UNITED
STATES DISTRICT COURT
NORTHERN
DISTRICT OF TEXAS
DALLAS
DIVISION
UNITED
STATES OF AMERICA, ) CRIMINAL ACTION
NO.
)
Plaintiff, ) 3:03-CR-145-H
)
v. )
)
RICHARD
YYY, )
)
Defendant. )
)
ADDENDUM
TO MOTION TO WITHDRAW PLEA
Defendant,
Richard YYY, previously moved to withdraw his guilty plea in the above
referenced action on two grounds.
First, Mr. YYY argued that, under Fed. R. Crim. P. 11(d) and the
decision by the United States Court of Appeals for the Fifth Circuit in United
States v. Carr, 740 F.2d 339 (5th Cir.
1984), cert. denied, 471 U.S.
1004 (1985), he presented Òfair and just reasonÓ for allowing the
withdrawal. Second, he argued that
the plea agreement in this case was illusory and, thus, void for lack of
consideration. Since the
filing of that motion, Mr. YYY has obtained the transcript of his rearraignment
and, it appears that his rearraignment violated Fed. R. Crim. P. 11 and,
therefore, he moves to withdraw his plea on this independent basis as well.
I.
LAW
The
following cases are instructive:
¥ In United States v. Cook, 526 F.2d 708 (5th Cir. 1976), the United States
Court of Appeals for the Fifth Circuit held that Fed. R. Crim. P. 11 requires
the district judge to personally
admonish the defendant. Ò[W]e read
the language of Rule 11 requiring the court to personally address the defendant
to mean exactly what it says.Ó Id. at 710.
Indeed, the Fifth Circuit rejected the Ògovernment's argument that the
trial judge does not have to make the required admonitions as long as these
inquiries are made by someone in the judge's presence. The language of Rule 11
commands the court to personally address the defendant.Ó Id. at 709. See
also, United States v. Hart, 566 F.2d 977 (5th Cir. 1978) (same); Fed. R. Crim.
P. 11(b)(1) (ÒT]he court must address the defendant personally in open Court.Ó)
¥ In United States v. Monroe, 463 F.2d 1032, 1035 (5th Cir. 1972), the Fifth
Circuit observed, Òa single response by the defendant that he ÔunderstandsÕ the
charge Ôgives no assurance or basis for believing he does.ÕÓ
¥ In United States v. Corbett, 742 F.2d 173 (5th Cir. 1984) the following plea colloquy had taken
place:
THE
COURT: All right, you heard what the Government said, that you want to change
your plea and plead to an information; is that correct?
CORBETT:
Yes, sir.
*
* * * * *
THE COURT: All right, Mr. Corbett, how
do you plead to Count 1 of the information?
CORBETT:
Guilty, sir.
THE COURT: How do you plead to Count 2?
CORBETT:
Guilty, sir.
*
* * * *
THE
COURT: Do you fully understand the charges against you?
CORBETT:
Yes, sir.
*
* * * *
THE
COURT: Have you had sufficient time to discuss with your attorney any possible defense
you may have to the charge?
CORBETT:
Yes, sir.
*
* * * *
THE
COURT (to Counsel for Corbett): Counsel, are you satisfied the Defendant is
entering the guilty plea voluntarily with an understanding of the nature of the
charges, as well as the consequences of his plea?
MR.
McFARLAND (Counsel for Corbett): Yes, your honor.
Id. at 179.
The Fifth Circuit held that Fed. R. 11 was not complied with. Id. at 180 (ÒOur decisions also establish that, at a bare minimum, the
charging instrument must be read to the accused or he must otherwise be
furnished the same information that would be imparted to him if he heard the
charging instrument read aloud. A naked inquiry into whether the accused
understands the charges against him, unaccompanied by a reading or explanation
of those charges, will not suffice.Ó).
¥ In United States v. Tucker,
425 F.2d 624, 629 (5th Cir. 1970), the Court wrote: ÒStatements and admissions
by a defendant's counsel do not satisfy Rule 11's requirement that the court
personally address the defendant to ascertain that defendant understands the
nature of the charge. Nor do generalized admissions or statements by a
defendant's counsel meet the requirement that the court be satisfied that there
is a factual basis for the plea from the defendant's own admission that he
engaged in conduct which constitutes the charged offense. Such generalized
admissions or statements are totally inconsistent with the purposes of Rule
11.Ó
¥ In a seminal case on Fed. R. Crim. P.
11, United States v. Dayton, 604 F.2d
931, 938 (5th Cir. 1979), the
Fifth held that while the district judge need not be the Òsole orator or
lectorÓ at the Rule 11 colloquy, he should ÒdominateÓ it.
II.
FACTS
The
colloquy in the instant case is clearly insufficient under Fifth Circuit law.
First,
the Court, contrary to Cook and Fed. R.
Crim. P. 11(b)(1), did not
personally admonish Mr. YYY as to the rights he was giving up by pleading
guilty. In fact, neither did the
prosecutor advise Mr. YYY as to the rights he was giving up by pleading guilty
other than to say that the defendant agreed to waive rights set out in the plea
agreement. See Attachment A (ÒPlea Tr.Ó) at 5-6. In short, the plea colloquy doesnÕt even contain the Òsingle responseÓ that Mr. YYY
understood the charge that the Fifth Circuit found insufficient in Monroe.
Second,
while the Court inquired of Mr. YYYÕs counsel as to whether they discussed his
waiver of appellate rights, it never
admonished Mr. YYY regarding this waiver nor did it ascertain that Mr. YYY
understood the waiver. See Fed. R. Crim. P. 11(b)(1)(N).
Third,
contrary to Corbett, the indictment was
not read in this case nor was the charge explained. Indeed, all the record in this case contains is the type of
Ònaked inquiry into whether the accused understands the charges against him...Ó that the Fifth Circuit has previously
found to be plainly insufficient. See Attachment A at 3.
Fourth,
contrary to Fed. R. Crim P. 11(b)(2), the Court took absolutely no steps to
ensure the plea was voluntary much less Òaddress the defendant personally in
open courtÓ in order to make this determination.
Finally,
a review of the transcript certainly makes clear that the Court did not ÒdominateÓ the plea colloquy in this case.
III.
CONCLUSION
In addition to the grounds previously raised, Mr.
YYY should be allowed to withdraw his plea in that the plea colloquy wholly
failed to satisfy Fed. R. Crim. P. 11 and the interpretation of that rule by
the United States Court of Appeals for the Fifth Circuit.
Respectfully
submitted,
F.
Clinton Broden
Tx.
Bar 24001495
Broden
& Mickelsen
2707
Hibernia
Dallas,
Texas 75204
214-720-9552
214-720-9594
(facsimile)
CERTIFICATE
OF SERVICE
I,
F. Clinton Broden, certify that on June 8 2005, I caused the foregoing document
to be served by hand delivery on:
William
C. McMurrey
United
States AttorneyÕs Office
1100
Commerce Street
Dallas,
Texas 75242
_________________________________
F.
Clinton Broden