UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-20651

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARCUS DAMONE HENRY,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas(Houston Division)

May 8, 1997

Before POLITZ, Chief Judge, and REAVLEY and DENNIS

, Circuit Judges.

DENNIS, Circuit Judge:

The issues presente d are whether the district court, in

accepting defendant’s pleas of guilty to conspiracy to possess more

than 50 grams of cocaine base with intent to distribute and

posses sion of cocaine with intent to distribute, 21 U.S.C. §§

841(a)(1)(A), 841(b)(1)(A), 846 and 18 U.S.C. § 2, varied from the

procedures required by Federal Rule of Criminal Procedure 11, and

if so, whether the variance affected the substantial rights of the

defendant. We affirm. After reviewing the transcript of the Rule

11 hearing we conclude that the district court (1) complied with

the procedure required by F ED .R.C RIM .P. 11(d) to insure that the2

pleas were voluntary; and (2) any variance from its duty to advise

defendant as to his rights to confront and cross-examine witnesses

against him, F ED .R.C RIM .P. 11(c)(3), and as to the po tential

admissibility of his statements made in the Rule 11 proceedings in

a perjury prosecution, F ED .R.C RIM .P. 11(c)(5), did not aff ect the

defendant’s substantial rights.

BACKGROUND

On January 24, 1995, a narcotics officer with the Houston

Police Department receive d information from a reliable informant

that Henry had offered to sell two kilograms of cocaine. As a

result of rec eiving this information, the undercover officer

arranged to buy the cocaine from Henry for $17,500 a kilogram. The

officer met Henry and was shown 36 “cookies” of crack cocaine in a

car trunk. Henry was arrested and 940.6 grams of 80.8 percent pure

crack cocaine was recovered from the trunk of a car.

Henry was indicted on February 27, 1995 with conspiracy to

possess more than 50 grams of cocaine base with intent to

distribute (Count 1) and possession of cocaine base with intent to

distribute (Count 2). Henry was not charged, as his coconspirator, with knowingly using a firearm during and in relation

to the drug-trafficking crimes. 18 U.S.C. § 924(c)(1). At his

rearraingment hearing Henry pleaded guilty to both counts. He was

subsequently sent enced to 168 months imprisonment, followed by a

60-month term of supervised release, and fined $10,00 0. The

sentence reflects a thre e-level reduction for acceptance of

responsibility.3

At the Rule 11 hearing, the Government’s attorney provided the

following factual basis to support Henry’s guilty pleas:

On Wednesday, January 24, 1995, Houston Police Department

[HPD] narcotics officer Don Le Blanc and an HPD confidential

informant [CI] negotiated via telephone and in person to

purchase two kilograms of crack cocaine for $17,500 each.

On Janu ary 24, 1995, an HPD CI contacted HPD narcotics

officer Don LeBlanc and advised LeBlanc that he or she knew of

individ uals who were capable of supplying two kilograms of

crack cocaine.

At approximately 1300 hours the CI met with LeBlanc and

the CI paged a black male later identified as Marcus Damone

Henry.

Henry subsequently returned the call and negotiated with

LeBlanc and stated he was ready to deliver the two kilograms

of crack cocaine.

Henry further requested that LeBlanc and the CI meet him

at a store located at Bellfort and Mykwa [Streets] to conduct

a transaction.

Moreover, Henry also told Officer LeBlanc that “my people

will have the two kilograms of cocaine at the store when you

arrive.” Henry further stated to Officer LeBlanc that he

would be waiting in front of the store wearing red clothing.

Prior to LeBlanc and the CI arriving at the story to meet

Henry HPD narcotics officers established surveillance at area

of Bellfort and Mykawa [sic]. Officer LeBlanc and the CI

arrived at approximately 1350 hours and conversed with Henry.

When he told officer LeBlanc that the cocaine was at his

res idence located behind the store, an unknown black male

further described as five-eight, approximately 22 years of age

approached Henry. Henry asked this person was it okay to give

officer LeBlanc the crack cocaine. This person stated that it

was okay and further advised Henry that he would meet him and

Officer LeBlanc at the residence as soon as he came out of the

store

Officer LeBlanc then saw this person enter th e store.

Henry escorted Officer LeBla nc to Henry’s residence at 6155

Bellarbor, Houston, Texas. Once at this residence, Henry and

Officer LeBlanc met with another black male who was later

positively identified by Officer LeBlanc as Dundre Robertson.

Henry obtained the keys from Robertson to a green

Chevrolet Monte Carlo which was parked in the driveway of the

residence. Robertson said the quality of the crack cocaine

was good and further stated that all 36 cookies of crack

cocaine were present inside the above-mentioned Chevrolet

Monte Carlo.

Robertson stood back as to stand guard as henry proceeded

to open the trunk of the Chevrolet Monte Carlo. The person

arrived at the residence as Henry was about to show Officer

LeBlanc the crack cocaine.4 LeBlanc spoke to this person. Robertson stated to

LeBlanc that this person was very cool. Henry reached into

the trunk of the vehicle and displayed a dark-colored plastic

bag containing a white plastic bag which further contained 12

small pink pouches. Each pouch contained three cookie-shaped

substances which Henry and Rob ertson represented to Officer

LeBlanc as being crack cocaine.

Officer LeBlanc then asked Henry and Robertson where were

the other kilograms of crack-cocaine

-- excuse me

-- cocaine.

Henry stated that someone would bring the other kilog ram of

cocaine to Henry’s residence in 10 minutes.

The prearranged bust signal was given by the officer, and

the surveillance team officers attempted to arrest Henry and

Robertson. While Officer Mark Ahn was attempting to arrest

Robertson, it escalated to a struggle in which Robertson

attempted to remove a weapon from his person, without success.

Once the arrest was effected, Officer Ahn received a 9mm

Baywood semiautomatic handgun from th e front wasteband of

Robertson’s trousers. The weapon was loaded, one round was in

the chamber, and the hammer of the weapon was loaded

-- strike

that -- cocked -- and weapon was in the cocked position.

Officer Ahn also recovered 1200 in U.S. currency from the

person of Robertson. While the officers were attempting to

arrest these individuals, the John Doe escaped without being

apprehended.

Henry ran southbound from the scene and was pur sued by

HPD officers. Henry jumped over several fences and ran

through the yards of several residences. Henry was arrested

after he kicked in the door of the residence located at 6207

Bellcrest and fought with the HPD officer. The resident of

this house did not know Henry and struggled in an attempt to

remove him from the house.

Henry and Robertson were subsequently transported to the

HPD city jail by HPD officers. Officer LeBlanc later field

tested the substance seized, which showed positive results for

the presence of cocaine. The gross weight of the crack

cocaine seized was approximately 967 grams.

Henry agreed that the factual basis was true.

ANALYSIS

A plea of guilty is a “grave and solemn act to be accepted

only with care and discernment....” B rady v. United States

, 397

U.S. 742, 748 (1970); See Boykin v. Alabama

, 395 U.S. 238, 243-244

(1969). Kercheval v. United States , 274 U.S. 220, 223 (1927). A

defendant has a Fifth Amendment r ight not to plead guilty and a5

Six th Amendment Right to demand a jury trial. U nited States v.

Jackson

, 390 U.S. 570, 581 (1 968); Boykin

, i d

. In federal court

Rule 11 makes elaborate provision to insure that the plea is made

voluntarily and intelligently, i.e.

, that the defendant understands

the nature of the charge, his rights, the consequences of the plea,

and that there is a factual basis for the plea. S ee 1 W RIGHT

,

F EDERAL P RACTICE AND P ROCEDURE , § 171.1 at 561-62.

F ED .R.C RIM .P. 11, in pertinent part provides:

Rule 11. Pleas

***

(c) Advice to Defendant. B efore accepting a plea of guilty

. . . , the court must address the defendant personally in

open court and inform the defendant of, and determine that the

defendant understands, the following:

***

(3) that the defendant has the right to plead not guilty or to

persist in that plea if it has already been made, the right to

be trie d by a jury and at that trial the right to the

assistance of counsel, the right to confront and cross-examine

adverse witnesses, and the right against compelled

self-incrimination; and

***

(5) if the court intends to question the defendant under oath,

on the record, and in the presence of counsel about the

offense to which the defendant has pleaded, that the

defendant's answers may later be used against the defendant

in a prosecution for perjury or false statement.

***

(d) Insuring that the Plea is Voluntary

. The court shall not

accept a plea of guilty or nolo contendere without first, by

addressing the defendant personally in open court, determining

t hat the plea is voluntary and not the result of force or

threats or of promises apart from a plea agreement. The court

shall also inquire as to whether the defendant's willingness

to plead guilty or nolo contendere results from pr ior

discussions between the attor ney for the government and the6

defendant or the defendant's attorney.

***

(h) Harmless Error. Any variance from the procedure required

by this rule which does not affect substantial rights shall be

disregarded.

This court which for a time persisted in its earlier view that

some Rule 11 errors require automatic reversal, has now overruled

ma ny of its earlier decisions on this point and held that all

failures to comply with Rule 11 are to be tested by the Rule 11(h)

“substantia l rights” standard. U nited States v. Johnson

, 1 F.3d

296, 297 (5th Cir. 1993) (en banc) (“[W]hen an appellant claims

that a district court has failed to comply with Rule 11, we shall

conduct a straightforward, two-question ‘harmless error’ analysis:

(1) Did the sentencing court in fact vary from the procedures

required by Rule 11, and (2) if so, did such variance affect

substantial rights of the defendant?”).

A. VOLUNTARINESS

The decisions of this court and others antedating Rule 11(h)

and United States v. Johnson continue to provide helpful guidance

in determining whether a district court has performed its Rule 11

duties in general and, in particular, whether it has varied from

the Rule’s requirements to insure that the plea is voluntary.

The Supreme Court has accepted as the s tandard of

vol untariness of guilty pleas, a formulation devised by the late

Judge Elbert P. Tuttle, formerly of this court:

"A plea o f guilty entered by one fully aware of the direct

consequences, including the a ctual value of any commitments7

made to him by the court, prosecutor, or his own counsel, must

stand unless induced by threats (or promises to discontinue

improper harassment), misrepresentation (including

unfulfilled or unfulfillable promises), or perhaps by promises

that are by their nature improper as having no proper

relationship to the prosecutor's business (e.g. bribes).

Brady v. United States , 397 U.S. 742, 755 (1970) (quoting Shelton

v. United States

, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc),

rev'd on other grounds, 356 U.S. 26 (1958).

As this court has observed, no simple or mechanical rule can

b e stated to guide the district court in applying Rule 11( d) to

insur e that the plea is voluntary. U nited States v. Dayton

, 604

F.2d 931, 938 (5th Cir.), cert. denied, 445 U.S. 904 (1979).

However, helpful general observations have been offered: The “more

complex or doubtful the situation as [to whether the plea was

voluntary] ... the more searching will be the inquiry dictated by

a sound judgment and discretion.” I d. Further, “should the

defendant, when addressed by the judge, give any serious indication

that the plea is a result of force or threats or of promises apart

from a plea agreement, the fifth amendment is immediately and

directly implicated, and a most searching inquiry int o these

matters must follow.” Id.

As for the rule’s several injunctions that the tr ial judge

personally address or inform the defendant of matters, a colloquy

conducted exclusively by the judge is not required, although it is

the best practice. Id.8

It will usually suffice, however, that the judge dominate the

inquiry and involve himself personally in it .... We do not

think the spirit or the letter of the r ule require that the

judge be sole orator or lector, especially where multiple

charges and defendants are concerned. Judges, too, get sore

throats.

Id.

The courts in general have been clear that Rule 11 “is not to

be read as requiring a litany or other ritual which can be carried

out only by word-for-word adherence to a set ‘sc ript’.”

Preliminary Draft of Proposed Ame ndments to the Federal Rules of

Criminal Procedure, October 1981, p. 26 reprinted in 91 F.R.D. 289,

326. S ee als o 1 W RIGHT

, F EDERAL PRACTICE AND P ROCEDURE

, § 178, at 673

“Just as ‘mere ritual does not suffice for compliance with Rule

11,' Dayton , 604 F.2d at 943 (5th Cir. 1979), so too ‘ritualistic

compliance is not required.’” United States v. Scharf

, 551 F.2d

1124, 1129 (8th Cir.), c ert. denied, 434 U.S. 824 (1977).

Accordingly, as we have previously indicated, when the inquiry into

t he voluntariness of the plea “has been reasonably implicated in

the Rule 11 colloquy, we will examine its treatment to determine

whether it has been sufficiently exposed to inqu iry and

determination. If so, we will not disturb the result.” D ayton

,

604 F.2d at 940; see also United States v. Abreo , 30 F.3d 29, 31

(5th Cir. 1994), cert

. denied , 513 U.S. 1064 (1995).

Applying these precepts, we conclude that the district court

did not vary from the requirements of Rule 11( d) that the judge9

insure that the plea was voluntary. Clearly revealing that Henry’s

plea was voluntary the following tran spired in the Rule 11

colloquy:

THE COURT: Counsel, let me ask you whether or not you had

sufficient opportunity to investigate the case and are you

satisfied that Mr. Henry understands the nature of the charges

pending against him?

MR. TURNER [DEFENSE COUNSEL]: Your honor we did hire a private

investigator. We investigated the case. We talked with

witnesses. We discussed that thoroughly with Mr. Henry. We

discussed any possible defenses of entrapment, and it was his

opinion and our opinion that he fully understood the nature of

the circumstances of the case and that he voluntarily wishes

to plead guilty. (emphasis added)

THE COURT: Mr. Henry, has [your attorney] spoken truthfully

or correctly as you understand the facts and circumstances, or

is there anything about what he said you would want to change?

DEFENDANT: I understand.

THE COURT: What he said is essentially correct? Is that what

you are saying?

DEFENDANT: Yes, sir.

***

THE COURT: Your attorney has indicated to me he talked to you

about any meritorious defenses you might have or any

possibilities that the case would support going to trial, that

is, there might be some colorful ba sis for you to try this10

case. He indicated he talked to you about that and determined

that it is in your best interest to enter a plea of guilty in

this case. Is it true that he has talked to you about it?

DEFENDANT: Yes. He has.

THE COURT: And it’s your decision as well as his, and on his

advise (sic) and your understanding that you enter pleas of

guilty to these two counts; is that correct?

DEFENDANT: Yes, sir.

***

Moreover, at the Rule 11 hearing Henry testified that he had

attained a ge neral equivalency diploma, could read and write

English, had no mental deficiencies, and was not, at any time,

addi cted to or under the influence of drugs or alcohol. He

recited the e vents leading up to his arrest and admitted that he

knowingly violated the law by participating in a drug transaction.

The Rule 11 transcript indicates that Henry was fully aware of the

d irect consequences of his plea. The case did not present any

complex or difficult situations. The record is devoid of any

evidence sugge sting that Henry’s guilty plea was induced by

threats, misrepresentations, or improper promises. Henry does not

argue tha t his plea in fact was involuntary or resulted from any

form of coercion. The court addressed the defendant directly,

dominated the inquiry and involved itself personally in a colloquy

with the defendant and his attorney. The district court’s partial

reliance in its colloquy with the defendant on a brief reference to

the court’s colloquy with the defendant’s attorney, which occurred11

dur ing the same proceeding in the defendant’s presence, did not

constitute a variance from the letter or the spirit of Rule 11.

Because the sentencing court did not vary from Rule 11 in

performing its duty to insure that Henry’s plea was voluntary, we

do not reach the second question of whether a variance affected his

substantial rights. S ee United States v. Johnson

, 1 F.3d 296, 298

(5th Cir. 1993)(en banc).

B. OTHER ALLEGED VARIANCES BY THE DISTRICT COURT

Henry also assigns as error the district court’s failures to

advise him of his right to confront and cross-examine witnesses who

testified against him, F ED .R.C RIM .P. 11(c)(3), and to warn him of

the potential use against him in a perjury prosecution of his

statements in the Rule 11 proceedings, F ED .R.C RIM .P. 11(c)(5).

The defendant’s arguments and the Rule 11 hearing transcript

do not suggest any way in which the district cour t’s failures to

advise him of his confrontation and cross-examination rights and to

warn him of the potential for perjury evidence in his answers

creates any reasonable doubt as to th e voluntariness and

i ntelligence of the plea. Accordingly, we conclude that Henry’s

substantial rights were n ot affected under the particular

circumstances of this case. S ee United States v. Law, 633 F.2d

1156 (5th Cir.), cert. denied , 451 U.S. 992 (1981); United States

v. Almaguer, 632 F.2d 1265 (5th Cir. 1980); United States v.

Caston

, 615 F.2d 1111 (5th Cir.), cert

. denied

, 441 U.S. 950

(1980). Cf

. United States v. Gastelum

, 16 F.3d 996 (9th Cir. 1994).

In a different case, h owever, the district court’s failure to12

perfor m either of these duties could prove to be harmful,

reversible er ror. Consequently, these duties should never be

shirked.

CONCLUSION

For the foregoing reasons, Henry’s conviction and sentence are

AFFIRMED.