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United States v. Cross

June 16, 1995

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

ALFRED L. CROSS,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division.

No. 91 CR 13--Larry J. McKinney, Judge.

Before POSNER, Chief Judge, CUMMINGS and BAUER, Circuit Judges.

CUMMINGS, Circuit Judge.

ARGUED APRIL 27, 1995

DECIDED JUNE 16, 1995

In this direct appeal, defendant Albert L. Cross, Jr. challenges the validity of his guilty plea and his conviction for escaping from the custody of the Attorney General. Cross argues that the district court violated Federal Rule of Criminal Procedure 11(d) when it failed to conduct a specific inquiry to determine that his guilty plea was voluntary and given without fear, coercion, or undisclosed promises. The only issue before us is whether the district court's noncompliance with Rule 11(d) is excused under the harmless error standard of Rule 11(h). We believe that it is. Because the totality of the circumstances surrounding Cross' plea shows that he tendered his plea of guilty voluntarily and without coercion, the district court's omission constituted harmless error. We affirm.

BACKGROUND

In August 1980, Cross pleaded guilty to multiple counts of mail fraud and bank larceny. He was sentenced to ten years' imprisonment and was remanded to the custody of the Attorney General of the United States. In September 1981, while serving that ten-year sentence, Cross escaped from the Federal Prison Camp at Terre Haute, Indiana. Cross was not arrested until years later, and in October 1991 was indicted on one count of escape in violation of 18 U.S.C. sec. 751(a).

Following plea negotiations with the government, Cross entered a plea of guilty to the one-count indictment. In exchange for Cross' plea, the government agreed to stipulate that a consecutive sentence of fifteen months' imprisonment was an appropriate disposition. Cross' plea agreement stated that "[t]he parties jointly acknowledge that the proposed sentence is a fair and appropriate resolution of the charges against the Defendant in this case[,]" and that "[n]o other promises, representations or agreements as to this matter exist among the parties herein." In his petition to enter a plea of guilty that was filed along with the plea agreement in the district court, Cross declared that he offered his plea of guilty freely and voluntarily and of his own accord. A certificate of counsel accompanying Cross' petition expressed the opinion of Cross' attorney that Cross made his plea of guilty voluntarily and understandingly.

At Cross' plea hearing, the district court informed him of the nature of the charges against him and reviewed with Cross the terms of the plea agreement. When the court then asked if he understood the sentence proposed in the plea agreement, Cross responded affirmatively. Significantly, however, at no time during the plea colloquy did the district court personally address Cross to determine whether his plea was voluntary and not the result of force or threats or promises apart from the plea agreement, as required under Rule 11(d).

After the court informed Cross that he would waive his right to appeal the sentence if the plea agreement were accepted, Cross repeatedly assured the court that he would have no reason to appeal the sentence as long as he received the fifteen-month sentence that he had negotiated:

[CROSS]: I can't understand why I would want to appeal a 15 month sentence if we come to that agreement.

[THE COURT]: Has the government then made any other agreement with you other than that agreement set out in this plea agreement ...


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