United States v. Smith

United States Court of Appeals
For the First Circuit

No. 06-2247

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTOPHER SMITH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
J. Gregory Batten for appellant.

December 21, 2007
 LIPEZ, Circuit Judge. Appellant Christopher Smith was

charged, pursuant to 18 U.S.C. § 922(a)(6), with having falsely

stated on a federal firearms transaction record that he had never

been committed to a mental hospital. He sought to suppress the

record of his involuntary mental health commitment on the ground

that it had been obtained through police records that were

protected from disclosure by state law. Additionally, he argued

that federal regulations governing records at federally assisted

drug abuse treatment programs precluded disclosure of the record of

his involuntary commitment.

After his suppression motion was denied, Smith entered a

conditional guilty plea, preserving his right to appeal the denial.

He now exercises that right and also appeals on the ground that the

plea hearing, conducted by the district court pursuant to Federal

Rule of Criminal Procedure 11, was deficient. We hold that state

law was not violated by the disclosures in this case and that the

order of commitment is not a record to which the federal

regulations governing records at federally assisted drug abuse

treatment programs apply. We also find that no error occurred

during Smith's Rule 11 hearing. We therefore affirm.

I.

The following facts are undisputed. On April 2, 2005,

Smith was involuntarily admitted to Acadia Hospital, a psychiatric

hospital in Bangor, Maine. This involuntary admission was

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precipitated by his admission to the intensive care unit at Eastern

Maine Medical Center ("EMMC") following a drug overdose. In the

application section of an Application for Emergency Involuntary

Admission to a Mental Hospital (a "blue paper"),1 EMMC Nurse

Practitioner Donna Huff explained:

I believe Christopher Smith has a mental
illness and due to mental illness, poses a
likelihood of serious harm on the basis that
Mr. Smith has a hx [history] of violent
outbursts, threatening others and himself. He
is here at EMMC in the ICU s/p [status post]
overdose on a variety of medications. The
last time he was admitted he fled before he
was admitted. He is a flight risk. Therefore
requesting Bangor PD.

Dr. Victor Kelmenson completed the certification portion of Smith's

blue paper, concluding that he "pose[d] a likelihood of serious

harm due to a mental illness because [of] amphetamine overdosed

psychosis, hx [history] of suicidal ideation and paranoia, [and]

1
"Blue paper" is the shorthand parlance for emergency
involuntary admission applications in Maine because the forms are
typically printed on blue paper. See United States v. Flanders,
No. CRIM. 03-76-B-W, 2004 WL 444027 (D. Me. Mar. 4, 2004). Maine
law provides for involuntary hospitalization for mentally ill
persons who pose "a likelihood of serious harm." Me. Rev. Stat.
Ann. tit. 34-B, § 3863. The procedure for involuntary commitment
is as follows: first, an applicant completes an application
indicating the grounds for his or her belief that the person to be
hospitalized is mentally ill and poses a likelihood of serious
harm. Id. § 3863(1). Then, a licensed physician completes a dated
certificate to accompany the application, certifying that he or she
has examined the patient and found him or her to be mentally ill
and to pose a likelihood of serious harm. Id. § 3863(2). Finally,
the application and accompanying certificate are reviewed and
endorsed by a judicial officer. Id. § 3863(3). In practice, the
application, certificate, and endorsement are all contained on a
one-page form, known as the blue paper.

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violent outbursts." Later the same day, the Penobscot County

Probate Judge completed the judicial review and endorsement section

of the blue paper and authorized the Bangor police to transport

Smith to Acadia Hospital. Smith was subsequently hospitalized for

about two weeks.

Less than four months later, on July 18, 2005, Smith went

to Frati the Pawnbrokers, a federally licensed firearms dealer in

Bangor, and completed ATF Form 4473 in anticipation of purchasing

a gun. Question 12.f on the form asked: "Have you ever been

adjudicated mentally defective (which includes having been

adjudicated incompetent to manage your own affairs) or have you

ever been committed to a mental institution?" Smith answered,

"No." On July 20, 2005, Erik Tall, a Bangor police detective

assigned to an ATF Task Force, reviewed Smith's ATF Form. Tall

discovered from computerized records at the Bangor Police

Department that Smith had been transported by two officers on April

2. He then obtained a copy of the police report indicating that

Smith had been transported from EMMC to Acadia Hospital for

involuntary admission.

On July 25, Tall interviewed Smith and his mother, who

both confirmed that Smith had been involuntarily committed in

April. The government then sought a court order, pursuant to

regulations under the Health Insurance Portability and

Accountability Act ("HIPAA"), 45 C.F.R. § 164.512(f), and Maine

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law, Me. Rev. Stat. Ann. tit. 34-B, § 1207(1)(C), directing Acadia

Hospital to turn over a copy of the blue paper authorizing Smith's

involuntary admission. A magistrate judge granted this request,

and the government received a copy of Smith's blue paper on August

30, 2005, confirming his involuntary admission and the inaccuracy

of his answer on the ATF form.

Following his indictment on September 27, 2005 for

knowingly making a false statement on the ATF Form, Smith moved to

suppress the police reports related to his transportation to Acadia

Hospital and the blue paper evidencing his involuntary admission.

He argued that the police reports should be suppressed because they

were obtained in violation of Maine's law designating "all orders

of commitment, medical and administrative records, application and

reports, and facts contained in them" as confidential records. Me.

Rev. Stat. Ann. tit. 34-B, § 1207(1). He contended that the blue

paper should be suppressed as a fruit of the illegally obtained

police report and as a drug abuse treatment record, designated as

confidential under the federal Public Health Service Act, 42 U.S.C.

§ 290dd-2.2

2
As we discuss below, the Public Health Service Act (PHSA)
renders confidential certain records of drug abuse diagnosis and
treatment. 42 U.S.C. § 290dd-2. The PHSA and the regulations
implementing it are distinct from and more protective than the
nondisclosure requirements for "health information" established by
HIPAA regulations. Compare 42 C.F.R. § 2.65 (establishing explicit
criteria for a court to consider before authorizing disclosure of
drug abuse records under the PHSA) with 45 C.F.R. § 164.512
(permitting the release of health information "in response to an

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 The same magistrate judge who issued the order directing

the hospital to turn over the blue paper recommended that Smith's

motion to suppress be denied, and the district court adopted her

recommendation. Smith then agreed to enter a conditional guilty

plea, preserving his right to appeal on the suppression issue. The

district court conducted a plea hearing, described in further

detail below, and accepted Smith's plea, sentencing him to fifteen

months in prison and three years supervised release. Smith now

appeals the denial of his motion to suppress the police report and

the blue paper. He also appeals on the ground that the judge

conducting his Rule 11 hearing improperly relied on a written

document instead of directly and personally addressing him in open

court about his understanding of the charge against him.

II.

We review the denial of a motion to suppress under a

bifurcated standard: questions of law are reviewed de novo, while

findings of fact are reviewed for clear error. United States v.

Charles, 213 F.3d 10, 17-18 (1st Cir. 2000). The facts underlying

the motion to suppress in this case are not in dispute. As a

result, our review is de novo.

A. State Law

Smith argues that Tall violated state law, specifically

Maine Revised Statutes title 34-B, § 1207, when he reviewed

order of a court").

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computer records and a police report related to the transportation

of Smith from EMMC to Acadia Hospital. Section 1207, located in a

chapter governing the Department of Behavioral and Developmental

Services, provides:

1. GENERALLY. All orders of commitment,
medical and administrative records,
applications and reports, and facts contained
in them, pertaining to any client shall be
kept confidential and may not be disclosed by
any person, except that:
. . .
C. Information may be disclosed if ordered by
a court of record. . . .

Me. Rev. Stat. Ann. tit. 34-B, § 1207(1).3

Smith argues that Tall violated Maine law by improperly

obtaining and disclosing to federal prosecutors, without a court

order, the police report documenting the Bangor Police Department's

transport of Smith to Acadia Hospital. This argument fails because

the police report is not a "report . . . pertaining to [a] client"

covered by § 1207(1). A "client" is defined in this title of the

Maine statutes as "a person receiving services from the department

3
Prior to 2007, unlawful disclosure of these records was
punishable as a Class D crime. Me. Rev. Stat. Ann. tit. 34-B, §
1207(4)(B). The statute as amended now provides that "[d]isclosure
of client information in violation of this section is an offense
under the licensing standards of the mental health professional
committing the violation and must be promptly reported to the
licensing board with jurisdiction for review, hearing and
disciplinary action." Id. § 1207(4-A). This revision provides
further support for our conclusion that police records are not
intended to be encompassed by the statute's confidentiality
protections because such records are unrelated to the work of
mental health professionals.

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[of Behavioral and Developmental Services], from any state

institution or from any agency licensed or funded to provide

services falling under the jurisdiction of the department." Id. §

1001(2). Given that the Bangor Police Department is not a state

agency or institution under this definition, Smith cannot be the

police department's client. Thus, the police report is not a

"report pertaining to a client." It follows that Tall's

acquisition of the police report and his disclosure of it to

federal prosecutors was not a violation of state law. Accordingly,

we affirm the district court's denial of Smith's motion to suppress

the police report. Because the police report was not illegally

obtained, we also reject Smith's theory that the blue paper should

be suppressed as a fruit of the police report.

B. Federal Law

Smith also argues that the blue paper should be

suppressed on federal law grounds. The Public Health Service Act

(PHSA) makes certain drug abuse records confidential:

Records of the identity, diagnosis, prognosis,
or treatment of any patient which are
maintained in connection with the performance
of any program or activity relating to
substance abuse . . . treatment [or]
rehabilitation . . . which is conducted,
regulated, or directly or indirectly assisted
by any department or agency of the United
States shall . . . be confidential and be
disclosed only for the purposes and under the
circumstances expressly authorized . . . .

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42 U.S.C. § 290dd-2. The regulations promulgated pursuant to this

statute define "records" to mean "any information, whether recorded

or not, relating to a patient received or acquired by a federally

assisted alcohol or drug program." 42 C.F.R. § 2.11. A "patient"

is defined as "any individual who has applied for or been given

diagnosis or treatment for alcohol or drug abuse at a federally

assisted program." Id. "Drug abuse" is broadly defined to

encompass "the use of a psychoactive substance for other than

medicinal purposes which impairs the physical, mental, emotional,

or social well-being of the user." Id.

The application and certificate on Smith's blue paper

contain diagnoses referencing drug abuse ("[status post] overdose

on a variety of medications" and "amphetamine overdosed psychosis")

and therefore are, arguably, records within the regulatory

definition.4 The PHSA permits the use of such records to "initiate

or substantiate any criminal charges against a patient" when

authorized by "an appropriate order of a court of competent

jurisdiction granted after application showing good cause

therefor." 42 U.S.C. § 290dd-2(b)(2)(C), (c). The statute

prescribes a general balancing test for assessing good cause,

instructing the court to "weigh the public interest and the need

for disclosure against the injury to the patient, to the physician-

4
The parties agree that Acadia Hospital is a "federally
assisted program" under the regulatory definition.

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patient relationship, and to the treatment services." Id.

However, the regulations promulgated under the statute articulate

a more specific five factor test to be applied when the records are

sought for use in a criminal investigation or a criminal

prosecution:

A court may authorize the disclosure and use
of patient records for the purpose of
conducting a criminal investigation or
prosecution of a patient only if the court
finds that all of the following criteria are
met:
(1) The crime involved is extremely serious,
such as one which causes or directly threatens
loss of life or serious bodily injury
including homicide, rape, kidnapping, armed
robbery, assault with a deadly weapon, and
child abuse and neglect.
(2) There is a reasonable likelihood that the
records will disclose information of
substantial value in the investigation or
prosecution.
(3) Other ways of obtaining the information
are not available or would not be effective.
(4) The potential injury to the patient, to
the physician-patient relationship and to the
ability of the program to provide services to
other patients is outweighed by the public
interest and the need for the disclosure.
(5) If the applicant is a person performing a
law enforcement function that:
(i) The person holding the records has been
afforded the opportunity to be represented by
independent counsel. . . .

42 C.F.R. § 2.65(d).

Although a court order was granted authorizing the

release of the blue paper for use in the government's investigation

and prosecution of Smith, none of the findings required by the

regulations were made. The explanation for this lack of findings

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is simple: neither the government nor the magistrate judge granting

the order had any reason to believe, at the time, that the blue

paper referenced a drug abuse diagnosis and thus arguably included

drug abuse information under 42 U.S.C. § 290dd-2. The magistrate

judge explained in her ruling on the suppression motion that her

order authorizing release of the commitment record was made

pursuant to the HIPAA regulations, 45 C.F.R. § 164.512(a)(1)

(permitting disclosure of health records pursuant to court order),

and applicable state law, Me. Rev. Stat. Ann. tit. 34-B, § 1207

(permitting disclosure of orders of commitment pursuant to court

order). She noted that when considering the government's request

for an order authorizing disclosure of the blue paper, she "never

for one moment considered whether the application might mention the

word 'drugs' and therefore became a patient record within the

meaning of 42 C.F.R. § 2.65(d)."

However, to resolve the suppression issue before us, we

need not decide whether the application and certificate portions of

the blue paper are patient records, nor whether the government

would have been able to show that all five criteria required by §

2.65(d) were satisfied in this case. Instead, we focus only on the

judicial endorsement portion of the blue paper. We do so for two

reasons. First, the Maine law authorizing emergency admission,

described supra note 1, suggests that the procedure involves three

different forms: an application, a certificate, and a judicial

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endorsement. Although Maine has decided to use a single piece of

paper to consolidate the application, certification, and

endorsement steps of the procedure, this happenstance does not

necessarily mean that the three discrete portions of the form,

filled out by three separate people, are all part of single

"record" for the purpose of the PHSA. In other words, the

practical convenience of putting these three forms on a single

piece of paper does not transform the judicial endorsement from a

judicial order into a patient record.

Second, the government has no interest in introducing

evidence of Smith's drug abuse at trial. Its only interest is the

introduction of evidence of the fact of Smith's involuntary

commitment to a mental hospital. That fact could be shown with a

redacted copy of the blue paper that includes only the judicial

endorsement.5 Thus, even assuming an error was made in ordering

disclosure of the entire, unredacted blue paper (and we intimate no

view on that question), the dispositive issue is whether the

judicial endorsement on Smith's blue paper, with the application

and certificate redacted, could be "used to initiate or

substantiate any criminal charges against" Smith without the

findings necessitated by the five factor test under the PHSA

regulations. Accordingly, we must determine whether the judicial

5
At oral argument, the government stated that it would have
agreed to stipulate to the fact of involuntary commitment rather
than introducing the blue paper.

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endorsement is a "record" to which the PSHA regulations restricting

use apply. We hold that it is not.

The applicability statement in the PHSA regulations

limits the broad definition of "records" when the "use" of

information in a criminal case is at issue6:

The restriction on use of information to
initiate or substantiate any criminal charges
against a patient or to conduct any criminal
investigation of a patient applies to any
information, . . . which is drug abuse
information obtained by a federally assisted
drug abuse program after March 20, 1972, . . .
for the purpose of treating . . . drug abuse,
making a diagnosis for the treatment, or
making a referral for the treatment.

42 C.F.R. § 2.12(a)(2) (emphasis added) (internal citation

omitted). The judicial endorsement on Smith's blue paper reads:

Upon review pursuant to 34-B M.R.S.A. §
3863(3), I find this application and
certificate to be regular and in accordance
with the law, and I hereby authorize Bangor
Police Dept to take Christopher Smith into
custody and transport him to the Acadia
Hospital.

It is dated and signed by the probate judge and indicates the

address of the probate court. This endorsement contains no

information that was obtained for the purpose of treatment,

diagnosis, or referral; indeed, it contains no medical information

6
When disclosure of records is at issue, the applicability of
the regulations is further circumscribed by the requirement that
the information "would identify a patient as an alcohol or drug
abuser either directly, by reference to other publicly available
information, or through verification of such an identification by
another person." 42 C.F.R. § 2.12(a)(1)(i).

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at all and no reference to drugs. Instead, it contains the

statement of a judge authorizing the police to transport a patient

to a hospital for emergency commitment. It is properly

characterized as a judicial order and, as such, is far more akin to

a court record than to a patient record of drug treatment.7 The

endorsement was "obtained" for the purpose of complying with

Maine's emergency involuntary commitment statute, rather than for

treatment, diagnosis, or referral. Because the endorsement

contains no information to which the PHSA regulatory restrictions

on use apply, it is not a "record" within the purview of those

regulations.8 As a result, the judicial endorsement may be used to

7
Under Maine law, "orders of commitment" are confidential and
may be disclosed only by court order. Me. Rev. Stat. Ann. tit. 34-
B, § 1207. That statute was fully complied with in this case.
Additionally, we note that the Maine confidentiality law is phrased
so as to distinguish between "orders of commitment" and "medical
and administrative records." Id. The court order in this case
orders Acadia Hospital to provide the blue paper as well as "any
and all records relating to the fact of involuntary admission to
hospitalization at Acadia Hospital of Christopher Smith,
specifically EXCLUDING any records relating to substantive medical
diagnosis or treatment." The order thus reflects the magistrate
judge's sensitivity to the confidentiality of medical diagnosis and
treatment records and confirms the judge's surprise when the blue
paper itself contained such information. That surprise suggests
that the state of Maine should consider using a two-page form for
involuntary commitment to separate the substantive medical
diagnosis from the judicial order authorizing commitment. This
approach would allow the judicial order to be disclosed pursuant to
court order under Maine law without risking a violation of these
federal regulations in the future.
8
We note that, in addition to containing no information
obtained for the purpose of diagnosis, referral, or treatment, the
judicial endorsement, by itself, would not identify Smith "as an
alcohol or drug abuser either directly" or indirectly. As such, it

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prosecute Smith without the findings required by 42 U.S.C. §

2.65(d). Accordingly, Smith's appeal of the denial of his motion

to suppress the blue paper is denied.

III.

Smith asserts a violation of Federal Rule of Criminal

Procedure 11 for the first time on appeal. He did not object

during the plea colloquy, nor did he move at any time to withdraw

his plea. As a result, our review is for plain error. United

States v. Vonn, 535 U.S. 55, 58-59 (2002); United States v.

Caraballo-Rodriguez, 480 F.3d 62, 69 (1st Cir. 2007). To establish

plain error, Smith bears the burden of demonstrating that: "'(1)

there was error; (2) the error was plain; (3) the error affected

the defendant's substantial rights; and (4) the error adversely

impacted the fairness, integrity, or public reputation of judicial

proceedings.'" Caraballo-Rodriguez, 480 F.3d at 69 (quoting United

States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002)).

Federal Rule of Criminal Procedure 11 requires a court to

conduct a plea colloquy, advising the defendant of his rights and

questioning him to establish that the plea is knowing and

voluntary. Fed. R. Crim. P. 11(b). The rule requires the court to

"determine that there is a factual basis for the plea," Fed. R.

contains no information to which the restrictions on disclosure
would apply. See 42 C.F.R. § 2.12(a). Accordingly, the court-
ordered disclosure of the redacted blue paper, including only the
judicial endorsement, would not have been error, even in the
absence of the findings required by 42 C.F.R. § 2.65(d).

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Crim. P. 11(b)(3), and that the defendant understands "the nature

of each charge to which the defendant is pleading," Fed. R. Crim.

P. 11(b)(1)(G).

When conducting the colloquy, "the court must address the

defendant personally in open court." Fed. R. Crim. P. 11(b)(1).

We have repeatedly asserted that "a defendant's acknowledgment of

signed agreements or other written documents will not suffice in

lieu of the court's personal examination." United States v.

Martinez-Martinez, 69 F.3d 1215, 1220 (1st Cir. 1995) (citing

United States v. Martinez-Molina, 64 F.3d 719, 734 (1st Cir.

1995)); see also United States v. Medina-Silverio, 30 F.3d 1, 3

(1st Cir. 1994). However, we have also held that "where the

prosecutor's statement . . . 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 that he understands the charge.'"

United States v. Cotal-Crespo, 47 F.3d 1, 6 (1st Cir. 1995)

(quoting United States v. Darling, 766 F.2d 1095, 1099 (7th Cir.

1985)).

Smith argues that his Rule 11 proceeding was deficient in

that "the trial judge failed to directly and personally address

[Smith] in open court about [his] understanding of the law in

relation to the alleged facts which would constitute the offense

charged in the indictment, and instead, relied upon a written

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document as a substitute for personal examination in determining

that a factual basis for the plea existed." Smith is apparently

claiming that the court improperly relied on the written indictment

or on the Amended Government's Version of the Offense during the

plea colloquy. However, the transcript of Smith's Rule 11 hearing

does not support this contention.

In a thorough and organized fashion, the court began the

Rule 11 hearing by questioning Smith directly about his competency

to enter a plea. Finding him competent, the court then asked Smith

about his understanding of the allegations in the indictment. Far

from relying on a written document, the court conducted a lengthy

and thorough inquiry into Smith's understanding of the offense

charged:

COURT: Mr. Smith, have you received a copy of
the indictment?
SMITH: Yes, your Honor.
COURT: Have you had enough time to discuss the
charge with your lawyer?
SMITH: Yes, your Honor.
COURT: Has Mr. Bate [defense counsel]
explained to you the elements and nature of
the offense charged?
SMITH: Yes, your Honor.
COURT: Has he also told you about the
penalties that can be imposed?
SMITH: Yes, your Honor.
COURT: Mr. Bate, are you satisfied that your
client understands the charge contained in
Count One of the indictment and the penalties
that can be imposed?
MR. BATE: Yes, your Honor.
COURT: Now, Mr. Smith, you're charged in a
one-count indictment, and it alleges as
follows, that on or about July 18, 2005, you
attempted to acquire a handgun from Frati the

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 Pawn Brokers in Bangor, and when you did so,
you knowingly made a false, fictitious
statement on the Department of Treasury,
Bureau of Alcohol, Tobacco and Firearms
firearms transaction record, A[T]F Form 4473,
which statement was likely to deceive Frati
the Pawn Brokers as to a fact material to the
lawfulness of the attempted acquisition of the
firearm and that you answered "no" to Question
2-F. 2-F read, "Have you ever been
adjudicated mentally defective which includes
having been adjudicated incompetent to manage
your own affairs?" or "Have you ever been
committed to a mental institution?" And that
-- it further alleges that you knew at the
time that answer was false and that is a
violation of federal firearms law. Do you
understand the charge set forth in the
indictment?
SMITH: Yes, your Honor.

The court reviewed the range of penalties that could be imposed and

told Smith that he would have the right to change his mind and

withdraw his plea "up until the time that I accept your guilty plea

if I decide to accept it." The court then explained the rights

Smith would give up by pleading guilty and the consequences of his

conditional plea agreement. Throughout this colloquy, the court

repeatedly asked Smith if he understood what he was being told and

he answered "yes, your Honor" each time.

Then, the court turned to its determination that there

was a factual basis for the plea. The court asked Smith whether he

had been given an opportunity to review the amended version of the

offense. He replied that he had. The court said, "I'm going to

ask a very important question, Mr. Smith, and obviously I need a

truthful answer. Is there any respect with which you disagree with

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what is set forth in the amended Government's version of the

offense?" Instead of answering, Smith conferred with counsel. His

attorney then responded to the question by carefully walking the

court through a series of objections to factual details in the

amended version of the offense.

In particular, Smith's counsel stated that Smith could

neither admit nor deny the allegation that he had seen various

signs on the walls of the hospital entrance while being transported

to Acadia Hospital because he was medicated and had no recollection

of the event.9 Smith's counsel also contested the allegation that

Smith had admitted to Tall that he should have answered "yes" to

the question on the ATF form regarding involuntary commitment.

Additionally, Smith's counsel indicated that he contested certain

allegations regarding Smith's drug use.

Turning back to Smith personally, the court said,

"[Y]ou've heard this conversation between me and your lawyer. And

he has made certain points about whether or not you recognize[d]

the signs and the nature of the conversation you had with Officer

Tall. Have you followed the conversation that we've had?" Smith

replied that he had. When asked, "Is there anything else in the

amended Government's version that you believe is in any way

inaccurate or incorrect?" Smith replied that there was not. The

9
The signs would have been relevant to show that Smith was
aware that he had been involuntarily admitted to a mental hospital.

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court continued: "Is the information, to the best of your

knowledge, except for what your lawyer has pointed out, true to the

best of your personal knowledge?" Smith replied, "Yes, your

Honor."

The court permitted the defendant to be seated at that

point, but its Rule 11 colloquy continued. The court proceeded to

recite in great detail the uncontested facts alleged in the amended

version of the offense and how those facts would be sufficient to

meet the government's legal burden in this case. Following this

lengthy recitation of the facts and the law, the court concluded:

"So I do find, based on my review of the prosecution version, Mr.

Smith's responses, the responses of his attorney, that there is a

factual basis for the guilty plea to the crime charged in . . . the

indictment."

The court then questioned Smith personally regarding the

voluntary nature of his plea. Smith continued to answer

affirmatively to all of the court's inquiries. Before accepting

the plea, the court asked Smith once again whether he still wished

to enter the conditional guilty plea and Smith replied, "Yes, your

Honor."

Far from relying on a written document in lieu of a true

colloquy, this exchange between the court, Smith, and Smith's

counsel parsed the factual details of the allegations in the

written document and included a detailed oral exposition of the

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factual basis for the plea. Thus, we find no error, much less

plain error, in the district court's Rule 11 colloquy in this case.

Affirmed.

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