## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 21 1998 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GINA R. GIGOT, also known as Gina R. Herrmann, Defendant-Appellant, No. 97-3117

Appeal from the United States District Court

for the District of Kansas (D.C. No. 96-10025-DES)

James Martin Davis of Omaha, Nebraska, for Defendant-Appellant. Michael G. Christensen, Assistant United States Att orney (Jackie N. Williams, United States Attorney, and Montie R. Deer, Assistant United States Attorney, with him on the brief), Wichita, Kansas, for Plain tiff-Appellee.

Before SEYMOUR , Chief Judge, EBEL and KELLY , Circuit Judges.

SEYMOUR , Chief Judge.1 The facts relating to the substantive charges again st Ms. Gigot and her

actual guilt or innocence are not relevant to this appeal. -2- Gina Gigot was convicted on December 18, 1996, of o ne count of mail fraud in violation of 18 U.S.C. § 1341, and one cou nt of making willful false statements relating to matters before the United St ates Department of Agriculture in violation of 15 U.S.C. § 714m(a), after she pled guilty pursuant to a plea agreement. Following the entry of her guilty plea, the district court sentenced Ms. Gigot on each count to concurrent fifteen-monthterms of imprisonment and three-year terms of supervised release, and orderedher to pay a fine in the amount of $200,000. Ms. Gigot now appeals her conviction, arguing that the district court neglected in various ways to follow Fed. R. C rim. P. 11, and that due to this failure her plea was involuntary and therefore inva lid. We reverse.

I. The facts surrounding the district court’s and the government’s conduct prior to and during the hearing on Ms. Gigot’s pleaare essentially uncontroverted. 1 On February 28, 1996, the government filed a four -count indictment in the district court. Count I charged Ms. Gigot with mail fraud, while Counts II through IV charged her with making willfu l false statements to the Department of Agriculture. After several weeks of trial Ms. Gigot agreed to-3-

plead guilty to Counts I and II and to testify in arelated matter in exchange for the government’s agreement to move for dismissal of Counts III and IV, to recommend a two-level reduction in Ms. Gigot’s sent ence for acceptance of responsibility, and to move for a downward departur e pursuant to section 5K1.1 of the sentencing guidelines to a sentence of eight een months’ home confinement and a $200,000 fine in lieu of imprisonment. Ms. G igot was made aware that the district court was not bound by the plea agreement and could therefore impose any sentence permitted by statute and the relevant sentencing guidelines. However, the plea proceeding was marred by an unfortunate series of events culminating in the present appeal. Rather than personally addressing Ms. Gigot during the change of plea proceeding, the district court directed the governm ent through the Assistant United States Attorney (AUSA) to recite the minimumand maximum penalties for each charge against her. This exchange proceeded a s follows: THE COURT: Would the United States attorney tell the Court for

the record what the penalties are for the crimes alleged in Counts I and II of this indictment? AUSA: I believe the maximum, Your Honor, is 30 years ,

and it’s a minimum of two years. Is that right? MORIARTY: Post-release? AUSA: Yes.-4-

MORIARTY: Two to three years and a fine not to excee d $1

million.

THE COURT: On each count? AUSA: Yes, sir. Aplt. App. at A-6. In discussing the penalties, ne ither the court, the AUSA, nor defense counsel explained whether the penalties app lied to the mail fraud charge, the false statements charge, or both. The same sen tence does in fact apply to both charges. Likewise, rather than explicitly informing Ms. Gigo t of the elements of the various charges, the district court asked Ms. Gigot ’s defense counsel whether he wished to have the indictment read in open court. Defense counsel explicitly waived the reading of the indictment and stated his belief that Ms. Gigot fully understood the charges. When the district court as ked Ms. Gigot whether she understood the charges against her, she replied: “ Yes, I do.” Id. at A-4. This succinct colloquy represents the sum total of the d istrict court’s inquiry into Ms. Gigot’s understanding of the charges against her an d the consequences of her plea. It is undisputed that the AUSA (as well as Ms. Gigo t’s own counsel) misstated the minimum and maximum penalties for the charges against Ms. Gigot. In actuality, because the crimes with which she was charged did not involve a2 The essential elements for obtaining a conviction u nder 18 U.S.C. § 1341

are: (1) the devising of a scheme or artifice either (a) to defraud or (b) for obtaining money by means of false or fraudulent pre tenses, representations, or promises, (2) the specific inte nt to defraud, and (3) the use of the United States mails to execute t he scheme. United States v. Kennedy , 64 F.3d 1465, 1475 (10th Cir. 1995). The essential elements for obtaining a conviction u nder 15 U.S.C. § 714m(a) are: 1) a statement; 2) that is false; 3) the defendant knows it to be false; and 4) the defendant makes it for the purpose of ei ther influencing action of the [Commodity Credit Corporation (CCC)] or obtaining (continued...) -5- financial institution, the maximum penalty was five years’ imprisonment, three years’ supervised release, and a fine not to exceed $250,000. The charged offenses carry no mandatory minimum sentence. It i s further undisputed that the written plea agreement signed by Ms. Gigot during the change of plea hearing made no reference at all to supervised release and did not set forth the maximum penalties for the charged counts. Moreover, the pe tition to plead guilty signed by Ms. Gigot that same day, while correctly stating th e period of supervised release, again misstated the maximum penalty as thirty years . The indictment did not specify the elements of either count with which Ms. Gigot was charged, nor were the elements set forth in the written plea agreemen t signed prior to the change of plea hearing. 2 It is undisputed that the Presentence Investigati on Report (PSR),2 (...continued)

something of value under an act applicable to the C CC. United States v. Huntsman , 959 F.2d 1429, 1437 (8th Cir. 1992).

3 Although she does not dispute the PSR’s statement o f the applicability of supervised release to her case or the maximum and m inimum terms contained therein, Ms. Gigot does contend that she did not un derstand the meaning of “supervised release” at least partly because the PS R did not give a definition. -6- provided to Ms. Gigot two months after the plea hea ring , correctly stated the relevant penalties. 3 It is also undisputed, however, that Ms. Gigot wa s never at any point explicitly informed of the elements of th e charges against her. At sentencing, the district court accepted the gove rnment’s recommendation that Ms. Gigot be fined $200,000. The court declin ed, however, to follow the government’s recommendation to depart downward to asentence of eighteen months’ home confinement and instead sentenced Ms. Gigot to concurrent terms of fifteen months’ imprisonment and three years’ supervised release. Ms. Gigot asserts on appeal that in accepting her p lea the district court failed to follow the procedures mandated by Fed. R. Crim. P. 11. Specifically, she alleges the following deficiencies: 1) the dist rict court failed to advise her personally of any of the penalties she would face; 2) the court allowed her to accept a plea agreement containing a recommended se ntence the court could not legally impose; 3) the court failed to advise her t hat she could face a term of supervised release and the effects thereof; and 4) the court failed to advise her in-7-

any form of the elements of the offenses with which she was charged or the correct minimum and maximum penalties she faced. A s a result of these alleged errors, Ms. Gigot contends her plea was not knowing ly, intelligently, and voluntarily made and must therefore be set aside. We conclude that the court’s failure to advise Ms. Gigot of the elements of the offenses and the correct penalties mandates reversal and we therefore do notaddress her other allegations of error.

II.
A. Rule 11 of the Federal Rules of Criminal Procedure “is designed to assist the district judge in making the constitutionally r equired determination that a defendant’s guilty plea is truly voluntary.” McCarthy v. United States , 394 U.S. 459, 465 (1969). Whether a district court has comp lied with Rule 11 in accepting a defendant’s plea and, accordingly, whether the de fendant’s plea was knowing, intelligent, and voluntary, is a question of law we review de novo . See United States v. Browning , 61 F.3d 752, 753 (10th Cir. 1995); United States v. GomezCuevas , 917 F.2d 1521, 1524 (10th Cir. 1990). Rule 11 provides in relevant part: (c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant pe rsonally in open-8-

court and inform the defendant of, and determine th e defendant understands, the following: (1) the nature of the charge to which the plea is o ffered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicab le sentencing guidelines but may depart from those guidelines und er some circumstances, and, when applicable, that the courtmay also order the defendant to make restitution to any vict im of the offense . . . . Fed. R. Crim. P. 11(c)(1). The court must further determine, “by addressing the defendant personally in open court,” that the plea sought to be entered is voluntary. Fed. R. Crim. P. 11(d). “[T]o determin e whether a plea is voluntary, a court must assess whether the defendant fully under stood the consequences of the plea.” United States v. Williams , 919 F.2d 1451, 1456 (10th Cir. 1990). Although district courts are required to comply with the procedures set forth in Rule 11, their failure to do so does not c all for automatic reversal on direct appeal. Rather, “[a]ny variance from the pr ocedures required by this rule which does not affect substantial rights shall be d isregarded” as harmless error. Fed. R. Crim. P. 11(h). However, subdivision (h) “ should notbe read as supporting extreme speculative harmless error claim s or as, in effect, nullifying important Rule 11 safeguards.” Fed. R. Crim. P. 11 (h) advisory committee’s note (1983 Amendment). Rule 11 clearly contemplates that departures from mandated procedures will be considered harmless only in “lim ited” circumstances. Id.-9-

(“[I]t is fair to say that the kinds of Rule 11 vio lations which might be found to constitute harmless error upon direct appeal are fa irly limited . . .”); GomezCuevas , 917 F.2d at 1524 & nn.2-3 (noting that one who kn owingly and voluntarily pleads guilty evinces a desire to waive “technicalities,” but that careful compliance with Rule 11 remains best way to serve ends of fair and efficient administration of criminal justice); Unit ed States v. Barry , 895 F.2d 702, 705 (10th Cir. 1990) (subsection 11(h) harmless err or rule not applied lightly); United States v. Theron , 849 F.2d 477, 481 (10th Cir. 1988) (same). Appli cation of the analysis contemplated by Rule 11(h) is part of our de novo review of the plea proceeding. See United States v. Vaughn , 7 F.3d 1533, 1535 (10th Cir. 1993). See generallyUnited States v. Dewalt , 92 F.3d 1209 (D.C. Cir. 1996). An error in a Rule 11 proceeding is not harmless un less “we are convinced that . . . substantial rights were not detrimentall y affected and that the district court’s error had no significant influence on [the] decision to plead guilty.” Vaughn , 7 F.3d at 1535. We will not hold a Rule 11 defec t harmless where the plea is a product of a “material misrepresentation” relied on by the defendant.
See Williams , 919 F.2d at 1456. Nor will we find harmless erro r where “[t]here is a reasonable possibility that [defendant] was co nfused in a way that compliance with Rule 11 could have remedied.” Theron , 849 F.2d at 481. This standard was succinctly articulated by the Fifth Circuit as foll ows:4 Versions of this rule are in force in several circu its. See, e.g. , United

States v. Richardson , 121 F.3d 1051, 1058 (7th Cir. 1997) (harmlessness inquiry focuses on “‘whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to a ffect his willingness to plead guilty’”) (quoting United States v. Padilla , 23 F.3d 1220, 1221 (7th Cir. 1994)); United States v. McCarthy , 97 F.3d 1562, 1575 (8th Cir. 1996) (adopting Seve nth Circuit analysis); United States v. Dewalt , 92 F.3d 1209, 1214 (D.C. Cir. 1996) (error harmless if record reveals defendant had actual notice of information court failed to convey or that the information would not have been important to defendant in entering his plea); United States v. G oins , 51 F.3d 400, 402 (4th Cir. 1995) (citing Johnson , 1 F.3d at 302).

-10-

To determine whether a Rule 11 error is harmless (i .e., whether the error affects substantial rights), we focus on whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his wi llingness to plead guilty. Stated another way, we “examine the facts and circumstances of the . . . case to see if the district court’s fl awed compliance with . . . Rule 11 . . . may reasonably be viewed as having been a material factor affecting [defendant]’s decision to plead gu ilty.” United States v. Johnson , 1 F.3d 296, 302 (5th Cir.1993) (en banc) (quoting United States v. Bachynsky , 934 F.2d 1349, 1360 (5th Cir. 1991) (en banc)). 4 This formulation of the inquiry is faithful both to the constitutional concerns Rule 11 was meant to further, as well as t o the requirement that errors in such proceedings be carefully scrutinized in order to ensure that pleas are not set aside for purely formal reasons. In applying this standard, we keep in mind that “‘the values lying at the heart of the rule’s conce rns [are] absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea.’” Gomez-Cuevas , 917 F.2d at 1525 (quoting United States v. Dayton , 6045 The government acknowledged at oral argument that M s. Gigot was not

explicitly informed of the elements of the offenses , that she was misinformed of the penalties, and that neither the government nor the court had any reason to believe Ms. Gigot had a correct understanding of any of these issues at the time of sentencing. The government further acknowledged th at neither it nor the court had any basis on which to conclude Ms. Gigot had any idea she could make a motion to the district court to withdraw her plea. Finally, the government conceded neither the government nor the court ever told Ms. Gigot she had received inadequate and incorrect information, and that the record offers no basis on which to conclude that Ms. Gigot had sufficient information to prompt her to make a motion to withdraw in the district court bas ed on Rule 11 violations. -11- F.2d 931, 939 (5th Cir. 1979) (en banc)).

B. Ms. Gigot alleges that the district court’s failure to inform her of the elements of the crimes with which she was charged, as well as its failure to inform her of the proper penalties she faced, kept her from making a knowing, intelligent, and voluntary plea. At oral argument the government candidly (to its credit) admitted the procedural deficiencies in Ms. Gigot’s change of plea proceeding. 5 Ms. Gigot did not receive explanation of the elem ents of the charges from any other source. Moreover, not only did she fail to receive notice of the proper maximum penalties she faced, Ms. Gigot was a ctually given material misinformation. Rule 11(c) requires the district court to inform th e defendant of and to ensure she understands the nature of the offenses t o which she is pleading. While-12-

the procedures mandated by Rule 11 are not themselv es constitutionally required, the court is constitutionally required to determine that a defe ndant’s plea is “truly voluntary.” McCarthy , 394 U.S. at 466. “Moreover, because a guilty ple a is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an underst anding of the law in relation to the facts.” Id. In most cases, therefore, “[s]ome rehearsal of t he elements of the offense is necessary.” United States v. Syal , 963 F.2d 900, 905 (6th Cir. 1992). In this case, it is undisputed that Ms. Gig ot was never informed by the indictment or otherwise of the elements of the offe nses to which she pled guilty.
See supranote 2. It is also undisputed that the charges ag ainst Ms. Gigot were far from simple or straightforward. Although the indic tment details certain acts Ms. Gigot is alleged to have committed, it does not exp lain the legal significance of those factual allegations, set out each element of the offenses, or in any way identify what the government was required to prove in order to obtain a conviction. See Syal , 963 F.2d at 905. While Ms. Gigot did sit through several weeks of trial, she entered her plea prior to the r eading of any jury instructions and the trial itself did not otherwise reveal the e lements of the offenses. Id. Nor did the court inquire into the basis for Ms. Gigot’ s belief that she was guilty of the crimes charged. Compare Gomez-Cuevas , 917 F.2d at 1525 (finding harmless error where it was clear from defendant’s statement s at plea hearing that he6 In her brief, Ms. Gigot argues that in deferring to the AUSA, the district

court violated the plain terms of Rule 11(c) which provides that “the court must address the defendant personally and in open court. ” Because we vacate the plea on other grounds, we do not reach this claim or con sider whether such error may be harmless. Nor do we reach the question of wheth er such an error might be held harmless in a case (unlike this one) where the information provided by the government is correct. However, we do point out th at the Advisory Committee’s notes specifically provide “it would notbe harmless error if the trial judge totally abdicated to the prosecution the responsibility forgiving to the defendant the various Rule 11 warnings, as this ‘results in the c reation of an atmosphere of subtle coercion that clearly contravenes the policy behind Rule 11.’” Fed. R. Crim. P. 11(h) advisory committee’s note (1983 Amen dment) (quoting United States v. Crook , 526 F.2d 708 (5th Cir. 1976)). -13- understood elements of offense even though elements not formally explained). Rule 11(c) also requires the district court, prior to accepting a plea, to inform the defendant of the maximum possible penalty and any mandatory minimum penalty. In this case, the district court (through the AUSA) 6 misinformed Ms. Gigot that the maximum penalty for the offense with which she was charged was thirty years when in fact it was fi ve years, and that the maximum fine was $1 million when the correct amount was $25 0,000. This error was repeated in the petition to plead guilty, which Ms. Gigot signed and certified she “understood.” Obviously, however, this “understand ing” was based on an underlying erroneous predicate. A plea must “const itute a deliberate, intelligent choice between available alternatives” in order to be knowingly and intelligently made. United States v. Rhodes , 913 F.2d 839, 843 (10th Cir. 1990) (quoting United States v. Fernandez , 877 F.2d 1138, 1142 (2d Cir. 1989) (internal-14-

quotations omitted)). Because Ms. Gigot did not kn ow the elements of the crimes with which she was charged and because she was not informed of the correct penalties for those crimes, her plea necessarily wa s not a “deliberate” choice between “available alternatives.” We must next address whether these deficiencies in Ms. Gigot’s plea affected her substantial rights or were “minor and technical violation[s] of Rule 11 which amount[] to harmless error.” Fed. R. Crim . P. 11(h) advisory committee’s note (1983 Amendment). We conclude that the district court’s failure to ensure that Ms. Gigot was informed of th e elements of the crimes with which she was charged, its failure to inform her of the correct maximum penalties she faced, and the fact that the record contains no evidence she actually did know the elements or the penalties, when taken together, would have been reasonably likely to affect Ms. Gigot’s decision to plead guil ty. In particular, as we have pointed out above, Rule 11(h) “should notbe read as . . . nullifying important Rule 11 safeguards,” id. Here, two of the three core values of Rule 11 wer e not served. First, the record contains no evidence that Ms. Gigot could have or did understand the charges against her. Moreover, give n that she was inundated with erroneous information regarding the maximum penalty , she could not have had knowledge of the direct consequences of her plea. That the correct penalties were at long last set forth in the PSR does not cure the defects in the Rule 117 It is worth noting in this context that Ms. Gigot’s trial counsel contributed

to the misinformation that abounded at the plea pro ceeding and apparently did not notice the procedural defects prior to or at senten cing. -15- proceeding, not least because Ms. Gigot did not rec eive the PSR until after her plea had already been accepted. See Goins , 51 F.3d at 404 (holding violations of Rule 11 cannot be cured by the PSR). That Ms. Gigot subsequently received a sentence farless onerous than the thirty-year maximum she believed she faced does notfavor the government. It is more than possible that Ms. Gigot might have chosento take her chances with a jury trial had she thought the worst-case scenario was a five-year prison sentence and a $250,000 fine rather than the thirty years of confinement and $1 million fine she mistakably believed she faced. Moreover, we do not find Ms. Gigot’s failure to attempt to withdraw her plea prior to se ntencing significant as she was operating under misinformation up until the moment she was sentenced and beyond. 7In short, a case such as this one, where the defe ndant was not merely deprived of a mandated procedure but was actually d eprived of the substantive material information contemplated by Rule 11 as necessary to make a vol untary plea, is not one of those “limited” instances in wh ich we will hold an error to be harmless on direct appeal. See Theron , 849 F.2d at 481; see also United States v. Longoria , 113 F.3d 975, 977 (9th Cir. 1997) (harmless errormeant to apply to “minor or technical” violations of Rule 11). We th us cannot conclude Ms.-16-

Gigot’s plea was entered knowingly, intelligently, and voluntarily.

III. In conclusion, the district court’s failure to info rm Ms. Gigot of the charges against her and the correct penalties she faced in violation of Fed. R. Crim. P. 11 was not harmless. Because Ms. Gigot’s substantial rights were thereby impaired,

we REVERSE and REMAND to the district court with instructions to vacate the guilty plea and conduct further proceedings consist ent with this opinion.