Richard Sympol Townes, Jr. v. United States

CRAVEN, Circuit Judge

(concurring) :

Unquestionably, the “additional suggestions” to the district judges in the majority opinion are permissible extrapolations of Rules 11 and 44.1 Even so, I have some hesitation in joining in further suggestions to the district judges. What is contained in the rules 2 and in *939prior decisions 3 seems to me sufficient. Every case is different, and the circumstances of one may demand much more inquiry than does another.

Extended colloquy between court and defendant is not the only way the judge can sufficiently investigate the circumstances.4

The Fifth Circuit has “repeatedly stated that determination by the trial court that the plea was made voluntarily need not comply with any set formula.” 5

The Sixth Circuit has said that “[i]n order to comply with * * * rule [11] the District Court need not follow any particular ritual” and has suggested that “[a] brief discussion with the defendant regarding the nature of the charges may normally be the simplest and most direct means of ascertaining the state of his knowledge.” 6

The Seventh Circuit has made the same suggestion, but also notes that “there may be other circumstances from which it is evident that the defendant has the requisite understanding.” 7

The Eighth Circuit has said that Rule 11 “does not prescribe, or even suggest, a particular technique or procedure * *. It would appear to be necessary — but also sufficient — that the trial judge reach the imperative conclusion by any rational means appropriate to the setting which evokes it.” 8 The Eighth Circuit has also said that the trial judge, in the course of discharging his duty under Rule 11, “is entitled to consider all of the information that has been presented to the defendant from whatever source, including his counsel, statements made in open court proceedings, personal knowledge of the defendant, and any other factor that would have any relationship to the plea. No particular rote or ritual need be observed by the trial court.” 9

The Ninth Circuit has said “the court is not required to follow any particular ritual, and it is not necessary that the court personally explain to the defendant the nature of the charge.” 10

The Tenth Circuit has said that “Rule 11 does not require any ritualistic ceremonial. A sentencing court does not have to conduct a hearing and make a finding showing compliance with the rule before accepting any guilty plea.” 11

One trouble with appellate court suggestions to trial judges is that they tend to become what is genuinely disclaimed in the majority opinion: “a rigid ritual to be slavishly followed.”

Since we establish no ritual or rule of procedure and leave to the ingenuity of the district judges ways and means of compliance with Rules 11 and 44, I am persuaded to join my colleagues in the suggestions offered.

. Although the Supreme Court has never told the district judges precisely how they are to perform their duty under Rule 44, Mr. Justice Black, speaking for four members of Court, in Von Moltke v. Gillies, spoke of its extent and nature:

“To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the • statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” 332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed.2d 309 (1948). (Emphasis added.)

. Rule 11 reads as follows:

“A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”

Rule 44 reads as follows:

“(a) Right to Assigned Counsel. Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or the court through appeal, unless he waives such appointment.
“ (b) Assignment Procedure. The procedures for implementing the right set *939out in subdivision (a) shall be those provided by law and by local rules of court established pursuant thereto.

. For example, we quite recently said in White v. Pepersack, 352 F.2d 470, 472 (4th Cir. 1965), that a guilty plea is acceptable “only after a searching inquiry to assure that its tender is voluntary.”

. It might not even be the best way. Too much colloquy under Buie 44 could be self-incriminating, e. g., an alleged counterfeiter who responds to inquiry that he is a printer by trade.

. Floyd v. United States, 260 F.2d 910, 912 (5th Cir. 1958). See also Johnson v. United States, 344 F.2d 401, 403-404 (5th Cir. 1965) which is in accord in respect to waiver of counsel.

. Julian v. United States, 236 F.2d 155, 158 (6th Cir. 1956).

. United States v. Davis, 212 F.2d 264, 267 (7th Cir. 1954); accord, Hobbs v. United States, 340 F.2d 848, 851 (7th Cir. 1965).

. Smith v. United States, 339 F.2d 519, 527 (8th Cir. 1964).

. Bartlett v. United States, 354 F.2d 745, 751 (8th Cir. 1966).

. Munich v. United States, 337 F.2d 356, 359 (9th Cir. 1964). (Emphasis added.)

. Nunley v. United States, 294 F.2d 579, 580 (10th Cir. 1961).