Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-Cr-1102 -- Bernard M. Decker, Judge.
Before Fairchild, Chief Judge, and Pell and Bauer, Circuit Judges.
Defendants Nancy Fels, Theodore Rodriguez, and Scott Williams, were indicted on February 16, 1978 in a four count indictment charging them with narcotics violations under 21 U.S.C. § 841.*fn1 Defendants pled guilty to two counts each and were sentenced to concurrent terms of imprisonment for 2 years on each count, followed by a three year special parole. 21 U.S.C. § 841(b)(1)(A). The remaining counts were dismissed, as agreed, on the government's motion. Defendants now contend that their guilty pleas were taken in violation of Rule 11, Fed.R.Crim.P., and that they must be allowed to enter new pleas. We agree.
In attempting to fulfill the requirements of Rule 11, the district court often addressed its statements of the defendants' rights to all three and then moved from one to another in questioning them on their understanding of those rights. In our view, whatever difficulty the court experienced in complying with Rule 11 arose from proceeding in this way, rather than taking the defendants' pleas seriatim. Following is a parsing of the transcript of the plea hearing to determine whether, as to each defendant, the district court complied with Rule 11.
Rule 11(c)(1) requires the district court to inform the defendant of, and determine that he or she understands, "the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law." Fels does not contend that the court failed to inform her of the nature of the charges and determine that she understood them, and the record makes clear that the court did so.
The defendants' joint brief does contend that the court failed to comply with the remainder of Rule 11(c)(1). At one point the brief states that the noncompliance is found in the court's neglect to inform the defendants of the mandatory minimum penalty provided by law. Appellants' Br. at 10. This contention has no merit because the statute under which defendants were convicted provides no mandatory minimum penalty. 21 U.S.C. § 841(b)(1)(A).*fn2 At another point, defendants state more generally that the court "failed to address (defendants) personally to determine whether they understood the various sentencing alternatives available." Appellants' Br. at 13. The court addressed all three defendants as follows:
Now, as to each one of these counts to which you are pleading, the statute provides for a maximum penalty of 15 years, a maximum fine of $25,000 and whatever sentence may be imposed will be followed by a three year special parole provision and you could be both fined and imprisoned as to each one of those counts and for that amount, that kind of a fine and a three year special parole provision.
Plea Hearing Tr. at 23. The court then asked each defendant, individually, if he or she understood the possible penalties. Fels responded that she did understand. Id. at 24. Thus it is clear that the district court did explain the sentencing alternatives provided in § 841.
Rule 11(c)(2), requiring the court to inform a defendant who is without counsel of his or her right to counsel, is inapplicable to this case because Fels has been represented by retained counsel throughout the proceedings in the district court and in this court.
Rule 11(c)(3) provides that the district court must inform the defendant, and determine that he or she understands,
that he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself . . . .
The district court addressed all three defendants and summarized the rights listed in subdivision (c)(3) as follows:
Now, let me say this, and I am not going to repeat it, the case can be tried, this case can be tried by a jury, or it can be tried before the Court in case you don't wish a jury, and if there is a trial the government would be required to prove what they charge in this indictment. The trial, of course, would involve all counts of the indictment.
The government would have the opportunity to bring in witnesses, your counsel would have the opportunity to cross-examine them. The government would be required to prove what they charge you with in this case and to prove it beyond a reasonable doubt.
You could bring in witnesses, you would have the right to bring in witnesses, if you wanted to, you could stand mute and do nothing if that's what you wanted to do, how you wanted to proceed, and your counsel would have the right to cross-examine any witnesses that the government brought in.
Plea Hearing Tr. at 7. Immediately after reciting the above, the court turned to defendant Williams and asked if he understood these rights and waived them. The court did not question Fels about these rights, at that point or elsewhere in the transcript of the plea hearing.
Fels' contentions under subdivision (c)(3) reduce to the following: (1) that the court failed to inform her adequately of her right to persist in her plea of not guilty, her right to counsel if she went to trial, and her right against compelled self-incrimination, and (2) that the court failed to determine that she understood those rights. The first contention involves the issue whether an explanation aimed at more than one defendant can satisfy the requirement that "the court must address the defendant personally." Rule 11(c).
In this case the district court's explanation was sufficient. In United States v. Crook, 526 F.2d 708 (5th Cir. 1976), the court held that the personally-address language was to be construed strictly. But that case involved the practice of permitting the prosecutor to question the defendant in the court's presence. The danger is apparent that any possible undue influence exercised by the prosecutor in inducing the plea in the first place would not be discovered by the court under such a procedure. Here the district court did speak to the defendants directly. A few moments before the explanation quoted above, the court had said "what I am saying now I am addressing to all three of you. . . ." It is clear from that statement and the opening of the court's statement of the defendants' trial rights that the court called the attention of all three defendants and spoke to them personally.*fn3 This court has said recently that "(i)t should be obvious that when a defendant pleads guilty to more than one charge at a plea hearing Rule 11 does not require the district judge to repeat all the advice specified in Rule 11(c) before taking the plea on each charge." United States v. Wetterlin, 583 F.2d 346, 353 (7th Cir. ...