No. 00-973 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

ALPHONSO VONN 

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

REPLY BRIEF FOR THE UNITED STATES 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: 

Stevens v. Department of the Treasury, 500 U.S. 1 
(1991) ........................................................................................ 1 

United States v. Bashara, 27 F.3d 1174 (6th Cir. 
1994), cert. denied, 513 U.S. 1115 (1995) ........................... 

5 

United States v. Chan, 97 F.3d 1582 (9th Cir. 
1996) ......................................................................................... 9 

United States v. Crawford, 169 F.3d 590 (9th Cir. 
1999) ......................................................................................... 8 

United States v. Cross, 57 F.3d 588 (7th Cir.), 
cert. denied, 516 U.S. 955 (1995) ......................................... 

5 

United States v. Hernandez, 896 F.2d 513 (11th 

Cir.), cert. denied, 498 U.S. 858 (1990) ............................... 

6 

United States v. Graibe, 946 F.2d 1428 (9th Cir. 
1991) ......................................................................................... 5 

United States v. Hoyle, 2001 WL 8577 (1st Cir. 

Jan. 8, 2001) ............................................................................. 
4 

United States v. Johnson, 1 F.3d 296 (5th Cir. 
1993) ......................................................................................... 
9, 10 

United States v. Kennell, 15 F.3d 134 (9th Cir. 
1994) ......................................................................................... 
5, 9 

United States v. Lyons, 53 F.3d 1321 (D.C. Cir. 
1995) ......................................................................................... 
9, 10 

United States v. Odedo, 154 F.3d 937 (9th Cir. 
1998) ................................................................................... 
1, 2, 3, 9 

United States v. Olano, 507 U.S. 725 (1993) ..................... 
3, 4 

United States v. Palow, 777 F.2d 52 (1st Cir. 
1985), cert. denied, 475 U.S. 1052 (1986) ........................... 
6 

United States v. Quinones, 97 F.3d 473 (11th Cir. 
1996) ......................................................................................... 5 

United States v. Rivera-Ramirez, 715 F.2d 453 
(9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984) ........... 

8 

United States v. Sanclemente-Bejarano, 861 F.2d 
206 (9th Cir. 1988) .................................................................. 8 

(I) 

II 

Cases—Continued: Page 

United States v. Warfield, 97 F.3d 1014 (8th Cir. 
1996), cert. denied, 520 U.S. 1110 (1997) ........................... 
6 

United States v. Williams, 504 U.S. 36 (1992) ................. 
1, 2, 3 

Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 
1083 (1991) ............................................................................... 
1 

Rules: 

Fed. R. Crim. P.: 

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

1, 2, 3, 4, 7, 8, 9 

Rule 11(c)(1) ........................................................................... 
9 

Rule 11(c)(2) ........................................................................... 
6 

Rule 11(c)(3) ........................................................................... 
6, 9 

Rule 11(e)(2) ........................................................................... 
5, 9 

Rule 32(e) ............................................................................... 
7 

Miscellaneous: 

Lissa Griffin, Federal Criminal Appeals (2000) ................. 6, 7 

REPLY BRIEF FOR THE UNITED STATES 

The Ninth Circuit has consistently adopted an approach to 
appellate review of errors in the guilty-plea colloquy re- 
quired by Rule 11 of the Federal Rules of Criminal Pro- 
cedure that is far more restrictive than the approach of most 
other circuits. Respondent argues that this Court should 
decline to resolve that circuit conflict because, in his view, 
the government did not properly preserve its positions 
below, the conflict is more apparent than real, and this case 
does not present a suitable vehicle for addressing those 
claims. Each of those contentions is incorrect. 

1. Standard of Review (Harmless Error or Plain Error). 

a. Respondent first contends (Br. in Opp. 1-2, 6, 9-11) 
that, because the government did not expressly argue to the 
court of appeals in this case that it should apply a plain- 
error, rather than harmless-error, standard, that issue is not 
preserved for this Court’s review. That contention is 
incorrect. 

This Court’s “traditional rule” permits review of a 
claim when it was “pressed” o r “passed upon below.” 
United States v. Williams, 504 U.S. 36, 41 (1992). The rule 
thus allows review “of an issue not pressed so long as it has 
been passed upon” by the court whose judgment is under 
review. Ibid.; see Virginia Bankshares, Inc. v. Sandberg, 501 
U.S. 1083, 1099 n.8 (1991) (rejecting claim that issue was not 
preserved when it was not raised below; “[i]t suffices for our 
purposes that the court below passed on the issue pre- 
sented”); Stevens v. Department of the Treasury, 500 U.S. 1, 
8 (1991). In this case, the court of appeals, citing its recent 
decision in United States v. Odedo, 154 F.3d 937, 940 (9th 
Cir. 1998), expressly decided that it would apply a harmless- 
error standard of review. See Pet. App. 5a. Because the 

(1) 

2 

court of appeals thus passed on the standard of appellate re- 
view, that issue is properly presented for this Court’s con- 
sideration. 

Although in this case the government did not challenge 
Odedo as the controlling precedent in the court of appeals, 
that does not preclude the government from raising the 
standard-of-review issue in this Court. In United States v. 
Williams, this Court held that an issue is properly preserved 
for review on certiorari when, “although the petitioner did 
not contest the issue in the case immediately at hand, it did 
so as a party to the recent proceeding upon which the lower 
courts relied for their resolution of the issue, and did not con- 
cede in the current case the correctness of that precedent.” 
504 U.S. at 44-45. This case satisfies that requirement.1 The 
government was not also obligated to “demand overruling of 
a squarely applicable, recent circuit precedent, even though 
that precedent was established in a case to which the 
[government] itself was privy and over the [government’s] 
vigorous objection.” Id. at 44. Such an additional require- 
ment would be, as the Court stated in Williams, “un- 
reasonable.” Ibid. 

Respondent also contends (Br. in Opp. 10-11) that the 
government did not argue below that the proper harmless- 
error inquiry for a Rule 11 violation is whether the district 
court’s failure to comply with Rule 11 affected his decision to 
plead guilty. See Pet. 16-17. The court of appeals, however, 
clearly adopted the different rule that the inquiry into pre- 
judice turns on “an affirmative showing on the record that 

1 In Odedo, as the court of appeals there noted, the government 
argued that, “because Odedo failed to raise his Rule 11 contention in the 
district court * * * it is ‘waived,’ ” and the court interpreted that con- 
tention to mean that “it is the Government’s contention that we must 
invoke a ‘plain error’ analysis for a ‘forfeited error.’ ” Odedo, 154 F.3d at 
939. The court of appeals then explicitly rejected that contention and 
concluded that departure from Rule 11 requires reversal unless the 
government demonstrates that the error was “harmless.” Id. at 940. 

3 

defendant was aware of his rights.” Pet. App. 9a (internal 
quotation marks omitted). Again, that position was 
consistent with the legal standard that the court had adopted 
in Odedo. 154 F.3d at 940. Thus, the court “passed upon” 
(Williams, 504 U.S. at 41) the showing that must be made 
to establish an effect on “substantial rights” from a Rule 11 
error—an issue that is the subject of a circuit conflict. See 
Pet. 16. And if the correct standard of review in a case like 
this is the plain error standard, as we contend, a logical sub- 
sidiary issue is whether, in deciding whether a Rule 11 error 
affected the “fairness, integrity or public reputation of 
judicial proceedings,” United States v. Olano, 507 U.S. 725, 
732 (1993), a court should affirm when the defendant would 
have pleaded guilty even absent the Rule 11 violation. Be- 
cause the plain-error question is properly before this Court, 
so is the subsidiary issue of its proper application. 

b. There is no merit to respondent’s contention (Br. in 
Opp. 11-19) that the difference between harmless-error and 
plain-error review in this context is of little significance. 
There are two significant differences. The first relates to the 
party that bears the burden of proof. The most frequent 
setting in which a Rule 11 violation will not affect substantial 
rights is when the defendant is aware of the omitted advice 
from another source. If the harmless-error standard applies, 
then the government bears the burden of proof in making 
that showing. See Olano, 507 U.S. at 734. The government 
will be at a significant disadvantage, compared to the defen- 
dant, in doing so, because the defendant best knows what 
advice he has received. Indeed, the showing required of the 
government will be particularly difficult, if not impossible, if 
the court of appeals restricts the scope of its review to the 
transcript of the plea proceeding, as the court did in this case 
(see Pet. App. 6a-7a). In contrast, if a plain-error standard 
applies, then the defendant bears the burden of proof to 
show an effect on his substantial rights—i.e., that the error 

4 

“affected the outcome of the district court proceedings.” 
Olano, 507 U.S. at 734. 

The second important distinction between harmless-error 
and plain-error review is that plain-error review requires 
not only an effect on substantial rights, but also a basis for 
the court of appeals to exercise its discretion to correct the 
error. See Olano, 507 U.S. at 732 (court of appeals should 
exercise discretion to reverse for plain error only if the error 
“seriously affect[s] the fairness, integrity or public 
reputation of judicial proceedings”) (punctuation altered). 
Even if a Rule 11 error were found to affect substantial 
rights, reversal would not be warranted under the dis- 
cretionary aspect of plain-error review when the defendant 
acted knowingly and voluntarily and would have entered a 
guilty plea even had he been provided with the omitted 
information. See United States v. Hoyle, 2001 WL 8577, at 

*4 (1st Cir. Jan. 8, 2001). Contrary to respondent’s con- 
tention (Br. in Opp. 11), there may well be cases in which the 
defendant cannot make a persuasive showing on that 
point—for example, where the guilty plea was unquestion- 
ably voluntary, and where the defendant was offered a 
highly favorable plea agreement or the case against the 
defendant was strong. When the district court omits a small 
part of the information required by Rule 11 in its colloquy, 
the defendant fails to object to that omission, and the factual 
basis for the guilty plea is compelling, there is little to 
commend vacatur of the plea. 

Although respondent acknowledges that the courts of 
appeals have divided over the standard of review to be ap- 
plied to claims of Rule 11 error not raised at trial, he con- 
tends (Br. in Opp. 14-18) that there has been little practical 
difference between the approaches followed by the “plain- 
error” and the “harmless-error” courts. That is incorrect. 
As respondent notes (id. at 16), all the courts of appeals do 
undertake a fact-specific review of particular records to 
determine whether the guilty plea should be vacated; but the 

5 

critical question is what the courts are looking for in making 
that record review, and on that point they have diverged 
significantly. The “plain-error” courts have generally asked 
whether the record shows some fundamental defect in the 
guilty plea, such as whether the plea was not knowingly and 
voluntarily made.2 By contrast, the Ninth Circuit, applying 
a harmless-error standard, has found reversible error even 
where there is no reason to doubt that the defendant acted 
voluntarily and intelligently in making the guilty plea.3 
Indeed, it reversed in this case, even though the district 
court found, based on a colloquy with the defendant, that the 
plea was voluntary and intelligent and had a factual basis, 
see Resp. C.A. Ex. Rec. 26, 32, because the district court 

2 See, e.g., United States v. Cross, 57 F.3d 588, 591 (7th Cir.) (“There- 
fore, our review of Cross’ plea is based on whether under the totality of 
the circumstances, the plea was voluntary and intelligent.”), cert. denied, 
516 U.S. 955 (1995); United States v. Bashara, 27 F.3d 1174, 1180 (6th Cir. 
1994) (declining to vacate plea because “it cannot be said * * * that 
Bashara was ‘affirmatively misled’ ” about his potential sentence), cert. 
denied, 513 U.S. 1115 (1995); see also United States v. Quinones, 97 F.3d 
473, 475 (11th Cir. 1996) (plain-error review involves whether the district 
court “failed to address a core concern of Rule 11[:] * * * (1) ensuring 
that the guilty plea is free of coercion; (2) ensuring that the defendant 
understands the nature of the charges against him; and (3) ensuring that 
the defendant is aware of the direct consequences of the guilty plea”). 

3 See United States v. Kennell, 15 F.3d 134, 135-137 (9th Cir. 1994) 
(vacating guilty plea under harmless-error standard where district court 
failed to advise defendant, as required by Rule 11(e)(2), that defendant 
could not withdraw his guilty plea if the court rejected government’s 
sentencing recommendation, even though defendant had signed plea 
agreement advising him of that point, and even though district court made 
certain that the plea was voluntarily and intelligently made); United 
States v. Graibe, 946 F.2d 1428, 1432 (9th Cir. 1991) (also vacating guilty 
plea under harmless-error standard where district court failed to advise 
defendant that defendant could not withdraw his guilty plea if the court 
rejected government’s sentencing recommendation, even absent showing 
that defendant was misled on that point). 

6 

failed to provide the defendant with a part of the advice 
required by Rule 11(c)(3). 

c. Respondent suggests (Br. in Opp. 18 n.4) that this case 
is not a suitable vehicle for resolution of the proper standard 
of review because the prosecutor brought to the court’s 
attention the possibility that the court had not fully complied 
with Rule 11(c)(3). Respondent contends that this was 
sufficient to alert the court to a mistake that should have 
been corrected and to avoid the application of the plain-error 
rule in the court of appeals. The court of appeals, however, 
concluded that the prosecutor’s statement was “elliptical at 
best” because it referred only to respondent’s right to 
counsel, not his right to counsel at trial, which is not the 
same thing.4 See Pet. App. 7a. 

Moreover, we are not aware of any authority for the 
proposition that such a statement by a prosecutor is 
sufficient to carry the defendant’s burden to preserve a claim 
of error in the district court if the defendant makes no com- 
ment whatever. “Generally, the need to object, and thus to 
preserve an error for appeal is personal.” Lissa Griffin, 
Federal Criminal Appeals § 4.2(5)(b) at 4-18 (2000). Indeed, 
as a general matter, a defendant may not raise on appeal a 
claim of error that only a co-defendant has preserved in the 
trial court.5 

4 Compare Fed. R. Crim. P. 11(c)(2) (court must advise unrepresented 
defendant that he has “the right to be represented by an attorney at every 
stage of the proceeding”) with Fed. R. Crim. P. 11(c)(3) (court must advise 
represented defendant that he has “the right to be tried by a jury and at 
that trial the right to the assistance of counsel”). 

5 See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir. 
1996) (failure to join co-defendant’s objection to restriction of cross- 
examination), cert. denied, 520 U.S. 1110 (1997); United States v. 
Hernandez, 896 F.2d 513, 523 (11th Cir.) (failure to join co-defendants’ 
motions for mistrial), cert. denied, 498 U.S. 858 (1990); United States v. 
Palow, 777 F.2d 52, 54 (1st Cir. 1985) (failure to join co-defendants’ 
motions for severance), cert. denied, 475 U.S. 1052 (1986). Courts have 

7 

Especially in the context of a guilty-plea proceeding, a 
rule permitting a defendant to “vicariously object” based on 
a prosecutor’s suggestion that the court had not complied 
with Rule 11 would be undesirable, for several reasons. 
First, the requirement that a defendant preserve a claim of 
error in the lower court promotes the adversary system, 
because it limits appeals to issues about which the defendant 
truly cares. If, by contrast, the defendant remains silent but 
then is permitted to raise the failure to comply with Rule 11 
on appeal for the first time, the defendant will receive a 
windfall based on the diligence of another party to the case. 
Second, the strong societal interest in the finality of guilty 
pleas favors a rule that the defendant make some effort to 
challenge the validity of his plea in the lower court, so that a 
defendant is not induced to appeal merely because he is un- 
happy with the sentence that the district court imposes after 
accepting his guilty plea. Third, a defendant who pleads 
guilty will often have the opportunity to move to withdraw 
his guilty plea after the plea is accepted but before sentence 
is imposed, and thereby to bring the error again to the 
district court’s attention as a possible basis for allowing him 
to replead. See Fed. R. Crim. P. 32(e) (authorizing district 
court to permit a guilty plea to be withdrawn before sentenc- 
ing “if the defendant shows any fair and just reason”). If a 
defendant moves to withdraw his plea, then the district 
court can either permit him to replead or, if it declines to do 
so, can develop a record on the issue of prejudice for review 
by the court of appeals. In a case like this one, for example, a 

recognized an exception to that rule when the trial court expressly 
adopted a practice that an objection by one defendant applied to all defen- 
dants, see Griffin, supra, at 4-18 to 4-19, and some courts have also 
adopted a more lenient rule allowing defendants to press on appeal objec- 
tions to evidence that were made at trial only by their co-defendants, see 
id. at 4-19. “However, with other types of error, where there is no evi- 
dence that the court applied the ‘one-objection’ practice, vicarious pre- 
servation will not be permitted.” Ibid. 

8 

district court might conclude that it would not be “fair and 
just” to permit the defendant to withdraw his plea because 
the defendant had been informed, before pleading guilty, of 
all his constitutional rights attendant to a trial, or because 
the defendant would have entered a guilty plea even if the 
district court had fully complied with Rule 11. 

2. Scope of Record on Review. 

Although respondent acknowledges (Br. in Opp. 19) that 
the court of appeals ruled in this case that it would consider 
only the record of the plea proceeding to determine whether 
the district court’s failure to comply with Rule 11 was 
harmless, he contends (id. at 20) that the Ninth Circuit has 
not followed such a flat rule in other cases, and (id. at 20-23) 
that the decision below does not, in any event, conflict with 
decisions of other circuits. Both contentions are incorrect. 

The other Ninth Circuit decisions cited by respondent do 
not suggest that the court of appeals will consider matters 
outside the plea proceeding in determining whether a Rule 
11 error affected the defendant’s substantial rights. In three 
of those decisions, the Ninth Circuit held only that the 
district court’s failure to give the defendant specific required 
advice at the plea proceeding was harmless in light of other 
advice that the court had given the defendant at the same 
proceeding.6 In another case, the court merely reaffirmed 

6 In United States v. Crawford, 169 F.3d 590, 592 (9th Cir. 1999), the 
court failed to advise the defendant that he would be subject to mandatory 
restitution following his guilty plea, but the error was deemed harmless 
because the court did advise the defendant that he was subject to a fine 
well in excess of the amount of the restitution that was actually imposed. 
In United States v. Sanclemente-Bejarano, 861 F.2d 206, 210 (9th Cir. 
1988), the court failed to advise the defendant that he would be subject to 
a term of supervised release following release from incarceration, but the 
error was deemed harmless because the court advised the defendant that 
he was potentially subject to a maximum life prison term. In United 
States v. Rivera-Ramirez, 715 F.2d 453, 458 (9th Cir. 1983), cert. denied, 
467 U.S. 1215 (1984), the court failed to advise the defendant of the 

9 

that it would not reverse a conviction based on a technical 
deviation from the requirements of Rule 11 where the 
defendant had clearly suffered no prejudice.7 And the Ninth 
Circuit has also made clear in other Rule 11 contexts, beyond 
the failure to give all the advice required by Rule 11(c)(3), 
that it will not look beyond the record of the plea proceeding 
in making its harmless-error review. See United States v. 
Kennell, 15 F.3d 134, 137 (9th Cir. 1994) (district court’s 
failure to advise defendant, as required by Rule 11(e)(2), that 
it was not bound by sentence recommendation in plea 
agreement, held not harmless, even though signed plea 
agreement itself informed defendant that court was not so 
bound); Odedo, 154 F.3d at 940 (court failed to inform 
defendant of nature of the charges against him, as required 
by Rule 11(c)(1); court of appeals limited its review “to the 
record of the plea proceeding at issue”). 

By contrast, the en banc Fifth Circuit, in United States v. 
Johnson, 1 F.3d 296 (1993), expressly rejected a rule limiting 
harmless-error review to “the plea hearing transcript,” id. at 
298 n.6, and held that it could review even matters in the 
record after the plea hearing, such as the transcript of sen- 
tencing, see id. at 302. The D.C. Circuit considered the tran- 
script of the sentencing hearing in United States v. Lyons, 53 
F.3d 1321, 1323 (1995), in ruling that the Rule 11 error in 
that case was harmless. While both courts recognized that 
the task before them was to determine whether the infor- 

minimum special parole term he might be required to serve following his 
incarceration, but the error was deemed harmless because the court 
advised the defendant at the hearing that he might be subject to a life 
special parole term, which could convert to a life prison term if the parole 
terms were violated. 

7 See United States v. Chan, 97 F.3d 1582, 1584 (9th Cir. 1996) 
(although district court failed to advise defendant that it was not bound by 
terms of plea agreement and could impose a sentence higher than that 
recommended in the agreement, that error was harmless since court 
imposed the very sentence bargained for in the plea agreement). 

10 

mation omitted from the district court’s advice to the 
defendant could have influenced his decision to plead guilty 
at the time he did so (see Johnson, 1 F.3d at 303; Lyons, 53 
F.3d at 1323), the important point is that both courts did not 
confine themselves to the plea proceeding, even broadly 
defined, in performing that task. Those decisions therefore 
conflict with the Ninth Circuit’s restriction of harmless-error 
review to the record of the guilty plea proceeding. 

* * * * * 

For the foregoing reasons, and for those set forth in the 
petition, the petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

FEBRUARY 2001