Justia Federal District Court Opinions

On September 3, 1969 Sherman pled guilty to a charge of violating the Dyer Act, 18 U.S.C. Sec. 2312. Later he moved to vacate his conviction under 28 U.S.C. Sec. 2255, alleging that the record of the proceedings at the taking of his plea did not show that he was advised of his right against compulsory self-incrimination. This, he says, is contrary to the decision in Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and Rule 11, F.R.Crim.P. as interpreted in McCarthy v. United States, 1969, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418. The district court denied the motion, and Sherman appealed.

On March 2, 1972 we filed an opinion reversing the denial of Sherman's motion. On the government's petition for rehearing, we vacated that opinion. Having now concluded that Sherman's guilty plea was properly taken, we affirm the order of the district court.

The record does not show that Sherman was advised, eo nomine, of his right against compulsory self-incrimination. However, no decision of the Supreme Court imposes such a requirement. In McCarthy, the Court held only that district courts must adhere strictly to the provisions of Rule 11, and that failure to do so requires that the defendant be afforded an opportunity to replead. 394 U.S. at 466, 472, 89 S.Ct. 1166. Neither the Rule nor the opinion state that the trial judge must specifically inform the defendant of his Fifth Amendment rights. In Boykin, the appellant had been convicted on a guilty plea in a proceeding of which there was no record. The Court held that such a plea violates due process because a guilty plea waives several constitutional rights, and prior cases had required that the waiver of similar rights be spread upon the record. It therefore seemed anomalous to allow a guilty plea to be taken with no formal inquiry as to its voluntariness. The Court's precise holding was "that there was reversible error 'because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty."' 395 U.S. at 244, 89 S.Ct. at 1713.

In short, neither McCarthy nor Boykin requires that a defendant be specifically advised of all of his constitutional rights by the trial court if his plea is to be valid. Nor do we think that due process or Rule 11 impose such a requirement. A criminal defendant possesses a great number of rights which he is foreclosed from asserting by the entry of a guilty plea, see United States v. Frontero, 5 Cir., 1971, 452 F.2d 406, 415. Requiring a specific waiver of every one would only sow the seeds for later collateral attack. See Boykin v. Alabama, supra, 395 U.S. at 244, 89 S.Ct. 1709.

The three rights emphasized by the Supreme Court in the cited cases -the right against self-incrimination, the right to a jury trial, and the right to confront witnesses-do provide guidance for district courts in determining whether a guilty plea is knowingly and intelligently entered. Among other things,¹ the court must ascertain that the defendant knows that he is not required to plead guilty, and that if he chooses not to do so the government will be put to its proof before a jury, at which time he may cross-examine witnesses and put on a defense. While this inquiry must be fully developed on the record, it need not assume any predetermined, ritualistic form. See McCarthy v. United States, supra, 394 U.S. 465-466 n. 20, 89 S.Ct. 1166; United States v. Tabory, 4 Cir., 1972, 462 F.2d 352, 353; United States v. Frontero, supra, 452 F.2d at 413-414; United States v. Berlin, 7 Cir., 1971, 437 F.2d 901.

A plea of guilty is the most complete form of self-incrimination. By the plea, the defendant admits that he is guilty of the offense charged. Indeed, Rule 11 requires that the court be "satisfied that there is a factual basis for the plea." It is therefore essential that the defendant know that he has a right not to plead guilty, and that the record show that he knows it. Here, the record makes it perfectly clear that Sherman knew that he had that right. We see no need to go farther and attach to such knowledge the talismanic phrase "right not to incriminate himself." He certainly knew that he had a right not to plead guilty, and that by pleading guilty he was incriminating himself.

The district court had previously entered a plea of not guilty on Sherman's behalf, and he petitioned to withdraw that plea after extensive consultations with his counsel, with whom he was "entirely" satisfied. In his written and signed petition, Sherman recited:

"(5) I understand that I may plead 'Not Guilty' to any offense charged against me. If I choose to plead 'Not Guilty' the Constitution guarantees me (a) the right to a speedy and public trial by jury, (b) the right to see and hear all witnesses called to testify against me, (c) the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor, and (d) the right to have the assistance of a lawyer at all stages of the proceedings.

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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.