Warren E. Burger: We’ll hear arguments next in 71-6757, Fontaine against the United States. Mr. Umin, you may proceed.
Steven M. Umin: Mr. Chief Justice --
Warren E. Burger: We’re running, as you know, a little over and we’ll hope that you will move right along with your argument.
Steven M. Umin: I’ll do my best, Your Honor. Mr. Chief Justice and may it please the Court. This case here on writ of certiorari challenges the validity of a guilty plea, federal armed bank robbery, entered by the petitioner David X. Fontaine in Federal Court in November of 1969. The issues that the case raises were each presented pro se by Mr. Fontaine in his motion to vacate sentence under 28 U.S.C. 2255 and with the Court’s permission, I'll indulge in some oversimplification initially and define those issues as follows. First, whether 2255 entitled the petitioner to an evidentiary hearing upon his concrete allegations which he had threw -- which show that his guilty plea was coerced. And second and even more important, I would suggest, the threshold issue of whether petitioner’s guilty plea is void on the face of the existing record, without further evidentiary hearing, for want of a valid Sixth Amendment waiver of counsel. The procedural history of this case is the history of inattention to to detail. In the face of the petitioner’s concrete allegations, the police’s physical and mental abuse, United States Attorney declined even to answer those specific allegations. The District Court nonetheless denied the petitioner’s claims summarily without a hearing, his waiver of counsel points on the ground that the petitioner had participated in a Rule 11 proceeding at guilty plea and his voluntariness claim on the same ground. The Court of Appeals typical of the inattention paid to this case, affirmed the summary denial below in one sentence and that sentence contained an error, an error dealing with the ground of decision by the District Court. This Court granted certiorari and appointed counsel. I mentioned the appointment only to highlight that the absence of counsel at all prior stages of this case and most particularly at the guilty plea itself is the critical fact at hand. From arrest through custody, through plea and sentencing, the absence of counsel raises the federal issue whether this record, the existing record made at the guilty plea, discloses a waiver of counsel compatible with the Sixth Amendment standards. The issue must be framed precisely. This is not a question of whether at a guilty plea proceeding there was an offer of counsel and a rejection of counsel. We can argue about that. I do believe that the record shows something resembling an offer and something resembling a rejection. But the question is whether even if there was a meaningful offer of counsel and an offer of reject -- and a rejection of counsel, the circumstances of that offer and rejection disclose an understanding and intelligent waiver under the Sixth Amendment. To quote from Carnley against Cochran, “In the absence of an understanding of an intelligent waiver anything less is not waiver.” Let me say one word if I may about the position of that issue in this case. It stands as point number four in the petitioner’s brief on Page 47. In my judgment and I would respectfully submit it to the Court, it’s point number one in the case. So, I’m something in the position of a college debater that I once heard who perhaps over-tied to the structure of his own argument, had to begin by announcing to his audience that I have four points to make, let me make the fourth one first. The waiver of counsel point is indeed number four in the brief, but it’s number one the case. Let me turn to the facts that surround the waiver of counsel point, making two things clear at the outset. Absolutely nothing about that point depends upon the truth or falsity of the petitioner’s allegations pertaining to police abuse or coercion. Likewise, absolutely nothing about the waiver of counsel claim depends upon the Trial Court’s alleged compliance with the Rule 11 at the guilty plea proceeding. The waiver of counsel point depends entirely upon the record made at that proceeding for it’s the record which must disclose whether there was not merely an offer and rejection of counsel but an understanding, an intelligent one. It is the record to which Johnson against Zerbst, Carnley against Cochran and Boykin against Alabama refers. That record shows that the petitioner was arrested on October 21, 1969. That with the exception of a hospitalization he was in continuous custody. It is un-denied on the record that he was never arraigned at which time he might have been informed of his right to counsel. Even those facts are strictly speaking irrelevant. The first fact which is critical is that during his custody, he signed two pieces of paper, alleged waivers of grand jury indictment and counsel. And on November 13, he came to Court in the company of United States Attorney without a lawyer and the plea proceeding took place. I could read all of that proceeding to this Court in approximately four minutes at a reasonable pace. Doubling the time, let’s assume that plea proceeding took eight minutes in Federal Court. There is of course no time requirement on a guilty plea proceeding but I would submit that it is some index, the brevity of this proceeding is some index of the care and attention that was paid to the plea proceeding as a whole and to the question of the waiver of counsel, and I would read for you only that part of the proceeding which deals with the waiver of counsel, the very beginning of it and I’ll be very brief. The United States Attorney on page 3 of the appendix, Mr. Chief Justice, the Assistant United States Attorney, Mr. Zanglin (ph) begins, “Your Honor, this is an arraignment on an information charging the defendant with armed bank robbery. He’s been given a copy of the information. He acknowledges that he understands it and knows what the maximum penalty is. I have explained to him his right to an indictment by a grand jury. He has waived that right and signed a waiver of rights form. He understands that he has a right for an attorney at this time and informs me that he wants to waive that right and has signed the waiver of that right. Knowing all of these rights, he informs me he intends to plead guilty of the information.” The Court, “You are Mr. David Fontaine?” Defendant Fontaine, “Yes sir.” The Court, “Did you ever receive the copy of the information here, the charge against you for armed bank robbery, is that right?” Defendant Fontaine, “Right.” The Court, “The first thing of consequence is that you have signed also a waiver of grand jury indictment which means you are entitled to have this matter first submitted to a grand jury and a determination made by that body and an indictment returned first.” If the Court please, may I pause there to indicate that the trial court in accepting a plea first emphasizes the waiver of grand jury indictment out of court and then to the extent that it defines waiver at all defines it exactly erroneously. A waiver of a grand jury indictment does not mean that you are entitled to have this matter first submitted to as grand jury. It means exactly the opposite of that. The Court then continues, “Do you understand that the rights you have there under? Anyway, that’s what you will get if you wanted it to go to the grand jury.”
Warren E. Burger: Don’t you think that cleared up whatever ambiguity troubled you about the first fact?
Steven M. Umin: I think not, Your Honor because all the Court does is ask the defendant, do you understand that and the rights you have there under? If he understood that, that definition of waiver, he would be understanding precisely the opposite of what waiver was. Anyway, the Court says, “That’s what you will get if you wanted it to go to the grand jury.” Defendant Fontaine, “Yes.” The Court, “You have signed a waiver of that right, am I right?” Defendant Fontaine, “Yes, sir.” There’s no indication by the Court at that time that the defendant was free at that point to reconsider his waiver. So, the whole issue of waiver introduced by the Trial Court without any suggestion that prior waivers made out of Court and in custody can be reconsidered and then the Court addresses the critical counsel point. The Court, “In addition, you are entitled to be represented by an attorney And if you are without funds with which to employ an attorney, the Court will appoint one for you. The Court has here before it a waiver of an assignment of an attorney. Is it your wish to proceed here without an attorney?” Defendant Fontaine, “I guess so.” The Court, “You have got to know so.” Defendant Fontaine, “Yes sir.” I would submit to this Court that that part of the plea proceeding which is all there is, on the question of the waiver of counsel is deficient in multiple respects. First, there is no explanation at all in that part of the proceeding or anywhere else, as to what a guilty plea is, what rights it waives, and what right exists to plead not guilty. Under Boykin against Alabama, a State case, but decided under federal constitutional standards, that alone is sufficient to condemn the plea and force vacation of this conviction, but there’s more. The Court gave no explanation that a guilty plea does not entail the waiver of counsel. Indeed the opposite impression is left by the Court’s indication that you have got to know that you want to waive counsel. I don’t suggest that’s the only implication to come out of that sentence, but it’s a fairly likely one. And a layman is all too likely to consider a guilty plea as the equivalent of an abandonment of the lawyer. The lawyer is useful for the fight for the time of trial, but if you’re going to plead guilty, you certainly don’t need a lawyer. And I suggest, in order to correct that impression, to make sure that an understanding and intelligent waiver of counsel takes place is the obligation of the Court accepting a guilty plea to indicate when a waiver of counsel is possible, is tendered that a guilty plea does not entail a waiver, nor of course is there any explanation of the role of counsel to guilty plea, of his critical role in plea bargaining. This case does not indicate that any plea bargaining took place, indeed the sentence of 20 years with a maximum 25 suggest it didn’t. And there were also lesser included offenses to federal law in bank robbery, which were never mentioned by the Court and which could be very vital indeed in plea bargaining. The absence of any mention of lesser included offenses is, in my judgment, sufficient to condemn this plea under McCarthy against the United States where this Court did not quite hold that lesser included offenses had to be mentioned as part of the explanation to the defendant of the nature of the charge that was involved, but it strongly suggests in footnote 20 that where lesser included offenses are involved, the defendant cannot understand the nature of the charge without being told about it. Boykin and McCarthy thus far condemn the plea, but there’s still more. There is no statement by this Court that the Court thinks that counsel would be desirable. That a waiver of counsel is ordinarily not preferred. Indeed as this Court has put it on many, many occasions, every presumption is indulged against waiver. The system really has no interest in an un-counseled guilty plea although it has an interest guilty pleas generally. Nor when the petitioner indicated that he had guessed he did not want to proceed with a lawyer, did the Court take any concern or pains to clarify that ambiguous rejection to indicate at that point that he was offering a lawyer for this plea, to do anything at all to suggest to the defendant that this was not the time to guess about whether he wanted a lawyer or not. If you’re in any doubt at all, the Court advices you to have one, instead --
William H. Rehnquist: Isn’t that a fair intimation of the judge’s comment you have got to know so?
Steven M. Umin: I think it would probably be fair to say, Mr. Justice Rehnquist that something would depend on how -- what kind of tone of voice the trial judge said, “You got to know so.” I mean if he said, “You got to know so” that might mean to a defendant, in order to plead guilty, you got to know that you don’t want a lawyer which indeed would be the common sense interpretation that a layman might draw. After all, I don’t need a lawyer to fight, I’m giving up, so I don’t need a lawyer. Or alternatively, it might have meant, I don’t want you to guess.
William H. Rehnquist: But the whole proceeding statement of the Court was addressed to the availability of counsel and not to the plea of guilty. As I read that proceeding I think beginning, in addition, you’re entitle to be represented by an attorney?
Steven M. Umin: That’s really true Mr. Justice, but it’s never made clear that powerfully that by entitled to be represented by an attorney, the Court meant, an attorney right here now, at this guilty plea. An implication from that is, if you want to go forward with your plea, you’ve got to know that you don’t want a lawyer. If you want to go to trial, then you want -- then you may want a lawyer. Now, I don’t suggest, Mr. Justice Rehnquist that’s the only interpretation of this language. I suggest that when solemn occasion of a guilty plea is in front of the Court, there’s no room for ambiguity. I suggest that we hark back to the language of Mr. Justice Black in Johnson against Zerbst when he said that an attendant of un-counseled guilty plea presents to the Court an occasion for the protection of the Court, presents to the Court an occasion at which the Court has to take the greatest care that an un-counseled guilty plea is really the intelligent desire of the petitioner. And a Court that would let the kind of colloquy that I’ve read, that is reflected on the circuit go by with the kind of ambiguities that ere in it, I suggest to you is not the sort of Court that has taken the kind of protection to see to it that the defendant understands what it means to have lawyer at a guilty plea and has then made a voluntary rejection of it. The Government’s answers to these arguments consist of four. That there was an offer and a rejection something that the petitioner does not challenge, although one could say that the offer wasn’t all that clear in this respect. That the Court was offering a lawyer for his guilty plea proceeding and indeed that the rejection wasn’t all that clear. The Government says that the ambiguity may have been ambiguity in the rejection, I guess so, may have been cured by matters of tone of voice at the pleading and I don’t doubt that either. But the question is not whether there was simply an offer and an equivocal rejection, although I suggest that this Court should require absolutely unequivocal waivers of a lawyer. The question is to whether --
Warren E. Burger: Mr. Umin, are the matters on the bottom half of page five and six irrelevant to the points you’re making now?
Steven M. Umin: Yes, they are.
Warren E. Burger: HIs detailed description of the crime?
Steven M. Umin: I would submit Your Honor that that the description of the crime is entirely relevant to the question of waiver of counsel but I would also quarrel with the suggestion that it was a detailed description of the crime.
Warren E. Burger: You said it’s entirely irrelevant?
Steven M. Umin: Yes, for the question of whether a man knows whether you have got a lawyer or not.
Warren E. Burger: Does it have any bearing on the question of his own evaluation of his need for a lawyer?
Steven M. Umin: I think not, Your Honor. He may feel that he held up a bank or participated in holding up a bank, but he may not know for example that if you -- that if you didn’t have the gun, you might be chargeable under 21-113 (a) which is a lesser included offense, something a lawyer could help him with. Or indeed, if you just leave the bank with someone else’s money, you’d be chargeable under 21-113 (c) punishable by only one year in prison.
Warren E. Burger: But by his own statement, he’s done all of these things. He had a gun and he took the money?
Steven M. Umin: He never specifically says he had a gun and indeed he doesn’t really give a narrative of any kind, Your Honor. What he does is respond to the Court’s questions. “What did you do on October 8?” “I held the bank up.” The Court, “What?” Defendant Fontaine, “I held up a teller.” The Court, “You held up a teller.” Defendant Fontaine, “Yes sir.” The Court, “Did you take from him some $1400 plus?” Defendant Fontaine, “Yes sir.” Now, that is certainly an acknowledgment of some of the details of the crime. There’s no question about that.
Warren E. Burger: It only goes [Voice Overlap].
Steven M. Umin: Though it’s the kind of acknowledgment, I might add, that you would expect from someone who was coerced, it's the response to fairly abstract questions about a bank robbery.
Warren E. Burger: What’s abstract about the question “And by the use of a gun, a pistol, right?” And he answers, “Right.”
Steven M. Umin: I don’t see that question here Your Honor but did you --
Warren E. Burger: [Voice Overlap] way down, “And by the use of a gun.”
Steven M. Umin: Oh, quite right and by the use of the gun pistol, right. No, I don’t mean that --
Warren E. Burger: Then he repeated that by going from the abstract, if you want to describe it that way to the concrete, he said, “What did you do on October 8?” And his answer was “I held a bank up.” “What?” “I held up the teller.” Anything ambiguous or evasive or uncertain about that?
Steven M. Umin: One of the things this plea proceeding does not include and which I believe is in response to your question also is that federal crime requires that it'd be a federal bank and for that purpose although it may have been used but I don’t mean, perhaps I should recede to some extent from the notion that the statement of what you did on a given day is wholly irrelevant to your need for a counsel.
Warren E. Burger: Do you question whether -- do you now question whether it was or was not a federal bank?
Steven M. Umin: I don’t question it, Your Honor, but I have no idea whether it was or wasn’t a federal bank. There’s nothing in this record that would suggest that it was --
Warren E. Burger: Are you sure that it’s not a federal--
Steven M. Umin: Federally insured bank, right. There’s nothing in the record suggesting one way or the other, no mention by the Trial Court of that issue which is of course an element of the offense and since it was not mentioned at the plea, is yet another basis if this Court needs one to condemn this case and this plea under McCarthy against the United States. It’s a rather technical basis and I think the much more important holding of this Court, if I can presume to suggest one is that waivers of counsel obtained in District Court ought to be obtained with the greatest care and the greatest concern that a defendant understands what he’s doing, that he is told about plea bargaining. That he is told what the elements of the defense are. That he is told that a lawyer can be very useful to him indeed at the time of the guilty plea and that the Court is absolutely certain that the defendant understands those things if he wishes to waive, waive a lawyer.
Warren E. Burger: I suppose your observations would also relate to his response when he explained why he was tendering a guilty plea on this next page. “Well, Your Honor, I wish you would accept my plea on the fact that I have never had a past record. I got strung up on drugs and I started to make some money.”
Steven M. Umin: Indeed, it would, Your Honor because that language suggests that the defendant may have confused a plea of guilty with a plea for mercy. The state of his mind isn’t entirely clear at that point at all and I think that at that stage, it was an obligation of the Court to investigate the question of drugs and to find out, for example, whether this defendant was mentally incompetent as he now alleges because of drugs. Instead, the Court with characteristic inattention ignores the issue altogether. If the defendant had a lawyer at that point, he may indeed have been in some, “You spoke to the defendant and to the Court on that question.”
Thurgood Marshall: Is there anything in the record of what the US attorney told him?
Steven M. Umin: Only the abstract statements at the beginning but even if we had --
Thurgood Marshall: Obviously, they had been together and they had been discussing it because they already had two waivers signed, right?
Steven M. Umin: At least the US attorney had been with him. I presume it’s the petitioner’s allegation that the waivers were signed back in the police station when State and federal police were really -- even if we had, however, the clearest kind of information related by the US Attorney to the petitioner.
Thurgood Marshall: This declares probably one-sided plea bargaining?
Steven M. Umin: One-sided plea bargaining, if any plea bargaining at all. Even if, -- all I want to say on that one was that even if--
Thurgood Marshall: There’s not been a record on it, just assumptions that a plea can make?
Steven M. Umin: Just assumptions, pardon me?
Thurgood Marshall: There is nothing in the record that the US Attorney discussed this case outside of the Court with the petitioner?
Steven M. Umin: None in terms of plea bargain. There’s something in the record suggesting that the US attorney had advised him of certain rights. Even if that advice had been given, however, this Court has never accepted non-advisory advice as the representation of counsel within the meaning of the Sixth Amendment and as against California being a instance of that. The petitioner has asked the Court to vacate the guilty plea or to order that it'd be vacated by the District Court as void then on a number of grounds. First on the ground that there was no intelligent waiver of counsel, that this record does not disclose any intelligent waiver of counsel and that no remand is required for that purpose. Conley and Boykin standing for that proposition. Second that the nature of the guilty plea was inadequately explained and that Boykin alone condemns the plea on that ground. Thirdly, that for technical, and if you will, spiritual reasons, the Rule 11 was not complied with either in technical sense or in terms of its spirit, in that the Trial Court failed to spell out fully the elements of the offense and failed to inform the petitioner the lesser included offenses. On anyone of those grounds, this Court should remand to the District Court for a vacation of the plea without further evidentiary hearing if however all of -- pardon me.
Byron R. White: You say that after he was arrested, was he is taken before by commissioner or--?
Steven M. Umin: He alleges that he was not Your Honor and the United States Attorney never denied it. To this date no one has denied that he was never taken before United States Commissioner.
Byron R. White: But he was government's bound over?
Steven M. Umin: I don’t know what happened. The record does not illumine how he got from his home on October 21 to the Courtroom on November the 13th. Safe to say that he alleges continuous custody, abusive continuous custody, never got before a magistrate and did in fact appear in Court on November 13, a period of some three weeks. And whether he was bound over by any -- something of like a grand jury, we know that he waived indictment.
Byron R. White: Information (Inaudible)
Steven M. Umin: Ultimately, yes, an information substituted for a grand jury indictment. So, we know that no grand jury bound him over and there has been no denial that no United States Commissioner bound him over or that he waived either grand jury indictment or preliminary hearing. So there’s nothing in the record on that point whatsoever.
Potter Stewart: And the record does show that during part of that period, he was in the hospital?
Steven M. Umin: Yes. But no indication that that hospitalization in any way broke the custody or the chain of coercion which he alleges. It’s to that chain of coercion that I would now turn for the second point in the case which was featured in the petition for certiorari and may have been the reason for this Court’s grant of it. That is petitioner’s contention that 2255, Title 28 of United States Code guarantees him an evidentiary hearing upon concrete allegations of coercion which he proved would show that his guilty plea was coerced unless, the files and records of the case conclusively show that he’s not entitled to such a hearing. On this wing of the argument, let me make clear if I can what is not in dispute. It is not in dispute here that petitioner’s allegations are sufficient to show coercion to be true. It is not in dispute that such allegations were traditionally heard in federal habeas corpus. It is not in dispute that 2255 and its conclusively language was enacted against the background of the habeas corpus cases and carries forward the understanding of those cases. The cases of Waley against Johnston and Walker against Johnson are conspicuously absent from the Government’s brief and that is because they stand for the proposition, later embodied in the conclusively language that a trial court on a 2255 motion save in cases of inherent incredibility, it has no credibility function to perform until it holds an evidentiary hearing. Likewise, it is not in dispute that subsequent to the enactment of 2255, in Machibroda against the United States, in Sanders against the United States, this Court confirmed that save for cases of inherent incredibility, an evidentiary hearing must be held upon allegations which are sufficient to grant relief. Nor is it in dispute that in Kaufman against United States, this Court applied Townsend in the same criteria to the question of when an evidentiary hearing should be held and indicated that those criteria were fully applicable under 2255. The Government’s arguments instead to justify the denial of the hearing in this case are two-fold. First that by participating in the guilty plea proceeding, in alleged conformity with Rule 11 and I submit, Rule 11 was not complied with, the petitioner in effect forfeited his right to an evidentiary hearing. That argument has two principal characteristics. It’s an old one and it’s a bad one. It’s an old argument because it wasn’t advanced in substance in Waley against Johnston. Waley who was represented against -- represented by counsel had a guilty plea, later alleged that he had been coerced to plead. But the Court of Appeals held that his participation of the plea proceeding with counsel, in effect, waived his right later to attack that plea. The Solicitor General at that point confessed error and this Court held that if the coercion was sufficient to obtain the plea, it surely is sufficient to negate any suggestion that at a plea proceeding, the petitioner waived his right later to attack it. So, the first forfeiture argument is an old argument that this Court has already rejected. The second argument, it is likewise a poor argument I would suggest for a couple of reasons. First, it ignores that petitioner in this case, although he did participate in a Rule 11 proceeding in which time he indicated that his plea was voluntary, has alleged that in fact, he was coerced to plea and the argument of the Government ignores that the coercion alleged applies not only to the guilty plead itself but the statements made thereafter, including the statement that the plea was voluntary. The Government suggests that in certain circumstances, it maybe reasonable to suppose that a defendant would not raise the issue of coercion at a plea, but in such as where he has been told by a prosecutor not to reveal his promises to judge or his own lawyers such as Machibroda. But in the ordinary case, when a defendant participates in a plea, he should not later be allowed to attack the plea as involuntary if he didn’t object to voluntariness at the time of the plea. First of all, this petitioner does tender the allegation that the police coercion extended not only to the plea itself but to the plea proceedings and so he has suggested a special reason for not having mentioned the voluntariness in the courtroom. Moreover, however, the Government’s suggestion that participation of plea proceeding breaks the chain of coercion in effect and thus ensures that a statement of voluntariness at a plea proceeding is a valid one which cannot later be attacked. The Government’s suggestion that the chain of coercion has been broken by that kind of participation in the plea proceeding assumes the very question that an evidentiary hearing is designed to test. Whether in fact, there was any break in the chain of alleged coercion if coercion did in fact take place. Whether the plea proceeding was effective in enabling the defendant to come forward and say, “No, Your Honor, I was coerced. It’s not voluntary.” And indeed, certain kinds of plea proceedings might be ones which this Court could trust when defendants made expressions of voluntariness therein as being the kind of plea proceeding which would later bar him from attacking the plea in collaborating. Such as a plea proceeding in which the defendant is represented by counsel or a plea proceeding in which the Rule 11 procedure is not engaged in the form of ritual as it was here, but is a genuine inquiry by the Trial Court into the nature of the charge, the defendants understanding of it and his voluntary participation in the plea proceeding.
William H. Rehnquist: Mr. Umin, was the District Judge that heard, the Judge Kathlan (ph) who wrote the opinion in habeas corpus, was he the sentencing judge?
Steven M. Umin: Yes, he was, Your Honor. That’s not a new circumstance in cases under 2255. In Machibroda for example, the same judge who took Machibroda’s plea was the sentencing judge and this Court did not find that sufficient to enable for example the trial judge to say, “Well, I saw him at the plea and I know it was voluntary.”
Warren E. Burger: Doesn’t the statute require that if he’s available, they have the same judge.
Steven M. Umin: No, Your Honor, it does not. It does not.
Warren E. Burger: Then maybe it’s just the practice.
Steven M. Umin: I think it frequently is. Finally the Government argues that the files and records of this case conclusively show in effect that the petitioner was a liar and they alleged that it took them 18 months to file a petition under 2255. He also filed a brief of law in conjunction with it. He was 26 years old at the time and it might take someone 18 months to file the kind of brief he did in fact filed. The Government alleges that in exaggerating his illnesses and his hospital appearances, the petitioner confused one hospital record with another as if to say no evidentiary hearing is necessary because the hospital records refute the petitioner’s claims. The hospital records, this Court will --I submit to this Court, should be investigated quite carefully and none of them were written at the time of the events they purport to describe. The first one three days after the petitioner left the hospital, the second one three months after the petitioner left the hospital. So that for example, it is no indication of the petitioner’s incredibility whatsoever that his first hospital record does not show as he alleged that he’d bled from a gun wound. It does show that he had a gun wound, a gun wound. It does not indicate that he arrived at the hospital bleeding. But the record itself does not show that the person who wrote it, three days after, not after the petitioner arrived at the hospital but three days after he left the hospital was even the doctor who examined him first and therefore would’ve been in the position to check a matter like whether his wound was bleeding. Thirdly, the Government suggests that the petitioner admitted guilt at sentencing and indeed he did so but he alleges that not merely as plea of guilty but his admissions at the plea were coerced. And finally, the Government says that his allegation that he didn’t understand the jargon at the plea proceeding is absurd because the government -- because the Court used only simple terms like banks, guns, etcetera. The Court also used some not simple terms like waiver, a term that the Government fails to include in its list of simple terms and to the extent indeed that it explained waiver, it explained it wrongfully. And indeed, the Government's argument on the jargon gets us back to what I do believe is in fact the main issue in this case, that there was no valid guilty plea under Boykin against Alabama, that there was no valid guilty plea under McCarthy against the United States and that there was -- and that this record does not disclose an understanding intelligent waiver of counsel as this Court’s cases from Johnson against Zerbst to Carnley required. Accordingly, this Court should remand to the District Court with directions to vacate the guilty plea without further evidentiary hearing or in the alternative for an evidentiary hearing. Thank you.
Warren E. Burger: Thank you, Mr. Umin. Mr. Huntington.
Samuel Huntington: Mr. Chief Justice and may it please the Court. The Government’s position is that the files and the records in this case conclusively show within the meaning of 28 U.S.C. 2255 that petitioner was competent at the time he pleaded guilty to armed bank robbery, that his plea was voluntary and that he validly waived counsel before entering the plea. The District Court was therefore warranted in denying petitioner’s collateral attack on his plea without a hearing. Now in contrast to Mr. Umin, I would like to discuss the voluntariness issue first and then come to the waiver issue and I’d like to point out what we think are the pertinent facts as far as the voluntariness issue is concerned. Petitioner alleged in his motion that he was arrested on October 21 and the hospital discharge summary attached to his motion shows that on the night or at least on the 21st, he was admitted to the hospital for a five-day stay. All of the alleged acts of intimidation and coercion referred to in petitioner’s motion took place either immediately after his arrest or during that initial period of hospitalization. On November 13th, or 18 days after his discharge from the hospital, petitioner pleaded guilty to armed bank robbery before Judge Kayes.
Byron R. White: Is there anything in the record indicating whether he was taken before the commissioner?
Samuel Huntington: No, there is not and I would suggest that we --
Byron R. White: When do you have to waive a --
Samuel Huntington: When do you have to --
Byron R. White: You have to go and say you to waive it in open court.
Samuel Huntington: Well, he did waive it in open court here. I --
Byron R. White: I know that was before his arraignment.
Samuel Huntington: Well, the arraignment, the guilty plea hearing is called the arraignment in the record.
Byron R. White: Well, I understand that.
Samuel Huntington: And that’s the point when he waived it, and we submit that it is a --
Byron R. White: Well, but it wasn't waived before that?
Samuel Huntington: Well, there is some ambiguity at least in my mind as to when he signed this waiver. Mr. Umin suggested that the waiver was signed in custody. There is an allegation in the motion that he signed something in custody but I would submit that --
Byron R. White: Well, normally if defendant would have been taken before a commissioner where he would have been advised of the charges against him and also advised that he could apply for counsel at that time?
Samuel Huntington: Well, I would suggest that the -- it appears from the record that he was arrested by Michigan -- Detroit Police and it may not have been until sometime after he was in custody. As a matter of fact, in his motion, he alleges that it was while he was at the hospital that the bank robbery charge came up. So it could’ve been after he was in custody under State charges that the bank robbery came to light and that therefore this was the first judicial proceeding on the bank robbery charge.
Byron R. White: The federal charge.
Samuel Huntington: Under federal charge.
Thurgood Marshall: How long was he with the US Attorney?
Samuel Huntington: Well, what we had is simply what Mr. Umin read to you at the beginning of the guilty plea hearing where he says he has been given a copy of the information, he acknowledges that he understands it and knows what the maximum penalty is and it says, “He informs me that he wants to waive counsel.”
Thurgood Marshall: Do I gather from that that if that period of time and nobody knows how long it was, this man was in the presence of the US Attorney and nobody else and the only legal advice he was getting was from the US Attorney, am I right?
Samuel Huntington: At the beginning, you mean, immediately prior to the proceedings --
Thurgood Marshall: Do you know how long it was before, you don’t!
Samuel Huntington: No, we don’t.
Thurgood Marshall: I don’t either. But during whatever period of time it was, this man’s only legal advice was coming from the US Attorney.
Samuel Huntington: That’s right. I would not characterize it as legal advice. I think the US Attorney, all it appears here is that the US Attorney informed him of what the charges were, gave him a copy of the information, and asked him whether he wanted to plead guilty. There’s no --
Thurgood Marshall: He just did not waive these two things he signed?
Samuel Huntington: There’s no indication that he --
Thurgood Marshall: Well, you know he didn’t.
Samuel Huntington: But, he said he --
Thurgood Marshall: Well, he didn’t have the blanks, did he?
Samuel Huntington: The US Attorney obviously provided the blanks --
Thurgood Marshall: That’s right.
Samuel Huntington: -- and gave him the opportunity --
Thurgood Marshall: And that was his [Voice Overlap].
Samuel Huntington: -- to waive counsel. I don’t contest that. All I’m saying is that the record shows no -- there’s no indication in the record and petitioner has not alleged that the US Attorney --
Thurgood Marshall: Well, you don’t, you don’t think as to the kind of the legal (Voice Overlap).
Samuel Huntington: Well, I’m not [Attempt to Laughter] no and we don’t contend that this amounts to a counsel.
Potter Stewart: But his claim is that and was never been proven one way or the other because there hasn’t been any hearing is that he was getting a good deal of advise to use euphemism from the policemen in the --
Samuel Huntington: Well, that -- and that is what I’d like to come to now. That took place --
Potter Stewart: Along with brutality and coercion?
Samuel Huntington: We suggest and it’s our basic position that where this is substantial period of time between the alleged acts of coercion and the guilty plea that then unless there are some very specific objective, allegations of objective facts as to why those acts of coercion taint the plea that in that situation it’s reasonable to expect the defendant to answer truthfully to the Court’s questions at the guilty plea hearing as to whether there were any threats or promises. Now, I’d like to address myself to Rule 11 and the hearing which was held here. Now, Rule 11 requires that the judge personally address the defendant on three matters; on the voluntariness of the plea, on petitioner’s understanding of the nature of the charge, and on his understanding of the consequence of the plea. Now, we suggest that was complied with, if you look at the reading of the record, it shows that was complied with. Rule 11 also requires that the judge satisfy himself that there is a factual basis for the plea and we suggest that that also was complied with here. With respect to the point about whether the bank was insured by the FDIC, the judge had before him the information and the information is not in the record, but it was attached to the Government’s brief in the Court of Appeals and the information does state that the bank was insured by the FDIC, so we believe that Judge Kayes would’ve been perfectly satisfied that the federal element of the offense was present here. Now, we acknowledge that there are situations and we spell them out in some detail in our brief where a defendant’s answers at a guilty plea hearing that his plea is voluntary should not be binding upon him. Now, one obvious situation would be where he later alleged that he was mentally incompetent at the time of the plea and another situation would be where a prosecutor expressly warns him not to disclose the terms of a promise of leniency to the Court. In this situation and there are a number of Court of Appeals, cases involving this type of situation and indeed the Machibroda case was this type of situation. In this type of situation the defendant obviously cannot be expected to answer truthfully, having been advised by the prosecutor to do – to answer falsely. But apart from those situations, we suggest that the defendant can be expected to answer these questions that he -- the petitioner -- the only connection that petitioner draws in his motion between the acts of coercion and the guilty plea is the statement that the police had conditioned his mind for the guilty plea hearing. Now, this is a purely subjective allegation. There are no allegations that the police continued to coerce him while he was awaiting arraignment or that the police expressly warned him not to disclose their threats to the Court. Now, this Court has recognized that coercive conduct maybe sufficiently separated from a later guilty plea so as not to affect the voluntariness of the plea. In Parker against North Carolina, one of the claims made that alleged police conduct in procuring a confession in itself tainted a guilty plea, although it was over a month later, one of the claims was that the act in, coercing the confession tainted the plea a month later. This Court rejected that claim and it said. “The connection if any between Parker’s confession and his plea of guilty had become so attenuated, to dissipate the taint.” Now, there is a basic difference. The Court pointed out that in the interim, Parker had been represented by a counsel and had had an opportunity to discuss the facts surrounding the confession. But the Court also said that after the allegedly coercive interrogation, there were no threats, misrepresentations, promises or other improper acts by the State. Now, petitioner in this case has not alleged that there were any threats, misrepresentations, promises or other improper acts for the almost three-week period before his plea.
Warren E. Burger: Well, I have forgotten, was this a pro se petition at that stage?
Samuel Huntington: Yes.
Warren E. Burger: Well then, that would – I have to say that it wouldn’t be very crucial, wouldn't it?
Samuel Huntington: Well, if the --
Warren E. Burger: Haven’t we treated the pro se petition as merely the mechanism to get the man into the courtroom?
Samuel Huntington: Well, there still is a requirement that the petition set forth facts which if true would entitle him to relief and there’s a requirement that it be set forth with some specificity. In some cases the District Courts have appointed counsel to assist the petitioner in drafting his motion, but this has not been required by any decisions of this Court. Now, in our view, there is sound basis in this Court’s decisions for the general proposition that a defendant should be bound by his responses at a guilty plea hearing. As this Court noted in McCarthy against the United States at 394 US, there are two basic purposes for the Rule 11 requirement that a judge personally address the defendant before accepting a guilty plea. First, the rule is designed to assist the judge in making a determination on the voluntariness of the plea. Second, the rule is intended to produce, and I quote from the Court’s opinion, “A complete record at the time the plea is entered of the factors relevant to this voluntariness determination to enable more expeditious disposition of post-conviction attacks on the constitutional validity of guilty pleas.” Later in the opinion, the Court observed that Rule 11 is designed to eliminate any need to resort to any later fact finding proceedings. Now, we do not contend that compliance with Rule 11 eliminates the necessity for further fact finding proceedings in every case and I have referred to some of the situations where it would not. But we do contend that in this case and as a general rule, that the record the defendant makes should bind him against further proceedings. Now, the cases that --
Thurgood Marshall: Is that taken into consideration at all, the point I’ve been trying to -- we don’t know anything that happened to that man from the time he was picked up by the State until he walked in with the US Attorney.
Samuel Huntington: Well, we know he was in the hospital.
Thurgood Marshall: A part of the time.
Samuel Huntington: We know he was in custody. We don’t know what the terms of custody were, who he saw or any facts, that’s correct, the record is silent on that. We would say that --
Potter Stewart: But the record, however contains very serious allegations as to what happened during that [Voice Overlap].
Samuel Huntington: It contains very serious allegations.
Potter Stewart: And absolutely no answer to them, no denial of them?
Samuel Huntington: Yes but we suggest that it’s -- that the allegations are defective in one critical point. They’re very specific up to the -- his confinement in the hospital but then there is an 18-day period before the plea and they make no allegations as to what happen then. Now, we suggest that in bringing the motion for collateral relief, the prisoner has to allege facts which show that he would be entitled to relief. Now he has not alleged facts which tie together the coercion with his plea.
Potter Stewart: I understood your brief to say to concede that if what he alleges is true then of course his plea with coerced, but you simply say they’re incredible, the allegation is incredible?
Samuel Huntington: No, I’m not saying. I’m not saying. What we do say, we do say that there is a substantial doubt as to whether they are --
Potter Stewart: True.
Samuel Huntington: Correct, whether they are true.
Potter Stewart: Certainly if they --
Samuel Huntington: But we also say that that where you are specifically asked in open court at a time and place removed from the acts of coercion, you’re specifically asked by a judge in a Rule 11 hearing, “Were there any acts of coercion? And you say no --
Potter Stewart: Well, you are saying therefore that his allegations are incredible, not true, but I thought that you had concede it and certainly I’m surprised that if you didn’t that if what he said happened to him and if in fact, everything he said in the courtroom was coerced because of police brutality, I would have thought that you would concede it that that made the so called a [Voice Overlap].
Samuel Huntington: Well, we don’t concede that and I would suggest that a reading of our brief shows that we do make the two arguments. The one I’m making now that he should be bound that given the opportunity to disclose the threats and not only given the opportunity but specifically asked by the judge, “Were there any threats? Were there any promises?” And he says no. It is our --
Thurgood Marshall: Now, does he know what a threat or a promise is? Does he know what coercion is? I mean, this man is, so far as I know, is in the courtroom and there’s nobody there but the judge and the prosecutor and him and not one of them does he consider to be his friend or relative?
Samuel Huntington: Well, that’s correct but the whole purpose of Rule 11 --
Thurgood Marshall: Well, there shouldn’t somebody be there to hold his hand?
Samuel Huntington: Well, we’re not suggesting that that would not be a better procedure, that if someone was there and that he obviously isn’t --
Thurgood Marshall: Well, this Court, I understand has said that plea bargaining is alright. I mean, this man didn’t have anything. He had one sided plea bargaining. The US attorney plea bargained with him and there’s no question that he talked to the US Attorney.
Samuel Huntington: Well, he did --
Thurgood Marshall: There’s no question the US Attorney talked to him and I don’t know what the US Attorney told him?
Samuel Huntington: Well, all I can say is that the -- he did and I will come to this point in a moment. He did waive counsel and that he -- the provision that is made to give him the advice that might be useful in determining the plea.
Thurgood Marshall: Did he sign a waiver of counsel with the US Attorney?
Samuel Huntington: Did he sign one?
Thurgood Marshall: Yes.
Samuel Huntington: Well, he signed a waiver of counsel and I think the record indicates --
Thurgood Marshall: So, he waived it before he got to the judge, is that right?
Samuel Huntington: That’s right and the judge referred to that fact --
Thurgood Marshall: Well, I mean, is a waiver outside of the Court a good waiver?
Samuel Huntington: Well, it’s not even clear it’s outside of the Court. It could’ve been right there at the proceeding just before the judge walked in.
Thurgood Marshall: As I understood the US Attorney walked in with him and said I have these in my hand.
Samuel Huntington: Well, there is no indication he walked in. There’s simply indication that he told the judge that he had talked with him. Now, whether that was right then or whether it is at some previous time that isn’t indicated on the record.
Thurgood Marshall: Well, if he waived all his rights in his one-sided advice from the US Attorney, then he is bound by it?
Samuel Huntington: Well, not when -- we believe that the judge then went on --
Thurgood Marshall: But did the Court say you could disregard that?
Samuel Huntington: Well, I think that is --
Thurgood Marshall: Understood.
Samuel Huntington: Yes, we believe the record-- the fair inference from the record is that that he was offering counsel at the present time. He was saying, “You have a right to counsel. Is it your wish to proceed without counsel?” And that point he said, “I guess so.”
Warren E. Burger: Doesn’t your -- don’t you have to bear the burden here now of meeting the statutory standard which I think is in terms that unless on the face of the record, it conclusively appears then you have to bear the burden of showing that this transcript of this interrogation under Rule 11 conclusively shows that none of these things could be true. Isn’t that the posture of the case?
Samuel Huntington: Well we know the statutory standard is --
Warren E. Burger: How else can the District Judge avoid the hearing unless he makes the finding as --
Samuel Huntington: Well, our basic contention, it’s a two-fold contention. That our first argument is that as a matter of law, that if he is given the opportunity, I mean if he is asked in compliance to Rule 11, “Were there any threats?” And he says, “No, there weren’t and there are none of the special circumstances present which we concede would relieve him from the binding effect of that answer, then as a matter of law, he is not entitled later on to contradict that record which he himself made and that that is what is conclusively shows that he is entitled to no relief, but we don’t rely exclusively on that position. We also say that if you look at as Mr. Stewart pointed out that if you look at all of the records that there is enough here to show that he was entitled to no relief in any event and I would just refer briefly to those. We think that the fact that a central part of his allegations are that he was innocent, that he did not rob any bank, that the police convinced him that he was a bona fide bank robber and told them that he had robbed this bank at a certain time. Well, we think that the record as a whole refutes this allegation. First of all in the guilty plea hearing, as you pointed out Mr. Chief Justice, his answers were very specific. Yes, he had a pistol. Yes, he held up the teller and he took the money and later at sentencing, he made the statement that he was under the influence of drugs “when this happened” and that’s a clear admission of guilt. The other factors, very important in his allegations are the allegations of brutality when he was arrested. He alleged he was clubbed into an unconscious state of mind at his home, that he was struck several times with fists and open hands at the police station. That the abdominal gunshot wound was torn open and began to bleed freely. He also asserted he was beaten for asking to see an attorney and then the brief of law attached to his motion, he claimed he had been brutally assaulted, beaten with the clubs and blackjacks and kicked. Now, yet the hospital records pertaining to his period of hospitalization beginning on the night of the arrest makes no references to any bruises or recent bleeding. And surely that would have been an evidence had petitioner suffered the type of mistreatment that he claims he had suffered. Now, the -- we also would say that the 21-month delay between the guilty plea hearing and the time that he filed his motion is also indicative of the lack of substance. It’s certainly not a controlling point that we think it does when added together with all the other factors does show that this is not a -- that the motion is not well founded. Now, the question as to whether the petitioner was mentally competent at the time is covered in our brief and I won't go into that now. On the waiver of counsel issue, I’d like to just make a couple of points. First of all, petitioner was 26 years old. He had a seventh grade education and by his own admission, he had a long criminal record and had been proceeded against in numerous criminal proceedings. In his petition at Page 11, he admits that he misspoke when he informed the Court that he didn’t have a record at the guilty plea hearing and admitted that he had a long record and also indicated the F -- he referred to FBI records which would indicate that there had been federal charges as well. It’s thus highly unlikely that he was confused when the judge advised him of his right to counsel. Now, we would also point out that in the light of this, in the light of the fact that the US Attorney had given him the waiver form, he had signed the waiver form, the waiver of counsel. The US Attorney had given him the information and said that he had acknowledged that he understood it. The information claim contained the elements of the offense. So that, we say that when you look at this record as a whole, it shows that there was an intelligent and knowing waiver of counsel and that therefore, at that point, that there was a valid waiver. Well, in conclusion, it's argued that the judgment of the Court of Appeals should be affirmed.
Warren E. Burger: Thank you gentlemen. The case is submitted. The counsel --