UNITED STATES OF AMERICA, PETITIONER V. MARIO BERNAL No. 88-1942 In The Supreme Court Of The United States October Term, 1988 The Solicitor General, On Behalf Of The United States, Petitions For A Writ Of Certiorari To Review The Judgment Of The United States Court Of Appeals For The Fifth Circuit In This Case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Rules Involved Statement Reasons for Granting the Writ Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-9a) is reported at 861 F.2d 434. The order of the court of appeals denying the government's petition for rehearing (App., infra, 11a-12a) is reported at 871 F.2d 490. JURISDICTION The judgment of the court of appeals (App., infra, 10a) was entered on November 25, 1988. A petition for rehearing was denied on April 4, 1989 (App., infra, 11a-12a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). RULES INVOLVED Subsections (c)(1) and (h) of Fed. R. Crim. P. 1 provide: (c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant 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 term or term of supervised release and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; * * * (h) Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded. QUESTION PRESENTED Whether Fed. R. Crim. P. 11(h) -- which provides that "(a)ny variance" from the plea procedures required by Rule 11 "which does not affect substantial rights shall be disregarded" -- permits "automatic reversal" of a conviction based upon a guilty plea whenever a district court does not personally address a defendant concerning the nature of the offense to which the plea is offered. STATEMENT Respondent Mario Bernal was convicted upon his plea of guilty to one count of distributing cocaine, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 12 years' imprisonment without parole. The court of appeals held that the district court violated Fed. R. Crim. P. 11(c)(1) by failing personally to address respondent concerning the nature of the offense to which he pleaded guilty. Adhering to the rule of "automatic reversal" that it adopted in United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904 (1980), the court of appeals reversed respondent's conviction and ramanded with instructions to allow respondent to replead. 1. Respondent and a co-defendant were arrested while in the process of selling approximately a kilogram of cocaine to an undercover DEA agent. See App., infra, 15a. In two previous transactions, they had sold another one-and-a-quarter kilograms to the same agent. Ibid. They were subsequently charged with one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. 846, and three counts of distributing cocaine, in violation of 21 U.S.C. 841(a)(1). After initially pleading not guilty, respondent entered into a written plea agreement with the government. App., infra, 13a-14a. He agreed to plead guilty to Count 4 of the indictment, the count charging him with distributing cocaine to the government's agent at the time of his arrest; the government agreed to dismiss Counts 1 through 3; and the parties agreed that the maximun term of imprisonment would 15 years without eligibility for parole. Ibid. The plea agreement also specified the elements of the offense to which respondent was to plead guilty and the factual basis for the plea. App., infra, 13a-15a. The agreement stated (id. at 14a): In order to establish a violation of Title 21, United States Code, Section 841(a)(1) as charged in Count 4 of the indictment, the following elements must be established: 1. That (respondent) distributed one kilogram of cocaine to (Agent) Tapia; and 2. That (respndent) did so knowingly and intentionally. The following section of the agreement, which was entitled "factual basis for plea," detailed the cocaine distributions in which respondent had participated, including the date, place, and terms of the transaction as to which he agreed to plead guilty. Id. at 14a-15a. 2. Respondent was rearraigned in accordance with the plea agreement. He waived the reading of the indictment, stating that he had gone over it with his attorney. App., infra, 17a-18a. After advising respondent of the rights he would be relinquishing by entering a plea of guilty (id. at 18a-21a), the court examined him as follows with respect to the plea agreement (id. at 21a-22a): The Court: Okay. Mr. Bernal, have you signed the document that we're referring to? * * * (Respondent): Yes, Your Honor. * * * The Court: Now, you have a right to have that document read aloud to you in open court, however you may also give up that right. (Respondent): I give up that right. The Court: Do you have any corrections, counsel or Mr. Bernal, that you wish to make to the factual resume, the plea agreement or the elements of the offense? * * * Defense counsel: We have no corrections, Your Honor. The Court: Mr. Bernal, do you agree with that? (Respondent): I agree. Later in the proceeding, the court returned to the plea agreement. After reading the agreement in the court's presence, respondent again attested to the accuracy of the factual summary and testified that he had committed the elements of the offense that the plea agreement described (App., infra, 25a-26a): The Court: * * * Now, Mr. Bernal, the plea agreement contained the factual resume and elements of the offense. You said you had no corrections to that. Do you agree that the factual resume is correct? (Respondent): If I could read it again. The Court: Please take a look at it, because I'm going to ask you whether you committed the elements of the offense with which you are charged. * * * * * The Court: All right. Other than that change, /1/ do you agree that the factual resume is correct? (Respondent): Yes, Your Honor. The Court: Do you admit that you committed the elements of the offense with which you are charged? (Respondent): Yes, Your Honor. Based on those admissions, the court accepted respondent's guilty plea. App., infra 27a. /2/ After receiving a presentence report, the district court sentenced respondent to 12 years' imprisonment and four years of supervised release. App., infra, 2a. 3. The court of appeals reversed the conviction in reliance on United States v. Dayton, supra, and United States v. Corbett, 742 F.2d 173 (5th Cir. 1984). In Dayton, which was decided before the promulgation of Fed. R. Crim. P. 11(h), the Fifth Circuit held that "a failure by the trial court to address any one or more of (Rule 11's) three core concerns" -- absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea -- "requires automatic reversal." 604 F.2d at 939. Customary harmless error analysis, Dayton continued, was applicable only to "inadequate addresses of these matters," "unrelated constitutional errors arising from Rule 11 proceedings," and violations of those provisions of Rule 11 that first became effective in 1975, after this Court's decision in McCarthy v. United States. 394 U.S. 459 (1969). 604 F.2d at 939-940. In United States v. Corbett, 742 F.2d at 178-179 n.14, the Fifth Circuit ruled that Rule 11(h) did not affect the harmless error analysis the court had adopted in Dayton. Applying Dayton's analytical framework to the facts of this case, the court of appeals found that "the district court * * * did not read the indictment or advise the defendant on the record of the nature of the charges to which he sought to plead guilty." App., infra, 6a. The panel held that this "complete failure to address a core concern of Rule 11 requires reversal." App., infra, 9a. The court of appeals rejected the government's argument that the error, if any, in respondent's plea proceeding was harmless within the meaning of Rule 11(h). The panel explained that Rule 11(h), " 'as applied to core concerns, is designed to forgive "inadequate addresses," not "entire failures."'" App., infra, 5a (quoting United States v. Corbett, 742 F.2d at 178-179 n.14). The court acknowledged that "(o)ther circuits have interpreted the effect of subsection (h) differently." App., infra, 5a. The court declined to follow the decisions of those other courts, however, because the court viewed Dayton and Corbett to be "sound" and "binding." App., infra, 6a. Similarly, the court observed that "the addition of Rule 11(h) did not require a change" in the circuit's "existing practice in reviewing alleged failures to comply with Rule 11." App., infra, 6a. The government petitioned for rehearing, renewing its argument that any error in respondent's plea proceeding was harmless, and asked the full court to consider the question whether Dayton was consistent with Rule 11(h). The panel denied the petition for rehearing in a brief per curiam order. App., infra, 11a-12a. The order stated that acceptance of the government's argument "would obliterate" Rule 11(c)(1) and "allow the district judge to sit in his chambers and accept a guilty plea so long as the accused signed papers reflecting his voluntary, knowing agreement to enter the plea." App., infra, 12a. The government's suggestion for rehearing en banc was also denied. REASONS FOR GRANTING THE WRIT The record of respondent's plea proceeding establishes beyond a shadow of a doubt that he understood the offense to which he was pleading guilty -- knowingly and intentionally distributing approximately a kilogram of cocaine to a DEA agent. Nevertheless, the court of appeals reversed respondent's conviction on the strength of Dayton's rule of "automatic reversal." The Fifth Circuit's continued adherence to its Dayton framework violates the plain language of Fed. R. Crim. P. 11(h) and the express intent of the drafters of that provision, which was to end the use of the extreme sanction of automatic reversal as a remedy for violations of Rule 11. By refusing to follow the plain language of Rule 11(h), the court of appeals has created a conflict among the circuits concerning the harmless error analysis applicable to violations of Rule 11. The Fifth Circuit's unwillingness to employ conventional harmless error analysis in cases like this one is also contrary to decisions of this Court holding that criminal convictions should not be reversed because of procedural errors that have no effect on defendants' substantial rights. The issue presented by this case is important to the administration of justice in the federal courts. Of the tens of thousands of federal criminal cases brought each year, more than 85% are resolved through guilty pleas. Experience demonstrates that notwithstanding the diligent efforts of courts and prosecutors to comply with the detailed provisions of Rule 11, errors are bound to occur in some of those cases. The public's "fundamental interest in the finality of guilty pleas," Hill v. Lockhart, 474 U.S. 52, 58 (1985), and "the prompt administration of justice," United States v. Hasting, 461 U.S. 499, 509 (1983), require that reversals be reserved for those cases in which an error has had some effect on the voluntariness or accuracy of the defendant's guilty plea. 1. Under its decision in Dayton, the Fifth Circuit deems certain violations of Rule 11 to be reversible per se. A "failure by the trial court to address any one or more of (Rule 11's) three core concerns" is presumed to be "inherently prejudicial" and "requires automatic reversal." 604 F.2d at 939; see App., infra, 4a. Conventional harmless error analysis is reserved for "inadequate addresses" of those concerns and violations of provisions of Rule 11 that were promulgated after this Court's decision in McCarthy v. United States, supra. 604 F.2d at 939-940. As applied to the former category of Rule 11 violations, the Fifth Circuit's approach violates the plain language of Rule 11(h). That provision states that "(a)ny variance" from Rule 11 "which does not affect substantial rights shall be disregarded." That unqualified language does not permit any violation of the rule to be treated as "inherently prejudicial," and it excludes any rule of "automatic reversal." Reversal is permissible only if, based on a review of the record as a whole, an error can be said to have affected a defendant's "substantial rights." The developments that led up to the promulgation of Rule 11(h) confirm that the provision was intended to have the meaning that its plain language conveys. The express purpose of Rule 11(h) was to do away with automatic reversal rules, like Dayton's, that lower courts had adopted in reliance on this Court's decision in McCarthy v. United States, 394 U.S. 459 (1969). In McCarthy, the Court construed a relatively simple predecessor of the current version of Rule 11. The trial court had accepted a guilty plea to a charge of tax evasion without personally addressing the defendant as to the elements of that offense, and the record suggested that the defendant had been confused about whether specific intent was required for a conviction. This Court concluded that the plea had been taken in violation of Rule 11's requirement that a trial court "personally inquire whether the defendant understood the nature of the charge." 394 U.S. at 467. The Court also rejected the government's contention that the case should be remanded for further proceedings to determine whether the defendant had actually understood the offense to which he had offered his plea of guilty. The Court explained "that prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the Rule's procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of the plea." Id. at 471-472. /3/ In the decade after McCarthy, a number of courts of appeals held that any violation of Rule 11 entitled a defendant to reversal of his conviction and an opportunity to replead. /4/ As time passed, however, confusion mounted concerning the appropriate standard of appellate review for violations of Rule 11's increasingly detailed provisions. In response to that confusion, the Advisory Committee proposed to add Rule 11(h), a specific harmless error provision that would apply to errors in Rule 11 proceedings. This Court promulgated the new provision, 461 U.S. 1117, 1123 (1983), and it became effective on August 1, 1983. The purpose of Rule 11(h) was to eliminate any possible confusion about the applicability of harmless error principles in the guilty plea context, by "mak(ing) clear that the harmless error rule of Rule 52(a) is applicable to Rule 11." Fed. R. Crim. P. 11(h) Advisory Committee note, 18 U.S.C. App. at 987 (Supp IV 1986). The drafters understood that the amendment would supersede McCarthy's suggestion that "prejudice inheres in" a violation of Rule 11. As the Advisory Committee note explained (18 U.S.C. App. at 988): Though the McCarthy per se rule may have been justified at the time and in the circumstances which obtained when the plea in that case was taken, this is no longer the case. In the same vein, the drafters emphasized that although Rule 11(h) would not relieve trial courts of the obligation to comply fully with Rule 11, it would "reject() the extreme sanction of automatic reversal." 18 U.S.C. App. at 989. Dayton's rule that the failure to address a "core concern" of Rule 11 requires automatic reversal was derived directly from "the McCarthy per se rule." See 604 F.2d at 939. Accordingly, whatever merit that rule of automatic reversal may once have had, it should not have survived the promulgation of an amendment to Rule 11 whose purpose was to end the use of that "extreme sanction." Regardless of the nature of a district court's "variance" from the requirements of Rule 11, a conviction based on a guilty plea may now be reversed only if the error has affected a defendant's "substantial rights." /5/ 2. The court of appeals applied the Dayton rule of automatic reversal to this case. App., infra, 9a. The Eleventh Circuit appears also to continue to adhere to the Dayton framework. /6/ Other courts of appeals apply a quite different harmless error analysis to errors that might be reversible under Dayton. The Seventh Circuit has twice held that, when a district court fails to address the defendant concerning the nature of the charges to which a guilty plea is being offered, the omission is harmless error "where it can be said from a review of the proceeding that the defendant nevertheless understood the charges." United States v. Ray, 828 F.2d 399, 405 (1987), cert. denied, 108 S. Ct. 1233 (1988); United States v. Darling, 766 F.2d 1095, 1099, cert. denied, 474 U.S. 1024 (1985). In Ray, the trial court failed to read the indictment to defendants who were offering guilty pleas to the offenses of conspiracy, mail fraud, and the transmission of altered postal money orders. See 828 F.2d at 406, 408, 411. The Seventh Circuit held that the district court's failure to address the defendants regarding the nature of their offenses was harmless error, since the prosecutor's detailed summaries of the elements of the offenses and the evidence against the defendants, accompanied by the defendant' admissions that those summaries were true, established that the defendants understood the nature of the offenses charged. Id. at 406 (conspiracy); id. at 408-409 (mail fraud); id. at 410-412 (transmission of altered postal money orders). /7/ Similarly, in Darling the defendant agreed to plead guilty to two counts of mail fraud and one count of conspiracy to defraud the IRS. At the plea proceeding, however, the district court "made no attempt to explain the charges" to the defendant. 766 F.2d at 1097. The Seventh Circuit held that the trial court's failure to address the defendant regarding the nature of the offenses violated Rule 11(c)(1). It found that the error was harmless as to the mail fraud counts, however. In reaching that conclusion, the court relied on the prosecutor's description of the evidence as to the mail fraud counts as well as the defendant's admissions. 766 F.2d at 1100. The court reached the opposite conclusion as to the conspiracy count: with respect to that count, the court found "the prosecutor's statement of the factual basis of the conspiracy charge and the court's subsequent colloguy with Darling insufficient evidence that Darling understood the charge." 766 F.2d at 1099. The First Circuit has taken a similar approach to Rule 11. In United States v. Buckley, 847 F.2d 991, 1000 n.6 (1st Cir. 1988), cert. denied, 109 S. Ct. 808 (1989), it rejected a claim that a guilty plea was invalid because the district court failed to read the indictment. The court relied on the fact that the defendant had stated that he had discussed the charges with his attorney and understood them; the First Circuit concluded that "(a)ny error made by the district court in failing personally to apprise Buckley of the precise nature of the charges against him was * * * harmless." Ibid. /8/ The harmless error analysis applied in Ray, Darling, and Buckley would compel affirmance of respondent's conviction. The record of the plea proceeding in this case leaves no doubt that respondent understood the charge to which he was pleading guilty. The offense alleged -- knowingly and intentionally distributing a kilogram of cocaine -- was one of elementary simplicity. Before he was rearraigned, respondent had gone over the indictment with his attorney. App., infra, 17a. See Henderson v. Morgan, 426 U.S. 637, 647 (1976); United States v. Buckley, 847 F.2d at 1000 n.6. Respondent's written plea agreement detailed the offense involved and the precise acts that gave rise to the violation. App., infra, 14a-15a. During his rearraignment, respondent testified under oath on two occasions that that factual resume was accurate and, immediately after reading the agreement in the district court's presence, admitted that he "committed the elements of the offense with which (he was) charged." App., infra, 26a. The record contains no suggestion whatever that respondent had any difficulty reading or understanding the agreement. To the contrary, the court remarked that respondent's English was "extremely proficient." The record also reflects that respondent had completed high school, that he had taken college level courses, and that he worked in a supervisory position at a financial services firm. App., infra, 17a; Sentencing Tr. 15. See United States v. Ray, 848 F.2d at 406. Significantly, respondent did not suggest to the court of appeals that he was confused as to the nature of his offense. /9/ The court of appeals' refusal even to consider whether those facts established respondent's understanding of his offense is squarely in conflict with the decisions of the First and Seventh Circuits in Buckley, Ray, and Darling. Absent review by this Court, that conflict will undoubtedly persist. The Fifth Circuit has now ruled on two occasions -- in Corbett and in this case -- that Dayton survived the promulgation of Rule 11(h). Although it recognizes that Dayton is inconsistent with decisions of other courts of appeals, the Fifth Circuit seems determined to adhere to its view. The panel stated that Dayton and Corbett remain "sound" and "binding," and the full court has declined to address Dayton's inconsistency with Rule 11(h). App., infra, 6a. This Court's review is therefore necessary to assure the uniform application of Rule 11(h) in the lower courts. 3. This Court has repeatedly held that "harmless error" provisions must be strictly followed, and it has rejected claims that a variety of procedural errors can be considered inherently prejudicial. See Bank of Nova Scotia v. United States, 108 S. Ct. 2369 (1988); United States v. Mechanik, 475 U.S. 66, 71-72 (1986); United States v. Lane, 474 U.S. 438 (1986); United States v. Hasting, 461 U.S. 499 (1983). The court of appeals' decision cannot be reconciled with the reasoning of those cases. In Lane, for instance, the Court flatly rejected the notion that any procedural errors can be categorically predetermined to be "prejudicial." Referring to the general harmless error provision in the Federal Rules of Criminal Procedure, the Court stated (474 U.S. at 448 n.11): (O)n its face, Rule 52(a) admits of no broad exceptions to its applicability. Any assumption that once a "substantial right" is implicated it is inherently "affected" by any error begs the question raised by Rule 52(a). Assuming there is a "substantial right," the inquiry remains whether the error "affects substantial rights" requiring reversal of a conviction. That kind of inquiry requires a review of the entire record. By contrast, under Dayton the Fifth Circuit will not review "the entire record" to determine whether certain types of Rule 11 violations have affected a defendant's "substantial rights." The Dayton rule imposes the same "societal costs" to which the Court has adverted in decisions upholding the general applicability of harmless error principles. See United States v. Mechanik, 475 U.S. at 72. When the "automatic reversal" rule of Dayton applies, it forces all participants in the criminal justice system to expend time and resources in further proceedings. While in theory reversal only allows the defendant to replead, the "(p)assage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible." Engle v. Isaac, 456 U.S. 107, 127-128 (1982). Even if the government wins a conviction, "the intervening delay may compromise society's 'interest in the prompt administration of justice,' * * * and impede accomplishment of the objectives of deterrence and rehabilitation." United States v. Mechanik, 475 U.S. at 72 (quoting United States v. Hasting, 461 U.S. at 509). These concerns are particularly compelling in the context of a guilty plea. The public has a "fundamental interest in the finality of guilty pleas." Hill v. Lockhart, 474 U.S. 52, 58 (1985). In almost all cases, a defendant who has pleaded guilty has admitted that he committed the offense charged, and there is rarely any genuine issue that an error has resulted in the punishment of an innocent person. United States v. Timmreck, 441 U.S. 780, 784 (1979). /10/ Before imposing the costs of reversal on the criminal justice system and society at large, the Court's cases emphasize, a court is obligated to determine whether a procedural error has actually prejudiced a criminal defendant. See Bank of Nova Scotia v. United States, 108 S. Ct. at 2374-2375. The Dayton rule is a clear departure from that obligation. 4. The question presented by this case is important to the administration of justice in the federal system. In 1988, the most recent year for which statistics are available, 42,902 defendants were convicted of criminal offenses in the federal courts. Director of the Administrative Office of the United States Courts, Annual Report 125 (1988). Of that number, 37,514 (87%) were convicted upon pleas of guilty or nolo contendere. A not insignificant percentage of the defendants who plead guilty are disappointed by the sentences they receive and in retrospect regret their decision to forgo a trial. Those same defendants may also calculate, with some justification, that it would be far more difficult for the government to prevail at a trial after lengthy appellate proceedings than it would have been at the point when they offered their pleas. Those defendants have much to gain, and almost nothing to lose, from an appeal from their conviction. The sheer number of guilty pleas received each year makes it inevitable, notwithstanding the best efforts of courts and prosecutors, that deviations from Rule 11's detailed provisions will be found in some of those appeals. In accordance with its plain language and purpose, Rule 11(h) must be applied so that reversals on appeal from convictions based upon guilty pleas are reserved for those defendants whose pleas can fairly be said to have been tainted by an error on the part of the trial court. Against the background of the tens of thousands of guilty pleas accepted each year in the federal system, this Court's review is appropriate to establish the proper harmless error standard for appeals from convictions based upon guilty pleas, to resolve the conflict among the courts of appeals as to that standard, and to end the use of an analytical framework that undercuts the public's interest in the finality of accurate and voluntary guilty pleas without advancing any of Rule 11's objectives. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General STEPHEN L. NIGHTINGALE Assistant to the Solicitor General ANDREW LEVCHUK Attorney JUNE 1989 /1/ After respondent had reviewed the agreement with his lawyer, the lawyer indicated that a single change should be made -- substituting "or" for "and" in one place in the document. The change was made, and respondent initialed it. App., infra, 25a. /2/ During the course of the plea proceeding, the district court observed that respondent's English was "extremely proficient." App., infra, 26a. The presentence report reflected that before his arrest respondent had completed high school and taken courses at a junior college, and that he was employed as a supervisor in a financial services firm. Sentencing Tr. 15. /3/ The decision in McCarthy was "based solely upon (the Court's) construction of Rule 11 and * * * (its) supervisory power over the lower federal courts." 394 U.S. at 464. /4/ E.g., United States v. Journet, 544 F.2d 633, 636 (2d Cir. 1976); United States v. Boone, 543 F.2d 1090 (4th Cir. 1976); United States v. Fels, 599 F.2d 142, 148-149 (7th Cir. 1979). /5/ In United States v. Corbett, 742 F.2d at 178-179 n.14, the Fifth Circuit cited the Advisory Committee's note on proposed Rule 11(h) as support for the proposition that Dayton was consistent with the drafters' understanding of Rule 11(h). The note, however, will not bear that construction. Although the Committee cautioned that Rule 11(h) "should not be read as supporting extreme or speculative harmless error claims or as, in effect, nullifying important Rule 11 safeguards," it did not restrict the categories of errors to which harmless error analysis would apply. Thus, the Committee clearly expressed no approval of the continued use of any rule of automatic reversal. The court of appeals' opinion in this case was also flawed by its failure to distinguish between the effect of holding that a procedure complies with Rule 11 and determining that a procedure, although erroneous, has not affected a particular defendant's substantial rights. A decision that a trial court's error is harmless implies no general approval of the erroneous procedure, and it does not rest on a finding that the same error would be inconsequential in other cases. Contrary to the court of appeals' suggestion (App., infra, 8a), therefore, the fact that some defendants may not be able to read English is irrelevant to the question whether the trial court's reliance on respondent's written plea agreement was sufficient in this case to establish respondent's understanding of his offense. Similarly, a finding that any error in the plea proceeding in this case had no effect on any of respondent's substantial rights under Rule 11 would not authorize a district judge to omit any of the elements required by Rule 11 in future cases, let alone "sit in his chambers and accept a guilty plea so long as the accused signed papers reflecting his voluntary, knowing agreement to enter the plea." App., infra, 12a. /6/ In United States v. Bell, 776 F.2d 965, 968-971 (1985), cert. denied, 477 U.S. 904 (1986), the Eleventh Circuit applied the Dayton framework to a trial court's failure to address the defendant regarding the nature of the offense to which a plea was offered. However, the court found that the omission was harmless even under Dayton. /7/ The court's analysis of the mail fraud charges against defendant Ray was representative. The court explained (828 F.2d at 408): Although the district court failed to comply with Rule 11(c)(1) regarding the mail fraud charges because the court did not discuss the nature of this mail fraud, we again find that the prosecutor's description of the elements of mail fraud coupled with his discussion of the evidence that would support the charges indicate that Ray nevertheless understood the nature of the mail fraud charges. /8/ Other courts of appeals have found a variety of errors to be harmless. United States v. de le Puente, 755 F.2d 313, 315 (3d Cir.) (trial court failed to advise defendant that he would not be allowed to withdraw his plea if the court failed to follow a plea agreement's recommendation as to the appropriate sentence; "we believe that the omission of the statement required by Rule 11(e)(2) must be deemed harmless error unless there is some realistic likelihood that de le Puente labored under the misapprehension that his plea could be withdrawn"), cert. denied, 474 U.S. 1005 (1985); United States v. Stead, 746 F.2d 355, 357 (6th Cir. 1984) (trial court failed to advise defendant of this right to confront witnesses and his privilege against compulsory self-incrimination; that omission "constitut(ed) harmless error as no substantial right of the appellant has been violated"), cert. denied, 470 U.S. 1030 (1985); United States v. Kearney, 750 F.2d 787, 790-791 (9th Cir. 1984) (the magistrate failed to advise defendant of the maximum and minimum penalties for the offense; that error was harmless because the record clearly reflected that the defendant "had actual knowledge of the consequences of his guilty plea" so "his rights cannot be said to have been substantially affected"). None of those cases suggests that there is a class of Rule 11 violations that is immune from conventional harmless error analysis. Other decisions applying Rule 11(h) to various fact situations include: United States v. Fentress, 792 F.2d 461, 466 (4th Cir. 1986) (failure to advise defendant of his exposure to a restitution order is harmless error, in view of the fact that the amount of restitution ordered was lower than the maximum fine for the offense, of which the defendant was advised); United States v. Van Buren, 804 F.2d 888, 891-892 (6th Cir. 1986) (trial court and prosecutor failed to state on the record the nature of the conspiracy to which a guilty plea was to be offered; in view of the complexity of the indictment and the court's failure to inquire into the defendant's understanding, the error could not be considered harmless); United States v. Theron, 849 F.2d 477 (10th Cir. 1988) (failure to advise defendant that he could withdraw plea if court failed to follow plea agreement's recommendation as to the appropriate sentence was not harmless error); United States v. McGeehan, 824 F.2d 677, 680 (8th Cir. 1987) (trial court's understatement of maximum sentence for offense was harmless error in view of fact that sentence imposed was less than that of which the defendant was advised), cert. denied, 108 S. Ct. 1017 (1988); United States v. Sanclemente-Bejarano, 861 F.2d 206, 210 (9th Cir. 1988) (same). /9/ The court of appeals indicated that Rule 11 would have been satisfied if the district court or the prosecutor had read the indictment in open court and respondent had then been given an opportunity to ask questions about the charge to which his plea was being offered. App., infra, 7a. However, the count to which respondent pleaded guilty read, in its entirety, as follows: Count 4 On or about August 2, 1987, in the Dallas Division of the Northern District of Texas, MARIO BERNAL and MIGUEL DIMAS, defendants, aided and abetted by each other, knowingly and intentionally did distribute to R. Tapia approximately one kilogram of cocaine, a schedule II narcotic drug controlled substance. A violation of Title 21, United States Code Section 841(a)(1) and Title 18, United States Code, Section 2. It is hard to imagine that reading this count would have added anything whatever to respondent's understanding of his offense, since it was virtually identical to the description of the elements of offense in the plea agreement. Respondent specifically admitted committing those elements. See pp. 4-5, supra. /10/ In Timmreck, the Court quoted with approval a dissent by then-Judge Stevens in United States v. Smith, 440 F.2d 521, 528-529 (7th Cir. 1971): Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea. APPENDIX