623
PleasFederal Rule of Criminal Procedure 11
|
A defendant may plead guilty, not guilty, or, with the consent of
the
court, nolo contendere. If the defendant refuses to plead, or if a
defendant
corporation fails to appear, the court must enter a plea of not guilty.
Fed. R.
Crim. P. 11(a). In a criminal case, the plea of nolo contendere has the
effect
of a guilty plea. United States v. Norris, 281 U.S. 619 (1930).
Under
Federal Rule of Criminal Procedure 11, a plea of nolo contendere shall be
accepted by the court only with its consent and only after it gives due
consideration to the views of the parties and the interest of the public in
the
effective administration of justice. The court does not have the authority
to
accept either a plea of guilty or a plea of nolo contendere until the court
has
first determined that the defendant has a requisite understanding and that
the
plea is voluntary, in accordance with Federal Rules of Criminal Procedure
11(c)
and (d). See McCarthy v. United States, 394 U.S. 459 (1969);
Boykin v. Alabama, 395 U.S. 238 (1969). The requirement in Rule
11(f)
that the court not enter a judgment upon a guilty plea without determining
that
there is a factual basis for the plea, does not extend to criminal
forfeiture
charged under Federal Rule of Criminal Procedure 7 since such forfeiture is
part
of the sentence, not the offense. See Libretti v. United
States,
116 S. Ct. 356 (1995).
Federal Rule of Criminal Procedure 11(c) requires that, before
accepting a plea of guilty or nolo contendere, the court must address the
defendant personally in open court and inform him/her of, and determine that
he/she understands, the following: (1) the nature of the charge to which
the
plea is offered, the mandatory minimum penalty provided by law, if any, and
the
maximum possible penalty provided by law, including the effect of any
special
parole or supervised release term, the fact that the court is required to
consider any applicable sentencing guidelines, and that the court may also
order
restitution to any victim of the offense; (2) if the defendant is not
represented
by an attorney, that he/she has the right to be represented by an attorney
at
every stage of the proceeding against him/her and, if necessary, one will be
appointed to represent him/her; (3) that he/she has the right to plead not
guilty
or to persist in that plea if it has already been made, and that he/she has
the
right to be tried by a jury and at that trial has the right to the
assistance of
counsel, the right to confront and cross-examine witnesses against him/her,
and
the right not to be compelled to incriminate himself/herself; (4) that if
his/her
plea of guilty or nolo contendere is accepted by the court there will not be
a
further trial of any kind, so that by pleading guilty or nolo contendere
he/she
waives the right to a trial; and (5) that if the court intends to question
the
defendant under oath, on the record, and in the presence of counsel about
the
offense to which he/she has pleaded, that his/her answers may later be used
against him/her in a prosecution for perjury or false statement. A court's
failure to comply will not, however, necessarily entitle a defendant to
relief.
See United States v. Timmreck, 441 U.S. 780 (1979). It is not
necessary that every conceivable consequence of sentencing be communicated
to the
defendant. See Bunker v. Wise, 550 F.2d 1155 (8th Cir.1977).
Federal Rule of Criminal Procedure 11(d) requires that the court
not
accept a plea of guilty or nolo contendere without first, by addressing the
defendant personally in open court, determining that the plea is voluntary
and
not the result of force or threats or of promises apart from a plea
agreement.
The Court shall also inquire whether the defendant's willingness to plead
guilty
or nolo contendere results from prior discussions between the attorney for
the
government and the defendant or his/her attorney.
[cited in USAM 9-16.001] | |