On Motion for Rehearing En Banc
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
PER CURIAM:The motion for rehearing en banc initiated by a member of the Court in regular active service is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure).
BAZELON, Chief Judge:In view of the importance of the question presented by this case, I asked the court to consider rehearing the case en banc on the court’s own motion. Fed. R.App.P. 35(a). The court declined to order rehearing, and I dissent from that decision.1
Appellant claims the trial court abused its discretion in denying his motion to withdraw a plea of guilty. Fed.R.Crim. P. 32(d). In my view there was a clear abuse of discretion on the facts of this case. More important, however, I think it is essential for this court to give the trial court some guidance in the exercise of that discretion.
Our criminal justice system has come increasingly to depend on guilty pleas, which are largely the product of plea bargains.2 It is said that the system *925would break down if every defendant demanded his constitutional right to a trial.3 To avoid that breakdown, we tolerate a system which substitutes low-visibility negotiations for the adversary process.4 So long as we depend on a system that encourages defendants to waive their constitutional rights, we have an obligation at least to ensure that defendants do not waive their rights through ignorance, without full understanding of the consequences. Surely poor, uneducated, or inexperienced people are entitled to at least as much protection in negotiating pleas to criminal charges, when liberty is at stake, as they are in negotiating ordinary commercial transactions.5
With respect to guilty pleas, Fed.R. Crim.P. 32(d) provides the basic mechanism for relieving such people of the bargains they may make without the information necessary to make intelligent decisions. That rule authorizes the trial court to permit the withdrawal of a guilty plea at any time “to prevent manifest injustice.” Prior to sentencing, as in this case, the standard is far more liberal: “[t]he court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just.” Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927).6 If trial courts exercise their discretion under that rule in a grudging manner, then the criminal process becomes a trap for the unwary, an efficient machine for obtaining swift convictions, instead of an orderly system for dispensing justice.
In this case it is undisputed that appellant entered his guilty plea without knowing that a narcotics conviction would lead to automatic deportation; he and his counsel believed the sentencing judge had the power to suspend deportation, and they believed that appellant’s record would persuade the judge to do so.7 After appellant entered the plea, and before he was sentenced, he discovered that the judge had no such discretion, and filed a motion to withdraw his plea.
For me it is a close question whether the plea when entered was intelligently and voluntarily made, in accordance with the requirements of Fed.R.Crim.P. 11. A plea is not voluntary within the meaning of that rule if the defendant fails to understand the consequences of the plea. As the court points out, however, courts have distinguished “collateral” from “direct” consequences for the purposes of Rule 11, and it might possibly be appropriate to treat deportation as a “collateral” consequence, which need not be made clear to the defendant before he enters a valid plea.
Here, however, the court confronts a different question. A Rule 32 motion to withdraw a guilty plea need not allege that the court failed to comply with the procedures required by Rule 11. A *926plea that was valid when made may nevertheless be withdrawn if the interests of justice so require.8
After sentencing, the relevant standard is “to prevent manifest injustice.” Even under that strict standard, appellant might well be entitled to withdraw his plea. The court cites Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984 (1968), for the proposition that a guilty plea is not necessarily rendered involuntary by a misunderstanding concerning the effect of a conviction on deportation.9 The court overlooks the fact, however, that in Briscoe I we remanded the case for further hearings to determine, inter alia, whether the misunderstanding was fostered by the government, and whether the plea should be set aside in the interest of justice. 129 U.S.App.D.C. at 150 & n.2, 391 F.2d at 988 & n.2. We also noted, without deciding, the possibility that even if the mistake was attributable entirely to the error of defense counsel, it might provide grounds for relief, on the theory that the defendant had been deprived of his constitutional right to effective assistance of counsel. Id.
A mistake concerning deportation, though not fostered by the government, was held sufficient to support a post-sentence motion in United States v. Shapiro, 16 F.R.D. 499 (E.D.Wis.), appeal dismissed, 222 F.2d 836 (7th Cir. 1955). While the Second Circuit refused to grant relief on that ground in the absence of government involvement, United States v. Parrino, 212 F.2d 919, 921 (2d Cir.), cert, denied, Parrino v. United States, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954), Judge Frank argued in a forceful dissent that a mistake concerning deportation, even if attributable entirely to defense counsel, should be sufficient to require relief. 212 F.2d at 922. Judge Frank’s view has been cited with approval both by Professor Moore and by this court. Professor Moore states that “the vigorous dissent of Judge Frank more likely reflects the present attitude of the federal judiciary.” 8A J. Moore, Federal Practice f[ 32.07(3] at 32-80 (Cipes ed. 1969). And this court, stating that “we agree with Professor Moore” on that point, has made it quite clear that “[u]nder appropriate circumstances the fact that a defendant has been misled as to consequence of deportability may render his guilty plea subject to attack.” United States v. Briscoe, 139 U.S.App.D.C. 289, 291, 432 F.2d 1351, 1353 (1970) (Leven-thal, J.).10
A fortiori, under the generous standard that applies prior to sentencing, appellant’s mistake concerning deportation should be adequate to support his motion to withdraw a guilty plea. It is well established that presentence withdrawal should be freely allowed, i. e., that a “fair and just” reason is easily estab*927lished.11 Surely such a reason exists when a defendant has entered a guilty plea without the knowledge that his conviction will result in deportation. The Supreme Court has observed that deportation may result in “loss of both property and life, or of all that makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922) (Brandeis, J.). Mr. Justice Jackson has described deportation as “a life sentence of banishment.” Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (dissenting opinion).
Prior to sentencing, the government has ordinarily taken no action in reliance on a guilty plea. The government thus has no interest in holding the defendant to a bargain he never meant to make. The defendant, on the other hand, has a great interest in withdrawing from the bargain and contesting the charge, when he knows that conviction will require his deportation.12
This is not a case like Everett v. United States, 119 U.S.App.D.C. 60, 336 F. 2d 979 (1964), where the court said that no reason at all had been alleged in support of the motion to withdraw the plea. This case instead falls squarely within the well-settled rule that for any “fair and just” reason a presentence motion to withdraw a guilty plea should be allowed.
In affirming this conviction, the court has repudiated that rule. It has thereby stripped from the plea bargaining process one of its all-too-few critical safeguards. Because of the importance of that step for the administration of justice in this jurisdiction, the case is a most appropriate one for. the en banc consideration of this court.
Circuit Judges J. SKELLY WRIGHT and SPOTTSWOOD W. ROBINSON, III, join in dissent.
. See, e. g., Southern Ry. Co. v. Lanham, 408 F.2d 348 (5th Cir. 1969) (dissent from denial of rehearing en bane).
. See, e. g., The President’s Comm’n on Law Enforcement and Administration of Justice, Task Force Report: The Courts 9 (1967) ; D. J. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 3 n. 1 (1966) ; H. I. Subin, Criminal Justice in a Metropolitan Court 15-17, 34-35, 37-38, 42-50 (1966) (account of process in District of Columbia).
. See, e. g., Chief Justice Burger, The State of the Judiciary — 1970, 56 A.B.A.J. 929 (1970).
. For some of the problems involved in attempting to make the process more visible, see Scott v. United States, 135 U.S. App.D.C. 377, 419 F.2d 264 (1969).
. Cf. Williams v. Walker-Thomas Furniture Co., 121 U.S.App.D.C. 315, 350 F.2d 445 (1965).
. Keroheval establishes the standard for a presentence motion under Rule 32(d), see Nagelberg v. United States, 377 U.S. 266, 84 S.Ct. 1252, 12 L.Ed.2d 290 (1964); Gearhart v. United States, 106 U.S.App.D.C. 270, 273, 272 F.2d 499, 502 (1959) ; Poole v. United States, 102 U.S.App.D.C. 71, 75, 250 F.2d 396, 400 (1957).
. Sentencing Transcript at 3. 8 U.S.C. § 1251(a) (11) provides in pertinent part that an alien is deportable if he has been convicted of violating any law relating to the illicit possession of or traffic in narcotic drugs or marihuana. 8 U.S. C. § 1251(b) provides that an alien de-portable by virtue of certain criminal convictions may avoid deportation if the sentencing court so recommends. § 1251 (b) excludes from its operation, however, those aliens who are deportable by virtue of narcotics convictions under § 1251(a) (11).
. See, e. g., Pilkington v. United States, 315 F.2d 204, 209 (4th Cir. 1963) (So-beloff, C. J.) : “The facts disclosed in a hearing might not be sufficient for the court to conclude that the guilty plea was involuntary and violative of due process, yet the court may be of the opinion that clear injustice was done.”
. For the court’s treatment of this case, hereafter Briscoe I, see United States v. Sambro, at 923.
. At the remand hearing ordered by this court in Briscoe I, the trial court found that the prosecutor had not in any significant way fostered appellant’s misunderstanding. We affirmed that finding in Briscoe II, quoted in text. We also found in the record no basis for relief on tlie ground of involuntariness, or ineffective assistance of counsel. A critical factor in our decision was the fact that Briscoe was attacking his conviction in a collateral proceeding, which could afford no meaningful relief in the peculiar circumstances of that case: appellant’s sentence had been limited to time served, and he did not seek to avoid the resulting deportation. Indeed Briscoe, unlike the defendant in this case or in Parrino, had entered a guilty plea not in the hope of avoiding deportation, but in an effort to bring it about; his mistake was in thinking he needed another conviction in order to become eligible for deportation.
. ‘‘Leave to withdraw a guilty plea prior to sentencing should be freely allowed.” Poole v. United States, 102 U.S.App.D.C. 71, 75, 250 F.2d 396, 400 (1957). “[I]t goes without saying that a plea of guilty at that time can be and often is changed, on proper motion, as a matter of course.” McJordan v. Huff, 77 U.S.App.D.C. 171, 172, 133 F.2d 408, 409 (1943).
. Tlie difference between the pre-sentence and post-sentence standards is discussed in Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963). The difference between the two standards is important, and application of the wrong standard is grounds for reversal. United States v. Stayton, 408 F.2d 559 (3d Cir. 1969).