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 

BRIEF FOR THE UNITED STATES 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

Counsel of Record 

JOHN C. KEENEY 

Acting Assistant Attorney 

General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

JOEL M. GERSHOWITZ 

Attorney 

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

QUESTIONS PRESENTED 

1. Whether a district court’s failure to advise a 
counseled defendant at his guilty plea hearing that he 
has the right to the assistance of counsel at trial, as 
required by Federal Rule of Criminal Procedure 
11(c)(3), is subject to plain-error, rather than harmless- 
error, review on appeal when the defendant fails to 
preserve the claim of error in the district court. 

2. Whether, in determining if a defendant’s sub- 
stantial rights were affected by a district court’s devia- 
tion from the requirements of Rule 11(c)(3), the court of 
appeals may review only the transcript of the guilty 
plea colloquy, or whether it may also consider other 
parts of the official record. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Rules involved ................................................................................ 
2 

Statement ........................................................................................ 3 

Summary of argument .................................................................. 
11 

Argument: 

The district court’s failure to advise respondent, as 

required by Rule 11(c)(3), of his right to the 

assistance of counsel at trial was not reversible 

error in this case .................................................................... 

16 

A. The omission of advice required by Rule 11(c)(3) 

is reviewable only for plain error if the defendant 

has failed to raise the claim of error in the district 

court ................................................................................. 16 

B. A showing of plain error in a guilty plea colloquy 

requires a finding that the error affected the out- 
come of the proceeding ................................................ 
29 

C. A reviewing court should consider the entire 

record in the case to determine whether a Rule 

11(c)(3) violation was prejudicial ................................ 

38 

D. The district court’s Rule 11(c)(3) violation in 

this case was not plain error ....................................... 

45 

Conclusion ....................................................................................... 48 

TABLE OF AUTHORITIES 

Cases: 

Bank of Nova Scotia v. United States, 487 U.S. 250 

(1988) ....................................................................... 

31, 32, 39, 41 

Berkemer v. McCarty, 468 U.S. 420 (1984) ....................... 

31 

Bihn v. United States, 328 U.S. 633 (1946) ....................... 

40 

Bousley v. United States, 523 U.S. 614 (1998) .................. 36 

(III) 

IV 

Cases—Continued Page 

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

28 

Calderon v. Coleman, 525 U.S. 141 (1998) ........................ 

39 

Chapman v. California, 386 U.S. 18 (1967) .................. 

31, 32 

Daniels v. United States, No. 99-9136 (Apr. 25, 

2001) ......................................................................................... 16 

Davis v. United States, 411 U.S. 233 (1973) ...................... 

24 

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ................. 

39 

Estelle v. Williams, 425 U.S. 501 (1976) ............................ 

17 

Halliday v. United States, 394 U.S. 831 (1969) ............ 

25, 28 

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

35, 36 

Hill v. Lockhart, 474 U.S. 52 (1985) ................................... 

33 

Holmgren v. United States, 217 U.S. 509 (1910) .............. 

23 

Johnson v. United States, 520 U.S. 461 (1997) ....... 

20, 29, 37 

Jones v. United States, 527 U.S. 373 (1999) .................. 

31, 32 

Kotteakos v. United States, 328 U.S. 750 (1946) ........... 

31, 32 

Levine v. United States, 362 U.S. 610 (1960) .................... 

24 

Lucas v. United States, 963 F.2d 8 (2d Cir.), cert. 

denied, 506 U.S. 895 (1992) .................................................. 

43 

Luce v. United States, 469 U.S. 38 (1984) ...................... 

16, 17 

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

23, 24, 

26, 28 

Mitchell v. United States, 526 U.S. 314 (1999) ................. 
28 

Neder v. United States, 527 U.S. 1 (1999) ..................... 

31, 32 

Rose v. Clark, 478 U.S. 570 (1986) ...................................... 

31 

Smith v. O’Grady, 312 U.S. 329 (1941) ............................... 

36 

Strickland v. Washington, 466 U.S. 668 (1984) ................ 

33 

Sullivan v. Louisiana, 508 U.S. 275 (1993) ....................... 

31 

Torres v. Oakland Scavenger Co., 487 U.S. 312 

(1988) ........................................................................................ 42 

United States v. Atkinson, 297 U.S. 157 (1936) ............... 

23 

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

30 

United States v. Dayton, 604 F.2d 931 (5th Cir. 

1979), cert. denied, 445 U.S. 904 (1980) ............................. 

44 

United States v. Driver, 242 F.3d 767 (7th Cir. 

2001) .............................................................................. 

18, 22, 43 

United States v. Frady, 456 U.S. 152 (1982) ..................... 20 

V 

Cases—Continued: Page 

United States v. Gagnon, 470 U.S. 522 (1985) .................. 

16 

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

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

33 

United States v. Glinsey, 209 F.3d 386 (5th Cir.), 

cert. denied, 121 S. Ct. 282 (2000) ....................................... 

33 

United States v. Gray, 611 F.2d 194 (7th Cir. 1979), 

cert. denied, 446 U.S. 911 (1980) ..................................... 

42, 43 

United States v. Hasting, 461 U.S. 499 (1983) .................. 

40 

United States v. Hyde, 520 U.S. 670 (1997) ................... 

20, 42 

United States v. Jones, 143 F.3d 1417 (11th Cir. 

1998) ......................................................................................... 43 

United States v. Lane, 474 U.S. 438 (1986) ..................... 

39-40 

United States v. Littlejohn, 224 F.3d 960 (9th Cir. 

2000) ......................................................................................... 35 

United States v. Lopez-Pineda, 55 F.3d 693 

(1st Cir.), cert. denied, 516 U.S. 900 (1995) ................... 

18, 43 

United States v. Lovett, 844 F.2d 487 (7th Cir. 

1988) ......................................................................................... 43 

United States v. Lyons, 53 F.3d 1321 (D.C. Cir. 

1995) .......................................................................... 

21, 33, 42, 43 

United States v. Maher, 108 F.3d 1513 (2d Cir. 

1997) ......................................................................................... 43 

United States v. McCarty, 99 F.3d 383 (11th Cir. 

1996) ......................................................................................... 31 

United States v. Mechanik, 475 U.S. 66 (1986) ...... 

31, 38, 41 

United States v. Montalvo-Murillo, 495 U.S. 711 

(1990) .................................................................................... 

31, 32 

United States v. Odedo, 154 F.3d 937 (9th Cir. 

1998) ..................................................................................... 

21, 28 

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

16, 20, 21, 

28, 29, 31, 32, 37 

United States v. Peden, 872 F.2d 1303 (7th Cir. 
1989) ......................................................................................... 43 

United States v. Raineri, 42 F.3d 36 (1st Cir. 1994), 

cert. denied, 515 U.S. 1126 (1995) ....................................... 30 

VI 

Cases—Continued: Page 

United States v. Saft, 558 F.2d 1073 (2d Cir. 

1977) ......................................................................................... 43 

United States v. Sells Eng’g Inc., 463 U.S. 418 

(1983) ........................................................................................ 42 

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

25, 26 

United States v. Vance, 868 F.2d 1167 (10th Cir. 

1989) ......................................................................................... 43 

United States v. Wright, 930 F.2d 808 (10th Cir. 

1991) ......................................................................................... 33 

United States v. Young, 470 U.S. 1 (1985) ....... 

20, 23, 37, 41 

Vasquez v. Hillery, 474 U.S. 254 (1986) ............................. 

24 

Wainwright v. Sykes, 433 U.S. 72 (1977) ....................... 

16, 17 

Waller v. Georgia, 467 U.S. 39 (1984) .................................. 

24 

Weems v. United States, 217 U.S. 349 (1910) ................. 

22-23 

Williams v. United States, 503 U.S. 193 (1992) ............ 

32, 39 

Yates v. Evatt, 500 U.S. 391 (1991) ........................... 

31, 32, 39 

Statutes and rules: 

18 U.S.C 2 ................................................................................... 

3 

18 U.S.C. 371 .............................................................................. 

3 

18 U.S.C. 924(c) ......................................................................... 

3, 4 

18 U.S.C. 2113 ............................................................................ 

4 

18 U.S.C. 2113(a) ....................................................................... 

3 

18 U.S.C. 2113(d) ....................................................................... 

3 

28 U.S.C. 391 (1940) .............................................................. 

22, 23 

28 U.S.C. 391 (1946) .................................................................. 

40 

28 U.S.C. 2255 .................................................................. 

24, 25, 26 

Fed. R. Crim. P.: 

Rule 6(e) .................................................................................. 

42 

Rule 7(c) .................................................................................. 
27 

Rule 7(c)(3) .............................................................................. 
27 

Rule 11 (1966) ......................................................................... 
25 

Rule 11 ............................................................................... 
passim 

Rule 11(c) ...................................................................... 
15, 21, 28 

Rule 11(c)(1) ........................................................................ 14, 34 

VII 

Rules—Continued: Page 

Rule 11(c)(2) ............................................................................ 
7, 17 

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

Rule 11(e)(1)(B) ...................................................................... 
19 

Rule 11(e)(2) ....................................................................... 
19, 31 

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

1983 Advisory Committee Note .............. 
23, 25, 26, 31, 42 

Rule 12(f) ................................................................................. 
27 

Rule 24(c) ................................................................................ 
28 

Rule 32(e) ............................................................................ 
18, 42 

Rule 52 ..................................................................................... 
2 

Rule 52(a) ....................................... 
2, 21, 22, 26, 29, 31, 39, 40 

Rule 52(b) .......................................................................... 

passim 

Miscellaneous: 

Roger Traynor, The Riddle of Harmless Error 
(1970) ........................................................................................ 37 

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 

BRIEF FOR THE UNITED STATES 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-10a) 
is reported at 224 F.3d 1152. A prior opinion of the 
court of appeals, which was withdrawn on rehearing 
(Pet. App. 11a-22a), is reported at 211 F.3d 1109. 

JURISDICTION 

The initial judgment of the court of appeals was 
entered on April 20, 2000. The judgment of the court of 
appeals on rehearing was entered on September 14, 
2000. The petition for a writ of certiorari was filed on 
December 13, 2000, and was granted on February 26, 
2001. The jurisdiction of this Court rests on 28 U.S.C. 
1254(1). 

(1) 

2 

RULES INVOLVED 

1. Rule 11(c) of the Federal Rules of Criminal 
Procedure, titled “Advice to Defendant,” provides, in 
pertinent part: 

Before accepting a plea of guilty or nolo conten- 
dere, the court must address the defendant per- 
sonally in open court and inform the defendant of, 
and determine that the defendant understands, the 
following: 

* * * * * 

(3) that the defendant has the right to plead 
not guilty or to persist in that plea if it 
has already been made, the right to be 
tried by a jury and at that trial the right 
to the assistance of counsel, the right to 
confront and cross-examine adverse wit- 
nesses, and the right against compelled 
self-incrimination. 

2. Rule 11(h) of the Federal Rules of Criminal Pro- 
cedure, titled “Harmless Error,” provides: 

Any variance from the procedures required by 
this rule which does not affect substantial rights 
shall be disregarded. 

3. Rule 52 of the Federal Rules of Criminal Pro- 
cedure, titled “Harmless Error and Plain Error,” pro- 
vides: 

(a) Harmless Error. Any error, defect, irregu- 
larity or variance which does not affect sub- 
stantial rights shall be disregarded. 

3 

(b) Plain Error. 

Plain errors or defects affecting 

substantial rights may be noticed although they 
were not brought to the attention of the court. 

STATEMENT 

Following guilty pleas, respondent was convicted 
in the United States District Court for the Central 
District of California on one count of conspiracy to 
commit bank robbery, in violation of 18 U.S.C. 371; one 
count of aiding and abetting armed bank robbery, in 
violation of 18 U.S.C. 2113(a) and (d) and 18 U.S.C. 2; 
and one count of using or carrying a firearm during and 
in relation to a crime of violence, in violation of 
18 U.S.C. 924(c). See Pet. App. 2a-3a. Respondent was 
sentenced to 97 months’ imprisonment, to be followed 
by three years’ supervised release. Id. at 24a-25a. The 
court of appeals vacated respondent’s guilty pleas and 
sentence, and remanded for further proceedings. Id. 
at 10a. 

1. On February 27, 1997, respondent was arrested 
on a criminal complaint that charged him and two 
others with armed bank robbery and with using and 
carrying a firearm during and in relation to a crime of 
violence. J.A. 12-13. On February 28, 1997, respondent 
made his initial appearance on the complaint. At that 
appearance, the magistrate judge advised the defen- 
dants who were present, including respondent, of their 
constitutional rights, including “the right to retain and 
to be represented by an attorney of your own choosing 
at each and every sta[g]e of the proceedings against 
you,” and the right “to request that the Court appoint 
an attorney to represent you” if “you cannot afford an 
attorney.” J.A. 15. Respondent orally confirmed that 
he had heard and understood his rights. J.A. 18. The 
magistrate then found that respondent was indigent 

4 

and appointed a Deputy Federal Public Defender to 
represent him. Ibid. 

On March 14, 1997, a grand jury returned a two-count 
indictment charging respondent with one count of 
armed bank robbery, in violation of 18 U.S.C. 2113, and 
one count of using and carrying a firearm during and in 
relation to that robbery, in violation of 18 U.S.C. 924(c). 
J.A. 19-20. On March 17, 1997, respondent appeared 
in court, represented by appointed counsel, for his 
arraignment. The magistrate judge advised the defen- 
dants present, including respondent, of their constitu- 
tional rights, including the right “to be represented by 
counsel at all stages of the proceedings,” and also ad- 
vised the defendants that, “[i]f you don’t have the 
money or means to hire an attorney, I will appoint an 
attorney to represent you without cost or expense to 
you.” J.A. 22. Respondent’s counsel then provided 
the court with respondent’s signed “Statement of 
Defendant’s Constitutional Rights,” in which respon- 
dent acknowledged his constitutional right “to be repre- 
sented by counsel at all stages of the proceedings 
against [him].” J.A. 25, 26, 28.1 Respondent’s counsel 
also signed a statement at the end of the form indi- 
cating that counsel was “satisfied that [respondent] has 
read this Statement of Rights * * * and that [he] 
understands them.” J.A. 29. That document was filed 
with the court. J.A. 4. 

At the conclusion of the arraignment, the court, 
through the clerk, asked respondent personally 
whether he had heard and understood the statements 
of the court “[p]ertaining to [his] rights and the 

1 Because of a broken arm, respondent could not actually sign 
his name on the form; instead, he marked the signature line with 
an “X.” J.A. 25, 28. 

5 

appointment of counsel,” and whether he had seen and 
signed the statement of rights form. J.A. 25. 
Respondent answered both inquiries in the affirmative. 
Ibid. 

2. On May 12, 1997, at a status conference before the 
district judge, respondent, represented by the same 
court-appointed counsel who had represented him at his 
arraignment and at three earlier status conferences, 
indicated his intention to plead guilty to the bank 
robbery count and to proceed to trial on the firearms 
count. J.A. 35, 37. Respondent’s counsel explained to 
the court that respondent’s position was that he partici- 
pated in the robbery but that, contrary to the govern- 
ment’s contention, he did not use a firearm during the 
robbery. J.A. 35. The court then asked respondent’s 
counsel, in respondent’s presence, whether there was 
“any point in taking this plea” since “[t]he jury is going 
to have to hear the whole case anyway * * * to 
figure out whether or not he used a gun.” J.A. 36. 
Respondent’s counsel reiterated that “my client’s 
desire [is] to plead guilty to [the bank robbery charge].” 
Ibid. 

The court then proceeded to engage in a colloquy 
with respondent, as required by Federal Rule of 
Criminal Procedure 11, to ensure that respondent’s 
guilty plea was voluntary and intelligent and was sup- 
ported by a factual basis. During the course of that 
colloquy, the court advised respondent that, by plead- 
ing guilty, he would be giving up certain constitutional 
rights, including the right against self-incrimination, 
the right to a trial, the right to confront and cross- 
examine witnesses against him, and the right to pre- 
sent evidence in his own behalf at trial. J.A. 38-40. 
Respondent stated that he waived those rights. J.A. 40. 

6 

The court did not expressly tell respondent at that 
time, however, that if he proceeded to trial, he would 
have the right to the assistance of counsel at that trial. 
That omission contravened Federal Rule of Criminal 
Procedure 11(c)(3), which requires the court, before 
accepting a guilty plea, to inform the defendant that he 
has (among other rights) “the right to be tried by a jury 
and at that trial the right to the assistance of counsel.” 
Respondent’s counsel did not object to the omission. 
The court then accepted respondent’s guilty plea to the 
bank robbery charge. J.A. 43. 

At the conclusion of the hearing, the court informed 
counsel for both parties, in respondent’s presence, that 
the firearm charge was scheduled for trial on June 10, 
1997. J.A. 45; Pet. App. 17a n.4. On the day before trial 
was scheduled to take place, however, the court re- 
scheduled it to August 12, 1997, because the attorneys 
in this case were then in the middle of another trial. 
J.A. 47. At the status conference at which the court 
rescheduled the trial, the court addressed respondent 
personally to confirm his understanding that his trial 
had been continued because of the attorneys’ schedul- 
ing conflicts. Ibid.2 

3. On July 29, 1997, the grand jury returned a three- 
count superseding indictment charging respondent with 
bank robbery (to which he had already pleaded guilty), 
using and carrying a firearm during and in relation to a 
bank robbery, and a new third count, charging con- 

2 The court’s order holding the continuance to be excludable 
time under the Speedy Trial Act stated that, “although defendant 
Vonn and defendant Vonn’s counsel were initially prepared to go 
forward with this case * * * on June 10, 1997, defense counsel is 
no longer available to try this case on [that date].” Gov’t C.A. Ex. 
Rec. 42-43. 

7 

spiracy to commit bank robbery. J.A. 48-52. On August 
4, 1997, respondent, assisted by counsel, pleaded not 
guilty to the conspiracy and firearm charges. At that 
time, defense counsel also requested and obtained from 
the court another continuance of the trial, to September 
9, 1997. Gov’t C.A. Ex. Rec. 51-52. 

On September 3, 1997, at a hearing, respondent 
stated his intention to change his plea on the conspiracy 
and firearms counts to guilty. J.A. 54. The court then 
once again advised respondent that by pleading guilty 
he was giving up certain rights. J.A. 58. Again, how- 
ever, the court omitted specific mention of respondent’s 
right to the assistance of counsel at trial, should he 
choose to go to trial. After the court determined that 
there was a factual basis for the guilty pleas, the 
Assistant United States Attorney stated in open court 
that she did not “remember hearing the Court inform 
the defendant of his right to assistance of counsel.” J.A. 

61. The court responded that “I didn’t because [he] is 
represented by counsel.” Ibid.3 Respondent’s counsel 
raised no objection to the court’s failure to advise 
respondent specifically of his right to the assistance of 
counsel at trial. Respondent then entered his plea of 
guilty on the conspiracy and firearm charges, and the 
court accepted the plea. Resp. C.A. Ex. Rec. 29. 

3 Federal Rule of Criminal Procedure 11(c)(2) provides that, 
before accepting a guilty plea from a defendant who “is not repre- 
sented by an attorney,” the court must advise the defendant that 
he has “the right to be represented by an attorney at every stage 
of the proceeding and, if necessary, one will be appointed to repre- 
sent the defendant.” Rule 11(c)(3) requires, in every case in which 
a defendant seeks to plead guilty, that the court must advise the 
defendant about the right “to the assistance of counsel” at trial. 
That requirement, which is at issue in this case, is not limited to 
unrepresented defendants. 

8 

4. On May 14, 1998, respondent moved to withdraw 
his guilty plea on the firearm charge only, on the 
ground that it lacked a factual basis. The district court 
denied the motion. J.A. 62-65. Respondent did not 
move to withdraw his guilty pleas to the other charges, 
nor did he invoke, as a basis for his motion to withdraw 
his plea to the firearms count, the district court’s failure 
to advise him of his right to the assistance of counsel at 
trial. On June 22, 1998, respondent was sentenced to 97 
months’ imprisonment. Pet. App. 23a-24a. 

5. On appeal, respondent argued for the first time 
that his guilty pleas on all three counts were invalid 
because, among other things, the district court had 
failed to advise him of his right to the assistance of 
counsel at trial, as required by Rule 11(c)(3), before 
accepting his guilty plea. The court of appeals found 
respondent’s Rule 11(c)(3) claim “dispositive” (Pet. 
App. 13a n.1), and vacated respondent’s guilty pleas (id. 
at 22a). 

The court of appeals first observed that “[t]he 
Government correctly points out that we do not nor- 
mally consider issues raised for the first time on 
appeal.” Pet. App. 15a. The court nonetheless rejected 
the government’s argument that respondent had for- 
feited his claim of Rule 11 error. Rather, it held (ibid.) 
that the normal plain-error standard of review appli- 
cable to claims of error not raised at trial, as set forth in 
Federal Rule of Criminal Procedure 52(b), “does not 
apply to Rule 11 errors,” and that “Rule 11 has its own 
review mechanism” in Rule 11(h), “which supersedes 
the normal waiver rule.”4 Therefore, the court stated, 

4 Rule 11(h) provides: “Any variance from the procedures 
required by this rule which does not affect substantial rights shall 
be disregarded.” 

9 

the case turns on whether “the district court’s error 
was harmless.” Pet. App. 15a. 

The court of appeals noted that Rule 11(h) requires 
the court to “disregard variances from the colloquy that 
do not ‘affect substantial rights.’ ” Pet. App. 15a (quot- 
ing Fed. R. Crim. P. 11 (h)). 

According to the court, the 
“affect[ing] substantial rights” language of Rule 11(h) 
“mean[s] that we must inquire whether the defendant 
was aware of his rights despite the judge’s failure to 
advise him.” Ibid. Applying that standard, the court 
determined that the district court’s error was not harm- 
less because the record did not contain “unequivocal 
evidence” that respondent was aware that he had the 
right to the assistance of counsel at trial. Id. at 16a-21a. 
The court rejected the government’s argument that the 
district court’s statements at the May 12, 1997, status 
conference concerning the need for a jury trial on 
the firearm charge and the impending June 10, 1997, 
trial date (see p. 5, supra), demonstrated respondent’s 
awareness that he would be represented by counsel at 
trial. Id. at 16a-17a & nn. 3-4. The court found those 
statements insufficiently clear to establish with con- 
fidence respondent’s awareness that he would be 
represented by counsel at trial. Id. at 18a. 

The court of appeals also noted that, at respondent’s 
September 3, 1997, change of plea hearing, the prose- 
cutor had drawn the district court’s attention to the fact 
that it had not specifically advised respondent of his 
right to counsel at trial. The court of appeals “sym- 
pathize[d]” with the government’s “good faith effort” to 
address that deficiency below, but it determined that 
the transcript “does not yield the unequivocal evidence 
we would need before we could deem [respondent] 
aware of his continuing right to counsel at trial.” Pet. 
App. 18a-19a. 

10 

6. The government filed a petition for rehearing, in 
which it brought to the court’s attention other parts of 
the record demonstrating respondent’s awareness of 
his right to the assistance of counsel at trial. In parti- 
cular, the government pointed to respondent’s signed 
acknowledgment of his constitutional rights on March 
14, 1997, as well as recent transcriptions of respondent’s 
initial appearance and arraignment proceedings, at 
which respondent was specifically advised of his right 
to counsel at trial and stated that he understood his 
rights. Pet. for Reh’g 9-10; see pp. 3-5, supra. Respon- 
dent argued, in response, that the court was precluded 
from relying on those pre-plea materials under its 
prior decisions, which limited the scope of Rule 11(h) 
harmless-error review to the four corners of the guilty 
plea hearing transcript. Resp. Opp. to Pet. for Reh’g 
10-11. 

The panel withdrew its opinion and issued a new one, 
in which it again vacated respondent’s guilty pleas 
based on the Rule 11 violation. Pet. App. 1a-10a. The 
court first reaffirmed that a defendant’s claim, raised 
for the first time on appeal, that the district court failed 
to provide him with part of the advice of rights required 
by Rule 11(c)(3) is reviewed for harmless error, rather 
than plain error. Id. at 5a-6a. The court also reaffirmed 
that the harmless-error analysis requires it to deter- 
mine “whether the defendant was aware of his rights 
despite the judge’s failure to advise him.” Id. at 6a. 

The court then held, based on its prior decisions, that 
“we are limited to what the record of the plea pro- 
ceeding contains” in conducting Rule 11(h) harmless- 
error analysis. Pet. App. 6a. Accordingly, the court 
stated, “we cannot consider the government’s claim 
that [respondent] learned of his right to counsel during 
earlier court proceedings” in this case. Id. at 6a-7a. 

11 

After reaffirming its previous conclusion that the 
transcript of respondent’s guilty plea hearing did not 
unequivocally demonstrate that respondent was aware 
that he had the right to counsel at trial (id. at 7a-9a), 
the court vacated respondent’s guilty pleas and re- 
manded the case for further proceedings (id. at 10a). 

SUMMARY OF ARGUMENT 

The court of appeals made three separate errors in 
assessing the effect on respondent’s conviction of the 
district court’s deviation from Rule 11(c)(3). First, the 
court of appeals erred in applying a harmless-error 
standard (which is applicable to preserved error) rather 
than a plain-error standard (which is applicable to 
claims, such as respondent’s, that are raised for the first 
time on appeal). Second, the court of appeals applied an 
erroneous test for determining prejudice (under either 
the harmless-error or the plain-error standard), by 
asking only whether the defendant was aware of the 
information omitted from the Rule 11 colloquy from 
another source, rather than asking whether the error 
had an effect on the outcome of the proceedings; the 
court also erred by failing to reach the discretionary 
component of plain-error review, under which reversal 
for error is not warranted when the error did not affect 
the fairness, integrity, or public reputation of the 
proceedings. Third, the court of appeals erroneously 
conducted appellate review by looking only to the 
guilty plea record to determine whether the Rule 11 
error required reversal, rather than conducting appel- 
late review based on the entire district court record. 
Taking into account the entire record, it is clear that 
respondent was aware, from advice given at earlier 
court proceedings in this case, of his right to counsel at 
trial, which the district court erroneously failed to state 

12 

at the time of taking the plea. Accordingly, the Rule 11 
error in this case had no effect on respondent’s guilty 
plea and does not warrant reversal. 

A. Because respondent did not raise in the district 
court any contention that that court failed to give him 
advice required by Rule 11(c)(3) before accepting his 
guilty plea, that contention may be reviewed in the 
court of appeals only for plain error. The principle that 
a party, including a criminal defendant, forfeits a claim 
of error if that claim is not properly presented to 
the trial court is a basic feature of our justice system. 
The “raise-or-forfeit” rule serves two complementary 
interests. First, it promotes judicial economy by 
ensuring that claims of error are brought to the 
attention of the trial court so that it may correct itself 
and prevent the risk that the entire proceeding will 
later be overturned. Second, it also prevents parties 
from manipulating the system by allowing courts to 
lapse into error without objection and then using that 
error to overturn an unfavorable result after the pas- 
sage of time. Both interests are applicable in the 
context of a deviation from Rule 11(c)(3)’s requirement 
that the defendant be advised of his right to counsel at 
trial. If respondent’s counsel had brought the district 
court’s error to its attention, then that court might 
have corrected itself and provided the missing com- 
ponent of the advice required by the Rule. Similarly, if 
respondent had filed a timely motion to withdraw 
his plea on that ground, the district court could have 
developed a full record and the parties would have had 
the opportunity to assess the situation promptly. The 
raise-or-forfeit rule also prevents a defendant from 
raising a Rule 11(c)(3) error for the first time on appeal, 
after the government’s evidence may have become stale 

13 

or merely because he was dissatisfied with the sentence 
that the district court imposed. 

The only basis for appellate review of a forfeited 
claim in the federal system is found in Rule 52(b), which 
permits a court of appeals to notice plain error even if it 
was not raised below by the defendant. There is no 
exception to the requirements of Rule 52(b) for 
Rule 11(c)(3) errors. Rule 11(h), which permits appel- 
late courts to disregard nonprejudicial deviations from 
the procedures of Rule 11, was intended to overturn 
prior practice under which a district court’s deviation 
from Rule 11 required automatic reversal of a plea- 
based conviction without a showing of prejudice. Rule 
11(h) rejected the automatic reversal rule, but it does 
not supersede Rule 52(b) or preclude the application of 
plain-error standards when the defendant failed to raise 
the issue below. 

B. A district court’s deviation from Rule 11(c)(3) con- 
stitutes plain error only if the defendant shows both 
that the error affected the defendant’s “substantial 
rights” and that the error seriously affects the fairness, 
integrity, or public reputation of judicial proceedings. 
A showing that the error affected the defendant’s sub- 
stantial rights requires the reviewing court to assess 
whether the error has affected the outcome of the 
proceeding. Contrary to the Ninth Circuit’s view, the 
reviewing court is not limited to asking whether the 
defendant was otherwise aware of the information that 
the district court omitted from its Rule 11 colloquy. 
Evidence that the defendant was otherwise aware of 
that information will ordinarily be sufficient to establish 
that the error did not affect his decision to plead guilty, 
but it is not necessary to a finding of harmless error. 
For example, a judge may, during the Rule 11 colloquy, 
understate the maximum sentence to which the de- 

14 

fendant is exposed, in violation of Rule 11(c)(1), but if 
the ultimate sentence imposed is well below the 
maximum term of which the defendant was advised, the 
Rule 11(c)(1) error is clearly harmless. 

Similarly, a 
defendant may have such great incentives to plead 
guilty (for example, pursuant to a plea agreement 
affording a substantial reduction in sentence) that it is 
clear that he would have entered the plea even if there 
had been no deviation from Rule 11. For that reason, 
the proper approach to harmless-error review in the 
Rule 11 context focuses on the effect that the error had 
on the ultimate outcome of the case. That approach is 
consistent with this Court’s harmless-error and plain- 
error decisions, which (in both contexts) have deter- 
mined whether an error affects substantial rights by 
asking whether the error influenced the result of the 
proceeding. That approach is appropriate here, because 
the procedures required by Rule 11(c)(3) are not consti- 
tutional rights in themselves, but are means intended to 
protect the constitutional requirement that any guilty 
plea be voluntary and intelligent. Thus, it is appropri- 
ate in the Rule 11 context to focus on the ultimate re- 
sult of the proceeding. 

The inquiry into plain error contains the additional 
requirement that, even if a defendant shows an effect 
on his substantial rights, reversal is not warranted 
unless necessary to protect the fairness, integrity, or 
public reputation of judicial proceedings. A court of 
appeals should not exercise its discretion to vacate the 
plea when the defendant’s plea decision was not 
materially influenced by the error. Upsetting a plea- 
based conviction, often long after the fact, because of a 
violation of Rule 11 that did not have any material 
effect on the ultimate result of the case would under- 

15 

mine, rather than promote, the public perception of the 
fairness of the criminal process. 

C. The court of appeals erred in determining the 
existence of prejudice solely by looking to the record of 
the guilty plea proceeding itself, and ignoring the entire 
record in the case. This Court has repeatedly explained 
that both harmless-error and plain-error review require 
consideration of the entire record in the case to deter- 
mine whether a criminal defendant was prejudiced by a 
trial court’s error. That principle applies in the guilty 
plea context when a defendant contends that he was 
prejudiced by the district court’s departure from Rule 
11(c). In some cases the record may demonstrate per- 
suasively that the district court’s omission had no effect 
on the outcome of the case. For example, the record 
may demonstrate that the error was of no import 
because the defendant had previously been provided 
with the omitted information by the district court or by 
counsel. There is no reason why a reviewing court 
should refuse to consider such highly relevant evidence 
when determining whether a failure to observe all the 
requirements of Rule 11(c)(3) affected the outcome of 
the proceeding. 

D. Under the proper standards, the district court’s 
failure to comply with Rule 11(c)(3) was not reversible 
error in this case. The record in this case shows that, 
before respondent entered his guilty pleas, he had 
already been informed of, and had acknowledged, his 
constitutional right to the assistance of counsel at trial. 
The departure from Rule 11(c)(3) thus omitted 
information that respondent, who pleaded guilty with 
counsel by his side, already knew. Thus, respondent 
cannot demonstrate that the district court’s failure to 
provide him with the same information about that right 

16 

at his guilty plea hearing affected his decision to plead 
guilty. 

ARGUMENT 

THE DISTRICT COURT’S FAILURE TO ADVISE RE- 
SPONDENT, AS REQUIRED BY RULE 11(C)(3), OF 
HIS RIGHT TO THE ASSISTANCE OF COUNSEL AT 
TRIAL WAS NOT REVERSIBLE ERROR IN THIS CASE 

A. The Omission Of Advice Required By Rule 11(c)(3) Is 

Reviewable Only For Plain Error If The Defendant 

Has Failed To Raise The Claim Of Error In The 

District Court 

1. a. “No procedural principle is more familiar to 
this Court than that a constitutional right, or a right of 
any other sort, may be forfeited in criminal as well as 
civil cases by the failure to make timely assertion of the 
right before a tribunal having jurisdiction to determine 
it.” United States v. Olano, 507 U.S. 725, 731 (1993) 
(internal quotation marks omitted); Daniels v. United 
States, No. 99-9136 (Apr. 25, 2001), slip op. 7. As the 
Court has explained, the rule requiring a party to make 
a timely presentation of a claim of error in the trial 
court in order to preserve the claim for appeal serves 
two important purposes. First, the rule promotes 
judicial economy and efficiency by ensuring that the 
claim of error will be brought to the district court’s 
attention at a time when that court may correct it. The 
rule thus reduces the likelihood that an error will 
jeopardize the entire judicial proceeding and require a 
retrial. See United States v. Gagnon, 470 U.S. 522, 529 
(1985); Luce v. United States, 469 U.S. 38, 41-42 (1984); 
Wainwright v. Sykes, 433 U.S. 72, 90 (1977). 

Second, the rule diminishes the risk of unfair surprise 
and manipulation of the litigation by a party. It pre- 

17 

vents parties from using their silence to allow the 
district court to pursue an erroneous course and then 
claim on appeal—after judgment has been entered, time 
has passed, memories have faded, and witnesses may 
have become unavailable—that the error requires 
reversal. See Wainwright v. Sykes, 433 U.S. at 89; 
Luce, 469 U.S. at 42; Estelle v. Williams, 425 U.S. 501, 
508 n.3 (1976). 

b. The purposes of the “raise-or-forfeit” rule requir- 
ing a timely claim of error in the trial court are fully 
applicable in the context of a district court’s failure to 
provide a defendant all the advice required by Rule 
11(c)(3). First, requiring presentation of that claim of 
error to the trial court promotes judicial economy. If 
respondent’s counsel had brought to the trial court’s 
attention the fact that it had omitted part of the advice 
required by Rule 11, the court could have corrected 
itself immediately and thus precluded the possibility 
that the error would later lead to vacatur of the guilty 
plea on appeal and a remand for new proceedings.5 

5 The defendant’s obligation to bring the error to the trial 
court’s attention is not lessened by the fact that conscientious pro- 
secutors will also try to call Rule 11 error to the court’s attention. 
Here, for example, the prosecutor told the court that she could not 
remember the court’s having advised respondent of his right to 
counsel. See p. 7, supra. But she did not expressly refer to 
respondent’s right to counsel at trial, which is not the same thing. 
Compare Fed. R. Crim. P. 11(c)(2) (court must advise an unrepre- 
sented 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 a represented defendant that he has 
“the right to be tried by a jury and at that trial the right to the 
assistance of counsel”). The court, moreover, erroneously told the 
prosecutor in response that it was not required to advise a 
counseled defendant that he had a right to counsel at trial, perhaps 
confusing Rule 11(c)(2) with Rule 11(c)(3). In these circumstances, 

18 

Indeed, even if respondent had raised his claim of 
error after the district court accepted his guilty plea 
but before it imposed sentence, that presentation of 
the claim would have promoted judicial economy by 
allowing the district court to make a determination, 
based on an adequate record, whether there was a “fair 
and just reason” to allow respondent to withdraw his 
plea under Federal Rule of Criminal Procedure 32(e). 
As the Seventh Circuit has recently observed, “[a] 
motion to withdraw a plea entered after defective 
procedures enables the district court to build the sort of 
record that is essential to understanding the effect of 
any noncompliance with Rule 11; it also permits the 
district judge to take the plea anew and thus avoid the 
delay that attends appeal—delay that may undermine 
the accuracy of any ensuing trial, for memories may 
fade or evidence be lost as time passes.” United States 

v. Driver, 242 F.3d 767, 770 (2001); see also United 
States v. Lopez-Pineda, 55 F.3d 693, 697 (1st Cir.) (ob- 
serving that the failure to raise a Rule 11 challenge 
before sentencing “denie[s] the government any op- 
portunity to develop the district court record with a 
view to whether or not [the defendant] was mis- 
informed”), cert. denied, 516 U.S. 900 (1995). A motion 
to withdraw the plea in the district court before 
sentencing also serves to “dispel [any] uncertainty 
about whether the defendant really wants to withdraw 
his plea, give up the consideration received for the plea 
bargain * * *, and go to trial.” Driver, 242 F.3d 
at 770. 

an objection by defense counsel pointing out the difference 
between the two Rules might well have dispelled the confusion and 
led the court to make a proper advice of rights to respondent. 

19 

Second, applying the raise-or-forfeit rule to Rule 
11(c)(3) violations also discourages unfair manipulation 
by defendants. In particular, it prevents defendants 
from attempting to withdraw their guilty pleas merely 
because they are unhappy with the sentence, even 
when they were fully aware at the time they entered 
their guilty pleas that the sentence might be lengthy or 
could not then be determined with certainty. In this 
case, for example, when respondent entered his first 
guilty plea, the court expressly advised him that it 
could not determine at that time what the sentence 
would be, and warned him that he would not be allowed 
to withdraw his guilty plea merely because he did not 
like the sentence. J.A. 39. The court gave respondent a 
similar warning before it accepted his second guilty 
plea. J.A. 57. But a rule allowing defendants in respon- 
dent’s situation to raise a claim of Rule 11 error for the 
first time on appeal, without having to meet the plain- 
error standard, could be readily abused in a manner 
that would permit defendants to withdraw their guilty 
pleas merely because of second thoughts about the 
sentence.6 A defendant might also seek, at some point 
after sentencing, to upset his plea because of changed 
circumstances that would make it more difficult for the 
government to prove guilt (such as the death or dis- 
appearance of witnesses). By facilitating such mani- 

6 In many cases, defendants enter into guilty pleas pursuant to 
Rule 11(e)(1)(B), under which the prosecutor recommends a parti- 
cular sentence, but that recommendation is not binding on the 
court, and the court must expressly advise the defendant that, 
even if it rejects the prosecutor’s recommendation, the defendant 
nonetheless has no right to withdraw the plea. See Fed. R. Crim. 
P. 11(e)(2). The court of appeals’ approach would allow such a 
defendant to seize on unpreserved error in the Rule 11 colloquy 
and obtain reversal motivated by unhappiness with the sentence. 

20 

pulations, the Ninth Circuit’s approach tends to convert 
“the otherwise serious act of pleading guilty into 
something akin to a move in a game of chess.” United 
States v. Hyde, 520 U.S. 670, 677 (1997). 

2. a. The exclusive means for obtaining review on 
direct appeal of a trial court’s error that the defendant 
failed to raise in the district court is set forth in Rule 
52(b) of the Federal Rules of Criminal Procedure. Rule 
52(b) provides that “[p]lain errors or defects affecting 
substantial rights may be noticed although they were 
not brought to the attention of the court.” Rule 52(b) 
recognizes that a “rigid and undeviating” judicial 
practice of declining to review forfeited errors would 
be out of keeping with “the rules of fundamental jus- 
tice.” Olano, 507 U.S. at 732 (internal quotation marks 
omitted). Nevertheless, in light of the important pur- 
poses served by the requirement that claims of error be 
raised initially in the trial court, the authority created 
by Rule 52(b) to set aside criminal convictions based on 
plain error is “circumscribed,” ibid., and “to be used 
sparingly,” United States v. Frady, 456 U.S. 152, 163 

n.14 (1982). See also United States v. Young, 470 U.S. 
1, 15-16 (1985). To obtain relief under Rule 52(b), a 
defendant must show that there is an “ ‘error’ that is 
‘plain’ and that ‘affects substantial rights.’ ” Olano, 507 
U.S. at 732; see Johnson v. United States, 520 U.S. 461, 
467 (1997). In addition, “Rule 52(b) leaves the decision 
to correct the forfeited error within the sound discre- 
tion of the court of appeals, and the court should not 
exercise that discretion unless the error ‘seriously 
affect[s] the fairness, integrity or public reputation of 
judicial proceedings.’ ” Olano, 507 U.S. at 732 (quoting 
Young, 470 U.S. at 15); see Johnson, 520 U.S. at 467. 
Despite this Court’s statement in Olano that the 
raise-or-forfeit rule applies with respect to “any * * * 

21 

sort” of error, see 507 U.S. at 731, the court of appeals 
declined to review respondent’s claim under the plain- 
error standard. The court of appeals instead employed 
the standard of harmless error, which requires reversal 
unless the government shows that the error had no 
effect on the outcome of the proceeding. In so doing, it 
relied on Rule 11(h), which states that “[a]ny variance 
from the procedures required by [Rule 11] which does 
not affect substantial rights shall be disregarded.” See 
Pet. App. 5a. The language of Rule 11(h) is similar to 
that of Rule 52(a), which sets forth the general 
harmless-error standard for claims of error that have 
been preserved by a timely objection.7 The courts that 
have held that a Rule 11(c) violation must be reviewed 
under a harmless-error standard, even when a 
defendant failed to raise the claim of error in the 
district court, have relied principally on the similarity 
of language between Rule 11(h) and Rule 52(a). They 
have also noted that, although Rule 11(h) expressly 
provides that Rule 11 errors may be harmless, it does 
not on its face make any provision for plain-error 
review of claims not raised in the district court. Those 
courts have reasoned that, because Rule 11(h) is di- 
rected specifically at appellate review of Rule 11 errors, 
Rule 11(h) exclusively governs such claim of error, and 
Rule 52 has no operation at all.8 

7 Rule 52(a) states: “Harmless error: Any error, defect, ir- 
regularity or variance which does not affect substantial rights shall 
be disregarded.” 

8 See Pet. App. 5a (“Rule 11 has its own review mechanism, 
which supersedes the normal waiver rule.”); United States v. 
Odedo, 154 F.3d 937, 940 (9th Cir. 1998); United States v. Lyons, 53 
F.3d 1321, 1322 n.1 (D.C. Cir. 1995). 

22 

Contrary to that analysis, nothing in Rule 11(h) fore- 
closes application of the plain-error standard of Rule 
52(b) when a defendant fails to make a timely objection 
in the district court to a violation of Rule 11. Rule 11(h) 
merely provides that a violation of Rule 11 does not 
justify reversal when it is not prejudicial. It does not 
address the applicable standard of review when the 
defendant fails to preserve a claim in district court—an 
omission that regularly changes the standard of review 
to require a more demanding showing by the defendant. 
“Rule 11(h) does not override Rule 52(b) * * *; it 
simply restates the approach applicable when a claim of 
error has been preserved in the district court.” Driver, 
242 F.3d at 770. Like Rule 52(a) on which it it modeled, 
Rule 11(h) thus states the rule for review of preserved 
claims of Rule 11 error; but neither Rule 11(h) nor Rule 
52(a) purports to displace the additional requirements 
of Rule 52(b) for review of unpreserved claims. 9 

9 Rule 52(a) was derived from former 28 U.S.C. 391 (1940), 
entitled “New trials; harmless error,” which provided, in language 
similar to that of the present Rule 52(a): “On the hearing of any 
appeal * * * the court shall give judgment after an examination 
of the entire record before the court, without regard to technical 
errors, defects, or exceptions which do not affect the substantial 
rights of the parties.” See Fed. R. Crim. P. 52(a) advisory com- 
mittee’s note (observing that Rule 52(a) “is a restatement of 
existing law, 28 U.S.C. former § 391 (second sentence)”). Before 
adoption of the Federal Rules of Criminal Procedure, there was no 
similar broad statutory provision directly analogous to the present 
Rule 52(b) authorizing appellate courts to notice plain errors not 
brought to the attention of the lower courts. Nonetheless, the 
courts recognized long before the adoption of the Federal Rules 
both that they had the power to reverse judgments infected by 
plain error (indeed, some courts had codified that practice in their 
own procedural rules) and that that power should be exercised 
sparingly and only in compelling cases. Compare, e.g., Weems v. 

23 

b. The background of Rule 11(h) confirms that it 
should not be construed to foreclose the applicability of 
Rule 52(b) to claims of Rule 11 error that were not 
preserved in the district court. 

Rule 11(h) was 
intended to abrogate prior holdings that a district 
court’s deviation from the procedural requirements of 
Rule 11 required reversal of the conviction, without a 
showing of prejudice to the defendant in the particular 
case. See Fed. R. Crim. P. 11(h) advisory committee’s 
note [hereinafter 1983 Advisory Committee Note]. 
Rule 11(h) thus made clear that a Rule 11 violation that 
does not affect substantial rights, i.e., that is not 
prejudicial, does not require reversal. 

Rule 11(h) was enacted in response to three develop- 
ments. The first was this Court’s decision in McCarthy 

v. United States, 394 U.S. 459 (1969). In that case, the 
district court violated the requirement of Rule 11 that 
it personally inquire of the defendant whether he 
understood the charges against him before accepting 
his guilty plea. This Court reversed the conviction and 
held that Rule 11 mandates that the court inquire into 
the defendant’s understanding of the nature of the 

United States, 217 U.S. 349, 362 (1910) (reversing for plain error), 
with Holmgren v. United States, 217 U.S. 509, 521 (1910) (declining 
to do so). This Court’s definitive articulation of the plain-error 
standard in United States v. Atkinson, 297 U.S. 157, 160 (1936), 
also predated the adoption of the Federal Rules. See Young, 470 
U.S. at 6-7 (noting that Atkinson standard was later codified in 
Rule 52(b)). No court drew from the text of former Section 391, 
establishing a harmless-error rule that permitted reversal only 
when errors affected a substantial rights, a negative inference that 
precluded the higher standard of plain-error review when there 
was no timely objection below. To the contrary, the plain-error 
standard (with its more demanding requirements) was developed 
against the background of a general statutory rule of reversal for 
error that affected substantial rights. 

24 

charges and the consequences of his guilty plea. Id. at 
464-467. The Court then concluded that such a violation 
of Rule 11 required reversal of the conviction without a 
specific showing of prejudice. The Court reasoned that 
failure to comply with Rule 11 was inherently pre- 
judicial, because the defendant was denied the “pro- 
cedural safeguards that are designed to facilitate a 
more accurate determination of the voluntariness of his 
plea.” Id. at 471-472. The Court also explained that 
automatic reversal for Rule 11 violations would “help 
reduce the great waste of judicial resources required to 
process the frivolous attacks on guilty plea convictions 
that are encouraged, and are more difficult to dispose 
of, when the original record is inadequate.” Id. at 472. 

10 

10 Although McCarthy held that a violation of Rule 11 required 
reversal, it does not stand for the proposition that Rule 11 vio- 
lations not raised in district court are exempt from the raise-or- 
forfeit rule. The Court’s decision in McCarthy did not address that 
issue, and did not indicate whether defense counsel had objected to 
the Rule 11 violation in the district court. (In fact, although de- 
fense counsel did not object to the violation in the trial court, the 
government also waived any forfeiture argument on appeal. See 
U.S. Mem. in Opp. at 1 & n.1, McCarthy v. United States, supra 
(No. 1209, O.T. 1967).) As this Court has recognized, there is no 
inconsistency between a rule requiring reversal when a claim of 
error has been properly preserved in the district court and a rule 
permitting only plain-error review of the same claim when it has 
not been properly preserved. Compare Waller v. Georgia, 467 
U.S. 39, 49 (1984) (holding that a denial of the right to a public trial 
is not subject to harmless-error review), with Levine v. United 
States, 362 U.S. 610, 619 (1960) (holding that the failure to object to 
closure of the proceedings may result in a forfeiture of the right to 
a public trial); and compare Vasquez v. Hillery, 474 U.S. 254, 263- 
264 (1986) (holding that racial discrimination in the selection of the 
grand jury can never be harmless error), with Davis v. United 
States, 411 U.S. 233, 245 (1973) (on collateral challenge under 
28 U.S.C. 2255, stating that “[t]he presumption of prejudice which 

25 

See also Halliday v. United States, 394 U.S. 831, 832 
(1969) (per curiam). 

The second development leading to the adoption of 
Rule 11(h) was the 1975 amendment to Rule 11, which 
required a significantly more elaborate colloquy be- 
tween a district court and the defendant before the 
court accepts a guilty plea. At the time McCarthy was 
decided, Rule 11 required only that the court “address[] 
the defendant personally and determin[e] that the plea 
is made voluntarily with understanding of the nature of 
the charge and the consequences of the plea,” and that 
the court satisfy itself “that there is a factual basis 
for the plea.” Fed. R. Crim. P. 11 (1966). As the 1983 
Advisory Committee Note accompanying Rule 11(h) 
observed, under that earlier version of Rule 11, “the 
chances of a minor, insignificant and inadvertent devia- 
tion were relatively slight,” and therefore McCarthy’s 
automatic-reversal rule “may have been justified.” 
1983 Advisory Committee Note, supra. But in light of 
the more elaborate procedures set out in the amended 
Rule 11, “the chances of a truly harmless error” became 
much greater than had been the case under the version 
before the Court in McCarthy. Ibid. 

The third development contributing to the adoption 
of Rule 11(h) was the Court’s decision in United States 

v. Timmreck, 441 U.S. 780 (1979), holding that collat- 
eral relief under 28 U.S.C. 2255 may not be predicated 
on a violation of the formal requirements of Rule 11. As 
the 1983 Advisory Committee Note also explains, that 
holding significantly undercut a major justification for 

supports the existence of the right [against racial discrimination in 
grand jury selection] is not inconsistent with a holding that actual 
prejudice must be shown in order to obtain relief from a statutorily 
provided waiver for failure to assert it in a timely manner”). 

26 

the automatic-reversal rule adopted in McCarthy. One 
purpose of that rule was to alleviate the burden faced 
by Section 2255 courts in resolving post-conviction 
challenges to guilty pleas that raised disputes about the 
understandings held by the defendant at the time of the 
plea—claims that “are encouraged, and are more 
difficult to dispose of, when the original record is inade- 
quate.” McCarthy, 394 U.S. at 469-470, 472. As the 
Advisory Committee recognized, under Timmreck, 
mere claims of Rule 11 error, at least absent “other 
aggravating circumstances,” 441 U.S. at 785, do not in 
any event warrant collateral relief. See 1983 Advisory 
Committee Note, supra. 

Against that background, the purpose of Rule 11(h) is 
to “reject[] the extreme sanction of automatic reversal” 
in light of post-McCarthy developments by “mak[ing] 
clear that the harmless error rule of Rule 52(a) is 
applicable to Rule 11.” 1983 Advisory Committee Note, 
supra. The Advisory Committee focused on the appli- 
cability of the harmless-error rule because, following 
the adoption of the 1975 amendments to Rule 11, “some 
courts [continued to] read McCarthy as meaning that 
the general harmless error provision in Rule 52(a) 
cannot be utilized with respect to Rule 11 proceedings.” 
Ibid. But although the Advisory Committee made no 
specific reference to forfeiture or plain error, there was 
no reason for it to have done so, since the point of the 
amendment was to eliminate a rule requiring automatic 
reversal because of technical Rule 11 errors. It hardly 
follows that the Advisory Committee intended to fore- 
close plain-error review of unpreserved claims of 
Rule 11 error. To the contrary, the abrogation of 
McCarthy’s automatic-reversal rule effected by Rule 
11(h) strongly suggests that the Advisory Committee 
intended that Rule 11 violations should be reviewed on 

27 

appeal under the same standards of review routinely 
applicable to other claims of error. Those standards 
include, of course, plain-error review for claims not 
raised in the lower court. 

11 

In sum, the text and purpose of Rule 11(h), directing 
that harmless-error review be applied to claims of Rule 
11 error, do not foreclose or supersede the application 
of standard plain-error analysis to claims that were not 
presented in the lower court. 

11 The Federal Rules of Criminal Procedure contain other 
specific harmless-error provisions, which likewise do not supersede 
other rules of general applicability governing waiver and 
forfeiture. For example, Federal Rule of Criminal Procedure 
7(c)(3), which concerns indictments and informations, contains a 
specific harmless-error provision: “[e]rror in the citation or its 
omission shall not be ground for dismissal of the indictment or 
information or for reversal of a conviction if the error or omission 
did not mislead the defendant to the defendant’s prejudice.” By 
reducing the danger that an erroneous citation will result in 
dismissal or reversal, the provision is intended to encourage 
prosecutors to cite the particular statute alleged to have been 
violated. See Fed. R. Crim. P. 7(c) advisory committee’s note. 
Like Rule 11(h), Rule 7(c)(3) is entitled “Harmless Error,” and just 
as Rule 11(h) makes no reference to forfeiture or plain-error 
review, Rule 7(c)(3) makes no reference to the rule, set forth in 
Federal Rule of Criminal Procedure 12(f), that challenges to an 
indictment are waived unless made before trial. Yet there is no 
plausible reason why the Advisory Committee would have wanted 
to eliminate the waiver rule of Rule 12(f) when a defendant 
complains for the first time on appeal of a miscitation in the 
indictment. Indeed, treating a failure to timely raise a Rule 7(c)(3) 
claim as a waiver would advance the goal of encouraging 
prosecutors to include citations in indictments by minimizing the 
risk of reversal for citation errors. Rule 7(c)(3) thus demonstrates 
that the inclusion of a specific harmless-error provision in a rule of 
criminal procedure does not supersede other rules governing 
waiver and forfeiture. 

28 

3. There is nothing in the nature of a Rule 11(c)(3) 
violation that should exempt it from the operation of 
the raise-or-forfeit rule. The purpose of Rule 11 is to 
protect the defendant from “an unintelligent or involun- 
tary plea.” Mitchell v. United States, 526 U.S. 314, 322 
(1999). The advice required by Rule 11(c)(3) also sup- 
ports the constitutional requirement that the record 
contain “an affirmative showing that [the guilty plea] 
was intelligent and voluntary.” Boykin v. Alabama, 
395 U.S. 238, 242 (1969); see Fed. R. Crim. P. 11(c) ad- 
visory committee’s note (1974 amend.). 

But the specific 
colloquy required by Rule 11(c)(3) is not itself consti- 
tutionally mandated (see McCarthy, 394 U.S. at 465; 
Halliday, 394 U.S. at 832-833), and the advice required 
by Rule 11(c)(3) is not a goal in and of itself but rather a 
means to ensure the voluntariness and intelligence of 
the defendant’s plea. 

Contrary to the court of appeals’ view (see United 
States v. Odedo, 154 F.3d 937, 940 (9th Cir. 1998)), prin- 
ciples of waiver and forfeiture are applicable to Rule 11 
errors, notwithstanding the assignment of responsi- 
bility to the district court to meet Rule 11’s require- 
ments even without a specific request from the defen- 
dant. Defense counsel still has the obligation to call to 
the court’s attention that it has committed legal error, 
as a timely objection would easily permit the error to be 
avoided or cured. The requirement that a court under- 
take the procedures mandated by Rule 11(c)(3) before 
accepting a guilty plea is no more obvious or mandatory 
than (for example) the prohibition in Rule 24(c) against 
allowing alternate jurors to be present during jury 
deliberations, and yet this Court has held that the 
latter error is forfeited if not brought to the court’s 
attention at trial. See Olano, 507 U.S. at 737-741. 

29 

The court of appeals therefore erred in applying 
harmless-error, rather than plain-error, analysis when 
determining whether the district court’s failure to 
comply with all of Rule 11(c)(3) warranted vacatur of 
the conviction. As we now explain, the court of appeals 
also made two other related errors in concluding that 
respondent’s Rule 11 claim warranted vacatur of his 
guilty plea. 

B. A Showing Of Plain Error In A Guilty Plea Colloquy 

Requires A Finding That The Error Affected The 

Outcome Of The Proceeding 

1. As this Court has explained, plain-error analysis 
consists of four inquiries: 

[B]efore an appellate court can correct an error not 
raised [in the trial court], there must be (1) “error,” 
(2) that is “plain,” and (3) that “affects substantial 
rights.” If all three conditions are met, an appellate 
court may then exercise its discretion to notice a 
forfeited error, but only if (4) the error “seriously 
affects the fairness, integrity, or public reputation of 
judicial proceedings.” 

Johnson, 520 U.S. at 466-467 (further brackets, cita- 
tions, and internal quotation markets omitted). Thus, 
before setting aside a conviction based on plain error, 
the reviewing court must find that the error was 
prejudicial to the defendant—i.e., that it affected the 
defendant’s “substantial rights.” See ibid.; Olano, 507 
U.S. at 734. The harmless-error standard of Rule 52(a) 
contains a similar requirement that the error must 
affect substantial rights for a conviction to be reversed. 
See ibid. The principal difference between the pre- 
judice inquiry conducted under Rule 52(a) and that con- 
ducted under Rule 52(b) is that plain-error review re- 

30 

quires the defendant, rather than the government, to 
bear the burden of persuasion on prejudice. Ibid. 

In this case, the court of appeals was mistaken not 
only in assigning the burden of persuasion to the 
government, but also in its articulation of the element 
of prejudice from a Rule 11(c)(3) error. The court 
stated that, to establish the requisite prejudice under a 
harmless-error analysis, the government was required 
to prove that respondent “was aware of his rights 
despite the district court’s failure to apprise him.” Pet. 
App. 6a. The ultimate test of prejudice, however, is 
whether the error affected the outcome of the pro- 
ceeding. While a defendant’s awareness of his rights is 
one method to establish the lack of prejudice, it is not 
the sole inquiry. If the defendant would have pleaded 
guilty even in the absence of the error, whether 
because he was actually aware of his rights or for some 
other reason, then the error had no effect on the 
defendant’s substantial rights, and there is no basis for 
vacating the guilty plea under either the harmless- 
error or the plain-error rule. 

12 

12 In other contexts, the absence of an effect on the outcome 
may be shown by a comparison between the advice the defendant 
received in the Rule 11 colloquy and the ultimate sentence im- 
posed. For example, a Rule 11 error does not affect substantial 
rights when the district court provides the defendant with 
erroneous information about the maximum possible sentence that 
the defendant might receive, but then imposes a sentence within 
the range described. See, e.g., United States v. Raineri, 42 F.3d 
36, 42-43 (1st Cir. 1994) (district court’s erroneous information to 
defendant about the maximum sentence was harmless when the 
court imposed a sentence within the maximum term it had identi- 
fied in the Rule 11 colloquy, and there was no reason to conclude 
that the defendant had any expectation of a lesser penalty), cert. 
denied, 515 U.S. 1126 (1995); United States v. Chan, 97 F.3d 1582, 
1584 (9th Cir. 1996) (district court’s failure to inform the defendant 

31 

2. This Court’s decisions make clear that the proper 
test for harmless error under Rule 52(a) is whether the 
error affected the “outcome” or “result” of the parti- 
cular proceeding. See, e.g., Olano, 507 U.S. at 734; 
United States v. Montalvo-Murillo, 495 U.S. 711, 722 
(1990); Bank of Nova Scotia v. United States, 487 U.S. 
250, 256 (1988); Rose v. Clark, 478 U.S. 570, 582 n.11 
(1986); United States v. Mechanik, 475 U.S. 66, 72 
(1986); Berkemer v. McCarty, 468 U.S. 420, 444 (1984); 
Chapman v. California, 386 U.S. 18, 22 (1967); 
Kotteakos v. United States, 328 U.S. 750, 764-765 (1946). 
The Court has further explained that this approach to 
harmless-error analysis requires an evaluation whether 
the outcome of the proceeding “would have been the 
same” absent the error, or whether the error “changed 
the result” of the proceeding. See, e.g., Jones v. United 
States, 527 U.S. 373, 402 (1999); Neder v. United States, 
527 U.S. 1, 17 (1999); Sullivan v. Louisiana, 508 U.S. 
275, 280 (1993); Yates v. Evatt, 500 U.S. 391, 405 (1991); 
Chapman, 386 U.S. at 23. The Court has employed this 

under Rule 11(e)(2) of his right to withdraw his plea was rendered 
harmless by the court’s imposition of the sentence recommended 
by the government); United States v. McCarty, 99 F.3d 383 (11th 
Cir. 1996) (district court’s failure to mention possibility of 
restitution order during Rule 11 colloquy was harmless error, since 
defendant had notice that he might be required to pay a fine of 
even greater amount than the restitution that was ordered). The 
1983 Advisory Committee specifically acknowledged that form of 
harmless error. See 1983 Advisory Committee Note, supra (Rule 
11 error could be found harmless when “the judge’s compliance 
with subdivision (c)(2) was erroneous in part in that the judge 
understated the maximum penalty somewhat, but the penalty 
actually imposed did not exceed that indicated in the warnings”). 
That principle illustrates that the general test for finding a lack of 
an effect on the outcome requires a context-specific analysis of the 
particular error and its actual effect. 

32 

test not only in determining whether an error at trial 
might have affected the jury’s verdict, 

13 but in other 
types of proceedings as well, including bail hearings 
(Montalvo-Murillo, 495 U.S. at 722), grand jury pro- 
ceedings (Bank of Nova Scotia, 487 U.S. at 263), and 
sentencing proceedings (Jones, 527 U.S. at 394-395; 
Williams v. United States, 503 U.S. 193, 203 (1992)). 

Plain-error analysis similarly requires the reviewing 
court to determine whether the error affected the 
result of the pertinent proceeding. In Olano, the Court 
observed that the requirement of plain-error review 
under Rule 52(b) that the error must have “affec[ted] 
substantial rights” means that “in most cases * * * 
the error must have been prejudicial: It must have 
affected the outcome of the district court proceedings.” 
507 U.S. at 734 (emphasis added); see also Jones, 527 
U.S. at 395 (whether any alleged error in the district 
court’s instructions in a capital sentencing proceeding 
affected the defendant’s substantial rights within the 
meaning of Rule 52(b) turned on “[the error’s] effect on 
the outcome of the proceeding”). Accordingly, to meet 
his burden of showing that an unpreserved error should 
be corrected on appeal, a defendant must show that the 
outcome of the proceeding would have been different 
but for the error. 

In determining whether a Rule 11(c)(3) violation 
affected the defendant’s substantial rights, an appellate 
court must focus on the impact of the violation on the 
outcome of the proceeding. And that focus includes an 
inquiry into whether the defendant would have pleaded 

13 See, e.g., Neder, 527 U.S. at 17; Yates, 500 U.S. at 405; Chap- 
man, 386 U.S. at 25-26; Kotteakos, 328 U.S. at 764-765. 

33 

14 The 
Court’s decision in Hill v. Lockhart, 474 U.S. 52 (1985), 
is instructive in this regard. The issue in Hill was 
whether any deficiency in defense counsel’s perfor- 
mance in advising the defendant to enter a guilty plea 
was sufficiently prejudicial to qualify as ineffective as- 
sistance of counsel under the test set forth in Strick- 
land v. Washington, 466 U.S. 668 (1984). Under the 
“prejudice” prong of the Strickland test, a defendant 
must show that there is a reasonable probability that, 
but for counsel’s unprofessional errors, “the result of 
the proceeding would have been different.” Id. at 694. 
Adapting the Strickland test for prejudice to the guilty 
plea context, the Court in Hill held that the pertinent 
inquiry is whether, but for counsel’s errors, the de- 
fendant “would not have pleaded guilty and would have 
insisted on going to trial.” 474 U.S. at 59. 

The court of appeals in this case did not ask whether 
respondent would have pleaded guilty, even absent 
the omission of the Rule 11(c)(3) advice, nor did it ask 
generally whether the error had an effect on the 
outcome. Rather, it adopted an unduly narrow view of 
prejudice flowing from a Rule 11 violation by con- 
sidering only whether respondent knew from some 
other source the information that the court erroneously 
omitted. 

15 This Court, however, has clearly indicated 

14 See United States v. Gandia-Maysonet, 227 F.3d 1, 4 (1st Cir. 
2000); United States v. Glinsey, 209 F.3d 386, 395 (5th Cir.), cert. 
denied, 121 S. Ct. 282 (2000); United States v. Lyons, 53 F.3d at 
1323; United States v. Wright, 930 F.2d 808, 810 (10th Cir. 1991). 

15 See Pet. App. 6a (“Under Rule 11(h), we must disregard vari- 
ances from the colloquy that do not ‘affect substantial rights.’ Fed. 
R. Crim. P. 11(h). We have interpreted this to mean that we must 
inquire whether the defendant was aware of his rights despite the 
judge’s failure to advise him.”). 

guilty even in the absence of the violation. 

34 

that the proper harmless-error test requires an exami- 
nation of whether the error affected the outcome of the 
proceeding. See pp. 31-32, supra. That is not to say 
that the defendant’s knowledge of the erroneously 
omitted information is irrelevant to a proper prejudice 
analysis. To the contrary, if the defendant was other- 
wise aware of the omitted advice from another source 
(because, for example, he received the same infor- 
mation at an earlier court hearing) but nonetheless 
pleaded guilty, that would ordinarily be sufficient to 
establish that the district court’s failure to provide him 
with the information at the plea colloquy did not affect 
his plea. In such a case, the violation clearly did not 
affect the defendant’s substantial rights. 

16 

But the inquiry into whether the outcome of the 
proceeding was affected is broader than the inquiry into 
whether the defendant was otherwise aware of the 
omitted information. There are circumstances in which 
a court could confidently conclude, even without a 
showing that the defendant knew of the omitted infor- 
mation from another source, that the defendant’s deter- 
mination to plead guilty would not have been affected 
by the information omitted from the plea colloquy. For 

16 That principle, considered in light of the entire district court 
record, is sufficient to resolve this case because it is clear that, 
when respondent pleaded guilty, he was already aware that he had 
the constitutional right to the assistance of counsel at trial. See pp. 
3-5, supra. If the court of appeals had reviewed the entire record 
in the case in making the prejudice determination, as we submit it 
should have done (see pp. 38-45, infra), rather than limiting its 
scope of review to the transcript of the guilty-plea colloquy, it 
should have concluded that respondent was already aware of the 
information that the district court failed to provide him and 
therefore was not prejudiced by the district court’s deviation from 
Rule 11(c)(3). 

35 

example, a defendant might have received a signifi- 
cantly reduced sentence and a nominal fine for pleading 
guilty. In such a case, a reviewing court could properly 
find that the district court’s failure to inform the de- 
fendant of his exposure to a fine, as required by Rule 
11(c)(1), did not prejudice him because, in the circum- 
stances, he surely would have pleaded guilty even 
with advice about the fine. Similarly, in a case where 
the defendant receives a substantial reduction in sen- 
tence pursuant to a negotiated plea agreement but is 
never informed of a relatively insignificant direct 
consequence of his plea, a reviewing court could con- 
clude that the outcome would not have been different if 
the defendant had been aware of the omitted informa- 
tion at the time he entered his plea. See United States 

v. Littlejohn, 224 F.3d 960, 969-970 (9th Cir. 2000). See 
also pp. 30-31, note 12, supra. 

17 

17 In Henderson v. Morgan, 426 U.S. 637 (1976), this Court 
touched briefly on the question whether an involuntary guilty plea 
may be found to be harmless error. The Court in Henderson 
concluded that a defendant’s guilty plea to intentional murder was 
involuntary because, in the plea colloquy, neither the trial court 
nor his lawyer had advised him of the intent-to-kill element of the 
crime. See id. at 645-647. The Court “assume[d]” that the defen- 
dant “probably would have pleaded guilty anyway,” if he had been 
advised of the intent element, but found that “assumption” insuffi- 
cient to prevent a finding that the guilty plea was involuntary at 
the time it was entered. Id. at 644 n.12. And the Court found that 
the error was not “harmless beyond a reasonable doubt,” because 
the defendant’s “unusually low mental capacity” suggested that he 
might have had a defense to the intent-to-kill element of the crime, 
thereby reducing the offense to manslaughter. Id. at 647. The 
Court thus implied that if no conceivable defense could have been 
offered, the error would have been harmless. 

Henderson dealt with a constitutionally defective plea entered 
in the New York state court system, and this Court did not 

36 

3. Plain-error review under Rule 52(b) has as its 
final component an inquiry into whether the court of 
appeals should exercise its discretion to correct a pre- 
judicial error because the error affected the “fairness, 
integrity, or public reputation of judicial proceedings.” 
Johnson, 520 U.S. at 467; Olano, 507 U.S. at 736. Even 
if the court of appeals were correct in this case in 
its narrow understanding of when a Rule 11 error is 
prejudicial—and, as we have discussed above (pp. 31-35, 
supra), the court of appeals’ approach is not correct— 
the fourth component of plain-error review would pre- 
clude vacatur of a guilty plea when the violation had no 
material effect on the proceedings. See Johnson, 520 
U.S. at 469-470 (assuming that erroneous omission of an 
element from jury instructions affected substantial 
rights, but declining to reverse for plain error where 
the evidence supporting the omitted element was 
“overwhelming” and “uncontroverted”). 

address the implications of plain error review under Federal Rule 
of Criminal Procedure 52(b). Henderson is also different from this 
case in that the error there was the failure to inform the defendant 
of the “true nature of the charge against him, the first and most 
universally recognized requirement of due process,” Henderson, 
426 U.S. at 645 (quoting Smith v. O’Grady, 312 U.S. 329, 334 
(1941)), and that error meant that the defendant never admitted 
every essential element of the crime. Id. at 649 (White, J., 
concurring); see also Bousley v. United States, 523 U.S. 614, 618- 
619 (1998). Nevertheless, the Court in Henderson suggested that 
the error in that case could have been found harmless if there was, 
in fact, no defense to the intent element. See 426 U.S. at 647. If 
error of the magnitude involved in Henderson can be harmless 
when it has no effect on the outcome, then a Rule 11 procedural 
error in the federal system that does not rise to the level of a 
constitutional violation surely can be harmless when the error has 
no effect on the outcome. 

37 

The stability of convictions based on guilty pleas is 
particularly important to the criminal justice system. 
The prosecution focuses considerable energy on pre- 
paring to prove its charges in the trial court, and a 
guilty plea means that those preparations are no longer 
necessary. Victims and witnesses rely on the finality of 
the disposition, and the court system moves on to other 
business. A rule of procedure that freely allowed a 
defendant to escape his plea, long after its entry, with- 
out having raised claim of a Rule 11 defect in the trial 
court, and without even claiming actual innocence of the 
offense, would not serve to vindicate the integrity, 
fairness, or public reputation of judicial proceedings. 
Rather, such a rule would undermine those values, and 
potentially force the adjudication of criminal charges 
after memories have faded and witnesses become 
unavailable. Accordingly, the discretionary component 
of plain-error analysis should not permit reversal if a 
defendant acted knowingly and voluntarily in pleading 
guilty and the specific advice that the district court 
failed to provide would have been immaterial to the 
defendant’s plea decision. In those circumstances, 
there is no basis for a court to conclude that a “mis- 
carriage of justice” would result if he is not allowed to 
withdraw his plea. Cf. Olano, 507 U.S. at 736; Young, 
470 U.S. at 15. 

As the Court stressed in Johnson, “[r]eversal for 
error, regardless of its effect on the judgment, encour- 
ages litigants to abuse the judicial process and bestirs 
the public to ridicule it.” 520 U.S. at 470 (quoting Roger 
Traynor, The Riddle of Harmless Error 50 (1970)). A 
rule that would allow a defendant to enter a solemn 
plea of guilty knowingly and voluntarily and without 
raising any objections, and then, after sentence and 
entry of judgment, escape the effect of his guilty plea 

38 

because of an error that is of no importance to his 
decision to plead guilty, would elevate minor flaws over 
substantial justice. That is not a system of justice that 
would command public confidence. Cf. Mechanik, 475 
U.S. at 72 (noting that “[t]he reversal of a conviction 
entails substantial social costs” and that the “balance of 
interest” tilts against reversal “when an error has had 
no effect on the outcome of” the proceeding). 

C. A Reviewing Court Should Consider The Entire Re- 
cord In The Case To Determine Whether A Rule 

11(c)(3) Violation Was Prejudicial 

In determining whether the district court’s Rule 
11(c)(3) error affected respondent’s “substantial rights,” 
the court of appeals limited its review of the record to 
the transcripts of the plea colloquy proceedings. See 
Pet. App. 6a. The court thus declined to consider other 
relevant evidence in the record bearing on respondent’s 
awareness of his constitutional rights and his decision 
to plead guilty, including the transcripts of respon- 
dent’s initial appearance and arraignment, his signed 
form acknowledging his constitutional rights, and his 
counsel’s signed acknowledgment that respondent had 
read and understood the rights explained to him in the 
form. 

18 The court of appeals’ refusal to consider rele- 

18 As the government noted in its rehearing petition, respon- 
dent’s initial appearance and arraignment proceedings were not 
transcribed until after the court of appeals issued its initial opinion 
in this case. As a result, the government moved to supplement the 
record in the court of appeals with those materials when it filed its 
rehearing petition. As respondent acknowledged below, “all these 
transcripts were in the district court record.” See Resp. Opp. to 
Pet. for Reh’g 3 n.1. The court of appeals did not formally rule on 
the government’s motion to supplement the record. It appears 
that the court considered that motion to be moot or irrelevant in 

39 

vant record evidence outside the four corners of the 
plea colloquy transcripts is inconsistent with a proper 
understanding of both plain-error and harmless-error 
review. 

19 

1. This Court has repeatedly stated that “the harm- 
lessness of an error is to be judged after a review of the 
entire record.” Yates, 500 U.S. at 405; see also Cald- 
eron v. Coleman, 525 U.S. 141, 147 (1998) (error to be 
reviewed “in the whole context of the particular case”); 
Williams, 503 U.S. at 203 (“a remand is appropriate [to 
correct an error in applying the Sentencing Guidelines] 
unless the reviewing court concludes, on the record as a 
whole, that the error was harmless”); Bank of Nova 
Scotia, 487 U.S. at 256 (“a conviction should not be 
overturned unless, after examining the record as a 
whole, a court concludes that an error may have had 
‘substantial influence’ on the outcome of the pro- 
ceeding”); Delaware v. Van Arsdall, 475 U.S. 673, 681 
(1986) (“an otherwise valid conviction should not be set 
aside if the reviewing court may confidently say, on the 
whole record, that the constitutional error was harm- 
less beyond a reasonable doubt”); United States v. 

light of its decision, on rehearing, that it could not consider any 
information other than the transcript of the guilty plea hearing to 
determine whether respondent had been prejudiced by the Rule 11 
error. Pet. App. 6a-7a (“Thus, we cannot consider the govern- 
ment’s claim that [respondent] learned of his right to counsel 
during earlier court proceedings”). 

19 As we explain in the text at pp. 39-45, infra, harmless-error 
review as well as plain-error review requires the court of appeals 
to consider the entire record to determine whether the defendant 
was prejudiced by the district court’s error. Thus, the court of 
appeals’ incorrect decision to confine its scope of review to the plea 
proceedings in this case requires reversal, even if this Court 
concludes that harmless error (rather than plain error) is the 
proper standard of review on appeal in this case. 

40 

Lane, 474 U.S. 438, 448 n.11 (1986) (harmless error 
inquiry “requires a review of the entire record”); 
United States v. Hasting, 461 U.S. 499, 509 n.7 (1983) 
(“entire record” must be considered). 

20 

The Court has also held that plain-error review 
likewise requires consideration of the entire record. In 
United States v. Young, the prosecutor in his closing 
argument improperly vouched for the credibility of 
witnesses and expressed his personal opinion con- 
cerning the guilt of the accused. Because the defense 
did not object to those improper comments, the appli- 
cable standard of review on appeal was plain error. In 
finding that the improper comments constituted plain 
error, the court of appeals failed to consider that the 
prosecutor was countering defense counsel’s repeated 
attacks on the prosecution’s integrity and claims that 
the prosecutor did not personally believe in the govern- 
ment’s case. This Court held that the court of appeals’ 
limited focus on the prosecutor’s comments alone 
without considering the broader context of the entire 
trial was flawed, and emphasized that, “[e]specially 
when addressing plain error, a reviewing court cannot 

20 The Court’s numerous statements that harmless-error re- 
view requires examination of the record as a whole are consistent 
with the background of Rule 52(a). Before the adoption of that 
Rule, the harmless-error statute, 28 U.S.C. 391 (1946), provided 
that “[o]n the hearing of any appeal, certiorari, or motion for a new 
trial, in any case, civil or criminal, the court shall give judgment 
after an examination of the entire record before the court, without 
regard to technical errors, defects, or exceptions which do not 
affect the substantial rights of the parties” (emphasis added). Rule 
52(a), moreover, was “merely a restatement of existing law and 
effect[ed] no change in the ‘harmless error’ rule.” Bihn v. United 
States, 328 U.S. 633, 638 n.3 (1946); see also Fed. R. Crim. P. 52(a) 
advisory committee’s note (Rule 52(a) was “a restatement of exist- 
ing law”). 

41 

properly evaluate a case except by viewing such a claim 
against the entire record. * * * It is simply not 
possible for an appellate court to assess the seriousness 
of the claimed error by any other means.” 470 U.S. at 

16. 
The Court’s directives that “the entire record” should 
be considered on harmless-error and plain-error review 
indicate that reviewing courts are not limited to 
examining the specific proceeding in which the error 
occurred, but rather should evaluate the record of the 
case as a whole. Indeed, this Court followed that 
approach in United States v. Mechanik. In that case, 
when the Court considered whether an error in the con- 
duct of the grand jury proceedings required reversal of 
the defendant’s conviction, the Court looked beyond the 
record of the grand jury proceedings to the result of 
the defendant’s subsequent trial. Because “the petit 
jury’s verdict of guilty beyond a reasonable doubt 
demonstrate[d] a fortiori that there was probable cause 
to charge the defendants with the offenses for which 
they were convicted” (475 U.S. at 67), the Court con- 
cluded that “any conceivable error in the charging 
decision that might have flowed from the violation” was 
“rendered harmless” (id. at 73). 

21 

2. The principle that a court must review the entire 
record to determine whether an error affected the 

21 When a district court grants a defendant’s pretrial motion to 
dismiss an indictment because of grand jury error, such that there 
is no trial verdict for the reviewing court to examine on appeal, the 
appropriate harmless-error inquiry on appeal is whether the error 
affected the grand jury’s decision to indict. See Bank of Nova 
Scotia, 487 U.S. at 263. Mechanik demonstrates, however, that in 
other circumstances, evidence in the record other than the tran- 
script of the grand jury proceeding itself may be relevant to 
determine whether error in that proceeding requires reversal. 

42 

defendant’s substantial rights applies with full force to 
Rule 11(c)(3) violations. Indeed, restricting review of 
Rule 11(c)(3) errors exclusively to the guilty-plea collo- 
quy is inconsistent with the plain intent of Rule 11(h). 
The Advisory Committee’s Note accompanying the 
adoption of Rule 11(h) explains that the question of 
harmless-error should be resolved “solely on the basis 
of the Rule 11 transcript and the other portions (e.g., 
sentencing hearing) of the limited record made in 
such cases.” 1983 Advisory Committee Note, supra 
(emphasis added) (internal quotation marks omitted). 
Thus, the Advisory Committee contemplated the scope 
and sources of record material that a reviewing court 
should consider, and rejected the narrow position em- 
braced by the court of appeals in this case, which gave 
no weight at all to the Advisory Committee’s commen- 
tary. 

22 

As the Advisory Committee’s Note recognizes, re- 
cord evidence outside the transcript of the guilty plea 
proceeding may be relevant to the determination of 
whether an omission to comply with Rule 11(c)(3) pre- 
judiced the defendant. Such relevant evidence might 
include, for example, the court’s earlier advice to the 
defendant of the information later omitted from the 
Rule 11 colloquy; 

23 statements by the defendant or his 

22 Advisory Committee notes accompanying promulgation of a 
Federal Rule are “of weight” in construing the Rule. Torres v. 
Oakland Scavenger Co., 487 U.S. 312, 316 (1988); see also United 
States v. Hyde, 520 U.S. 670, 676-677 (1997) (relying on advisory 
committee’s note accompanying Fed. R. Crim. P. 32(e) (1983 
amend.)); United States v. Sells Eng’g, Inc., 463 U.S. 418, 428-429 
(1983) (relying on advisory committee’s note accompanying Fed. R. 
Crim. P. 6(e)). 

23 See Lyons, 53 F.3d at 1322; United States v. Gray, 611 F.2d 
194, 202 (7th Cir. 1979), cert. denied, 446 U.S. 911 (1980)). 

43 

attorney at earlier proceedings reflecting the defen- 
dant’s knowledge of the omitted information; 

24 a signed 
plea agreement or other filing in which the defendant 
acknowledged his awareness of the omitted informa- 
tion; 

25 the defendant’s acknowledgment at a post-guilty 
plea proceeding that he knew of the omitted informa- 
tion at the time of his guilty plea or that the omitted 
information had no effect on his plea; 

26 or the defen- 
dant’s failure to object, seek to withdraw his plea, or 
show surprise on being provided with the omitted 
information at a post-guilty plea proceeding, suggesting 
either that he was otherwise aware of the omitted 
information or that it would have had no effect on his 
decision to plead guilty. 

27 All those kinds of evidence 
could have a significant bearing on whether the defen- 
dant was in fact prejudiced by the district court’s 
failure to inform him of one of the aspects of the advice 
required by Rule 11(c)(3), and there is no reason why a 
reviewing court should blind itself to that information. 

Moreover, a rule limiting the prejudice inquiry to the 
guilty-plea colloquy would lead to absurd results in 
some situations. Assume, for example, that a defendant 
initially elected to plead not guilty and decided to pro- 
ceed to trial, but during the trial, after his attorney 

24 See United States v. Peden, 872 F.2d 1303, 1309 (7th Cir. 
1989); Gray, 611 F.2d at 202. 

25 See Driver, 242 F.3d at 771; United States v. Jones, 143 F.3d 
1417, 1420 (11th Cir. 1998); United States v. Maher, 108 F.3d 1513, 
1521 (2d Cir. 1997); Lopez-Pineda, 55 F.3d at 697; United States v. 
Vance, 868 F.2d 1167, 1172 (10th Cir. 1989); United States v. 
Lovett, 844 F.2d 487, 491 (7th Cir. 1988). 

26 See United States v. Saft, 558 F.2d 1073, 1080 (2d Cir. 1977). 

27 See Lopez-Pineda, 55 F.3d at 697; Lyons, 53 F.3d at 1323; 
Lucas v. United States, 963 F.2d 8, 14-15 (2d Cir.), cert. denied, 506 
U.S. 895 (1992). 

44 

had delivered an opening statement and had cross-ex- 
amined government witnesses, the defendant changed 
his mind and decided to enter a guilty plea. In those 
circumstances, the court’s failure to advise the defen- 
dant during the Rule 11 colloquy that he had the right 
to the assistance of counsel at trial, as required by Rule 
11(c)(3), plainly should not require vacatur of the plea. 
In such circumstances, there could be no doubt that the 
defendant already knew about that right, even though 
his knowledge might not be reflected in the transcript 
of the colloquy. See United States v. Dayton, 604 F.2d 
931, 946 (5th Cir. 1979) (Brown, C.J., concurring), cert. 
denied, 445 U.S. 904 (1980). 

3. The only explanation given by the court of ap- 
peals for confining its review to the record of the plea 
colloquy is that the limitation “ensures that a defendant 
is fully aware of his rights when his plea is entered–- 
that he is aware of them at the time they are being 
waived.” Pet. App. 6a (internal quotation marks 
omitted). That explanation, however, ignores the sub- 
stantial possibility that record evidence outside the four 
corners of the Rule 11 proceeding, such as the factors 
enumerated above, might establish that the defendant 
knew the omitted information at the time he pleaded 
guilty. Even if the defendant did not state on the 
record at the exact moment that he entered his guilty 
plea that he was aware that he would have the right to 
counsel if he elected to proceed to trial, the record in 
the case might demonstrate persuasively that the 
defendant was aware of that right throughout the case. 
More generally, the court of appeals’ rationale for its 
limited review is predicated on the erroneous assump- 
tion that the proper test for determining whether a 
Rule 11(c)(3) violation prejudiced a defendant turns on 
whether the defendant otherwise knew about the 

45 

omitted information, rather than whether the error 
affected the outcome of the proceedings, including the 
defendant’s decision to enter a guilty plea. See pp. 33- 
35, supra. The record of other proceedings in a case 
may establish persuasively that the defendant would 
have pleaded guilty even if he had been provided with 
the information that the court erroneously neglected to 
provide at the guilty plea proceeding. A reviewing 
court should not refuse to consider such relevant 
evidence. 

D. The District Court’s Rule 11(c)(3) Violation In 

This Case Was Not Plain Error 

Taking into account the record of the case as a whole 
instead of just the guilty plea colloquies, it is clear 
that the district court’s Rule 11(c)(3) violation did not 
amount to plain error. The evidence as a whole 
establishes that respondent was informed of the exact 
right at issue in earlier proceedings, and therefore the 
violation did not affect respondent’s substantial rights 
or warrant vacatur of his plea. 

The record as a whole shows the following: 

• On February 28, 1997, at respondent’s initial 
appearance, the district court expressly ad- 
vised him of his “right to retain and to be 
represented by an attorney of your own 
choosing at each and every sta[g]e of the 
proceedings against [him]” and of his right to 
appointed counsel if he could not afford an 
attorney. J.A. 15. 

• Later during the same proceeding, the court, 
addressing respondent personally, asked him 
if he had heard and understood his rights and 

46 

that respondent answered in the affirmative. 
J.A. 18. 

• On March 17, 1997, at respondent’s arraign- 
ment on the initial indictment, the court 
advised respondent once again that he had 
the right “to be represented by counsel at all 
stages of the proceedings,” and that, if he 
could not afford an attorney, one would be 
appointed without cost to him. 

J.A. 22. 

• Respondent’s counsel then provided the court 
with respondent’s signed “Statement of 
Defendant’s Constitutional Rights,” in which 
respondent acknowledged his constitutional 
right “to be represented by counsel at all 
stages of the proceedings against [him].” 
J.A. 25, 26, 28. 

• Respondent’s counsel also signed a statement 
at the end of that form indicating that counsel 
was “satisfied that [respondent] has read this 
Statement of Rights * * * and that [he] 
understands them.” J.A. 29. 

• At the conclusion of the arraignment, the 
court, through the clerk, asked respondent 
personally whether he had heard and under- 
stood the statements of the court “[p]ertain- 
ing to your rights and the appointment of 
counsel,” and whether he had seen and signed 
the statement of rights that had been sub- 
mitted to the court by his attorney, to both 
of which questions respondent answered, 
“Yes.” J.A. 25. 

In short, before he pleaded guilty on May 12, 1997, 
and September 3, 1997, respondent had been advised on 

47 

three separate occasions in the course of the case of his 
right to counsel at trial, and on four separate occasions 
he or his counsel affirmed that he understood that right. 
Two of those advisements and two of respondent’s 
affirmations that he understood his rights took place in 
open court. Accordingly, the record as a whole shows 
that respondent knew of his right to counsel at trial 
when he pleaded guilty, and that the district court’s 
error in omitting to advise him of that right at the 
guilty plea hearing therefore did not affect respondent’s 
decision to enter guilty pleas. 

With respect to respondent’s second guilty plea, that 
conclusion is strongly bolstered by additional evidence. 
First, at the June 9, 1997, status conference, defense 
counsel sought and obtained in respondent’s presence a 
continuance of the trial date because of a scheduling 
conflict that would have prevented the attorney from 
attending on the scheduled date, and the court 
addressed respondent personally to explain to him the 
need for the continuance. J.A. 47. Second, in its 
excludable-time order relating to the continuance of the 
trial date, the court stated that respondent and his 
attorney were “initially prepared to go forward with 
this case” on June 10, 1997, indicating that at some 
point before June 10 respondent must have become 
aware that his attorney would represent him at trial. 
Gov’t C.A. Ex. Rec. 43. Finally, on August 4, 1997, at 
respondent’s arraignment on the superseding 
indictment, defense counsel requested and was granted 
in respondent’s presence additional time to prepare for 
trial. Id. at 51-52. 

In light of that evidence, it is clear that respondent 
knew, when he pleaded guilty to the conspiracy and 
firearms counts on September 3, 1997 (just six days 
before the scheduled trial date), that his appointed 

48 

counsel would have represented him if he had chosen to 
proceed to trial. And at no time did respondent move to 
withdraw his initial guilty plea resolving the bank 
robbery charge. Taken together with the earlier evi- 
dence in the record showing that respondent was 
advised of his right to counsel at all stages of the pro- 
ceeding and his acknowledgment that he understood 
that right, there is no basis for vacating his plea 
because of the district court’s departure from Rule 
11(c)(3). The colloquy under Rule 11 is ultimately de- 
signed to ensure the entry of knowing, voluntary, and 
intelligent guilty pleas; it is not designed to create a 
means for a defendant who knowingly, voluntarily, and 
intelligently entered such a plea to overturn his con- 
viction because the trial court omitted to advise the 
defendant of information that he already knew. 

CONCLUSION 

The judgment of the court of appeals should be re- 
versed. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

JOHN C. KEENEY 

Acting Assistant Attorney 

General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

JOEL M. GERSHOWITZ 

Attorney 

MAY 2001