United States v. Driver, Richard E. ( 2001 )


Menu:
  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-2263
    United States of America,
    Plaintiff-Appellee,
    v.
    Richard E. Driver,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Indiana, New Albany Division.
    No. NA 99-011-CR-01--S. Hugh Dillin, Judge.
    Argued January 23, 2001--Decided March 9, 2001
    Before Posner, Easterbrook, and Ripple, Circuit
    Judges.
    Easterbrook, Circuit Judge. Richard Driver
    pleaded guilty to using interstate facilities in
    a contract-murder scheme, and to carrying a
    firearm during and in relation to that offense.
    His sentence was 160 months’ imprisonment--light
    punishment for crimes of this gravity. But Driver
    nonetheless has appealed, testing his luck. His
    lawyer asks us to set aside his client’s plea, a
    step that if taken would cost Driver any reward
    for acceptance of responsibility, see United
    States v. Lopinski, No. 00-2464 (7th Cir. Jan. 8,
    2001), and could lead the prosecutor to withdraw
    other favorable elements of the plea bargain,
    even if Driver decides to enter a second guilty
    plea.
    When taking Driver’s guilty plea, the district
    judge failed to comply with Fed. R. Crim. P. 11.
    The many shortcomings are conceded by the
    prosecutor--who sat quietly in the district court
    and neglected to alert the judge to the problem.
    The district court failed to remind Driver of the
    maximum possible penalty, failed to explain that
    imprisonment would be followed by supervised
    release, failed to advise Driver that if he went
    to trial he would be entitled to cross-examine
    adverse witnesses, and overlooked several other
    mandatory reminders and warnings in Rule 11’s
    lengthy list. Compliance with Rule 11 is easily
    achieved. Both judge and prosecutor can use
    check-off forms (which are readily available); it
    is surprising and regrettable that the court
    continues to see appeals of this kind, where a
    district judge, a prosecutor, and defense counsel
    all seem oblivious to the risk.
    If Driver had asked the district court for
    leave to withdraw his plea, then the judge would
    have had to decide whether the noncompliance with
    Rule 11 supplied a "fair and just reason" for
    that relief. Fed. R. Crim. P. 32(e). Even an
    established violation of Rule 11 can be harmless
    error, see Rule 11(h), and thus not a "fair and
    just reason" to return to Square One. A violation
    would be harmless when the defendant already knew
    the information omitted by the judge--when, for
    example, his own lawyer had told him about cross-
    examination, or the written plea agreement had
    specified the maximum punishment. See Peguero v.
    United States, 
    526 U.S. 23
     (1999); United States
    v. Timmreck, 
    441 U.S. 780
     (1979). A judge may
    need to hold a hearing to determine what the
    defendant knew when he entered the plea of
    guilty. But when a defendant does not move to
    withdraw the plea in the district court, it will
    prove hard, and may be impossible, for appellate
    judges to ascertain the state of his knowledge.
    If a harmless-error standard nonetheless applies
    despite the defendant’s failure to seek relief in
    the district court, then many a plea must be set
    aside on appeal--for the prosecutor bears the
    burden of establishing the harmlessness of an
    error. This is Driver’s position. Fortified by
    decisions of the ninth circuit, Driver contends
    not only that the harmless-error standard governs
    but also that a court is forbidden to examine
    anything other than the plea colloquy in order to
    determine what the defendant knew when pleading
    guilty. See United States v. Odedo, 
    154 F.3d 937
    ,
    940 (9th Cir. 1998); United States v. Vonn, 
    224 F.3d 1152
     (9th Cir. 2000), cert. granted, No. 00-
    973 (U.S. Feb. 26, 2000). See also United States
    v. Lyons, 
    53 F.3d 1321
    , 1322 n.1 (D.C. Cir.
    1995). This approach almost inevitably leads to
    reversal with instructions to allow the defendant
    to plead again; it would have exactly that effect
    if we followed it.
    Which we do not. Like most other appellate
    courts that have considered this issue, we have
    held that, when the district court was not asked
    to set aside the plea, appellate review is for
    plain error. See Fed. R. Crim. P. 52(b); United
    States v. Akinsola, 
    105 F.3d 331
    , 333 (7th Cir.
    1997); United States v. Davis, 
    121 F.3d 335
    , 338
    (7th Cir. 1997); United States v. Cross, 
    57 F.3d 588
    , 590 (7th Cir. 1995). Accord, United States
    v. Gandia-Maysonet, 
    227 F.3d 1
    , 5-6 (1st Cir.
    2000); United States v. Bashara, 
    27 F.3d 1174
    ,
    1178-79 (6th Cir. 1994); United States v. Young,
    
    927 F.2d 1060
     (8th Cir. 1991); United States v.
    Quinones, 
    97 F.3d 473
    , 475 (11th Cir. 1996). Cf.
    United States v. Glinsey, 
    209 F.3d 386
    , 394 n.8
    (5th Cir. 2000) (stating that harmless-error
    approach applies, but that the defendant
    nonetheless bears the burden). Driver contends
    that United States v. Fernandez, 
    205 F.3d 1020
    ,
    1028 (7th Cir. 2000), aligns us with the ninth
    circuit, but he has misread Fernandez. In that
    case the defendant asked the district court to
    withdraw his plea and go to trial. We reviewed
    for harmless error an order denying that motion.
    When the defendant has not asked for relief in
    the district court, the more demanding plain-
    error standard applies. See United States v.
    Olano, 
    507 U.S. 725
     (1993).
    If we were tempted to alter this circuit’s
    approach, we would not be attracted to the ninth
    circuit’s. It is incompatible with the language
    of Rule 52(b), which calls for plain-error review
    when a claim of error was "not brought to the
    attention of the [district] court". (Rule 11(h)
    does not override Rule 52(b), as the ninth
    circuit asserts; it simply restates the approach
    applicable when a claim of error has been
    preserved in the district court, and thus negates
    the conclusion of some courts that McCarthy v.
    United States, 
    394 U.S. 459
     (1969), had abrogated
    plain-error analysis in Rule 11 cases. See
    Gandia-Maysonet, 
    227 F.3d at 5
    .) Limiting
    appellate review to a search for plain error
    serves important functions, among them inducing
    defendants to present their claims to the
    district court so that reversible error may be
    avoided. A motion to withdraw a plea entered
    after defective procedures enables the district
    court to build the sort of record that is
    essential to understanding the effect of any
    noncompliance with Rule 11; it also permits the
    district judge to take the plea anew and thus
    avoid the delay that attends appeal--delay that
    may undermine the accuracy of any ensuing trial,
    for memories may fade or evidence be lost as time
    passes. Finally, in a case such as this, a motion
    in the district court would dispel uncertainty
    about whether the defendant really wants to
    withdraw his plea, give up the consideration
    received for the plea bargain (including the
    reduction for acceptance of responsibility), and
    go to trial. If the defendant plans to plead
    guilty a second time, reversal would serve no
    function; there would not even be a case or
    controversy. Only the defendant knows whether he
    really prefers a trial, with all the attendant
    risks. At oral argument Driver’s lawyer was
    unwilling to say that his client actually wants
    to go to trial (or even to re-plead). Counsel
    proposed this appellate strategy in writing to
    his client and, when Driver did not reply to his
    letters, he filed the brief making the argument
    we have sketched. Failure to reply to one’s mail
    may have a high cost indeed for Driver, if this
    appeal should lead to the loss of the benefits of
    his plea bargain. A motion in the district court
    would have avoided all uncertainty about the
    defendant’s position.
    Indeed, it is open to question whether even a
    search for plain error is justified when the
    defendant did not ask the district court for
    leave to withdraw his plea, and does not argue
    that he first became aware after sentencing of
    some right that the district court omitted from
    the Rule 11 colloquy. Normally plain-error review
    applies when the district court takes a step that
    the prosecutor requested, or when the district
    judge acts on his own. It is difficult to
    conceive of judicial acquiescence in a step that
    the defense itself proposed as plain error. If,
    for example, defense counsel elicits testimony at
    trial, the defendant can’t argue on appeal that
    the evidence was hearsay and should have been
    excluded. See United States v. Wynn, 
    845 F.2d 1439
    , 1443-44 (7th Cir. 1988); United States v.
    Carter, 
    720 F.2d 941
    , 948 (7th Cir. 1983). When
    the court does exactly what the defendant wants,
    the defendant has waived rather than simply
    forfeited any argument that things should have
    been done otherwise. See Olano, 
    507 U.S. at
    732-
    34; United States v. Richardson, No. 99-4309 (7th
    Cir. Jan. 25, 2001), slip op. 5-6. Driver sought
    to change his plea from innocent to guilty. How
    can Driver assail, as error, the granting of his
    own request? True enough, the district judge may
    err in the proceedings leading to the grant, and
    errors in the execution of Rule 11 may provide
    sound reasons for withdrawing the plea under Rule
    32(e). When the defendant seeks to withdraw the
    plea and appeals from the denial of this request,
    the court of appeals applies harmless-error
    analysis to determine whether any errors at the
    time the plea was taken justified relief under
    Rule 32(e). Until a motion to withdraw the plea
    is made, however, the district judge’s bottom
    line--the entry of judgment on the plea of
    guilty--cannot be characterized as an error of
    any kind, making it hard to see why plain-error
    review would be appropriate.
    Nonetheless, the United States has not asked us
    to replace plain-error analysis with a conclusion
    that waiver bars appellate review. Nor would it
    be appropriate for us to modify circuit law
    spontaneously, when nothing we could do would
    ameliorate the conflict among the circuits. In
    Vonn the Supreme Court can choose from the full
    palette, from harmless-error review on one end to
    waiver on the other. For now, we are content to
    apply the plain error standard.
    The district judge’s omissions at the change-of-
    plea hearing are obvious errors. Still, as the
    Court held in Olano, an error, however obvious,
    is "plain error" only if the gaffe affected the
    "fairness, integrity, or public reputation of
    judicial proceedings." 
    507 U.S. at 736
    . See also
    Johnson v. United States, 
    520 U.S. 461
    , 469-70
    (1997). Applied to a violation of Rule 11, this
    means a demonstration (on which the defendant
    bears the burden of persuasion, see Olano, 
    507 U.S. at 734
    ) not only that the defendant would
    not have pleaded guilty in the absence of the
    district court’s error, but also some reason to
    believe that the defendant should not be
    convicted--for a conviction achieved after a
    voluntary guilty plea cannot be described as a
    miscarriage of justice if the defendant had no
    defense and was bound to be convicted anyway. He
    does not have to establish actual innocence, see
    Olano, 
    507 U.S. at 736
    , but still must show that
    failure to provide relief would cause a
    miscarriage of justice. 
    Id. at 736-37
    . Driver
    does not put any of these requirements to the
    test, because his appellate brief does not even
    assert that, had he been informed in open court
    of the details the district judge overlooked, he
    would not have pleaded guilty. Nor does he assert
    that he has any plausible defense that he could
    advance at trial. Both in a written plea
    agreement and on his feet in court, Driver avowed
    that he was pleading guilty because he is guilty.
    This was not an Alford plea.
    What is more, the record goes a good way toward
    demonstrating that Driver knew most if not all of
    what the district judge forgot to mention. Much
    of the information is in the written plea
    agreement. Some items also turned out to be
    irrelevant. For example, the judge did not
    mention the maximum possible sentence, but the
    plea agreement and "petition to enter a plea of
    guilty" (which includes the agreed terms)
    mentioned punishment that exceeded Driver’s
    actual sentence of 160 months. The "petition"
    recites that the maximum prison term for using
    facilities of commerce to carry out murder for
    hire is ten years, and that the minimum term for
    using a firearm in that offense is five years,
    which must run consecutively. That’s 180 months,
    and since Driver knew that five years was a
    mandatory minimum, he had to anticipate the
    possibility of a sentence longer than 180 months.
    True enough, some of the omissions in the Rule 11
    proceedings were not supplied by the plea
    agreement. The agreement did not, for example,
    mention the right to engage in cross-examination
    if a trial should be held. But neither does
    Driver now contend that he was ignorant of this
    right, which his lawyer in the district court
    must have mentioned when discussing whether the
    plea bargain was a good deal compared with the
    prospects at trial. Almost everyone knows about
    cross-examination from crime shows on television;
    it would be a rare defendant who could make a
    plausible claim that the district court’s
    omission left him ignorant of this entitlement.
    Driver’s appellate lawyer does not advance so
    bold a contention.
    Because Driver does not say either that he was
    actually ignorant of the points omitted from the
    colloquy or that he would not have pleaded guilty
    had the colloquy been conducted properly, he
    cannot establish plain error. Driver’s cause
    would have been better served by an Anders brief--
    for the Anders procedure would have avoided any
    risk that, against all odds, we would have
    reversed, and so caused Driver to lose the
    benefit of his bargain.
    Affirmed
    RIPPLE, Circuit Judge, concurring. It is well-
    settled in this circuit that plain error analysis
    ought to be employed in a situation like the one
    that confronts us today. The panel opinion amply
    demonstrates that, under that analysis, the
    judgment of the district court ought to be
    affirmed. I agree with that determination for
    substantially the same reasons as my colleagues.
    However, I respectfully decline to express any
    opinion on the alternate waiver analysis set
    forth in the panel opinion. This discussion is
    dicta and entirely unnecessary to the decision in
    this case.