APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-00250)
Before Gibbons, Rosenn and Garth, Circuit Judges.
In this appeal we are once again faced with a guilty plea which was not processed in accordance with the requirements of Fed.R.Crim.P. 11. We hold that the deviations from Rule 11 in this case constitute reversible error. Consequently, we vacate Carter's sentence and remand to the district court for further proceedings. Moreover, because we are distressed by the numerous direct appeals generated by violations of the requirements of Rule 11, we caution the district courts to adopt procedures and to take the requisite care to comply fully with that Rule so as to assure finality and the integrity of proceedings when guilty pleas are accepted.
On February 12, 1979, James Parker Carter plead guilty to Count I of an indictment charging him with six counts of violating 18 U.S.C. § 1708.*fn1 The basis for the indictment was that Carter had allegedly stolen a welfare check from a mail box which he shared with his uncle, and cashed it. At the time of the plea proceeding, Carter had been unemployed for seven years. He also was suffering from various health disorders. Carter was represented by appointed counsel in the plea proceeding. The district court accepted Carter's guilty plea and later sentenced him to four years imprisonment.
The government concedes that the district court failed to conform to the requirements of Fed.R.Crim.P. 11 in the conduct of Carter's plea proceeding.*fn2 Our review of the record reveals that the district court departed from the Rule's requirements in five particulars: (1) the district court specifically failed to inform Carter "that he ha(d) a right to plead not guilty or to persist in . . . (his not guilty) plea (Rule 11(c)(1)); (2) the court failed to inform Carter specifically that he would have the right to the assistance of counsel at trial (Rule 11(c)(3)); (3) the court did not tell Carter that at trial he would have the right to "confront and cross-examine witnesses against him" (Rule 11(c)(3)); (4) Carter was not informed that any statements he made in the plea proceeding could later be used against him in a prosecution for perjury (Rule 11(c)(5)); and (5) the trial court failed to require disclosure of the plea agreement in open court (Rule 11(e)(2)).
Carter asserts each of these deficiencies in his appeal from the judgment of sentence entered against him. The government responds that the errors in the plea proceedings were harmless at most and did not prejudice Carter's rights. The government argues that despite the district court's failure to adhere to Rule 11, the record in this case makes clear that Carter's plea was made freely, with an understanding of the charges raised against him and with knowledge of the direct consequences of his guilty plea.
We are not persuaded that the departures from Rule 11 requirements in this case were harmless. As an initial matter, we note that the question of whether a harmless error standard is applicable in direct appeals such as this has not yet been settled in this circuit.*fn3 Recently, in United States v. Altro, 612 F.2d 575 (3d Cir. 1979), this court sitting en banc was evenly divided on this precise issue. Altro involved a plea proceeding which was deficient in three respects, all of which are found here.*fn4 We emphasize, at this point, that it is not necessary for us to resolve the dispute which divided the court in Altro in order to decide the case before us. Our disposition of Carter's appeal would be the same under either standard.
Two of the deficiencies in Carter's plea proceeding involve core values of our adversary system. Carter was not told that he had a right to assistance of counsel at trial. Nor was he told of his right to confront and cross-examine witnesses who testify against him. On this record, neither of these defects can be considered harmless.
This court has laid great stress on the right to counsel and on the lawyer's importance to the adversary system. United States ex rel. Sullivan v. Cuyler, 593 F.2d 512 (3d Cir. 1979); United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973). As was stated recently in United States v. DeFalco, 644 F.2d 132 (3d Cir. 1979) (en banc): "(t)he essence of the system is that there be professional antagonists in the legal forum, dynamic disputants prepared to do combat for the purpose of aiding the court in its quest to do justice." Id. Slip op. at 10 (plurality opinion). In this case, Carter was represented by a public defender at the proceeding in which his guilty plea was taken. He was not told that he would have the right to the continued assistance of counsel, assigned or retained, should he decide to change his plea and go to trial.*fn5 On this record, we have no way of knowing whether Carter knew of his right to counsel at trial. Thus, we cannot determine whether Carter was aware that he was entitled to the full benefit of the adversary system. This record gives us no basis by which we can determine the extent of Carter's knowledge of his right to trial counsel.*fn6 Accordingly, because Carter was not informed of his right to counsel, we cannot conclude that he had full knowledge of the direct consequences of his plea. See United States v. Dayton, 604 F.2d 931, 939 (5th Cir. 1979) (en banc ). Such error cannot be characterized as harmless, but is rather "inherently prejudicial." McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); United States v. Dayton, supra.
The district court also failed to inform Carter of his right to confront and cross-examine the witnesses who would testify against him. This right is also of fundamental proportions. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). We cannot assume, from this record, that Carter was aware of this right or of its full impact.*fn7 Moreover, we have no means of determining whether or not Carter would have, at the time, maintained a guilty plea had he been aware of his confrontation rights. Thus, we cannot conclude that this defect in the Rule 11 proceeding was harmless.
Therefore, because we conclude that, on this record, the district court's errors in failing to inform Carter specifically of his right to counsel and his right of confrontation*fn8 were not harmless errors,*fn9 we are obliged to vacate Carter's sentence.*fn10
We have previously observed that direct appeals from improperly conducted Rule 11 proceedings have been filed to our court with disconcerting frequency. The entire system of criminal justice suffers if guilty plea proceedings are not processed fairly and effectively. But the primary responsibility for the proper conduct of guilty plea proceedings lies with the district courts. As an appellate court, we are not well situated to insure the integrity and finality of the guilty plea system. Thus, we urge the district courts in this circuit to maintain strict observance to the requirements specified in Rule 11 in order to assure the integrity and finality of the plea process. We do not consider this an undue burden in light of the existing mandate of Rule 11 and the essential nature of an efficient plea system as it affects both the criminal justice system and individual criminal defendants.
Both the criminal justice system and individual criminal defendants have great stakes in the smooth and effective operation of guilty plea procedures. Recognizing that 82.9 percent of all criminal convictions in federal court are the result of pleas of guilty or nolo contendere,*fn11 it is apparent that administratively our criminal justice system has come to depend heavily upon guilty pleas. See, e. g., President's Commission on Law Enforcement and Administration of Justice, Task Force Report, The Courts 9 (1967); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964); Santobello v. New York, 404 U.S. 257, 260, 92 S. Ct. 495, 497, 30 L. Ed. 2d 427 (1971); United States v. Dayton, 604 F.2d at 934. Moreover, the practice of accepting guilty pleas, rather than requiring lengthy, full-scale trials, insures prompt application of punitive and correctional measures and furthers society's interests in the general deterrence of crime and in the rehabilitation of criminal defendants. See Advisory Comm. Note, Fed.R.Crim.P. 11.*fn12 Nor can it be doubted that plea agreements with certain defendants are often utilized as a mechanism to facilitate the successful prosecution of other more serious offenders. Note, Guilty Plea ...