green
Positive treatment
24.4 score
G Cite
cited 7× by 5 distinct cases, last quoted 1999 · 4 courts ·
…matters of reality, and not mere ritual, should be controlling.
at p. 17
✓
cited 4× by 4 distinct cases, last quoted 2004 · 3 courts ·
…mjatters of reality, and not mere ritual, should be controlling.
at p. 17
✓
Treatment trajectory · 1968 → 2026 · click a year to view as-of
1968
1997
2026
Top citers, strongest first. 27 distinct citers.
How cited ↗
cited
Cited "but see"
Edward K. Devlin v. United States
But see Kennedy v. United States, 397 F.2d 16 (6th Cir. 1968); Scott v. United States, 349 F.2d 641 (6th Cir. 1965).
cited
Cited as authority (rule)
United States v. Derrick Terry
But this court has routinely confirmed that, in a plea colloquy, “[mjatters of reality, not mere ritual, should be controlling.” Kennedy v. United States, 397 F.2d 16, 17 (6th Cir.1968).
discussed
Cited as authority (rule)
Spiridigliozzi v. United States
Over 30 years ago, this Court noted that, as regards the procedure followed by district courts during Rule 11 criminal hearings, “[mjatters of reality, and not mere ritual, should be controlling.” Kennedy v. United States, 397 F.2d 16, 17 (6th Cir.1968); see McCarthy, 394 U.S. at 467 n. 20 (quoting this language with approval).
discussed
Cited as authority (rule)
United States v. Miller
In carrying out this task, a district court is not required to make a “ritualized]” listing of the elements of a crime, see McCarthy v. United States, 394 U.S. 459 , 467 n. 20, 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir.1968)), or satisfy other formalistic requirements, as long as “the court determined] by some means that the defendant actually understands the nature of the charges.” United States v. Maher, 108 F.3d 1513, 1521 (2d Cir.1997).
cited
Cited as authority (rule)
State v. Morrissette
In such inquiries, “[m]atters of reality, and not mere ritual, should be controlling.” Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968).
discussed
Cited as authority (rule)
Rachuig v. State
As the Supreme Court noted in McCarthy , “The nature of the inquiry required by [the admonishment statute] must necessarily vary from case to case, and, therefore, we do not establish any general guidelines other than those expressed in the Rule itself.” “In all such inquiries, ‘[m]atters of reality, and not mere ritual, should be controlling.’ ” McCarthy, 394 U.S. at 467 n. 20, 89 S.Ct. at 1171-72 n. 20 (quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir.1968)).
discussed
Cited as authority (rule)
United States v. Muhannad Musa
In McCarthy , the Court recognized that each case presents its own facts,, and as a consequence declined to delineate a specific procedure for district judges to follow beyond the language of the rule itself, noting that “[i]n all such inquiries, '[mjatters of reality, and not mere ritual, should be controlling.’ ” Id. at 467, n. 20 , 89 S.Ct. at 1171 - *1304 72, n. 20, quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir.1968), cert. denied, 394 U.S. 1018 , 89 S.Ct. 1636 , 23 L.Ed.2d 43 (1969).
discussed
Cited as authority (rule)
State v. Whitney
In all such inquiries, ‘[m]atters of reality, and not mere ritual, should be controlling.’” McCarthy v. United States, 394 U.S. 459 , 467 n.20 (1969) (quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968)).
discussed
Cited as authority (rule)
Morrison v. United States
Necessarily, when reviewing the conduct of the trial court, “matters of reality and not mere ritual, should be controlling.” McClurkin, supra, 472 A.2d at 1359 (citing McCarthy, supra, 394 U.S. at 467 -68 n. 20, 89 S.Ct. at 1171 -72 n. 20 (citing Kennedy v. United States, 397 F.2d 16, 17 (6th Cir.1968))).
discussed
Cited as authority (rule)
State v. Gabert
In a footnote, the Supreme Court stated: The nature of the inquiry required by Rule 11 must necessarily vary from case to case, and, therefore, we do not establish any general guidelines other than those expressed in the Rule itself____In all such inquiries, “[m]atters of reality, and not mere ritual, should be controlling.” Kennedy v. United States, 397 F. 2d 16, 17 (C.
discussed
Cited as authority (rule)
United States v. Dennis Ray Bell
It is established that when reviewing a Rule 11 proceeding, “ ‘[mjatters of reality, and not mere ritual, should be controlling.’ ” McCarthy, 394 U.S. at 468 n. 20, 89 S.Ct. at 1171 n. 20 (quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir.1968), ce rt. denied, 394 U.S. 1018 , 89 S.Ct. 1636 , 23 L.Ed.2d 43 (1969)).
cited
Cited as authority (rule)
State v. James
Ed. 2d 418 (1969), quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968).
discussed
Cited as authority (rule)
McClurkin v. United States
As the Court suggested in McCarthy , when a reviewing court evaluates the conduct of a Rule 11 inquiry by a trial court, “ ‘[m]atters of reality, and not mere ritual, should be controlling.’ ” McCarthy, supra, 394 U.S. at 467 -68 n. 20, 89 S.Ct. at 1171 -72 n. 20 (citing Kennedy v. United States, 397 F.2d 16, 17 (6th Cir.1968), cert. denied, 394 U.S. 1018 , 89 S.Ct. 1637 , 23 L.Ed.2d 43 (1969)). 16 We have already addressed, in our discussion of Henderson, those “matters of reality” as they bore upon appellant’s understanding of the nature of the offense of second-degree murder.
discussed
Cited as authority (rule)
State v. Shockley
(2×)
Ed. 2d 418 (1969), quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968); see Arizona v. Jackson, 14 Ariz. App. 594, 595 , 485 P.2d 583 (1971); Silverberg v. Warden, 7 Md.
discussed
Cited as authority (rule)
Wabasha v. State
(2×)
In all such inquiries, "[m]atters of reality, and not mere ritual, should be controlling." (citing Kennedy v. United States, 397 F.2d 16, 17 (C.A. 6th Cir. 1968)).
discussed
Cited as authority (rule)
United States v. Eugene William Conrad
Here, as in McCarthy, “ ‘[mjatters of reality, and not mere ritual, should be controlling.’ ” 394 U.S. at 468 n.20, 89 S.Ct. at 1171 n.20, quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968).
discussed
Cited as authority (rule)
United States v. Johnnie Masthers
(2×)
Cf., Machibroda v. United States, supra, n. 26 50 See, e. g., United States v. Collier, supra, n. 41 ; Hansford v. United States, supra, n. 25; Floyd v. United States, supra, n. 34; Bostic v. United States, supra, n. 41; Taylor v. United States, 282 F.2d 16 (8th Cir. 1960); Smith v. United States, 267 F.2d 210 (9th Cir. 1959) 51 Supra, n. 7 52 McCarthy v. United States, supra, n. 27, 394 U.S. at 468-9, n. 20 , 89 S.Ct. at 1171, 22 L.Ed.2d at 426 , citing Kennedy v. United States, 397 F.2d 16, 17 (6th Cir.), cert. denied, 394 U.S. 1018 , 89 S.Ct. 1636 , 23 L.Ed.2d 43 (1969).
discussed
Cited as authority (rule)
John Davis v. United States of America, Noah Alldredge, Warden, U. S. Penitentiary, Lewisburg, Pennsylvania
In McCarthy, 394 U.S. at 467 n. 20, 89 S.Ct. at 1171, the Supreme Court noted that the nature of the inquiry required by Rule 11 must necessarily vary from case to case and that “‘[m]atters of reality, and not mere ritual, should be controlling.’ Kennedy v. United States, 397 F.2d 16, 17 (C.A. 6th Cir. 1968).” Although we suggest that in the future the trial court make all the relevant inquiries, in the context of this case it was not reversible error for the court to make its determinations partially on the basis of answers by the appellant to questions posed by the United States Atto…
discussed
Cited as authority (rule)
David Monroe v. United States
Id. at 465, 467 , 89 S.Ct. 1166 , 22 L.Ed.2d at 425, 426 . [W]here the charge encompasses lesser included offenses, personally addressing the defendant as to his understanding of the essential elements of the charge to which he pleads guilty would seem a necessary prerequisite to a determination that he understands the meaning of the charge. *1036 In all such inquiries, “[m]atters of reality, and not mere ritual, should be controlling.” Kennedy v. United States, 397 F.2d 16, 17 (CA6th Cir. 1968).
discussed
Cited as authority (rule)
State v. Johnson
(2×)
In all such inquiries “matters of reality, and not mere ritual, should be controlling.” Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968).
cited
Cited as authority (rule)
United States v. Richard J. Frontero
In all such inquiries, “[mjatters of reality, and not mere ritual, should be controlling.” Kennedy v. United States, 397 F.2d 16, 17 (C.A.6th Cir. 1968).
discussed
Cited as authority (rule)
State v. Jackson
In all such inquiries, '[mjatters of reality, and not mere ritual, should be controlling.’ Kennedy v. United States, 397 F.2d 16, 17 (C.A.6th Cir. 1968).” 394 U.S. at 467 , 468 n. 20, 89 S.Ct. at 1171. *596 The probing inquiry by the trial court clearly established that appellant pointed a loaded pistol at another, which action constitutes the crime charged.
discussed
Cited as authority (rule)
Abrams v. Warden, Maryland Penitentiary
But this Court also notes in McCarthy v. United States, supra, 394 U.S. at 467 n. 20, 89 S.Ct. at 1171, 22 L.Ed.2d 418 , Mr. Chief Justice Warren’s adoption of the statement of the Sixth Circuit in Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968), cert. denied, 394 U.S. 1018 , 89 S.Ct. 1636 , 23 L.Ed.2d 43 (1969), that with regard to inquiries, under Federal Criminal Rule 11, made at the time of tendering guilty pleas, “matters of reality, and not mere ritual, should be controlling.” This Court knows of no case which holds that a defendant pleading guilty in a state court must, …
discussed
Cited as authority (rule)
State v. Reynolds
“The nature of the inquiry required by Rule 11 must necessarily vary from case to case, and therefore we do not establish any general guidelines other than those expressed in the Rule itself. * * * In all such inquiries, ‘[m]atters of reality, and not mere ritual, should be controlling.’ Kennedy v. United States, 397 F.2d 16, 17 (C.R. 6th Cir. 1968)” McCarthy v. United States, supra, footnote 20 Wc find no merit in the “arguable” matters raised on this appeal.
discussed
Cited as authority (rule)
Silverberg v. Warden
The Court said in McCarthy v. United States, 89 S. Ct. 1166 (see note 1 herein) at 1171, note 20: “The nature of the inquiry required by Rule 11 must necessarily vary from case to case, and, therefore, we do not establish any general guidelines other than those expressed in the Rule itself * * * In all such inquiries ‘matters of reality and not mere ritual, should be controlling.’ Kennedy v. United States, 397 F. 2d 16, 17 (C.
examined
Cited as authority (rule)
McCarthy v. United States
(4×)
also: Cited "see, e.g."
In all such inquiries, "[m]atters of reality, and not mere ritual, should be controlling." Kennedy v. United States, 397 F. 2d 16, 17 (C.
discussed
Cited "see"
United States v. Navarro
See McCarthy v. United States, 394 U.S. 459 , 467 n.20 (1969) (“[M]atters of reality, not mere ritual, should be controlling.”) (quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968)).13 On the other hand, although Appellant told the military judge he wanted to plead guilty and made admissions consistent with that desire, there was no adjudication of guilt before his admissions were considered with regard to the offenses to which he pled not 13 In other cases, there may be a meaningful distinction between admitting the fact that an accused had previously been convicted of a sex…
Retrieving the full opinion text from the archive…
James Edward KENNEDY, Petitioner-Appellee,
v.
UNITED STATES of America, Respondent-Appellant
v.
UNITED STATES of America, Respondent-Appellant
18473_1.
Court of Appeals for the Sixth Circuit.
Jun 26, 1968.
Mervyn Hamburg, Atty., Dept, of Justice, Washington, D. C., for appellant; Robert M. Draper, U. S. Atty., Columbus, Ohio, on brief., James Roe Beatley, Jr., Columbus, Ohio, for appellee; Vorys, Sater, Seymour & Pease, Columbus, Ohio, on brief.
Weick, Peck, Cecil.
Cited by 42 opinions | Published
PER CURIAM.
Appellee Kennedy was represented by appointed counsel and pleaded guilty to an information charging him with robbery of the Clintonville office of the Ohio National Bank, Columbus, Ohio, in which bank the deposits were insured by the Federal Deposit Insurance Corporation. He was sentenced to twenty years’ imprisonment. Three years later he filed a motion to vacate sentence under 28 U.S.C. § 2255, claiming that two of the five Federal Agents who spoke to him prior to arraignment promised that in return for his cooperation he would receive no more than a five-year sentence. All five agents signed affidavits denying that any such promises had been made.
Without conducting a hearing, or making any determination of the truth of such claim, the District Judge granted the motion and set aside the conviction on the sole ground that the sentencing judge had accepted the plea of guilty before determining that it had been made voluntarily and with knowledge of[*17] the nature of the charges, as required by Rule 11, F.R.Crim.P., as it existed prior to its amendment. He relied on Heiden v. United States, 353 F.2d 53 (9th Cir. 1965), and stated that he found support for his decision in Julian v. United States, 236 F.2d 155 (6th Cir. 1956).
Heiden has been rejected in at least three Circuits. Halliday v. United States, 380 F.2d 270 (1st Cir. 1967); Stephens v. United States, 376 F.2d 23 (10th Cir. 1967), cert, denied, 389 U.S. 881, 88 S.Ct. 124, 19 L.Ed.2d 176; Brokaw v. United States, 368 F.2d 508 (4th Cir. 1966), cert, denied, 386 U.S. 996, 87 S.Ct. 1316, 18 L.Ed.2d 344. In Rimanich v. United States, 357 F.2d 537 (5th Cir. 1966) the Heiden rule was called a “novel doctrine”. We are not inclined to follow it.
In Julian, counsel for defendant entered into stipulations which “* * * it is not contended that defendant acquiesced in or approved of. * * *” (236 F.2d at page 158). The stipulations therefore should not have been considered as a plea of guilty. The Court also said at page 158:
“In order to comply with the rule the District Court need not follow any particular ritual. The prerequisite is that the defendant understands the consequences of the plea * * *»
Rule 11, as it existed prior to its amendment, does not state how or in what manner the Court shall determine the voluntariness of a plea. Matters of reality, and not mere ritual, should be controlling. Turner v. United States, 325 F.2d 988, 989 (8th Cir. 1964).
The judgment of the District Court is reversed and the cause is remanded for an evidentiary hearing to consider the claims made by Kennedy and the response of the Government thereto, and to determine from all the circumstances of the case whether the plea of guilty was in fact knowingly and voluntarily made.