United States v. Ralph Riegelsperger

HEANEY, Circuit Judge.

Ralph Riegelsperger appeals from the denial of his motion to withdraw a plea of guilty. We reverse.

On August 26, 1977, Riegelsperger was charged in a two-count indictment with conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846 and possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a). At arraignment, Riegelsperger pled not guilty. After discussions between his counsel and the Assistant United States Attorney, Riegelsperger agreed to plead guilty to a newly filed information charging him with using a communication facility to further a conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 843(b). In exchange, the government agreed to dismiss the original indictment and recommend to the district court that Riegelsperger be given a sentence of eight months imprisonment plus three years probation.

On October 19, 1979, Riegelsperger appeared before the district court¹ to change his plea. He waived the indictment and pled guilty to the newly filed information. The court accepted the plea and sentenced him to three years imprisonment. Two months later, Riegelsperger moved to withdraw his guilty plea. Without holding an evidentiary hearing, the district court denied the motion. Riegelsperger appeals that decision, claiming that the district court failed to comply with Rules 11(c)(5) and 11(d) of the Federal Rules of Criminal Procedure and that misunderstandings remain concerning the plea bargaining agreement.²

Rule 11(d) provides:

(d) Insuring that the plea is voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.

Although ritualistic compliance with the dictates of Rule 11(d) is not required, the district court must use procedures sufficient to determine that the plea is voluntary and not the product of force, threats or promises apart from a plea agreement. See United States v. Cammisano, 599 F.2d 851, 855 (8th Cir. 1979). Moreover, the Rule places on the district court the specific duty to inquire whether the defendant’s decision to plead guilty resulted from prior discussions between the attorney for the government and the defendant or his attorney.

In this case, it is conceded that Judge Eisele’s general practice is to not accept plea agreements under Fed.R.Crim.P. 11(e). This Court has previously held that that is his prerogative. See In re Yielding, 599 F.2d 251 (8th Cir. 1979). Unfortunately, we cannot tell from the record of the plea hearing whether the defendant knew that the judge had the right to ignore the agreement and that it was, in fact, his practice to do so. Although the district court did ask Riegelsperger whether any threats or promises had induced him to plead guilty, the court did not ask any questions about plea negotiations or their effect on the decision to plead. Nor did the court tell the defendant that it was not obligated to follow a negotiated agreement.

In light of the requirements of Rule 11(d), we are convinced that the district court erred in failing to make specific inquiry, on the record, whether Riegelsperger’s plea was the result of discussions between him or his counsel and the government attorney. The district court’s general questioning about whether threats or promises had been made do not suffice. See United States v. Scharf, 551 F.2d 1124, 1129 (8th Cir. 1977). Furthermore, if the district court’s examination had revealed that plea negotiations had occurred, the district court had the duty to inform the defendant, on the record, that the court was not bound to follow the terms of the agreement. Only in this way can the district court and the reviewing court properly determine whether the plea was made voluntarily and whether the defendant truly understood the nature and consequences of his plea. See United States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980); United States v. Cody, 438 F.2d 287 (8th Cir. 1971).

* In our view, the district court’s failure to follow these procedures denied the defendant his right to have the court determine whether he voluntarily pled guilty to the charged offense. To avoid manifest injustice, he must be permitted to withdraw his plea. Accordingly, the decision of the district court is reversed and the cause remanded with directions to give the defendant an opportunity to plead anew.

1 . The Honorable Garnett Thomas Eisele, Chief Judge for the Eastern District of Arkansas.

2 . Because of our disposition of this appeal on the Rule 11(d) ground, we need not consider the other issues raised by the appellant.