In order to enter a voluntary plea, a defendant must be informed of the nature of the offense and understand each element.[337]  This is the “first and most universally recognized requirement of due process,” because a plea cannot be an intelligent admission of guilt the offense without “real notice of the true nature of the charge.”[338]  Real notice requires the court to explain the acts, mental state and attendant circumstances the prosecution would have to prove to establish guilt at trial. 

 

            In order to enter a voluntary plea, a defendant must be informed of and understand each of the essential elements of the offense.[339]

 

[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of “the law in relation to the facts,” which entails an “understanding of the essential elements of the crime charged, including the requirement of specific intent.”[340]

 

            A defendant’s lack of awareness of facts on which advice is required before a plea can be held voluntary and intelligent renders the plea involuntary, and violates the defendant’s constitutional right of due process.[341]   

 

            California courts hold that the defendant must be aware of the charges pending against him or her, but that the court is not required to explain the technical elements of the offense.[342]  To survive subsequent attack, the record need only reflect that the defendant understood the nature of the charge.[343]  This state standard is invalid under the U.S. Constitution.

            The right to notice of the charge is violated unless the reporter’s transcript of the plea colloquy, plus the written plea agreement if any, reflect that the defendant was advised of all the essential elements, including the statutory elements and any judicially added elements, particularly the mental elements, of the offense to which a plea is entered.

 

“Rule 11 places the obligation on the district judge to comply with the requirements of the rule in order to assure that the plea is knowing and voluntary.”  United States v. Odedo, 154 F.3d 937, 940 (9th Cir. 1998).  “The purpose of Rule 11(c) in requiring the judge to inform the defendant in open court of the nature of the charges and other matters is to create a record complete on its face, to forestall later attacks on the plea.”  United States v. Smith, 60 F.3d 595, 598 (9th Cir. 1995).  In this regard, “[i]t is incumbent upon a district judge accepting a plea to make the minor investment of time and effort necessary to set forth the meaning of the charges and to demonstrate on the record that the defendant understands [the precise nature of the plea].”[344]

 

            In United States v. Bruce,[345] the court vacated a conviction on grounds the district court improperly accepted a guilty plea without sufficiently informing the defendant of the nature of the charges against him.  The court stated: “That brief, vague explanation of the information [‘conspiracy to manufacture methamphetamine’] in no way satisfied the requirement of Rule 11(c)(1) that Bruce be informed of the ‘nature’ of the charge to which the plea is offered.”[346]  “[T]he trial judge’s later comments were inadequate: [they] did not inform the defendant of the nature (as opposed to the formal legal description) of the charges against him.”[347]  “There is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that” the defendant “had the requisite intent” or admitted facts supplying a factual basis for a finding he was guilty of the offense to which he entered a guilty plea.[348] 

 

            “[W]here there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.”[349]  Long ago, Chief Justice Marshall rejected in the strongest terms the proposition that a court should choose the harshest of two interpretations of a criminal statute in order to make the statute more effective at eradicating the evil it is aimed at:

 

The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.  It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not in the judicial department.  It is the legislature, not the court, which is to define a crime, and ordain its punishment.

 

            . . .  It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.[350]

 

            Likewise, the Ninth Circuit recently vacated a plea where the court failed to inform the defendant that his use of a firearm must be during “and in relation to” the drug trafficking.[351]   Where the court failed to take a plea from the defendant as to the quantity of drugs involved, the Ninth Circuit vacated the sentence.[352]

 

            A motion under 28 U.S.C. § 2255 can reach constitutional violations in the entry of a plea of guilty, and nonconstitutional violations if they are substantial and prejudicial.[353]  A showing of actual lack of knowledge is required to establish prejudice in a California habeas corpus proceeding.[354] 

            The U.S. Supreme Court has held, however, that there is a presumption  “that in most cases defense counsel routinely explain[s] the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.”[355]  Thus, it may be assumed that counsel off the record informed the defendant of the elements, but if the elements are misdescribed on the record during the plea colloquy without correction, one cannot assume that counsel off the record did a correct job since a mistaken definition of the offense is spread on the record.  Moreover, the defendant can offer evidence to rebut the assumption that counsel did so off the record, and this issue can be litigated as any other issue of ineffectiveness of counsel that depends on private attorney-client conversations.  For example, counsel can concede that s/he failed to do any more off the record than the court did on the record, thus establishing that the defendant was not in fact made aware of the constitutionally essential elements of the offense.

[337] Henderson v. Morgan, 426 U.S. 637, 647 (1976).  See F.R.Crim.P. 11(c)(1) (requirement that court address defendant personally “in open court and inform the defendant of, and determine that the defendant understands, the following: (1) the nature of the charge to which the plea is offered . . . .”); United States v. Minore, 292 F.3d 1109 (9th Cir. June 17, 2002) (trial court must advise defendant during plea colloquy that government is required to prove amount of marijuana involved to jury beyond reasonable doubt, based on Rule 11(c)(1); where drug quantity exposes defendant to higher than standard statutory maximum sentence, quantity is functional equivalent of critical element.  Plain error rule applies).

[338] Ibid.

[339] Henderson v. Morgan, 426 U.S. 637, 647 (1976).  See F.R.Crim.P. 11(c)(1) (requirement that court address defendant personally “in open court and inform the defendant of, and determine that the defendant understands, the following: (1) the nature of the charge to which the plea is offered . . . .”).

[340] McCarthy v. United States, 394 U.S. 459, 466, 471, 89 S.Ct. 1166, 1171, 1173, 22 L.Ed.2d 418 (1969) (applying Rule 11).  Accord, Sober v. Crist, 644 F.2d 807 (9th Cir. 1981); Hayes v. Kincheloe, 784 F.2d 1434 (9th Cir. 1986).

[341] Blair v. McCarthy, 881 F.2d 602, 603 n.2 (9th Cir. 1989); Carter v. McCarthy, 806 F.2d 1373 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987).

[342] People v. West, 3 Cal.3d 595 (1970); In re Ronald E, 19 Cal.3d 315, 324 (1977); People v. Calderon, 232 Cal.App.3d 930, 935 (1991).

[343] In re Ronald E., 19 Cal.3d 315, 324 (1977).

[344] United States v. Kamer, 781 F.2d 1380, 1385 (9th Cir. 1986).

[345] United States v. Bruce, 976 F.2d 552, 559-561 (9th Cir. 1992).

[346] Id. at p. 559.

[347] Id. at p. 560 [original emphasis].

[348] Henderson v. Morgan, supra, 426 U.S. at p. 646.

[349] United States v. Bass, 404 U.S. 336, 348 (1971).

[350] United States v. Wiltberger, 18 U.S. 76, 95-96 (1820).

[351] See United States v. Seesing, 234 F.3d 456 (9th Cir. 2000).

[352] United States v. Thomas, 355 F.3d 1191 (9th Cir. January 26, 2004) (federal sentence in controlled substances case vacated and remanded, since guilty plea did not encompass the quantity allegation in the indictment, and the defendant neither admitted possessing more than 50 grams of cocaine base during his plea colloquy, nor knowingly waived his right to have a jury determine the question of quantity beyond a reasonable doubt).

[353] United States v. Patterson, 739 F.2d 191 (5th Cir. 1984) (prejudicial violation of Rule 11 required a hearing); United States v. Frye, 738 F.2d 196, 201 and n.6 (7th Cir. 1984); United States v. Mercer, 691 F.2d 343 (7th Cir. 1982) (granting § 2255 relief on nontechnical violation of Rule 11); Godwin v. United States, 687 F.2d 585, 590-591 (2d Cir. 1982) (granting § 2255 relief on grounds trial counsel’s failure to inform defendant of the nature of the charges and to satisfy itself of a factual basis were “substantial”); Mack v. United States, 635 F.2d 20 (1st Cir. 1980) (prejudicial failure to comply with Rule 11 required granting defendant an opportunity to plead anew); United States v. Scott, 625 F.2d 623 (5th Cir. 1980) (defendant alleged he would not have pleaded guilty but for the trial court’s failure to comply with Rule 11).

[354] In re Ronald E., 19 Cal.3d 315 at n.8 (1977).

[355] Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2259, 49 L.Ed.2d 108 (1976).

POST CON RELIEF - GROUNDS - INDICTMENT - DEFECTIVE FOR OMISSION TO STATE AN ELEMENT
United States v. Resendiz-Ponce, ___ U.S. ___ (Jan. 9, 2007) (Ninth Circuit's decision reversing respondent's conviction for illegally attempting to reenter the United States is reversed where the indictment at issue was not defective for failure to omit an element, and consequently, the Supreme Court did not need to answer the question of whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error). http://laws.lp.findlaw.com/us/000/05998.html

Seventh Circuit

POST CON RELIEF - FEDERAL - GROUNDS - NATURE OF OFFENCE - COURT'S FAILURE TO INFORM ILLEGAL RE-ENTRY DEFENDANT OF SIGNIFICANCE OF AGGRAVATED FELONY DOES NOT JUSTIFY WITHDRAWAL OF THE PLEA, BECAUSE IT IS NOT AN ELEMENT OF ILLEGAL RE-ENTRY AFTER DEPORTATION OFFENCE
United States v. Villarreal-Tamayo, ___ F.3d ___, 2006 WL 3055948 (7th Cir. Oct. 30, 2006 ) (court's failure to inform illegal reentry defendant of significance of aggravated felony does not justify withdrawal of the plea, because (1) it is not an element of illegal reentry after deportation offense; (2) it does not define a separate crime, but rather is a penalty provision authorizing an enhanced penalty for violations of 8 U.S.C. 1326(a)); and (3) the Constitution does not require an enhancement based on recidivism to be treated as an element of the underlying offense), following Almendarez-Torres, 523 U.S. at 244-47; see also United States v. Stevens, 453 F.3d 963, 967 (7th Cir.2006) (" [T]he district court does not violate a defendant's Sixth Amendment right to a jury trial by making findings as to his criminal record that expose him to greater criminal penalties."); United States v. Williams, 410 F.3d 397, 401-02 (7th Cir.2005); United States v. Lechuga-Ponce, 407 F.3d 895, 896-97 (7th Cir.2005) (relying on Almendarez-Torres to state "the fact of a prior conviction need not be proven beyond a reasonable doubt").

POST CON RELIEF - GROUNDS - NATURE OF OFFENSE - COURT'S FAILURE TO EXPLAIN ELEMENTS OF OFFENSE
United States v. Jones, 381 F.3d 615, 618-19 (7th Cir. 2004) (affirming district court's denial of motion to withdraw guilty plea premised on a claim that defendant did not understand guilty plea).

Ninth Circuit

APPEALS - FEDERAL - CHALLENGE TO SUFFICIENCY OF INDICTMENT
United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing appeal challenging whether indictment alleges sufficient facts to state offense because challenge must await final judgment after trial; appeal does not fit within "collateral order" exception to rule that only final judgments may be appealed; appeal could not be treated as mandamus because trial court did not clearly err).

Lower Courts of Ninth Circuit

POST-CON - MOTION TO WITHDRAW PLEA - GROUNDS - FAILURE TO UNDERSTAND CHARGES OR IMMIGRATION CONSEQUENCES OF PLEA
United States v. Zeng, __ F.Supp.2d __, 2007 WL 902380 (N.D.Cal. Mar, 22 2007) (granting motion to withdraw guilty plea where Rule 11 violation occurred because defendant was prevented, through cultural mores, from interrupting his attorney during the guilty plea phase, and defendant did not understand the nature of the charges against him, or the immigration consequences thereof, until he was later able to read a Chinese translation of the plea agreement).