UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: May 19, 1970.
ROBERT WOODWARD, A/K/A ROBERT WOODARD, APPELLANT,
UNITED STATES OF AMERICA
Seitz, Van Dusen and Adams, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
On June 5, 1968, defendant entered a plea of guilty to an information charging that he wilfully and unlawfully possessed part of the proceeds of a robbery of a federally insured savings and loan association, knowing such proceeds to have been stolen, in violation of 18 U.S.C. § 2113(c). A five-year sentence was imposed at the time of the judgment of conviction and commitment on June 10, 1968. On December 3, 1968, defendant filed motions under 28 U.S.C. § 2255 to vacate the sentence and under F.R.Crim.P. 32(d) to set aside the judgment of conviction on the ground that the money in his possession had not been taken from a federally insured bank, but was the proceeds of forged checks. The District Court, after an extensive hearing, denied both motions by opinion and order of June 6, 1969. This appeal followed.
Defendant raises two principal arguments on this appeal: first, that the District Court's failure to comply with F.R.Crim.P. 11 in accepting the guilty plea violated due process, and, second, that manifest injustice resulted from the acceptance of the plea because it was later shown that defendant was not, in fact, guilty.
Defendant's first claim requires us to examine the guilty plea hearing. On June 5, 1968, defendant appeared before the District Court to waive indictment and plead guilty to the information. The United States Attorney read the information and, after asking defendant if he had received a copy of the information, if he had discussed it with his court-appointed counsel, and if he understood that he had a right to have the charge presented to a federal grand jury for indictment, asked the court to accept the waiver of indictment. The court accepted the waiver of indictment after personally questioning defendant about his understanding of his right to be indicted. The United States Attorney then interrogated the defendant as to the voluntariness of his plea and asked the court to accept the guilty plea.*fn1 The court proceeded to question the defendant:
"THE COURT: You understand, Mr. Woodward, now that by entering this plea you are not merely going through a formality of saying that 'I plead guilty and I signed a guilty plea here' but you are technically in this court making a statement, 'that I admit that I did what the Government charges I did', you understand that?
"THE DEFENDANT: Yes, sir.
"THE COURT: And you understand that making that admission in open court, of course, waives all defenses that you might raise, technical or otherwise, to the proceedings?
"THE DEFENDANT: Yes, sir.
"THE COURT: Has anyone threatened you with any more serious consequences if you don't plead guilty?
"THE DEFENDANT: No, sir.
"THE COURT: Has anyone else told you that the sentence would be more lenient if you did plead guilty than trial?
"THE DEFENDANT: No, sir.
"THE COURT: Have you told your attorney all of the circumstances surrounding this?
"THE DEFENDANT: Yes, sir.
"THE COURT: Does he concur in the plea?
"MR. McDONALD: I do, your Honor.
"THE COURT: All right, we will take the plea."
Rule 11 of the Federal Rules of Criminal Procedure provides:
"A defendant may plead * * * guilty * * *. The court may refuse to accept a plea of guilty, and shall not accept such plea * * * 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."
The Rule is designed to assure that a defendant who pleads guilty does so voluntarily, knowingly and intelligently. McCarthy v. United States, 394 U.S. 459, 465, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969),*fn2 Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969); see United States ex rel. Allison v. New Jersey, 418 F.2d 332, 340 (3rd Cir. 1969). It requires the court to determine, by interrogating the defendant personally, the voluntariness of the plea,*fn3 and also to make three specific inquiries to assure itself that the defendant understands the risk he is taking by not requiring the Government to prove its case in court.
First, the court must satisfy itself that the defendant understands the nature of the charge. Routine questioning or a single response by the defendant that he understands the charge is insufficient.*fn4 To satisfy itself that the defendant actually does comprehend the charges, the court must explain the meaning of the charge and what basic acts must be proved to establish guilt.*fn5 Secondly, the court must assure itself that the defendant understands the possible consequences of his plea, including the maximum sentence that can be imposed together with any restriction on the availability of parole.*fn6 Because Rule 11 requires that the court address the defendant personally, questioning by the United States Attorney or representation of the defendant by counsel will not discharge the court's duty to interrogate the defendant itself.*fn7 Finally, the court must satisfy itself that a factual basis for the plea exists,*fn8 although fulfillment of this requirement does not require interrogation by the court itself.*fn9
It is clear that the court in this case did not address the defendant personally concerning his understanding of the charge and of the consequences of his plea.*fn10 Because the "automatic prejudice" rule of McCarthy v. United States, supra, does not apply retroactively to this guilty plea, Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (1969), our conclusion that Rule 11 was not followed has required us to examine the District Court's finding that the defendant's plea was entered voluntarily. Berry v. United States, 412 F.2d 189 (3rd Cir. 1969). An examination of the record discloses that substantial evidence supports the District Court's conclusion that the plea was entered voluntarily.*fn11
From the defendant's responses to the United States Attorney at the guilty plea hearing, supra note 1, and from the assurances of defense counsel, it is clear that the defendant understood the consequences of his plea. And even aside from the colloquy at the guilty plea hearing, the sentencing hearing and defendant's subsequent motion to reduce sentence make clear that he understood the nature of the charges. At the sentencing hearing, after the United States Attorney and a co-defendant's counsel had given a full description of the crime, the defendant admitted that (1) he learned the day after he received the $300., and when he still had possession of this sum, that it was stolen from the savings and loan association, and (2) he understood this was the basis for the charge against him in the information. In the motion to reduce sentence, the following admission appears:
"The $300.00 received by Robert Woodward were received by him as down payment on a motorcycle and not with knowledge of their source. Admittedly, thereafter, the requisite knowledge was acquired."
Attached to the motion was defendant's notarized affidavit "that the facts therein are true and correct according to the best of his knowledge, information and belief."
Defendant argues, alternatively, that the District Court abused its discretion in not granting his motion, under F.R.Crim.P. 32(d), to withdraw his plea. Rule 32(d) provides:
"A motion to withdraw a plea of guilty * * * may be made only before sentence is imposed * * *; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."
Defendant claims that after sentence was imposed, he discovered that the money handed to him by the bank robber was not actually proceeds from the robbery, but from the fraudulent conversion of checks. Therefore, he argues, he is not guilty of possessing proceeds from the robbery of a federally insured bank, and "manifest injustice" resulted from his conviction.
Although a finding of manifest injustice under Rule 32(d) may not require as strong a showing as a claim of deprivation of due process, United States v. Washington, 341 F.2d 277, 281 n. 3 (3rd Cir. 1965), a motion under Rule 32(d) closely resembles a motion to vacate sentence under 28 U.S.C. § 2255. United States v. Mainer, 383 F.2d 444, 447 (3rd Cir. 1967). The defendant's burden in a Rule 32(d) motion, as in a § 2255 proceeding, is heavy. United States v. Mainer, supra ; Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963).*fn12 A plea of guilty waives all non-jurisdictional defenses, whether these defenses be later raised in a § 2255 petition or a Rule 32(d) motion. E.g., Frye v. United States, 411 F.2d 562 (5th Cir. 1969) (§ 2255 proceeding); Abram v. United States, 398 F.2d 350 (3rd Cir. 1968) (same); United States v. Ptomey, 366 F.2d 759 (3rd Cir. 1966).
However, the truth of defendant's claim of innocence may provide a basis for a finding that the guilty plea was not entered intelligently or that withdrawal of the plea is necessary to correct manifest injustice. See, e.g., Hudgins v. United States, 340 F.2d 391 (3rd Cir. 1965); Gawantka v. United States, 327 F.2d 129 (3rd Cir. 1964). For this reason, the District Court held a hearing on defendant's claim,*fn13 but concluded that the evidence presented by the defendant did not demonstrate manifest injustice.*fn14 After a careful review of the record, we cannot say that the District Court abused its discretion.*fn15
Defendant's claim that the District Court did not have jurisdiction to impose sentence is without merit.
The District Court order of June 6, 1969, will be affirmed.