Appeal from a judgment of the United States District Court for the Southern District of New York (MacMahon, J.), convicting appellant, Ciprian Gonzalez, after a guilty plea, of distributing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Judgment vacated and case remanded with directions.
BEFORE: PIERCE and PRATT, Circuit Judges, and LASKER, Senior District Judge.*fn*
Ciprian Gonzalez appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York by the Hon. Lloyd F. MacMahon upon Gonzalez' plea of guilty to charges of possession and distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(1)(B). Appellant contends that the district court erred (1) in refusing to grant his motion made pursuant to Fed. R. Crim. P. 32(d) to withdraw his guilty plea prior to sentencing and his counsel's motion to be relieved and (2) in failing to comply with the requirements of Fed. R. Crim. P. 11 before accepting his plea.
On September 22, 1986, with an interpreter present, Gonzalez pleaded guilty to one count of an indictment alleging that he participated in the sale of the cocaine derivative "crack" in July 1986. According to the presentence report, the government contended that Gonzalez sold two vials of crack with a combined net weight of 0.40 grams to a Drug Enforcement Administration agent for $20. During the plea allocution, in accordance with Fed. R. Crim. P. 11(c), the district judge informed Gonzalez of the rights he was giving up by pleading guilty and explained the penalties that could be imposed. The judge stated with regard to the possible sentence:
Do you realize that if the court accepts your plea of guilty, the court has the power to sentence you to fifteen years in prison, fine you $250,000, and, if it sends you to prison, must impose a three-year special parole term to commence upon expiration of your prison sentence, and impose a $50 special assessment; do you understand that?
The judge also ascertained that Gonzalez understood the charges against him, and Gonzalez explained in his own words that he assisted a friend in making a crack sale. Although appellant's description of his actions differed from the government's version in that he did not recall personally passing the crack to the DEA agent, he did admit to participating intentionally in the transaction to earn some money. The judge made no inquiry into whether the plea was made voluntarily and was not the result of force, threats or promises.
On November 5, 1986, when the parties appeared before the district court for sentencing, Gonzalez' attorney moved to be relieved on the ground that appellant's statements to the probation officer, as documented in the presentence report, presented the attorney with a conflict of interest. The presentence report stated: "The Defendant maintains his innocence regarding the instant offense and claims he pled guilty on the advice of his attorney." Gonzalez' account of the events charged in the indictment, as related to the probation officer, also contradicted his sworn testimony to the court during his allocution. The judge denied the motion to be relieved, as well as a Rule 32(d) motion to withdraw the guilty plea, on the ground that at the time of his plea Gonzalez had been carefully interrogated to make certain he understood the nature of the charges against him, that he understood the consequences of pleading guilty, and that he was pleading because he was guilty of the crime charged and for no other reason. Sentencing was thereupon adjourned for reasons unrelated to the motions.
On November 12, 1986, when the parties reappeared before the district court for sentencing, Gonzalez' attorney renewed the motion to be relieved as counsel, and in the alternative, the motion to withdraw the plea. Defense counsel stated that Gonzalez had informed him that Gonzalez had expected that as a first offender he would be sentenced to probation, that at the time he pleaded guilty he did not know that he could go to jail, and that he did not remember his counsel telling him he could go to jail. Specifically, defense counsel stated: We now have a defendant who additionally says that in my preparation of him I basically told him that he was guaranteed probation." Gonzalez also represented through defense counsel that he either did not remember that during the allocution the judge had told him he could be sentenced to jail or did not understand the judge's statements. The judge denied both motions and sentenced Gonzalez to a ten-year term of imprisonment to be followed by a three-year special parole term and imposed a $10,000 fine. Gonzalez is serving his sentence.
Appellant claims on his petition for rehearing*fn1 that his plea must be vacated because the district judge failed during the plea allocution to inquire of Gonzalez, as required by Fed. R. Crim. P. 11(d),*fn2 whether any promises had been made to him and to inform Gonzalez, as required by Fed. R. Crim. P. 11(c)(1),*fn3 about the effect of any special parole term that might be imposed.
In United States v. Journet, 544 F.2d 633 (2d Cir. 1976), we examined Congress' 1975 amendments to Rule 11 and called for strict compliance with the rule's specific provisions.
In reviewing a district court's compliance with Rule 11, we can no longer accept as sufficient general statements or inquiries by the district judge on the theory that when construed in the light of surrounding circumstances they meet the rule's requirements. We now hold that, as a minimum, before accepting a guilty plea each district judge must personally inform the defendant of each and every right and other matter set out in Rule 11. Otherwise the plea must be treated as a nullity.
Id. at 636. Journet involved the district judge's failure to advise a defendant of the maximum possible parole term that could be imposed, of his right to the assistance of counsel at trial, that a plea of guilty waived his right against self-incrimination, that no trial would be held if the guilty plea were accepted, and that he could be prosecuted for perjury if he made untrue statements under oath at the allocution. See id. at 634-35; Fed. R. Crim. P. 11(c)(1)-(5).
Two later decisions of this court appeared to relax the strict rule announced in Journet. In United States v. Michaelson, 552 F.2d 472 (2d Cir. 1977), the court passed over the claim that the defendant was not advised as required by Rule 11(c)(5) that statements made under oath during the allocution could be the basis for a perjury prosecution in light of the fact that the defendant was not put under oath before questioning about his guilty plea. Id. at 477 (citing Journet, 544 F.2d at 637 n.6). The Michaelson court also held that the failure to advise the defendant under Rule 11(c)(3) of his right not to be compelled to incriminate himself at trial did not require the setting aside of his guilty plea in circumstances in which trial had already begun and it seemed "highly unlikely that [Michaelson's] lawyer would not have advised Michaelson of his right not to incriminate himself." Id. The court took pains, however, to limit the case to its facts and stated: "Our decision therefore is not to be interpreted as overruling Journet in any respect." Id. at 477-78.
The second decision which appeared to signal a falling away from the strict rule was United States v. Saft, 558 F.2d 1073 (2d Cir. 1977). In Saft the court treated the claimed Rule 11(c)(5) violation as inconsequential, as it had in Michaelson. Id. at 1079. As to the failure to advise the defendant as required by Rule 11(c)(3) that he would have the right to the assistance of counsel at trial, the court found that the defendant could not have had any doubts on that score in circumstances in which counsel had already been appointed for him and the record revealed that he fully expected such representation to continue through trial. Id. at 1080. As to two other claimed violations of Rule 11, ...