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CRM 500-999

623. Pleas—Federal 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 JM 9-16.001]