USCA1 Opinion
November 13, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1110
DAVID WILLIAMS,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Jeffrey S. Cohen, with whom Sulloway, Hollis & Soden, was on
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brief for appellant.
Peter E. Papps, First Assistant United States Attorney, with
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whom Jeffrey R. Howard, United States Attorney, was on brief for
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appellee.
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TORRUELLA, Circuit Judge. Appellant David Williams
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appeals from a district court judgment refusing to allow him to
withdraw a guilty plea. Appellant claims that the court accepted
his plea in violation of Rule 11 of the Federal Rules of Criminal
Procedure ("Rule 11"), and that he misunderstood the nature of
the charges against him. Because we find no Rule 11 violation,
and that the district court assured that appellant entered a
knowing and voluntary plea, we affirm the district court's
decision.
BACKGROUND
BACKGROUND
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Appellant pled guilty, in his capacity as an
individual, to mail fraud1 and fraud by an investment advisor,2
and in his capacity as a corporate executive, to an indictment
against Blondheim Investment Advisors, Inc. ("Blondheim").3
Appellant now claims that he never understood the charges against
him, and thus, this court should set aside his plea.
Specifically, he contends that at the time of his plea hearing,
he erroneously believed that he could be convicted, even if he
never intended to defraud anyone. Thus, he argues that he did
not knowingly and voluntarily plead guilty.
On July 11, 1991, appellant requested to have his
guilty plea set aside pursuant to 28 U.S.C. 2255. The district
court then held an evidentiary hearing to ascertain the extent of
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1 18 U.S.C. 1341-42 (1981).
2 15 U.S.C 80b-6, 80b-17 (1981); 18 U.S.C. 2 (1969).
3 Id.
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appellant's understanding of the charges against him. The judge
determined that appellant fully understood that the charges
required a showing of intent to defraud. As such, he refused to
allow appellant to withdraw his plea. Appellant appeals from
that judgment.
DISCUSSION
DISCUSSION
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Under Rule 11, before accepting a guilty plea, a
district court must inform the defendant of, and determine that
the defendant understands, the nature of the charges against him.
Fed. R. Crim. P. 11(c)(1). A judge need not inform the defendant
of the nature of the charges himself, as long as someone informs
the defendant during the plea hearing. United States v. Allard,
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926 F.2d 1237, 1246 (1st Cir. 1991). Unless the judge determines
that the defendant fully understands the charge, however, he may
not accept the plea. Valencia v. United States, 923 F.2d 917,
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921 (1st Cir. 1991).
Rule 11 assists the district court in fulfilling two
main goals. First, it ensures that if a defendant pleads guilty,
he does so voluntarily, with a full understanding of the charges
against him. Allard, 926 F.2d at 1244 (citing McCarthy v. United
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States, 394 U.S. 459, 466 (1969)). Second, it assures a complete
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record of the facts relevant to determining whether the
defendant's plea represented a knowing and voluntary
relinquishment of his right to a trial. Id. (citing McCarthy,
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394 U.S. at 467).
Appellant's plea hearing satisfied both of these
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concerns. At the hearing, the district court judge engaged in a
lengthy dialogue with appellant to determine whether appellant
understood his plea. In response to the judge's questions,
appellant stated that: (1) he understood that by pleading guilty
he would waive his right to trial; (2) he knew that at a maximum,
he could receive five years in prison, a $1,000 fine, or both for
mail fraud; five years, $10,000 or both for fraud by an
investment advisor; and $10,000 for the indictment against
Blondheim, all with possible consecutive sentences; (3) no one
had threatened him or promised him leniency; and (4) he took no
medicine in the recent past, and never received psychiatric
treatment.
In addition to engaging in a lengthy dialogue with
appellant regarding his plea, the district court judge also
ensured that appellant heard at least three different people
explain the nature of the charges.
First, the judge asked appellant whether his attorneys
advised him of the nature of the charges and any possible
defenses. Appellant replied that they had. While a judge may
not rely solely on a defendant's attorney to privately inform the
defendant of the nature of the charges against him, Mack v.
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United States, 635 F.2d 20, 26 (1st Cir. 1980), a determination
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that the defendant's attorney gave such an explanation assists
the judge in ascertaining the defendant's understanding of the
pending charges and their penalties.
Second, in addition to assuring that appellant's
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attorney privately explained the charges to him, at the plea
hearing, the judge also had the government outline the evidence
it would have offered had the case gone to trial. That proffer
of evidence explicitly discussed appellant's scheme to defraud.
Third, the judge also had the clerk read appellant's
indictment to him. This indictment stressed the intentional
nature of the crimes.
Under certain circumstances, the reading of an
indictment alone will satisfy the judge's obligation to inform a
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defendant of the nature of the charges against him. Allard, 926
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F.2d at 1245. This is especially true where the case involves an
intelligent defendant, and the indictment clearly describes the
charges. Id. In the present case, the judge determined that
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appellant was intelligent, and the indictment provided a clear
description of the charges. Moreover, the clerk asked appellant
to enter his plea after the explanation of each count, rather
than at the end of the entire indictment.
In addition to assuring that appellant heard several
explanations of the charges against him, the judge also asked
appellant's attorney numerous questions regarding appellant's
capacity and interests in his plea. Appellant's attorney assured
the judge that appellant was under no outside influence, and that
it was in appellant's best interests to plead guilty to the
pending charges. Thus, we find that the court fully informed
appellant of the nature of the charges against him in accordance
with Rule 11.
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Even though we find no Rule 11 violation, however,
appellant would still be entitled to set aside his guilty plea if
he could show that he fundamentally misunderstood the elements of
the charge and would have not pled guilty had he understood them.
See United States v. Buckley, 847 F.2d 991, 999 (1st Cir.
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1988)("The district court's adherence to Rule 11 does not, to be
sure, insulate from review its conclusion that the plea was
valid."), cert. denied, 488 U.S. 1015 (1989). Although Williams
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has not cast his present motion in voluntariness terms, the issue
is a close cousin to his Rule 11 claim and is squarely presented
by his factual assertions.
While the plea hearing satisfied Rule 11, because the
district court judge did not give a detailed explanation of the
charges, and appellant did not say that he agreed with the
government's proffer, the hearing did not wholly foreclose the
claim of misunderstanding that appellant advances. However, we
find that the district court committed no clear error in
determining that appellant fully understood the nature of the
charges against him at the plea hearing. See Oimette v. Moran,
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942 F.2d 1, 5 (1st Cir. 1991)(clearly erroneous standard governs
factual findings in habeas corpus).
At the district court's evidentiary hearing,
appellant's counsel testified that appellant appeared to
understand the nature of the charges, that appellant actively
participated in the plea negotiations, and that appellant
thoughtfully discussed many issues regarding his plea, including
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burdens of proof at trial.
Appellant makes much of the fact that he signed a
statement indicating only that he acted with reckless disregard
for investors' monies, and that the statement failed to mention
the requisite intent to defraud. In the evidentiary hearing,
however, appellant's counsel testified that the statement
represented only what appellant felt that he did wrong, and that
it was solely for sentencing purposes, designed to allow counsel
to argue for a minimal sentence. Thus, the statement holds
little evidentiary value with respect to appellant's
understanding of his plea. The district court heard the evidence
and appraised appellant's credibility, and it's finding that no
misunderstanding occurred is certainly not clearly erroneous.
Finally, there need be little concern that a
miscarriage of justice occurred by denying appellant's motion.
Contrary to the premise of his petition, and despite the
government's silence, the scienter element under the mail and
securities fraud statutes can be satisfied by something less than
fraudulent intent or knowing falsehoods.4 Although reckless
mismanagement of funds might not always constitute fraud,
appellant's version of how he understood the law is not too far
from how courts actually read the mail and securities fraud
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4 See, e.g., United States v. Gay, 967 F.2d 322, 326 (9th
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Cir.)("We have repeatedly held that reckless indifference alone
will support a mail fraud conviction."), cert. denied, 61
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U.S.L.W. 3285 (1992); United States v. Brien, 617 F.2d 299, 312
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(1st Cir.)("conscious avoidance" of truth satisfies the scienter
requirement for a mail fraud conviction), cert. denied, 446 U.S.
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919 (1980).
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statutes.
Because we find that the district court committed no
Rule 11 violation and assured that appellant entered a truly
knowing and voluntary plea, we affirm the district court's
decision.
Affirmed.
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