OCTOBER TERM, 2001
Syllabus
UNITED STATES
v. VONN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 00-973. Argued November 6, 200l-Decided March 4, 2002
Federal Rule of Criminal Procedure 11 lays out steps that a
judge must take to ensure that a guilty plea is knowing and
voluntary. Rule l1(h)'s requirement that any variance from those
procedures "which does not affect substantial rights shall be
disregarded" is similar to the general "harmless-error" rule in
Rule 52(a). However, Rule l1(h) does not include a plain-error
provision comparable to Rule 52(b), which provides that a defendant
who fails to object to trial error may nonetheless have a
conviction reversed by showing among other things that plain error
affected his substantial rights. After respondent Vonn was charged
with federal bank robbery and firearm crimes, the Magistrate Judge
twice advised him of his constitutional rights, including the right
to be represented by counsel at every stage of the proceedings;
Vonn signed a statement saying that he had read and understood his
rights; and he answered yes to the court's questions whether he had
understood the court's explanation of his rights and whether he had
read and signed the statement. When Vonn later pleaded guilty to
robbery, the court advised him of the constitutional rights he was
relinquishing, but skipped the advice required by Rule (11)(c)(3)
that he would have the right to assistance of counsel at trial.
Subsequently, Vonn pleaded guilty to the firearm charge and to a
later-charged conspiracy count. Again, the court advised him of the
rights he was waiving, but did not mention the right to counsel.
Eight months later, Vonn moved to withdraw his guilty plea on the
firearm charge but did not cite Rule 11 error. The court denied the
motion and sentenced him. On appeal, he sought to set aside all of
his convictions, for the first time raising Rule 11. The Ninth
Circuit agreed that there had been error and held that Vonn's
failure to object before the District Court to the Rule 11 omission
was of no import because Rule l1(h) subjects all Rule 11 violations
to harmless-error review. Declining to go beyond the plea
proceeding in considering whether Vonn was aware of his rights, the
court held that the Government had not met its burden, under
harmless-error review, of showing no effect on substantial rights,
and vacated the convictions.
Held:
1. A defendant who lets Rule 11 error pass without objection in
the trial court must satisfy Rule 52(b)'s plain-error rule.
Pp.62-74.
56
Syllabus
(a) Relying on the canon that expressing one item of a commonly
associated group or series excludes another left unmentioned, Vonn
claims that Rule l1(h)'s specification of harmless-error review
shows an intent to exclude the plain-error standard with which
harmless error is paired in Rule 52. However, this canon is only a
guide, whose fallibility can be shown by contrary indications that
adopting a particular rule or statute was probably not meant to
signal any exclusion of its common relatives. Here, the harmless-
and plain-error alternatives are associated together in Rule 52,
having apparently equal dignity with Rule l1(h), and applying by
its terms to error in the application of any other Rule of Criminal
Procedure. To hold that Rule l1(h)'s terms imply that the latter
half of Rule 52 has no application to Rule 11 errors would amount
to finding a partial repeal of Rule 52(b) by implication, a result
sufficiently disfavored,
Ruckelshaus v.
Monsanto Co.,
467 U. S. 986,
1017, as to require strong support. Support, however, is not
readily found, for Vonn has merely selected one possible
interpretation of the supposedly intentional omission of a Rule 52
(b) counterpart while logic would equally allow a reading that,
without a plain-error rule, a silent defendant has no right of
review on direct appeal. Pp. 63-66.
(b) Vonn attempts to find support for his reading by pointing
beyond the Rule's text to
McCarthy v.
United States,
394 U. S.
459-which was decided when Rule 11 was relatively primitive-and
the developments in that case's wake culminating in Rule l1(h)'s
enactment. One clearly expressed Rule l1(h) objective was to end
the practice ofreversing automatically for any Rule 11 error, a
practice stemming from reading
McCarthy expansively to
require that Rule 52(a)'s harmless-error provision could not be
applied in Rule 11 cases. However,
McCarthy had nothing to
do with the choice between harmless-error and plainerror review.
Nor is there any persuasive reason to think that when the Advisory
Committee and Congress considered Rule l1(h) they accepted the view
Vonn erroneously attributes to this Court in
McCarthy. The
Advisory Committee focused on the disarray, after
McCarthy,
among Courts of Appeals in treating trivial errors. The cases cited
in the Committee's Notes cannot reliably be read to suggest that
plainerror review should never apply to Rule 11 errors, when the
Notes never made such an assertion and the cases never mentioned
the plainerror/harmless-error distinction. Rather, the Committee
should be taken at its word that the harmless-error provision was
added because some courts read
McCarthy to require that Rule
52(a)'s general harmless-error provision did not apply to Rule 11
proceedings. The Committee implied nothing more than it said, and
it certainly did not implicitly repeal Rule 52(b) so far as it
might cover a Rule 11 case. Pp. 66-71.
57
(c) Vonn's position would also have a tendency to undercut the
object of Rule 32(e), which governs guilty plea withdrawal by
creating an incentive to file withdrawal motions before sentence,
not afterward. This tends to separate meritorious second thoughts
and mere sour grapes over a sentence once pronounced. But the
incentive to think and act early when Rule 11 is at stake would
prove less substantial if a defendant could be silent until direct
appeal, when the Government would always have the burden to prove
harmlessness. Pp. 72-74.
2. A reviewing court may consult the whole record when
considering the effect of any Rule 11 error on substantial rights.
The Advisory Committee intended the error's effect to be assessed
on an existing record, but it did not mean to limit that record
strictly to the plea proceeding, as the Ninth Circuit did here.
McCarthy ostensibly supports that court's position; but it
was decided before Rule l1(h) was enacted, and it was not a case
with a record on point. Here, in addition to the transcript of the
plea hearing and Rule 11 colloquy, the record shows that Vonn was
advised of his right to trial counsel during his initial appearance
and twice at his first arraignment, and that four times either he
or his counsel affirmed that he had heard or read a statement of
his rights and understood them. Because there are circumstances in
which defendants may be presumed to recall information provided to
them prior to the plea proceeding, cf.
Bousley v.
United
States, 523 U. S.
614, 618, the record of Vonn's initial appearance and
arraignments is relevant in fact and well within the Advisory
Committee's understanding of the record that should be open to
consideration. Since the transcripts of Vonn's first appearance and
arraignment were not presented to the Ninth Circuit, this Court
should not resolve their bearing on his claim before the Ninth
Circuit has done so. pp. 74-76.
224 F.3d
1152, vacated and remanded.
SOUTER, J., delivered the opinion of the Court, Part III of
which was unanimous, and Parts I and II of which were joined by
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, THOMAS, GINSBURG,
and BREYER, JJ. STEVENS, J., filed an opinion concurring in part
and dissenting in part,
post, p. 76.
Deputy Solicitor General Dreeben argued the cause for the United
States. With him on the briefs were Solicitor General Olson, Acting
Solicitor General Underwood, Acting Assistant Attorney General
Keeney, Paul R.
Q. Wolfson, and Joel M. Gershowitz.
58
Monica Knox argued the cause for respondent. With her on
the brief was
Maria E. Stratton. *
JUSTICE SOUTER delivered the opinion of the Court.
The Government avoids reversal of a criminal conviction by
showing that trial error, albeit raised by a timely objection,
affected no substantial right of the defendant and was thus
harmless. Fed. Rule Crim. Proc. 52(a). A defendant who failed to
object to trial error may nonetheless obtain reversal of a
conviction by carrying the converse burden, showing among other
things that plain error did affect his substantial rights. Fed.
Rule Crim. Proc. 52(b).
Rule l1(h) of the Federal Rules of Criminal Procedure is a
separate harmless-error rule applying only to errors committed
under Rule 11, the rule meant to ensure that a guilty plea is
knowing and voluntary, by laying out the steps a trial judge must
take before accepting such a plea. Like Rule 52(a), it provides
that a failure to comply with Rule 11 that "does not affect
substantial rights shall be disregarded." Rule l1(h) does not
include a plain-error provision comparable to Rule 52(b).
The first question here is whether a defendant who lets Rule 11
error pass without objection in the trial court must carry the
burdens of Rule 52(b) or whether even the silent defendant can put
the Government to the burden of proving the Rule 11 error
harmless.1 The second question is
*Saul M. Pilchen and
David M. Porter filed a brief
for the National Association of Criminal Defense Lawyers et al. as
amici curiae urging affirmance.
1 This question is rightly before us even though the Government
did not urge the Court of Appeals to adopt a plain-error standard.
As the Court of Appeals recognized,
224 F.3d
1152, 1155
(CA9 2000), this position was squarely barred
by Circuit precedent holding that any Rule 11 error is subject to
harmless-error review.
United States v.
Odedo,
154 F.3d
937,
940 (CA9 1998). Although the Government did not
challenge
Odedo as controlling precedent, we have previously
held that such a claim is preserved if made by the current litigant
in "the recent proceeding upon
59
whether a court reviewing Rule 11 error under either standard is
limited to examining the record of the colloquy between court and
defendant when the guilty plea was entered, or may look to the
entire record begun at the defendant's first appearance in the
matter leading to his eventual plea.
We hold that a silent defendant has the burden to satisfy the
plain-error rule and that a reviewing court may consult the whole
record when considering the effect of any error on substantial
rights.
I
On February 28, 1997, respondent Alphonso Vonn was charged with
armed bank robbery, under 18 U. S. C. §§ 2113(a) and (d), and using
and carrying a firearm during and in relation to a crime of
violence, under 18 U. S. C. § 924(c). Vonn appeared that day before
a Magistrate Judge, who advised him of his constitutional rights,
including "the right to retain and to be represented by an attorney
of [his] own choosing at each and every sta[g]e of the
proceedings." App. 15. Vonn said that he had heard and understood
his rights, and the judge appointed counsel to represent him.
On March 17, 1997, three days after being indicted, Vonn, along
with his appointed counsel, appeared in court for his arraignment.
Again, the Magistrate Judge told Vonn about his rights, including
the right to counsel at all stages of the proceedings. Vonn's
counsel gave the court a form entitled "Statement of Defendant's
Constitutional Rights," on which
which the lower courts relied for their resolution of the issue,
and [the litigant] did not concede in the current case the
correctness of that precedent."
United States v.
Williams, 504
U. S. 36, 44-45 (1992). Although there evidently was some
confusion as to the Government's precise position in
Odedo,
presumably because the Government argued there, as here, that
failure to raise a Rule 11 objection constitutes "waiver," the
Court of Appeals understood the Government to contend that
"forfeited error" is subject to plain-error review. That, coupled
with the fact that the Government did not concede below that
Odedo was correctly decided, is enough for us to take up
this question.
60
Vonn said he understood his rights, including the right to
counsel. His counsel signed a separate statement that he was
satisfied that Vonn had read and understood the statement of his
rights. The Clerk of Court then asked Vonn whether he had heard and
understood the court's explanation of his rights, and whether he
had read and signed the statement, and Vonn said yes to each
question.
On May 12, 1997, Vonn came before the court and indicated that
he would plead guilty to armed bank robbery but would go to trial
on the firearm charge. The court then addressed him and, up to a
point, followed Rule 11(c)(3) of the Federal Rules of Criminal
Procedure. The judge advised Vonn of the constitutional rights he
would relinquish by pleading guilty, but skipped the required
advice that if Vonn were tried he would have "the right to the
assistance of counsel."
Several months later, the stakes went up when the grand jury
returned a superseding indictment, charging Vonn under an
additional count of conspiracy to commit bank robbery. Although he
first pleaded not guilty to this charge as well as the firearm
count, at a hearing on September 3, 1997, V onn said he intended to
change both pleas to guilty. Again, the court advised Vonn of
rights waived by guilty pleas, but failed to mention the right to
counsel if he went to trial. This time, the prosecutor tried to
draw the court's attention to its error, saying that she did not
"remember hearing the Court inform the defendant of his right to
assistance of counsel."
Id., at 61. The court, however, may
have mistaken the remark as going to Rule 11(c)(2), and answered
simply that Vonn was represented by counsel.2
Eight months later, Vonn moved to withdraw his guilty plea on
the firearm charge. He did not, however, cite Rule 11 error but
instead based his request on his own mistake
2 Rule 11(c)(2) provides that "if the defendant is not
represented by an attorney," the court must inform the defendant
that he "has the right to be represented by an attorney at every
stage of the proceeding and, if necessary, one will be appointed to
represent [him]."
61
about facts relevant to the charge. The court denied this
motion, and on June 22, 1998, sentenced Vonn to 97 months in
prison.
On appeal, Vonn sought to set aside not only the firearm
conviction but the other two as well, for the first time making an
issue of the District Judge's failure to advise him of his right to
counsel at trial, as required by the Rule. The Court of Appeals
agreed there had been error, and held that Vonn's failure to object
before the District Court to its Rule 11 omission was of no import,
since Rule l1(h) "supersedes the normal waiver rule," and subjects
all Rule 11 violations to harmless-error review,
224 F.3d
1152, 1155
(CA9 2000) (citing
United States v.
Odedo, 154 F.3d
937 (CA9 1998)). The consequence was to put the
Government to the burden of showing no effect on substantial
rights.3 The court declined to "go beyond the plea proceeding in
considering whether the defendant was aware of his rights," and did
not accept the record of Vonn's plea colloquies as evidence that
Vonn was aware of his continuing right to counsel at trial. 224 F.
3d, at 1155. It held the Government had failed to shoulder its
burden to show the error harmless and vacated Vonn's
convictions.
We granted certiorari, 531 U. S. 1189 (2001), to resolve
conflicts among the Circuits on the legitimacy of (1) placing the
burden of plain error on a defendant appealing on the basis of Rule
11 error raised for the first time on appeal,4 and (2) looking
beyond the plea colloquy to other parts of the
3 As already noted, n. 1,
supra, the Government in this
case did not specifically argue that the plain-error rule, Rule
52(b), governs this case; that was its position in
Odedo,
154 F. 3d, at 939, on which the Court of Appeals relied for
authority here. Hence, the Court of Appeals in this case went no
further than to reject the Government's waiver argument.
4 Compare, e. g., 224 F. 3d, at 1155 (case below); United States
v. Lyons,
53 F.3d
1321, 1322, n. 1 (CADC 1995), with United States v.
GandiaMaysonet,
227 F.3d
1,5-6 (CA1 2000); United States v. Bashara,
27 F.3d
1174,1178 (CA61994); United States v. Cross,
57 F.3d
588, 590 (CA7 1995); and United States v. Quinones,
97 F.3d
473, 475 (CAll 1996).
62
official record to see whether a defendant's substantial rights
were affected by a deviation from Rule 11.5 We think the Court of
Appeals was mistaken on each issue, and vacate and remand.
II
Rule 11 of the Federal Rules of Criminal Procedure requires a
judge to address a defendant about to enter a plea of guilty, to
ensure that he understands the law of his crime in relation to the
facts of his case, as well as his rights as a criminal defendant.
The Rule has evolved over the course of 30 years from general
scheme to detailed plan, which now includes a provision for dealing
with a slip-up by the judge in applying the Rule itself. Subsection
(h) reads that "[a]ny variance from the procedures required by this
rule which does not affect substantial rights shall be
disregarded." The language comes close to tracking the text of Rule
52(a), providing generally for "harmless-error" review, that is,
consideration of error raised by a defendant's timely objection,
but subject to an opportunity on the Government's part to carry the
burden of showing that any error was harmless, as having no effect
on the defendant's substantial rights. See Fed. Rule Crim. Proc.
52(a) ("Any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded");
United
States v.
Olano, 507 U. S. 725, 734
(1993).
Rule 52(a), however, has a companion in Rule 52(b), a
"plain-error" rule covering issues not raised before the district
court in a timely way: "Plain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court." When an appellate court considers
error that qualifies as plain, the tables are turned on
demonstrating the substantiality of any effect on
5 Compare, e. g., 224 F. 3d, at 1155, with United States v.
Parkins,
25 F.3d
114, 118 (CA2 1994); United States v. Johnson,
1 F.3d
296, 302 (CA5 1993); United States v. Lovett,
844 F.2d
487, 492 (CA7 1988); United States v. Jones,
143 F.3d
1417, 1420 (CA111998); and Lyons, supra, at 1322-1323.
63
a defendant's rights: the defendant who sat silent at trial has
the burden to show that his "substantial rights" were affected.
Id., at 734-735. And because relief on plain-error review is
in the discretion of the reviewing court, a defendant has the
further burden to persuade the court that the error" 'seriously
affect[ed] the fairness, integrity or public reputation of judicial
proceedings.'"
Id., at 736 (quoting
United States v.
Atkinson, 297
U. S. 157, 160 (1936)).
The question here is whether Congress's importation of the
harmless-error standard into Rule l1(h) without its companion
plain-error rule was meant to eliminate a silent defendant's
burdens under the Rule 52(b) plain-error review, and instead give
him a right to subject the Government to the burden of
demonstrating harmlessness. If the answer is yes, a defendant loses
nothing by failing to object to obvious Rule 11 error when it
occurs. We think the answer is no.
A
Vonn's most obvious recourse is to argue from the text itself:
Rule l1(h) unequivocally provides that a trial judge's "variance"
from the letter of the Rule 11 scheme shall be disregarded if it
does not affect substantial rights, the classic shorthand
formulation of the harmless-error standard. It includes no
exception for nonobjecting defendants.
Despite this unqualified simplicity, however, Vonn does not
argue that Rule 11 error must always be reviewed on the l1(h)
standard, with its burden on the Government to show an error
harmless. Even though Rule l1(h) makes no distinction between
direct and collateral review, Vonn does not claim even that the
variant of harmless-error review applicable on collateral attack,
see
Brecht v.
Abrahamson, 507 U. S. 619, 638
(1993), would apply when evaluating Rule 11 error on habeas review.
Rather, he concedes that the adoption of l1(h) had no effect on the
stringent standard for collateral review of Rule 11 error under 28
U. S. C. § 2255 (1994 ed.), as established by our holding in
United States v.
Timmreck,
64
441 U. S. 780
(1979), that a defendant cannot overturn a guilty plea on
collateral review absent a showing that the Rule 11 proceeding was"
'inconsistent with the rudimentary demands of fair procedure'" or
constituted a "'complete miscarriage of justice,'"
id., at
783 (quoting
Hill v.
United States, 368 U. S. 424, 428
(1962)). The concession is prudent, for the Advisory Committee
Notes explaining the adoption of Rule l1(h) speak to a clear intent
to leave
Timmreck undisturbed,6 and there is no question of
Timmreck's validity in the aftermath of the 1983
amendments.
Whatever may be the significance of the text of Rule l1(h) for
our issue, then, it cannot be as simple as the face of the
provision itself. Indeed, the closest Vonn gets to a persuasive
argument that Rule 11 excuses a silent defendant from the burdens
of plain-error review is his invocation of the common interpretive
canon for dealing with a salient omission from statutory text. He
claims that the specification of harmless-error review in l1(h)
shows an intent to exclude the standard with which harmless error
is paired in Rule 52, the plain-error standard with its burdens on
silent defendants. The congressional choice to express the one
standard of review without its customary companion does not,
however, speak with any clarity in Vonn's favor.
6 In the absence of a clear legislative mandate, the Advisory
Committee Notes provide a reliable source of insight into the
meaning of a rule, especially when, as here, the rule was enacted
precisely as the Advisory Committee proposed. See
Beech Aircraft
Corp. v.
Rainey, 488 U. S. 153, 165166, n.
9 (1988) (where "Congress did not amend the Advisory Committee's
draft in any way ... the Committee's commentary is particularly
relevant in determining the meaning of the document Congress
enacted"). Although the Notes are the product of the Advisory
Committee, and not Congress, they are transmitted to Congress
before the rule is enacted into law. See Amendments to Rules of
Criminal Procedure, H. R. Doc. No. 98-55 (1983) (submitting to
Congress amendments to the Federal Rules of Criminal Procedure,
including the addition of Rule l1(h), accompanied by the report of
the Judicial Conference containing the Advisory Committee Notes to
the amendment).
65
At best, as we have said before, the canon that expressing one
item of a commonly associated group or series excludes another left
unmentioned is only a guide, whose fallibility can be shown by
contrary indications that adopting a particular rule or statute was
probably not meant to signal any exclusion of its common relatives.
See
Pauley v.
BethEnergy Mines, Inc., 501 U. S. 680, 703
(1991); cf.
Burns v.
United States, 501 U. S. 129, 136 (1991)
("An inference drawn from congressional silence certainly cannot be
credited when it is contrary to all other textual and contextual
evidence of congressional intent"). Here, the plausibility of an
expressionexclusion reading of Rule l1(h) is subject to one strike
without even considering what such a reading would mean in
practice, or examining the circumstances of adopting l1(h). For
here the harmless- and plain-error alternatives are associated
together in the formally enacted Rule 52, having apparently equal
dignity with Rule l1(h), and applying by its terms to error in the
application of any other Rule of criminal procedure. To hold that
the terms of Rule l1(h) imply that the latter half of Rule 52 has
no application to Rule 11 errors would consequently amount to
finding a partial repeal of Rule 52(b) by implication, a result
sufficiently disfavored,
Ruckelshaus v.
Monsanto Co.,
467 U. S. 986,
1017 (1984), as to require strong support.
Support, however, is not readily found. In the first place, even
if we indulge Vonn with the assumption that Congress meant to imply
something by failing to pair a plain-error provision with the
harmless-error statement in Rule l1(h), just what it would have
meant is subject to argument. Vonn thinks the implication is that
defendants who let Rule 11 error pass without objection are
relieved of the burden on silent defendants generally under the
plain-error rule, to show the error plain, prejudicial, and
disreputable to the judicial system. But, of course, this is not
the only "implication" consistent with Congress's choice to say
nothing about Rule 11 plain error. It would be equally possible, as
a mat-
66
ter of logic, to argue that if Rule 52(b) were implicitly made
inapplicable to Rule 11 errors, a defendant who failed to object to
Rule 11 errors would have no right of review on direct appeal
whatever. A defendant's right to review of error he let pass in
silence depends upon the plain-error rule; no plain-error rule, no
direct review. Vonn has, then, merely selected one possible
interpretation of the supposedly intentional omission of a Rule
52(b) counterpart, even though logic would equally allow another
one, not to Vonn's liking.
B
Recognition of the equivocal character of any claimed
implication of speaking solely in terms of harmless error forces
Vonn to look beyond the text in hope of finding confirmation for
his reading as opposed to the one less hospitable to silent
defendants. And this effort leads him to claim support in
McCarthy v.
United States, 394 U. S. 459 (1969), and
the developments in the wake of that case culminating in the
enactment of Rule l1(h). This approach, at least, gets us on the
right track, for the one clearly expressed objective of Rule l1(h)
was to end the practice, then commonly followed, of reversing
automatically for any Rule 11 error, and that practice stemmed from
an expansive reading of
McCarthy. What that case did, and
did not, hold is therefore significant.
When
McCarthy was decided, Rule 11 was relatively
primitive, requiring without much detail that the trial court
personally address a defendant proposing to plead guilty and
establish on the record that he was acting voluntarily, with an
understanding of the charge and upon a factual basis supporting
conviction.
Id., at 462.7 When McCarthy stood be-
7 Prior to its amendment in 1975, Rule 11 provided, in relevant
part:
"The court may refuse to accept a plea of guilty, and shall not
accept such plea or a plea of
nolo contendere without first
addressing the defendant personally and determining that the plea
is made voluntarily with understanding of the nature of the charge
and the consequences of the plea .... The court shall not enter a
judgment upon a plea of guilty unless it is satisfied that there is
a factual basis for the plea."
67
fore the District Court to plead guilty to tax evasion, however,
the judge's colloquy with him went no further than McCarthy's
understanding of his right to a jury trial, the particular
sentencing possibilities, and the absence of any threats or
promises. There was no discussion of the elements of the crime
charged, or the facts that might support it. Indeed, despite the
allegation that McCarthy had acted "willfully and knowingly," his
lawyer consistently argued at the sentencing hearing that his
client had merely been neglectful,
ibid. Although defense
counsel raised no objection to the trial court's deficient practice
under Rule 11, this Court reversed the conviction on direct review.
The Court rested the result solely on the trial judge's obvious
failure to conform to the Rule,
id., at 464, and emphasized
that the Rule's procedural safeguards served important
constitutional interests in guarding against inadvertent and
ignorant waivers of constitutional rights,
id., at 465.
Although the Government asked to have the case remanded for further
evidentiary hearing and an opportunity to show that McCarthy's plea
had been made knowingly and voluntarily, the Court said no and
ordered the plea and resulting conviction vacated.
Vonn does not, of course, claim that
McCarthy held that a
silent defendant had no plain-error burden, but he says that this
must have been the Court's understanding, or it would have taken
McCarthy's failure to object to the trial judge's Rule 11 failings,
combined with his failure to meet the requirements of the
plain-error rule, as a bar to relief. This reasoning is unsound,
however, for two reasons, the first being that not a word was said
in
McCarthy about the plainerror rule, or for that matter
about harmless error. The opinion said nothing about Rule 52 or
either of the rules by name. The parties' briefs said nothing. The
only serious issue was raised by the Government's request to remand
the case for a new evidentiary hearing on McCarthy's state of mind
when he entered the plea, and not even this had any-
68
thing to do with either the harmless- or plain-error rule. Under
the former, the Government's opportunity and burden is to show the
error harmless based on the entire record before the reviewing
court, see
United States v.
Hasting, 461 U. S. 499,
509, n. 7 (1983); under the plain-error rule the Government
likewise points to parts of the record to counter any ostensible
showing of prejudice the defendant may make, see
United
States v.
Young, 470 U. S. 1, 16 (1985).
Under either rule, the Government's opportunity is to persuade with
what it has, not to initiate further litigation. Yet further
litigation is what the Government wanted in
McCarthy. It
argued that if the Court did not think that the existing record
demonstrated that McCarthy's plea had been knowing and voluntary,
the Court should remand for a further hearing with new evidence
affirmatively making this showing, 394 U. S., at 469. When the
Court said no, it made no reference to harmless or plain error, but
cited the object of Rule 11 to eliminate time-wasting litigation
after the fact about how knowing and voluntary a defendant really
had been at an earlier hearing.
Id., at 469-470. And it
expressed intense skepticism that any defendant would succeed, no
matter how little he understood, once the evidence at a subsequent
hearing showed that he had desired to plead.
Id., at 469. In
sum,
McCarthy had nothing to do with the choice between
harmless-error and plain-error review; the issue was simply whether
the Government could extend the litigation for additional
evidence.
Vonn's attempt to read the
McCarthy Court's mind is
therefore purely speculative. What is worse, however, his
speculation is less plausible than the view that the Court would
probably have held that McCarthy satisfied the plainerror burdens
if that had mattered. There was no question that the trial judge
had failed to observe Rule 11, and the failing was obvious. So was
the prejudice to McCarthy. Having had no explanation from the judge
of the knowing and willful state of mind charged as of the time of
the tax
69
violation, he pleaded guilty and was later sentenced at a
hearing in which his lawyer repeatedly represented that McCarthy
had been guilty of nothing but sloppiness.8 The contradiction
between the plea and the denial of the mental state alleged bespoke
the prejudice of an unknowing plea, to which the judge's
indifference was an affront to the integrity of the judicial
system. While we need not religitate or rewrite
McCarthy at
this point, it is safe to say that the actual opinion is not even
speculative authority that the plain-error rule stops short of Rule
11 errors.
Nor is there any persuasive reason to think that when the
Advisory Committee and Congress later came to consider Rule l1(h)
they accepted the view Vonn erroneously attributes to this Court in
McCarthy. The attention of the Advisory Committee to the
problem of Rule 11 error was not drawn by
McCarthy so much
as by events that subsequently invested that case with a
significance beyond its holding. In 1975, a few years after
McCarthy came down, Congress transformed Rule 11 into a
detailed formula for testing a defendant's readiness to proceed to
enter a plea of guilty, obliging the judge to give specified advice
about the charge, the applicable criminal statute, and even
collateral law. The Court in
McCarthy had, for example, been
content to say that a defendant would need to know of the right
against self-incrimination and rights to jury trial and
confrontation before he could knowingly plead. But the 1975
revision of Rule 11 required instruction on such further matters as
cross-examination in addition to confrontation, see Fed. Rule Crim.
Proc. 11(c)(3); the right to counsel "at ... trial" even when the
defendant stood in court with a lawyer next to him (as in this
case), see
ibid.; and even the consequences of any
8 Nor did McCarthy claim that the guilty plea should be accepted
on the
Alford theory that a defendant may plead guilty while
protesting innocence when he makes a conscious choice to plead
simply to avoid the expenses or vicissitudes of trial.
North
Carolina v.
Alford, 400 U. S. 25 (1970).
70
perjury the defendant might commit at the plea hearing, see Rule
11(c)(5).
Although the details newly required in Rule 11 colloquies did
not necessarily equate to the importance of the overarching issues
of knowledge and voluntariness already addressed in the earlier
versions of the Rule, some Courts of Appeals felt bound to treat
all Rule 11 lapses as equal and to read
McCarthy as
mandating automatic reversal for anyone of them. See Advisory
Committee's Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11,
18 U. S. C. App., p. 1568 (hereinafter Advisory Committee's Notes)
(citing
United States v.
Boone, 543
F.2d 1090 (CA4 1976);
United States v.
Journet, 544 F.2d
633 (CA2 1976)). This approach imposed a cost on Rule 11
mistakes that
McCarthy neither required nor justified, and
by 1983 the practice of automatic reversal for error threatening
little prejudice to a defendant or disgrace to the legal system
prompted further revision of Rule 11. Advisory Committee's Notes
1568.
The Advisory Committee reasoned that, although a rule of
per
se reversal might have been justified at the time
McCarthy was decided, "[a]n inevitable consequence of the
1975 amendments was some increase in the risk that a trial judge,
in a particular case, might inadvertently deviate to some degree
from the procedure which a very literal reading of Rule 11 would
appear to require." Advisory Committee's Notes 1568. After the
amendments, "it became more apparent than ever that Rule 11 should
not be given such a crabbed interpretation that ceremony was
exalted over substance."
Ibid.
Vonn thinks the Advisory Committee's report also includes a
signal that it meant to dispense with a silent defendant's
plain-error burdens. He stresses that the report cited Courts of
Appeals cases of "crabbed interpretation" that had given relief to
nonobjecting defendants. By proposing only a harmless-error
amendment to correct the mistakes made
71
in these cases, he says, the Committee must have thought that
the Government's only answer to nonobjecting defendants should be
to prove error harmless, if it could. But this argument ignores the
fact that these cases were not merely instances of automatic
reversal, but were cited along with harmless-error cases as
illustrations of the "considerable disagreement" that arose after
McCarthy among Courts of Appeals in treating errors of
trivial significance. See Advisory Committee's Notes 1568. Given
the Advisory Committee's apparent focus on the disarray among
courts, the citations Vonn points to cannot reliably be read to
suggest that plainerror review should never apply to Rule 11
errors, when the Advisory Committee Notes never made such an
assertion and the reported cases cited by the Committee never
mentioned the plain-error/harmless-error distinction.
We think, rather, that the significance of Congress's choice to
adopt a harmless-error rule is best understood by taking the
Advisory Committee at its word. "It must ... be emphasized that a
harmless error provision has been added to Rule 11 because some
courts have read
McCarthy as meaning that the general
harmless error provision in Rule 52 (a) cannot be utilized with
respect to Rule 11 proceedings."
Id., at 1569. The Committee
said it was responding simply to a claim that the harmless-error
rule did not apply. Having pinpointed that problem, it gave a
pinpoint answer. If instead the Committee had taken note of claims
that "Rule 52" did not apply, or that "neither harmless-error nor
plain-error rule applied," one could infer that enacting a
harmless-error rule and nothing more was meant to rule out anything
but harmless-error treatment. But by providing for harmless-error
review in response to nothing more than the claim that
harmless-error review would itself be erroneous, the Advisory
Committee implied nothing more than it said, and it certainly did
not implicitly repeal Rule 52(b) so far as it might cover a Rule 11
case.
72
C
A further reason to doubt that Congress could have intended
Vonn's position is the tendency it would have to undercut the
object of Rule 32(e), which governs withdrawing a plea of guilty by
creating an incentive to file withdrawal motions before sentence,
not afterward. A trial judge is authorized to grant such a
presentence motion if the defendant carries the burden of showing a
"fair and just reason" for withdrawal, and a defendant who fails to
move for withdrawal before sentencing has no further recourse
except "direct appeal or ... motion under 28 U. S. C. 2255,"
subject to the rules covering those later stages. Fed. Rule Crim.
Proc. 32(e). Whatever the "fair and just" standard may require on
presentence motions,9 the Advisory Committee Notes confirm the
textual suggestion that the Rule creates a "'near-presumption'"
against granting motions filed after sentencing, Advisory
Committee's Notes on 1983 Amendment to Fed. Rule Crim. Proc. 32, 18
U. S. C. App., p. 1621 (quoting
United States v.
Barker, 514 F.2d
208, 219
(CADC 1975)). This is only good sense; in
acting as an incentive to think through a guilty plea before
sentence is imposed, the Rule tends to separate meritorious second
thoughts (say, a defendant's doubts about his understanding) and
mere sour grapes over a sentence once pronounced. The
"near-presumption" concentrates plea litigation in the trial
courts, where genuine mistakes can be corrected easily, and
promotes the finality required in a system as heavily dependent on
guilty pleas as ours.
9 The Courts of Appeals have held that a Rule 11 violation that
is harmless under Rule ll(h) does not rise to the level of a "fair
and just reason" for withdrawing a guilty plea. See
United
States v.
Driver, 242 F.3d
767,
769 (CA7 2001) ("Even an established violation of
Rule 11 can be harmless error ... and thus not a 'fair and just
reason' to return to Square One");
United States v.
Siegel, 102 F.3d
477, 481 (CAll 1996);
United States v.
Martinez-Molina, 64 F.3d
719, 734
(CA1 1995).
73
But the incentive to think and act early when Rule 11 is at
stake would prove less substantial if Vonn's position were law; a
defendant could choose to say nothing about a judge's plain lapse
under Rule 11 until the moment of taking a direct appeal, at which
time the burden would always fall on the Government to prove
harmlessness. A defendant could simply relax and wait to see if the
sentence later struck him as satisfactory; if not, his Rule 11
silence would have left him with clear but uncorrected Rule 11
error to place on the Government's shoulders. This result might,
perhaps, be sufferable if there were merit in Vonn's objection that
applying the plain-error standard to a defendant who stays mum on
Rule 11 error invites the judge to relax. The plain-error rule, he
says, would discount the judge's duty to advise the defendant by
obliging the defendant to advise the judge. But, rhetoric aside,
that is always the point of the plain-error rule: the value of
finality requires defense counsel to be on his toes, not just the
judge, and the defendant who just sits there when a mistake can be
fixed cannot just sit there when he speaks up later on.10
10 Contrary to JUSTICE STEVENS'S suggestion,
post, at
78-80 (opinion concurring in part and dissenting in part), there is
nothing "perverse" about conditioning the Government's
harmless-error burden on an objection when the judge commits Rule
11 error. A defendant's right to counsel on entering a guilty plea
is expressly recognized in Rule 11(c)(2), and counsel is obliged to
understand the Rule 11 requirements. It is fair to burden the
defendant with his lawyer's obligation to do what is reasonably
necessary to render the guilty plea effectual and to refrain from
trifling with the court. It therefore makes sense to require
counsel to call a Rule 11 failing to the court's attention. It is
perfectly true that an uncounseled defendant may not, in fact, know
enough to spot a Rule 11 error, but when a defendant chooses
self-representation after a warning from the court of the perils
this entails, see
Faretta v.
California, 422 U. S. 806, 835
(1975), Rule 11 silence is one of the perils he assumes. Any other
approach is at odds with Congress's object in adopting Rule 11,
recognized in
McCarthy v.
United States, 394 U. S. 459, 465
(1969), to combat defendants' "often frivolous" attacks on the
validity of their guilty pleas, by aiding the district judge in
determining whether the defendant's plea was knowing and
74
In sum, there are good reasons to doubt that expressing a
harmless-error standard in Rule l1(h) was meant to carry any
implication beyond its terms. At the very least, there is no reason
persuasive enough to think l1(h) was intended to repeal Rule 52(b)
for every Rule 11 case.
III
The final question goes to the scope of an appellate court's
enquiry into the effect of a Rule 11 violation, whatever the
review, plain error or harmless. The Court of Appeals confined
itself to considering the record of "the plea proceeding," 224 F.
3d, at 1156, applying Circuit precedent recognizing that the best
evidence of a defendant's understanding when pleading guilty is the
colloquy closest to the moment he enters the plea. While there is
no doubt that this position serves the object of Rule 11 to
eliminate wasteful
post hoc probes into a defendant's
psyche,
McCarthy, 394 U. S., at 470, the Court of Appeals
was more zealous than the policy behind the Rule demands. The
Advisory Committee intended the effect of error to be assessed on
an existing record, no question, but it did not mean to limit that
record strictly to the plea proceedings: the enquiry "'must be
resolved solely on the basis of the Rule 11 transcript' and the
other portions
(e. g., sentencing hearing) of the limited
record made in such cases." Advisory Committee's Notes 1569
(quoting
United States v.
Coronado, 554 F.2d
166, 170, n. 5
(CA5 1977)).
True, language in
McCarthy ostensibly supports the
position taken by the Court of Appeals (which did not, however,
rest on it); we admonished that "[t]here is no adequate substi-
voluntary and creating a record at the time of the plea
supporting that decision.
Vonn's final retort that application of the plain-error rule
would tend to leave some "unconstitutional pleas" uncorrected
obviates the question in this case, which is who bears the burden
of proving that Rule 11 error did or did not prejudice the
defendant: the Government or the defendant?
75
tute for demonstrating
in the record at the time the plea is
entered the defendant's understanding of the nature of the
charge against him," 394 U. S., at 470 (emphasis in original). But
McCarthy was decided before the enactment of Rule l1(h),
which came with the commentary just quoted, and
McCarthy in
any event was not a case with a record of anything on point, even
outside the Rule 11 hearing. The Government responded to the
laconic plea colloquy not by referring to anything illuminating in
the record; instead it brought up the indictment, tried to draw
speculative inferences from conversations McCarthy probably had
with his lawyer, and sought to present new evidence. The only
serious alternative to "the record at the time the plea [was]
entered" was an evidentiary hearing for further factfinding by the
trial court.
Here, however, there is a third source of information, outside
the four corners of the transcript of the plea hearing and Rule 11
colloquy, but still part of the record. Transcripts brought to our
attention show that Vonn was advised of his right to trial counsel
during his initial appearance before the Magistrate Judge and twice
at his first arraignment. The record shows that four times either
Vonn or his counsel affirmed that Vonn had heard or read a
statement of his rights and understood what they were. Because
there are circumstances in which defendants may be presumed to
recall information provided to them prior to the plea proceeding,
cf.
Bousley v.
United States, 523 U. S. 614, 618 (1998)
(a defendant with a copy of his indictment before pleading guilty
is presumed to know the nature of the charge against him), the
record of Vonn's initial appearance and arraignment is relevant in
fact, and well within the Advisory Committee's understanding of
"other portions ... of the limited record" that should be open to
consideration. It may be considered here.
The transcripts covering Vonn's first appearance and arraignment
were not, however, presented to the Court of Appeals. Probably
owing to that court's self-confinement to a
76
Opinion of STEVENS, J.
narrower record, it made no express ruling on the part of the
Government's rehearing motion requesting to make the
first-appearance and arraignment transcripts part of the appellate
record. For that reason, even with the transcripts now in the
parties' joint appendix filed with us, we should not resolve their
bearing on Vonn's claim before the Court of Appeals has done so.
Adarand Constructors, Inc. v.
Mineta, 534 U. S. 103 (2001).
We therefore vacate the Court of Appeals's judgment and remand
the case for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring in part and dissenting in part.
For the reasons stated in Part III of the Court's opinion, I
agree that the effect of a violation of Rule 11 of the Federal
Rules of Criminal Procedure should be evaluated on the basis of the
entire record, rather than just the record of the plea colloquy,
and that a remand is therefore required. Contrary to the Court's
analysis in Part II of its opinion, however, I am firmly convinced
that the history, the text of Rule 11, and the special office of
the Rule all support the conclusion, "urged by the Government" in
McCarthy v.
United States, 394 U. S. 459, 469
(1969), that the burden of demonstrating that a violation of that
Rule is harmless is "place[d] upon the Government,"
ibid.
In
McCarthy, after deciding that the trial judge had not
complied with Rule 11, the Court had to "determine the effect of
that noncompliance, an issue that ha[d] engendered a sharp
difference ... among the courts of appeals."
Id., at 468.
The two alternatives considered by those courts were the automatic
reversal rule that we ultimately unanimously endorsed in
McCarthy and the harmless-error rule urged by
77
the Government.1 No one even argued that the defendant should
have the burden of proving prejudice.2 The Court's conclusion that
"prejudice inheres in a failure to comply with Rule 11" was
uncontroversial.3
Id., at 471.
During the years preceding the 1983 amendment to Rule 11, it was
generally understood that noncompliance with Rule 11 in direct
appeal cases required automatic reversal. See Advisory Committee's
Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C.
App., p. 1568 (hereinafter Advisory Committee's Notes) (citing
United States v.
Boone, 543 F.2d
1090 (CA4 1976);
United States v.
Journet,
544 F.2d
633 (CA2 1976)). Thus, prior to the addition of Rule
l1(h),
neither plain-error4 nor harmless-error review
applied to Rule 11 violations. Rejecting
McCarthy's "ex-
1
McCarthy was decided 15 years after the adoption of
Rule 52, and yet neither the parties nor the Court discussed the
application of that Rule despite the fact that the defendant had
failed to object to the Rule 11 error.
2 Nor did the Government make such an argument in the Court of
Appeals in this case. That should be a sufficient reason for
refusing to consider the argument here, see
United States v.
Williams, 504
U. S. 36, 55-61 (1992) (STEVENS, J., dissenting), but, as in
Williams, the Court finds it appropriate to accord "a
special privilege for the Federal Government,"
id., at
59.
3 "We thus conclude that prejudice inheres in a failure to
comply with Rule 11, for noncompliance deprives the defendant of
the Rule's procedural safeguards that are designed to facilitate a
more accurate determination of the voluntariness of his plea."
McCarthy, 394 U. S., at 471-472. Not a word in the
proceedings that led to the amendment rejecting the automatic
reversal remedy questioned the validity of the proposition that
every violation of the Rule is presumptively prejudicial. The
amendment merely gives the Government the opportunity to overcome
that presumption.
4 Rule 52(b) states: "Plain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court." When a court reviews for plain error,
the burden is on the defendant to show that the error affected his
substantial rights.
United States v.
Olano, 507 U. S. 725, 734-735
(1993).
78
Opinion of STEVENS, J.
treme sanction of automatic reversal" for technical violations,
Congress added subsection l1(h), which closely tracks the
harmless-error language of Rule 52(a).5 Advisory Committee's Notes
1569. As the Advisory Committee's Notes make clear, "Subdivision
(h) makes no change in the responsibilities of the judge at Rule 11
proceedings, but instead
merely rejects the extreme sanction
of automatic reversal."
Ibid. (emphasis deleted and added).
The plain text thus embodies Congress' choice of incorporating the
standard found in Rule 52(a), while omitting that of Rule 52(b).6
Because the pre-existing background of Rule 11 was that Rule 52(b)
did not apply, and because the amendment adding Rule 52 (a) via
subsection (h) did not also add Rule 52(b), the straightforward
conclusion is that plain-error review does not apply to Rule 11
errors.
Congress' decision to apply
only Rule 52(a)'s
harmlesserror standard to Rule 11 errors is tailored to the purpose
of the Rule. The very premise of the required Rule 11 colloquy is
that, even if counsel is present, the defendant may not adequately
understand the rights set forth in the Rule unless the judge
explains them. It is thus perverse to place the burden on the
uninformed defendant to object to deviations from Rule 11 or to
establish prejudice arising out of the judge's failure to mention a
right that he does not know he
5 Rule 52(a) states: "Harmless error. Any error, defect,
irregularity or variance which does not affect substantial rights
shall be disregarded." Rule l1(h) states: "Harmless error. Any
variance from the procedures required by this rule which does not
affect substantial rights shall be disregarded. "
6 The Court incorrectly asserts that this is an argument for
repeal by implication of Rule 52(b).
Ante, at 65 ("To hold
that the terms of Rule l1(h) imply that the latter half of Rule 52
has no application to Rule 11 errors would consequently amount to
finding a partial repeal of Rule 52(b) by implication, a result
sufficiently disfavored"). This ignores the fact that prior to the
enactment of Rule l1(h), courts applied neither Rule 52(a) nor (b)
to Rule 11 violations.
79
has.7 Under the Court's approach, the Government bears the
burden of establishing no harm only when the defendant objects to
the district court's failure to inform him. In other words, the
Government must show prejudice only when the defendant asks the
judge to advise him of a right of which the Rule 11 colloquy
assumes he is unaware. To see the implausibility of this, imagine
what such an objection would sound like: "Your Honor, I object to
your failure to inform me of my right to assistance of counsel if I
proceed to trial."
Despite this implausible scenario, and to support the result
that it reaches, the Court's analysis relies upon an image of a
cunning defendant, who is fully knowledgeable of his rights, and
who games the system by sitting silently as the district court,
apparently less knowledgeable than the defendant, slips up in
following the dictates of Rule 11. See,
e. g.,
ante, at 63 ("[A] defendant loses nothing by failing to
7The Court states that this is like any other application of the
plainerror rule as it is applied to all trial errors.
Ante,
at 73 ("The plain-error rule, [Vonn] says, would discount the
judge's duty to advise the defendant by obliging the defendant to
advise the judge. But, rhetoric aside, that is always the point of
the plain-error rule ... "). Unlike most rules that apply to a
trial, however, the special purpose of the Rule 11 colloquy is to
provide information to a defendant prior to accepting his plea.
Given this purpose, it is inconceivable that Congress intended the
same rules for review of noncompliance to apply. A parallel example
from the self-representation context illustrates this point.
Pursuant to
Faretta v.
California, 422 U. S. 806 (1975), a
defendant who wishes to represent himself must "be made aware of
the dangers and disadvantages of selfrepresentation,"
id.,
at 835. Assume a defendant states that he wishes to proceed
pro
se, and the trial judge makes no attempt to warn the defendant
of the dangers and disadvantages of self-representation. If the
defendant makes no objection to the trial court's failure to warn,
surely we would not impose a plain-error review standard upon this
nonobjecting defendant. This is so because the assumption of
Faretta's warning requirement is that the defendant is
unaware of the dangers. It is illogical in this context, as in the
Rule 11 context, to require the presumptively unknowing defendant
to object to the court's failure to adequately inform. Congress'
decision to apply the harmless-error standard to all Rule 11 errors
surely reflects this logic.
80
Opinion of STEVENS, J.
object to obvious Rule 11 error when it occurs");
ante,
at 73 ("[A] defendant could choose to say nothing about a judge's
plain lapse under Rule 11 until the moment of taking a direct
appeal, at which time the burden would always fall on the
Government to prove harmlessness. A defendant could simply relax
and wait to see if the sentence later struck him as satisfactory").
My analysis is based on a fundamentally different understanding of
the considerations that motivated the Rule 11 colloquy requirements
in the first place. Namely, in light of the gravity of a plea, the
court will assume no knowledge on the part of the defendant, even
if represented by counsel, and the court must inform him of a base
level of information before accepting his plea.8
The express inclusion in Rule 11 of a counterpart to Rule 52 (a)
and the omission of a counterpart to Rule 52(b) is best understood
as a reflection of the fact that it is only fair to place the
burden of proving the impact of the judge's error on the party who
is aware of it rather than the party who is unaware of it. This
burden allocation gives incentive to the judge to follow
meticulously the Rule 11 requirements and to the prosecutor to
correct Rule 11 errors at the time of the colloquy. The Court's
approach undermines those incentives.
I would remand to the Court of Appeals to determine whether,
taking account of the entire record, the Government has met its
burden of establishing that the District Court's failure to inform
the respondent of his right to counsel at trial was harmless.
8 See
Kercheval v.
United States, 274 U. S. 220, 223 (1927)
("A plea of guilty differs in purpose and effect from a mere
admission or an extrajudicial confession; it is itself a conviction
.... Out of just consideration for persons accused of crime, courts
are careful that a plea of guilty shall not be accepted unless made
voluntarily after proper advice and with full understanding of the
consequences").
Comments
Be the first to comment
Leave a Comment