No. 00-973 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

ALPHONSO VONN 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

REPLY BRIEF FOR THE UNITED STATES 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

TABLE OF CONTENTS 

Page 

1. This case does not involve an unconstitutional guilty 

plea ........................................................................................... 1 

2. Rule 11(c)(3) errors are subject to plain-error 

review if raised for the first time on appeal ..................... 
5 

(a) The text and background of Rule 11 ....................... 
5 

(b) The objectives of Rule 11 .......................................... 
9 

3. A district court’s failure to comply fully with 

Rule 11(c)(3) is plain error only if it affected the 

outcome of the proceedings ................................................. 

12 

4. The entire record of the case should be considered 

in the prejudice determination ....................................... 

14 

5. Under the proper standard and scope of appellate 

review, respondent’s convictions should be 

affirmed ................................................................................... 18 

TABLE OF AUTHORITIES 

Cases: 

Barker v. Wingo, 407 U.S. 514 (1972) ................................. 

9 

Bousley v. United States, 523 U.S. 614 (1998) ............ 

6, 14, 15 

Boykin v. Alabama, 395 U.S. 238 (1969) ................ 

3, 15, 16, 17 

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

14 

Dickerson v. United States, 530 U.S. 428 (2000) .............. 

16 

Halliday v. United States: 

394 U.S. 831 (1969) ................................................................ 

2 

262 F. Supp. 325 (D. Mass.), vacated, 380 F.2d 270 

(1st Cir. 1967) ......................................................................... 

3 

274 F. Supp. 737 (D. Mass. 1967), aff ’d, 394 F.2d 149 

(1st Cir. 1968), aff ’d, 394 U.S. 831 (1969) ........................... 

3 

Henderson v. Morgan, 426 U.S. 637 (1976) ............... 

3-4, 6, 15 

McCarthy v. United States, 394 U.S. 459 (1969) .............. 

2, 7 

Miranda v. Arizona, 384 U.S. 436 (1966) .......................... 

16 

United States v. Asubonteng, 895 F.2d 424 (7th 

Cir.), cert. denied, 494 U.S. 1089 (1990) ............................. 10 

(I) 

II 

Cases—Continued: Page 

United States v. Baker, 40 F.3d 154 (7th Cir. 1994), 

cert. denied, 514 U.S. 1028 (1995) ....................................... 

10 

United States v. Coronado, 554 F.2d 166 (5th Cir.), 

cert. denied, 434 U.S. 870 (1977) ......................................... 

6 

United States v. Gandia-Maysonet, 227 F.3d 1 

(1st Cir. 2000) ......................................................................... 

13 

United States v. Hayes, 40 F.3d 362 (11th Cir. 1994), 

cert. denied, 516 U.S. 812 (1995) ......................................... 

10 

United States v. Olano, 507 U.S. 725 (1993) ................... 

9, 13 

United States v. Quinones, 97 F.3d 473 (11th Cir. 

1996) ......................................................................................... 14 

United States v. Sinagub, 468 F. Supp. 353 (W.D. 

Wis. 1979) ................................................................................ 

7 

United States v. Timmreck, 441 U.S. 780 (1979) ............. 

8 

Statutes and rules: 

Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq. ................. 

10 

18 U.S.C. 3161(c)(1) ............................................................... 

10 

18 U.S.C. 924(c) (1994 & Supp. V 1999) ................................ 

19 

Fed. R. Crim. P.: 

Rule 11 ................................................................................. 

passim 

Rule 11(c)(1) ................................................................. 

6, 11, 13, 14 

Rule 11(c)(3) ............................................................... 

5, 12, 14, 18 

Rule 11(c)(4) ............................................................................ 

17 

Rule 11(c)(5) ............................................................................ 

6 

Advisory committee’s note (1982) ................................. 

6-7 

Rule 11(e)(1)(B) ...................................................................... 

11 

Rule 11(e)(2) ........................................................................... 

11 

Rule 11(f) ................................................................................. 

7 

Rule 11(h) ........................................................................ 

5, 7, 8, 12 

Advisory committee’s note (1983) ................................. 

6, 12 

Rule 52(a) ................................................................................ 

5, 8 

Rule 52(b) ........................................................................ 5, 8, 9, 14 

In the Supreme Court of the United States 

No. 00-973 

UNITED STATES OF AMERICA, PETITIONER 

v. 

ALPHONSO VONN 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

REPLY BRIEF FOR THE UNITED STATES 

1. This Case Does Not Involve An Unconstitutional 
Guilty Plea 

Respondent suggests that, because the district court 
did not advise him at the plea proceeding of his right to 
the assistance of counsel at trial, his guilty plea was 
unintelligent and therefore taken in violation of the 
Constitution.1 That contention goes beyond the Rule 11 

1 Respondent’s brief is inconsistent on whether there was con- 
stitutional error in the district court’s acceptance of his guilty plea. 
In one footnote, respondent directly argues that his plea was un- 
intelligent. See Br. 30 n.17. Elsewhere, however, respondent 
argues more tentatively that the kind of Rule 11 error that oc- 
curred in this case “affect[s]” the constitutionality of the plea (Br. 

19), “ha[s] the potential for rising to the level of constitutional 
error[]” (Br. 27), and “potentially result[s] in involuntary or 

(1) 

2 

issues that were resolved in the court of appeals and on 
which certiorari was granted. The court of appeals did 
not hold that respondent’s guilty plea was not intelli- 
gently made and was therefore constitutionally invalid. 
Rather, the court of appeals’ decision rested squarely 
on the district court’s Rule 11 error. See Pet. App. 3a, 
4a-5a. As a consequence, the only questions properly 
presented in this case concern the standard and scope 
of appellate review of Rule 11 error when that specific 
claim of error has not been made in the district court. 

Respondent’s argument that his plea was consti- 
tutionally invalid because the court did not specifically 
advise him at his plea proceeding of his right to counsel 
at trial also fails on the merits. This Court has never 
held that the Constitution requires that a criminal de- 
fendant be specifically advised by the court of the con- 
stitutional rights that he waives by pleading guilty, 
much less that he be so informed at the time he enters 
his guilty plea. Such a decision would amount to ruling 
that the procedures of Rule 11 are compelled by the 
Constitution, a holding that this Court has rejected.2 

unintelligent (and therefore unconstitutional) pleas” (Br. 33 n.21). 
In the court of appeals, respondent presented this case as a 
challenge to the Rule 11 colloquy and maintained only in passing 
that there was constitutional error in the plea. See Resp. C.A. 
Br. 14. 

2 See McCarthy v. United States, 394 U.S. 459, 465 (1969) 
(noting that “the procedure embodied in Rule 11 has not been held 
to be constitutionally mandated”); Halliday v. United States, 394 
U.S. 831, 832-833 (1969) (sustaining, against collateral challenge, a 
guilty plea accepted in violation of Rule 11 before McCarthy, in 
light of district court’s finding that Halliday had entered his plea 
“voluntarily and with an understanding of the nature of the 
charges against him,” and also noting that a “large number of 
constitutionally valid convictions * * * may have been obtained 
without full compliance with Rule 11”). In Halliday, the defendant 

3 

In Boykin v. Alabama, 395 U.S. 238 (1969), the Court 
established a rule that a guilty plea may not be ac- 
cepted “without an affirmative showing that [the plea] 
was intelligent and voluntary,” id. at 242, and in parti- 
cular that the defendant had waived three specific, 
“important federal rights”—the privilege against self- 
incrimination, the right to a jury trial, and the right to 
confront one’s accusers, id. at 243.3 The Court did not 
suggest, however, that specific advice to the defendant 
from the court about the rights waived by the plea, at 
the time the plea is entered, is necessary for such a 
showing. Moreover, the Court has stated that a guilty 
plea may be constitutionally invalid if the defendant 
was not informed by the court or counsel about cer- 
tain fundamental matters, such as the nature of the 
charges.4 Thus, this Court’s decisions do not support 

sought to withdraw his plea on the ground that the district court 
never explained the nature of the charge against him or informed 
him of the maximum possible sentence. See Halliday v. United 
States, 262 F. Supp. 325, 328 (D. Mass.), vacated, 380 F.2d 270 (1st 
Cir. 1967). The district court found that, although the court that 
took his plea did not question Halliday about his understanding of 
the charges against him, nonetheless the plea was constitutionally 
valid because Halliday’s counsel had explained the charges to him, 
and Halliday understood the nature of those charges. See 
Halliday v. United States, 274 F. Supp. 737, 737-739 (D. Mass. 

1967), aff ’d, 394 F.2d 149 (1st Cir. 1968), aff ’d, 394 U.S. 831 (1969). 

3 As respondent observes (Br. 13 n.3), the Court in Boykin did 
not identify the right at issue in this case, the right to the 
assistance of counsel at trial, as one of the constitutional rights for 
which an “affirmative showing” of a valid waiver must appear on 
the record. 

4 See Henderson v. Morgan, 426 U.S. 637, 642 (1976) (noting 
that Morgan’s lawyers “did not explain the required element of 
intent” to him); id. at 646 (similarly noting that Morgan’s lawyers 
“did not explain to him that his plea would be an admission” that 
he acted with the requisite intent for second-degree murder); id. at 

4 

the proposition that a guilty plea obtained without the 
full advice of constitutional rights from the court re- 
quired by Rule 11 is necessarily unintelligent or consti- 
tutionally deficient. 

In any event, respondent was advised before enter- 
ing his guilty plea that he had the constitutional right to 
the assistance of counsel at trial. At the post-indict- 
ment arraignment, the court specifically informed re- 
spondent that he was entitled to be represented by 
counsel at all stages of the proceedings, and that the 
court would appoint counsel to represent him if he could 
not afford retained counsel. J.A. 22. On the same date, 
respondent signed a statement acknowledging his 
constitutional rights, including the right “to be repre- 
sented by counsel at all stages of the proceedings” and 
to have appointed counsel if he could not afford to 
retain an attorney. J.A. 26. Respondent confirmed in 
open court that he had heard and understood the 
court’s statements “[p]ertaining to [his] rights and the 
appointment of counsel,” and that he had seen and 
signed the statement of those rights. J.A. 25. His 
attorney also confirmed in writing that respondent 
understood his rights. J.A. 29. The record thus estab- 
lishes not only compliance with Boykin, but also that 
respondent was informed of his constitutional right to 
counsel at trial, and thus that respondent intelligently 
waived that right when he pleaded guilty. 

647 (observing that “[n]ormally the record contains either an 
explanation of the charge by the trial judge, or at least a 
representation by defense counsel that the nature of the offense 
has been explained to the accused”). 

5 

2. Rule 11(c)(3) Errors Are Subject To Plain-Error 
Review If Raised For The First Time On Appeal 

Respondent argues (Br. 16) that the plain-error 
principles of Rule 52(b) are inapplicable to any Rule 11 
error, and also that the harmless-error principles of 
Rule 11(h) and Rule 52(a) are inapplicable to any Rule 
11 error that “goes to the essence of whether the plea 
was voluntary and intelligent.” Respondent thus 
argues (Br. 28) for a rule of automatic reversal for Rule 
11 errors that have “the potential of causing an in- 
voluntary or unintelligent plea” (emphasis added); id. at 
33 n.21. Those contentions are incorrect.5 

a. The text and background of Rule 11. There is no 
basis in the text of Rule 11(h) to suggest that some sub- 
set of Rule 11 errors may not be found harmless. Rule 
11(h) states that “[a]ny variance from the procedures 
required by this rule which does not affect substantial 
rights shall be disregarded” (emphasis added). The 
requirement that the court inform the defendant of his 
right to the assistance of counsel at trial is one of the 
“procedures required by this rule,” specifically in Rule 
11(c)(3), and is thus subject to harmless-error review. 
Respondent’s argument that harmless-error prin- 
ciples never apply to deviations from Rule 11(c)(3) is 
also inconsistent with the Advisory Committee’s Note 
accompanying Rule 11(h). As respondent observes (Br. 

19), that Note gave, as an example of the kind of Rule 
11 error that could be deemed harmless, the court’s 

5 These are different questions from the question whether 
acceptance of a truly involuntary or unintelligent guilty plea can be 
harmless error, which is not presented in this case. As we have 
explained, respondent’s guilty plea was made with knowledge of 
his constitutional right to counsel at trial, and so his guilty plea 
was intelligently made. See p. 4, supra. 

6 

failure to inform the defendant of an essential element 
of the offense (which is required by Rule 11(c)(1)). See 
Fed. R. Crim. P. 11(h) advisory committee’s note (1983) 
(discussing United States v. Coronado, 554 F.2d 166 
(5th Cir.), cert. denied, 434 U.S. 870 (1977)). But that 
kind of error is surely one that, in respondent’s 
formulation, might “affect” the intelligence of a guilty 
plea (see Br. 18-19). It has long been held that a 
constitutionally valid guilty plea requires that the 
defendant have notice of the nature of the charge 
against him. See Bousley v. United States, 523 U.S. 
614, 618-619 (1998); Henderson v. Morgan, 426 U.S. 637, 
645-647 (1976).6 Thus, the Advisory Committee’s Note 
refutes respondent’s argument that the Committee 
intended to exempt from harmless-error analysis de- 
viations from procedures of Rule 11 designed to ensure 
that a guilty plea is entered voluntarily and intelli- 
gently.7 

6 Coronado involved the district court’s failure to explain 
adequately to the defendant the nature of a conspiracy charge. See 
554 F.2d at 172. The court of appeals in that case plainly 
understood the error as bearing on the core purpose of Rule 11, to 
ensure voluntary and intelligent guilty pleas. See id. at 172 n.8 
(relying on Henderson v. Morgan, in which the defendant pleaded 
guilty without having been informed by either the court or counsel 
of an essential element of the offense of second-degree murder). 

7 As respondent notes (Br. 17-18), Rule 11(c)(5) was amended 
in 1982 to require the court to advise the defendant that his 
answers to questions under oath could form the basis of a perjury 
prosecution only if the court actually intended to question the 
defendant under oath about the offense. At that time, the Ad- 
visory Committee observed that Rule 11’s requirement of warning 
the defendant about a potential perjury prosecution was “quali- 
tatively distinct” from other requirements of the Rule, and ex- 
pressed concern about vacatur of guilty pleas based on deviations 
from marginal requirements of Rule 11. See Fed. R. Crim. P. 

7 

Respondent also observes (Br. 20-21) that the cases 
cited by the Advisory Committee in support of the 
adoption of Rule 11(h) were cases in which no objection 
to the district court’s deviation from Rule 11 had been 
made in the lower court. Thus, respondent hazards, the 
Advisory Committee must have assumed that the 
harmless-error principle of Rule 11(h), rather than the 
plain-error standard of review, would apply in such 
cases. No such inference can be drawn from the Ad- 
visory Committee’s Note, however. Before Rule 11(h) 
was adopted, this Court had held in McCarthy v. 
United States, 394 U.S. 459, 471 (1969), that “prejudice 
inheres in a failure to comply with Rule 11,” whether or 
not the district court’s noncompliance with the Rule 
might have affected the plea. In most cases, the record 
on its face would have demonstrated whether the 
district court had complied with Rule 11. A reviewing 
court could therefore have readily determined whether 
the defendant was “prejudiced” under McCarthy, with- 

11(c)(5) advisory committee’s note (1982). Contrary to respon- 
dent’s reading, however, the 1982 Advisory Committee’s Note did 
not distinguish between those aspects of Rule 11 that were 
designed to ensure a constitutionally voluntary and intelligent plea 
and those that were not so designed. Rather, the Advisory Com- 
mittee, quoting United States v. Sinagub, 468 F. Supp. 353 (W.D. 
Wis. 1979), distinguished between Rule 11(c)(5) and those require- 
ments of Rule 11 that “go to whether the plea is knowingly or 
voluntarily made, [or] to whether the plea should be accepted and 
judgment entered”— including such nonconstitutional mandates as 
Rule 11(f), requiring that the court determine that the plea has a 
factual basis. See Fed. R. Crim. P. 11(c)(5) advisory committee’s 
note (1982) (quoting Sinagub, 468 F. Supp. at 358 (emphasis 
added)). 

8 

out regard to whether the objection was raised below.8 
But once the Federal Rules rejected the automatic- 
reversal rule of McCarthy and required an effect on 
“substantial rights” to warrant reversal (Fed. R. Crim. 
P. 11(h))—that is, an effect on the outcome of the pro- 
ceeding (see U.S. Br. 29-35)—the distinction between 
harmless error and plain error, and consequently the 
importance of raising a claim of error in district court, 
became significant. 

There is no merit to respondent’s argument (Br. 20) 
that, because Rule 11(h) borrowed the harmless-error 
language of Rule 52(a) but not the plain-error language 
of Rule 52(b), the Court should draw the negative in- 
ference that Rule 11(h) was intended to preclude re- 
liance on plain-error principles. As we have shown 
(U.S. Br. 22-23), the text of Rule 11(h) establishes only 
that the automatic-reversal rule under McCarthy had 
been repudiated, and that a reviewing court must dis- 
regard Rule 11 errors (like other errors) that do not 
affect substantial rights. Rule 11(h) does not, however, 
address how a reviewing court should treat errors that 
might have been prejudicial but were not brought to 
the attention of the lower court. Accordingly, the usual 
background principles of procedural default come into 
effect. Significantly, the limiting principles of plain- 
error review that normally apply to forfeited claims do 
not derive exclusively from the text of Rule 52(b), but 

8 That point also explains why, as respondent observes (Br. 

25), this Court noted in United States v. Timmreck, 441 U.S. 780, 
784 (1979), that the defendant could have raised his claim of Rule 
11 error on direct appeal, even though he had not raised it in the 
district court. Since the Rule 11 error in that case would have 
appeared on the face of the record and would have automatically 
required reversal on appeal, the defendant’s failure to raise it in 
district court was not significant. 

9 

also stem from long-established judge-made rules con- 
fining relief for forfeited claims. See U.S. Br. 22-23 n.9; 
United States v. Olano, 507 U.S. 725, 735-737 (1993). 
Accordingly, once the automatic-reversal rule of Mc- 
Carthy was abandoned, the general principles of plain- 
error review became applicable, even without inserting 
a carbon copy of Rule 52(b) into Rule 11. 

b. The objectives of Rule 11. Respondent further 
argues (Br. 21-22) that the purposes of Rule 11 counsel 
against plain-error review of Rule 11 errors. First, he 
argues that, because the court has an independent duty 
to advise the defendant of the constitutional rights that 
he waives by pleading guilty, it should not be necessary 
for a counseled defendant to preserve a claim that the 
court has not complied with the Rule. This Court has 
not suggested, however, that, merely because the court 
has an independent obligation to comply with pro- 
cedural rules, a defendant is relieved of the responsi- 
bility to make a contemporaneous objection when the 
court fails to comply. 

Respondent notes (Br. 22) that, in Barker v. Wingo, 
407 U.S. 514, 523-528 (1972), the Court rejected an 
absolute “demand-waiver” rule, under which a defen- 
dant would have been flatly barred from raising a claim 
under the Speedy Trial Clause unless and until his 
counsel had asserted a demand for a speedy trial. This 
case, however, does not involve any issue of waiver; 
rather, the question is whether a more restrictive 
standard of appellate review should be applied when 
the claim of Rule 11 error is raised for the first time in 
the court of appeals. See Olano, 507 U.S. at 733-734 
(distinguishing waived claims from forfeited claims that 
may be reviewed for plain error). Moreover, the Court 
in Barker stated that “a defendant has some responsi- 
bility to assert a speedy trial claim” in the trial court, 

10 

407 U.S. at 529, and the courts of appeals have applied 
plain-error review to claims under the Speedy Trial 
Clause and the Speedy Trial Act of 1974, 18 U.S.C. 3161 
et seq., that were not first presented to the district 
court.9 They have done so, moreover, even though, as 
with Rule 11, the district court has an obligation to en- 
sure compliance with the deadlines of the Speedy Trial 
Act. See, e.g., 18 U.S.C. 3161(c)(1) (“the trial * * * 
shall commence within seventy days from the filing 
date * * * of the information or indictment”) (empha- 
sis added). 

Second, respondent argues (Br. 22-23) that the 
constitutional requirement that a guilty plea be volun- 
tary and intelligent reflects a right that is personal to 
the defendant and cannot be waived or forfeited by 
counsel. But, as explained above (p. 4, supra), there is 
no basis in this case for a conclusion that respondent’s 
guilty plea was involuntary or unintelligent. Rather, 
the question is whether respondent’s counsel should 
have brought to the attention of the district court the 
fact that it had omitted part of the advice required by 
Rule 11. The purpose of the advice is to ensure that a 
guilty plea be voluntary and intelligent (and that a 
record of the defendant’s knowledge accompanying his 
waiver be made). The absence of that advice, however, 
does not by itself mean that the plea is constitutionally 
invalid; as respondent acknowledges (Br. 28), the de- 
viation from Rule 11 creates only the “potential” for a 
constitutional violation. And, as respondent points out 

9 See United States v. Hayes, 40 F.3d 362, 366 (11th Cir. 1994) 
(constitutional claim), cert. denied, 516 U.S. 812 (1995); United 
States v. Asubonteng, 895 F.2d 424, 428 (7th Cir.) (same), cert. 
denied, 494 U.S. 1089 (1990); United States v. Baker, 40 F.3d 154, 
158-159 (7th Cir. 1994) (statutory claim), cert. denied, 514 U.S. 1028 
(1995). 

11 

(Br. 23), given the clarity of Rule 11’s command and its 
central role in thousands of federal criminal prosecu- 
tions every year, “[a]ll the parties”—including, no 
doubt, respondent’s trial counsel—“know what Rule 11 
requires.” Respondent’s trial counsel thus had an obli- 
gation to ensure that his client’s guilty plea was entered 
after a colloquy that conformed to the requirements of 
that Rule. 

Third, respondent discounts (Br. 23-24) the possi- 
bility that defense counsel might seek to manipulate the 
district court’s failure to give all the advice required by 
Rule 11 for strategic advantage, but that concern is 
real. Defendants are not infrequently dissatisfied with 
the sentences they receive, even when they have been 
advised of the statutory maximum sentence and even 
when they have been warned in plea agreements and in 
Rule 11 colloquies that the district court is not bound 
by a sentencing recommendation agreed to in a plea 
agreement. See Fed. R. Crim. P. 11(c)(1), 11(e)(1)(B), 
11(e)(2). A district court might decide, contrary to the 
expectations of the defendant and the government, that 
a different Guidelines sentencing range is applicable, 
or decide to depart upward from the applicable range. 
Such a decision might leave the defendant with a sen- 
tence that is considerably higher than the one he ex- 
pected or hoped for, even though he had no legal en- 
titlement to a lower sentence. In such a case, a de- 
fendant and his counsel might well conclude that it is in 
the defendant’s best interest to attempt to overturn the 
plea. Under respondent’s submission, the district 
court’s failure to advise a counseled defendant in his 
plea colloquy that, if he went to trial he would have the 
right to counsel at that trial, would provide the 
defendant with a free pass to later overturn his plea, 
even where (as here) the defendant had previously 

12 

been informed that he had the right to counsel at trial. 
Indeed, reversal would be mandated even if the defen- 
dant’s counsel was aware of the court’s deviation from 
Rule 11’s requirements but had intentionally said 
nothing in order to retain the option to void the plea. 
That result is not consistent with sound practice. 

3. A District Court’s Failure To Comply Fully With 
Rule 11(c)(3) Is Plain Error Only If It Affected 
The Outcome Of The Proceedings 

Respondent argues (Br. 26-36) that a district court’s 
acceptance of a guilty plea that is not voluntary and 
intelligent can never be harmless error. This case, 
however, does not present that question, because 
respondent’s guilty plea is not constitutionally flawed. 
See p. 4, supra. Rather, the question here is whether, 
when a defendant has entered a voluntary and intelli- 
gent guilty plea but the Rule 11 proceeding was defec- 
tive in some way, a court must vacate the plea even if 
the defect did not materially affect the outcome of the 
proceedings. The correct answer is “no.” 

That conclusion follows from two points. First, con- 
trary to respondent’s submission (Br. 30-32), there is no 
basis to conclude that a Rule 11 error that does not 
affect the constitutional validity of a guilty plea is 
“structural error” that cannot be subjected to harmless- 
error analysis. Rule 11(h) repudiated that premise by 
providing that Rule 11 error can be harmless and on 
such occasions should be disregarded. See Fed. R. 
Crim. P. 11(h) advisory committee’s note (1983) (“Sub- 
division (h) makes clear that the harmless error rule of 
Rule 52(a) is applicable to Rule 11.”). And, because 
Rule 11(h) does not “attempt to define the meaning of 
‘harmless error,’ which is left to the case law” (ibid.), 
the prejudice analysis should be the same as conven- 

13 

tional prejudice analysis for other kinds of errors: a 
material effect on the outcome of the proceeding. See 
U.S. Br. 31-35. 

Second, even when a defendant can show some form 
of prejudice from a Rule 11 error, a reviewing court 
should not exercise its discretion to reverse for plain 
error unless the error “seriously affect[ed] the fair- 
ness, integrity or public reputation” of the proceeding. 
Olano, 507 U.S. at 736 (citation omitted). At a mini- 
mum, if a plea is voluntary and intelligent, and if there 
is no reason to believe that the district court’s failure to 
comply fully with Rule 11 materially affected the 
defendant’s decision to enter that plea, the defendant 
has no claim that his conviction is fundamentally unfair. 
Public confidence in the justice system would not be 
promoted by the court of appeals’ exercise of its dis- 
cretion to vacate such a conviction. 

Respondent argues (Br. 36-38) that the application of 
plain-error review to Rule 11 errors not raised in the 
district court would insulate “[v]irtually [a]ll [p]leas 
from any [a]ppellate [r]eview,” because a defendant 
would never be able to show on appeal that he would 
not have pleaded guilty had the district court complied 
with Rule 11. Defendants do, of course, generally find 
it more difficult to establish prejudice under plain-error 
review than under harmless-error principles, and 
properly so. See Olano, 507 U.S. at 734; id. at 742 
(Kennedy, J., concurring). But in fact, courts of appeals 
applying plain-error review have vacated guilty pleas 
because of noncompliance with Rule 11. For example, 
in United States v. Gandia-Maysonet, 227 F.3d 1, 4-5 
(1st Cir. 2000), the court of appeals concluded that, in 
light of the district court’s failure to give an adequate 
explanation of an intent element of the defendant’s 
offense, in violation of Rule 11(c)(1), and the fact that 

14 

the evidence of that element of intent was not over- 
whelming, the defendant might not have pleaded guilty 
had the district court properly explained the nature of 
the charge to him. Similarly, in United States v. 
Quinones, 97 F.3d 473, 474-475 (11th Cir. 1996), the 
court of appeals concluded that the district court’s fail- 
ure to explicate the nature of a firearms charge violated 
the defendant’s substantial rights and was plain error 
requiring reversal. While those cases involved error 
under Rule 11(c)(1) rather than (as in this case) Rule 
11(c)(3), there may also be circumstances in which a 
court might conclude, based on a particular record, that 
a defendant probably would not have entered a guilty 
plea if the district court had properly advised him that 
he was relinquishing a particular right by pleading 
guilty. There is no reason to doubt that courts of ap- 
peals will appropriately exercise their discretion under 
Rule 52(b) in cases involving Rule 11 errors. 

4. The Entire Record Of The Case Should Be Con- 
sidered In The Prejudice Determination 

Respondent argues (Br. 38-45) that, in determining 
whether a Rule 11 error warrants reversal, the court of 
appeals should consider only what the defendant said or 
was told at the Rule 11 hearing, and not any informa- 
tion, no matter how relevant, contained elsewhere in 
the official record of the case. That contention should 
be rejected. 

For a guilty plea to be constitutionally valid, a defen- 
dant must act voluntarily and intelligently at the time 
that he enters his plea. Brady v. United States, 397 
U.S. 742, 749-758 (1970). It does not follow, however, 
that only the information that was imparted to the de- 
fendant at the guilty plea hearing is relevant to that 
determination. Although Boykin established a require- 

15 

ment of an affirmative showing on “the record” that a 
guilty plea was voluntary and intelligent (see 395 U.S. 
at 242), the Court did not suggest that “the record” in 
such cases is limited to the record of the hearing in 
which the guilty plea is entered. Moreover, Bousley v. 
United States, supra, supports the conclusion that the 
entire record in the case must be considered. There, 
the Court noted that, when a criminal defendant was 
provided at an earlier stage of the proceeding with a 
copy of an indictment that accurately set forth the 
nature of the charge against the defendant, “[s]uch 
circumstances, standing alone, [gave] rise to a pre- 
sumption that the defendant was informed of the nature 
of the charge against him.” 523 U.S. at 618; see also 
Henderson v. Morgan, 426 U.S. at 647. Under that 
analysis, if the record of the case establishes that at an 
earlier point in the prosecution, the defendant was 
provided with the information that he should have been 
provided at his guilty plea hearing, there is at least a 
presumption that the defendant’s plea was voluntary 
and intelligent. 

10 

There is no merit to respondent’s speculation (Br. 42- 

43) that a defendant might not pay sufficient attention 

10 Of course, even if a defendant is properly and adequately 
informed at an earlier stage in the proceedings of the nature of the 
charge against him and of his constitutional rights, events after 
that point might render a plea involuntary or unintelligent—as in 
Bousley, where the defendant was initially provided a copy of the 
indictment but was subsequently given misinformation about the 
nature of the charge. 523 U.S. at 618. But that point establishes 
only that the presumption that the plea is voluntary and intelligent 
that arises from a showing that the defendant was given proper 
information may be rebutted; it does not suggest that only 
information given to the defendant at his guilty plea hearing may 
satisfy the requirements of Boykin. 

16 

to advice that he is given about his constitutional rights 
at trial when he appears for his initial appearance or his 
arraignment. If, as in this case, a defendant is ex- 
pressly informed both orally and in writing of his con- 
stitutional right to counsel at trial, and if he confirms 
that he understands that he has that right, at the least 
a presumption should arise that his subsequent actions 
are taken with knowledge and understanding of the 
existence of that right. Unusual cases may arise in 
which that presumption could be rebutted, but that 
would surely not be the ordinary case. There is no rea- 
son to believe that, as a systematic matter, defendants 
would fail to attend to a judge’s advice about the right 
to counsel at trial with the appropriate seriousness. 

Respondent notes (Br. 39-40) that both Boykin and 
Rule 11 set forth prophylactic rules designed to avoid 
collateral challenges to the constitutional validity of 
guilty pleas, and also likens the advice required by 
Rule 11 to the warnings required by Miranda v. 
Arizona, 384 U.S. 436 (1966). The prophylactic rules of 
Miranda and Boykin, however, are of a different order 
than those of Rule 11, because they are themselves 
constitutionally based. See Dickerson v. United States, 
530 U.S. 428, 439-400 (2000); Boykin, 395 U.S. at 242- 
244. The procedures of Rule 11 are not themselves 
required by the Constitution, and when the record affir- 
matively establishes—as it does here—that the de- 
fendant was given the information necessary to ensure 
that his guilty plea is voluntary and intelligent and 
would not be vacated for constitutional error, there is 
no basis for a reviewing court to blind itself to that fact 
when considering the effect of the Rule 11 error on the 
proceeding. 

Respondent objects (Br. 41-42) that such an approach 
to prejudice is unduly complicated and might lead the 

17 

court to explore information that the defendant might 
have obtained from other sources, such as other legal 
proceedings and popular culture. The rule of Boykin, 
however, necessarily minimizes that objection, because, 
under Boykin, if “the record” does not affirmatively 
establish that the defendant was informed of the nature 
of the charge against him and of certain constitutional 
rights that are waived by pleading guilty (see 395 U.S. 
at 243), then the guilty plea is constitutionally invalid. 
But since the entire record of the case may be consulted 
to determine whether a guilty plea is constitutionally 
valid (see pp. 14-15, supra), the same information 
should also be considered in determining whether any 
Rule 11 error was prejudicial. 

Respondent further argues (Br. 43) that only the 
record of the Rule 11 hearing may be considered be- 
cause a constitutionally valid guilty plea requires that 
the record show, not just that the defendant understood 
that he has certain constitutional trial rights, but also 
that he understood that his guilty plea means that he is 
waiving those rights. This Court, however, has never 
held that, as a constitutional matter, the defendant 
must be specifically advised by the court that his guilty 
plea waives all of his constitutional trial rights. Indeed, 
while Rule 11(c)(4) expressly requires the district court 
to advise the defendant that, “by pleading guilty * * * 
the defendant waives the right to a trial,” 

11 the Rule 
does not expressly require the district court to advise 
the defendant that a guilty plea waives certain rights 
that he would have at a trial, including the right to 

11 The district court complied with that aspect of Rule 11 in 
this case. See J.A. 39-40, 58 (explaining to respondent that, by 
pleading guilty, he would be “giving up certain rights,” including 
the right to a trial). 

18 

counsel and the right to confront and cross-examine 
witnesses. For constitutional purposes what is signifi- 
cant is that the record establishes that the defendant 
was aware of the trial rights given up by a guilty plea, 
not the precise moment at which he was given that 
information. 

12 

5. Under The Proper Standard And Scope of Ap- 
pellate Review, Respondent’s Convictions Should 
Be Affirmed 

Finally, respondent contends (Br. 46-49) that the 
district court’s Rule 11 error requires reversal under 
any standard or scope of review for prejudice. That 
contention should be rejected. Respondent was advised 
more than once, both orally and in writing, that he had 
the right to counsel, including appointed counsel, at 
every stage of the proceedings; each time he confirmed 
his understanding of his rights. See J.A. 15, 18, 22, 25, 
26, 28. Nothing in the record suggests, nor has respon- 
dent argued, that he had any impediment to under- 
standing that information. Moreover, contrary to re- 
spondent’s suggestion now that he might not have truly 
wanted to plead guilty (Br. 48), the record shows that 
respondent was eager to enter a guilty plea to the 
armed robbery charge, and that his lawyer persuaded 
the district court not to accept a plea until he could 
consult further with respondent. J.A. 31-33. After that 
further consultation, respondent persisted in his deter- 
mination to enter a guilty plea to the armed robbery 

12 Respondent also renews his argument (Br. 45-46) that the 
purposes of the raise-or-forfeit rule were satisfied by the fact that 
the prosecutor brought to the district court’s attention that it had 
not complied fully with Rule 11(c)(3). On that point we refer the 
Court to our discussion of the issue in our reply brief in support of 
our certiorari petition (at 6-8). 

19 

charge, even though he was also aware that he would 
have to face a trial on the firearm charge. J.A. 35-36. 
Indeed, he entered that plea without obtaining any 
agreement from the government about dismissal of 
charges or disposition of his sentence. 

Respondent suggests (Br. 47-48) that he might not 
have adequately understood the nature of the firearm 
charge, and that he might have been confused about the 
element of “us[ing]” or “carr[ying]” a firearm under 18 
U.S.C. 924(c) (1994 & Supp. V 1999), especially since 
one of the government’s theories was that he could be 
held responsible under the Pinkerton doctrine for his 
co-conspirators’ violations of Section 924(c) (see J.A. 

55). But respondent did not argue in the court of 
appeals that his guilty plea was unintelligent because 
he had not understood the nature of the firearm charge 
against him or that the district court had not ade- 
quately explained that charge to him. Nor did the court 
of appeals suggest that respondent’s guilty plea was 
invalid on that basis. While respondent now argues that 
he had a potential defense to the Section 924(c) charge, 
he made a calculated decision, after consultation with 
counsel, not to contest that charge. Respondent may 
now regret having pleaded guilty, but his pleas were 
voluntary and intelligent, made after receiving advice 
about his constitutional rights and with full information 
about the nature of the charges against him. There is 
therefore no basis for vacatur of those pleas. 

* * * * * 

20 

For the foregoing reasons, as well as those set forth 
in our opening brief, the judgment of the court of 
appeals should be reversed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

AUGUST 2001