Annotated Plea Litany (Judge Winmill)

ANNOTATED PLEA LITA NY FOR PLEAS TAKEN BY FEDERAL DISTRICT COURT JUDGE B. LYNN WINMILL Annotated with Supreme Court, 9th Circuit, and statutory authority Last update -- 9/19/00 Plea Litany -- page 1 <<<<<<<<<********>>>>>>>>>>>>> 2 PLEA LIT ANY For Defendant ________________ A. SWEARI NG OF DEFENDANT [Interpreter sworn?] 1. _____________ , the court is informed that you wish to change the plea 1you have previously entered to the Indictment. Is that correct? 2. Before accepting your guilty plea, there are a number of questions I will ask you to assure that it is a valid plea. If you do not understand any of the questions or at any time wish to consult with your attorney, please say so since it is essential to a valid plea that you understand each question before you answer. 2 3. The Clerk will please swear the defendant. 4. Do you understand that, having been sworn, your answers to my questions 1 Trial judge acted improperly in announcing at opening of plea hearing that he would not, after thatday, accept a plea on fewer than all counts of indictment. U.S. v. Anderson, 993 F.2d 1435 (9th Cir. 1993). 2 An oath is not required under Fed.R.C rim. P. 11 but is strongly recommended to avoid later contentionin proceeding under 28 U.S.C . 2255 that Defendant did not answer truthfully because he/she was not sworn.Plea Litany -- page 2 <<<<<<<<<********>>>>>>>>>>>>> 3will be subject to the penalties of perjury or making a false statement if youdo not answer truthfully?B. COMPETENCE OF DEFEND ANT TO PLEAD.1. ________________, how old are you?2. How far did you go in school?3. Have you taken any drugs, medicine or pills or consumed any alcoholicbeverages in the past 24 hours?4. Do you understand what is happening today? Tell me your understandingof the purpose of these proceedings.5. [to defense counsel or prosecutor] Do either of you have any doubt as to the defendants competence to plead at this time?Plea Litany -- page 3<<<<<<<<<********>>>>>>>>>>>>> 46. Based on this record, it is the finding of this court that the defendant is 3competent to enter a plea this day. C. ADEQUACY OF REPRESE NTATION 1. Have you had adequate time to discuss your case with your attorney?2. Are you satisfied with your attorneys representation?D. SENTENCING GUIDELINES 1. This case is covered by the Sentencing Guidelines. Has your attorneydiscussed the Sentencing Guidelines with you? 2. [Not applicable for Rule 11(e)(1)(C) Plea Agreement] Under the 3 Defendant is competent to plead guilty only if he has capacity for reasoned choice among alternatives. U. S. v. Myers, 993 F.2d 713 (9th Cir. 1993). Standard of competence to plead guilty is the same as the standardfor competence to waive counsel. Moran v. Godinez, 57 F.3d 690 (9th Cir. 1994), cert. denied, 116 S.Ct. 479(1995). Plea Litany -- page 4 <<<<<<<<<********>>>>>>>>>>>>> 5Sentencing Guidelines, the sentencing judge must select a sentence from withinthe guideline range. If, however, your case presents unusual features, the lawpermits the judge to depart from the guidelines and impose a sentence eitherabove or below the recommended guideline range. Although most sentenceswill be imposed within the guideline range, there is no guarantee of this. Doyou understand this?3. Also under the guidelines, parole has been abolished. Thus, ifimprisonment is ordered in your case, the sentence imposed by the court willbe the sentence you will serve, less good time credit if you earn it. Do youunderstand this?4. Under the guidelines, the court is required to take into account allconduct, circumstances and injuries associated with your criminal conduct,whether or not this conduct is charged by the Government in the crime towhich you are pleading guilty. In other words, there is no limitation placedon the information the court can consider at the time of sentencing concerningPlea Litany -- page 5<<<<<<<<<********>>>>>>>>>>>>> 6the background, character and conduct of a person convicted of a crime so long as the information is reliable. Thus, the court will consider all relevant 4conduct at the time of sentencing. Do you understand this? 5. Do you understand that if you cooperate with the Government and provide substantial assistance to the investigating authorities, this may permit the court (if it chooses to do so) upon the Governments request to impose a sentence 5 below the recommended range? 6. Do you understand that under the guidelines, a United States Probation Officer will be assigned to conduct a thorough presentence investigation to develop all relevant facts concerning your criminal conduct? 7. Do you understand that if you do not tell the truth to the Probation Officer, this could increase or enhance your punishment under the guidelines? 4 See Sentencing Guidelines 1B1.3; U.S. v. Hahn, 960 F.2d 903 (9th Cir. 1992). 5 See Sentencing Guidelines 5K1.1. Plea Litany -- page 6 <<<<<<<<<********>>>>>>>>>>>>> 76 E. PRIOR OFFENSES [ Skip this entire section and proceed to Section F (Defendants Right ToTrial and Nature Thereof) if you have a Rule 11(e)(1)(C) Plea Agreement]1. Do you understand that under the sentencing guidelines, if you have had acriminal conviction within the past 15 years, such convictions may serve to 7increase your sentence in this case? 2. Do you understand that under the guidelines, if you committed the presentoffense while on probation or supervised release, this may serve to increase 8 your sentence in this case? 3. Do you understand that if you committed the present offense (offenses) less 6 See Sentencing Guidelines 2J1.2(b)(2). 7 See Sentencing Guidelines 4A1.2(e)(1). 8 See Sentencing Guidelines 4A1.1(d). Plea Litany -- page 7 <<<<<<<<<********>>>>>>>>>>>>> 8than two years after being released from prison, this may serve to increase 9 or enhance your sentence under the guidelines? 4. Do you understand that if you committed the present offense(s) as part of a pattern of criminal conduct from which you derived a substantial portion of your income, that this may serve to increase your sentence under the 10 guidelines? 5. Do you understand that if this offense is a crime of violence or a drug trafficking offense, and that if you have two prior felony convictions of either a crime of violence or a drug trafficking offense, you could be sentenced as a 11career offender which could greatly enhance the punishment you receive? F. DEFENDANTS RIGHT TO TRIAL AND NAT URE THEREOF 9 See Sentencing Guidelines 4A1.1(e). 10 See Sentencing Guidelines 4B1.3 implem