UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20651
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCUS DAMONE HENRY,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas(Houston Division)
May 8, 1997
Before POLITZ, Chief Judge, and REAVLEY and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The issues presented are whether the district court, in
accepting defendant’s pleas of guilty to conspiracy to possess more
than 50 grams of cocaine base with intent to distribute and
possession of cocaine with intent to distribute, 21 U.S.C. §§
841(a)(1)(A), 841(b)(1)(A), 846 and 18 U.S.C. § 2, varied from the
procedures required by Federal Rule of Criminal Procedure 11, and
if so, whether the variance affected the substantial rights of the
defendant. We affirm. After reviewing the transcript of the Rule
11 hearing we conclude that the district court (1) complied with
the procedure required by FED.R.CRIM.P. 11(d) to insure that the
pleas were voluntary; and (2) any variance from its duty to advise
defendant as to his rights to confront and cross-examine witnesses
against him, FED.R.CRIM.P. 11(c)(3), and as to the potential
admissibility of his statements made in the Rule 11 proceedings in
a perjury prosecution, FED.R.CRIM.P. 11(c)(5), did not affect the
defendant’s substantial rights.
BACKGROUND
On January 24, 1995, a narcotics officer with the Houston
Police Department received information from a reliable informant
that Henry had offered to sell two kilograms of cocaine. As a
result of receiving this information, the undercover officer
arranged to buy the cocaine from Henry for $17,500 a kilogram. The
officer met Henry and was shown 36 “cookies” of crack cocaine in a
car trunk. Henry was arrested and 940.6 grams of 80.8 percent pure
crack cocaine was recovered from the trunk of a car.
Henry was indicted on February 27, 1995 with conspiracy to
possess more than 50 grams of cocaine base with intent to
distribute (Count 1) and possession of cocaine base with intent to
distribute (Count 2). Henry was not charged, as his co-
conspirator, with knowingly using a firearm during and in relation
to the drug-trafficking crimes. 18 U.S.C. § 924(c)(1). At his
rearraingment hearing Henry pleaded guilty to both counts. He was
subsequently sentenced to 168 months imprisonment, followed by a
60-month term of supervised release, and fined $10,000. The
sentence reflects a three-level reduction for acceptance of
responsibility.
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At the Rule 11 hearing, the Government’s attorney provided the
following factual basis to support Henry’s guilty pleas:
On Wednesday, January 24, 1995, Houston Police Department
[HPD] narcotics officer Don LeBlanc and an HPD confidential
informant [CI] negotiated via telephone and in person to
purchase two kilograms of crack cocaine for $17,500 each.
On January 24, 1995, an HPD CI contacted HPD narcotics
officer Don LeBlanc and advised LeBlanc that he or she knew of
individuals who were capable of supplying two kilograms of
crack cocaine.
At approximately 1300 hours the CI met with LeBlanc and
the CI paged a black male later identified as Marcus Damone
Henry.
Henry subsequently returned the call and negotiated with
LeBlanc and stated he was ready to deliver the two kilograms
of crack cocaine.
Henry further requested that LeBlanc and the CI meet him
at a store located at Bellfort and Mykwa [Streets] to conduct
a transaction.
Moreover, Henry also told Officer LeBlanc that “my people
will have the two kilograms of cocaine at the store when you
arrive.” Henry further stated to Officer LeBlanc that he
would be waiting in front of the store wearing red clothing.
Prior to LeBlanc and the CI arriving at the story to meet
Henry HPD narcotics officers established surveillance at area
of Bellfort and Mykawa [sic]. Officer LeBlanc and the CI
arrived at approximately 1350 hours and conversed with Henry.
When he told officer LeBlanc that the cocaine was at his
residence located behind the store, an unknown black male
further described as five-eight, approximately 22 years of age
approached Henry. Henry asked this person was it okay to give
officer LeBlanc the crack cocaine. This person stated that it
was okay and further advised Henry that he would meet him and
Officer LeBlanc at the residence as soon as he came out of the
store
Officer LeBlanc then saw this person enter the store.
Henry escorted Officer LeBlanc to Henry’s residence at 6155
Bellarbor, Houston, Texas. Once at this residence, Henry and
Officer LeBlanc met with another black male who was later
positively identified by Officer LeBlanc as Dundre Robertson.
Henry obtained the keys from Robertson to a green
Chevrolet Monte Carlo which was parked in the driveway of the
residence. Robertson said the quality of the crack cocaine
was good and further stated that all 36 cookies of crack
cocaine were present inside the above-mentioned Chevrolet
Monte Carlo.
Robertson stood back as to stand guard as henry proceeded
to open the trunk of the Chevrolet Monte Carlo. The person
arrived at the residence as Henry was about to show Officer
LeBlanc the crack cocaine.
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LeBlanc spoke to this person. Robertson stated to
LeBlanc that this person was very cool. Henry reached into
the trunk of the vehicle and displayed a dark-colored plastic
bag containing a white plastic bag which further contained 12
small pink pouches. Each pouch contained three cookie-shaped
substances which Henry and Robertson represented to Officer
LeBlanc as being crack cocaine.
Officer LeBlanc then asked Henry and Robertson where were
the other kilograms of crack-cocaine -- excuse me -- cocaine.
Henry stated that someone would bring the other kilogram of
cocaine to Henry’s residence in 10 minutes.
The prearranged bust signal was given by the officer, and
the surveillance team officers attempted to arrest Henry and
Robertson. While Officer Mark Ahn was attempting to arrest
Robertson, it escalated to a struggle in which Robertson
attempted to remove a weapon from his person, without success.
Once the arrest was effected, Officer Ahn received a 9mm
Baywood semiautomatic handgun from the front wasteband of
Robertson’s trousers. The weapon was loaded, one round was in
the chamber, and the hammer of the weapon was loaded -- strike
that -- cocked -- and weapon was in the cocked position.
Officer Ahn also recovered 1200 in U.S. currency from the
person of Robertson. While the officers were attempting to
arrest these individuals, the John Doe escaped without being
apprehended.
Henry ran southbound from the scene and was pursued by
HPD officers. Henry jumped over several fences and ran
through the yards of several residences. Henry was arrested
after he kicked in the door of the residence located at 6207
Bellcrest and fought with the HPD officer. The resident of
this house did not know Henry and struggled in an attempt to
remove him from the house.
Henry and Robertson were subsequently transported to the
HPD city jail by HPD officers. Officer LeBlanc later field
tested the substance seized, which showed positive results for
the presence of cocaine. The gross weight of the crack
cocaine seized was approximately 967 grams.
Henry agreed that the factual basis was true.
ANALYSIS
A plea of guilty is a “grave and solemn act to be accepted
only with care and discernment....” Brady v. United States, 397
U.S. 742, 748 (1970); See Boykin v. Alabama, 395 U.S. 238, 243-244
(1969). Kercheval v. United States, 274 U.S. 220, 223 (1927). A
defendant has a Fifth Amendment right not to plead guilty and a
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Sixth Amendment Right to demand a jury trial. United States v.
Jackson, 390 U.S. 570, 581 (1968); Boykin, id. In federal court
Rule 11 makes elaborate provision to insure that the plea is made
voluntarily and intelligently, i.e., that the defendant understands
the nature of the charge, his rights, the consequences of the plea,
and that there is a factual basis for the plea. See 1 WRIGHT,
FEDERAL PRACTICE AND PROCEDURE, § 171.1 at 561-62.
FED.R.CRIM.P. 11, in pertinent part provides:
Rule 11. Pleas
***
(c) Advice to Defendant. Before accepting a plea of guilty
. . . , the court must address the defendant personally in
open court and inform the defendant of, and determine that the
defendant understands, the following:
***
(3) that the defendant has the right to plead not guilty or to
persist in that plea if it has already been made, the right to
be tried by a jury and at that trial the right to the
assistance of counsel, the right to confront and cross-examine
adverse witnesses, and the right against compelled
self-incrimination; and
***
(5) if the court intends to question the defendant under oath,
on the record, and in the presence of counsel about the
offense to which the defendant has pleaded, that the
defendant's answers may later be used against the defendant
in a prosecution for perjury or false statement.
***
(d) Insuring that the Plea is Voluntary. The court shall not
accept a plea of guilty or nolo contendere without first, by
addressing the defendant personally in open court, determining
that the plea is voluntary and not the result of force or
threats or of promises apart from a plea agreement. The court
shall also inquire as to whether the defendant's willingness
to plead guilty or nolo contendere results from prior
discussions between the attorney for the government and the
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defendant or the defendant's attorney.
***
(h) Harmless Error. Any variance from the procedure required
by this rule which does not affect substantial rights shall be
disregarded.
This court which for a time persisted in its earlier view that
some Rule 11 errors require automatic reversal, has now overruled
many of its earlier decisions on this point and held that all
failures to comply with Rule 11 are to be tested by the Rule 11(h)
“substantial rights” standard. United States v. Johnson, 1 F.3d
296, 297 (5th Cir. 1993) (en banc) (“[W]hen an appellant claims
that a district court has failed to comply with Rule 11, we shall
conduct a straightforward, two-question ‘harmless error’ analysis:
(1) Did the sentencing court in fact vary from the procedures
required by Rule 11, and (2) if so, did such variance affect
substantial rights of the defendant?”).
A. VOLUNTARINESS
The decisions of this court and others antedating Rule 11(h)
and United States v. Johnson continue to provide helpful guidance
in determining whether a district court has performed its Rule 11
duties in general and, in particular, whether it has varied from
the Rule’s requirements to insure that the plea is voluntary.
The Supreme Court has accepted as the standard of
voluntariness of guilty pleas, a formulation devised by the late
Judge Elbert P. Tuttle, formerly of this court:
"A plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments
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made to him by the court, prosecutor, or his own counsel, must
stand unless induced by threats (or promises to discontinue
improper harassment), misrepresentation (including
unfulfilled or unfulfillable promises), or perhaps by promises
that are by their nature improper as having no proper
relationship to the prosecutor's business (e.g. bribes).
Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton
v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc),
rev'd on other grounds, 356 U.S. 26 (1958).
As this court has observed, no simple or mechanical rule can
be stated to guide the district court in applying Rule 11(d) to
insure that the plea is voluntary. United States v. Dayton, 604
F.2d 931, 938 (5th Cir.), cert. denied, 445 U.S. 904 (1979).
However, helpful general observations have been offered: The “more
complex or doubtful the situation as [to whether the plea was
voluntary] ... the more searching will be the inquiry dictated by
a sound judgment and discretion.” Id. Further, “should the
defendant, when addressed by the judge, give any serious indication
that the plea is a result of force or threats or of promises apart
from a plea agreement, the fifth amendment is immediately and
directly implicated, and a most searching inquiry into these
matters must follow.” Id.
As for the rule’s several injunctions that the trial judge
personally address or inform the defendant of matters, a colloquy
conducted exclusively by the judge is not required, although it is
the best practice. Id.
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It will usually suffice, however, that the judge dominate the
inquiry and involve himself personally in it .... We do not
think the spirit or the letter of the rule require that the
judge be sole orator or lector, especially where multiple
charges and defendants are concerned. Judges, too, get sore
throats.
Id.
The courts in general have been clear that Rule 11 “is not to
be read as requiring a litany or other ritual which can be carried
out only by word-for-word adherence to a set ‘script’.”
Preliminary Draft of Proposed Amendments to the Federal Rules of
Criminal Procedure, October 1981, p. 26 reprinted in 91 F.R.D. 289,
326. See also 1 WRIGHT, FEDERAL PRACTICE AND PROCEDURE, § 178, at 673
“Just as ‘mere ritual does not suffice for compliance with Rule
11,' Dayton, 604 F.2d at 943 (5th Cir. 1979), so too ‘ritualistic
compliance is not required.’” United States v. Scharf, 551 F.2d
1124, 1129 (8th Cir.), cert. denied, 434 U.S. 824 (1977).
Accordingly, as we have previously indicated, when the inquiry into
the voluntariness of the plea “has been reasonably implicated in
the Rule 11 colloquy, we will examine its treatment to determine
whether it has been sufficiently exposed to inquiry and
determination. If so, we will not disturb the result.” Dayton,
604 F.2d at 940; see also United States v. Abreo, 30 F.3d 29, 31
(5th Cir. 1994), cert. denied, 513 U.S. 1064 (1995).
Applying these precepts, we conclude that the district court
did not vary from the requirements of Rule 11(d) that the judge
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insure that the plea was voluntary. Clearly revealing that Henry’s
plea was voluntary the following transpired in the Rule 11
colloquy:
THE COURT: Counsel, let me ask you whether or not you had
sufficient opportunity to investigate the case and are you
satisfied that Mr. Henry understands the nature of the charges
pending against him?
MR. TURNER [DEFENSE COUNSEL]: Your honor we did hire a private
investigator. We investigated the case. We talked with
witnesses. We discussed that thoroughly with Mr. Henry. We
discussed any possible defenses of entrapment, and it was his
opinion and our opinion that he fully understood the nature of
the circumstances of the case and that he voluntarily wishes
to plead guilty. (emphasis added)
THE COURT: Mr. Henry, has [your attorney] spoken truthfully
or correctly as you understand the facts and circumstances, or
is there anything about what he said you would want to change?
DEFENDANT: I understand.
THE COURT: What he said is essentially correct? Is that what
you are saying?
DEFENDANT: Yes, sir.
***
THE COURT: Your attorney has indicated to me he talked to you
about any meritorious defenses you might have or any
possibilities that the case would support going to trial, that
is, there might be some colorful basis for you to try this
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case. He indicated he talked to you about that and determined
that it is in your best interest to enter a plea of guilty in
this case. Is it true that he has talked to you about it?
DEFENDANT: Yes. He has.
THE COURT: And it’s your decision as well as his, and on his
advise (sic) and your understanding that you enter pleas of
guilty to these two counts; is that correct?
DEFENDANT: Yes, sir.
***
Moreover, at the Rule 11 hearing Henry testified that he had
attained a general equivalency diploma, could read and write
English, had no mental deficiencies, and was not, at any time,
addicted to or under the influence of drugs or alcohol. He
recited the events leading up to his arrest and admitted that he
knowingly violated the law by participating in a drug transaction.
The Rule 11 transcript indicates that Henry was fully aware of the
direct consequences of his plea. The case did not present any
complex or difficult situations. The record is devoid of any
evidence suggesting that Henry’s guilty plea was induced by
threats, misrepresentations, or improper promises. Henry does not
argue that his plea in fact was involuntary or resulted from any
form of coercion. The court addressed the defendant directly,
dominated the inquiry and involved itself personally in a colloquy
with the defendant and his attorney. The district court’s partial
reliance in its colloquy with the defendant on a brief reference to
the court’s colloquy with the defendant’s attorney, which occurred
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during the same proceeding in the defendant’s presence, did not
constitute a variance from the letter or the spirit of Rule 11.
Because the sentencing court did not vary from Rule 11 in
performing its duty to insure that Henry’s plea was voluntary, we
do not reach the second question of whether a variance affected his
substantial rights. See United States v. Johnson, 1 F.3d 296, 298
(5th Cir. 1993)(en banc).
B. OTHER ALLEGED VARIANCES BY THE DISTRICT COURT
Henry also assigns as error the district court’s failures to
advise him of his right to confront and cross-examine witnesses who
testified against him, FED.R.CRIM.P. 11(c)(3), and to warn him of
the potential use against him in a perjury prosecution of his
statements in the Rule 11 proceedings, FED.R.CRIM.P. 11(c)(5).
The defendant’s arguments and the Rule 11 hearing transcript
do not suggest any way in which the district court’s failures to
advise him of his confrontation and cross-examination rights and to
warn him of the potential for perjury evidence in his answers
creates any reasonable doubt as to the voluntariness and
intelligence of the plea. Accordingly, we conclude that Henry’s
substantial rights were not affected under the particular
circumstances of this case. See United States v. Law, 633 F.2d
1156 (5th Cir.), cert. denied, 451 U.S. 992 (1981); United States
v. Almaguer, 632 F.2d 1265 (5th Cir. 1980); United States v.
Caston, 615 F.2d 1111 (5th Cir.), cert. denied, 441 U.S. 950
(1980). Cf. United States v. Gastelum, 16 F.3d 996 (9th Cir. 1994).
In a different case, however, the district court’s failure to
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perform either of these duties could prove to be harmful,
reversible error. Consequently, these duties should never be
shirked.
CONCLUSION
For the foregoing reasons, Henry’s conviction and sentence are
AFFIRMED.
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