United States v. Cotal-Crespo

February 2, 1995  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 94-1354

                          UNITED STATES,
                            Appellee,

                                v.

                     JOSE RAMON COTAL-CRESPO,
                      Defendant - Appellant.

                                           

No. 94-1355

                          UNITED STATES,
                            Appellee,

                                v.

                    ANTONIO DE JESUS-DE JESUS,
                      Defendant - Appellant.

                                           

No. 94-1356

                          UNITED STATES,
                            Appellee,

                                v.

                    IVAN RODRIGUEZ-BOCACHICA,
                      Defendant - Appellant.

                                           

                           ERRATA SHEET

     The opinion of  this Court  issued on January  30, 1995,  is
amended as follows:

     On page  8, second  full paragraph,  first line,  delete the
apostrophe in "Defendants'." 


                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1354

                          UNITED STATES,
                            Appellee,

                                v.

                     JOSE RAMON COTAL-CRESPO,
                      Defendant - Appellant.

                                           

No. 94-1355

                          UNITED STATES,
                            Appellee,

                                v.

                    ANTONIO DE JESUS-DE JESUS,
                      Defendant - Appellant.

                                           

No. 94-1356

                          UNITED STATES,
                            Appellee,

                                v.

                    IVAN RODRIGUEZ-BOCACHICA,
                      Defendant - Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
                                                                    

                                           


                              Before

                     Torruella, Chief Judge,
                                                     

                 Campbell, Senior Circuit Judge,
                                                         

                    and Boudin, Circuit Judge.
                                                       

                                           

     Rachel  Brill,  with  whom Benicio  S nchez-Rivera,  Federal
                                                                 
Public Defender,  Carlos  A. V zquez-Alvarez,  Assistant  Federal
                                                      
Public Defender, and Mariangela  Tirado, were on joint  brief for
                                                 
appellants.
     Warren V zquez, Assistant United  States Attorney, with whom
                             
Jorge  E. Vega-Pacheco,  Acting  United States  Attorney, was  on
                                
brief for appellee.

                                           

                         January 30, 1995
                                           

                               -2-


          TORRUELLA,  Chief Judge.   The issue  to be  decided in
                    TORRUELLA,  Chief Judge.
                                           

this  appeal is  whether  the district  court  complied with  the

procedural  safeguards  mandated by  Criminal  Rule  11 prior  to

accepting  the three defendants' guilty  pleas.  We conclude that

the plea hearing conducted by  the district court, while  perhaps

somewhat less than ideal, adequately met the requirements of Rule

11.  We therefore affirm.

                            BACKGROUND
                                      BACKGROUND

           On February 17,  1993, a federal grand  jury in Puerto

Rico indicted Jos  Ram n  Cotal-Crespo, Antonio De Jes s-De Jes s

and  Iv n  Rodr guez-Bocachica,  in  Count I,  of  conspiring  to

possess with intent to  distribute multi-kilograms of cocaine, in

violation  of 21  U.S.C.    846.    In addition,  the  indictment

alleged,  in  Counts  II  and  III,  that   Cotal-Crespo  used  a

communication   facility  (a   telephone)  in   facilitating  the

commission  of  a drug  trafficking offense,  in violation  of 21

U.S.C.   843(b).  On March 3, 1993, the  defendants entered pleas

of not guilty.

          On  June 8, 1993, the date their trial was scheduled to

begin, defendants requested a change of their respective pleas to

guilty.    Defendants did  not enter  a  plea agreement  with the

government.  The district court held a change of plea hearing and

subsequently accepted  defendants' guilty pleas.   Sentencing was

scheduled for September 9, 1993.

          On August 11,  1993, defendants filed  a pro se,  joint
                                                                   

motion requesting withdrawal of their guilty pleas.  The district

                               -3-


court  appointed each  defendant new counsel  and the  motion was

argued on March  4, 1994.   The district  court denied the  joint

motion in an Opinion and Order issued the same day.  Cotal-Crespo

was eventually  sentenced to  120 months  on  Count I  and to  48

months  on  Counts  II  and  III,  to   be  served  concurrently.

Rodr guez-Bocachica and De Jes s-De  Jes s were each sentenced to

120 months  on Count I.  Pending before this Court is defendants'

consolidated appeal  of the  denial of their  motion to  withdraw

their guilty pleas.

                            DISCUSSION
                                      DISCUSSION

          Defendants  advance two arguments  in support  of their

contention that they should have been permitted to withdraw their

guilty pleas pursuant to  Criminal Rule 11.  First,  they contend

that  the district court  failed to inform them  of the nature of

the charges against them and determine that they understood those

charges.  In support of this contention, defendants maintain that

they believed  that  the eight  kilograms  of cocaine  they  were

caught with could  be split amongst them  for sentencing purposes

and  that  they  were  consequently prejudiced  by  the  district

court's failure to  explain the nature of  the conspiracy charge.

Second,  defendants contend  that  the district  court failed  to

inform  them of  the consequences  of their  guilty pleas.   They

assert,  inter alia, that the  district court did  not explain to
                             

them  that by  pleading guilty  they waived  their constitutional

rights  to  a  jury trial,  to  remain  silent,  and to  confront

witnesses against them.

                               -4-


I.  The Legal Framework
          I.  The Legal Framework
                                 

          A.  Rule 32(d)
                    A.  Rule 32(d)
                                  

          A  defendant  may  withdraw  a  guilty  plea  prior  to

sentencing  only upon a showing of "fair and just reason" for the

request.  See  United States  v. Pellerito, 878  F.2d 1535,  1537
                                                    

(1st Cir.  1989); see  also Fed.  R. Crim. P.  32(d).   There are
                                     

several factors  to consider  in determining whether  a defendant

has   met this burden, the  most significant of which  is whether

the  plea  was  knowing,  voluntary and  intelligent  within  the

meaning of Rule 11.  United States v. Allard, 926 F.2d 1237, 1243
                                                      

(1st Cir. 1991).   The other  factors include:  1) the force  and

plausibility of  the  proffered  reason;  2) the  timing  of  the

request;  3)  whether  the   defendant  has  asserted  his  legal

innocence;  and  4)  whether  the  parties  had  reached  a  plea

agreement.    Pellerito,  878  F.2d  at  1537.    In  this  case,
                                 

defendants focus their argument on the alleged Rule 11 violations

-- contending  that these  violations establish that  their pleas

could not have been knowing, voluntary and intelligent.

          B.  Rule 11
                    B.  Rule 11
                               

          By  entering  a guilty  plea,  a defendant  effectively

waives  several constitutional  rights.   For  that waiver  to be

valid, due process requires  that the plea amount to  a voluntary

and "intentional  relinquishment or abandonment of  a known right

or privilege."  McCarthy  v. United States, 394 U.S. 459, 466, 89
                                                    

S. Ct. 1166, 22  L.Ed.2d 418 (1969)  (quoting Johnson v.  Zerbst,
                                                                          

304 U.S.  458, 464,  58 S.  Ct.  1019, 82  L.Ed.2d 1461  (1938));

                               -5-


Allard, 926 F.2d at  1244.  Rule 11 was intended to ensure that a
                

defendant who pleads guilty does so with an "understanding of the

nature  of  the  charge  and  the  consequences  of   his  plea."

McCarthy, 394 U.S. at 467.
                  

          Rule 11 provides in pertinent part:

            (c)   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,  including  the  effect  of  any
            special  parole   or  supervised  release
            term, the fact that the court is required
            to  consider  and  applicable  sentencing
            guidelines  but  may  depart  from  those
            guidelines under some circumstances . . .
            and

                               * * *

               (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
                                                          

               (4) that  if a plea of  guilty or nolo
            contendere is accepted by the court there
            will not  be a further trial  of any kind
            so  that  by  pleading  guilty   or  nolo
            contendere the defendant waives the right
            to trial; 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

                               -6-


            pleaded, that the defendant's answers may
            later   be   used   against  him   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.

Fed. R. Crim. P. 11(c),(d) (emphasis added).

          We have distinguished between "technical" violations of

Rule  11 and violations of  the rule's "core  concerns," and held

that  a  violation  that  "implicates one  of  the  rule's  'core

concerns' mandates that the plea be set aside."  United States v.
                                                                        

Medina-Silverio, 30 F.3d 1, 3 (1st Cir. 1994) (citing Allard, 926
                                                                      

F.2d at  1244).   Rule  11's  core concerns  are: 1)  absence  of

coercion; 2)  understanding of the  charges; and 3)  knowledge of

the consequences of  the guilty plea.  Allard, 926  F.2d at 1244-
                                                       

45.1

          In determining whether there has been a core violation,

we review the totality of the circumstances surrounding the  Rule

11 hearing, rather  than apply a  "talismanic test."  See  id. at
                                                                       

1245 (citing United States v. Dayton, 604 F.2d 931, 939 (5th Cir.
                                              

1979), cert. denied,  445 U.S. 904, 100  S. Ct. 1080, 63  L.Ed.2d
                             

320  (1980)).   What is  critical  is the  substance of  what was

communicated by  the trial court, and what should reasonably have

been understood by  the defendant,  rather than the  form of  the
                    
                              

1  See infra n.5.
                      

                               -7-


communication.   See Medina-Silverio,  30 F.3d at  3 (emphasizing
                                              

that  there  is  no "formula  of  'magic  words'  in meeting  the

requirements of Rule 11").   At a minimum, Rule 11 requires  that

the trial court address the defendant personally in open court to

ascertain  that his plea is "voluntary and intelligent."  See id.
                                                                          

at 2-3 (citing Fed. R. Crim. P. 11(c)).

          In the absence  of a  total failure to  address one  of

Rule 11's  core concerns, the question  is whether irregularities

in   the   plea-taking   proceeding  affected   the   defendant's

"substantial rights."   Fed. R. Crim. P.  11(h).  Other  than for

errors of law, we will overturn the trial judge's decision not to

allow  the withdrawal  of  a guilty  plea only  for "demonstrable

abuse of  discretion," and the trial  court's subsidiary findings

of  fact  in  connection  with  the  plea-withdrawal  motion  are

reviewed  only for clear error.  Allard, 926 F.2d at 1245 (citing
                                                 

Pellerito, 878 F.2d at 1538).
                   

II.  The Nature of the Charges
          II.  The Nature of the Charges
                                        

          Defendants  contend  that  the  trial  court failed  to

determine that they understood the nature of the charges  against

them, as  required by Rule 11(c)(1).   See United States v. Ruiz-
                                                                           

Del Valle, 8 F.3d 98, 102  (1st Cir. 1993).  Defendants  maintain
                   

that they believed that  the eight kilograms of cocaine  could be

"somehow split  among the three for  sentencing," and, therefore,

assert  that they were prejudiced by the trial court's failure to

explain  that  each of  them would  be  held responsible  for the

cocaine found  in their collective possession,  regardless of any

                               -8-


stated intention to later split the drugs.

          There are two central  difficulties with this argument.

First  of all, the  amount of drugs  for which  each defendant is

held responsible is  an issue  relevant to sentencing,  not to  a

particular  defendant's guilt.   See United  States v.  Musa, 946
                                                                      

F.2d 1297, 1305 (7th Cir. 1991); United States v. Young, 927 F.2d
                                                                 

1060, 1065 (8th Cir.), cert. denied,    U.S.   , 112  S. Ct. 384,
                                             

116  L.Ed.2d 334 (1991).2   Secondly, the  trial court personally

addressed each defendant  and discussed with him  the maximum and

minimum penalties provided by  law for his offense.   After fully

explaining   the  guideline  ranges,   the  court  informed  each

defendant that the  minimum sentence  on Count I  is 120  months.
                                     

When asked if  they understood this,  each defendant answered  in

the  affirmative.    In  addition,  the  trial  court  personally

addressed each defendant and  asked him to "tell his  story" with

                    
                              

2  Defendants rely  heavily on the following statement  by Cotal-
Crespo's attorney during the plea hearing.

               THE COURT:  It is a 120-month minimum.
            The base  offense level will  be 32,  but
            you say  that has nothing to  do with the
            minimum.

               MR.  LAWS:   The minimum  allowable is
            120, and  at  the time  of sentencing  we
            will  argue to  the Court  to reduce  it.
            But  at this  time that  is what  we have
            before the Court. 

   Defendants maintain that this statement  illustrates that they
believed the amount  of drugs  could be divided  for purposes  of
sentencing.   This may  be true, but it  also reveals that Cotal-
Crespo's   attorney  recognized   that   the   amount  of   drugs
attributable to each defendant was a question for sentencing, not
the plea hearing.  

                               -9-


respect  to the charges against him.  In telling their respective

stories,  none of  the defendants  gave the  slightest indication

that they disputed the amount of drugs involved  or their role in

the transaction vis-a-vis the total amount of drugs.

          Defendants  also argue  that  they must  be allowed  to

withdraw  their guilty pleas because the trial court did not read

or  explain the charges to them.   Our review of the plea hearing

transcript  reveals that the trial court did not read the charges

nor did it explain the law of conspiracy.

          It is not necessary that the explanation of the charges

come directly from  the court,  however, if it  can be  discerned

from  a review of the proceeding  that the defendant nevertheless

understood the charges.   See  Allard, 926 F.2d  at 1246  (citing
                                               

Dayton, 604  F.2d at 943).   See also United States  v. Musa, 946
                                                                      

F.2d  1297, 1305 (7th Cir.  1991); United States  v. Darling, 766
                                                                      

F.2d 1095, 1099 (7th Cir.) (citing cases), cert. denied, 474 U.S.
                                                                 

1024, 106  S. Ct. 579,  88 L.Ed.2d 561  (1985); United  States v.
                                                                        

Cusenza,  749 F.2d  473, 476  (7th Cir.  1984); United  States v.
                                                                        

Gray, 611 F.2d  194, 200 (5th Cir.), cert. denied,  446 U.S. 911,
                                                           

100  S. Ct.  1840,  64  L.Ed.2d  264  (1980);  United  States  v.
                                                                       

Coronado,  554 F.2d 166, 173  (5th Cir.), cert.  denied, 434 U.S.
                                                                 

870,  98 S.  Ct. 214,  54 L.Ed.2d  149 (1977).   Thus,  where the

prosecutor's  statement or  the  defendant's  description of  the

facts  sets forth all elements of the  offense and the conduct of

the defendant  that  constitutes the  offense,  "the  defendant's

admission that  the allegations  are true is  sufficient evidence

                               -10-


that he understands the charge."  Darling, 766 F.2d at 1099.  See
                                                                           

Allard, 926 F.2d at 1246.
                

          In this case, each defendant stated at the plea hearing

that  he went, together with the other two defendants, to buy the

drugs.  In addition, Cotal-Crespo admitted to  making phone calls

with  respect to  the drug  transaction.  Thus,  each defendant's

admission  of the  events underlying  the  transaction accurately

described the  elements of a violation  of 21 U.S.C.    846 -- an

agreement to buy a  large amount of drugs3 --  and Cotal-Crespo's

admission described  the elements  of  a violation  of 21  U.S.C.

843(b).    Moreover,  each  of the  defendants  agreed  with  the

prosecutor's detailed  summary of the facts  the government would

prove  at trial,  which also  included a  description of  all the

elements of both charges.

          The  manner in  which the  charge is explained  and the

method  for  determining  the defendant's  understanding  of  the

charge  will vary from case to case depending upon the complexity

of  the charges, the capacity of the defendant, and the attendant

circumstances.  Allard, 926 F.2d at  1245.  See also Darling, 766
                                                                      

F.2d at  1098.  "[W]hile the subtleties  of conspiracy law may be

the  bane of criminal law students, the basic principle is easily

understood: a group  of people agreeing to do something illegal."

                    
                              

3   The  Supreme  Court  has  recently held  that,  in  order  to
establish a  violation of  section 846,  the government  need not
prove  the commission  of any  overt acts  in furtherance  of the
conspiracy.  United  States v. Shabani,     U.S.   ,  115 S.  Ct.
                                                
382, 385-86, 130  L.Ed.2d 225  (1994).  Accord  United States  v.
                                                                       
Paiva, 892 F.2d 148, 155 (1st Cir. 1989).   
               

                               -11-


United  States v. Carter, 815 F.2d 827,  829 (1st Cir. 1987).  We
                                  

find  nothing in the record  to indicate that  the defendants did

not understand  the drug conspiracy  charge.4   Rather, the  plea

hearing indicates that the defendants knew exactly what they were

charged with and voluntarily made the decision to plead guilty.

III.  Consequences of Guilty Plea
          III.  Consequences of Guilty Plea
                                           

          The defendants also contend that the trial judge failed

to inform  them  of  the  consequences  of  their  guilty  pleas.

Specifically, they claim that the  court failed to determine that

they  understood and waived their  rights to remain  silent, to a

jury trial, and to confront witnesses against them.  In addition,

they  contend that the court  did not explain  the possibility of

departure from the guidelines or counsel the defendants about the

possibility of a later prosecution  for perjury based upon  their

statements at  the Rule 11  hearing.  We  necessarily turn to  an

examination of the plea colloquy.

          The trial court began  by asking each defendant whether

                    
                              

4   Contrary  to defendants' assertions,  our decision  in United
                                                                           
States  v.  Ruiz-Del  Valle,  8  F.3d  98  (1st  Cir.  1993),  is
                                     
distinguishable.   In  that  case we  found  the change  of  plea
hearing  defective as to the  firearms count for  two reasons: 1)
the charge was neither read nor explained to the defendant by the
trial  court and the government  made only a  fleeting mention of
the firearms count  in its outline  of the  evidence; and 2)  the
defendant made a  statement during the plea  hearing which should
have put the trial  court on notice  that she did not  understand
the firearms charge.  Id. at 103.  We also held in Ruiz-Del Valle
                                                                           
that  the defendant should be allowed to withdraw her guilty plea
because it would be a  miscarriage of justice not to in  light of
the trial court's subsequent  finding in the case  of defendant's
husband  that there was an  insufficiency of the  evidence on the
firearms count.  Id. at 104.  These exceptional circumstances are
                             
not present in the instant case.

                               -12-


he had read and understood the petition questions, and whether he

had consulted with his attorney regarding those questions and his

answers.   Each defendant answered in the affirmative.  The court

then  asked  the  standard  questions to  determine  whether  the

defendants  were  competent  to   plead  and  whether  they  were

satisfied with their attorneys.   The court asked each  defendant

whether he  remembered reading and answering  questions about his

right to a jury trial and whether he understood that if he pleads

guilty he  will be found guilty without  a trial.  The defendants

responded in the affirmative to all these questions.

          Next, the  court asked each  of the defendants  to give

their "story"  with respect to  the charges  against them,  which

each  defendant did.  Then the government gave a detailed summary

of  the evidence  it  would prove  at  trial and  each  defendant

indicated his  agreement with the government's  recitation of the

pertinent evidence.   The court then  informed each defendant  of

the maximum and minimum penalties provided by law for the charged

offenses and received their assurances that they understood their

potential  sentences.   Finally, the  court asked  each defendant

whether,  knowing the possible penalties, including the mandatory

minimum  of  120  months, they  wanted  to  plead  guilty.   Each

defendant  answered  in the  affirmative.    The  court  did  not

specifically ask the defendants  whether they knew and understood

their rights to remain  silent and to confront witnesses  against

them,  nor did  it  mention the  possibility  of departure  or  a

perjury charge.

                               -13-


          It  is  abundantly clear  from  the  transcript of  the

hearing that the defendants understood  the nature of the charges

against them, understood their right to a jury  trial, understood

their   potential   sentences,  agreed   with   the  prosecutor's

recitation of what the government would prove at trial, and, most

importantly, acknowledged, with  no perceptible hesitation, their

guilt based on those allegations.  Moreover, there was no need to

discuss  departure from  the guidelines  because all  the parties

agreed that there  was a statutory  minimum of 120  months.   The

narrow question  for decision, therefore, is  whether the failure

of  the trial court to  specifically mention the  right to remain

silent, the right to confront witnesses, and the possibility of a

perjury charge,  standing  alone,  mandates  that  defendants  be

permitted  to withdraw their guilty pleas.  We conclude, based on

the totality of the circumstances, that it does not.

          The  district court  explained, and  determined on  the

record that the defendants  understood many of the "consequences"

of  their guilty  pleas.   This is,  therefore, not  a case  of a

"total failure" to  address one of Rule 11's core  concerns.  See
                                                                           

Allard,  926 F.2d at 1244-45  (citing McCarthy, 394  U.S. at 471-
                                                        

72.5   The question, therefore,  is whether the  district court's
                    
                              

5   We note with  interest the experience  of the  Fifth Circuit,
which  recently overruled its  long held  position that  a "total
failure" to address one of Rule 11's core concerns warrants a per
                                                                           
se reversal.  See United States  v. Johnson, 1 F.3d 296, 297 (5th
                                                     
Cir. 1993) (en banc).   Under its prior jurisprudence,  the Fifth
Circuit distinguished  between the  total and partial  failure to
address Rule 11's core concerns, holding that the former required
per  se reversal while the  latter was judged  under the harmless
                 
error  standard of  Rule  11(h).   See,  e.g., United  States  v.
                                                                       

                               -14-


failure  to inform the defendants  of all of  the consequences of

their  pleas, as  delineated  by Rule  11, "affected  defendants'

substantial rights."    See Fed.  R.  Crim. P.  11(h).   For  the
                                     

reasons explained below,  we conclude that Rule 11's core concern

that  defendants understand  the consequences  of their  plea was

adequately  addressed  in  this  case and  that  the  defendants'

substantial rights were not violated.  We therefore hold that the

district court's failure  to explicitly address all of  Rule 11's
                    
                              

Pierce,  893  F.2d 669,  679 (5th  Cir.1990).   Although  we have
                
phrased  the  analysis   in  somewhat   different  fashion,   our
jurisprudence in this area is similar to the approach rejected by
the Fifth Circuit in Johnson.  See generally, Allard, 926 F.2d at
                                                              
1244-45.

   In  Johnson,  the court  reasoned  that  the  genesis for  the
                        
total/partial  failure  dichotomy was  the  Supreme Court's  1973
decision in  McCarthy, which antedated  the amendment of  Rule 11
                               
with  section (h).   See Johnson, 1  F.3d at  300.  In  the Fifth
                                          
Circuit's view,  the per  se  reversal rule  for core  violations
                                      
"should  have been supplanted by the 1983 addition of section (h)
to Rule  11."  Id.  The court therefore held that, henceforth, it
                           
would,  regardless  of the  type  of alleged  Rule  11 violation,
engage  in  a   straightforward,  two-question  'harmless  error'
analysis, asking, first, whether the sentencing court varied from
the  procedures  required by  Rule 11,  and,  second, if  it did,
whether  the  variance affected  the  substantial  rights of  the
defendant.    Id.   In determining  whether  a Rule  11  error is
                          
harmless,  the court stated that  it would "focus  on whether the
defendant's knowledge  and comprehension of the  full and correct
information would have  been likely to affect  his willingness to
plead  guilty."   Id. at  301.  The  Fifth Circuit  qualified its
                              
opinion, however, by  noting that  it is difficult  to imagine  a
situation  where a trial court's entire failure to mention a core
concern would not "affect substantial rights."  Id. at 301 n.26.
                                                            

   At least at first  blush, we find the Fifth  Circuit's opinion
in Johnson persuasive.   Because  this is not  a "total  failure"
                    
case, however, we need not decide just how persuasive.  Moreover,
we think  it would  be imprudent  to do  so considering  that the
parties in this case did not brief the issue and, in any case, it
is an issue best left to the full court's review.  

                               -15-


requirements was harmless error.

          The record of the plea hearing is replete with evidence

that the defendants understood the charges against them, faced up

to them, and chose voluntarily to plead guilty.  It is clear also

that the defendants understood that they had the right to persist

in their  innocence and go to  trial, and that they  had read and

understood the petition questions,  which explained that they had

the  right to  remain silent  and  to confront  witnesses against

them.   Moreover,  the  trial court  meticulously explained,  and

ensured on the record that the defendants understood, the maximum

and  minimum statutory penalties  and their  sentencing guideline

ranges.  Each defendant  stated on the record that  he understood

that his minimum sentence would be 120 months.

          Finally,  we  are  mindful of  the  traditional factors

relevant  to the  review of  a change of  plea request.6   First,

defendants waited two  months before deciding  that they did  not

understand  the  consequences of  their  guilty  pleas.   Second,

defendants  have  not asserted  their  legal  innocence.   Third,

defendants have not argued, much less attempted to show, that the

knowledge  that  they  had the  right  to  remain  silent and  to

confront  the   witnesses  against  them  at   trial  would  have

materially affected their decisions to plead guilty.

          Defendants  argue that our  decision in Medina-Silverio
                                                                           

requires reversal.  In that case, however, we held only that:
                    
                              

6   Although the traditional factors are somewhat dwarfed in this
case  by the alleged  core Rule 11  violations, they nevertheless
remain relevant to our totality of the circumstances analysis.

                               -16-


            Where a district court neither conducts a
            direct   personal    interrogation,   nor
            advises the defendant of his  rights, all
            substantially as required under  Rule 11,
            there  can  be  no sufficient  basis  for
            finding   that   the   guilty  plea   was
            voluntary, intelligentor otherwise valid.

Medina-Silverio,  30 F.3d at 3.   Thus, a  trial court's reliance
                         

solely on answers provided  by a defendant in a  written document
                

is insufficient  for purposes  of  Rule 11.    In this  case,  in

addition  to answers provided in a written document, however, the

court  personally   and  meticulously   addressed  each   of  the

defendants  with  respect to  the  alleged  facts underlying  the

charges against him,  his right to a  jury trial and the  maximum

and minimum sentences.

                            CONCLUSION
                                      CONCLUSION

          In 1968, the Supreme Court  explained that Rule 11  was

designed,  at  least in  part, to  produce  a complete  record to

enable reviewing courts to determine, based on a cold transcript,

whether a plea was voluntary.  The Court thus commented that:

            [T]he  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.  Although we conclude that the Rule 11
                  

hearing in this case was adequate, we  are nevertheless compelled

to  remind district courts that, for the sake of judicial economy

and fundamental fairness, the best way to ensure  that Rule 11 is

complied with is to explicitly comply with Rule 11.

                               -17-


          The judgment of the district court is affirmed.
                                                          affirmed
                                                                  

                               -18-