United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2001 Decided March 22, 2002
Nos. 00-3123 and 00-3124
In re: Sealed Case
Appeals from the United States District Court
for the District of Columbia
(No. 96cr00106-01)
(No. 97cr00093-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for the appellant. A.J. Kramer, Federal Public
Defender, was on brief.
Patricia A. Heffernan, Assistant United States Attorney,
argued the cause for the appellee. Roscoe C. Howard, Jr.,
United States Attorney, and John R. Fisher, William J.
O'Malley, Jr. and James H. Dinan, Assistant United States
Attorneys, were on brief for the appellee.
Before: Edwards, Henderson and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: This consoli-
dated appeal arises from two criminal proceedings involving
the appellant. In Cr. No. 96-106-01, the appellant was
convicted by a jury of possessing with intent to distribute
cocaine base; in Cr. No. 97-93-01, he pleaded guilty to a drug
conspiracy charge pursuant to a plea agreement. The two
cases were consolidated for sentencing and appeal (Nos.
00-3123 and 00-3124). On appeal, the appellant seeks to
vacate his guilty plea in Cr. No. 97-93-01, claiming that the
district court did not comply with Rule 11(c)(1) of the Federal
Rules of Criminal Procedure. In particular, he contends that
the district court failed to ensure that he understood the
elements of the conspiracy charge to which he was pleading
guilty. If the Rule 11 plea colloquy is deficient, the appellant
further contends, the waiver provision of the plea agree-
ment--which would otherwise bar his appeal of the jury trial
conviction in Cr. No. 96-106-01--is ineffective. His convic-
tion after trial should be reversed, he asserts, because (1) the
district court gave a constitutionally deficient reasonable
doubt instruction to the jury and (2) the prosecutor made
several errors which cumulatively constitute "plain error."
We conclude that the district court accepted the appellant's
guilty plea in compliance with Rule 11 and, accordingly,
affirm the appellant's convictions in both cases.
I.
On April 4, 1996 a one-count indictment was filed in Cr. No.
96-106-01 charging the appellant with possessing with intent
to distribute cocaine base, in violation of 21 U.S.C.
ss 841(a)(1), (b)(1)(C). His jury trial began on October 16,
1996 and the jury convicted him on October 21, 1996. Before
sentencing, the appellant decided to cooperate with the gov-
ernment in an attempt to reduce his sentencing exposure.
Subsequently, on March 4, 1997, the government filed in
district court a one-count information, in Cr. No. 97-93-01,
charging the appellant with conspiracy to distribute and to
possess with intent to distribute one hundred kilograms or
more of cannabis and five or more grams of cocaine base, in
violation of 21 U.S.C. ss 841(a)(1), (b)(1)(B) and 846. The
conspiracy, which was alleged to have begun in 1990 and
continued until September 1996, included the offense conduct
set forth in Cr. No. 96-106-01 as one of the overt acts in
furtherance thereof. On the same day the information was
filed, the appellant signed a plea agreement and entered a
guilty plea to the information. According to the plea agree-
ment, he agreed to cooperate with the government in return
for the government's promise to dismiss charges against him
in two pending District of Columbia Superior Court cases
and, depending on his level of cooperation, to file a "substan-
tial assistance" downward departure motion. United States
Sentencing Commission, Guidelines Manual, s 5K1.1 (Nov.
2001).
The appellant failed to appear for sentencing in the consoli-
dated cases and a bench warrant was issued. After his arrest
on the warrant and his counsel's withdrawal, his new lawyer
filed a motion to withdraw the guilty plea on the ground of
ineffective assistance of counsel. The district court held a
hearing and on July 12, 2000 denied the motion. It sentenced
the appellant to concurrent sentences of 151 months in each
case and ordered him to serve supervised terms of release of
three years in Cr. No. 96-106-01 and four years in Cr. No.
97-93-01. The appellant filed a timely notice of appeal in
each case and on June 28, 2001 this court granted his motion
to consolidate.
II.
The appellant first asks this court to vacate his guilty plea
on the ground that the district court accepted his plea in
violation of Rule 11 of Federal Rules of Criminal Procedure.
He contends that although the district court informed him of
the charge, it failed to detail the elements of the crime of
conspiracy and, consequently, did not ascertain that he under-
stood the nature of the charge to which he was pleading
guilty. Accordingly, he argues that the guilty plea proceed-
ing did not comply with Fed. R. Crim. P. 11(c)(1) and his plea
must be vacated. Ordinarily, if Rule 11 error occurs during a
plea hearing, the government bears the burden of demon-
strating that the error was harmless. See Fed. R. Crim. P.
11(h) ("[a]ny variance from the procedures required by this
rule which does not affect substantial rights shall be disre-
garded"); see also United States v. Lyons, 53 F.3d 1321, 1322
n.1 (D.C. Cir. 1995). If the defendant allows an alleged error
to pass without objection, however, he then assumes the
burden of meeting the more exacting plain error requirement
of Rule 52(b), Fed. R. Crim. P. 52(b). See United States v.
Vonn, 122 S. Ct. 1043, 1048 (2002). Because the appellant
made no objection at the plea hearing, he has the burden to
show that the district court's alleged Rule 11 violation impli-
cated "substantial rights" and that the error "seriously af-
fect[ed] the fairness, integrity or public reputation of judicial
proceedings." See United States v. Olano, 507 U.S. 725, 734-
36 (1993).
Entry of a guilty plea is governed by Rule 11, Fed. R.
Crim. P., which provides in relevant part:
Advice to Defendant. Before accepting a plea of guilty
or nolo contendere, the court must address the defendant
personally in open court and inform the defendant of, and
determine that the defendant understands, the following:
(1) 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....
Fed. R. Crim. P. 11(c)(1). Regarding the requirement to
inform the defendant of "the nature of the charge," we have
adopted a standard mandating that the court "have a colloquy
with the defendant that would lead a reasonable person to
believe that the defendant understood the nature of the
charge." United States v. Dewalt, 92 F.3d 1209, 1212 (D.C.
Cir. 1996) (quoting United States v. Frye, 738 F.3d 196, 201
(7th Cir. 1984)). We look to the "totality of the circum-
stances" to determine if the plea was properly accepted. See,
e.g., United States v. Liboro, 10 F.3d 861, 865 (D.C. Cir.
1993). In addition to the judge's inquiry, the circumstances
we consider include: the defendant's level of intelligence;
whether he was represented by counsel; the complexity of
the charge against him; and his own statements at the plea
hearing. See United States v. Musa, 946 F.3d 1297, 1304 (7th
Cir. 1991) (cited approvingly in Dewalt, 92 F.3d at 1212).
Rule 11 prescribes a procedure " 'designed to assist the
district judge in making the constitutionally required determi-
nation that a defendant's guilty plea is truly voluntary ...
[and] to produce a complete record at the time the plea is
entered of the factors relevant to this voluntariness determi-
nation.' " Dewalt, 92 F.3d at 1211-12 (quoting McCarthy v.
United States, 394 U.S. 459, 465 (1969)). A guilty plea is not
"voluntary in the sense that it constitute[s] an intelligent
admission that [the defendant] committed the offense unless
the defendant received 'real notice of the true nature of the
charge against him, the first and most universally recognized
requirement of due process.' " Henderson v. Morgan, 426
U.S. 637, 645 (1976) (citations omitted). The Supreme Court
also recognized that each case presents its own facts and, as a
consequence, declined to delineate a specific procedure for a
trial court to follow beyond the language of the rule itself,
observing that "[i]n all such inquiries, [m]atters of reality, and
not mere ritual should be controlling." McCarthy v. United
States, 394 U.S. at 467 n.20 (internal quotations omitted).
During the plea colloquy, in response to the district court's
inquiries, the appellant stated that he was twenty-two years
old, had an eleventh-grade education and had no difficulty
communicating in English. 3/4/97 Tr. at 2. He also affirmed
that he had been allowed sufficient time to discuss the plea
with his lawyer and that he was satisfied with his lawyer's
services. Id. at 3. The court then asked if he understood
that he was "charged with conspiracy to distribute and to
possess with intent to distribute one hundred kilograms or
more of cannabis and five or more grams of cocaine base?"
Id. at 5. The appellant replied "yes." Id. at 6. Later, the
court inquired, "Did you, as charged in this information, ...
conspire with [the co-conspirators] and other people to dis-
tribute and possess with intent to distribute a large quantity
of marijuana and crack cocaine?" Id. at 10-11. The appel-
lant initially responded "just marijuana, sir." The district
court then asked, "I beg your pardon?" The appellant re-
sponded, "It wasn't crack cocaine. I didn't conspire with
them on crack cocaine." 3/4/97 Tr. 10-11 (emphasis added).
After the appellant conferred with his lawyer, the district
court then repeated the question and the appellant responded
"yes."1 That he used the word "conspire" to describe (and
minimize) his criminal conduct indicates that he indeed under-
stood the nature of the conspiracy charge against him. While
the appellant argues that he was simply parroting the court's
terminology, see Reply Br. at 6, the fact that he used the
word in a contextually appropriate manner is, we believe,
significant. His own words, in combination with the other
evidence detailed below, lead us to conclude that a "reason-
able person" would believe that the appellant understood the
nature of the conspiracy charge. See Dewalt, 92 F.3d at
1212.
The district court also considered the factual proffer filed in
the case, which the appellant acknowledged he had read, and
with which, by his signature on the sixth page thereof, he
indicated that he agreed. In the proffer, he admitted that he
"participated in a loosely knit, violent drug organization that
sold crack cocaine and marijuana" and that "the members or
the organization protected the [ ] housing complex as its own
open air drug market ... and cooperated to protect each
other from detection by police." See Appellant's App. at 14.
The appellant further acknowledged in the proffer that he
"sold marijuana at [location] with [the] co-conspirators ...,
and others known and unknown to the government." Id. at
15. As part of their modus operandi, "the members took
turns selling to customers in order to allow everyone to profit,
and warned one another when the police came into the area
to protect against arrest and seizure of drugs." Id. at 15.
He also admitted selling cocaine base in the area named in
the proffer in a similar manner. Id. at 15.
Despite his assurances to the contrary during the plea
hearing, the appellant now claims he in fact lacked the
__________
1 The appellant's lawyer explained his client's initial response by
stating, "with regard to cocaine, my client admitted that in the last
case that was tried before your honor, in the process of that period
of time he sold some crack cocaine." 3/4/97 Tr.at 11.
requisite understanding of the crime to which he pleaded
guilty because the district court did not adequately explain
the elements of the crime of conspiracy. Neither Rule 11 nor
case law, however, "specifies the minimum that a district
judge must do to inform the defendant of the nature of the
charge." Dewalt, 92 F.3d at 1212. In particular, we have
held that Rule 11(c)(1) does not require that the district court
spell out the elements of the charge in order to inform the
defendant adequately. See Liboro, 10 F.3d at 865. In Li-
boro, we stated that "[t]he contention that ... the judge must
deliver to the defendant the equivalent of a jury charge finds
no support in the language of [Rule 11] and runs counter to
the legislative history. There is no requirement that the
elements of the offense be explained." Id. (internal quota-
tions and citations omitted).2 While the district court must
assure itself that the defendant understands the nature of the
charge to which he is pleading so that his plea is a knowing
one, it need not, in every case, specially isolate each element
of the particular crime.
As noted earlier, the complexity of the charge is another of
the circumstances we consider in determining whether the
defendant's guilty plea was a knowing one. The United
States Supreme Court long ago declared that a conspiracy is
simply "a partnership in criminal purposes." United States v.
Kissel, 218 U.S. 601, 608 (1910). The elements of the crime of
conspiracy are (1) an agreement to commit a specific offense
(here, drug possession/distribution); (2) knowing participation
in the conspiracy with the intent to commit the offense; and
(3) commission of at least one overt act in furtherance of the
conspiracy. See United States v. Wilson, 160 F.3d 732, 737
(D.C. Cir. 1998). As set forth in Instruction 4.92 of our
circuit's district court "Red Book," Criminal Jury Instructions
__________
2 The appellant attempts to distinguish Liboro by pointing to
Liboro's "education and sophistication" and the lack of "esoteric
terms or concepts unfamiliar to the lay mind" in the charges Liboro
faced. He omits that in Liboro we also emphasized the fact that
the defendant there, as here, had "his counsel at his side throughout
the plea negotiations [and] the government's case spread before
him." Liboro, 10 F.3d at 865.
for the District of Columbia No. 4.92 (4th ed. 1993), "[t]he
essence of the offense of conspiracy is an agreement or
understanding to violate other laws, and at least a single act
done to carry out that unlawful agreement." The appellant's
responses to the district court's queries as well as his admis-
sions regarding the uncomplicated charges against him mani-
fest his understanding of the "nature of the [conspiracy]
charge" to which he was pleading guilty.
In Dewalt, we did find a plea colloquy defective where,
inter alia, the judge did not inform the defendant of the
"knowledge" element of a gun possession offense. Dewalt, 92
F.3d at 1212. Dewalt was charged with illegal possession of a
sawed-off shotgun, that is, "a weapon made from a shotgun
... [which] as modified has ... a barrel or barrels of less
than 18 inches in length." 26 U.S.C. s 5845(a)(2). Because it
was not clear from the indictment that the charge required
specific knowledge of the gun barrel length, we concluded
that the district court should have specifically ascertained
that the defendant knew the barrel length was shorter than
18 inches. Id.3 The shortcomings of the Dewalt plea pro-
ceeding are plainly distinguishable from the sole variance
alleged by the appellant. As the Seventh Circuit observed in
Musa, "[w]hile the subtleties of conspiracy law might be the
bane of criminal law students, the basic principle is easily
understood: a group of people agreeing to do something
illegal." Musa, 946 F.2d at 1305.
The trial court reasonably concluded that the appellant
understood the nature of the charge to which he was pleading
guilty as evidenced by: the numerous (at least three) times
__________
3 This error, however, was not the only one we ascribed to the
district court in Dewalt. We detailed a number of problems with
the district court's acceptance of the defendant's guilty plea: it
failed to ask Dewalt if he had read the indictment or whether his
counsel had assisted him in understanding it; it did not even
mention to the defendant that the charge involved possession of a
weapon; and the factual proffer did not include any information
that the defendant knew the barrel length of the shotgun. See
Dewalt, 92 F.3d 1212.
during the plea colloquy that the court informed the appellant
of the charge (twice by reference to the factual proffer); the
detail of the factual proffer itself; the straightforward nature
of the charge against him; the fact that he was represented
and advised by counsel throughout; and, importantly, the
appellant's own use of the word "conspired" in response to
the court. Even assuming the district court erred in not
parsing the elements of the conspiracy charges, the error in
no way approaches plain error under Rule 52(b). At the
same time, however, we remind trial courts to exercise care
and precision in complying with Rule 11.
III.
The appellant also challenges his conviction in Cr. No.
96-106-01, claiming the district court committed plain error
by incorrectly defining reasonable doubt to the jury. In
addition, he alleges prosecutorial misconduct during cross-
examination and in the government's closing argument. His
plea agreement, however, provides that he "agrees to with-
draw all pending motions for new trial regarding his convic-
tion in Criminal Case number 96-106 and to waive all further
challenges to or appeals of his conviction in that case."
(Appellant's App. at 5, p 1(c)). The appellant's sole response
is that the waiver of appeal should not be enforced because
his guilty plea failed to comply with Rule 11(c)(1). (Reply Br.
at 9).4 Because his guilty plea was in fact properly accepted
under Rule 11, the appellant has waived his right to appeal
Cr. No. 96-106-01.
__________
4 The appellant suggests, in a footnote, that "various individual
judges ... have rejected waivers of appellate rights." See Reply
Br. at 8 n.2. As the government notes, however, ten other circuits
have found waivers of appeals permissible and enforceable. See,
e.g., United States v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001); United
States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001); United States v.
Brown, 232 F.3d 399, 403 (4th Cir. 2000); United States v. Hare,
269 F.3d 859, 860 (7th Cir. 2001).
For the foregoing reasons, we affirm the appellant's convic-
tion in No. 00-3123 and we dismiss his appeal in No. 00-3124.
So ordered.