Full opinion text
HARLINGTON WOOD, Jr., Circuit Judge. Defendants Latroy D. Ray, Johnny Lee May, and Boyd McChristion appeal from judgments and sentences entered against them after they pleaded guilty to various charges in connection with a scheme to alter postal money orders. Each defendant asserts that the district court failed to comply with certain requirements of Federal Rule of Criminal Procedure 11 in accepting their guilty pleas. In addition, each defendant claims various other deficiencies related to his guilty pleas and sentencing. The defendants assert that these defects should entitle them to replead. I. FACTUAL BACKGROUND The facts of this case arise from a scheme operated by various inmates at the Indiana State Prison in Michigan City. The inmates would obtain postal money orders for $1.00, alter them to higher amounts generally in the neighborhood of $300.00, and have them cashed by persons outside the prison. Apparently the inmates would begin correspondences with individuals, primarily homosexual men, who had advertised for pen pals in The Advocate and other gay magazines. The inmates would gain their confidence by representing falsely that they were going to be released shortly and, in some instances, such as defendant Ray’s case, that they were of a particular race. The inmates would then ask the pen pals to handle certain funds for them that they said could not be handled through the prison, for example, proceeds from the sale of a valuable stamp collection. The inmates would send the pen pals the altered postal orders and later ask them to send cashier’s checks and money orders (which were legitimate) to individuals who would pass the money on to the inmates. The money would then be distributed among the inmates. Ray, May, and McChristion were three of fourteen inmates implicated in this scheme. They were charged with various counts including conspiracy, mail fraud, wire fraud, and transmitting altered postal money orders, in violation of 18 U.S.C. §§ 371, 1341,1343, and 500 (1982) respectively. At this point the similarity of facts regarding each defendant ends. Defendant Ray was named in thirty-six counts of the fifty-three-count superseding indictment entered on July 11, 1985, against him and the thirteen codefendants. Ray initially pled not guilty to all charges, but petitioned in writing to change that plea. On October 21, 1985, the district court conducted a change of plea hearing and pursuant to a plea agreement executed with the government, defendant Ray entered a plea of guilty to twelve counts including conspiracy, mail fraud, and transmitting altered postal money orders. On January 10, 1985, the district court dismissed the remaining charges against Ray and sentenced Ray on the twelve counts to a total of twenty-five years incarceration, which would run consecutively to the state sentence Ray was serving. Ray appealed. Defendant May was charged in the superseding indictment with one count of conspiracy and one count of transmitting altered postal money orders. May initially pled not guilty to both charges on July 17, 1985, but later submitted a written petition to enter a change of plea regarding the charge that he transmitted altered postal money orders. The conspiracy count was dismissed by the government. The district court accepted the guilty plea, ordered a presentence report, and set the disposition hearing for October 11, 1985. After two continuances and the appointment of Carmen Fernandez as new counsel for May, the court reset the disposition hearing for January 17, 1986. On January 17, before sentencing, May’s counsel Fernandez made an oral motion to withdraw May’s guilty plea. The court heard May’s statement regarding his reasons for withdrawing his plea, denied May’s request, and accepted the plea agreement after hearing from defense counsel and May. The court sentenced May on the charge of transmitting altered postal money orders to three years imprisonment, which would run consecutively to the state sentence May was then serving. The court granted the government’s motion to dismiss the conspiracy charge. May appealed. Defendant McChristion was named in five counts of the superseding indictment, charged with crimes including conspiracy, mail fraud, and possession of altered money orders (the latter in violation of 18 U.S.C. § 1002). On July 22, 1985, McChristion pled not guilty to all charges. On July 24, the district court appointed attorney Hawk P.C. Kautz as new counsel for McChristion. At a pretrial conference on October 15, 1985, attorney Kautz advised the court that McChristion wished to change his plea. The district court conducted a change of plea hearing the same day. Pursuant to the plea agreement, McChristion pled guilty to Counts 26 and 53 (alleging mail fraud and possession of altered postal money orders, respectively). The court entered judgments of conviction on Counts 26 and 53, ordered a presentence report, and set the disposition hearing for November 15, 1985. On November 14, 1985, McChristion’s counsel Kautz requested a continuance of the disposition hearing because of concerns for McChristion’s safety if he were removed from the federal system. The court granted the continuance and reset the disposition hearing for January 17, 1986. Before that hearing, Kautz filed a petition to withdraw the change of plea that incorporated and attached a letter from McChristion to District Judge Moody dated November 8, 1985. Kautz also sought leave to withdraw as McChristion’s counsel and petitioned for appointment of new counsel so that he might testify regarding information he possessed supporting McChristion’s request to withdraw his guilty plea. He also petitioned for another continuance of the disposition hearing. On January 17, 1986, the district court held the disposition hearing and denied Kautz’s motion to withdraw as counsel and McChristion’s motion for continuance of the disposition hearing. The court then heard sworn testimony from McChristion and representations of fact from attorney Kautz regarding McChristion’s motion to withdraw his guilty plea. The court denied McChristion’s motion to withdraw his guilty plea, accepted his plea agreement, and sentenced McChristion to two consecutive five-year sentences on Counts 26 and 53, which would run consecutively to the state sentence McChristion was serving. The court granted the government’s motions to dismiss the other three counts. McChristion appealed. II. RULE 11 Each defendant asserts that because the district judge failed to comply with Federal Rule of Criminal Procedure 11 in various respects, their guilty pleas are invalid and they should be entitled to replead. Our duty as a court reviewing plea proceedings for conformance with Rule 11 necessarily involves consideration of the purpose and function of that Rule. Recognizing that a person who pleads guilty is “sacrificing, albeit voluntarily, important constitutional protections,” see United States v. Fountain, 777 F.2d 351, 354 (7th Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986), we must consider the right of a defendant to make a voluntary and informed plea, which Rule 11 is designed to protect. See McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). The Rule helps achieve this protection by assisting the district judge in determining whether the guilty plea is voluntary and by preserving the record regarding voluntariness for appeal. Id.; see Fountain, 777 F.2d at 354-55. “[T]he more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.” McCarthy, 394 U.S. at 465, 89 S.Ct. at 1170. Without taking anything away from the important responsibility, indeed duty, of the district judge in complying with the strictures of Rule 11, see, e.g., Fountain, 777 F.2d at 355-56; United States v. Cusenza, 749 F.2d 473, 477 n. 3 (7th Cir.1984), we must also keep in mind in reviewing Rule 11 proceedings that we should not give Rule 11 “such a crabbed interpretation that ceremony [is] exalted over substance.” Fed.R.Crim.P. 11(h) advisory committee’s note (1983). “ ‘Matters of reality, and not mere ritual,’ ” should control. United States v. Wetterlin, 583 F.2d 346, 354 (7th Cir.1978) (quoting McCarthy, 394 U.S. at 468 n. 20, 89 S.Ct. at 1171 n. 20 (citation omitted)), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Furthermore, Rule 11 should not be used “to lay a procedural trap for the government” by allowing a defendant to “challenge a plea on a technicality.” United States v. Reckmeyer, 786 F.2d 1216, 1221 (4th Cir.), cert. denied, — U.S. -, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986). We also recognize the “fundamental interest in the finality of guilty pleas.” Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979). A. Nature of and Factual Basis for the Charge Each defendant argues that the district court violated either of or both Federal Rules of Criminal Procedure 11(c)(1) and 11(f) in taking his guilty plea to certain charges. Rule 11(c)(1) requires the court to determine that the defendant understood the nature of the charges to which he pled guilty, while Rule 11(f) requires the court to determine that there is an adequate factual basis for a guilty plea to a particular charge. Although the requirements are similar, the purposes underlying the rules and the standards for compliance are different, so we will discuss each standard separately. We will, however, combine discussion of actual compliance with the Rules because “the same circumstances may satisfy both requirements.” Godwin v. United States, 687 F.2d 585, 589 n. 4 (2d Cir. 1982). The preferred method of satisfying Rule 11(c)(1) is for the judge to explain the nature of the charge to the defendant either generally or with regard to the specific facts of the case. See Wetterlin, 583 F.2d at 350. This court, however, has rejected a literal construction of 11(c)(1) that would require “that the judge personally address the defendant and inform him of the nature of the charge.” Cusenza, 749 F.2d at 475 (iquoting United States v. Gray, 611 F.2d 194, 199 (7th Cir.1979), cert. denied, 446 U.S. 911, 100 S.Ct. 1840, 64 L.Ed.2d 264 (1980)). A district court’s failure to comply with Rule 11(e)(1) is harmless error “where it can be said from a review of the proceeding that the defendant nevertheless understood the charges.” United States v. Darling, 766 F.2d 1095, 1099 (7th Cir.1985), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985). Whether the defendant has understood will “vary from case to case, depending on the complexity of the charges and the personal characteristics of the defendant — including age, education, intelligence, alacrity of his responses, and whether he’s represented by counsel.” Gray, 611 F.2d at 200; of Haase v. United States, 800 F.2d 123, 127-28 (7th Cir.1986) (considering profession, education and experience of defendant in analyzing voluntariness of guilty plea). This court in Darling noted that an example of harmless error, or rather, an instance in which it can be said the defendant nevertheless understood the charge, occurs “if the prosecutor’s statement adequately sets forth all elements of the offense and the conduct of the defendant that constitutes the offense.” Darling, 766 F.2d at 1099. Then, “the defendant’s admission that the allegations are true is sufficient evidence that he understands the charge.” Id.; see Cusenza, 749 F.2d at 476; United States v. Coronado, 554 F.2d 166,173 (5th Cir.1977), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). This court has also rejected a strict construction of Rule 11(f). Rule 11(f) provides that “[njotwithstanding 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.” Fed.R.Crim.P. 11(f). Although any noncompliance with Rule 11 constitutes reversible error, see United States v. Fels, 599 F.2d 142, 149 n. 5 (7th Cir.1979), the test does not require literal compliance, focusing instead on “whether, looking at the total circumstances surrounding the plea, the defendant was informed of his or her rights.” United States v. Frazier, 705 F.2d 903, 907 (7th Cir.1983) (per curiam). “Rule 11(f), as opposed to Rule 11 generally, ... does not require a colloquy between judge and defendant; the court may find the factual basis in anything that appears on the record.” United States v. Fountain, 777 F.2d 351, 356 (7th Cir.1985) (emphasis in original), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986). Typical sources are the defendant, the prosecutor, or the presentence report. Fed.R.Crim.P. 11(f) advisory committee’s note (1966); 8 J. Moore, Moore’s Federal Practice ¶111.07[1] (2d ed. 1985). Thus “[a] sufficient factual basis can be found even when the court engages in the most rudimentary questioning of the defendant if the indictment and statement of the prosecution’s evidence are sufficiently specific to make clear to the defendant exactly what is being admitted to.” Fountain, 777 F.2d at 355; see Bachner v. United States, 517 F.2d 589, 593 (7th Cir.1975). 1. Defendant Ray Ray argues that the district court violated Rules 11(c)(1) and 11(f) with respect to his guilty pleas to the conspiracy, mail fraud, and transmitting altered postal money order charges. The district court did fail to comply with 11(c)(1) regarding all three of those charges. The court referred to the conspiracy charge by the count number and did not mention the word conspiracy; furthermore, the court did not discuss the nature of the charge of conspiracy “either generally or by reference to the specific charge in this case.” Darling, 766 F.2d at 1099. Neither did the court discuss the nature of the mail fraud or transmission of altered postal money order charges. The court did request and receive Ray’s acknowledgment that Ray had discussed the charges with his attorney and understood the charges, but such a representation alone does not satisfy Rule 11(c)(1). Id.; Cusenza, 749 F.2d at 475; Wetterlin, 583 F.2d at 350. As the following discussion indicates, we believe that the circumstances regarding Ray’s plea to each charge show that the court’s failure to comply with Rule 11(c)(1) is harmless error for each charge. A factor in each of those determinations is that Ray appeared to have the ability to understand the nature of the charges. Ray testified that he had been schooled until the twelfth grade, that he had a G.E.D., and that he could speak, read, write, and understand English. We also find that there was an adequate factual basis for each charge. The prosecutor’s statement and defendant’s admission regarding the conspiracy charge meet the Darling harmless error criteria noted above. The prosecutor explained the nature of the conspiracy charge as follows: “The Government would have to show that in fact an alleged conspiracy existed. And that an overt act was committed in furtherance of the conspiracy, and that you, Mr. Ray, knowingly and intentionally became a member of that conspiracy.” The prosecutor later discussed the evidence to support this charge, going into an extended description of the postal money order scheme. He described how the scheme was used to victimize individuals, primarily homosexuals, outside the prison, by corresponding with them and making various representations, gaining their confidence, obtaining access to their bank accounts, and instructing the victims to send the proceeds from the altered money orders to various conspirators inside Michigan City prison. The prosecutor stated that Ray was involved with the other defendants mentioned in Count 1 in corresponding with and sending altered money orders to victims. In addition, the prosecutor described Ray’s correspondence with and attempts to gain the confidence of certain victims. Ray acknowledged that he agreed with this factual summary regarding the conspiracy count. The prosecutor’s discussion of the elements underlying the conspiracy charge, his extended description of Ray’s activities in the conspiracy, and Ray’s admission that the factual summary and allegations are true lead us to conclude that Ray understood the nature of the conspiracy charge. See Cusenza, 749 F.2d at 476. The prosecutor’s discussion of the evidence the government could show touched on all elements of the conspiracy charge. This case is thus distinguishable from Darling, in which this court determined that the defendant did not understand the nature of the conspiracy charge because the prosecutor’s statement did not refer to any agreement between the defendant and other individuals, an essential element of conspiracy. Darling, 766 F.2d at 1099; see also United States v. Van Buren, 804 F.2d 888, 892 (6th Cir.1986) (insufficient factual basis for plea to conspiracy charge where although there was a reading of the indictment and defendants’ admission of guilt, there was no discussion of the nature of the conspiracy by either the prosecutor or the court). Ray nevertheless asserts that the prosecutor’s statement of the conspiracy charge was cursory and in legal jargon and could not have informed him of the nature of conspiracy. We have recognized that particularly when the conspiracy charged is complex, more effort is needed to explain the nature of that charge. See Wetterlin, 583 F.2d at 350 (noting that the legal concept of conspiracy should be explained either generally or by reference to the facts of the case). We have also, however, distinguished complex from simple conspiracies. In Cusenza, 749 F.2d at 476, we held that there is less need to explain a “simple” conspiracy, for example, a “fairly simple agreement to purchase and distribute marijuana,” than to explain a “complex” conspiracy such as that found in Wetterlin, 583 F.2d at 350, which was a conspiracy to defraud a public board and to bribe public officials that involved a twenty-five page conspiracy count including forty-eight paragraphs and sixty-four overt acts. The length of an indictment is not determinative of complexity, however. Although the conspiracy count in this case consists of twenty-four pages and 112 overt acts, the actual scheme was relatively simple, involving sending altered postal money orders to individuals outside the prison who unwittingly assisted in funneling money back to the inmates. In any event, the complexity of the conspiracy charge and efforts to explain the charge are not the only factors that indicate whether a defendant has understood the nature of the charge. In Cusenza, we further distinguished Wetterlin by noting that in Wetterlin the government did not summarize the evidence regarding the conspiracy. Because of the lack of factual basis for the charge, the district court in Wetterlin could not determine that the defendant admitted to conduct that constituted the critical elements of conspiracy and therefore understood the nature of the charge. Cusenza, 749 F.2d at 476. In Cusenza, however, the district court was not required to explain the nature of the conspiracy charge not only because the conspiracy was simple, but because in Cusenza the prosecutor related the facts, the district court asked the defendant if he admitted those facts, and the court then asked the defendant a series of questions regarding his role in the conspiracy. Id. at 476-77. In this case the court did not ask the defendant questions regarding his role in the conspiracy, but the detailed description of the conspiracy and the recitation of the elements by the prosecutor, lacking in Wetterlin, is sufficient to indicate that Ray understood the nature of the conspiracy charge. See Cusenza, 749 F.2d at 476; United States v. Coronado, 554 F.2d 166, 173 (5th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). Ray contends that the factual bases for his guilty plea to the conspiracy and mail fraud charges are inadequate because there was no showing of intent to defraud. According to Ray, the prosecutor did not state at any time in the hearing that the evidence would show that Ray knew the money orders were altered. Ray asserts that this failure amounts to a critical deficiency because “the fact that the money orders were altered in amount was central to each of the offenses with which defendant was charged.” This argument is meritless. In describing the evidence underlying the conspiracy count, the prosecutor detailed the scheme as a whole and stated that “the evidence would show that Mr. Ray ... participated with these other groups in writing and corresponding with certain of these individuals and in sending out money orders.” Ray’s sending out altered postal money orders is also mentioned with regard to one of the mail fraud counts. We may imply from those statements of the evidence that Ray knew the money orders were altered. Even without explicit statements that Ray knew the money orders were altered, the factual bases for those counts are sufficient to indicate Ray’s intent to defraud. In describing the evidence underlying the charges, the prosecutor emphasized that a key aspect of the scheme was gaining the pen pals’ confidence so that they would unwittingly accept the altered postal money orders, cash them, and then send cashier’s checks or money orders of their own money to other individuals. According to the prosecutor’s statement of the evidence, Ray’s role was crucial to gaining their confidence, because he appeared to do much of the letter-writing and supplied false representations necessary to gain their trust. This case is thus distinguishable from United States v. Frye, 738 F.2d 196 (7th Cir.1984). In Frye, we determined that the district court’s colloquy with the defendant at the plea hearing was insufficient because the court did not explain the intent element of a bank larceny charge. Id. at 201. We specifically noted, however, that the defendant’s “yes” or “no” answers to the court’s questions were inadequate due to the unusual circumstances of that case, in which the defendant and her husband appeared to have different degrees of involvement in a check-kiting scheme and they were represented by the same counsel. Id. The prosecutor’s description of Ray’s letter-writing involvement in the scheme in this case provides a sufficient factual basis for Ray’s intent to defraud underlying the conspiracy and mail fraud charges. Although the district court failed to comply with Rule 11(c)(1) regarding the mail fraud charges because the court did not discuss the nature of this mail fraud, we again find that the prosecutor’s description of the elements of mail fraud coupled with his discussion of the evidence that would support the charges indicate that Ray nevertheless understood the nature of the mail fraud charges. The prosecutor stated the elements of mail fraud, 18 U.S.C. § 1341, as: That the Defendant devised or attempted to devise a scheme or artifice to defraud or to obtain money or property by means of false or fraudulent pretenses, representations or promises. The Government would also have to prove that as a part of that, that the Defendant placed or caused to be placed in an authorized depository for mail matter or knowingly caused to be delivered by mail according to the direction thereon, some matter or thing, and that the Defendant, Mr. Ray did so for the purpose of executing the scheme or artifice or attempted to do so. Ray now argues that the prosecutor used “boilerplate legal argot” in describing the nature of the mail fraud offenses and that satisfactory descriptions of “scheme or artifice to defraud” and mailing “for the purpose of executing the scheme” could have been derived from any of several sources, including this court’s pattern criminal jury instructions. See II Federal Criminal Jury Instructions of the Seventh Circuit 90-91, 93 (1984). Although it may have been helpful if the prosecutor had provided a description of “scheme or artifice to defraud” such as that found in the Seventh Circuit pattern criminal jury instructions, the omission is not dispositive because the prosecutor described in detail the factual basis for the mail fraud charges. Ray contends that the factual basis for the mail fraud charges is deficient and exacerbates the failure to elaborate on the nature of mail fraud, because the factual basis omitted the “in furtherance” element regarding several of the mail fraud charges and completely left out the defendant’s intent to defraud. Our reading of the prosecutor’s statement of the factual basis, however, shows that those elements were not omitted. Regarding one count, the prosecutor stated that Ray sent “a letter to [an individual] to carry out the particular scheme in terms of trying to get his confidence utilized in the same pretenses that before [sic] were going to get out and that they may come to live with him and things of that nature.” This sentence contains the “in furtherance” element and the intent element, because it refers to Ray’s efforts to gain the individual’s confidence. The prosecutor had earlier stated specifically regarding this mail fraud charge that “the United States Mail Service was used to effectuate this scheme.” Regarding the other mail fraud charges, the prosecutor, at the court’s request, lumped counts together as they related to a particular scheme, and noted Ray’s involvement in different aspects of the scheme. The prosecutor did not expressly state when describing the letter underlying each particular count that each use of the mails was “in furtherance of the scheme” or that Ray intended by that activity to defraud. It was clear from the prosecutor’s statement, however, that each count involved a use of the mails, that each letter was part of a larger scheme to defraud a particular individual, and that Ray intended to further the scheme by that activity. The prosecutor was not required to repeat all the elements regarding each count — the prosecutor mentioned the “in furtherance” and “intent” aspects often enough to make very plain that those elements were present. The context of the descriptions indicates that each activity underlying a mail fraud charge was part of a scheme in which Ray mailed letters to further his plan to defraud. Ray acknowledged that he agreed with the prosecutor’s summary of his activity. We are satisfied that the prosecutor’s statement of the evidence and Ray’s admissions render the court’s failure to explain the mail fraud charges harmless error. Cf Darling, 766 F.2d at 1100 (court’s failure to explain nature of mail fraud charges harmless error where prosecutor’s statement made clear defendant participated in scheme to defraud and used the mails in furtherance of the scheme and defendant made statements evidencing he understood nature of charges). The prosecutor’s statement made plain that Ray was involved in a scheme to defraud in which he corresponded by mail with various individuals. Ray also argues that the prosecutor’s statement is inadequate to show factual basis for the “in furtherance” element of six mail fraud counts relating to Ray’s correspondence with an individual named Colegrove because the prosecutor did not suggest that Ray had anything to do with altering money orders or sending altered money orders to Colegrove. We disagree. The mailings obviously were in furtherance of the scheme because they were essential to obtaining the confidence of Colegrove so that Colegrove would accept the altered money orders, cash them, and send his own money to a conduit individual. The government did not have to prove Ray sent altered postal money orders to connect Ray to the “scheme to defraud” necessary to show mail fraud. The government’s description of the letters underlying the mail fraud counts coupled with the description contained in the respective counts of the superseding indictment provided the court with sufficient factual basis for Ray’s pleas of guilty to those charges. This case is distinguishable from United States v. Fountain, 777 F.2d 351 (7th Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986). In Fountain, we found that there was an insufficient factual basis where in a multidefendant plea hearing the facts in the record regarding one defendant relating to the actual physical act of murder did not encompass the defense to which the second defendant pled guilty, which was only an accessory role. Id. at 357; see also Wetterlin, 583 F.2d at 351-52 (inadequate factual basis for conspiracy charge where no mention or reference to critical paragraphs in the indictment which identified the conspiracy scheme and objects and spelled out the means and manners by which the objects were to have been accomplished). While in Fountain there were no facts linking the defendant to the crime, in this case Ray’s involvement is clear. Ray asserts that the government in its summary of the evidence underlying the charge did not identify the mailings alleged in Counts 40, 45, and 46 of the indictment. These counts were three of the six counts involving Ray’s correspondence with Cole-grove. The judge had asked the prosecutor to group the evidence relating to all six of these counts. The prosecutor stated that all the letters underlying the counts were to Colegrove from Ray, that an individual would testify and the lab would indicate the handwriting on those letters was Ray’s and that testimony would show that fingerprints on some of the correspondence were Ray’s. The prosecutor did not specifically identify the letters underlying Counts 40, 45, and 46 as they were identified in the indictment. The prosecutor did, however, give a rather detailed account of the content of six different letters. Because the indictment and the prosecutor’s statement of the evidence indicated that the counts involved Ray's correspondence with Cole-grove, the prosecutor’s statement indicated that the contents of the letters related to the scheme, and Ray agreed with the prosecutor’s summary of the evidence, we find a sufficient factual basis for these mail fraud counts. Ray argues that the court also failed to comply with Rule 11(c)(1) and 11(f) regarding Ray’s guilty plea to the charge that he transmitted altered postal money orders. We agree that the court did not comply with Rule 11(c)(1) because it did not describe the nature of this charge, but again find that this noncompliance is harmless error. The prosecutor stated that in showing that Ray violated 18 U.S.C. § 500, the government would have to prove that a postal money order had been forged or materially altered, that Ray knew it had been forged or materially altered, and that Ray either actually did transport, or present the money order or caused it to be transported or presented. In summarizing the evidence underlying this charge, the prosecutor stated that Ray corresponded with a professor, sending “homosexual love letters,” and participated in sending a particular altered money order, requesting that the professor cash it and send the equivalent amount of the professor’s own money to someone else. Ray agreed with most of the prosecutor’s summary, but corrected the prosecutor regarding the name of the person to whom he had requested the professor’s money be sent. Ray maintains that the prosecutor’s description of the nature of the charge as well as the statement of the factual basis completely omitted the element of intent to defraud. It is true that the prosecutor did not specifically state the intent element or explicitly state that the evidence would show Ray’s intent in discussing the factual basis for the charge. The government states that the intent requirement is spelled out in the indictment and that Ray had represented that he had an opportunity to review the charges and the plea agreement with his attorney. A defendant’s reading of the indictment, however, except in the simplest of cases, is inadequate to allow the judge to personally determine that the defendant understood the nature of the charges. See Mack v. United States, 635 F.2d 20, 25 (1st Cir.1980); Unit ed States v. Dayton, 604 F.2d 931, 938 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980); Wetterlin, 583 F.2d at 350 n. 6; United States v. Adams, 566 F.2d 962, 967 (5th Cir.1978). We find it more persuasive that the total circumstances of the proceeding indicate that Ray understood the nature of this charge. The prosecutor in discussing the factual basis did in fact advert to Ray’s intent to defraud, stating that the “[evidence would so [sic] that the same type of scheme or plan was being used on [the professor].” The prosecutor also adverted to the intent element, when he stated that the government had to demonstrate that Ray caused the transmission of the money order knowing it to be altered. Furthermore, the prosecution’s statements of the evidence for the conspiracy and mail fraud charges at the change of plea proceeding made clear that the transmittal of the altered postal money order underlying this charge was part and parcel of Ray’s and other convicts’ larger scheme to defraud various individuals. We may imply that Ray intended to defraud by transmitting an altered postal money order, in the context of the discussion of the other charges. We believe Ray understood the nature of the charge that he transmitted altered postal money orders and that there was an adequate factual basis for the intent element of that charge. Ray maintains that there is also an insufficient factual basis for his knowledge that the postal money order was altered. The prosecutor never stated that he had direct evidence that Ray knew the money order was altered. The prosecutor did say, however, that Ray sent the altered postal money order and instructed the alleged victim to send his own money to another individual. This would constitute circumstantial evidence at trial that Ray knew the money order was altered, because it is implicit that Ray was carrying out the scheme by asking the victim to send “clean” money to the conduit individual. We conclude that the indictment and prosecutor’s statement of evidence are “sufficiently specific” to make clear to Ray that he was admitting to knowing he transmitted an altered postal money order with intent to defraud. 2. Defendant May May argues that in his change of plea hearing the district court did not comply with the requirements of Rules 11(c)(1) or 11(f) regarding his guilty plea to the charge that he transmitted an altered postal money order in violation of 18 U.S.C. § 500 (1982). Specifically, May contends that he did not understand the intent element of the crime and that there was no factual basis for his intent to commit the crime. ■ At May’s change of plea hearing, the prosecutor listed the elements of the offense that the government would have to prove. Regarding the intent element, the prosecutor said that the government would have to prove “that the Defendant knew that the money ordered [sic] been materially altered.” The defendant then acknowledged that he understood the charge, that his attorney had explained it to him, and that he had no questions about the charge. Because the district court did not explain the nature of this charge, we find that the court failed to comply with Rule 11(c)(1). Nevertheless, we find that the prosecution’s statement of the evidence sets forth the element of intent and the conduct of May regarding that intent, and that statement along with May’s admissions are sufficient to indicate that May understood the nature of this charge. In summarizing the evidence the government would show in support of the charges, the prosecutor stated in regard to the intent element that the evidence would show that May “knew [the money order] was to be altered” and that May did cause it to be transmitted knowing that it would be altered and presented for payment, but that the evidence would not show that May knew that two other defendants actually altered the money orders. May then acknowledged that he agreed with the prosecutor’s summary of what he did. We find that May did understand the nature of this charge. May’s real quarrel is with the adequacy of the factual basis for this intent element. The transcript does show that the government’s evidence is at variance with the government’s charge. The charge is that May knew the money order had been altered or forged, but the government said the evidence would show that May intended that the money order would be forged or altered when he transmitted it. May asserts that while the money order was in May’s hands it had not yet been forged or altered. He used the money order to buy cigarettes in prison. May argues that this variance, when combined with the failure of the district court to inquire regarding this intent element, leads to an insufficient factual basis for his guilty plea that requires his plea be vacated and his cause remanded to the district court for new pleading. We disagree. We recognize that there was a slight gap between what May was charged with having done (transmitting the money order knowing “that the money ordered [sic] been materially altered”) and what the government said the evidence would prove (that May knew when he transmitted the money order that it would be materially altered and presented for payment). The gap, however, is due only to a distinction in verb tense. The difference is between May's having known that the money order was altered, and having known that the money order would be altered. This semantic difference cannot serve as a basis for May’s argument that the court could not satisfy itself that there was a sufficient factual basis for his plea. The prosecutor’s statement that the evidence would show that May knew the money order would be altered, even though the evidence would not show that he knew it would be altered by various other defendants, was sufficiently specific in combination with the superseding indictment and the prosecutor’s statement of the charges to make clear to May what he was admitting he did. If the case had gone to trial, the government easily could have bridged this slight gap in verb tense by arguing that May at least aided and abetted the crime of transmitting altered postal money orders by knowing it would be altered, and by virtue of 18 U.S.C. § 2 (1982), May would thus be guilty of the principal offense of transmitting altered postal money orders. Because the prosecutor’s statement of the charges and evidence was sufficiently specific, the court’s rudimentary questioning of May was enough to assure the court of the adequacy of the factual basis for May’s plea. See Fountain, 777 F.2d at 355. 3. Defendant McChristion McChristion argues that the court erred in accepting his guilty plea to Count 26, a mail fraud charge, because there was an insufficient factual basis for that plea. The prosecutor stated the elements of the mail fraud charge that the government would have to prove. He later summarized the evidence that would be introduced at trial regarding the money order scheme in general and said McChristion would be implicated in the general money order scheme. Regarding Count 26, the prosecutor stated the evidence would show: That as part of the scheme, there was some money that was owed to Mr. McChristian [sic], and that Ray and Sturdivant [two other defendants] then had Roger Pickett send this particular— through the mail, send this particular money order back into the prison. This particular money order actually came from proceeds of altered money orders. And this was sent back to Mr. McChristian [sic] inside the prison as part of the scheme. The court then asked McChristion whether he agreed with the summary. McChristion responded, “I’m guilty of receiving funds from Mr. Sturdivant ... but I never communicated or sent anything to, called, et cetera, et cetera. Mr. Sturdivant just owed me money for something that was totally unrelated to this, but I am guilty of accepting money, yes.” McChristion does not quarrel with the sufficiency of the factual basis in the prosecution’s statement of the evidence. He rather contends that this sufficiency is called into question after the above denials that he ever communicated or sent anything and that he was owed the money from his involvement in the scheme. He argues that his denial should have led the court to determine that there was an insufficient factual basis under Rule 11(f) for his plea of guilty to the mail fraud charge of Count 26. We disagree. McChristion’s denials did not undermine the sufficiency of the factual basis established in the prosecution’s statement of the evidence and the indictment. When McChristion denied that he ever communicated or sent anything through the mails, he was likely denying any role in that part of the general money order scheme that involved writing or sending the altered postal money orders. He did not deny the aspect of the scheme with which he specifically was charged in Count 26 — causing to be delivered by mail a money order which apparently was purchased with proceeds from the alleged money order scheme. McChristion’s denial that the money was owed to him as part of the scheme is likewise immaterial. McChristion did not deny that he took a cut from the proceeds of the scheme or that he knew the funds emanated from the scheme, and it can be implied that this was in furtherance of the scheme. Indeed, he did admit that he accepted money from Mr. Sturdivant, another defendant. Thus the prosecutor’s statement of the evidence along with the indictment provided a sufficient factual basis for McChristion’s plea to Count 26 which remained intact after McChristion’s denials and was sufficient to comport with Rule 11(f). Cf United States v. Neel, 547 F.2d 95, 96 (9th Cir.1976) (per curiam) (although defendant protested that he did not intend to evade taxes, strong factual basis remained because defendant made several other admissions regarding evading income tax). McChristion’s denials and other remarks by him viewed in isolation might suggest that he did not understand the charge in Count 26. McChristion requested that Count 26 be amended to show that he received $250.00 rather than the $300.00 charged in Count 26, and at another point during the hearing expressed surprise that there had actually been a victim of the scheme. We believe that any failure of the district court to comply with Rule 11(c)(1) in this instance is harmless error. The prosecutor described the money order scheme in detail. McChristion stated that he had a G.E.D., that he was able to speak, read, write and understand English, that he was represented by counsel, and that he had sufficient opportunity to discuss his case with his lawyer. In addition, his responses indicate that he was aware of what he had done and was clarifying what he had not done. He agreed three different times that his conduct fell within the charge in Count 26. A review of the proceeding thus satisfies us that McChristion understood the nature of the charges. B. Rule 11(c)(3) Ray contends that the district judge erred in accepting his guilty plea without informing him that he had a right to persist in his plea of not guilty. See Fed.R. Crim.P. 11(c)(3). District courts are encouraged to “track the language of Rule 11” in advising defendants of their rights before accepting a defendant’s guilty plea. United States v. Frazier, 705 F.2d 903, 907 (7th Cir.1983) (per curiam). Nonetheless, in a case alleging a district court’s failure to advise a defendant of one or more rights, “the test on appeal is whether, looking at the total circumstances surrounding the plea, the defendant was informed of his or her rights.” Id.; see United States v. Wetterlin, 583 F.2d 346, 354 (7th Cir.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Rule 11(c)(3) was designed to require that the judge inform the defendant and determine that the defendant understands that he is waiving his fifth amendment rights against self-incrimination by pleading guilty. Fed.R.Crim.P. 11 advisory committee’s note (1974). “The rule takes the position that the defendant’s right not to incriminate himself is best explained in terms of his right to plead not guilty and to persist in that plea if it has already been made.” Id. The colloquy between the district court and Ray at Ray’s change of plea hearing indicates that Ray was fully informed, in substance, that he had a right to plead not guilty or to persist in that plea of not guilty. The district judge informed Ray that his jury trial was set to begin that day, that he had “an absolute right to that jury trial,” and that no one, including the court, his own attorney, or the government could deny him his constitutional right to a jury trial. The court advised Ray that he had the right to be tried by a jury consisting of twelve men and women, and at that trial he would have the presumption of innocence and the government would have to prove his guilt beyond a reasonable doubt. In addition, the court informed Ray that he had the right to confront and cross-examine witnesses against him, the right against self-incrimination, the right to present evidence in his own behalf, and the right to choose to testify in his own behalf. The district judge then queried of Ray: Q. One other thing, Mr. Ray, if you plead guilty, do you also understand that you will have to give up your right not to incriminate yourself since I may ask you questions about what you did in order to satisfy myself that you are guilty as charged, and you’re going to have to acknowledge your guilt. You understand that? A. Yes, I do. Q. Having discussed your rights with you, sir, do you still want to plead guilty? A. Yes, sir. The court’s detailed explanation of the rights attendant to a jury trial and express statement to Ray that he would be giving up the right not to incriminate himself by pleading guilty indicate that Ray was undoubtedly aware of his right to persist in his plea of not guilty. See United States v. Deal, 678 F.2d 1062,1068 (11th Cir.1982); United States v. Saft, 558 F.2d 1073, 1080 (2d Cir.1977); Kloner v. United States, 535 F.2d 730 (2d Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 361, 50 L.Ed.2d 312 (1976). Furthermore, the plea agreement that Ray testified he read, signed, and discussed with his attorney, states: “I understand that I have a right to plead not guilty to any offense charged against me____” This case is distinguishable from United States v. Fels, 599 F.2d 142, 146-47 (7th Cir.1979). In Fels, we reversed defendant Fels’s conviction based in part on our finding that the district court violated 11(c)(3) by failing to determine that Fels understood her right to persist in her plea of not guilty. The trial court in Fels, however, never personally determined that she understood that she was waiving her right against self-incrimination and various other trial rights by pleading guilty. Id. at 146-47. We held that because there were several deficiencies in the taking of Fels’s plea, there was no “substantial compliance” with Rule 11. Id. at 148. The total circumstances surrounding Ray’s plea show that Ray was informed that by pleading guilty he was giving up his right to persist in a plea of not guilty. C. Rule 11(e)(3) McChristion argues that the district court committed reversible error in failing to inform him pursuant to Federal Rule of Criminal Procedure 11(e)(3) that if the court accepted his plea agreement, the court would embody in the judgment and sentence the disposition provided for in the plea agreement. He argues alternatively that if the court rejected his plea agreement he should have been allowed an opportunity to withdraw his guilty plea, as required under Rule 11(e)(4). The issue we address initially is whether the district court actually accepted McChristion’s plea agreement with the government. McChristion argues that it is unclear from the district court’s colloquy with him at the change of plea hearing whether the court accepted the plea agreement during that hearing or was instead deferring acceptance of the agreement in accordance with Federal Rule of Criminal Procedure 11(e)(2). Under that rule, “the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report.” Id. McChristion’s confusion is apparently due to the court’s statement that it was accepting his guilty plea and entering judgment on that plea. The court did not, however, explicitly state that it was accepting the plea agreement at that time. Instead, the court’s statements to McChristion at three different points in the hearing indicate that the court was deferring its decision as to acceptance or rejection until the disposition hearing, after it had an opportunity to consider the presentence report. The court thus adequately informed McChristion of the status of the plea agreement at the time his guilty plea was offered. See United States v. Holman, 728 F.2d 809, 812 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984); Fed.R.Crim.P. 11 advisory committee’s note (1974). McChristion argues that the court did not comply with Rule 11(e)(3) at the change of plea hearing. Rule 11(e)(3) provides that “[i]f the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.” Fed.R.Crim.P. 11(e)(3) (emphasis added). It is plain that this requirement had not yet come into play during the change of plea hearing, because the court had not yet accepted the plea agreement. McChristion contends that the court did not comply with the Rule 11(e)(3) requirement during the disposition hearing either. He notes initially that it is unclear whether the court actually accepted the plea agreement at the disposition hearing. After denying McChristion’s petition to withdraw his plea but immediately before sentencing McChristion, the district court stated: “Plea agreement entered into between the defendant and the United States Government on October 15th, 1985, is not accepted.” This statement does appear in the record, but the context in which it was made and the surrounding circumstances of the disposition hearing convince us that the statement is a result of either mistake or clerical error. In accordance with Federal Rule of Criminal Procedure 36, we may treat this statement as if it were corrected to read “is accepted” instead of “is not accepted.” See 3 C. Wright, Federal Practice and Procedure § 611, at -526 (2d ed. 1982); cf. Costello v. United States, 252 F.2d 750, 751 (5th Cir.1958). It would have made little sense for the court to have rejected McChristion’s plea agreement because the court had just refused McChristion's petition to withdraw his guilty plea. As the court had informed McChristion during the change of plea hearing, if the court rejected the plea agreement, Rule 11(e)(4) would require the court to allow McChristion the opportunity to withdraw the plea. What is more persuasive, however, is that the court, immediately after making that statement, proceeded to sentence McChristion in accordance with the plea agreement. Although the length of the actual sentence imposed does not provide any clue regarding whether the court followed the plea agreement because the plea agreement did not prescribe the length of the sentence, several aspects of the plea bargain are evident in the court’s sentencing. The court sentenced McChristion on Counts 26 and 53 of the superseding indictment and accepted the government’s motion to dismiss three other counts as they pertained to the defendant, in accordance with the terms of the plea bargain. In addition, the court had earlier mentioned to the government that it was prohibited from making any recommendations as to the sentence the court should impose, which also conformed with the terms of the plea agreement. The district court intended to accept the terms of the plea agreement and its statement on the record to the contrary must have been the result of either mistake or clerical error. McChristion correctly notes that after accepting the plea agreement, the court did not expressly inform him that it would incorporate into the judgment and sentence the bargained-for disposition, a requirement an advisory committee note to Rule 11 terms “mandatory.” Fed.R. Crim.P. 11 advisory committee’s note (1974). It is true that any noncompliance with Rule 11 is reversible error. United States v. Frazier, 705 F.2d 903, 907 (7th Cir.1983) (per curiam). The test for reversible error on appeal, however, is “whether, looking at the total circumstances surrounding the plea, the defendant was informed of his or her rights.” Id.; United States v. Wetterlin, 583 F.2d 346, 354 (7th Cir.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). The purpose of Rule 11(e)(3) is to “inform[] the defendant immediately that the agreement will be implemented.” Fed.R.Crim.P. 11 advisory committee’s note (1974). The total circumstances surrounding the plea indicate that that advisory purpose was served and that McChristion was aware that the district court would be bound by the terms of the plea agreement. At the change of plea hearing, when explaining the rights McChristion would be giving up by pleading guilty, the court stated that if McChristion pled guilty, it would enter judgment of guilty and sentence McChristion on the basis of that guilty plea after considering his presentence report. The court told McChristion the maximum penalty he could receive as a result of pleading guilty to Counts 26 and 53. The court then extensively discussed the plea agreement with McChristion and asked him to state his understanding of the agreement, including the disposition set out in the plea agreement. The court explained that if it rejected the plea agreement, McChristion would have an opportunity to withdraw his guilty plea and if he pled guilty after the court had rejected the plea, the sentence or disposition of the case might be less favorable. Thus McChristion discussed the plea agreement with the court, he acknowledged that he understood it, and he cannot now argue that he was not aware it would be implemented. Furthermore, although the district court did not strictly comply with Rule 11(e)(3), in the circumstances of this case this failure is harmless error. Rule 11(h) provides that any deviation from the procedures required by Rule 11 “which does not affect substantial rights shall be disregarded.” Fed.R.Crim.P. 11(h). The advisory committee notes to Rule 11 state that decisions taking a harmless error approach on direct appeal are those in which the extent of the variance from Rule 11 “was such that it could not have had any impact on the defendant’s decision to plead or the fairness in now holding him to his plea.” Fed.R.Crim.P. 11 advisory committee’s note (1983). Although the district court did not, after accepting the plea, inform McChristion immediately that the agreement would be implemented in the sentence and disposition, the court did implement the agreement immediately after accepting the plea agreement. The court did not deviate from the terms of the plea agreement. Because the court did not renege on the terms of the plea agreement after accepting that agreement, a main purpose of Rule 11(e)(3) was met. See United States v. Runck, 601 F.2d 968, 969-70 (8th Cir.1979) (during sentencing judge added condition of restitution, a term outside the bounds of plea agreement), cert. denied, 444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644 (1980). Any failure to inform McChristion that the terms of the agreement would be embodied in the disposition did not affect McChristion’s decision to plead guilty or the fairness of now holding him to that plea, and thus it is harmless error. D. Federal Sentence Running Consecutively to State Sentence McChristion and Ray argue that the district court erred in not informing them that any federal sentence imposed as a result of their guilty pleas would run consecutively to the state sentence they were already serving. The defendants acknowledge that this court held in Faulisi v. Daggett, 527 F.2d 305, 309 (7th Cir.1975), that a district court does not have to inform a defendant that the federal sentence imposed will be consecutive to a state sentence. They also acknowledge that Rule 11 does not expressly require any such advisement. The Faulisi court interpreted an earlier version of Rule 11 that stated that the district court must inform a defendant of the “consequences” of a plea. The court reasoned that “the possibility that a federal sentence might be ruled to run consecutively to a state sentence being served is not a ‘consequence’ of a plea of guilty concerning which the court must first address the defendant before accepting such a plea.” Id. at 309. Defendants urge us to overrule Faulisi. They note that in this circuit a defendant must be informed of direct consequences of the plea, see United States ex rel. Robinson v. Israel, 603 F.2d 635 (7th Cir.1979) (en banc), cert. denied, 444 U.S. 1019, 100 S.Ct. 675, 62 L.Ed.2d 650 (1980). Defendants ask us to determine, hearkening to the reasoning of the Ninth Circuit in United States v. Myers, 451 F.2d 402, 404 (9th Cir.1972), that whether the federal sentence will run consecutively to or concurrently with the state sentence is a direct consequence of the plea and thus a defendant must be informed of this result. We are unpersuaded that we should overrule Faulisi at this time because we believe that whether the federal sentence runs concurrently with or consecutively to the state sentence is not a direct consequence of the plea. The Ninth Circuit in Myers stated that although Rule 11 does not expressly require an advisement regarding the timing of the sentence, “the impact of section 3568 is a factor that necessarily affected [the defendant’s] maximum imprisonment” and thus “is a consequence of the plea within the meaning of Rule 11.” Id. at 404 (citations omitted). We distinguished Myers in Faulisi on the ground that the defendant in Faulisi was already fulfilling his sentence when he pled guilty to additional federal charges, while the defendant in Myers was in custody and had not yet been sentenced. Faulisi, 527 F.2d at 309. We agree with the reasoning of the Fourth Circuit in Cobb v. United States, 583 F.2d 695, 696-97 (4th Cir.1978) (per curiam), that although the Myers court was correct in pointing out that section 3568 becomes operative immediately upon the prisoner’s return to state custody and it is not dependent upon a subsequent conviction in state court, the running of the sentence is not an immediate and direct consequence of the plea, nor is it an enlargement of the federal sentence. As noted in Cobb, 583 F.2d at 697, “[i]ndeed, the federal sentence may well have been lighter than it would have been had there been no pending state charges.” Furthermore, as the Third Circuit stated in Kincade v. United States, 559 F.2d 906, 909 (3d Cir.), cert. denied, 434 U.S. 970, 98 S.Ct. 519, 54 L.Ed.2d 458 (1977), section 3568 has no effect whatsoever upon the length or nature of the federal sentence — although it delays the start of the sentence, it does not change the nature of the federal sentence. The Fourth, Fifth, Eighth, and Tenth Circuits are in accord with this view. See Clemmons v. United States, 721 F.2d 235, 328 (8th Cir.1983); Cobb,