UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1800
UNITED STATES OF AMERICA,
Appellee,
v.
GENARO MEDINA-SILVERIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Cyr and Stahl, Circuit Judges,
and Pieras,* District Judge.
Rafael F. Castro Lang for appellant.
Esther Castro Schmidt, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jos A. Quiles-Espi-
nosa, Senior Litigation Counsel, were on brief for appellee.
July 19, 1994
*Of the District of Puerto Rico, sitting by designation.
CYR, Circuit Judge. The only claim we need address in
CYR, Circuit Judge
this appeal is whether the district court complied with the
procedural safeguards mandated by Criminal Rule 11 prior to
accepting appellant's guilty plea to one felony count of illegal
reentry into the United States following deportation. We con-
clude that the plea acceptance procedure adopted by the district
court met neither the letter nor the spirit of Rule 11. As
appellant's guilty plea was invalid, we remand to the district
court for further proceedings.
I
DISCUSSION
The Rule 11 hearing transcript discloses the following
colloquy:
THE COURT: . . . Mr. Medina, I have your
petition to enter a plea of guilty, which is
a long document consisting of 13 pages and
containing 45 questions and answers. You
signed that document at the middle of page
13. Is that your signature?
THE DEFENDANT: Yes.
THE COURT: And your attorney, Mr. Laws,
signed at the bottom.
MR. LAWS: That is correct, Your Honor.
THE COURT: Also both you and your attorney
initialed each page. This means, Mr. Medina,
that these answers are your answers.
THE DEFENDANT: Yes.
2
THE COURT: And are these answers truthful?
THE DEFENDANT: Yes.
THE COURT: And if I repeat all of these
questions, your answers will be the same or
will they be different?
THE DEFENDANT: The same.
THE COURT: Well, the petition will be made
part of this change of plea proceeding be-
cause I adopt all the questions mentioned or
included therein. . . .
Hearing Tr. at 5-6, March 29, 1993 (emphasis added). The dis-
trict court record discloses no other information relevant to the
content and sufficiency of the Rule 11 colloquy. Medina inter-
posed no objection to the district court procedure. See United
States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir. 1991) (appel-
late court must determine Rule 11 compliance without regard to
whether the issue was raised below).
Appellant contends that the district court's simple
incorporation of the Petition to Enter a Plea of Guilty denied
him the procedural safeguards prescribed by Rule 11. He argues
that the failure to conduct a full and direct examination in open
court compromised "core" Rule 11 concerns and undermined the
validity of the guilty plea. See United States v. Allard, 926
F.2d 1237, 1244-45 (1st Cir. 1991) (identifying core Rule 11
concerns: absence of coercion, understanding of charges, and
knowledge of consequences of guilty plea). Further, Medina
claims that comments he made during the Rule 11 hearing demon-
3
strate that his guilty plea was not "voluntary and intelligent."
See, e.g., Parra-Ibanez, 936 F.2d at 590 (noting that the "stric-
tures of Rule 11 [were] calculated to insure the voluntary and
intelligent character of the plea").
The government responds that the Petition to Enter a
Plea of Guilty was completed by appellant, with the assistance of
counsel, only moments before the Rule 11 hearing. The government
therefore claims that any error was harmless and affected no
substantial rights. See Fed. R. Crim. P. 11(h) ("Any variance
from the procedures required by this rule which does not affect
substantial rights shall be disregarded."). We disagree.
Criminal Rule 11 provides in pertinent part:
(c) Advice to Defendant. Before accepting a
plea of guilty or nolo contendere, the court
must address the defendant personally in open
court and inform the defendant of, and deter-
mine that the defendant understands, the
following:
(1) the nature of the charge to which the
plea is offered, the mandatory minimum penal-
ty provided by law, if any, and the maximum
possible penalty provided by law, including
the effect of any special parole or super-
vised release term, the fact that the court
is required to consider any applicable
sentencing guidelines but may depart from
those guidelines under some circumstances . .
. and * * *
(3) that the defendant has the right to plead
not guilty or to persist in that plea if it
has already been made, the right to be tried
by a jury and at that trial the right to the
assistance of counsel, the right to confront
and cross-examine adverse witnesses, and the
right against compelled self-incrimination;
and
4
(4) that if a plea of guilty or nolo
contendere is accepted by the court there
will not be a further trial of any kind so
that by pleading guilty or nolo contendere
the defendant waives the right to trial; and
(5) if the court intends to question the
defendant under oath, on the record, and in
the presence of counsel about the offense to
which the defendant has pleaded, that the
defendant's answers may later be used against
the defendant in a prosecution for perjury or
false statement.
(d) Insuring that the Plea is Voluntary. The
court shall not accept a plea of guilty or
nolo contendere without first, by addressing
the defendant personally in open court,
determining that the plea is voluntary and
not the result of force or threats or of
promises apart from a plea agreement. The
court shall also inquire as to whether the
defendant's willingness to plead guilty or
nolo contendere results from prior discus-
sions between the attorney for the government
and the defendant or the defendant's attor-
ney.
Fed. R. Crim. P. 11(c), (d) (emphasis added).
The district court procedure adopted in this case
cannot be harmonized with the plain language of Rule 11(c), (d).
At a Rule 11 plea hearing, "the court must address the defendant
personally in open court and inform the defendant of, and deter-
mine that the defendant understands," the matters enumerated in
Rule 11. Fed. R. Crim. P. 11(c); see also Fed. R. Crim. P. 11
advisory committee's notes accompanying 1966 amendment (explain-
ing that the rule was amended to make express the requirement
that the district judge personally address the defendant to
ascertain that the plea is "voluntary and intelligent"). The
5
authorities are in agreement that reliance on "a written document
is not a sufficient substitute for personal examination [by the
court.]" James W. Moore, 8 Moore's Federal Practice 11.05[2]
(1994); Charles A. Wright, 1 Federal Practice & Procedure 172
(1982) ("Since 1966 the rule has required the court to address
the defendant personally."); see also United States v. Del Prete,
567 F.2d 928, 930 (9th Cir. 1978) ("[a] written document is
emphatically not a substitute for the clear dictate of the rule,
which requires that the trial judge address the defendant in open
court"). Similarly, the Supreme Court has left no room to doubt
the central importance of direct interrogation by the district
judge in determining whether to accept the defendant's guilty
plea:
To the extent that the district judge thus
exposes the defendant's state of mind on the
record through personal interrogation, he not
only facilitates his own determination of a
guilty plea's voluntariness, but he also
facilitates that determination in any subse-
quent post-conviction proceeding based upon a
claim that the plea was involuntary. Both of
these goals are undermined in proportion to
the degree the district judge resorts to
"assumptions" not based upon recorded respon-
ses to his inquiries.
McCarthy v. United States, 394 U.S. 459, 466-67 (1969) (emphasis
added); see also Fed. R. Crim. P. 11 advisory committee's notes
accompanying 1983 amendment ("[S]ubdivision (h) should not be
read as an invitation to trial judges to take a more casual
approach to Rule 11 procedures. It is still true, as the Supreme
6
Court pointed out in McCarthy, that thoughtful and careful
compliance with Rule 11 best serves the cause of fair and effi-
cient administration of criminal justice . . . .") (emphasis in
original). The present case is directly in point. But for the
district court's failure to follow the explicit requirements set
out in Rule 11, in all likelihood no post-conviction challenge to
the validity of appellant's guilty plea would ever have occurred.
Thus, it is "not too much to require that, before sentencing
defendants to years of imprisonment, district judges take the few
minutes necessary to inform them of their rights and to determine
whether they understand the action they are taking." McCarthy,
394 U.S. at 472. We well understand the heavy burdens
imposed on the district courts. Yet no matter how repetitive the
required Rule 11 praxis may become for busy district judges, it
may not be presumed so for the defendant; and however time-
consuming for the court, it is surely less so than the virtually
certain prospect of remand for further Rule 11 proceedings or
trial. There is no "talismanic test," Allard, 926 F.2d at 1245,
and we have never held the district courts to a formula of "magic
words" in meeting the requirements of Rule 11. It is abundantly
clear, however, that the procedure employed below cannot be
considered in substantial compliance with Rule 11.1 "[A] viola-
1"By entering a guilty plea, a defendant, in effect, waives
a number of constitutional rights. In order for that waiver to
be valid, due process requires that the plea amount to a volun-
tary and 'intentional relinquishment or abandonment of a known
7
tion that implicates one of the rule's 'core concerns' mandates
that the plea be set aside." Id. at 1244-45 (citing McCarthy,
394 U.S. at 471-72; and United States v. Cantor, 469 F.2d 435,
437 (3d Cir. 1972)).
Where a district court neither conducts a direct
personal interrogation, nor advises the defendant of his rights,
all substantially as required under Rule 11, there can be no
sufficient basis for finding that the guilty plea was voluntary,
intelligent or otherwise valid.
A total failure to conduct the plea colloquy mandated
by Rule 11 cannot be considered harmless error, even where
writings evidence the defendant's apparent cognizance of the
information which should have been imparted in open court.
United States v. Bernal, 861 F.2d 434, 436 (5th Cir. 1988), reh'g
denied, 871 F.2d 490, 491 (5th Cir. 1989) ("Acceptance of the
government's [harmless error] argument would obliterate Rule
11(c)'s requirement that the court 'must address the defendant
personally in open court' . . . . [S]ubsection (h) to Rule 11 was
not intended to allow district courts to ignore Rule 11['s
express commands]"), cert. denied, 493 U.S. 872 (1989); see Fed.
R. Crim. P. 11 advisory committee's notes accompanying 1983
right or privilege.'" Allard, 926 F.2d at 1244 (citing McCarthy,
394 U.S. at 466). "The . . . rule requires the court both to
inform the defendant of the nature of the charge and make a
determination that he understands it." Id. (citing Mack v.
United States, 635 F.2d 20 (1st Cir. 1980)).
8
amendment (noting that Rule 11(h) harmless error provision is
intended to excuse "minor and technical violation[s]," but cannot
be invoked where the court's deviation effectively "nullif[ies]
important Rule 11 safeguards"); see also Del Prete, 567 F.2d at
930 (vacating conviction where district court failed to inform
defendant personally of parole component of sentence; existence
of written guilty plea application cannot override "clear dic-
tates" of Rule 11); cf. United States v. Carter, 662 F.2d 274
(4th Cir. 1981) (holding that reversal is required where clerk,
rather than district judge, conducted plea colloquy). The guilty
plea must therefore be set aside and the case must be remanded
for further Rule 11 proceedings or trial.
The judgment of conviction and sentence is vacated.
The guilty plea is set aside and the case is remanded for further
proceedings consistent with this opinion.2
2Appellant's "ineffective assistance" claim is mooted by our
resolution of the Rule 11 claim.
9