Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 85 CR 29 -- James T. Moody, Judge.
Wood, Jr., and Coffey, Circuit Judges, and Grant, Senior District Judge.*fn*
Defendants Latroy D. Ray, Johnny Lee May, and Boyd McChristion appeal from judgments and sentences entered against them after they pleaded guilty to various charges in connection with a scheme to alter postal money orders. Each defendant asserts that the district court failed to comply with certain requirements of Federal Rule of Criminal Procedure 11 in accepting their guilty pleas. In addition, each defendant claims various other deficiencies related to his guilty pleas and sentencing. The defendants assert that these defects should entitle them to replead.
The facts of this case arise from a scheme operated by various inmates at the Indiana State Prison in Michigan City. The inmates would obtain postal money orders for $1.00, alter them to higher amounts generally in the neighborhood of $300.00, and have them cashed by persons outside the prison. Apparently the inmates would begin correspondences with individuals, primarily homosexual men, who advertised for pen pals in The Advocate and other gay magazines. The inmates would gain their confidence by representing falsely that they were going to be released shortly and, in some instances, such as defendants Ray's case, that they were of a particular race. The inmates would then ask the pen pals to handle certain funds for them that they said could not be handled through the prison, for example, proceeds from the sale of a valuable stamp collection. The inmates would send the pen pals the altered postal orders and later ask them to send cashier's checks and money orders (which were legitimate) to individuals who would pass the money on to the inmates. The money would then be distributed among the inmates.
Ray, May, and McChristion were three of fourteen inmates implicated in this scheme. They were charged with various counts including conspiracy, mail fraud, wire fraud, and transmitting altered postal money orders, in violation of 18 U.S.C. §§ 371, 1341, 1343, and 500 (1982), respectively. At this point the similarity of facts regarding each defendant ends.
Defendant Ray was named in thirty-six counts of the fifty-three-count superseding indictment entered on July 11, 1985, against him and the thirteen codefendants. Ray initially pled not guilty to all charges, but petitioned in writing to change that plea. On October 21, 1985, the district court conducted a change of plea hearing and pursuant to a plea agreement executed with the government, defendant Ray entered a plea of guilty to twelve counts including conspiracy, mail fraud, and transmitting altered postal money orders. On January 10, 1985, the district court dismissed the remaining charges against Ray and sentenced Ray on the twelve counts to a total of twenty-five years incarceration, which would run consecutively to the state sentence Ray was serving.*fn1 Ray appealed.
Defendant May was charged in the superseding indictment with one count of conspiracy and one count of transmitting altered postal money orders. May initially pled not guilty to both charges on July 17, 1985, but later submitted a written petition to enter a change of plea regarding the charge that he transmitted altered postal money orders. The conspiracy count was dismissed by the government. The district court accepted the guilty plea, ordered a presentence report, and set the disposition hearing for October 11, 1985. After two continuances and the appointment of Carmen Fernandez as new counsel for May, the court rest the disposition hearing for January 17, 1986.
On January 17, before sentencing, May's counsel Fernandez made an oral motion to withdraw May's guilty plea. The court heard May's statement regarding his reasons for withdrawing his plea, denied May's request, and accepted the plea agreement after hearing from defense counsel and May. The court sentenced May on the charge of transmitting altered postal money orders to three years imprisonment, which would run consecutively to the state sentence May was then serving. The court granted the government's motion to dismiss the conspiracy charge. May appealed.
Defendant McChristion was named in five counts of the superseding indictment, charged with crimes including conspiracy, mail fraud, and possession of altered money orders (the latter in violation of 18 U.S.C. § 1002). On July 22, 1985, McChristion pled not guilty to all charges. On July 24, the district court appointed attorney Hawk P. C. Kautz as new counsel for McChristion. At a pretrial conference on October 15, 1985, attorney Kautz advised the court that McChristion wished to change his plea.
The district court conducted a change of plea hearing the same day. Pursuant to the plea agreement, McChristion pled guilty to Counts 26 and 53 (alleging mail fraud and possession of altered postal money orders, respectively). The court entered judgments of conviction on Counts 26 and 53, ordered a presentence report, and set the disposition hearing for November 15, 1985.
On November 14, 1985, McChristion's counsel Kautz requested a continuance of the disposition hearing because of concerns for McChristion's safety if he were removed from the federal system. The court granted the continuance and rest the disposition hearing for January 17, 1986. Before that hearing, Kautz filed a petition to withdraw the change of plea that incorporated and attached a letter from McChristion to District Judge Moody dated November 8, 1985. Kautz also sought leave to withdraw as McChristion's counsel and petitioned for apportionment of new counsel so that he might testify regarding information he possessed supporting McChristion's request to withdraw his guilty plea. He also petitioned for another continuance of the disposition hearing.
On January 17, 1986, the district court held the disposition hearing and denied Kautz's motion to withdraw as counsel and McChristion's motion for continuance of the disposition hearing. The court then heard sworn testimony from McChristion and representations of fact*fn2 from attorney Kautz regarding McChristion's motion to withdraw his guilty plea. The court denied McChristion's motion to withdraw his guilty plea, accepted his plea agreement, and sentenced McChristion to two consecutive five-year sentences on Counts 26 and 53, which would run consecutively to the state sentence McChristion was serving. The court granted the government's motions to dismiss the other three counts. McChristion's appealed.*fn3
Each defendant asserts that because the district judge failed to comply with Federal Rule of Criminal Procedure 11 in various respects, their guilty pleas are invalid and they should be entitled to replead.
Our duty as a court reviewing plea proceedings for conformance with Rule 11 necessarily involves consideration of the purpose and function of that Rule. Recognizing that a person who pleads guilty is "sacrificing, albeit voluntarily, important constitutional protections," see United States v. Fountain, 777 F.2d 351, 354 (7th Cir. 1985), cert. denied, 475 U.S. 1029, 106 S. Ct. 1232, 89 L. Ed. 2d 341 (1986), we must consider the right of a defendant to make a voluntary and informed plea, which Rule 11 is designed to protect. See McCarthy v. United States, 394 U.S. 459, 465, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969). The Rule helps achieve this protection by assisting the district judge in determining whether the guilty plea is voluntary and by preserving the record regarding voluntariness for appeal. Id.; see Fountain, 777 F.2d at 354-55. "The more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas." McCarthy, 394 U.S. at 465.
Without taking anything away from the important responsibility, indeed duty, of the district judge in complying with the strictures of Rule 11, see, e.g., Fountain, 777 F.2d at 355-56; United States v. Cusenza, 749 F.2d 473 477 n.3 (7th Cir. 1984), we must also keep in mind in reviewing Rule 11 proceedings that we should not give Rule 11 "such a crabbed interpretation that ceremony [is] exalted over substances." Fed. R. Crim. P. 11(h) advisory committee's note (1983). "'Matters of reality, and not mere ritual,'" should control. United States v. Wetterlin, 583 F.2d 346, 354 (7th Cir. 1978) (quoting McCarthy, 394 U.S. at 468 n.20 (citation omitted), cert. denied, 439 U.S. 1127, 59 L. Ed. 2d 88, 99 S. Ct. 1044 (1979). Furthermore, Rule 11 should not be used "to lay a procedural trap for the government" by allowing a defendant to "challenge a plea on a technicality." United States v. Reckmeyer, 786 F.2d 1216, 1221 (4th Cir.), cert. denied, 479 U.S. 850, 107 S. Ct. 177, 93 L. Ed. 2d 113 (1986). We also recognize the "fundamental interest in the finality of guilty pleas." Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); see United States v. Timmreck, 441 U.S. 780, 784, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979).
A. Nature of and Factual Basis for the Charge
Each defendant argues that the district court violated either of or both Federal Rules of Criminal Procedure 11(c)(1) and 11(f) in taking his guilty plea to certain charges. Rule 11(c)(1) requires the court to determine that the defendant understood the nature of the charges to which he pled guilty,*fn4 while Rule 11(f) requires the court to determine that there is an adequate factual basis for a guilty plea to a particular charge.*fn5 Although the requirements are similar, the purposes underlying the rules and the standards for compliance are different, so we will discuss each standard separately. We will, however, combine discussion of actual compliance with the Rules because "the same circumstances may satisfy both requirements." Godwin v. United States, 687 F.2d 585, 589 n.4 (2d Cir. 1982).
The preferred method of satisfying Rule 11(c)(1) is for the judge to explain the nature of the charge to the defendant either generally or with regard to the specific facts of the case. See Wetterlin, 583 F.2d at 350. This court, however, has rejected a literal construction of 11(c)(1) that would require "that the judge personally address the defendant and inform him of the nature of the charge." Cusenza, 749 F.2d at 475 (quoting United States v. Gray, 611 F.2d 194, 199 (7th Cir. 1979), cert. denied, 446 U.S. 911, 64 L. Ed. 2d 264, 100 S. Ct. 1840 (1980)). A district court's failure to comply with Rule 11(c)(1) is harmless error "where it can be said from a review of the proceeding that the defendant nevertheless understood the charges." United States v. Darling, 766 F.2d 1095, 1099 (7th Cir. 1985), cert. denied, 474 U.S. 1024, 106 S. Ct. 579, 88 L. Ed. 2d 561 (1985). Whether the defendant has understood will "vary from case to case, depending on the complexity of the charges and the personal characteristics of the defendant -- including age, education, intelligence, alacrity of his responses, and whether he's represented by counsel." Gray, 611 F.2d at 200; cf. Haase v. United States, 800 F.2d 123, 127-28 (7th Cir. 1986) (considering profession, education and experience of defendant in analyzing voluntariness of guilty plea). This court in Darling noted that an example of harmless error, or rather, an instance in which it can be said the defendant nevertheless understood the charge, occurs "if the prosecutor's statement adequately sets forth all elements of the offense and the conduct of the defendant that constitutes the offense." Darling, 766 F.2d at 1099. Then, "the defendant's admission that the allegations are true is sufficient evidence that he understands the charge." Id.; see Cusenza, 749 F.2d at 476; United States v. Coronado, 554 F.2d 166, 173 (5th Cir. 1977), cert. denied, 434 U.S. 870, 54 L. Ed. 2d 149, 98 S. Ct. 214 (1977).
This court has also rejected a strict construction of Rule 11(f). Rule 11(f) provides that "notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea." Fed. R. Crim. P. 11(f). Although any noncompliance with Rule 11 constitutes reversible error, see United States v. Fels, 599 F.2d 142, 149 n.5 (7th Cir. 1979), the test does not require literal compliance, focusing instead on "whether, looking at the total circumstances surrounding the plea, the defendant was informed of his or her rights." United States v. Frazier, 705 F.2d 903, 907 (7th Cir. 1983) (per curiam). "Rule 11(f), as opposed to Rule 11 generally, . . . does not require a colloquy between judge and defendant; the court may find the factual basis in anything that appears on the record."*fn6 United States v. Fountain, 777 F.2d 351, 356 (7th Cir. 1985) (emphasis in original), cert. denied,475 U.S. 1029, 106 S. Ct. 1232, 89 L. Ed. 2d 341 (1986). Typical sources are the defendant, the prosecutor, or the presentence report. Fed. R. Crim. P. 11(f) advisory committee's note (1966); 8 J. Moore, Moore's Federal Practice para. 11.07 (2d ed. 1985). Thus, "[a] sufficient factual basis can be found even when the court engages in the most rudimentary questioning of the defendant if the indictment and statement of the prosecution's evidence are sufficiently specific to make clear to the defendant exactly what is being admitted to." Fountain, 777 F.2d at 355; see Bachner v. United States, 517 F.2d 589, 593 (7th Cir. 1975).
Ray argues that the district court violated Rules 11(c)(1) and 11(f) with respect to his guilty pleas to the conspiracy, mail fraud, and transmitting altered postal money orders charges. The district court did fail to comply with 11(c)(1) regarding all three of those charges. The court referred to the conspiracy charge by the count number and did not mention the word conspiracy; furthermore, the court did not discuss the nature of the charge of conspiracy "either generally or by reference to the specific charge in this case." Darling, 766 F.2d at 1099. Neither did the court discuss the nature of the mail fraud or transmission of altered postal money order charges. The court did request and receive Ray's acknowledgment that Ray had discussed the charges with his attorney and understood the charges, but such a representation alone does not satisfy Rule 11(c)(1). Id. ; Cusenza, 749 F.2d at 475; Wetterlin, 583 F.2d at 350. As the following discussion indicates, we believe that the circumstances regarding Ray's plea to each charge show that the court's failure to comply with Rule 11(c)(1) is harmless error for each charge. A factor in each of those determinations is that Ray appeared to have the ability to understand the nature of the charges. Ray testified that he had been schooled until the twelfth grade, that he had a G.E.D., and that he could speak, read, write, and understand English. We also find that there was an adequate factual basis for each charge.
The prosecutor's statement and defendant's admission regarding the conspiracy charge meet the Darling harmless error criteria noted above. The prosecutor explained the nature of the conspiracy charge as follows" "The Government would have to show that in fact an alleged conspiracy existed. And that an overt act was committed in furtherance of the conspiracy, and that you, Mr. Ray, knowingly and intentionally became a member of that conspiracy." The prosecutor later discussed the evidence to support this charge, going into an extended description of the postal money order scheme. He described how the scheme was used to victimize individuals, primarily homosexuals, outside the prison, by corresponding with them and making various representations, gaining their confidence, obtaining access to their bank accounts, and instructing the victims to send the proceeds from the altered money orders to various conspirators inside Michigan City prison. The prosecutor stated that Ray was involved with the other defendants mentioned in Count 1 in corresponding with and sending altered money orders to victims. In addition, the prosecutor described Ray's correspondence with and attempts to gain the confidence of certain victims. Ray acknowledged that he agreed with this factual summary regarding the conspiracy count.
The prosecutor's discussion of the elements underlying the conspiracy charge, his extended description of Ray's activities in the conspiracy, and Ray's admission that the factual summary and allegations are true lead us to conclude that Ray understood the nature of the conspiracy charge. See Cusenza, 749 F.2d at 476. The prosecutor's discussion of the evidence the government could show touched on all elements of the conspiracy charge. This case is thus distinguishable from Darling, in which this court determined that the defendant did not understand the nature of the conspiracy change because the prosecutor's statement did not refer to any agreement between the defendant and other individuals, an essential element of conspiracy. Darling, 766 F.2d at 1099; see also United States v. Van Buren, 804 F.2d 888, 892 (6th Cir. 1986) (insufficient factual basis for plea to conspiracy change where although there was a reading of the indictment and defendants' admission of guilt, there was no discussion of the nature of the conspiracy by either the prosecutor or the court).
Ray nevertheless asserts that the prosecutor's statement of the conspiracy change was cursory and in legal jargon and could not informed him of the nature of the conspiracy. We have recognized that particularly when the conspiracy charged is complex, more effort is needed to explain the nature of that charge. See Wetterlin, 583 F.2d at 350 (noting that the legal concept of conspiracy should be explained either generally or by reference to the facts of the case). We have also, however, distinguished complex from simple conspiracies. In Cusenza, 749 F.2d at 476, we held that there is less need to explain a "simple" conspiracy, for example, a "fairly simple agreement to purchase and distribute marijuana," than to explain a "complex" conspiracy such as that found in Wetterlin, 583 F.2d at 350, which was a conspiracy to defraud a public board and to bribe public officials that involved a twenty-five page conspiracy count including forty-eight paragraphs and sixty-four overt acts. The length of an indictment is not determinative of complexity, however. Although the conspiracy count in this case consists of twenty-four pages and 112 overt acts, the actual scheme was relatively simple, involving sending altered postal money orders to individuals outside the prison who unwittingly assisted in funneling money back to the inmates.
In any event, the complexity of the conspiracy charge and efforts to explain the charge are not the only factors that indicate whether a defendant has understood the nature of the charge. In Cusenza, we further distinguished Wetterlin by noting that in Wetterlin the government did not summarize the evidence regarding the conspiracy. Because of the lack of factual basis for the charge, the district court in Wetterlin could not determine that the defendant admitted to conduct that constituted the critical elements of conspiracy and therefore understood the nature of the charge. Cusenza, 749 F.2d at 476. In Cusenza, however, the district court was not required to explain the nature of the conspiracy charge not only because the conspiracy was simple, but because in Cusenza the prosecutor related the facts, the district court asked the defendant if he admitted those facts, and the court then asked the defendant a series of questions regarding his role in the conspiracy. Id. at 476-77. In this case the court did not ask the defendant questions regarding his role in the conspiracy, but the detailed description of the conspiracy and the recitation of the elements by the prosecutors, lacking in Wetterlin, is sufficient to indicate that Ray understand the nature of the conspiracy charge. See Cusenza, 749 F.2d at 476; United States v. Coronado, 554 F.2d 166, 173 (5th Cir. 1977), cert. denied, 434 U.S. 870, 54 L. Ed. 2d 149, 98 S. Ct. 214 (1977).
Ray contends that the factual bases for his guilty plea to the conspiracy and mail fraud charges are inadequate because there was no showing of intent to defraud. According to Ray, the prosecutor did not state at any time in the hearing that the evidence would show that Ray knew the money orders were altered. Ray asserts that this failure amounts to a critical deficiency because "the fact that money orders were altered in amount was central to each of the offenses with which defendant was charged."
This argument is meritless. In describing the evidence underlying the conspiracy count, the prosecutor detailed the scheme as a whole and stated that "the evidence would show that Mr. Ray . . participated with these other groups in writing and corresponding with certain of these individuals and in sending out money orders." Ray's sending out altered postal money orders is also mentioned with regard to one of the mail fraud counts. We may imply from those statements of the evidence that Ray knew the money orders were altered. Even without explicit statements that Ray knew the money orders were altered, the factual bases for those counts are sufficient to indicate Ray's intent to defraud. In describing the evidence underlying the charges, the prosecutor emphasized that a key aspect of the scheme was gaining the pen pals' confidence so that they would unwittingly accept the altered postal money orders, cash them, and then send cashier's checks or money orders of their own money to other individuals. According to the prosecutor's statement of the evidence, Ray's role was crucial to gaining their confidence, because he appeared to do much of the letter-writing and supplied false representations necessary to gain their trust. This case is thus distinguishable from United States v. Frye, 738 F.2d 196 (7th Cir. 1984). In Frye, we determined that the district court's colloquy with the defendant at the plea hearing was insufficient because the court did not explain the intent element of a bank larceny charge.*fn7 Id. at 201. We specifically noted, however, that the defendant's "yes" or "no" answers to the court's questions were inadequate due to the unusual circumstances of that case, in which the defendant and her husband appeared to have different degrees of involvement in a check-kiting scheme and they were represented by the same counsel. Id. The prosecutor's description of Ray's letter-writing involvement in the scheme in this case provides a sufficient factual basis for Ray's intent to defraud underlying the conspiracy and mail fraud charges.
Although the district court failed to comply with Rule 11(c)(1) regarding the mail fraud charges because the court did not discuss the nature of this mail fraud, we again find that the prosecutor's description of the elements of mail fraud coupled with his discussion of the evidence that would support the charges indicate that Ray nevertheless understood the nature of the mail fraud charges.
The prosecutor stated the elements of mail fraud, 18 U.S.C. § 1341, as:
That the Defendant devised or attempted to devise a scheme or artifice to defraud or to obtain money or property by means of false of fraudulent pretenses, representations or promises.
The Government would also have to prove that as a part of that, that the Defendant placed or caused to be placed in an authorized depository for mail matter or knowingly caused to be delivered by mail according to the direction, thereon, some matter or thing, and that the Defendant, Mr. Ray did ...