Where The Full Record Indicates a Plea is Voluntary, Rule 11 Omissions Will Not Lead to Vacatur

by Patterson Belknap Webb & Tyler LLP
Contact

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.  

Rule 11

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.

Written by:

Patterson Belknap Webb & Tyler LLP
Contact
more
less

Patterson Belknap Webb & Tyler LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.