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It’s difficult these days to get a guilty plea overturned, but it’s not impossible. In federal court, guilty pleas are governed by Federal Rule of Criminal Procedure 11. Although that rule has several requirements for a lawful plea, violating those provisions does not necessarily invalidate a plea. Rather, the reviewing court must determine whether the error was harmless or plain error. See Fed. R. Crim. P. 11(h). In essence, a guilty plea contains three essential elements: (1) waiver of a number of the defendant’s constitutional rights, (2) advisements and inquiries by the court to ensure that the plea is knowing and voluntary, and (3) an acknowledgment by the defendant of the conduct for which he or she is being convicted. See Brady v. U.S., 397 U.S. 742 (1970). In accepting a guilty plea, the court must comply with Rule 11 to ensure that the plea is made without coercion and that the defendant understands the nature and consequences of his plea. See U.S. v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). To ensure that a plea is knowing and voluntary, Rule 11 requires the court to advise the defendant in open court of the right to a jury trial at which the defendant is represented by counsel, the right to confront and cross-examine adverse witnesses, the right to present her own witnesses, and the defendant’s right to testify or to refuse to testify. Fed. R. Crim. P. 11(b)(1)(C)-(E). The court must advise the defendant of the nature of the charge to which the defendant is pleading and the consequences of that plea. Fed. R. Crim. P. 11(b)(1)(G)-(N). Additionally, the court must ensure that the defendant’s plea is voluntary and not coerced by force, threats or promises (other than those promises in the plea agreement). Fed. R. Crim. P. 11(b)(2). Finally, the court must determine that there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3). Judges’ ‘script’ doesn’t make plea appeal-proof Most judges have developed a script to use in guilty plea proceedings to ensure that they do not leave anything out when conducting the plea hearing. In fact, the Federal Judicial Center has prepared a sample script for federal judges to use in guilty pleas. See U.S. v. Adams, No. 04-30339, 2006 U.S. App. Lexis 11 (9th Cir. Jan. 3, 2006). Therefore, it should be rare that errors occur in plea proceedings. Nonetheless, hundreds of defendants each year still challenge their guilty pleas on appeal. The challenges range from claims that the plea was coerced to more technical claims, such as that the defendant was not advised of a mandatory fine the defendant faced for his or her behavior. Last year, out of all of the appeals filed challenging guilty pleas in federal court, only a handful were successful. Yet, an examination of recent guilty plea appeals provides a glimpse into which violations of Rule 11 make pleas the most vulnerable to reversal. One of the most recent guilty plea reversals occurred in U.S. v. Adams, supra. In Adams, the defendant pleaded guilty to planting a garden of 200 marijuana plants. Pursuant to a plea agreement, Ronald Adams agreed to plead guilty in exchange for a government recommendation that he not be ordered to pay a fine as part of his sentence. According to the United States Sentencing Guidelines Manual, the applicable fines ranged from $4,000 to $2 million for each of the two charged offenses. Despite the plea agreement that was reached with Adams, the court ended up imposing a fine because, at the time of the case, such a fine was mandatory under the Sentencing Guidelines. Adams complained on appeal that he was not advised at his guilty plea that he faced a mandatory fine. Rather, he was only advised of the maximum sentence that he faced, which was “40 years as to each particular crime, as well as a fine of not to exceed $2 million.” Adams, 2006 U.S. App. Lexis 11, at 4. The 9th U.S. Circuit Court of Appeals ruled in his favor. Although Adams had been advised of the maximum fine he faced, he was not told it was a mandatory fine. This error was not harmless and required a finding that the defendant had not entered a “knowing, voluntary and intelligent plea.” The error was not harmless because “[t]o accept a guilty plea under such circumstances [would] affect the fairness, integrity, and public reputation of judicial proceedings because [the court] cannot know whether [the defendant] would have pleaded differently if he had been properly informed.” Adams, 2006 U.S. App. Lexis 11, at 11, quoting U.S. v. Smith, 60 F.3d 595, 600 (9th Cir. 1995). Unfortunately for other defendants, the Adams decision may not open the door for many more reversals. First, as noted in a vigorous dissent by Circuit Judge Andrew J. Kleinfeld, the 9th U.S. Circuit Court of Appeals decision seems in conflict with that of other circuits. Nine other circuits that have ruled on this issue have held that Rule 11(b)(1)(l) only requires the judge to tell the defendant of statutory mandatory minimums, not guideline mandatory minimums. See Adams, 2006 U.S. App. Lexis 11, at 24, n.21. Second, because the federal sentencing guidelines are no longer mandatory, see U.S. v. Booker, 543 U.S. 220 (2005), it is unlikely that such a situation will arise in the future. One area of vulnerability: advising of consequences Nevertheless, one area of vulnerability in guilty pleas is whether the court has accurately and adequately advised the defendant of the consequences of the plea. If it has not, the defendant may seek to invalidate the plea because it was not knowing, intelligent and voluntary. A more fruitful avenue for challenging a guilty plea may be to focus on the defendant’s answers to the rote questions presented by the court and on the failure of the court to identify specifically the rights that the defendant would waive by pleading guilty. For example, in U.S. v. McCoy, No. 04-4463, 2005 U.S. App. Lexis 25297 (6th Cir. Nov. 18, 2005) (unpublished), Donta McCoy appealed a district court’s refusal to allow him to withdraw his guilty plea and its finding that his plea was knowingly and voluntarily made. McCoy was indicted for being a felon in possession of ammunition, in violation of 18 U.S.C. 922(g)(1). At the guilty plea, McCoy said that he was not particularly satisfied with the advice of counsel. His lawyer stated that McCoy “would like it placed in the record that he requested that I withdraw as counsel, that that request was denied and that that is part of his reason in going forward.” Id. at 13. Additionally, the transcript of the plea colloquy in McCoy contained no evidence that McCoy had been advised by the court of his rights as required by Rule 11(b)(1) or that he had expressly waived them at the sentencing hearing. Rather, much of the hearing focused on the defendant’s problems with his counsel. Under these circumstances, the 6th Circuit held that the district court had erred in failing to find a “fair and just” reason for McCoy’s withdrawal of his plea under Rule 11(d)(2)(B). The success stories for appeals challenging guilty pleas are few and far between. Appellate courts are ordinarily quick to affirm the convictions, finding that omissions in the plea proceedings were harmless. In fact, last year, counsel in U.S. v. Willey, 141 Fed. Appx. 482 (7th Cir. 2005) (unpublished) filed an Anders brief asserting there were no nonfrivolous grounds for appeal even though the court handling Willey’s guilty plea never informed him that he could be prosecuted for making a false claim under oath, Rule 11(b)(1)(A); that he had the right to plead not guilty, Rule 11(b)(1)(B); that he had the right to an attorney, Rule 11(b)(1)(D); that he had the right to confront witnesses and compel their attendance, Rule 11(b)(1)(E); and that he could be subject to penalties for forfeiture and restitution, Rule 11(b)(1)(J), (K). The 7th Circuit agreed with counsel that the errors were harmless since Willey was already represented by counsel, had been informed of his rights in his plea agreement, and no forfeiture or restitution was ordered. See also U.S. v. Mason, 139 Fed. Appx. 748 (7th Cir. 2005) (unpublished). Courts of appeal are willing to express their “disapproval” of deficient practices by district judges handling guilty pleas, but they are rarely willing to overturn convictions because of mistakes by the district judge. See, e.g., U.S. v. Moriarty, 429 F.3d 1012 (11th Cir. 2005). Accordingly, it would be a grave error for defense counsel to treat the guilty plea colloquy as a game, waiting for the court to deviate from the script or otherwise accidentally fail to comply with Rule 11′s requirements. The high court nixes a game of ‘gotcha’ in ‘Vonn’ The U.S. Supreme Court’s pivotal decision in U.S. v. Vonn, 535 U.S. 55 (2002), made clear that a defendant may not play the game of “gotcha” with the district court. Unless a defendant objects at the time of the plea, any error in the Rule 11 proceedings must be reviewed under the plain-error rule of Rule 52(b). Moreover, under U.S. v. Benitez, 542 U.S. 74 (2004), the defendant must show that there is a reasonable probability that he or she would have gone to trial absent the court’s error. The reviewing court can look to any evidence in the record that may bear on this issue, including the plea agreement itself. The bottom line is that it is tough for a defendant to overturn a guilty plea. That makes it ever more important for defense counsel to thoroughly investigate and advise the defendant prior to that point. A court’s mistakes at a guilty plea are unlikely to save a defendant whose lawyer hasn’t done his or her job. Laurie L. Levenson is a professor of law, a William M. Rains fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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