United States v. Steele

¶4J. JOSEPH SMITH, Circuit Judge:

¶5Ernest Norman Steele, indicted for theft of typewriters, the property of the United States, in the Eastern District of New York, pleaded guilty before Judge Bruchhausen, was sentenced by Chief Judge Zavatt to a term of imprisonment, and appeals. We hold that the requirements of Rule 11, Federal Rules of Criminal Procedure1 were not satisfied, and reverse and remand for further proceedings.

¶6Steele, represented by counsel, was put to plea on the first count of a 26-count indictment. The clerk read to him that count,2 advised him of his right to speedy *968trial, to subpoena and confront witnesses, of the possible penalty of imprisonment and asked if the plea was voluntary. He responded that it was. An assistant United States Attorney advised as to the maximum penalty, the clerk told of the possibility of Youthful Offender treatment. The court asked if the answers would be the same if he asked the questions and Steele stated that they would. The plea of guilty was thereupon accepted. Steele contends that this procedure was fatally defective in two respects: (1) the failure of the judge personally to advise the nature and consequences of the plea and carry on the interrogation of the defendant to determine that the plea was understandingly and voluntarily entered, and (2) the lack of a factual basis for the plea in the explanation by the clerk and the responses of Steele.

¶7Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16(per cu-riam) (May 5, 1969) holds that the requirements of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (April 2, 1969) are not retroactive, and the United States argues here that interrogation by the clerk adopted by *969the judge satisfies the requirement that the interrogation be of the defendant personally, as that requirement was understood before McCarthy was decided. We need not, however, determine whether the interrogation met pre-McCarthy standards in this regard, for it plainly failed to meet the other requirements of the rule, as amended in 1966, that the judge satisfy himself as to the factual basis of the plea. A bare recitation that the defendant “stole” a typewriter from a certain place does not sufficiently portray the facts necessary to satisfy the court that the elements of larceny were present, and particularly where more than one defendant is charged, a sufficient statement of the acts and intent of the particular defendant, what the defendant did and intended, is necessary to an intelligent determination of whether there was a factual basis for the plea.

¶8Reversed and remanded for vacation of the plea and further proceedings in accordance herewith.