USA v VONN, 9850385v2
U.S. 9th Circuit Court of Appeals
USA v VONN
9850385v2
UNITED STATES OF AMERICA, No. 98-50385
Plaintiff-Appellee,
D.C. No.
v. CR-97-00233-JMI
ALPHONSO VONN, ORDER AND
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
James M. Ideman, District Judge, Presiding
Argued and Submitted
September 16, 1999--Pasadena, California
Filed September 14, 2000
Before: James R. Browning, Alex Kozinski and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Kozinski
_________________________________________________________________
COUNSEL
Elaine Lu, Assistant United States Attorney, Los Angeles,
California argued the cause for Plaintiff-Appellee. With her
on the briefs were Alejandro N. Mayorkas, United States
Attorney and George S. Cardona, Assistant United States
Attorney.
Emily Uhrig, Deputy Federal Public Defender, Los Angeles,
California, argued the cause for Defendant-Appellant. With
her on the briefs was Maria E. Stratton, Federal Public
Defender.
_________________________________________________________________
ORDER
The opinion filed April 20, 2000, and reported at 211 F.3d
1109, is withdrawn and superseded by the attached opinion.
The petition for rehearing is otherwise denied.
_________________________________________________________________
OPINION
KOZINSKI, Circuit Judge:
We consider whether we must set aside a guilty plea
because the district court failed to advise defendant of his
right to be represented by counsel at trial.
I
On February 27, 1997, three men entered the Farmers and
Merchants Bank in Long Beach, California, and attempted a
daring, if ill-conceived, daytime robbery. After announcing
"[t]his is a holdup," two of the robbers drew guns and
instructed everyone to get on the floor. The third man, Vonn,
leapt over the counter with a bag for the tellers to fill with
money. The three men then fled with a grand total of $209,
proving yet again that crime doesn't pay. Adding injury to
insult, the three were arrested a short time later and police
recovered the entire booty from Vonn's sock.
Vonn was initially charged with armed bank robbery in
violation of 18 U.S.C. S 2113(a) and (d) and chose to plead
guilty. As required by Rule 11(c) of the Federal Rules of
Criminal Procedure, the court informed Vonn of the rights he
was relinquishing: the right against self-incrimination, the
right to trial by jury, the right to confront witnesses and the
right to present evidence in his own behalf. Absent from the
litany of Rule 11(c) rights ticked off by the district court was
the right to counsel at trial. Cf. Fed. R. Crim P. 11(c)(3).
The government then filed a superseding indictment charg-
ing Vonn with conspiracy to commit bank robbery in viola-
tion of 18 U.S.C. S 371 and carrying a firearm during a crime
of violence in violation of 18 U.S.C. S 924(c). Vonn pleaded
guilty to these additional charges and the court again
instructed him as to the rights he was giving up. Again, the
district judge failed to inform Vonn of his right to an attorney
at trial as required by Rule 11(c)(3). This time the government
attempted to point out the court's error:
Ms. Lu (for the government): Your Honor?
The Court: What?
Ms. Lu: If we could--I don't
know remember hear-
ing the Court inform
the defendant of his
right to assistance of
counsel.
The Court: I didn't because [he]
is represented by
counsel.
Reporter's Transcript of Proceedings, Change of Plea at 10-
11.
Vonn subsequently moved to withdraw his guilty plea on
the gun charge, arguing that he was not guilty and his plea
was the result of a mistake. The court denied Vonn's motion.
In the Presentence Report, Vonn's probation officer recom-
mended a prison term at the low end of the spectrum given
"the minimal loss and [Vonn's] lack of criminal history."
Vonn was sentenced to a total of 97 months. On appeal, he
seeks to have all of his convictions set aside due to the district
judge's failure to advise him of his right to counsel at trial.1
II
[1] According to Rule 11, prior to accepting a guilty plea,
"the court must address the defendant personally in open court
and inform the defendant" of his rights. Fed. R. Crim. P. 11(c)
(emphasis added). The Rule then goes on to list the specific
rights the court must explain to the defendant. If the district
court fails to properly advise a defendant of his rights under
Rule 11(c), we typically allow him to withdraw his guilty
plea. See United States v. Odedo, 154 F.3d 937, 939 (9th Cir.
1998) (holding that where "the district court violated the
requirements of Rule 11" it was "necessary to remand so that
[defendant] has the opportunity to enter a new plea").
The government has all but conceded that the requirements
of Rule 11 were not satisfied here. See Appellee's Brief at 1
(posing the issue presented as "[w]hether . .. the district
court's failure explicitly to advise (sic) defendant of his right
to the continued assistance of counsel at trial affected defen-
dant's substantial rights"). Nevertheless, the government
offers two arguments as to why Vonn ought not be allowed
to withdraw his guilty plea. The first is that he is precluded
from raising his Rule 11 claim with respect to the firearms
charge because he failed to raise it below in his motion to
withdraw the plea. Second, the government argues that the
district court's failure to adhere strictly to the requirements of
Rule 11(c)(3) was harmless error.
A. Waiver
[2] The government correctly points out that we do not nor-
mally consider issues raised for the first time on appeal. See
United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir. 1987)
(refusing to "consider the merits" because defendant "failed
to raise this claim below in his motion to withdraw his plea
. . . [and] fail[ed] to satisfy any . . . exceptions"). However,
we have held that this does not apply to Rule 11 errors.
Instead, Rule 11 has its own review mechanism, which super-
sedes the normal waiver rule. See Odedo, 154 F.3d at 940,
("[T]he Rule 11(h) `harmless error' standard applies to all
Rule 11 errors, regardless of whether they were ever raised
before the district court.").2 Thus, the case turns on our resolu-
tion of the government's second argument, that the district
court's error was harmless.
B. Harmless Error
[3] Under Rule 11(h), we must disregard variances from the
colloquy that do not "affect substantial rights. " Fed. R. Crim.
P. 11(h). We have interpreted this to mean that we must
inquire whether the defendant was aware of his rights despite
the judge's failure to advise him. See United States v. Graibe,
946 F.2d 1428, 1435 (9th Cir. 1991) (requiring that govern-
ment make "an affirmative showing on the record that the
defendant was actually aware of the advisement" for the error
to be harmless).
In determining what the defendant knew, "we are limited
to what the record of the plea proceeding contains. " Id. at
1434. The requirements of Rule 11 are so easy to follow that
we will not go beyond the plea proceeding in considering
whether the defendant was aware of his rights. See Odedo,
154 F.3d at 940 ("Our review is limited to the record of the
plea proceeding."); United States v. Gastelum, 16 F.3d 996,
999 (9th Cir. 1994) ("This requirement ensures that a defen-
dant is fully aware of his rights when his plea is entered--that
he is aware of them at the time they are being waived.");
United States v. Kennell, 15 F.3d 134, 138 (9th Cir. 1994)
("In making the critical inquiry into what Kennell actually
knew at the time he entered his plea, we are limited to the
contents of the record of the plea proceeding."). 3 Thus, we
cannot consider the government's claim that Vonn learned of
his right to counsel during earlier court proceedings.
[4] The government suggests that the Assistant United
States Attorney's reminder to the district court during the plea
proceeding alerted the defendant to his right to assistance of
counsel at trial. See p. 11987 supra. We sympathize with the
government's position and recognize its good faith effort to
correct the district court's error. However, the transcript of the
government's attempted correction does not yield the
unequivocal evidence we would need before we could deem
Vonn aware of his continuing right to counsel at trial.
The prosecutor's statement was elliptical at best:"If we
could--I don't know remember hearing the court inform the
defendant of his right to assistance of counsel. " Reporter's
Transcript of Proceedings, Change of Plea at 10-11. For those
familiar with the legal system, the import of the lawyer's
statement is apparent: She was reminding the district court of
defendant's right to representation of counsel at trial. How-
ever, for an inexperienced criminal defendant, the statement
could be baffling, as it does not mention the availability of
counsel at trial. And the district court's response to the gov-
ernment's reminder, "I didn't because [he] is represented by
counsel," id. at 11, might confuse even an experienced crimi-
nal defendant. We cannot assume that Vonn understood the
point of the government's objection.
The government also relies on cases from other circuits
which appear to hold that a defendant who is represented by
counsel at his plea hearing, is presumed to be aware of his
right to counsel at trial. See, e.g., United States v. Gomez-
Cuevas, 917 F.2d 1521, 1526 (10th Cir. 1990) ("[T]here was
no prejudice in the court's failure to advise Gomez he had a
right to counsel because Gomez already was represented by
counsel."); United States v. Lovett , 844 F.2d 487, 491 (7th
Cir. 1988) ("Lovett was represented by an attorney. There-
fore, the district court was not required to inform Lovett that
even if he could not afford one, an attorney could be
appointed to assist him at trial."); United States v. Caston,
615 F.2d 1111, 1113-15 (5th Cir. 1980) (harmless error where
court failed to explicitly advise defendant of right to assis-
tance of counsel at trial); United States v. Saft, 558 F.2d 1073,
1080 (2d Cir. 1977) ("[I]t would defy reality to suppose that
Saft had any doubts" about his appointed counsel's continuing
to represent him at trial, because unlike "a defendant with
retained counsel who might worry that his money might run
out . . . . there was no suggestion that [Saft's ] counsel would
abandon him if he went to trial.").
[5] While language in these cases supports the govern-
ment's position, most rely upon evidence outside of the plea
proceeding.4 This our precedent firmly precludes. See pp.
11989-90 supra. Gomez-Cuevas is the only case cited by the
been in the criminal justice system before and his experience supported
the inference that he was familiar with his right to counsel at trial. See
Caston, 615 F.2d at 1115 ("[Caston] was an experienced defendant . . . .").
Finally, in Saft, the court relied on evidence that the defendant was actu-
ally aware that his lawyer would continue to represent him at trial. See
Saft, 558 F.2d at 1080 ("Saft's affidavit in support of his motion to with-
draw his guilty plea stated that prior to the opening of serious plea discus-
sions in September 1976, `my attorney and I had looked forward to trial
as the ultimate forum for proving that I am not guilty of the crimes
charged.' ").
government where the fact that a defendant was represented
at the plea hearing was deemed sufficient to support the infer-
ence that he knew of his right to counsel at trial. See 917 F.2d
at 1526. However, it is also out of step with our case law,
which requires "an affirmative showing on the record" that
defendant was aware of his rights. See Graibe , 946 F.2d at
1435. Moreover, it is inconsistent with the structure of Rule
11. Subsection (c)(3) of the rule specifies the rights of which
defendant must be advised even if he is represented by coun-
sel, and this includes the right to counsel at trial. The drafters
of the rule, thus, did not consider the admonition redundant
simply because defendant is represented by counsel at the
plea hearing.5 The fact that a criminal defendant has been
assigned a lawyer for a plea hearing does not, standing alone,
absolve the district judge of his responsibility to advise the
defendant of his continuing right to an attorney at trial under
Rule 11(c)(3).
Conclusion
Because the district court erred in advising Vonn of his
rights under Rule 11(c)(3), and that error was not harmless,
we vacate Vonn's sentence and guilty pleas and remand for
further proceedings consistent with this opinion.
VACATED and REMANDED.
_______________________________________________________________
FOOTNOTES
1 Vonn also claims the district court erred in failing to warn him that
statements he made in the change of plea hearing could be used against
him in a future perjury prosecution. Because we find the failure to advise
him of the right to counsel to be dispositive, we need not address this
claim.
2 We note, moreover, that accepting the government's waiver argument
would create a curious anomaly: We would be precluded from considering
the failure to caution defendant of his right to counsel on the gun charge,
as to which he made a motion to withdraw the plea (but failed to raise the
rule 11 argument), but we would not be precluded from considering the
issue with respect to the remaining counts, as to which defendant made no
motion to withdraw the plea.
3 United States v. Dawson , 193 F.3d 1107 (9th Cir. 1999), distinguished
Gastelum, 16 F.3d 996, on the grounds that the court might look beyond
the plea proceeding on habeas review, even though it would not on direct
appeal. See Dawson, 193 F.3d at 1110. While we are not convinced the
distinction makes sense, our case falls on the Gastelum side of the line.
4 In Lovett, the court relied upon the defendant's prior dealings with the
criminal justice system as suggesting his awareness of his right to counsel.
See Lovett, 844 F.2d at 492 ("[T]here is no suggestion in the record that
5 By contrast, subsection (c)(2) of the rule lists certain advisements that
the court may omit if the defendant is already represented. See Fed. R.
Crim. P. 11(c)(2).