U.S. v. Vonn, Alphonso (03/04/2002)

Questions presented: (1) If a district court fails to advise a defendant at his plea hearing of his right to an attorney at trial, in accordance with Federal Rule of Criminal Procedure 11(c)(3), is that error substantial enough to vacate the defendant's guilty plea? (2) May an appeals court look beyond the words of the guilty plea colloquy alone in determining whether the defendant's due process rights were compromised?

BY TOM MCCANN, MEDILL NEWS SERVICE

After the pitifully executed robbery of a Long Beach, Calif., bank landed him in jail, no one needed an attorney more badly than Alphonso Vonn.

On Feb. 27, 1997, three men stormed into Farmers and Merchants Bank, drew their guns and shouted for everyone to drop to the floor. Vonn's job was to jump over the counter with a paper bag and demand that the tellers fill it with money.

However, all that wound up in Vonn's bag was $209, and even that was seized from Vonn's sock after all of three were arrested by police within 24 hours.

The next day, Vonn, 21 at the time and with no prior criminal record, made his first appearance in federal court in Los Angeles, charged with armed bank robbery, conspiracy to commit bank robbery, and using and carrying a firearm during the robbery.

A magistrate informed him of his right "to retain and to be represented by an attorney of your own choosing at each and every stage of the proceedings against you." The judge also assigned Vonn a deputy federal public defender to represent him.

At his arraignment two weeks later, Vonn was again told of his right to counsel for every part of his case. Then with the arm he broke during the ill-fated robbery, Vonn signed a form saying he understood his right to an attorney.

But on May, 12, 1997, when Vonn pleaded guilty in court to the one count of armed bank robbery, a U.S. district judge failed to remind him again of the right to an attorney.

Nonetheless, the judge told Vonn that by pleading guilty to the bank robbery charge, he would be giving up everything from his right against self-incrimination to his right to present evidence at trial.

The omission of his right to counsel technically violates Federal Criminal Procedure rule 11, which states "the court must address the defendant personally in open court and inform the defendant" of his specific rights.

Vonn was set to go to trial on the other two charges when, a week before trial was to start, he decided to plead guilty to them as well.

Again the judge failed to remind him that he was giving up the right to assistance of counsel. The assistant U.S. Attorney even pointed out the error to the judge, but the judge responded, "I didn't because [Vonn] is already represented by counsel."

Vonn's public defender raised no objection. On May 14, 1998, almost a year later, Vonn wanted to withdraw his guilty plea to the firearms charge, claiming that he was unarmed during the robbery. But the judge denied the motion and sentenced Vonn to eight years in prison.

It was only until later in his appeal that Vonn first brought up the fact that he had never been informed of his right to counsel at the plea hearings and was unaware that he had them.

Vonn filed the appeal pro se, arguing that the omission caused him to plead guilty to the firearms charge without knowing he could never get his trial back again, said Emily Uhrig, a deputy federal public defender in Los Angeles.

On April 20, 2000, a 9th Circuit Court of Appeals panel agreed with Vonn that the mistake harmed him. In a unanimous decision, the court ruled that all Vonn's guilty pleas be vacated.

"Nothing other than the fact that he was represented by counsel at the plea hearing supports the inference that he was actually aware of his right to counsel at trial," wrote Judge Alex Kozinski. "Vonn has no criminal record and he made no statement that clearly disclosed his understanding that Mr. Li, his plea hearing lawyer, would continue to represent him if he chose to go to trial.

"In our opinion, this error was not harmless."

The appeals court agreed to acknowledge Vonn's argument even though Vonn had never brought it up at the trial. The court also applied a "harmless error" standard in determining whether Vonn's rights were compromised.

The harmless error standard requires the government to prove that the defendant knew beforehand of his right to counsel and therefore was not substantially hurt by the error. The decision conflicts with that of five other circuits, which apply the "plain error" standard in whole or in part to decide on a so-called rule 11 violation.

The plain error standard in essence puts the burden of proof on the defendant.

The government petitioned for a rehearing, arguing that they should be allowed to bring up as evidence that Vonn had heard of his right to counsel two previous times in court and signed a form acknowledging the fact.

The court issued an amended opinion on Sept. 14, 2000, that ruled the court could look only at the words of the guilty plea hearing transcript in making a determination. That decision also conflicts with several other circuit courts, which look at the entire record.

The government contends that the U.S. Supreme Court must come up with a nationwide standard to ensure that guilty pleas are not weakened by these judicial mistakes.

"The court of appeals' decision raises matters of significant and recurring importance to the continued efficient administration of the criminal justice system - a system that, this court has recognized, relies heavily on guilty pleas," wrote the prosecution in its petition for certiorari.

"It remains regrettably the case that district courts do not always comply with the requirements of rule 11 with the utmost strictness, but with the appellate review in this case, the government has suffered an unfair surprise.

"The bar should rise for those defendants who forfeit their claim of error by failing to object before the district court, thereby stripping it of any opportunity to resolve or cure the error at trial."

On Feb. 26, 2001, the U.S. Supreme Court granted certiorari in this case and allowed Vonn to proceed in forma pauperis.

On March 4, 2002, a unanimous Court sided with the U.S., holding that a criminal defendant who pleads guilty carries the burden of showing plain-error in claiming that a trial judge failed to inform him of his right to counsel. The Court vacated the appeals court opinion and remanding the case to the 9th Circuit for reconsideration.