Appeals from the United States District Court for the Western District of Wiconsin. No. 84 CR 24--Barbara B. Crabb, Judge.
Cummings, Chief Judge, Bauer and Flaum, Circuit Judges. Bauer, J., concurring in part and dissenting in part.
Defendants-appellants Granger and Fountain appeal from the lower court's refusal to allow the withdrawal of their guilty pleas to the charge of murder of a federal prison guard. Defendant Fountain alone also challenges the sufficiency of the factual basis of guilt established at his plea hearing held pursuant to Federal Rule of Criminal Procedure 11. While we conclude that the trial court did not abuse its discretion in denying either defendant's withdrawal of his plea, we are not satisfied that Fountain's plea hearing adequately complied with Rule 11(f). Accordingly, we affirm Granger's conviction but must vacate Fountain's plea and remand for further proceedings.
At all times relevant to this case all the defendants were inmates at the Federal Correctional Institution at Oxford, Wisconsin. On April 20, 1984 a grand jury returned an indictment charging Granger, Fountain, and a third inmate, who was subsequently acquitted after a jury trial, with the murder of a federal correctional officer in violation of 18 U.S.C. §§ 1111 and 1114 and conspiracy to murder in violation of the aforementioned sections. On the eve of trial Fountain and Granger pled guilty to the murder count and the conspiracy count was dismissed with prejudice.
The factual basis of the government's case at the time of the plea hearing can be constructed from the transcript, the briefs on appeal, and the indictment. In the early morning of January 29, 1984 correctional officer Boyd Spikerman was found lying in a puddle of blood by a fellow guard. The only other person within proximity of the body was the defendant Granger. Granger told the guard that he "heard voices and didn't mean to do it." At this time the guard also observed that Granger's hands were cut and covered with blood. An autopsy revealed that death was caused by multiple stab wounds and repeated blows to the head presumably inflicted by the fire extinguisher that was found laying across the victim's body. A fingerprint found on the fire extinguisher was discovered to be that of Granger.
At the plea hearing the government also claimed to have other inmates who would testify that Granger and Fountain had stated that they planned to kill a correctional officer and that after the murder Granger and Fountain discussed with them their involvement. The only other apparent link between Fountain and the murder are the claims in the indictment that Fountain acquired the knife used in the murder one day prior to the event and that he, along with the third defendant, had served as "lookouts" for Granger. At no point during the course of the proceedings, particularly at the plea hearing, did the government ever expand upon or claim to have evidence in support of these allegations against Fountain.
Two days prior to the trial date the defendants reached a plea agreement with the government and appeared before the trial court for a hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. At the hearing the United States attorney stated the factual basis of the guilty plea of Granger as it was described above. Granger admitted to all the facts except the allegation that he had made any statements prior to the murder. The district judge questioned Granger in detail about his appreciation of the crime he was being charged with and the consequences of his guilty plea.
The judge then turned her attention to Fountain. The court incorporated by reference the factual basis that was used to support Granger's plea. The government added that it had the evidence of prior and subsequent incriminating statements, although Fountain, like Granger, refused to acknowledge the making of any statements prior to the murder. No mention was made of the alleged procurement of the murder weapon or the alleged participation as a lookout. Fountain was then interrogated by the court pursuant to Rule 11. In reference to his role in the crime, Fountain was questioned as follows:
Q Mr. Fountain, I am going to ask you as I did with Mr. Granger to tell me in your own words what you understand the Government is saying that you did in count 1?
A The Government is saying that on the night or the early morning of January 29, 1984, that I murdered Officer Boyd Spikerman with malice of forethought. He was at that time employed as a federal employee at the institution at Oxford and that the weapons that I used were a fire extinguisher and a knife.
Q Do you understand that the government says that you did that knowingly -- that means you knew what you were doing -- they say you did it intentionally, on purpose, and that you did it against the law?
Q And, you understand that the Government says that at the time he was killed Officer Spikerman was engaged in the performance of his official duties at the Federal Correctional Institution at Oxford?
THE COURT: Mr. Byrnes [the assistant United States attorney], what would you be prepared to prove if the case went to trial?
MR. BYRNES: Would you like me to repeat the items I stated for Mr. Granger?
THE COURT: No, that's not necessary. I will assume you can prove what you stated earlier with the exceptions of statements Mr. Granger allegedly made on the 28th.
MR. KERNATS [Fountain's trial counsel]: Excuse me, so that it is clear -- the factual basis you established for Mr. Granger then will be used to establish the factual ...