Opinion
No. 2:05-CR-012-J(01).
April 11, 2005
ORDER
On the 11th day of April 2005, the above named defendant and his attorney appeared with the Assistant United States Attorney in open court for arraignment pursuant to Rule 11, Federal Rules of Criminal Procedure and the other applicable provisions of such Rules and the law.
At said hearing the court did first address the defendant personally and informed the defendant of the nature of the charge, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law. He was further advised that he had a right to be represented by an attorney at every stage of the proceedings against him and if he had no attorney, one would be appointed to represent him. The court further advised the defendant of his right to plead not guilty or to persist in that plea if it had already been made, and that he has a right to be tried by a jury with the assistance of counsel, the right to confront and cross-examine witnesses against him and that he could not be compelled to incriminate himself and to testify at said trial unless he voluntarily elected to do so. Also the defendant was advised that if he did plead guilty ornolo contendere that there would not be a trial of any kind and that by pleading guilty or nolo contendere he was waiving the right to a trial as well as the right to confront and cross-examine witnesses.
The court explained to the defendant that if he pled guilty ornolo contendere that the court would ask him questions about the offense to which he so pled and that if he answers these questions under oath, on the record, and in the presence of counsel, the answers may later be used against the defendant in a prosecution for perjury or false statement.
All attorneys and the defendant were further advised that it was permissible to engage in plea bargaining discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to the charged offense or to a lesser or related offense, the attorney for the government would do the following:
(a) Move for dismissal of the charges;
(b) Make a recommendation or agree not to oppose the defendant's request for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court or
(c) Agree that a specific sentence is the appropriate disposition of the case.
They were further advised that the court would not participate in the discussions but if an agreement was reached it would be required to be disclosed in open court, and that the court might accept or reject the agreement or defer decision thereon until the court had an opportunity to consider the presentence report. Further the defendant was advised that if the Court accepts the agreement, an appropriate order will be entered but if the court rejects the agreement the parties would be informed on the record that the court was not bound by the plea agreement and the defendant would then be afforded an opportunity to withdraw his plea, and that if he persists in his plea of guilty or nolo contendere that the disposition of the case may be less favorable to the defendant than had been contemplated by the plea agreement.
The defendant was then placed under oath and entered his plea of Guilty or nolo contendere to Count(s) two of the charge. Further, the court inquired into the factual basis for the charge and the plea of the defendant to said charge and is satisfied that there is a factual basis for the charges and the defendant's plea thereto.
After addressing the defendant personally and hearing his answers under oath, the court has determined that the plea so entered was made voluntarily by the defendant and before he entered the plea, the defendant had an understanding of the nature of the charge, an understanding of the consequences of his plea, and that said plea was made with the defendant's knowledge of any mandatory minimum penalty as well as knowledge of the maximum penalty that could be imposed as a result of his plea.
The court further finds and determines that there was no plea agreement between the defendant, his attorney, or anyone representing the defendant and any representatives of the United States of America except see filed written plea agreement.
Accordingly, the plea of the defendant that he is guilty as to Count (s) two of said (Indictment — Information) is accepted and entered and the cause is continued for sentencing pending the receipt of the probation officer's presentence report.