United States v. Dunstan Wellington Burnett, 671 F.2d 709, 2d Cir. (1982)
United States v. Dunstan Wellington Burnett, 671 F.2d 709, 2d Cir. (1982)
2d 709
On January 5, 1976 defendant Dunstan Wellington Burnett and two codefendants were indicted on twenty-five substantive counts of immigration
fraud and one count of conspiracy. Defendants were charged with providing
alien residents of the United States with fraudulent job offer forms which they
knew would be submitted to the Government in support of applications for
permanent resident status in the United States. Defendant Burnett pleaded not
guilty to the indictment and was scheduled for trial on April 26, 1976. On that
date, however, Burnett requested permission to plead guilty to the conspiracy
count. It was understood that in return the Government would not oppose
dismissal of the twenty-five substantive fraud counts. The plea was accepted by
the district judge in the robing room on the record while a panel of prospective
jurors waited outside in the court room.
After several adjournments, defendant appeared before the district court for
sentencing on December 15, 1976. On that date he requested additional time in
order to travel to his native Jamaica and attempt to secure funds to make
restitution prior to sentencing. The court granted a one-week adjournment, until
December 22, 1976, and directed the Government, over its objection, to return
defendant's passport. On December 22, 1976 defendant did not appear for
sentencing and a bench warrant was issued.
3
Apparently defendant next returned to the United States in the summer of 1977,
and arrangements were made for him to appear for sentencing on August 3,
1977. On that date defendant again failed to appear, and remained at large until
finally arrested while attempting to re-enter the United States from Canada on
March 10, 1981.
When Burnett appeared for sentencing on April 29, 1981 he requested leave to
withdraw the guilty plea entered on April 26, 1976. Defendant's counsel
thereupon moved to be relieved. The district judge granted the latter motion,
and sentencing was postponed until May 27, 1981. This date was later
adjourned to June 12, 1981 in order to give defendant's new counsel an
opportunity to file papers on defendant's behalf. On June 12, 1981 defendant
filed a written motion, with supporting affidavits, seeking to withdraw his guilty
plea. On July 25, 1981 Judge Cooper denied defendant's motion, and, on
August 13, 1981 he sentenced him to a three year term of imprisonment.
Defendant argues for reversal of the district judge's order denying his motion
for leave to withdraw his guilty plea on the ground that the plea proceeding
held on April 26, 1976 did not meet the requirementts of Rule 11(c)(3),
Fed.R.Cr.P. 1 Appellant contends that the plea proceeding was deficient in that
the district judge failed to establish that there existed a factual basis for the plea
and failed to personally address the defendant throughout the plea proceeding.
In addition, it is contended that the court failed to inform the defendant that he
had a right to remain silent; that he had a right to be tried bya jury; that he had a
right to confront and cross-examine witnesses against him; and that he had a
right to persist in his plea of not guilty.
All but the latter two claims are wholly without merit. From the record, we are
satisfied that the trial judge did personally address defendant and did properly
determine that there existed a factual basis for the plea being offered.2 In
addition, he adequately informed appellant that he had a right to be tried by a
jury and to remain silent.3 In a strict sense, however, the district judge failed to
comply fully with the provisions of Rule 11(c)(3) in that he did not specifically
inform appellant in haec verba that he had a right to persist in his plea of not
guilty (although this was the clear import to be drawn from the fact that a panel
of 60 venire persons was then in the courtroom awaiting the commencement of
the jury selection process), and he did not inform him that he had a right to
confront and cross-examine witnesses against him.
Defendant does not contend on appeal that the trial judge's omissions caused
him any prejudice. He makes no claim that he did not understand his rights or
that he would not have pleaded guilty had they been explained to him more
fully. While the Supreme Court has stated that a guilty plea may be withdrawn,
in the exercise of the discretion of the trial court, "if for any reason the granting
of the privilege seems fair and just," Kercheval v. U. S., 274 U.S. 220, 224, 47
S.Ct. 582, 583, 71 L.Ed. 1009 (1927), a defendant has no absolute right to
withdraw his plea. U. S. v. Giuliano, 348 F.2d 217, 221 (2d Cir.), cert. denied,
382 U.S. 946, 86 S.Ct. 406, 15 L.Ed.2d 354 (1965) and cert. denied sub nom.
Prezioso v. U. S., 382 U.S. 939, 86 S.Ct. 390, 15 L.Ed.2d 349 (1965). On a
motion to withdraw a plea, the burden is on the defendant to satisfy the trial
judge that valid reasons for the grant of the privilege exist, taking into account
any prejudice to the Government. U. S. v. Michaelson, 552 F.2d 472, 475 (2d
Cir. 1977); Giuliano, supra, at 221.
At the time Burnett made his motion to withdraw his plea herein, more than
five years had passed since it was accepted by Judge Cooper. It is of no small
significance that the passage of all but the first five months of this time was
attributable solely to defendant's flight and willful failure to appear for
sentencing as ordered. Under these circumstances, if the defendant were
permitted to withdraw his plea upon the mere showing of a technical failure by
the district judge under Rule 11(c)(3), the effect, almost assuredly, would be to
place the Government in a position of serious disadvantage in mounting a
prosecution after the passage of so long a period of time.
In U. S. v. Journet, 544 F.2d 633, 636 (2d Cir. 1976) this Court held that "as a
minimum, before accepting a guilty plea each district judge must personally
inform the defendant of each and every right and other matter set out in Rule
11." This Circuit has held further that the detailed requirements of Rule 11(c)
govern all pleas taken after December 1, 1975. U. S. v. Saft, 558 F.2d 1073,
1078-79 (2d Cir. 1977).4 Nevertheless, we now hold that, in the peculiar
circumstances of this case, appellant has forfeited his right to assert that
technical violations of Rule 11 of the Federal Rules of Criminal Procedure
rendered his guilty plea invalid. Therefore, his motion to withdraw his guilty
plea was properly denied.
10
In U. S. v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634
(1979), the Supreme Court held that absent a finding that a "complete
miscarriage of justice" has occurred, or that a proceeding did not comport "with
the rudimentary demands of fair procedure", a guilty plea was not subject to
collateral attack under 28 U.S.C. 2255 when all that the petitioning defendant
is able to allege is a failure to comply with the technical requirements of Rule
11.
11
We are not confronted here with a collateral attack on the validity of appellant's
plea, but with a direct appeal from Judge Cooper's order. However, in Del
Vecchio v. U. S., 556 F.2d 106, 109 (2d Cir. 1977), this Court analyzed the
considerations involved in the strict enforcement of Rule 11 when its technical
violation is asserted on a direct appeal, as opposed to the review accorded to
allegations of such violations when challenged by collateral attack long after
acceptance of the guilty plea. We stated that when a district judge has failed to
comply with Rule 11, and the defendant promptly files an appeal,
12
"allowing
a defendant to replead will not ordinarily directly clash with society's
interest in enforcing the penal laws. Witnesses in most cases will still be available.
The price of a short delay and some extra expense is a modest one to pay to correct
the error of a government official (a district judge). But when a defendant takes no
appeal and collaterally attacks the conviction years later ... different considerations
come into play."
13
14
15
16
For all of the foregoing reasons, the judgment of the district court is affirmed.
I join in Judge Pierce's opinion and write simply to add that in my view we
could appropriately affirm on the authority of United States v. Michaelson, 552
F.2d 472 (2 Cir. 1977), and United States v. Saft, 558 F.2d 1073 (2 Cir. 1977),
see note 4, without need of relying on Burnett's flight.
The record of the plea hearing conclusively demonstrates that Judge Cooper
addressed the defendant personally throughout that hearing. The record also
reveals that he adequately determined that there existed a factual basis for the
entry of defendant's guilty plea. Beginning at page 5 of the transcript of the
proceedings held on April 26, 1976 the following colloquy took place:
"THE COURT: You know what it charges you, the conspiracy count?
DEFENDANT: Yes.
THE COURT: Tell me in your own words what it is that you did in connection
with this particular conspiracy count.
DEFENDANT: Well, he worked for me as a field agent. He sponsored for me.
I discovered that a secretary he wanted to employ for himself. I did submit the
paper through my office to Newfield and Leifer, but I did discover later on he
had no intention of employing this person, and I did not inform Mr. Leifer.
THE COURT: Would you care to ask him questions that would bring out fully
what it is that he wishes to say to me.
BY MR. RABIN:
Q: Did you have a meeting with Mr. Newfield and Mr. Leifer?
A: Yes.
Q: Isn't it a fact that they were paying you and your agency to obtain sponsors
for aliens?
A: Yes.
Q: Isn't it a fact that you employed agents, also known as runners, to get these
sponsors?
A: Yes.
Q: Isn't it a fact that your agents or runners obtained these sponsors by having
them sign the proper Immigration forms, but in blank?
A: Yes.
Q: And these forms would be submitted to Newfield and Leifer?
A: Yes.
Q: You knew these forms were going to be submitted to the Immigration
Department?
A: Yes.
Q: Isn't it a fact that you had reason to believe that certain times some sponsors
were not true sponsors?
A: Yes.
Q: You took no affirmative action?
A: Yes, sir.
THE COURT: Is there anything the Government would like to ask him? Does
that cover it?
MR. WEINBERG: The Government believes that consistent with a valid plea
to the charge in Count 1 Mr. Burnett should acknowledge if it is true that on
occasion he would receive sponsors from his runners or agents and he had
reason to believe that these sponsors were not really going to hire the aliens,
and yet he chose to ignore that fact and still submitted the sponsor's name to the
law firm of Newfield & Leifer who, in turn, submitted the sponsor's application
to the Department ofTHE COURT: In my estimation he has already so (sic). Is that not so?
DEFENDANT: Yes.
THE COURT: That's so, what Mr. Weinberg of the Government has said? You
admit that?
DEFENDANT: Yes.
3
This Court has previously stated that in amending Rule 11(c) it was Congress'
intent to divest district court judges of discretion with respect to the substantive
rights of which a criminal defendant who offers to plead guilty to charges
pending against him must be informed, but not to dictate the precise language
to be used in performing this duty. U. S. v. Saft, 558 F.2d 1073, 1079 (2d Cir.
1977). We find that the trial judge adequately apprised appellant of his right to
a jury trial. At page 3 of the transcript of the April 26, 1976 hearing the judge
stated, "As you know, the panel of jurors is outside in the courtroom." On the
same page he says "you are entitled to a trial." On page 4 defendant is told that
"the jury would be told to return a verdict of guilty or not guilty with regard to
each one of these separate charges against you." Further, on page 10, the judge
tells appellant that "(W)hen you plead guilty ... that's a confession; ... There is
no need for a jury. A jury is there to find out whether you did what you are
charged with...." Finally, on page 14 of the transcript the judge says, "there is a
jury out there. This case would take a few days to try."
Appellant also contends that the judge below did not adequately inform him
that at trial he would have a right to remain silent. The record of the plea
proceeding belies this contention. At pages 8 and 9 of the transcript the judge
asked defendant, "(Y)ou understand if you went to trial the burden of proving
you guilty beyond a reasonable doubt would be on the Government? No
defendant in any criminal case has to help the Government or has to testify or
has to call any witnesses. You have a perfect right to say to yourself or to them,
'You charged me with something; now go ahead and prove it and prove it
beyond a reasonable doubt.' " And on page 9 the judge says, "you can sit there
with your attorney, not take the stand, not present any evidence, not call any
witnesses, not introduce any papers, nothing, and the Judge has to tell the jury
they cannot hold that against you for one split second, and if they do they
violate the law."
4
We note that the plea in this case, like those in Saft and Michaelson, "was taken
'before Journet authoritatively construed the amendments to Rule 11, and in a
context where (the defendant) must have known his rights.' 552 F.2d at 477."
Saft, supra, at 1081
This holding is also consistent with the spirit of another recent holding of this
Court. In Barker v. Jones, 668 F.2d 154 (2d Cir. 1982), this Court held that a
defendant who had been convicted in the courts of the state of New York and
whose appeal within the state system was dismissed because he had escaped
from custody and continued to be a fugitive two years and five months later had
forfeited his right to raise by way of a habeas corpus petition pursuant to 28
U.S.C. 2254 any issues raised in that state appeal. Id. at 155. The Court in that
case stated that "escape, coupled with a time lapse of this duration and
dismissal of the state court appeal, without voluntary return to the jurisdiction,
operates to result in forfeiture or waiver under any applicable standard of
habeas review." Id. at 156. The appellant here similarly and willfully chose to
flee rather than to avail himself of legal remedies available to him within the
legal process: i.e., a timely motion to withdraw his plea prior to sentencing in
1976, and/or submitting to sentencing in 1976 and filing a timely appeal