(dissenting) :
I must respectfully dissent from the majority’s disposition of the case, as I cannot agree with the conclusion reached in part I of the opinion.
The defendant makes two claims here. First, he contends that when he pled guilty he misunderstood the phrase “put -* * * life in jeopardy” in § 2114 to mean that the victim must be in fear of his life, and that the trial judge should have explained that jeopardy meant not fear but actual danger. The defendant claims that he did not put the postal employee in actual danger of his life, that he pled guilty only because he knew that the postal employee had feared for his life, and that he thought the postal employee’s subjective fear constituted the jeopardy. The defendant claims that he would have pled not guilty had the true meaning of jeopardy been explained to him. The majority refers to this claim only in general terms, and rejects it.
The defendant’s second claim, which I view as being inextricably bound up with the first, is that § 2114 describes a greater offense with a mandatory 25-year penalty (assault with intent to rob and concurrent jeopardizing of life) and a lesser included offense with a maximum ten-year sentence (assault with intent to rob). The defendant says that when he pled guilty, the lesser offense had not been mentioned or explained to him; he contends that it should have been if he was to be given the full understanding of the nature of the charge and consequences of the plea. With this issue, the majority deals specifically.
I understand the Court’s holding on this point to be summarized in the following sentence, “When the charge against the defendant completely, ade*895quately and accurately describes the conduct of the defendant and when the evidence and circumstances clearly demonstrate that the defendant was fully aware and consciously participated in such conduct, we believe it is unnecessary to require the court to go into detailed and fine spun explanations and definitions of other crimes with which the defendant might have been charged.” In other words, the Court holds that if the elements which constitute the crime charged are clear from the indictment and from the explanation of the trial judge and the defendant admits, or “facts and circumstances” show, that he has engaged in that conduct, then the guilty plea is valid even if the trial judge does not explain that there are lesser offenses for which a jury might convict the defendant on the same indictment. The rationale of this holding appears to be, therefore, that the defendant’s admission of conduct constituting the greater offense, or independent “evidence and circumstances” tending to show that he committed the greater offense, make it unnecessary to consider the question of lesser offenses. This holding at least misconceives the purpose of Rule 11 and misconstrues that Rule into permitting a summary, non-jury factfinding of guilt to support a finding of the validity of a guilty plea.
I.
A withdrawn guilty plea is not evidence and has no value as testimony. Kercheval v. United States, 1926, 274 U. S. 220, 47 S.Ct. 582, 71 L.Ed. 64. Therefore, in questioning whether a guilty plea should be withdrawn, to accept the plea itself as having any probative value is to assume the conclusion.
Further, a habeas corpus hearing to determine the validity of a guilty plea does not exist for the purpose of determining whether or not the crime was committed. The question of guilt is reserved for either a valid plea of guilty or a trial by jury. When the validity of a plea of guilty is in question, a judge’s finding that the defendant was in fact guilty is not relevant and cannot be used to buttress the conclusion that the plea was valid. The relevant question is whether the plea was made “voluntarily with the understanding of the nature of the charge and the consequences of the plea.” Guilt is simply not in issue at such a hearing. The obvious purpose of Rule 11 is to make sure that the defendant understands the law. When he pleads, he may apply such law as has been explained to him to the facts as he knows them and reach the legal conclusion to plead guilty or not guilty. In this procedure the defendant finds his own facts. The only other valid method of factfinding in a criminal case is trial by jury as guaranteed by the Sixth Amendment. To allow the factfinding of a court to support a questioned plea of guilty is to take the duty of finding of facts away from either the defendant or a jury. Even if this is permissible under the Constitution, it is not the purpose of Rule ll.1
The position that the guilty plea in issue here was valid may not be supported, therefore, either by the contention that in pleading guilty the defend*896ant admitted committing the crime or by the contention that the testimony of witnesses (including the defendant) at the hearing, the defendant’s past record, or other circumstances, showed that the defendant was guilty. There is no relevance in the majority’s statement: “In this case the offense as described in the information exactly coincides with the conscious conduct of the appellant.” Inquiries into what “the conscious conduct” of the defendant was are neither necessary nor proper to a determination of whether the defendant made the guilty plea “voluntarily with the understanding of the nature of the charge and the consequences of the plea,” except in the very limited, and not here relevant, sense of the last sentence of Rule 11. The majority’s holding, however, rests on the assumption that both the defendant’s plea of guilty and other factors independent of the defendant’s understanding can be used to show that the defendant understood the charge and the consequences of his plea. As I believe these factors irrelevant, I conclude that the majority’s holding is untenable.
II.
The only issue present here is whether the trial judge explained enough of § 2114 to the defendant to insure that the defendant’s guilty plea was made with sufficient understanding of the charge against him and of the consequences of his plea to satisfy Rule 11. The issue goes to comprehension of the law, and not to the conduct of the defendant when the crime was committed. The majority recognizes that routine questions from the trial judge are not sufficient to satisfy the Rule, and that the trial judge’s inquiry must be more comprehensive and exacting when, as here, the defendant is without counsel. It is also quite obvious that the more complicated the statute with which the defendant is charged, and the more the terms of the statute or indictment depart from their common, non-legal usages, the more explanation of the charge must be offered by the trial judge. As the majority states, citing United States v. Lester, 2 Cir. 1957, 247 F.2d 500, the defendant’s familiarity with what he has done is not sufficient; the defendant must also be informed of how legally to interpret what he has done and of what will happen to him if he pleads guilty.
The statute under which the defendant was charged here is akin to a double-edged sword. Unlike those statutes which enumerate a specific crime with a range of punishments therefor, § 2114 sets out a range of crimes, each with separate penalties. It provides for the greater crime of robbing a postal employee and wounding him or putting his life in jeopardy, with a mandatory 25-year penalty. The defendant was charged and convicted of this offense. However, § 2114 also provides for a lesser included offense, assault with intent to rob a postal employee, or actual robbery of him, without the escalating elements of wounding or jeopardy; for this offense the maximum imprisonment is ten years. When the indictment or information charges the greater offense, but the government’s proof establishes only the lesser, a properly-instructed jury may convict for the lesser offense.
Nothing appears in the record here to indicate that the trial judge either affirmatively advised the defendant, or conducted an inquiry which yielded the information that the defendant knew, that under this statute he might be guilty of robbing the vehicle while merely assaulting rather than endangering the life of the postal employee. Because Dorrough could have been convicted of this lesser offense upon the same information which charged him of the greater, I believe that Dorrough was not advised of the charge against him within the meaning of Rule 11.
This is, apparently, a case of first impression. However, the leading case on the general subject, Von Moltke v. Gillies, 1948, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321, states:
“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 *897of 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.” (Emphasis added.)
The waiver spoken of there is waiver of counsel before pleading guilty. A fortiori, no less stringent standards must be met before a defendant without counsel can plead guilty.2 United States v. Commonwealth of Pennsylvania, 3 Cir. 1965, 343 F.2d 447, 451.
The language of Von Moltke demands that the defendant be given all facts “essential to a broad understanding of the whole matter.” Rule 11 by its terms requires that the defendant be given information not required to be given even when the police warn a suspect under the rule of Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, because a valid guilty plea is more consequential than an admission usable against the defendant.
“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” Kercheval v. United States, supra, 274 U.S. at 223, 47 S.Ct. at 583, 71 L.Ed. at 1012.
The holding of the majority in the present ease, stripped of what I think are its irrelevancies, says that where a crime is described by an indictment, and the defendant admits the crime, then lesser included crimes need not be described. The argument in favor of such a holding runs thus: if the greater crime is charged and described clearly, and the defendant is willing to admit to it, then of what purpose is it that lesser included crimes were not also described? But the trouble with this argument is that it recognizes far too little of the purpose of Rule 11, and that it is inconsistent with that purpose and with cases (some cited by the majority) which carry out that purpose. For instance, in Munich v. United States, 9 Cir. 1964, 337 F.2d 356, the Ninth Circuit held invalid a guilty plea made by a defendant who was unaware that he would not be eligible for parole. Rule 11 at the time did not include the phrase “and the consequences of the plea”, which were added in 1966, so the Ninth Circuit was holding, in 1964, that failure to inform a defendant that he would not be eligible for parole was failure to insure that the plea was made “with understanding of the charge.” See also Harper v. United States, 10 Cir. 1966, 368 F.2d 53; Pilkington v. United States, 4 Cir. 1963, 315 F.2d 204. Yet the majority’s narrow rationale for the present case would seem to exclude the holding in Munich: if a crime is described clearly in an indictment, and the defendant is willing to admit to it, of what relevance is it that the defendant wrongly thinks that he will be eligible for parole ? He has been explained the crime and has admitted it.
The answer is clear: Rule 11 requires more than the statement of the elements of a crime because a defendant’s decision to plead guilty or not guilty depends on a good deal more than whether he thinks he is guilty or not guilty. He must be apprised of more than a mere description of the charge because he must weigh the risks of trial against the length of punishment and the kind of punishment. Crucial to such an evaluation is knowledge of the complete range of crimes charged by the indictment or information, so that the defendant may be aware of the range of possibilities in a jury verdict when he considers whether he wishes to stand trial. He may decide that he has a chance that the jury will disregard or disbelieve a weak portion bf the government’s case, but only if the jury knows that there is a lesser crime *898of which it might still convict him. A defendant cannot weigh his chance with a jury if he does not know that there is a lesser ground for conviction upon which it might resolve its doubts. Knowledge of the existence of such a lesser crime might just convince a defendant to risk his case with a jury where he otherwise would not.
It would be uncandid also to fail to mention that upon learning of a lesser included offense, the defendant might announce to the prosecution that he would consent to plead guilty only to the lesser offense, in the hope that the prosecution would allow him so to plead rather than go through the risk and bother of a trial. Plea-bargaining, at present, must be recognized as part of our system. Cortez v. United States, 9 Cir. 1964, 337 F.2d 699, cert. denied, 1965, 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726. Task Force on the Administration of Justice on the President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 9-13 (1967).
In a certain class of cases, of which the present case is an example, the knowledge by the defendant that a lesser included offense exists would seem especially to impel the defendant to decide to stand trial. In the present case, the sentence for the greater offense is mandatory ; the defendant can expect no diminution in punishment from the trial court for pleading guilty and has nothing to lose by standing trial. In one case he is assured of 25 years; in the other, a maximum of ten.
Finally, § 2114 is more complicated than the usual statute in which several crimes are homogenized. The difference between the greater and lesser included offenses depends upon the interpretation of the phrase “put * * * life in jeopardy”. Courts have struggled with the meaning of this phrase for almost 150 years.3 Although the law has become well-settled that to put a life in jeopardy means to place it in actual, not merely feared, danger, courts, lawyers, and parties still have trouble with the phrase. In United States v. Donovan, 2 Cir. 1957, 242 F.2d 61, the trial judge had erroneously instructed the jury that the greater offense had been committed if the postal employee had “ ‘been put in fear of being killed or in danger of being killed. It is not a question of whether the defendants planned to kill him or intended to kill him.’ * * * ‘It is a question of whether he was put in fear or danger of being killed’ ”. 242 F.2d at, 63.4 See Meyers v. United States, 5 Cir. 1941, 116 F.2d 601, in which we held that an indictment charging only that the postal employee was put in fear of his life was insufficient to support a conviction for putting life in jeopardy. See also Wagner v. United States, 9 Cir. 1959, 264 F. 2d 524, cert. denied 1959, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548, and the early case of United States v. Reeves, C.C.W.D.Tex.1889, 38 F. 404, which contains a jury instruction. Compare Smith v. United States, 5 Cir. 1960, 284 F.2d 789.
Lawyers and judges are word merchants and merchandisers. Our understanding of “jeopardy” is removed from the understanding and usage of the word by a layman. Some of the lexicon of crime is far ranging and known to the many, but “jeopardy” is not in the argot of our daily lives. While I do not believe that the assertion by the defendant of his noncomprehension by itself is sufficient to invalidate the judge’s explanation, I am convinced from the nature of the statute charging the offense, from the colloquy between the trial court and the defendant, and from the other relevant facts that I cannot expect this defendant to have grasped and understood the lesser offenses included within the offense charged. In this setting I believe that the district judge’s finding on habeas that Dorrough understood the charges against him and pleaded guilty *899with such understanding was clearly erroneous under Rule 52(b), F.R.Civ.P.
Rule 11 is not a giveaway. The Constitution grants the unconditional right of jury trial in criminal cases. In pleading guilty a defendant trades away that right. It is not a handsome picture if the government plays what may seem to the defendant to be a shell game with the relevant facts so that the defendant is disadvantaged or uninformed when he chooses whether to plead guilty or to stand trial. Rule 11 looks to this broader question rather than to the narrow one of the majority. Kercheval v. United States, supra; Von Moltke v. Gillies, supra; United States v. Lester, supra. I would grant the defendant a new trial.
. The last sentence of Rule 11 reads “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.” Nothing in this sentence contradicts what is said here. That sentence exists to satisfy the trial court that “the conduct which tlie defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.” Advisory Committee’s Note to the 1966 Amendment of Rule 11. The trial court is not permitted by this sentence to demonstrate that the defendant understood the charge by finding as fact that the defendant was guilty. The sentence relates only to the determination that the facts that the defendant is' willing to admit must constitute the elements of one of the crimes which the indictment covers. The sentence is merely another method of ascertaining whether the defendant understands the crime he is charged with. See 8 Moore, Federal Practice, 1966 Cumulative Supplement If 11.03 [1], pp. 29-31 esp. at footnote 12 (Cipes 1966). Cf. Stinson v. United States, 5 Cir. 1963, 316 F.2d 554.
. Von Moltlce is the first case cited by the Advisory Committee on the Federal Rules of Criminal Procedure after explaining that the addition of the phrase “and the consequences of [his] plea” to Rule 11 merely states “what clearly * * * [was] the law.”
. The earliest recorded case is United States v. Wood, 1818, 28 Fed.Cas. p. 755, No. 10,757.
. The Donovan case has a history of the • caselaw interpreting this statute.