United States v. Gochis, Michael J. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4064
United States of America,
Plaintiff-Appellant,
v.
Michael J. Gochis,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 47--Robert W. Gettleman, Judge.
Argued April 4, 2001--Decided July 11, 2001
Before Coffey, Manion, and Diane P. Wood,
Circuit Judges.
Manion, Circuit Judge. Michael Gochis
was tried before a magistrate judge, and
convicted by a jury of three counts of a
Class A misdemeanor. The district court
vacated the judgment of conviction and
ordered a new trial, concluding that
because the magistrate judge had failed
to explain to Gochis his right to trial,
judgment, and sentencing by a district
judge, the magistrate judge lacked the
authority to preside over the trial. The
government appeals, arguing that the
magistrate judge had the authority to
preside over Gochis’s trial because
Gochis and his counsel filed a written
consent to be tried before the magistrate
judge, and that Gochis did not suffer any
prejudice as a result of the magistrate
judge’s omission. We agree, and thus
reverse the district court.
I.
Michael Gochis is a former steward for
Local 705 of the International
Brotherhood of Teamsters. On January 22,
1998, he was charged with three counts of
threatening and using violence against
another union member, in violation of 29
U.S.C. sec. 530, a Class A
misdemeanor./1 Pursuant to the local
rules of the Northern District of
Illinois, Gochis’s case was randomly
assigned to a magistrate judge.
On January 29, 1998, Gochis appeared
without counsel before the magistrate
judge for arraignment. At the magistrate
judge’s direction, the government’s
counsel read the charges against Gochis.
Gochis acknowledged that he understood
the charges, and he pleaded not guilty.
Following Gochis’s arraignment, the
subject of the hearing was limited to the
amount of his bond, and at that time the
government’s counsel advised Gochis that
he was charged with crimes of violence
and faced up to a year in prison on each
count. The magistrate judge then advised
Gochis that his case was "no
insignificant matter" and that he should
obtain counsel. The magistrate judge did
not, however, explain to Gochis about his
right to trial, judgment, and sentencing
by a district judge as required by Fed.
R. Crim. P. 58(b)(2) (which requires the
magistrate judge to inform the defendant
at his initial appearance of his right to
be tried by a district judge), and 18
U.S.C. sec. 3401(b) (which requires the
magistrate judge to "carefully explain"
to the defendant his right to a trial by
a district judge).
After his initial arraignment, Gochis
retained counsel. According to an
affidavit filed by the government’s coun
sel, Gochis’s attorney indicated that he
had informed Gochis about his right to be
tried and sentenced by a district judge,
and that Gochis intended to waive that
right, but not his right to a jury
trial./2
On February 12, 1998, Gochis and his
attorney appeared before the magistrate
judge. Gochis was arraigned again, and he
pleaded not guilty once more. But the
magistrate judge again did not explain to
Gochis his right to trial, judgment, and
sentencing by a district judge.
Following the February 12 hearing,
Gochis and his counsel signed and filed a
consent form entitled "Consent to Proceed
Before United States Magistrate in a
Misdemeanor Case." Gochis’s signature
appears below the following paragraph
that is presented in bold print:
I HEREBY: Waive (give up) my right to
trial, judgment and sentencing before a
United States district judge and I
consent to trial, judgment, and
sentencing before a United States
magistrate.
Although the consent form also provided
Gochis the options to waive his rights to
a jury trial and to have thirty days to
prepare for trial, he chose not to waive
either. He requested and received a jury
trial. The magistrate judge accepted
assignment of the case. On December 7,
1998, Gochis sought a continuance of the
trial date to permit substitution of
counsel, and that request was granted.
Thereafter, the magistrate judge
presided, without objection, over pre-
trial, trial, post-trial and sentencing
proceedings. The jury trial lasted three
weeks and involved the testimony of 25
witnesses. The jury convicted Gochis of
all three counts on February 2, 1999. The
magistrate judge sentenced Gochis to
concurrent terms of six months of impris
onment followed by six months of work
release and restitution. Gochis appealed
his conviction and sentence to the
district court./3 The government also
appealed Gochis’s sentence to the
district court.
In appealing his conviction and
sentence, Gochis never sought to withdraw
his written consent to the magistrate
judge’s authority. In fact, his opening
brief to the district court (filed on
March 14, 2000) stated: "The parties con
sented to the entry of a final judgment
by Magistrate Thomas Rosemond on February
12, 1998." Thus, Gochis never challenged
the magistrate judge’s failure to
admonish him of his right to be tried by
an Article III judge until the district
court raised the issue sua sponte.
Nevertheless, the district court vacated
the judgment and ordered a new trial,
concluding that because the magistrate
judge had failed to explain to Gochis his
right to be tried by a district judge, as
required by Fed. R. Crim. P. 58(b)(2) and
18 U.S.C. sec. 3401(b), the written
consent was invalid and the magistrate
judge lacked the authority to preside
over the trial. United States v. Gochis,
196 F.R.D. 519 (N.D. Ill. 2000)./4 The
government appeals.
II.
On appeal, the government does not
dispute that the magistrate judge did not
explain to Gochis his right to trial,
judgment, and sentencing by a district
judge as required by 18 U.S.C. sec.
3401(b) and Fed. R. Crim. P. 58(b)(2).
Rather, the government argues that the
district court should not have
automatically vacated a three-week trial
and jury verdict simply because the
magistrate judge did not explain to
Gochis what he and his attorney already
knew. In other words, the district court
should not have imposed a per se
reversible error rule on the magistrate
judge’s failure to literally comply with
every letter of 18 U.S.C. sec. 3401(b)
and Rule 58, without considering whether
the magistrate judge’s error was
harmless. Instead, the government insists
that the district court was obligated to
apply Fed. R. Crim. P. 52(a) to the
magistrate judge’s omission to determine
whether the error was harmless. This is a
question of law subject to de novo
review. See Thomas v. Whitworth, 136 F.3d
756, 758 (11th Cir. 1998); Jones v.
United States, 167 F.3d 1142, 1144 (7th
Cir. 1999).
We agree with the government that the
first order of business is to determine
whether the magistrate judge’s error was
harmless according to Rule 52(a)./5
Rule 52(a) provides that "[a]ny error,
defect, irregularity or variance which
does not affect substantial rights shall
be disregarded." The Supreme Court has
emphasized that "Rule 52 is, in every
pertinent respect, as binding as any
statute duly enacted by Congress, and
federal courts have no more discretion to
disregard the Rule’s mandate than they do
to disregard constitutional or statutory
provisions." Bank of Nova Scotia v.
United States, 487 U.S. 250, 255 (1988).
The rule "prohibits federal courts from
granting relief based on errors that
’d[o] not affect substantial rights.’"
Peguero v. United States, 526 U.S. 23, 29
(1999). The Court has acknowledged that
"on its face, Rule 52(a) admits of no
broad exceptions to its applicability."
United States v. Lane, 474 U.S. 438, 448
n. 11 (1986). There seems to be no valid
reason for an exception to apply in this
case.
As Rule 52(a) states, an error is
"harmless" if it does not affect the
defendant’s "substantial rights." United
States v. Olano, 507 U.S. 725, 734
(1993). An error affects the defendant’s
substantial rights if it was
"prejudicial," which means that the error
"must have affected the outcome of the
district court proceedings." Id. Applying
Rule 52(a) in this case, the magistrate
judge’s omission was harmless if it did
not affect Gochis’s decision to waive his
right to a trial before a district judge.
Under a Rule 52(a) analysis, the
government "bears the burden of
persuasion with respect to prejudice,"
id., and if the error was harmless, it
must be disregarded.
In this case, there is no indication
that Gochis has suffered any prejudice as
a result of the magistrate judge’s
failure to admonish him about his right
to a trial before a district judge. His
primary concern was to have a jury trial,
and he pointedly did not sign the portion
of the consent form containing the jury
waiver. Gochis has not alleged that he
was actually ignorant of his right to a
trial before a district judge./6 See
United States v. Driver, 242 F.3d 767,
771 (7th Cir. 2001). And the district
court did not find that Gochis’s consent
was not knowing and intelligent./7 In
fact, Gochis has not alleged that if he
was admonished by the magistrate judge,
he would have had his case reassigned to
a district judge. See id. Moreover,
Gochis and his attorney signed and filed
a consent form that explicitly advised
him of his right to trial, judgment, and
sentencing before a district judge./8
Additionally, the government’s affidavit
indicates that Gochis’s first attorney
had informed him of his right to be tried
and sentenced by a district judge before
he signed the consent form, and that
Gochis intended to waive that right. Even
though the trial occurred almost a year
after Gochis filed his consent form, he
never sought to withdraw his consent. See
Geras v. Lafayette Display Fixtures,
Inc., 742 F.2d 1037, 1040-41 (7th Cir.
1984) ("The reference to the magistrate
may be withdrawn at any time by the
district court for good cause on its own
motion or under extraordinary
circumstances shown by any party.").
Because Gochis has not even alleged that
the magistrate judge’s omission affected
his decision to waive his right to trial
and sentencing before a district judge,
the magistrate judge’s technical error
was harmless and will be disregarded.
Thus, Gochis’s consent to being tried and
sentenced by the magistrate judge was
valid.
Gochis responds that Rule 52(a) is
inapplicable to his case because sec.
3401(b) and Rule 58 require literal
compliance in order to effectuate the
magistrate judge’s authority to preside
over his trial and sentencing. Thus,
while we have already concluded that the
magistrate judge’s omission was harmless
error, we will address whether sec.
3401(b) and Rule 58 require literal
compliance in order to effectuate the
magistrate judge’s authority, regardless
of whether the magistrate judge’s failure
to strictly comply with the provisions
was harmless error. "As with all issues
of statutory interpretation, the
appropriate place to begin our analysis
is with the text itself, (citations
omitted) which is the most reliable
indicator of congressional intent." Bass
v. Stolper, Koritzinsky, Brewster &
Nieder, 111 F.3d 1322, 1324-25 (7th Cir.
1997). Rule 58(b)(2) provides in part:
"At the defendant’s initial appearance on
a misdemeanor or other petty offense
charge, the court shall inform the
defendant of: . . . (E) the right to
trial, judgment, and sentencing before a
district judge . . . ." Fed. R. Crim. P.
58(b)(2). 18 U.S.C. sec. 3401(b) provides
that when a magistrate judge has
jurisdiction over certain misdemeanors,
the person charged may elect to be tried
before a district judge:
The magistrate judge shall carefully
explain to the defendant that he has a
right to trial, judgment, and sentencing
by a district judge and that he may have
a right to trial by jury before a
district judge or magistrate judge. The
magistrate judge may not proceed to try
the case unless the defendant, after such
explanation, expressly consents to be
tried before the magistrate judge and
expressly and specifically waives trial,
judgment, and sentencing by a district
judge. Any such consent and waiver shall
be made in writing or orally on the
record.
18 U.S.C. sec. 3401(b). Gochis expressly
consented to the magistrate judge when he
and his attorney signed the waiver. But
the magistrate judge did not give the
required admonishment to Gochis about his
right to a district judge. But why should
this omission automatically eradicate
what otherwise appears to be a complete
and proper trial process to which the
parties unequivocally consented? The
statute and rule provide no particular
remedy for the magistrate judge’s failure
to strictly follow the colloquy
procedure. Nowhere do Rule 58 and sec.
3401(b) compel the remedy of automatic
reversal of a conviction whenever a
magistrate judge fails to explain to a
defendant his right to trial, judgment,
and sentencing by a district judge. Nor
do those provisions indicate that a
defendant’s written waiver of his right
to an Article III judge is automatically
rendered invalid if the waiver was not
preceded by the magistrate judge’s
admonishment.
Gochis cites two cases, United States v.
Miller, 468 F.2d 1041 (4th Cir. 1972),
and United States v. Marcyes, 557 F.2d
1361 (9th Cir. 1977), which held that
even though the defendants filed written
waivers of their right to a jury trial,
those waivers were invalid because the
magistrate judges had failed to
specifically explain to the defendants
their right to a jury trial as required
by sec. 3401(b). See Marcyes, 557 F.2d at
1366-68; Miller, 468 F.2d at 1043-45.
Thus, in those cases, even if the
defendant filed a written waiver of his
right to a jury trial, that waiver was
inadequate to cure the magistrate judge’s
failure to explain to the defendant his
right to a jury trial. Both courts, in
applying an earlier version of the
statute, relied on the legislative
history of sec. 3401(b) to conclude that
a magistrate judge must literally comply
with the statutory procedure./9 Marcyes,
557 F.2d at 1368; Miller, 468 F.2d at
1044. At that time "magistrates" were not
permitted to conduct jury trials.
For whatever the legislative history
cited in Miller and Marcyes is worth,
however, it is at least as notable that
these passages do not indicate that
Congress intended to require the
automatic reversal of a conviction
whenever a magistrate judge failed to
strictly comply with sec. 3401(b). Nor is
there any indication that a magistrate
judge’s failure to admonish the defendant
of his right to a jury (or a district
judge) invalidates the defendant’s
written waiver of that right. As with
most legislative history, there are
inevitable inclusions and exclusions,
which is why the courts must primarily
rely on the statutes as finally written.
Furthermore, Miller and Marcyes also
relied on McCarthy v. United States, 394
U.S. 459 (1969), in which the Supreme
Court held that a trial court’s failure
to comply with Fed. R. Crim. P. 11 (as
then written and approved by Congress)
was per se reversible error. See 394 U.S.
at 468-72; Miller, 468 F.2d at 1044;
Marcyes, 557 F.2d at 1367. Miller and
Marcyes concluded that by analogy to
McCarthy, strict adherence to sec.
3401(b) and Rule 58 is required to
effectuate the magistrate judge’s
authority. See Miller, 468 F.2d at 1044;
Marcyes, 557 F.2d at 1367.
This per se analysis by analogy may have
pushed the rule to the edge as it was,
but as the rule has since been written,
that analysis appears to be obsolete. In
1983, subsequent to Miller and Marcyes,
Congress amended Rule 11 with subsection
(h), the harmless error provision, which
provides that "[a]ny variance from the
procedures required by this rule which
does not affect substantial rights shall
be disregarded." Fed. R. Crim. P. 11(h).
This amendment directly addressed the
McCarthy decision. Rule 11(h) eliminated
McCarthy’s "’extreme sanction of
automatic reversal’ by making ’clear that
the harmless error rule of [Federal Rule
of Criminal Procedure 52(a)] is
applicable to Rule 11.’" United States v.
Drummond, 903 F.2d 1171, 1173 (8th Cir.
1990) (quoting Fed. R. Crim. P. 11(h)
advisory committee’s note); see also
United States v. DeFusco, 949 F.2d 114,
117 (4th Cir. 1991) (Rule 11(h) "was
meant to overrule McCarthy")./10 Thus,
this court concluded that "’we inter [the
pre-1983 per se reversible error] rule
now in favor of the more straight-forward
approach of universal application of Rule
11(h) harmless error analysis to review
all complaints of Rule 11 violation[s] in
which we find that an error was made.’"
United States v. Cross, 57 F.3d 588, 591
(7th Cir. 1995) (quoting United States v.
Johnson, 1 F.3d 296, 302 (5th Cir. 1993)
(en banc))./11 Rule 52(a) aside, when
approaching the question under the
analysis relied upon by the district
court and now Gochis on appeal, we arrive
at the same conclusion--harmless error is
the proper approach when there is
otherwise no prejudice in the process.
Miller, Marcyes, and McCarthy pre-dated
the age of Rule 11(h)’s mandatory
application of harmless error analysis to
Rule 11 violations. Because Miller and
Marcyes relied on McCarthy’s application
of the pre-amended Rule 11, their
authority for the per se approach to
violations of sec. 3401(b) and Rule 58 is
greatly diminished. Cf. Drummond, 903
F.2d at 1173 (a court’s reliance on the
automatic reversal rule of McCarthy to
support its per se approach to Fed. R.
Crim. P. 32(a)(2) violations is seriously
undermined by Rule 11(h)). McCarthy
applied Rule 11 as it was. If we were to
use any analogous application of Rule 11
in this case, we would have to apply the
rule as it is now written. Thus Rule
11(h) would necessarily impose the
harmless error analysis.
Moreover, McCarthy’s automatic reversal
rule was made pursuant to the Court’s
"supervisory power over the lower federal
courts." McCarthy, 394 U.S. at 464. "In
the exercise of its supervisory
authority, a federal court ’may, within
limits, formulate procedural rules not
specifically required by the Constitution
or the Congress.’" Bank of Nova Scotia,
487 U.S. at 254. Subsequent to McCarthy,
however, the Supreme Court has held that
"a federal court may not invoke
supervisory power to circumvent the
harmless-error inquiry prescribed by
Federal Rule of Criminal Procedure
52(a)." Id. Consequently, this court has
applied Rule 52 to Rule 11 violations,
see United States v. Driver, 242 F.3d at
769, and to a district judge’s failure to
admonish a defendant about his right to a
jury trial as required by a supervisory
rule. See United States v. Rodriguez, 888
F.2d 519, 527-28 (7th Cir. 1989)
(automatic reversal is no longer an
appropriate response to the failure to
follow a supervisory rule).
We also note that it appears that later
cases in both the Fourth and Ninth
Circuits have not applied the per se
reversible error rule for non-prejudicial
violations of Rule 58(b)(2). See United
States v. Kabat, 586 F.2d 325, 328 (4th
Cir. 1978) ("We do not read Miller,
however, as laying down a [p]er se rule
of reversal whenever the magistrate fails
to comply with Rule 2(b) [now Rule 58] in
any respect."); United States v. Doe, 743
F.2d 1033, 1039 (4th Cir. 1984) (no
prejudice accrued from magistrate’s
failure to strictly comply with Rule 58);
United States v. Byers, 730 F.2d 568, 570
(9th Cir. 1984) (per curiam) (defendant’s
failure to challenge his consent to trial
by a magistrate until oral argument on
appeal was waived as untimely).
We are thus not persuaded by the Miller
and Marcyes decisions, and conclude that
the magistrate judge’s failure in this
case to strictly comply with the colloquy
procedures required by sec. 3401(b) and
Rule 58 does not require the automatic
reversal of the conviction because the
magistrate judge’s error was
harmless./12
While we conclude in this case that the
magistrate judge’s error was harmless, it
was, nevertheless, an error. To avoid
this situation, we emphasize that the
proper procedure is to carefully explain
to the defendant the right to a district
judge as required under sec. 3401(b) and
Rule 58.
III.
Gochis’s written consent to be tried and
sentenced by a magistrate judge was valid
because there is no indication that the
magistrate judge’s failure to admonish
Gochis about his right to trial,
judgment, and sentencing by a district
judge affected his decision to sign the
consent. Accordingly, we REVERSE the
district court and REMAND for
reinstatement of the magistrate judge’s
final judgment and for further
proceedings consistent with this
decision.
FOOTNOTES
/1 29 U.S.C. sec. 530 makes it unlawful for any
person to use or threaten force or violence in
order to interfere with or prevent a labor union
member from expressing his views or exercising
other rights.
/2 The affidavit by the government’s counsel states
in part:
"On August 4, 2000, I spoke telephonically with
Mr. Chiganos [Gochis’s initial attorney] who
advised that, prior to signing the Consent, he
would have informed defendant of the rights that
he was giving up by executing the waiver, includ-
ing his right to be tried and sentenced by a
United States district judge. Mr. Chiganos be-
lieves that defendant was aware of this and was
only concerned that he receive a jury trial.
Whether that jury trial was before a district
judge or a magistrate judge did not matter to
defendant. Mr. Chiganos further advised that he
never puts anything in front of a client to sign
without first explaining the significance to him.
Ultimately, the decision whether to sign or not
is left up to the client."
/3 "[O]ne convicted of a misdemeanor before a magis-
trate judge must first appeal to the district
court before [he] may seek review here." United
States v. Smith, 992 F.2d 98, 99 (7th Cir. 1993);
18 U.S.C. sec. 3402.
/4 The district court also concluded that the magis-
trate judge failed to obtain Gochis’s consent
prior to accepting his plea, in violation of Fed.
R. Crim. P. 58(b)(3)(A).
/5 The government argues further that because Gochis
never objected to the magistrate judge’s failure
to admonish him of his right to be tried by an
Article III judge until the district court raised
the issue sua sponte, that argument has been
forfeited, and we must review the magistrate
judge’s omission for plain error pursuant to Rule
52(b). Rule 52(b) "provides a court of appeals a
limited power to correct errors that were for-
feited because not timely raised in district
court." United States v. Olano, 507 U.S. 725, 731
(1993). Gochis’s counsel responds by arguing that
his failure to object should be excused because
when he substituted for Gochis’s first counsel
after Gochis had already signed the consent form,
he was misled by language on the consent form
that the magistrate judge had already informed
Gochis of his right to be tried by a district
judge. This is a rather weak excuse for counsel’s
failure to object. When he took over the case,
had he or his client had any concern about the
magistrate judge presiding, he had ample opportu-
nity to review the transcript of the colloquy
proceedings, discover the magistrate judge’s
omission, and make a timely objection. But be-
cause it is clear that Gochis suffered no preju-
dice as a result of the magistrate judge’s omis-
sion, and thus the error was harmless, we will
resolve the issue under Rule 52(a).
/6 Gochis argued to the district court that the
magistrate judge’s error "makes the waiver not
knowingly given." Similarly, Gochis maintained in
his brief to this court that his waiver was not
intelligent because the form also attests to an
event that never occurred, namely, that the
magistrate judge had explained to Gochis his
right to a district judge. But Gochis has not
actually claimed that he did not know of his
right to an Article III judge when he filed the
written waiver.
/7 The district court stated that: "It may very well
be true that defendant intended to consent to
having the magistrate judge preside over his
trial in the instant case." Gochis, 196 F.R.D. at
528. The court also acknowledged that it had "no
reason to doubt that government counsel was
informed by defendant’s counsel prior to the
start of the February 12 arraignment that defen-
dant intended to waive his right to a trial
before a district judge but not his right to a
jury trial . . . ." Id. at 527. The court con-
cluded: "In the end, it does not matter whether
the defendant actually did intend to have his
case heard by the magistrate judge or whether he
failed to object below, because the magistrate
judge failed to comply with Fed. R. Crim. P. 58
and 18 U.S.C. sec. 3401(b)." Id. at 528.
/8 According to the district court, because the pre-
printed consent form also stated that the magis-
trate judge had explained to Gochis his right to
an Article III judge, the form "attests to an
event that the parties agree never occurred" and
thus was "invalid on its face." Gochis, 196
F.R.D. at 527. Although that language on the form
was inaccurate, it does not invalidate the other
language on the consent form that clearly stated
in bold print to Gochis that he was waiving his
right to trial and sentencing by a district
judge. His main concern was that his case be
tried to a jury; he did not sign the jury waiver
provision contained on the same consent form.
/9 According to Miller and Marcyes, the following
legislative history supports their holdings:
The House Report on the Magistrates Act, then
Senate Bill 945, emphasized that a defendant’s
waiver of his right to a jury trial must be
’knowledgeable’ and ’intelligent’:
7. It gives the U.S. magistrate an expanded
trial jurisdiction over minor criminal offenses
when the accused executes a knowledgeable waiver
of both his right to trial before a U.S. district
court and any right to trial by jury he may have.
* * *
Under the act’s provisions, a U.S. magistrate’s
valid exercise of his minor offense trial juris-
diction is contingent upon:
(1) His special designation to try these offenses
by the judges of the U.S. district court;
(2) The defendant’s election to be tried before
a magistrate rather than a judge of the U.S.
district court; and
(3) The defendant’s intelligent waiver of whatev-
er right to jury trial he may have before the
district court.
H.Rep.No.1629, 90th Cong., 2d Sess. (1968). 1968
Cong. & Admin. News, pp. 4254, 4264.
Mr. Poff, a proponent of the bill, pointed out
during the House debates the
indispensability of the magistrate’s explanation:
Third, even a specially designated magistrate
will be unable to exercise his jurisdiction
unless both the prosecutor and the accused con-
sent. The magistrate will be required to give
every defendant brought before him a careful
explanation of his right to elect trial before a
judge of the district court and of his right, in
appropriate cases, to demand trial by jury before
that judge. S. 945 specifically forbids the
magistrate toproceed to trial unless the defen-
dant, having heard the magistrate’s explanation,
executes a written election.
Marcyes, 557 F.2d at 1367 n. 4; Miller, 468 F.2d
at 1043 n. 4.
/10 McCarthy specifically stated that "This decision
is based solely upon our construction of Rule 11
and is made pursuant to our supervisory power
over the lower federal courts; we do not reach
any of the constitutional arguments petitioner
urges as additional grounds for reversal." 394
U.S. at 464. Therefore, Congress had the authori-
ty to adjust the statute that the Court had
strictly applied.
/11 We also note that Rule 11(h) was added to Rule 11
"because some courts have read McCarthy as mean-
ing that the general harmless error provision in
Rule 52(a) cannot be utilized with respect to
Rule 11 proceedings. Thus [Rule 11(h)] should not
be read as suggesting that Rule 52(a) does not
apply in other circumstances because of the
absence of a provision comparable to [Rule 11(h)]
attached to other rules." Fed. R. Crim. P. 11(h)
advisory committee’s note.
/12 We note that Gochis may still appeal his other
challenges to his conviction and sentence to the
district court.