
USCA1 Opinion

	




          February 2, 1995  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1354                                    UNITED STATES,                                      Appellee,                                          v.                               JOSE RAMON COTAL-CRESPO,                                Defendant - Appellant.                                 ____________________          No. 94-1355                                    UNITED STATES,                                      Appellee,                                          v.                              ANTONIO DE JESUS-DE JESUS,                                Defendant - Appellant.                                 ____________________          No. 94-1356                                    UNITED STATES,                                      Appellee,                                          v.                              IVAN RODRIGUEZ-BOCACHICA,                                Defendant - Appellant.                                 ____________________                                     ERRATA SHEET               The opinion of  this Court  issued on January  30, 1995,  is          amended as follows:               On page  8, second  full paragraph,  first line,  delete the          apostrophe in "Defendants'."                             UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1354                                    UNITED STATES,                                      Appellee,                                          v.                               JOSE RAMON COTAL-CRESPO,                                Defendant - Appellant.                                 ____________________          No. 94-1355                                    UNITED STATES,                                      Appellee,                                          v.                              ANTONIO DE JESUS-DE JESUS,                                Defendant - Appellant.                                 ____________________          No. 94-1356                                    UNITED STATES,                                      Appellee,                                          v.                              IVAN RODRIGUEZ-BOCACHICA,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               Rachel  Brill,  with  whom Benicio  S nchez-Rivera,  Federal               _____________              _______________________          Public Defender,  Carlos  A. V zquez-Alvarez,  Assistant  Federal                            __________________________          Public Defender, and Mariangela  Tirado, were on joint  brief for                               __________________          appellants.               Warren V zquez, Assistant United  States Attorney, with whom               ______________          Jorge  E. Vega-Pacheco,  Acting  United States  Attorney, was  on          ______________________          brief for appellee.                                 ____________________                                   January 30, 1995                                 ____________________                                         -2-                    TORRUELLA,  Chief Judge.   The issue  to be  decided in                    TORRUELLA,  Chief Judge.                                ___________          this  appeal is  whether  the district  court  complied with  the          procedural  safeguards  mandated by  Criminal  Rule  11 prior  to          accepting  the three defendants' guilty  pleas.  We conclude that          the plea hearing conducted by  the district court, while  perhaps          somewhat less than ideal, adequately met the requirements of Rule          11.  We therefore affirm.                                      BACKGROUND                                      BACKGROUND                     On February 17,  1993, a federal grand  jury in Puerto          Rico indicted Jos  Ram n  Cotal-Crespo, Antonio De Jes s-De Jes s          and  Iv n  Rodr guez-Bocachica,  in  Count I,  of  conspiring  to          possess with intent to  distribute multi-kilograms of cocaine, in          violation  of 21  U.S.C.    846.    In addition,  the  indictment          alleged,  in  Counts  II  and  III,  that   Cotal-Crespo  used  a          communication   facility  (a   telephone)  in   facilitating  the          commission  of  a drug  trafficking offense,  in violation  of 21          U.S.C.   843(b).  On March 3, 1993, the  defendants entered pleas          of not guilty.                    On  June 8, 1993, the date their trial was scheduled to          begin, defendants requested a change of their respective pleas to          guilty.    Defendants did  not enter  a  plea agreement  with the          government.  The district court held a change of plea hearing and          subsequently accepted  defendants' guilty pleas.   Sentencing was          scheduled for September 9, 1993.                    On August 11,  1993, defendants filed  a pro se,  joint                                                             ___ __          motion requesting withdrawal of their guilty pleas.  The district                                         -3-          court  appointed each  defendant new counsel  and the  motion was          argued on March  4, 1994.   The district  court denied the  joint          motion in an Opinion and Order issued the same day.  Cotal-Crespo          was eventually  sentenced to  120 months  on  Count I  and to  48          months  on  Counts  II  and  III,  to   be  served  concurrently.          Rodr guez-Bocachica and De Jes s-De  Jes s were each sentenced to          120 months  on Count I.  Pending before this Court is defendants'          consolidated appeal  of the  denial of their  motion to  withdraw          their guilty pleas.                                      DISCUSSION                                      DISCUSSION                    Defendants  advance two arguments  in support  of their          contention that they should have been permitted to withdraw their          guilty pleas pursuant to  Criminal Rule 11.  First,  they contend          that  the district court  failed to inform them  of the nature of          the charges against them and determine that they understood those          charges.  In support of this contention, defendants maintain that          they believed  that  the eight  kilograms  of cocaine  they  were          caught with could  be split amongst them  for sentencing purposes          and  that  they  were  consequently prejudiced  by  the  district          court's failure to  explain the nature of  the conspiracy charge.          Second,  defendants contend  that  the district  court failed  to          inform  them of  the consequences  of their  guilty pleas.   They          assert,  inter alia, that the  district court did  not explain to                   _____ ____          them  that by  pleading guilty  they waived  their constitutional          rights  to  a  jury trial,  to  remain  silent,  and to  confront          witnesses against them.                                         -4-          I.  The Legal Framework          I.  The Legal Framework              ___________________                    A.  Rule 32(d)                    A.  Rule 32(d)                        __________                    A  defendant  may  withdraw  a  guilty  plea  prior  to          sentencing  only upon a showing of "fair and just reason" for the          request.  See  United States  v. Pellerito, 878  F.2d 1535,  1537                    ___  _____________     _________          (1st Cir.  1989); see  also Fed.  R. Crim. P.  32(d).   There are                            _________          several factors  to consider  in determining whether  a defendant          has   met this burden, the  most significant of which  is whether          the  plea  was  knowing,  voluntary and  intelligent  within  the          meaning of Rule 11.  United States v. Allard, 926 F.2d 1237, 1243                               _____________    ______          (1st Cir. 1991).   The other  factors include:  1) the force  and          plausibility of  the  proffered  reason;  2) the  timing  of  the          request;  3)  whether  the   defendant  has  asserted  his  legal          innocence;  and  4)  whether  the  parties  had  reached  a  plea          agreement.    Pellerito,  878  F.2d  at  1537.    In  this  case,                        _________          defendants focus their argument on the alleged Rule 11 violations          -- contending  that these  violations establish that  their pleas          could not have been knowing, voluntary and intelligent.                    B.  Rule 11                    B.  Rule 11                        _______                    By  entering  a guilty  plea,  a defendant  effectively          waives  several constitutional  rights.   For  that waiver  to be          valid, due process requires  that the plea amount to  a voluntary          and "intentional  relinquishment or abandonment of  a known right          or privilege."  McCarthy  v. United States, 394 U.S. 459, 466, 89                          ________     _____________          S. Ct. 1166, 22  L.Ed.2d 418 (1969)  (quoting Johnson v.  Zerbst,                                                        _______     ______          304 U.S.  458, 464,  58 S.  Ct.  1019, 82  L.Ed.2d 1461  (1938));                                         -5-          Allard, 926 F.2d at  1244.  Rule 11 was intended to ensure that a          ______          defendant who pleads guilty does so with an "understanding of the          nature  of  the  charge  and  the  consequences  of   his  plea."          McCarthy, 394 U.S. at 467.          ________                    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 determine                      _________________________________________                      that   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  and  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) 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                                         -6-                      pleaded, that the defendant's answers may                      later   be   used   against  him   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.          Fed. R. Crim. P. 11(c),(d) (emphasis added).                    We have distinguished between "technical" violations of          Rule  11 and violations of  the rule's "core  concerns," and held          that  a  violation  that  "implicates one  of  the  rule's  'core          concerns' mandates that the plea be set aside."  United States v.                                                           _____________          Medina-Silverio, 30 F.3d 1, 3 (1st Cir. 1994) (citing Allard, 926          _______________                                       ______          F.2d at  1244).   Rule  11's  core concerns  are: 1)  absence  of          coercion; 2)  understanding of the  charges; and 3)  knowledge of          the consequences of  the guilty plea.  Allard, 926  F.2d at 1244-                                                 ______          45.1                    In determining whether there has been a core violation,          we review the totality of the circumstances surrounding the  Rule          11 hearing, rather  than apply a  "talismanic test."  See  id. at                                                                ___  __          1245 (citing United States v. Dayton, 604 F.2d 931, 939 (5th Cir.                       _____________    ______          1979), cert. denied,  445 U.S. 904, 100  S. Ct. 1080, 63  L.Ed.2d                 ____________          320  (1980)).   What is  critical  is the  substance of  what was          communicated by  the trial court, and what should reasonably have          been understood by  the defendant,  rather than the  form of  the                                        ____________________          1  See infra n.5.             ___ _____                                         -7-          communication.   See Medina-Silverio,  30 F.3d at  3 (emphasizing                           ___ _______________          that  there  is  no "formula  of  'magic  words'  in meeting  the          requirements of Rule 11").   At a minimum, Rule 11 requires  that          the trial court address the defendant personally in open court to          ascertain  that his plea is "voluntary and intelligent."  See id.                                                                    ___ __          at 2-3 (citing Fed. R. Crim. P. 11(c)).                    In the absence  of a  total failure to  address one  of          Rule 11's  core concerns, the question  is whether irregularities          in   the   plea-taking   proceeding  affected   the   defendant's          "substantial rights."   Fed. R. Crim. P.  11(h).  Other  than for          errors of law, we will overturn the trial judge's decision not to          allow  the withdrawal  of  a guilty  plea only  for "demonstrable          abuse of  discretion," and the trial  court's subsidiary findings          of  fact  in  connection  with  the  plea-withdrawal  motion  are          reviewed  only for clear error.  Allard, 926 F.2d at 1245 (citing                                           ______          Pellerito, 878 F.2d at 1538).          _________          II.  The Nature of the Charges          II.  The Nature of the Charges               _________________________                    Defendants  contend  that  the  trial  court failed  to          determine that they understood the nature of the charges  against          them, as  required by Rule 11(c)(1).   See United States v. Ruiz-                                                 ___ _____________    _____          Del Valle, 8 F.3d 98, 102  (1st Cir. 1993).  Defendants  maintain          _________          that they believed that  the eight kilograms of cocaine  could be          "somehow split  among the three for  sentencing," and, therefore,          assert  that they were prejudiced by the trial court's failure to          explain  that  each of  them would  be  held responsible  for the          cocaine found  in their collective possession,  regardless of any                                         -8-          stated intention to later split the drugs.                    There are two central  difficulties with this argument.          First  of all, the  amount of drugs  for which  each defendant is          held responsible is  an issue  relevant to sentencing,  not to  a          particular  defendant's guilt.   See United  States v.  Musa, 946                                           ___ ______________     ____          F.2d 1297, 1305 (7th Cir. 1991); United States v. Young, 927 F.2d                                           _____________    _____          1060, 1065 (8th Cir.), cert. denied, __ U.S. __, 112  S. Ct. 384,                                 ____________          116  L.Ed.2d 334 (1991).2   Secondly, the  trial court personally          addressed each defendant  and discussed with him  the maximum and          minimum penalties provided by  law for his offense.   After fully          explaining   the  guideline  ranges,   the  court  informed  each          defendant that the  minimum sentence  on Count I  is 120  months.                              _______          When asked if  they understood this,  each defendant answered  in          the  affirmative.    In  addition,  the  trial  court  personally          addressed each defendant and  asked him to "tell his  story" with                                        ____________________          2  Defendants rely  heavily on the following statement  by Cotal-          Crespo's attorney during the plea hearing.                         THE COURT:  It is a 120-month minimum.                      The base  offense level will  be 32,  but                      you say  that has nothing to  do with the                      minimum.                         MR.  LAWS:   The minimum  allowable is                      120, and  at  the time  of sentencing  we                      will  argue to  the Court  to reduce  it.                      But  at this  time that  is what  we have                      before the Court.              Defendants maintain that this statement  illustrates that they          believed the amount  of drugs  could be divided  for purposes  of          sentencing.   This may  be true, but it  also reveals that Cotal-          Crespo's   attorney  recognized   that   the   amount  of   drugs          attributable to each defendant was a question for sentencing, not          the plea hearing.                                           -9-          respect  to the charges against him.  In telling their respective          stories,  none of  the defendants  gave the  slightest indication          that they disputed the amount of drugs involved  or their role in          the transaction vis-a-vis the total amount of drugs.                    Defendants  also argue  that  they must  be allowed  to          withdraw  their guilty pleas because the trial court did not read          or  explain the charges to them.   Our review of the plea hearing          transcript  reveals that the trial court did not read the charges          nor did it explain the law of conspiracy.                    It is not necessary that the explanation of the charges          come directly from  the court,  however, if it  can be  discerned          from  a review of the proceeding  that the defendant nevertheless          understood the charges.   See  Allard, 926 F.2d  at 1246  (citing                                    ___  ______          Dayton, 604  F.2d at 943).   See also United States  v. Musa, 946          ______                       ________ _____________     ____          F.2d  1297, 1305 (7th Cir.  1991); United States  v. Darling, 766                                             _____________     _______          F.2d 1095, 1099 (7th Cir.) (citing cases), cert. denied, 474 U.S.                                                     ____________          1024, 106  S. Ct. 579,  88 L.Ed.2d 561  (1985); United  States v.                                                          ______________          Cusenza,  749 F.2d  473, 476  (7th Cir.  1984); United  States v.          _______                                         ______________          Gray, 611 F.2d  194, 200 (5th Cir.), cert. denied,  446 U.S. 911,          ____                                 ____________          100  S. Ct.  1840,  64  L.Ed.2d  264  (1980);  United  States  v.                                                         ______________          Coronado,  554 F.2d 166, 173  (5th Cir.), cert.  denied, 434 U.S.          ________                                  _____________          870,  98 S.  Ct. 214,  54 L.Ed.2d  149 (1977).   Thus,  where the          prosecutor's  statement or  the  defendant's  description of  the          facts  sets forth all elements of the  offense and the conduct of          the defendant  that  constitutes the  offense,  "the  defendant's          admission that  the allegations  are true is  sufficient evidence                                         -10-          that he understands the charge."  Darling, 766 F.2d at 1099.  See                                            _______                     ___          Allard, 926 F.2d at 1246.          ______                    In this case, each defendant stated at the plea hearing          that  he went, together with the other two defendants, to buy the          drugs.  In addition, Cotal-Crespo admitted to  making phone calls          with  respect to  the drug  transaction.  Thus,  each defendant's          admission  of the  events underlying  the  transaction accurately          described the  elements of a violation  of 21 U.S.C.    846 -- an          agreement to buy a  large amount of drugs3 --  and Cotal-Crespo's          admission described  the elements  of  a violation  of 21  U.S.C.          843(b).    Moreover,  each  of the  defendants  agreed  with  the          prosecutor's detailed  summary of the facts  the government would          prove  at trial,  which also  included a  description of  all the          elements of both charges.                    The  manner in  which the  charge is explained  and the          method  for  determining  the defendant's  understanding  of  the          charge  will vary from case to case depending upon the complexity          of  the charges, the capacity of the defendant, and the attendant          circumstances.  Allard, 926 F.2d at  1245.  See also Darling, 766                          ______                      ________ _______          F.2d at  1098.  "[W]hile the subtleties  of conspiracy law may be          the  bane of criminal law students, the basic principle is easily          understood: a group  of people agreeing to do something illegal."                                        ____________________          3   The  Supreme  Court  has  recently held  that,  in  order  to          establish a  violation of  section 846,  the government  need not          prove  the commission  of any  overt acts  in furtherance  of the          conspiracy.  United  States v. Shabani,  __ U.S. __,  115 S.  Ct.                       ______________    _______          382, 385-86, 130  L.Ed.2d 225  (1994).  Accord  United States  v.                                                  ______  _____________          Paiva, 892 F.2d 148, 155 (1st Cir. 1989).             _____                                         -11-          United  States v. Carter, 815 F.2d 827,  829 (1st Cir. 1987).  We          ______________    ______          find  nothing in the record  to indicate that  the defendants did          not understand  the drug conspiracy  charge.4   Rather, the  plea          hearing indicates that the defendants knew exactly what they were          charged with and voluntarily made the decision to plead guilty.          III.  Consequences of Guilty Plea          III.  Consequences of Guilty Plea                ___________________________                    The defendants also contend that the trial judge failed          to inform  them  of  the  consequences  of  their  guilty  pleas.          Specifically, they claim that the  court failed to determine that          they  understood and waived their  rights to remain  silent, to a          jury trial, and to confront witnesses against them.  In addition,          they  contend that the court  did not explain  the possibility of          departure from the guidelines or counsel the defendants about the          possibility of a later prosecution  for perjury based upon  their          statements at  the Rule 11  hearing.  We  necessarily turn to  an          examination of the plea colloquy.                    The trial court began  by asking each defendant whether                                        ____________________          4   Contrary  to defendants' assertions,  our decision  in United                                                                     ______          States  v.  Ruiz-Del  Valle,  8  F.3d  98  (1st  Cir.  1993),  is          ______      _______________          distinguishable.   In  that  case we  found  the change  of  plea          hearing  defective as to the  firearms count for  two reasons: 1)          the charge was neither read nor explained to the defendant by the          trial  court and the government  made only a  fleeting mention of          the firearms count  in its outline  of the  evidence; and 2)  the          defendant made a  statement during the plea  hearing which should          have put the trial  court on notice  that she did not  understand          the firearms charge.  Id. at 103.  We also held in Ruiz-Del Valle                                __                           ______________          that  the defendant should be allowed to withdraw her guilty plea          because it would be a  miscarriage of justice not to in  light of          the trial court's subsequent  finding in the case  of defendant's          husband  that there was an  insufficiency of the  evidence on the          firearms count.  Id. at 104.  These exceptional circumstances are                           __          not present in the instant case.                                         -12-          he had read and understood the petition questions, and whether he          had consulted with his attorney regarding those questions and his          answers.   Each defendant answered in the affirmative.  The court          then  asked  the  standard  questions to  determine  whether  the          defendants  were  competent  to   plead  and  whether  they  were          satisfied with their attorneys.   The court asked each  defendant          whether he  remembered reading and answering  questions about his          right to a jury trial and whether he understood that if he pleads          guilty he  will be found guilty without  a trial.  The defendants          responded in the affirmative to all these questions.                    Next, the  court asked each  of the defendants  to give          their "story"  with respect to  the charges  against them,  which          each  defendant did.  Then the government gave a detailed summary          of  the evidence  it  would prove  at  trial and  each  defendant          indicated his  agreement with the government's  recitation of the          pertinent evidence.   The court then  informed each defendant  of          the maximum and minimum penalties provided by law for the charged          offenses and received their assurances that they understood their          potential  sentences.   Finally, the  court asked  each defendant          whether,  knowing the possible penalties, including the mandatory          minimum  of  120  months, they  wanted  to  plead  guilty.   Each          defendant  answered  in the  affirmative.    The  court  did  not          specifically ask the defendants  whether they knew and understood          their rights to remain  silent and to confront witnesses  against          them,  nor did  it  mention the  possibility  of departure  or  a          perjury charge.                                         -13-                    It  is  abundantly clear  from  the  transcript of  the          hearing that the defendants understood  the nature of the charges          against them, understood their right to a jury  trial, understood          their   potential   sentences,  agreed   with   the  prosecutor's          recitation of what the government would prove at trial, and, most          importantly, acknowledged, with  no perceptible hesitation, their          guilt based on those allegations.  Moreover, there was no need to          discuss  departure from  the guidelines  because all  the parties          agreed that there  was a statutory  minimum of 120  months.   The          narrow question  for decision, therefore, is  whether the failure          of  the trial court to  specifically mention the  right to remain          silent, the right to confront witnesses, and the possibility of a          perjury charge,  standing  alone,  mandates  that  defendants  be          permitted  to withdraw their guilty pleas.  We conclude, based on          the totality of the circumstances, that it does not.                    The  district court  explained, and  determined on  the          record that the defendants  understood many of the "consequences"          of  their guilty  pleas.   This is,  therefore, not  a case  of a          "total failure" to  address one of Rule 11's core  concerns.  See                                                                        ___          Allard,  926 F.2d at 1244-45  (citing McCarthy, 394  U.S. at 471-          ______                                ________          72.5   The question, therefore,  is whether the  district court's                                        ____________________          5   We note with  interest the experience  of the  Fifth Circuit,          which  recently overruled its  long held  position that  a "total          failure" to address one of Rule 11's core concerns warrants a per                                                                        ___          se reversal.  See United States  v. Johnson, 1 F.3d 296, 297 (5th          __            ___ _____________     _______          Cir. 1993) (en banc).   Under its prior jurisprudence,  the Fifth          Circuit distinguished  between the  total and partial  failure to          address Rule 11's core concerns, holding that the former required          per  se reversal while the  latter was judged  under the harmless          ___  __          error  standard of  Rule  11(h).   See,  e.g., United  States  v.                                             ___   ____  ______________                                         -14-          failure  to inform the defendants  of all of  the consequences of          their  pleas, as  delineated  by Rule  11, "affected  defendants'          substantial rights."    See Fed.  R.  Crim. P.  11(h).   For  the                                  ___          reasons explained below,  we conclude that Rule 11's core concern          that  defendants understand  the consequences  of their  plea was          adequately  addressed  in  this  case and  that  the  defendants'          substantial rights were not violated.  We therefore hold that the          district court's failure  to explicitly address all of  Rule 11's                                        ____________________          Pierce,  893  F.2d 669,  679 (5th  Cir.1990).   Although  we have          ______          phrased  the  analysis   in  somewhat   different  fashion,   our          jurisprudence in this area is similar to the approach rejected by          the Fifth Circuit in Johnson.  See generally, Allard, 926 F.2d at                               _______   _____________  ______          1244-45.             In  Johnson,  the court  reasoned  that  the  genesis for  the                 _______          total/partial  failure  dichotomy was  the  Supreme Court's  1973          decision in  McCarthy, which antedated  the amendment of  Rule 11                       ________          with  section (h).   See Johnson, 1  F.3d at  300.  In  the Fifth                               ___ _______          Circuit's view,  the per  se  reversal rule  for core  violations                               _______          "should  have been supplanted by the 1983 addition of section (h)          to Rule  11."  Id.  The court therefore held that, henceforth, it                         __          would,  regardless  of the  type  of alleged  Rule  11 violation,          engage  in  a   straightforward,  two-question  'harmless  error'          analysis, asking, first, whether the sentencing court varied from          the  procedures  required by  Rule 11,  and,  second, if  it did,          whether  the  variance affected  the  substantial  rights of  the          defendant.    Id.   In determining  whether  a Rule  11  error is                        __          harmless,  the court stated that  it would "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."   Id. at  301.  The  Fifth Circuit  qualified its                            __          opinion, however, by  noting that  it is difficult  to imagine  a          situation  where a trial court's entire failure to mention a core          concern would not "affect substantial rights."  Id. at 301 n.26.                                                          __             At least at first  blush, we find the Fifth  Circuit's opinion          in Johnson persuasive.   Because  this is not  a "total  failure"             _______          case, however, we need not decide just how persuasive.  Moreover,          we think  it would  be imprudent  to do  so considering  that the          parties in this case did not brief the issue and, in any case, it          is an issue best left to the full court's review.                                                          -15-          requirements was harmless error.                    The record of the plea hearing is replete with evidence          that the defendants understood the charges against them, faced up          to them, and chose voluntarily to plead guilty.  It is clear also          that the defendants understood that they had the right to persist          in their  innocence and go to  trial, and that they  had read and          understood the petition questions,  which explained that they had          the  right to  remain silent  and  to confront  witnesses against          them.   Moreover,  the  trial court  meticulously explained,  and          ensured on the record that the defendants understood, the maximum          and  minimum statutory penalties  and their  sentencing guideline          ranges.  Each defendant  stated on the record that  he understood          that his minimum sentence would be 120 months.                    Finally,  we  are  mindful of  the  traditional factors          relevant  to the  review of  a change of  plea request.6   First,          defendants waited two  months before deciding  that they did  not          understand  the  consequences of  their  guilty  pleas.   Second,          defendants  have  not asserted  their  legal  innocence.   Third,          defendants have not argued, much less attempted to show, that the          knowledge  that  they  had the  right  to  remain  silent and  to          confront  the   witnesses  against  them  at   trial  would  have          materially affected their decisions to plead guilty.                    Defendants  argue that our  decision in Medina-Silverio                                                            _______________          requires reversal.  In that case, however, we held only that:                                        ____________________          6   Although the traditional factors are somewhat dwarfed in this          case  by the alleged  core Rule 11  violations, they nevertheless          remain relevant to our totality of the circumstances analysis.                                         -16-                      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, intelligentor otherwise valid.          Medina-Silverio,  30 F.3d at 3.   Thus, a  trial court's reliance          _______________          solely on answers provided  by a defendant in a  written document          ______          is insufficient  for purposes  of  Rule 11.    In this  case,  in          addition  to answers provided in a written document, however, the          court  personally   and  meticulously   addressed  each   of  the          defendants  with  respect to  the  alleged  facts underlying  the          charges against him,  his right to a  jury trial and the  maximum          and minimum sentences.                                      CONCLUSION                                      CONCLUSION                    In 1968, the Supreme Court  explained that Rule 11  was          designed,  at  least in  part, to  produce  a complete  record to          enable reviewing courts to determine, based on a cold transcript,          whether a plea was voluntary.  The Court thus commented that:                      [T]he  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.          McCarthy, 394 U.S. at 465.  Although we conclude that the Rule 11          ________          hearing in this case was adequate, we  are nevertheless compelled          to  remind district courts that, for the sake of judicial economy          and fundamental fairness, the best way to ensure  that Rule 11 is          complied with is to explicitly comply with Rule 11.                                         -17-                    The judgment of the district court is affirmed.                                                          affirmed                                                          ________                                         -18-
