CURTIS DRUMMOND, PETITIONER V. UNITED STATES OF AMERICA No. 90-6090 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 15-28) is reported at 903 F.2d 1171. The opinion of the district court (Pet. App. 30-37) is unreported. The magistrate's proposed findings of fact and recommendations (Pet. App. 38-44) are also unreported. JURISDICTION The judgment of the court of appeals was entered on May 14, 1990. A petition for rehearing was denied on July 31, 1990 (Pet. App. 45). The petition for a writ of certiorari was filed on October 29, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether harmless error principles apply to violations of Fed. R. Crim. P. 32(a)(2), which requires the district court to advise a convicted defendant of his appellate rights, when the defendant was otherwise aware of his right to appeal, but elected not to do so. STATEMENT 1. On October 6, 1982, after a jury trial in the United States District Court for the Western District of Arkansas, petitioner was convicted of manufacturing and possessing marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to a term of five years' imprisonment, all but six months of which was suspended in favor of probation. Petitioner did not appeal. Pet. App. 30; Gov't C.A. App. 3. In 1985, while petitioner was on probation, he was again convicted on drug charges. The court sentenced petitioner to a term of five years' imprisonment as a result of his 1985 conviction, and the court of appeals affirmed. United States v. Short, 805 F.2d 335 (8th Cir. 1986). In addition, the district court revoked petitioner's probation and sentenced him to a one-year term of imprisonment for his 1982 conviction, to be served consecutively to the sentence imposed as a result of his 1985 conviction. Pet. App. 30. 2. In early 1987, petitioner requested a transcript of his 1982 trial from the court reporter. He was told that tapes of that trial were no longer available. On May 24, 1987, petitioner filed a motion in the 1985 case under Rule 35, Fed. R. Crim. P., seeking a reduction of his sentence in that case. Judge Waters, who had presided over both that trial and the 1982 trial, denied the motion. Pet. App. 31. The following year, petitioner filed a motion with the district court to obtain a transcript of the 1982 trial, and again he was informed that no transcript of that trial was available. Petitioner subsequently filed a motion pursuant to 28 U.S.C. 2255 seeking to vacate his 1982 sentence. He sought relief on the ground that the district court had violated Fed. R. Crim. P. 32(a)(2) by failing to advise him of his right to appeal his conviction. /1/ At that point, Judge Waters recused himself and the case was assigned to another judge. The district court held an evidentiary hearing on petitioner's motion. Petitioner testified at the hearing, as did Gene Wahl and William Murphy, the two attorneys who had represented him during the 1982 proceedings. Petitioner denied that either his attorneys or the trial judge had ever informed him that he had a right to appeal his conviction. Tr. 9-10, 34, 40-41, 50. He further asserted that he would have appealed his 1982 conviction had he been aware of his right to do so. Tr. 28-29. Petitioner's testimony was contradicted by that of his former attorneys. Trial counsel Wahl testified that he had discussed the matter of appeal with petitioner, both after petitioner's conviction and after sentencing. Tr. 77-79, 104-105, 109, 123. Wahl stated that he explained the legal requirements for a successful appeal and discussed the advisability of an appeal in light of the minimal sentence that petitioner received. Tr. 77-79. Wahl also produced timecards and other memoranda to support his testimony that he had repeatedly discussed the matter with petitioner and had drafted a notice of appeal for filing, see Tr. 84-85, should petitioner wish to pursue his appellate remedies. Attorney Murphy had not represented petitioner at the 1982 trial, but he had been present during some of the post-conviction discussions, and he assumed primary responsibility for petitioner's post-conviction representation. Tr. 83-84. Wahl testified that at the conclusion of a lengthy meeting following petitioner's conviction on November 16, 1982, petitioner told Wahl that "(h)e was going to discuss it (a possible appeal) with Mr. Murphy." Tr. 83. On November 24, 1982, Wahl received a telephone message from Murphy stating that there was "no need for any appeal." Tr. 87-88. Murphy could not recall any specific discussions regarding an appeal; he testified, however, that he "felt that (petitioner) had a very good sentence" and that he was "sure" that Wahl's memorandum was correct in relating that Murphy had told Wahl that no appeal would be necessary. Tr. 131. /2/ 2. At the conclusion of the evidentiary hearing, the magistrate found that petitioner had been advised of his appellate rights, but had deliberately elected not to appeal because of his probated sentence. Pet. App. 43. As the magistrate specifically stated, ibid.: (B)ased on the hearing testimony of Wahl and Murphy, together with the exhibits offered into evidence, we find that (petitioner) was timely and adequately advised of his appeal rights by both attorneys and that he voluntarily and understandably waived his appeal rights and determined to begin in serving a "good" sentence. We find (petitioner's) testimony to the contrary to be devoid of credibility. We conclude that (petitioner's) decision was deliberate and his failure to appeal operates as a waiver of his right to bring this collateral attack upon his conviction. 4. Like the magistrate, the district court credited Wahl's corroborated testimony and found that petitioner "did receive actual notice of his appeal rights." Pet. App. 33. The district court found, however, that Judge Waters had not notified petitioner of his appellate rights either at the sentencing hearing or at the conclusion of the trial. Pet. App. 33-34. The district court therefore found that Rule 32(a)(2) had been violated: "where the (trial) court had not advised the defendant of his right to appeal, the defendant's awareness of the right through other sources (such as counsel) is immaterial." Pet. App. 34. Turning to the question of relief, the district court noted that a Rule 32(a)(2) violation is usually remedied by a remand for resentencing, at which time the defendant may be advised of and exercise his right of appeal. Pet. App. 36. Here, however, a transcript of the 1982 trial was no longer available, and petitioner was now represented by different counsel than those who represented him at trial. Because, in the district court's view, this situation was sufficient to mandate reversal even absent any showing of specific prejudice, the court vacated petitioner's conviction and ordered a new trial. Pet. App. 36-37. 5. On the government's appeal, the court of appeals reversed the order granting collateral relief and reinstated petitioner's conviction. Pet. App. 15-28. As the court of appeals stated, both the harmless error rule of Fed. R. Crim. P. 52(a) and recent decisions of this Court counsel that procedural violations should be disregarded if they do not affect an accused's substantial rights. Pet. App. 17-20. The court therefore declined to adopt a per se rule of reversal for violations of Rule 32(a)(2). Pet. App. 20. As the court stated, the "high social costs" of "disturbing the finality of a judgment by reinstating a defendant's right to appeal * * * are acceptable only when a defendant has actually been deprived of the right to appeal." Ibid. No such deprivation occurred here. As the court of appeals explained, there was "clear and convincing" evidence in the record that petitioner "knew of his right to appeal" during the 1982 proceedings. Pet App. 21. In view of that evidence and the district court's finding to that effect, the court of appeals held that "the sentencing court's violation of Rule 32(a)(2) did not prejudice (petitioner's) right to appeal and must be disregarded." Ibid. Judge Heaney dissented. In his view, Rule 32(a)(2) was "adopted to eliminate litigation over whether the defendant had been apprised of his appeal rights by his attorney" -- a purpose that would not be advanced by "case-by-case evaluation of whether the defendant learned of his appeal rights through other means." Pet. App. 22, 27. Believing that application of a harmless error analysis would therefore "subvert the purposes of the Rule," Judge Heaney concluded that, without regard to the existence of prejudice, all violations of Rule 32(a)(2) require automatic reversal. Ibid. ARGUMENT Petitioner does not challenge the factual findings made below that his attorneys informed him of his appellate rights and that he thereafter elected to forgo an appeal in light of the favorable sentence he had received. Rather, petitioner contends that without regard to his actual knowledge of his rights, any violation of the notice requirement of Rule 32(a)(2) mandates vacation of a defendant's sentence without inquiry as to whether the violation prejudiced him. There is no merit to petitioner's claim. a. Rule 52(a), Fed. R. Crim. P., provides that "(a)ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Construing that language, this Court has refused to endorse per se rules of reversal for a variety of procedural errors that have not resulted in actual prejudice to the accused. See Bank of Nova Scotia v. United States, 487 U.S. 250, 254-257 (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). /3/ For example, in Lane, the Court flatly rejected the notion that procedural errors can be categorically predetermined as "harmless" or "prejudicial." 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 a reversal of the conviction. That kind of inquiry requires a review of the entire record. Petitioner to the contrary, there is no reason to disregard harmless error analysis simply because Rule 32(a)(2) is a "bright-line" notification provision designed to foster judicial economy by eliminating the need for a case-by-case inquiry into a convicted defendant's awareness of his appellate rights. The fact that Rule 32 is designed to avoid a time-consuming and factually difficult inquiry into whether defendants have been advised of their right to appeal in each case does not mean that on those rare occasions in which the Rule is not followed the consequence must be automatic reversal. If a court can conclude, as in this case, that the purposes the Rule was intended to serve are served in a particular case, there is no reason to grant any relief at all; that is particularly true in a case such as this one, where the district court granted a new trial even though the violation of Rule 32 had nothing to do with the validity of the conviction. A closely analogous situation is one that arises from time to time under Fed. R. Crim. P. 11, which obligates district judges personally to address criminal defendants regarding a wide range of matters pertinent to the entry of guilty pleas. The purpose of the Rule is to avoid the need for a case-by-case inquiry into whether a defendant's guilty plea was knowing and intelligent. Nonetheless, it is clear that when the Rule is violated, the violations are subject to harmless error analysis. In United States v. Timmreck, 441 U.S. 780, 784 (1979), this Court held that a defendant's substantial rights were not prejudiced as a result of a Rule 11 violation because the defendant did not show "that he was actually unaware of the special parole term" about which the trial court had neglected to inform him. The courts of appeals have similarly refused to disturb plea-based convictions because of the failure of trail judges to address defendants personally in some respect or another, where the record shows that the accused was independently aware of the neglected topic. See, e.g. United States v. Buckley, 847 F.2d 991, 1000 n.6 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989) (failure of district court "personally" to read indictment to the defendant held harmless where defendant discussed charges with counsel); United States v. Kearney, 750 F.2d 787, 790-791 (9th Cir. 1984) (magistrate violated Rule 11 by failing to inform defendant of minimum and maximum penalties to which he was subject, but error held harmless because "it is clear from the record that (defendant) * * * had actual knowledge of the sentencing consequences of his guilty plea"). As the court below correctly held, the same analysis is applicable here. Not only has petitioner failed to demonstrate that he lacked awareness of his appellate rights following his 1982 conviction, but the district court found that petitioner was actually on notice of his appellate rights as a result of his consultations with counsel. In these circumstances, the essential purpose of Rule 32(a)(2) -- to ensure that a convicted defendant has knowledge of his right to seek appellate relief -- has been satisfied. Although Rule 32(a)(2) was technically violated because petitioner received knowledge of his right to appeal from counsel rather than the court, it is clear from the record that petitioner's substantial rights were not affected and that the procedural error was therefore harmless. b. As petitioner notes, several courts of appeals have held that violations of Rule 32(a)(2) constitute per se reversible error, even where, as here, the record shows that a convicted defendant was actually aware of his appellate rights from sources other than the trial judge. See Paige v. United States, 443 F.2d 781, 782 (4th Cir. 1971) (technical non-compliance required reversal); Nance v. United States, 422 F.2d 590 (7th Cir. 1970) (actual knowledge of rights by defendant not sufficient if Rule 32 was violated); United States v. Deans, 436 F.2d 596, 599 n.3 (3d Cir. 1971) (notification of rights by counsel insufficient); United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir. 1970) (accord). See also United States v. Smith, 387 F.2d 268, 270 (6th Cir. 1967) (per se reversible error when, under precursor to Rule 32(a)(2), court failed to advise pro se defendant of his appellate rights). The asserted conflict among the Circuits does not justify review by this Court. To begin with, at least two of the above decisions -- Benthien and Deans -- relied on this Court's decision in McCarthy v. United States, 394 U.S. 459 (1969), in which the Court held that a trial court's failure to comply with the notice requirements of Rule 11 was per se reversible error. As the court below correctly observed, however, "reliance on the automatic reversal rule of McCarthy seriously undermines (their) per se approach to (Rule) 32(a)(2) violations" since the 1983 amendment to Rule 11 eliminated McCarthy's "extreme sanction of automatic reversal" by making "clear that the harmless error rule of Rule 52(a) is applicable to Rule 11." Pet. App. 17-18, quoting Notes of Advisory Committee on Rules, 1983 Amendment. Cf. United States v. Timmreck, supra. Moreover, as the court below further observed, the cases relied upon by petitioner "are problematic because they fail to discuss the applicability of Fed. R. Crim. P. 52(a) which, if germane, required a reviewing court to employ a harmless error analysis when reviewing errors committed by a trial court." Pet. App. 18. Moreover, the cases relied upon by petitioner all pre-date this Court's opinions in Bank of Nova Scotia, Mechanik, Lane, and Hasting, in which this Court eschewed rules of automatic reversal in favor of a case-by-case determination of whether a particular procedural violation has prejudiced the defendant. In light of these factors, we doubt the continuing viability of the cases upon which petitioner bases his claim of conflict. Moreover, the issue presented here does not arise with great frequency. Because the decision in this case seems clearly correct in light of this Court's recent decisions applying harmless error principles, we believe that it would be appropriate for the Court to await further developments in this area to determine whether any court continues to follow the somewhat dated line of cases applying a rule of per se reversal to violations of Rule 32(a)(2). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General ROBERT J. ERICKSON Attorney DECEMBER 1990 /1/ Rule 32(a)(2) provides, in pertinent part: After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the right to appeal, including any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. /2/ In addition to that testimony, Judge Waters submitted an affidavit, stating: Since these proceedings occurred so long ago, and since I have been involved in numerous criminal matters since such time, I can only state what my usual practice was. It was my practice during that time to, at the sentencing hearing, advise convicted defendants of their right to appeal as required by Rule 32. As to whether I advised defendant Drummond of his right to appeal at the trial after the jury verdict was returned, I simply cannot recall, one way or the other. /3/ This Court's decision in Rodriquez v. United States, 395 U.S. 327 (1969), is not to the contrary. Rodriquez dealt with the question whether a defendant who was deprived of his right to appeal because of his counsel's failure to file a timely notice of appeal was required to "show some likelihood of success on appeal" in order avoid characterization of the error as harmless. Id. at 330. The Court merely held that the likelihood of success was irrelevant in determining whether a defendant had been harmed by the deprivation of his right to appeal. Unlike here, there was no finding in Rodriquez that the defendant had actual knowledge of his right to appeal and elected not to pursue it. The Court therefore had no occasion to consider whether a violation of Rule 32(a)(2), which did not even exist in its present form at the time Rodriquez was decided, could constitute harmless error in such circumstances.