Pleas, plain language and precedent: applicability of Rules 11(f) and 31(e) to criminal forfeiture provisions.

• Author: Crawford, Angela
• Position: Supreme Court Review

1. INTRODUCTION

   In United States v. Libretti,(1) the United States Supreme Court held that the factual basis requirement of Rule 11(f) of the Federal Rules of Criminal Procedure does not apply to a forfeiture provision of a guilty plea. In addition, the Court clarified the standard for what constitutes an effective waiver of a defendant's Rule 31(e) right to a special jury verdict.(2)

   This Note examines the purposes of Rules 11(f) and 31(e) and the significant role that each plays in securing the rights of criminal defendants during the pleading process. This Note further analyzes the Court's holding regarding the applicability of both rules to a plea agreement containing a forfeiture provision. This Note then argues that the Court properly concluded that the plain language, precedents and congressional intent show that neither Rule is applicable to a forfeiture provision included in a plea agreement. However, by summarily dismissing the defendant's claims that forfeiture requires a heightened procedural standard, the Supreme Court failed to adequately address the policy considerations behind forfeiture provisions contained in plea agreements.(3)

   2. BACKGROUND

   1. FEDERAL RULE OF CRIMINAL PROCEDURE 11 (F)

   Rule 11 (f) of the Federal Rules of Criminal Procedure provides that "[n]otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea."(4) The Federal Rules Committee enacted Rule 11 primarily to codify existing common law on pleas of guilty, not guilty, and nolo contendere(5) and to reiterate the court's duty to "ascertain that [a] plea of guilty is intelligently and voluntarily made."(6) Reiterating the original purpose of Rule 11 to ensure that defendants' pleas are intelligent and voluntary, the 1966 Amendment adopting section (f) provides general guidelines as to what measures a court should take in order to determine the accuracy of a defendant's plea.(7) Neither the Federal Rules Committee nor the Supreme Court has made any substantive changes to Rule 11 (f) since its adoption through the 1966 Amendment.(8)

1. The Supreme Court's Interpretation of Rule 11(f)

   In Libretti, the Supreme Court interpreted the applicability of Rule 11 (f) to a guilty plea containing a criminal forfeiture provision.(9) However, in examining the applicability of Rule 11 (f) to guilty pleas in general, the Supreme Court has emphasized the important role that Rule 11 (f) plays in ensuring that defendants make knowing, voluntary and intelligent guilty pleas.(10) Shortly after the 1966 Amendment to Rule 11, the Court examined Rule 11 in the context of a plea agreement made by a defendant charged with tax evasion.(11) Emphasizing the serious nature of a guilty plea, the Court explained that a guilty plea is "an admission of all the elements of a formal criminal charge" and by pleading guilty a defendant "waives several constitutional rights."(12) The Court further held that the consequences of a trial court's failure to comply with provisions of Rule 11 were that the reviewing court could set aside the plea, and remand the case in order to provide the defendant with an opportunity to "plead anew."(13)

   The Supreme Court has historically recognized the important role that Rule 11 (f) plays in protecting the rights of criminal defendants who plead guilty.(14) Thus, the source of contention in Libretti is determining what a court should consider as being part of a "plea of guilty."(15) The Court has construed a "plea of guilty" as containing two components: the first component consists of "a defendant's admission of guilt of a substantive criminal offense as charged in an indictment" and the second includes a defendant's "waiver of the right to a jury determination on that charge."(16) One of the disputed Rule 11 (f) issues that surfaced in Libretti is whether a defendant's stipulated forfeiture of assets contained in a guilty plea constitutes a "substantive criminal offense" and whether it must be subjected to a factual basis inquiry.(17) The Court in Libretti noted that its "precedents have . . . characterized criminal forfeiture as an aspect of punishment imposed following conviction of a substantive criminal offense."(18)

2. The Split in the Circuits

   Although Libretti presents the first occasion in which the Supreme Court has interpreted Rule 11 (f) in the context of a forfeiture provision, several circuit courts previously considered the issue.(19) Before the Libretti decision, circuit courts were divided as to whether a forfeiture provision contained in a plea agreement fell within the ambit of Rule 11 (f).(20) The Court therefore granted certiorari primarily to resolve this dispute among the circuits.(21) Circuit courts have focused on a combination of policy arguments and statutory interpretations of relevant criminal statutes in order to justify their jurisdictions' view on the applicability of Rule 11 (f) to a forfeiture provision contained in a plea agreement.

   For example, in United States v. Roberts,(22) the Seventh Circuit examined the accuracy of a defendant's plea of guilty to violations of the Racketeering Influenced and Corrupt Organizations Act (RICO).(23) In Roberts, the defendant pled guilty to counts of mail fraud and RICO violations.(24) The plea agreement contained a provision requiring the defendant to forfeit, inter alia, a $30,000 automobile presumably on the basis that the defendant purchased the automobile with assets of the illegal enterprise.(25) On appeal, the defendant argued that because the automobile was a personal asset and he paid most of the purchase price before the RICO violations, "the automobile falls outside the forfeiture provisions of the RICO statute."(26) Citing Rule 11 (f), the court concluded that in determining the accuracy of a plea agreement containing a forfeiture provision, the trial court has a "special burden" to ensure that a factual basis for the plea exists.(27) The court emphasized that "[t]he mere fact that the defendant has agreed that an item is forfeitable, in a plea agreement, does not make it so . . ."(28) Thus, the court reasoned, "[a] defendant's waiver of his right to trial cannot be said to have a factual basis, where a forfeiture of property is involved, unless the property is in fact subject to forfeiture . . . . [T]he trial court must satisfy itself that this condition is satisfied."(29)

   In addition, the Fourth Circuit, in United States v. Reckmeyer,(30) also concluded that Rule 11 (f) requires a trial court to ensure that a factual basis for forfeiture exists.(31) The court agreed with the Seventh Circuit's position in Roberts that in order to comply with Rule 11 (f), the court must base its decision to institute a forfeiture action on something more than a defendant's mere agreement that assets are forfeitable.(32) Nonetheless, the Fourth Circuit ultimately held that the trial court record indicated that a factual basis existed for the forfeiture of the defendant's assets,(33) and that evidence presented at trial was sufficient to satisfy the Rule 11 (f) factual basis requirement.(34)

   Finally, in United States v. Crumbley,(35) the Eleventh Circuit "assum[ed] without deciding that Rule 11 (f) has some application to the forfeiture part of a plea agreement."(36) In Crumbley, the defendant pled guilty to a state murder charge and federal charges of engaging in a continuing criminal enterprise and filing a false tax return; he thus agreed to forfeit certain assets under 21 U.S.C. [sections] 853.(37) In exchange, the state agreed not to seek the death penalty and the federal prosecutor recommended dismissal of the federal counts.(38) The government conceded that a forfeiture provision of a plea agreement "requires proof of a factual basis for the forfeiture beyond a mere consent to it in the agreement."(39) Nonetheless, the court concluded that neither Roberts nor Reckmeyer held that Rule 11 (f) "requires the same level of proof of the factual basis for a forfeiture as with the factual basis for guilt."(40) Moreover, the court determined that the policy rationales requiring a court to determine a factual basis for guilt are "far more compelling than those underlying the need of a factual basis for property forfeiture."(41) The court held that based on the evidence in the record before the district court, the district court properly concluded that a factual basis existed for forfeiture of the defendant's assets.(42)

   Conversely, other circuit courts have held that Rule 11 (f) does not require a trial court to determine whether a factual basis exists for a defendant's guilty plea. In United States v. Bachynsky,(43) the Fifth Circuit concluded that the Rule 11 (f) factual basis requirement does not apply to a forfeiture provision of a guilty plea agreement.(44) The defendant in Bachynsky pled guilty to RICO and tax fraud counts and agreed to forfeit certain assets.(45) The court held that in order to satisfy the factual basis requirement of Rule 11 (f), a prosecutor must "present evidence to the subjective satisfaction of the district court which indicates that a defendant actually committed the offense to which he is pleading guilty."(46) The court determined that the witness testimony, the plea agreement, the indictment and statements by the defendant satisfied this requirement.(47) Although the court acknowledged the holding in Reckmeyer that a defendant's agreement to forfeiture "does not make it so," the court emphasized the fact that a "defendant's affirmative answers to the court's questions at the plea hearing . . . impose a `heavy burden' to overcome."(48) The court also noted that the defendant neither objected to the forfeiture provision at sentencing, nor provided evidence to contradict the government's claim that all specifically listed assets were subject to forfeiture.(49)

   In United States v. Boatner,(50) the...