Howard Horsley v. United States , 583 F.2d 670 ( 1978 )

HIGGINBOTHAM, Circuit Judge,

dissenting.

The majority extensively analyzes whether the error committed here was prejudicial. I agree that if there were error here, it would be prejudicial. I conclude, however, that no error was committed. From my view, the majority has failed to heed the admonition that “matters of reality and not mere ritual should be controlling.” McCarthy v. U. S., 394 U.S. 459, 467 n. 20, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). Therefore, I dissent.

As the majority notes, before a district court judge can accept a guilty plea in accordance with Rule 11, the court “must address the defendant personally in open court and inform him of, and determine that he understands . . . the nature of the charge to which the plea is offered.” I would conclude, on this record, that the district court here adequately discharged its obligations under Rule 11.

The excerpt from the plea hearing which is included in the majority opinion reveals that the judge below:

(1) informed the defendant that he was pleading guilty to an indictment charging him with participation in a “conspiracy with respect to heroin;”

(2) determined that the defendant had gone over the indictment with his attorney to whom he revealed all relevant facts; and

(3) received an affirmative response to the direct question, “Do you fully understand the charges against you?”

I believe that this inquiry meets the requirements set by Rule 11. I believe further that no case decided by this court is to the contrary.

The majority relies primarily on Woodward v. U. S., 426 F.2d 959 (3d Cir. 1970). The district court there made no inquiry at all into the defendant’s understanding of the charges.¹ Instead it relied on the prosecutor’s questioning of the defendant. There is language in that opinion to the effect that the court must describe the “basic acts” that constitute the crime. Given the total failure of the judge to personally instruct the defendant as to the nature of the charges, however, any advice as to the exact content of the judge’s instruction must be considered dictum.

Also, the requirement of describing the “basic acts” has never been read as expansively in this circuit as the majority does here. In Paradiso v. U. S., 482 F.2d 409 (3rd Cir. 1973), the second case from this circuit relied upon by the majority, this court held that the district court’s reading of the indictment to the defendant was an adequate explanation of the charges. The court there left the question of whether additional explanation was necessary to the district court’s discretion. The court also stated that the necessary inquiry under Rule 11 varies from case to case. In the last case of this circuit relied on by the majority, U. S. v. Cantor, 469 F.2d 435 (3rd Cir. 1972), the judge’s explanation of the charge to which the plea was entered was found to have been actually misleading. Thus Cantor does not deal with the question of how much explanation is necessary if that explanation is accurate.

In analyzing the sufficiency of the explanation here, I take as my point of departure the Supreme Court’s admonition in McCarthy, supra, and Judge Rosenn’s instruction in Paradiso, supra, at 415, that matters of reality rather than mere ritual must control. As a matter of reality, if the reading of the indictment in Paradiso is sufficient to comply with Rule 11, that rule has been complied with here, where the defendant responded affirmatively to the question: “Do you understand the indictment charges you with conspiracy with respect to heroin, and that is the count you are pleading to?” and where it was judicially determined that the defendant had read the indictment, that the defendant understood the indictment and that he had discussed it with his attorney. Despite this record, the majority vacates the guilty plea and the realistic issue becomes: What else should the trial judge have done which would have made a difference in the defendant’s understanding of the charge? Would additional questioning by the judge or a perfunctory reading of the indictment be more a matter of ritual or of real significance? Of course, the indictment could have been read, but it is difficult to believe that the defendant would thereby be better prepared for the decision to enter a guilty plea than he was by the present record.

In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), the Supreme Court granted a state prisoner’s ha-beas petition because he was not adequately informed of the nature of the charges. The Court responded to the anticipated criticism that the decision would result in numerous collateral attacks by stating, “Normally, the record contains either an explanation by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused.” 426 U.S. at 647, 96 S.Ct. at 2258. Although Henderson was not decided under Rule 11, it is a strong indication that a district court judge may discharge his duty to inform the defendant of the nature of the charges by describing the charge generally and determining that the defendant had discussed the charge with counsel.

I am not suggesting that the procedure here would be adequate in all cases. I am suggesting only that it is not inadequate in all cases. Therefore we must look to the specific defendant, the specific record and the specific indictment to determine whether the inquiry met Rule 11 standards.

The defendant here pled guilty to a charge of conspiring to distribute and possess, with intent to distribute, heroin. One of the overt acts alleged was that the defendant received a quantity of heroin in Pittsburgh from a specific co-conspirator on a specific date. Although I am well aware of the complexities that conspiracy prosecutions may present, I believe that the charges here were sufficiently clear ajid specific that the defendant, a 31 year old man who had completed the eleventh grade, could understand them with little difficulty. Defendant was no novice to the federal courts; at the time he entered his guilty plea he was serving concurrent six and two year sentences which had been imposed by Judges Louis Rosenberg and Barron McCune of the District Court for the Western District of Pennsylvania. The district court, by referring to the charge as a conspiracy with respect to heroin, certainly gave less than an exhaustive explanation of the charges. But given this defendant and this indictment and the defendant’s response that he had discussed the charges with his attorney with whom he was satisfied and that he did understand the charges, I believe the district court adequately explained to the defendant and determined that he understood the nature of the charges.

The majority quotes from this court’s decision in Brown v. U. S., 565 F.2d 862, 863-64 (3rd Cir. 1977) in order to suggest that the result it reaches will help assure that future pleas will be voluntary and that the result will decrease the need for litigation of § 2255 claims. I have already expressed my view that the result reached by the majority is not, as a matter of reality, responsive to the need for determining actual understanding and voluntariness. I must also express my concern that the result reached by the majority may increase rather than decrease litigation of this sort. Once an explanation of the elements of a crime is required in every instance, the ineluctable consequence will be a stream, if not a flood, of cases challenging the completeness of the explanation, demanding that more and more subtleties of the criminal law be included within that explanation and then charging that the district court has not quite accurately set forth these nuances. At least one court has already suggested that the explanation of the charges in a Rule 11 hearing should be similar to jury instructions. See U. S. v. Coronado, 554 F.2d 166, 172 (5th Cir. 1977), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). The majority’s construction of the duty placed on district court judges by Rule 11 to explain the nature of the charges may well lead to the same type of morass that courts faced under the prior version of Rule 11 that required district judges to explain the “consequences” of the plea.

In conclusion, I would hold, on this record, that the district court adequately explained and determined that the defendant understood the nature of the charges against him. In this case ritual has been substituted for reality.

1 . Likewise, in McCarthy, supra, no inquiry at all was made by the district court into the defendant’s understanding of the charges. 394 U.S. at 464, 472-1, 89 S.Ct. 1166 (Appendix A).