge.   Appellant  David Williams                                ______________          appeals from a district  court judgment refusing to allow  him to          withdraw a guilty plea.  Appellant claims that the court accepted          his plea in violation of Rule 11 of the Federal Rules of Criminal          Procedure  ("Rule 11"), and  that he misunderstood  the nature of          the  charges against him.  Because  we find no Rule 11 violation,          and  that  the district  court assured  that appellant  entered a          knowing  and  voluntary  plea,  we affirm  the  district  court's          decision.                                      BACKGROUND                                      BACKGROUND                                      __________                    Appellant  pled   guilty,   in  his   capacity  as   an          individual,  to mail fraud1 and fraud  by an investment advisor,2          and  in his capacity as  a corporate executive,  to an indictment          against  Blondheim  Investment  Advisors,   Inc.  ("Blondheim").3          Appellant now claims that he never understood the charges against          him,  and  thus,   this  court   should  set   aside  his   plea.          Specifically, he contends that  at the time of his  plea hearing,          he  erroneously believed that he  could be convicted,  even if he          never intended  to defraud anyone.   Thus, he argues that  he did          not knowingly and voluntarily plead guilty.                      On  July  11, 1991,  appellant  requested  to have  his          guilty plea set aside pursuant to 28 U.S.C.   2255.  The district          court then held an evidentiary hearing to ascertain the extent of                                        ____________________          1  18 U.S.C.    1341-42 (1981).          2  15 U.S.C    80b-6, 80b-17 (1981); 18 U.S.C.   2 (1969).          3  Id.             __                                         -2-          appellant's understanding of the charges against him.  The  judge          determined  that  appellant  fully understood  that  the  charges          required a showing of intent to  defraud.  As such, he refused to          allow appellant  to withdraw  his plea.   Appellant appeals  from          that judgment.                                      DISCUSSION                                      DISCUSSION                                      __________                    Under  Rule  11,  before  accepting a  guilty  plea,  a          district court must  inform the defendant of, and  determine that          the defendant understands, the nature of the charges against him.          Fed. R. Crim. P. 11(c)(1).  A judge need not inform the defendant          of the nature of the charges himself,  as long as someone informs          the  defendant during the plea hearing.  United States v. Allard,                                                   _____________    ______          926 F.2d 1237, 1246 (1st Cir. 1991).  Unless the judge determines          that the defendant fully understands the charge,  however, he may          not  accept the plea.   Valencia v. United  States, 923 F.2d 917,                                  ________    ______________          921 (1st Cir. 1991).                        Rule 11 assists the  district court in fulfilling two          main goals.  First, it ensures that if a defendant pleads guilty,          he  does so voluntarily, with a full understanding of the charges          against him.  Allard, 926 F.2d at 1244 (citing McCarthy v. United                        ______                           ________    ______          States, 394 U.S. 459, 466 (1969)).  Second, it assures a complete          ______          record  of   the  facts  relevant  to   determining  whether  the          defendant's   plea   represented   a   knowing    and   voluntary          relinquishment  of his right to  a trial.   Id. (citing McCarthy,                                                      __          ________          394 U.S. at 467).                    Appellant's  plea  hearing  satisfied  both   of  these                                         -3-          concerns.  At the hearing, the district court judge engaged in  a          lengthy dialogue  with appellant  to determine  whether appellant          understood  his plea.    In response  to  the judge's  questions,          appellant stated that:  (1) he understood that by pleading guilty          he would waive his right to trial; (2) he knew that at a maximum,          he could receive five years in prison, a $1,000 fine, or both for          mail  fraud;  five  years,  $10,000  or  both  for  fraud  by  an          investment  advisor;  and  $10,000  for  the  indictment  against          Blondheim, all  with possible  consecutive sentences; (3)  no one          had threatened him or promised him  leniency; and (4) he took  no          medicine  in  the recent  past,  and  never received  psychiatric          treatment.                      In  addition to  engaging  in a  lengthy dialogue  with          appellant  regarding  his plea,  the  district  court judge  also          ensured  that appellant  heard  at least  three different  people          explain the nature of the charges.                    First, the judge asked appellant  whether his attorneys          advised  him  of  the nature  of  the  charges  and any  possible          defenses.   Appellant replied that they  had.  While a  judge may          not rely solely on a defendant's attorney to privately inform the          defendant  of  the nature  of the  charges  against him,  Mack v.                                                                    ____          United States, 635 F.2d  20, 26 (1st Cir. 1980),  a determination          _____________          that the  defendant's attorney  gave such an  explanation assists          the judge  in ascertaining  the defendant's understanding  of the          pending charges and their penalties.                    Second,  in  addition  to  assuring   that  appellant's                                         -4-          attorney privately  explained the  charges  to him,  at the  plea          hearing, the judge  also had the government  outline the evidence          it would have  offered had the case gone to  trial.  That proffer          of evidence explicitly discussed appellant's scheme to defraud.                      Third, the  judge also  had the clerk  read appellant's          indictment  to him.    This indictment  stressed the  intentional          nature of the crimes.                    Under   certain  circumstances,   the  reading   of  an          indictment alone will satisfy the  judge's obligation to inform a                     _____          defendant of the  nature of the charges against him.  Allard, 926                                                                ______          F.2d at 1245.  This is especially true where the case involves an          intelligent defendant,  and the indictment  clearly describes the          charges.  Id.  In the  present case,  the  judge determined  that                    __          appellant was  intelligent, and  the indictment provided  a clear          description of  the charges.  Moreover, the clerk asked appellant          to enter his  plea after  the explanation of  each count,  rather          than at the end of the entire indictment.                     In  addition to assuring  that appellant  heard several          explanations  of the  charges against him,  the judge  also asked          appellant's  attorney  numerous  questions regarding  appellant's          capacity and interests in his plea.  Appellant's attorney assured          the judge that appellant was under no outside influence, and that          it  was  in appellant's  best interests  to  plead guilty  to the          pending charges.   Thus, we  find that the  court fully  informed          appellant  of the nature of the charges against him in accordance          with Rule 11.                                         -5-                    Even  though we  find  no Rule  11 violation,  however,          appellant would still be entitled to set aside his guilty plea if          he could show that he fundamentally misunderstood the elements of          the charge and would have not pled guilty had he understood them.          See  United  States  v. Buckley,  847  F.2d  991,  999 (1st  Cir.          ___  ______________     _______          1988)("The  district court's adherence to Rule 11 does not, to be          sure,  insulate  from review  its  conclusion that  the  plea was          valid."),  cert. denied, 488 U.S. 1015 (1989).  Although Williams                     ____________          has not cast his present motion in voluntariness terms, the issue          is a close cousin to his Rule 11 claim and  is squarely presented          by his factual assertions.                      While the plea hearing satisfied Rule 11, because the          district court judge did  not give a detailed explanation  of the          charges,  and appellant  did  not say  that  he agreed  with  the          government's proffer,  the hearing  did not wholly  foreclose the          claim of  misunderstanding that appellant advances.   However, we          find  that  the  district  court  committed  no  clear  error  in          determining  that appellant  fully understood  the nature  of the          charges against him  at the plea hearing.  See  Oimette v. Moran,                                                     ___  _______    _____          942 F.2d 1, 5 (1st  Cir. 1991)(clearly erroneous standard governs          factual findings in habeas corpus).                      At   the   district   court's  evidentiary   hearing,          appellant's   counsel  testified   that  appellant   appeared  to          understand  the nature  of the  charges, that  appellant actively          participated  in  the  plea  negotiations,  and   that  appellant          thoughtfully discussed many issues regarding his plea,  including                                         -6-          burdens of proof at trial.                    Appellant  makes much  of  the fact  that  he signed  a          statement indicating  only that he acted  with reckless disregard          for  investors' monies, and that  the statement failed to mention          the  requisite intent to  defraud.   In the  evidentiary hearing,          however,  appellant's   counsel  testified  that   the  statement          represented  only what appellant felt that he did wrong, and that          it  was solely for sentencing purposes, designed to allow counsel          to  argue  for a  minimal sentence.    Thus, the  statement holds          little    evidentiary   value   with   respect   to   appellant's          understanding of his plea.  The district court heard the evidence          and appraised  appellant's credibility, and it's  finding that no          misunderstanding occurred is certainly not clearly erroneous.                    Finally,   there  need   be  little   concern   that  a          miscarriage of  justice occurred  by denying  appellant's motion.          Contrary  to  the  premise  of  his  petition,  and  despite  the          government's  silence, the  scienter element  under the  mail and          securities fraud statutes can be satisfied by something less than          fraudulent  intent or  knowing  falsehoods.4   Although  reckless          mismanagement   of  funds  might  not  always  constitute  fraud,          appellant's version of how he understood  the law is not too  far          from  how  courts actually  read  the mail  and  securities fraud                                        ____________________          4   See, e.g.,  United  States v.  Gay, 967  F.2d  322, 326  (9th              ___  ____   ______________     ___          Cir.)("We have repeatedly  held that reckless indifference  alone          will  support  a  mail  fraud  conviction."),  cert.  denied,  61                                                         _____________          U.S.L.W. 3285 (1992); United  States v. Brien, 617 F.2d  299, 312                                ______________    _____          (1st Cir.)("conscious avoidance" of  truth satisfies the scienter          requirement  for a mail fraud conviction), cert. denied, 446 U.S.                                                     ____________          919 (1980).                                         -7-          statutes.                      Because we  find that  the district court  committed no          Rule  11 violation  and  assured that  appellant entered  a truly          knowing  and  voluntary  plea,  we affirm  the  district  court's          decision.                    Affirmed.                    ________                                         -8-
