UNITEDSTATES DISTRICT COURT

NORTHERNDISTRICT OF TEXAS

DALLASDIVISION

UNITEDSTATES OF AMERICA, )      CRIMINAL ACTIONNO.

                                           )

              Plaintiff,                )      3:03-CR-145-H

                                           )

v.                                         )

                                           )

RICHARDYYY, )

                                           )

              Defendant.                    )

)

ADDENDUMTO MOTION TO WITHDRAW PLEA

         Defendant,Richard YYY, previously moved to withdraw his guilty plea in the abovereferenced action on two grounds. First, Mr. YYY argued that, under Fed. R. Crim. P. 11(d) and thedecision by the United States Court of Appeals for the Fifth Circuit in UnitedStates v. Carr, 740 F.2d 339 (5th Cir.1984), cert. denied, 471 U.S.1004 (1985), he presented “fair and just reason” for allowing thewithdrawal. Second, he argued thatthe plea agreement in this case was illusory and, thus, void for lack ofconsideration. Since thefiling of that motion, Mr. YYY has obtained the transcript of his rearraignmentand, 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

         Thefollowing cases are instructive:

            •  In United States v. Cook, 526 F.2d 708 (5th Cir. 1976), the United StatesCourt of Appeals for the Fifth Circuit held that Fed. R. Crim. P. 11 requiresthe district judge to personallyadmonish the defendant. “[W]e readthe language of Rule 11 requiring the court to personally address the defendantto mean exactly what it says.” Id. at 710. Indeed, the Fifth Circuit rejected the “government's argument that thetrial judge does not have to make the required admonitions as long as theseinquiries are made by someone in the judge's presence. The language of Rule 11commands the court to personally address the defendant.” Id. at 709. Seealso, United States v. Hart, 566 F.2d 977 (5th Cir. 1978) (same); Fed. R. Crim.P. 11(b)(1) (“T]he court must address the defendant personally in open Court.”)

•  In United States v. Monroe, 463 F.2d 1032, 1035 (5th Cir. 1972), the FifthCircuit observed, “a single response by the defendant that he ‘understands’ thecharge ‘gives no assurance or basis for believing he does.’”

            •  In United States v. Corbett, 742 F.2d 173 (5th Cir. 1984) the following plea colloquy had takenplace:

THECOURT: All right, you heard what the Government said, that you want to changeyour plea and plead to an information; is that correct?

CORBETT:Yes, sir.

** * * * *

 THE COURT: All right, Mr. Corbett, howdo you plead to Count 1 of the information?

CORBETT:Guilty, sir.

 THE COURT: How do you plead to Count 2?

CORBETT:Guilty, sir.

** * * *

THECOURT: Do you fully understand the charges against you?

CORBETT:Yes, sir.

** * * *

THECOURT: Have you had sufficient time to discuss with your attorney any possible defenseyou may have to the charge?

CORBETT:Yes, sir.

** * * *

THECOURT (to Counsel for Corbett): Counsel, are you satisfied the Defendant isentering the guilty plea voluntarily with an understanding of the nature of thecharges, 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 (“Our decisions also establish that, at a bare minimum, thecharging instrument must be read to the accused or he must otherwise befurnished the same information that would be imparted to him if he heard thecharging instrument read aloud. A naked inquiry into whether the accusedunderstands the charges against him, unaccompanied by a reading or explanationof those charges, will not suffice.”).

            •  In United States v. Tucker,425 F.2d 624, 629 (5th Cir. 1970), the Court wrote: “Statements and admissionsby a defendant's counsel do not satisfy Rule 11's requirement that the courtpersonally address the defendant to ascertain that defendant understands thenature of the charge. Nor do generalized admissions or statements by adefendant's counsel meet the requirement that the court be satisfied that thereis a factual basis for the plea from the defendant's own admission that heengaged in conduct which constitutes the charged offense. Such generalizedadmissions or statements are totally inconsistent with the purposes of Rule11.”

            •  In a seminal case on Fed. R. Crim. P.11, United States v. Dayton, 604 F.2d931, 938 (5th Cir. 1979), theFifth held that while the district judge need not be the “sole orator orlector” at the Rule 11 colloquy, he should “dominate” it.

II.FACTS

            Thecolloquy 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 notpersonally admonish Mr. YYY as to the rights he was giving up by pleadingguilty. In fact, neither did theprosecutor advise Mr. YYY as to the rights he was giving up by pleading guiltyother than to say that the defendant agreed to waive rights set out in the pleaagreement. See Attachment A (“Plea Tr.”) at 5-6.  In short, the plea colloquy doesn’t even contain the “single response” that Mr. YYYunderstood the charge that the Fifth Circuit found insufficient in Monroe.

            Second,while the Court inquired of Mr. YYY’s counsel as to whether they discussed hiswaiver of appellate rights, it neveradmonished Mr. YYY regarding this waiver nor did it ascertain that Mr. YYYunderstood the waiver. See Fed. R. Crim. P. 11(b)(1)(N).

            Third,contrary to Corbett, the indictment wasnot read in this case nor was the charge explained. Indeed, all the record in this case contains is the type of“naked inquiry into whether the accused understands the charges against him...” that the Fifth Circuit has previouslyfound 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 toensure the plea was voluntary much less “address the defendant personally inopen court” in order to make this determination.

            Finally,a review of the transcript certainly makes clear that the Court did not “dominate” 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 whollyfailed to satisfy Fed. R. Crim. P. 11 and the interpretation of that rule bythe United States Court of Appeals for the Fifth Circuit.

                                                             Respectfullysubmitted,

                                                             F.Clinton Broden

                                                             Tx.Bar 24001495

                                                             Broden& Mickelsen

                                                             2707Hibernia

                                                             Dallas,Texas 75204

                                                             214-720-9552

                                                             214-720-9594(facsimile)

CERTIFICATEOF SERVICE

            I,F. Clinton Broden, certify that on June 8 2005, I caused the foregoing documentto be served by hand delivery on:

WilliamC. McMurrey

UnitedStates Attorney’s Office

1100Commerce Street

Dallas,Texas 75242

              _________________________________

                                                      F.Clinton Broden