Where The Full Record Indicates a Plea is Voluntary, Rule 11 Omissions Will Not Lead to Vacatur
In United States v. Pattee, 14-32163-cr (April 21, 2016) (GC, GEL, RJL), the Court affirmed a judgment of conviction and sentence entered in the United States District Court for the Western District of New York (Frank P. Geraci, Jr., C.J.). The Defendant was charged in a 13-count Indictment for producing, distributing, and possession of child pornography. After losing a motion to suppress, the defendant pleaded guilty to all 13-counts and was sentenced to a 47-year term of incarceration.
The opinion is noteworthy for its extensive discussion of Rule 11 of the Federal Rules of Criminal Procedure, which requires a court to inform a defendant of fifteen (15) specified matters before accepting a plea of guilty. See Fed. R. Crim. P. 11(b)(1)(A)-(N). Many prosecutors use a checklist in order to make sure that the court does not mistakenly omit one of the Rule 11 requirements. When one of the authors of this blog served as a federal prosecutor, he was given such a checklist during his first few days of work and instructed to bring a copy to every guilty plea allocution.
Judge Lynch, himself a former federal district judge and federal prosecutor, admonished trial court judges for a “recurring issue” with Rule 11 omissions, but the Court nonetheless held that appellate “scrutiny [of omissions] is strict only at the level of assessing compliance, and does not frequently require vacatur of a plea.” Slip Op. at 12-13. The Court also took pains to emphasize that technical compliance, while mandatory, is not the thrust of Rule 11. Rather, it noted that “[t]he Rule’s list of required elements of a guilty plea proceeding should serve as a baseline and a trigger to seek out additional issues relevant to the particular defendant.” Id. at 16-17. For example, Rule 11 does not require the trial court judge to advise the defendant that a guilty plea waives non-jurisdictional defects in the proceedings prior to the entry of the plea. Id. at 27. In other words, a defendant cannot plead guilty, and then challenge the denial of a suppression motion or a motion for a bill of particulars; these are all waived when the defendant admits his guilt. Nevertheless, it would have aided the defendant here and would “serve the interests of justice” for courts to add this advice where appropriate, such as when “the outcome of a suppression motion is largely determinative of the defendant’s prospects at trial.” Id. at 28. Despite the Court’s evident unhappiness with plea allocutions that do not check all the necessary boxes, it followed prior Supreme Court and Second Circuit precedent that only permit a guilty plea to be vacated for a Rule 11 violation in certain limited circumstances.
The Pattee decision will be cited primarily in the context of assessing compliance with Rule 11. When Pattee could no longer afford to pay his retained counsel, the district court sought information about his assets prior to appointing counsel. Two weeks after this inquiry began—and after a suicide attempt—Pattee pleaded guilty. During the plea colloquy, the district court failed to specifically address the waiver of the following rights: the right to plead not guilty, or having already so pleaded, to persist in that plea (Rule 11(b)(1)(B)); the right to a jury trial; (Rule 11(b)(1)(C)); the right to be represented by counsel – and if necessary have the court appoint counsel – at trial and at every other stage of the proceeding Rule 11(b)(1)(D)); the right at trial . . . to be protected from compelled self-incrimination, . . . and to compel the attendance of witnesses Rule 11(b)(1)(E)). The defendant did not object to these asserted deficiencies in the plea allocution, but he argued on appeal that these numerous omissions called “the integrity of the proceedings” into question.
Judge Lynch began with a discussion of the evolution of Rule 11 since its initial promulgation in 1945. Slip Op. at 11. He pointed out that it originally was only three sentences long and instructed that the court needed to determine “that the plea is made voluntarily with understanding of the nature of the charge.” Over time, the rule became far more specific about what was required, and although a harmless error provision was added in 1983, the Second Circuit still insisted on “strict adherence to Rule 11.” Judge Lynch explained that “[l]uckily, compliance with Rule 11 is not a difficult task” because there is a “standard script for accepting guilty pleas which covers all of the required information.” Id. at 13.
Rule 11 Is Not Strictly Followed In Many Cases
“Compliance with the Rule’s requirement should be automatic.” Id. at 17. It “should be a simple matter for . . . judges to avoid any error by adhering literally to the script required by the Rule” and yet errors are a “recurring issue” in the Second Circuit, as district courts often fail to enumerate each of the Rule 11 requirements. The Court laid the blame for these omissions not just with judges, but also with prosecutors and defense attorneys, admonishing both bars to ensure that Rule 11 is followed. Specifically, the Court noted that it is defense counsel’s “responsibility . . . to object if all elements of Rule 11 are not covered.” Id. at 15-16.
The Court also underscored that “district and magistrate judges must be alert to ways to go beyond rote recitals, in order to make sure that the defendant’s waiver of rights is truly knowing and voluntary.” Id. at 16. “[E]ven strict adherence to Rule 11 may not cover every issue that may be relevant to assessing a particular defendant’s understanding, district and magistrate judges must be alert to ways to go beyond rote recitals, in order to make sure that the defendant’s waiver of rights is truly knowing and voluntary.” Id. For example, the Court noted that Rule 11 does not compel courts to inform a defendant that a guilty plea waives his right to appeal non-jurisdictional defects in the proceedings before entry of the plea, including the denial of critical suppression hearing.
Rule 11 Violation Does Not Lead To Reversal
To show that a Rule 11 error affected his substantial rights, as is required in the absence of an objection, the defendant “must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Here, this standard was not satisfied. After combing the record, the Court concluded that it was a “certain[ty]” that the deficiencies in the Rule 11 colloquy did not affect Appellant’s decision to plead guilty. Slip Op. at 17. It rejected as unpersuasive the argument that Pattee was not aware of his right to counsel, noting that the record thus makes clear that Pattee knew that he had a right to counsel, and to appointed counsel if he was in fact unable to afford to retain an attorney to represent him. It concluded that the omission of another reminder of that right during the plea colloquy itself thus could not have affected his decision to plead guilty. Turning to the other omissions, the Court noted that the Pattee made “little effort to argue that the other omissions affected his decision to plead guilty.” Id. at 22. Accordingly, the Court held that it had “no basis for concluding that Pattee’s decision to plead guilty was the result of these omissions, whether taken singly or together.” Id. at 23. In considering the effect of the omissions, the Court also considered the weight of the evidence, noting that Pattee had lost a suppression motion and that the weight of the evidence of guilt was overwhelming. Id. at 23.
With respect to Pattee’s claim that he was not advised that his guilty plea waived his right to challenge the denial of his suppression motion, the Court found no Rule 11 violation because Rule 11 does not require such an advice of rights. Nonetheless, the Court indicated that courts should so advise defendants, even though this advice is not required by Rule:
We note that it would serve the interests of justice, and also the prudential purpose of creating a record that would either expose erroneous advice by counsel before a plea is entered or refute later false claims of such advice, if district and magistrate judges included advice about the effect of a guilty plea on appeal rights in their standard colloquy for guilty plea proceedings, particularly in cases in which the outcome of a suppression motion is largely determinative of the defendant’s prospects at trial.
Id. at 27-28.
In the absence of any plain error – with no evidence supporting the notion that Pattee’s decision to plead guilty would have been otherwise even if Rule 11 had been strictly followed – the Court affirmed.
Factual Basis for Plea, Reasonableness of the Sentence
Appellant also challenged the existence of a factual basis for the guilty plea and the procedural and substantive reasonableness of his 47-year sentence. The Court rejected these arguments. With respect to sentencing, the Court pointed out that the crime involved the repeated sexual abuse of a pre-pubescent child over a period of two years, thus justifying the lengthy sentence as one well within the district court’s discretion.
-By Helen P. O'Reilly and Harry Sandick