Howard HORSLEY, Appellant, v. UNITED STATES of America, 583 F.2d 670

OPINION OF THE COURT ALDISERT, Circuit Judge. This appeal from the district court’s denial of Howard Horsley’s motion pursuant to 28 U.S.C. § 2255 presents the question whether the trial judge’s failure personally to advise an accused of the nature and elements of the offense with which he was charged and to which he pleaded guilty requires that plea to be vacated.

Because the record reveals that the plea colloquy did not satisfy the requirements of Federal Rule of Criminal Procedure 11, resulting in prejudice to the appellant, we reverse the decision of the district court and remand the case with instructions that Horsley be permitted to plead anew. I. In July 1976 ten defendants, including appellant Horsley, were indicted and charged with conspiracy and substantive violations of the federal narcotics law.

Hors-ley was named as a defendant in count one (conspiracy to distribute heroin in violation of 21 U.S.C. § 846) and count five (possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1)). After initially pleading not guilty before a magistrate, appellant changed his plea on November 8, 1976, to one of guilty to the first count. The trial judge questioned the defendant pursuant to Rule 11, and ultimately accepted the plea.

Horsley subsequently received the maximum statutory sentence: 15 years imprisonment to be followed by a special parole term of three years, to run consecutively with any sentence being served by appellant at that time. Acting at first pro se, and thereafter through retained counsel, appellant filed a § 2255 motion to vacate the sentence, along with a motion to withdraw the guilty plea. Both motions centered on the allegation that the trial judge failed to advise Horsley of the elements of the offense with which he was charged and that, as a result, the guilty plea was not knowingly and voluntarily entered. II.

In accord with the Rule 11 mandate that the court inform defendant of, and determine that he understands, the nature of the charge, the court questioned the appellant as follows: Q. And you have indicated to [the prosecuting attorney] that you received a copy of the indictment in this case and had an opportunity to go over it with your attorney? A. Yes, sir. Q. Do you fully understand the charges against you? A. Yes, sir. Q. Do you understand the indictment charges you with conspiracy with respect to heroin, and that is the count you are pleading to? A. Yes, sir. Q. Have you told Mr.

Bogdon all the facts in connection with this charge? A. I have. Q. And are you satisfied with Mr. Bogdon as your attorney? A. Yes. Appendix at 10B. Our review of the correctness of this Rule 11 proceeding begins with McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). The Supreme Court there concluded that “a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11.” Id. at 463-64, 89 S.Ct. at 1169.

The Court specifically stated that the Rule requires a district judge to inquire personally into the defendant’s understanding of the charge. Id. at 467, 89 S.Ct. 1166. This court has similarly insisted on strict compliance with Rule 11. In Woodward v. United States, 426 F.2d 959, 962-63 (3d Cir. 1970), we stated: Routine questioning or a single response by the defendant that he understands the [nature of the] charge is insufficient.

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. . . . 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. (Footnotes omitted and emphasis added). Accord, Paradiso v. United States, 482 F.2d 409 (3d Cir. 1973); United States v. Cantor, 469 F.2d 435 (3d Cir. 1972); United States v.

Zampitella, 416 F.Supp. 604 (E.D.Pa. 1976). In view of the clear prescription of these cases that the court personally inform the defendant of the nature of the charges and the acts which would render him guilty, we must hold that the district court’s reliance on appellant’s private reading of the indictment and discussions of it with his attorney constitutes error. The court correctly noted that “even reading the indictment to a defendant can satisfy this requirement.” Appendix at 5B.

We do not quarrel with the court’s conclusion that additional explanation of the charge is discretionary and may take into account the totality of the circumstances. Id. However, prior decisions of this court preclude us from permitting the district court to abdicate to the appellant and his attorney responsibility for minimal compliance with Rule 11. III. While we conclude that the district court did not comply with the requirements of Rule 11, we must recognize that this appeal is a § 2255 collateral attack on the plea rather than a direct appeal from the judgment of conviction.

The government urges us to adopt a “more relaxed” standard of review in the § 2255 context. Appellee’s Brief at 6. Its contention is that a litigant who did not appeal his conviction should be required, in the context of a later collateral attack, to demonstrate prejudice flowing from the asserted technical error. Id. at 7. Indeed, Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), requires that a different standard be applied in the collateral proceeding than would control the direct appeal.

Davis suggests that collateral relief is not available “in the absence of any indication that the defendant was prejudiced” or that the error of law was a “fundamental defect which inherently results in a complete miscarriage of justice.” Id. at 346, 95 S.Ct. at 2305. The cases on which we rely in deciding that the district court failed to satisfy Rule 11 requirements were decided before Davis; it is clear that Davis emphasizes the necessity of considering whether the defendant suffered prejudice.

Several courts of appeals have adopted a two-tiered standard in the light of Davis and have denied collateral relief notwithstanding violation of Rule 11. Foremost is Del Vecchio v. United States, 556 F.2d 106 (2d Cir. 1977), notable for its analysis of the differing policies predominating in direct and collateral review.

The commendable policy of insuring “that a defendant acted voluntarily and knowledgeably before taking the grave step of pleading guilty and waiving various constitutional rights” should be strictly enforced on direct appeal because violation of the policy will result in the “modest” social price of a short delay caused by allowing the defendant to re-plead.

Id. at 109. “On the other hand, rigid enforcement of the Rule many years after the plea has been taken erodes the principle of finality in criminal cases and may allow an obviously guilty defendant to go free because it is impossible, as a practical matter, to retry [sic] him. This is not a result that commends itself to many people, including judges.” Id. The court then held that “a defendant must at least show prejudice affecting the fairness of the proceedings or the voluntariness of the plea in order to succeed in a collateral attack based upon a Rule 11 violation.” Id. at 111.

The violations found in Del Vecchio all centered around failure to inform the defendants of potential sentence and parole terms.

Because “the sentence imposed on Del Vecchio — 15 years imprisonment and three years special parole — was substantially less than the total of 210 years he was advised was the possible maximum sentence,” the court concluded that Del Vecchio was not prejudiced, noting “no case in this circuit in which a guilty plea has been vacated on collateral attack for failure to advise of a special parole term where the prison sentence, combined with the special parole term, was less than the possible maximum of which defendant had been advised.” Id.

Although we agree with the Second Circuit’s choice of the controlling legal precept mandated by Davis, i. e., that there be a showing of prejudice in a § 2255 proceeding, it is apparent that we differ in interpreting the precept. In Berry v. United States, 412 F.2d 189 (3d Cir. 1969), anticipating the rule that would later be announced in Davis, we rejected the notion that the defendant sustained no prejudice because he received a lighter sentence than the erroneously stated possible maximum.

Indeed, the trial court in Berry had adopted the conclusion later to be reached in Del Veechio and we refused to accept it: The court’s reasoning is based on a false conception of “prejudice.” Whether prejudice resulted from the entry of the guilty plea is not measured by the severity or leniency of the sentence imposed; prejudice inheres when an accused pleads guilty, thus convicting himself of a criminal offense, without understanding the significance or consequences of his action. 412 F.2d at 191.

At base, the difference between our court and the Second Circuit is demonstrated by a reference to Roscoe Pound’s three-step analysis of the decisional process: (1) choosing the controlling legal precept, (2) interpreting the chosen precept, and (3) applying the precept so chosen and interpreted to the case at hand. We agree as to the first step and disagree as to the second and the third. IV.

Thus, although we accept the government’s contention that different standards may control direct and collateral review, three major considerations lead us to the conclusion that appellant here was sufficiently prejudiced by the Rule 11 violation to meet the Davis requirement that prejudice be shown in a § 2255 proceeding. A. First, in an effort to clarify what constitutes a sufficient showing of prejudice to justify collateral relief, we find some guidance in the recent historical development of the law relating to acceptance of guilty pleas.

Prior to McCarthy, supra, review of a guilty plea colloquy was governed by precisely the same precepts now applicable under Davis on collateral review — a prejudicial Rule 11 violation had to be established to justify relief. Berry v. United States, supra, as heretofore observed, was predicated on a showing of prejudice, and was not based on the application of the McCarthy per se rule. In Berry we discussed the manner in which a defendant may be prejudiced when a trial court fails to ascertain that he understands the nature of the charge and the consequences of the plea.

There we did not look to see whether the sentence imposed exceeded the maximum Berry was led to expect; we looked to see whether he fully understood the consequences of his plea. Because he did not, his entry of a guilty plea, “convicting himself,” was inherently prejudicial regardless of the sentence imposed. Applying the Berry rationale to this case, since the record of the colloquy does not disclose that Horsley fully comprehended the nature of the charge, we hold that his guilty plea, convicting himself of a criminal offense, was inherently prejudicial. B.

Next, we regard as significant the distinction between the dual requirements of Rule 11(c)(1) that the defendant understand the nature of the charge and that he be apprised of the parameters of potential penalties. An understanding of the nature of the charge requires an explanation of “what basic acts must be proved to establish guilt.” Woodward, supra, 426 F.2d at 962. Because the nature of the charge so intimately relates to the fundamental issue of guilt, we cannot permit dilution of our mandate that the “nature of the charge” requirement of Rule 11 be strictly satisfied.

Particularly where the charge is the inchoate crime of conspiracy, an explanation of the nature of the charge and the acts constituting guilt is fundamental to the achievement of justice. This is not a case of simple assault where we might expect a defendant to have a fairly clear grasp of the nature of the crime. Nor do we adopt ■ the Eighth Circuit’s approach in McRae, supra note 4, 540 F.2d at 946 — 47, leaning on McRae’s representation by privately retained counsel to support a finding that the defendant suffered no prejudice.

The required advice concerning the range of possible sentences stands on a somewhat different footing. We note that Rule 11 was amended in 1975 to eliminate the former requirement that the “consequences” of a guilty plea be explained to the defendant. The amendment of Rule 11(c)(1) narrows the relevant consequences to the “mandatory minimum penalty,” if any, and the “maximum possible penalty” that may be imposed at sentencing. Moreover, the consequences of a guilty plea are collateral to the paramount issue of guilt or innocence.

We do not mean to derogate the extreme importance to the defendant of knowing the range of potential sentences. Berry, supra, held that the defendant was prejudiced by the court’s failure to explain that he would be ineligible for parole. That opinion clearly expresses our view that the defendant must be made aware of the outer limits of punishment. At the very least, this means that he must be apprised of the period of required incarceration. Except for capital punishment, no other consequence can be as significant to an accused as the period of possible confinement. Berry, supra, 412 F.2d at 192.

But it must nevertheless be recognized that consideration of the penalty cannot take precedence over, and require more procedural safeguards than, assurance that the defendant comprehends the basic acts which must be proved to establish guilt. C. Finally, nine years after the decision of McCarthy v. United States, supra, we do not believe that Davis requires or permits us to abdicate our supervisory responsibility to the district courts of this circuit.

Eight years after our decision in Woodward, supra, where we unequivocally required the court personally to explore the inquiries relevant to acceptance of a guilty plea, we do not believe the interests of justice are served by tolerating or condoning failure to implement Rule 11. Strict and consistent adherence to the requirements of Rule 11 will facilitate disposition of post-conviction assertions of error in the change of plea proceeding because the record will provide a clearer answer to any objections raised.

As this court recently observed: Although insistence upon adherence to the inquiry . . . may appear to some to require compliance with an empty ritual, it nonetheless brings us one step closer to the elusive goal of assuring that there has been in fact a voluntary plea. . [Fjailure to follow such guidelines tends further to embroil trial courts, and ultimately the appellate courts, in § 2255 litigation which might otherwise be avoided. Brown v. United States, 565 F.2d 862, 863-64 (3d Cir. 1977).

To the criticism that our decision exalts form over substance, we respond by repeating these words of the Supreme Court: It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking. McCarthy v. United States, supra, 394 U.S. at 472, 89 S.Ct. at 1174. V. Horsley’s further claim that he was not advised of the possible consequences of his plea is without merit.

The district court informed Horsley that he could be sentenced to a maximum of 15 years, that he could be fined, and “in addition, because it does involve narcotics, there is a special parole term of at least three years . . ..” Appendix at 12B. This court noted in Kincade v.

United States, 559 F.2d 906, 907 n.1 (3d Cir. 1977), that Rule 11 was amended in 1975 to “eliminate the requirement that the court explain the ‘consequences’ of a guilty plea to the defendant before accepting his plea.” The current rule requires that the judge inform the defendant and determine that he understands “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” The special parole term is part of the maximum possible penalty. See United States v.

Crusco, 536 F.2d 21 (3d Cir. 1971) (special parole term is part of maximum “sentence” and maximum “punishment.”);. Holland v. United States, 427 F.Supp. 733, 740 n.11 (E.D.Pa.1977) (“We include within the notion of ‘maximum penalty’ the requirement that a drug defendant be warned of the possibility of an unlimited consecutive ‘special parole term’ under 21 U.S.Ci § 841(c).”) The district court here adequately explained the special parole term.

For the foregoing reasons, the judgment of the district court will be reversed and the case remanded with instructions that appellant’s sentence be vacated and his plea withdrawn so that he may be permitted to plead anew. . Fed.R.Crim.P. 11 provides in pertinent part: (

c) Advice to Defendant. Before accepting a plea of guilty . the court must address the defendant personally in open court and inform him of, and determine that he understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law . . 4 R Pound, Jurisprudence 5 (1959). . The government refers to several other courts which have adopted

interpretations similar to that of the Second Circuit. The Rule 11 violation in McRae v. United States, 540 F.2d 943 (8th Cir. 1976), was also related to advice on potential sentences. After interpreting Davis, supra, to require a showing of prejudice, the court denied relief because “the maximum period of incarceration would be less than the maximum he had bargained for.” Id. at 946. Another case cited by the government is Bachner v. United States, 517 F.2d 589 (7th Cir. 1975).

Again, the defendant was adequately advised as to the nature of the charges but was not properly informed of a mandatory special parole term. The court denied relief, holding that the defendant was not prejudiced since “[t]he sentence he received was substantially below the maximum he had been told he could receive.” Id. at 597. Similar facts and result can be found in United States v. Hamilton, 553 F.2d 63 (10th Cir. 1977). . Procedurally, Berry was before this court in precisely the same posture as Horsley; both alternatively petitioned for § 2255 relief and moved to withdraw a guilty plea under F.R.

Crim.P. 32(d). . Rule 11(c)(1) provides: (

c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; Del Vecchio, McRae, Bachner, and Hamilton, supra, all addressed violations of the Rule 11(c)(1) requirement that defendant understand “the maximum possible penalty provided by law.” .

The district court, in denying appellant’s petition for § 2255 relief, relied in part on the gratuitous affidavit of appellant’s trial counsel averring his “belief that Mr. Horsley understood the nature of the conspiracy count” at the time of his plea. App. at 6B, 18B. It is precisely to avoid extra-judicial impressions as to whether a defendant “understood” that we insist the “understanding” appear in the record; that the defendant, on the record, be apprised of facts that constitute commission of a crime.