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UNITED STATES OF AMERICA, No. 98-50385 Plaintiff-Appellee, D.C. No. v. CR-97-00233-JMI ALPHONSO VONN, OPINION Defendant-Appellant.
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 April 20, 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 the 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 the defendant-appellant. With
her on the briefs was Maria E. Stratton, Federal Public
Defender.
_________________________________________________________________
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 hearing the Court
inform the defendant of his
right to assistance of counsel.
The Court: I didn't because [he] is repre-
sented 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
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
[2] 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, e.g., United States v.
Dawson, 193 F.3d 1107, 1110 (9th Cir. 1999) (approving dis-
trict court's examination of defendant's "recent experience in
other criminal cases, which suggested that he knew the rights
he waived by pleading guilty"); United States v. Graibe, 946
F.2d 1428, 1435 (9th Cir. 1991) (requiring that government
make "an affirmative showing on the record that the defen-
dant was actually aware of the advisement" for the error to be
harmless).
What evidence is there that Vonn was aware of his right to
counsel at trial, even though the district court neglected to
inform him of it? The government points to the initial status
conference where Vonn declared his intention to go to trial on
the gun charge. According to the government, the discussion
during the conference, set out in the margin,3 indicates that all
parties knew that Vonn would continue to be represented by
Mr. Li, his appointed lawyer, at trial. Furthermore, according
to the government, the district court informed both lawyers of
the trial date, which should have made clear to Vonn that Mr.
Li was to appear on his behalf at that time.4
[3] Nothing in the transcript indicates that Vonn was aware
of his continued right to counsel if he chose to go to trial. The
district court did not mention that right, nor did Vonn say any-
thing, much less anything that clearly suggests he was aware
of this right. The brief conference between Vonn and his law-
yer, as the district court and government counsel watched,
was off the record and we have no clue as to what was said
between them. This hardly amounts to "an affirmative show-
ing on the record that the defendant was actually aware of the
advisement." Graibe, 946 F.2d at 1435.
[4] The scheduling colloquy presents a closer question.
Given some familiarity with how court proceedings are con-
ducted, one would infer that when the court announces a
future court appearance in the case, counsel are expected to
be present unless specifically excused. But Vonn had no prior
criminal record, nor do we have any indication that he was
familiar with courtroom proceedings. We therefore cannot
assume that he was aware of this convention. The district
judge certainly did not say anything like, "I expect both coun-
sel to be here on that date," nor would we expect him to do
so, as counsel would know to be present without any such
admonition. But the client is presumed not to know all the
things counsel knows, which is why we have a Rule 11 collo-
quy. Based on this record, we cannot say with confidence that
Vonn knew that he was entitled to be represented by counsel
at trial despite the court's failure to advise him of this fact.
The government suggests that the Assistant United States
Attorney's reminder to the district court alerted the defendant
to his right to assistance of counsel at trial. See p. 4306-07
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 an even more experienced
criminal defendant. We cannot assume defendant here under-
stood the government's attempted correction.
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.").
While these cases use language that supports the govern-
ment's position, most did not rely solely on the fact that
defendant was represented at the plea hearing. In Lovett, there
was other evidence that the defendant was aware of his right
to counsel, including prior dealings with the criminal justice
system. See Lovett, 844 F.2d at 492 ("[T]here is no suggestion
in the record that Lovett did not know about his right to coun-
sel at trial . . . through his own extensive experience as a crim-
inal defendant."). Caston had 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, there was evidence that the defendant
was actually aware that his lawyer would continue to repre-
sent him at trial. See Saft, 558 F.2d at 1080 ("Saft's affidavit
in support of his motion to withdraw his guilty plea stated that
prior to the opening of serious plea discussions 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.' ").
[5] In Vonn's case, nothing other than the fact that he was
represented by counsel at the plea hearing supports the infer-
ence that he was aware of his right to counsel at trial. Vonn
has no criminal record and he made no statement that clearly
disclosed his understanding that Mr. Li, his plea hearing law-
yer, would continue to represent him if he chose to go to trial.
[6] Gomez-Cuevas is the only case cited by the government
where the fact that a defendant was represented at the plea
hearing was deemed sufficient to support the inference that he
knew of his right to counsel at trial. However, we consider it
out of step with our case law which requires "an affirmative
showing on the record" that defendant was aware of his
rights. United States v. Graibe, 946 F.2d 1428, 1435 (9th Cir.
1991). 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 The Court: Oh. Is that your understand (sic) Counsel? Do you
and your client understand that the Government
wants to pursue the gun allegation apparently?
Mr. Li: Yes, I do, Your Honor --
The Court: The Government's position is that Mr. Vonn per-
sonally used a firearm, right?
Ms. Lu: Yes.
The Court: And he doesn't want to admit that. So he would be
admitting the armed bank robbery and admitting
that somebody in the group used a gun but not nec-
essarily it was he, right?
Mr. Li: Yes, Your Honor. Can I have a moment, Your
Honor?
The Court: Yes.
(Pause in the proceedings)
Mr. Li: We will proceed, Your Honor.
The Court: Is there really any point in taking this plea? If we're
going to go through a whole, the jury is going to
have to hear the whole case anyway then to figure
out whether or not he used a gun.
Mr. Li: I understand, Your Honor. But it's my client's
desire to plead guilty to Count One.
Reporter's Transcript of Proceedings, Status Conference, Monday, May
12, 1997 at 3-4.
4 The Court: Let's see. Jury trial is set for June 10th. We can just
leave it on the calendar for June 10th, then, for trial.
Mr. Li: Yes, your Honor.
Ms. Lu: Very well.
The Court: That will be the order then. The trial will remain as
set for June 10th, on Count Two, and the sentencing
date will remain as set by the Court. We'll see you
back here on June 10th.
Reporter's Transcript of Proceedings, Status Conference, May 12, 1997 at
12-13.
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).
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