(dissenting) :
I dissent because I believe that the record does not establish compliance with Rule 11, as that rule was interpreted in McCarthy v. United States (1969) 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418.
Rule 11 provides in pertinent part that “The court . . . shall not accept [a plea of guilty] 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.” This version of the rule, requiring a personal colloquy, is a product of a 1966 amendment. Before the amendment, not all judges personally addressed the defendant, and there was common confusion over the matter. (E. g., compare United States v. Diggs (6th Cir. 1962) 304 F.2d 929 with Meeks v. United States (5th Cir. 1962) 298 F.2d 204.)
McCarthy construed Rule 11 to require the United States District Court to interrogate the defendant personally to ascertain if he knowingly and intelligently waived his constitutional rights, including his right to a jury trial, his right of confrontation, and his privilege against self-incrimination. 394 U.S. at 466, 89 S.Ct. 1166. If a plea is taken “without fully adhering to the procedure provided for in Rule 11,” a defendant is entitled to plead anew. 394 U.S. at 463-464, 89 S.Ct. at 1169.1
When compliance with Rule 11 is not in issue because the plea is taken in state court (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274) or because the Rule 11 proceeding was conducted before McCarthy was decided (Halliday v. United States (1969) 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16), the validity of the plea rests on compliance with the less rigorous demands of due process. The Court did not impose the personal interrogation requirement of Rule 11 as a constitu*308tional standard. Compliance with due process can be established from an examination of the whole record; it is not confined to the colloquy between the court and the defendant as is true of post-McCarthy Rule 11 proceedings. (Boykin v. Alabama, supra; Halliday v. United States, supra at 832, 89 S.Ct. 1498; see also 394 U.S. at 834-835, 89 S.Ct. 1498 (Harlan, J., concurring).)
Appellant’s plea was taken after McCarthy was decided. Our inquiry, therefore, is whether the district court’s interrogation of appellant complied with post-McCarthy Rule 11. All pertinent parts of the Rule 11 colloquy are set forth below:
“THE COURT: How many times have you talked to Mr. Allen (defense counsel) about this case?
THE DEFENDANT: Quite a few, sir.
THE COURT: Do you think you have talked to him sufficiently to be able to make an intelligent determination of what you want to do ?
THE DEFENDANT: Yes,- I do, Your llonor.
THE COURT: How do you want to plead to the indictment, guilty or not guilty ?
THE DEFENDANT: Guilty, Your Honor.
THE COURT: Are the facts stated in that indictment true ?
THE DEFENDANT: They are, Your Honor.
[In response to the court’s questions about the facts of the crime, Sherman confessed that he bought the car with a check he knew was bad.]
THE COURT: Did you receive a petition to enter a plea of guilty ?
THE DEFENDANT: I did, your Honor.
THE COURT: Did you read it?
THE DEFENDANT: Yes, I did, sir.
THE COURT: Did you go over it with Mr. Allen?
THE DEFENDANT: I did.
THE COURT: Are the facts stated in the petition true?
THE DEFENDANT: Yes, sir.
THE COURT: How old are you ?
THE DEFENDANT: I am 27, Your Honor.
THE COURT: Mr. Allen, did you go over the facts with him ?
MR. ALLEN: Yes, I did, Your Honor.
THE COURT: Are you satisfied that he is guilty?
MR. ALLEN: lam.
THE COURT: You can sign that petition, if you so desire. Of course, you know if I don’t accept your plea of guilty, you can have a trial before a jury and the Government would have to bring witnesses against you and you would be entitled to witnesses on your own behalf?
THE DEFENDANT: I do, Your Honor.
THE COURT: I will accept the plea of guilty.”
Nothing on the face of the colloquy indicates that Sherman knew that he had any right to remain silent and that he voluntarily chose to yield that right. The majority opinion equates knowledge of a defendant that he has a right not to plead guilty with knowledge of a defendant that he has a right not to testify at all. Proof of knowledge of a right not to plead guilty carries no implication that a person knew about his Fifth Amendment right. For example, could a Miranda warning be given by asking a person in custody if he knew that he did not have to plead guilty if he were *309charged with the offense about which he was being interrogated?
I agree completely with the majority opinion’s observation that a Rule 11 colloquy need not assume “any predetermined, ritualistic form.” I also agree that no magic words need be incanted to reveal from the colloquy that a defendant knowingly yielded his right not to testify against himself. But, in my view, McCarthy requires that it appear from some language in the colloquy that a defendant knew that he could remain entirely silent and knew that he could not plead guilty unless he confessed to the crime, and that he voluntarily gave up the right and testified against himself. Sherman’s knowledge of two of the rights stressed in McCarthy — the right to a jury trial and the right to confront witnesses — unmistakably appears in the colloquy. The exchange contains nothing about the third' — the right against self-incrimination.
The majority opinion implies that the requirements of Rule 11 can be met by the court’s referring to a petition signed by the defendant. I disagree. Under McCarthy, statements other than those addressed orally to the court cannot be relied upon to cure deficiencies in a Rule 11 interrogation. 394 U.S. at 467, 89 S.Ct. 1166; id. at 477, 89 S.Ct. 1166 (Black, J., concurring). (Compare the Rule 11 hearing invalidated by McCarthy, 394 U.S. at 472-474, 89 S.Ct. 1166, with the colloquy in Sherman’s case.)
Even if I assumed, arguendo, that Rule 11 could be satisfied by incorporating a defendant’s statements in a written petition to the court, the assumption would not save Sherman’s plea because the petition reveals no more about Sherman’s knowledge of his Fifth Amendment privilege than did his colloquy with the court.
I would set aside the plea for failure to comply with Rule 11.
. Before McCarthy, we had reached similar results in applying Rule 11. E. g., Heiden v. United States (9th Cir. 1965) 353 F.2d 53; Freeman v. United States (9th Cir. 1965) 350 F.2d 940; Castro v. United States (9th Cir. 1968) 396 F.2d 345.