USCA1 Opinion
September 15, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2322
JOSE FRANCISCO RIVERA-LOPEZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fust , U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
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Jose Francisco Rivera-Lopez on brief pro se.
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Daniel F. Lopez-Romo, United States Attorney, and Charles E.
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Fitzwilliam, Executive Assistant United States Attorney, on brief for
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appellee.
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Per Curiam. In 1987, petitioner Jose Rivera Lopez
Per Curiam.
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(Rivera) pled guilty to procuring by fire the destruction of the
DuPont Plaza Hotel in Puerto Rico. In 1991, he moved to vacate
his sentence under 28 U.S.C. 2255, alleging that he had re-
ceived ineffective assistance of counsel, that his guilty plea
was involuntary and unknowing, that newly discovered evidence
exonerated him, and that there was substantial disparity between
the sentences given him and his co-defendant. The district court
denied his motion without an evidentiary hearing, and Rivera
appealed. We affirm.
I. Background
I. Background
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On December 31, 1986, the DuPont Plaza Hotel in San
Juan, Puerto Rico burned, killing 97 people. At the time, hotel
management was engaged in difficult collective bargaining negoti-
ations with the Teamsters Union. Within weeks of the fire, the
government had obtained the confessions of two hotel employees.
Hector Escudero Aponte (Escudero) admitted that he had set the
fire, and Armando Jimenez Rivera (Jimenez) admitted that he had
provided Escudero with the sterno used in starting the fire.
Escudero told the government that Rivera, a fellow employee, had
suggested setting a fire that day to pressure management to give
in to union demands. Other witnesses told investigators that
Rivera had made statements before the fire broke out which
suggested that there should or could be a fire at the hotel that
day, or that he had urged hotel employees to make a "curtain" to
shield Escudero from view as he lit the sterno. Escudero,
Jimenez and Rivera were indicted for their roles in the fire.
The indictment against Rivera stated that Rivera had "knowingly
and intentionally procure[d] the . . . malicious damaging and
destruction, by means of fire, of a building . . . which fire
resulted in the death of persons, all in violation of [18 U.S.C.
2 and 844(i)]."
Eventually, all three defendants pled guilty. Rivera
admitted that he had urged Escudero to set the fire and had made
statements to the effect that a fire should be set, but did not
admit any involvement in shielding Escudero from view as he lit
the sterno. In its plea agreements with Rivera and Jimenez, the
government agreed to recommend sentences of 25 and 24 years,
respectively. At the plea hearing, the government made the
promised recommendations, but the court (Fust , J.) sentenced
Rivera to 99 years in prison and Jimenez to 75 years. We upheld
the sentences upon appeal. United States v. Jimenez-Rivera, 842
______________ ______________
F.2d 545 (1st Cir.), cert. denied, 487 U.S. 1223 (1988). In
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1990, Judge Fust reduced Rivera's sentence to 40 years, and
Jimenez's to 25 years. Rivera then brought the present motion to
vacate his sentence. On appeal, he claims that his motion
alleged sufficient facts to require an evidentiary hearing on his
3
claims; he also alleges that the district court erred in dismiss-
ing his sentence disparity claim.
II. Discussion
II. Discussion
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A. Ineffective Assistance of Counsel
A. Ineffective Assistance of Counsel
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Rivera makes numerous allegations in his briefs, and in
a separate affidavit submitted in support of his claim, that his
court-appointed counsel, Frank Inserni, Esquire, rendered inef-
fective assistance.1 The gist of Rivera's claim is that Inserni
failed to interview favorable witnesses and to investigate his
defenses adequately.
To state a sufficient claim of ineffective assistance,
Rivera must show that Inserni's performance fell below an objec-
tive standard of reasonableness and that Inserni's inadequate
performance prejudiced him that there is a "reasonable proba-
bility" that, but for Inserni's errors, Rivera would not have
pled guilty, but would have insisted on going to trial. Hill v.
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Lockhart, 474 U.S. 52, 58-59 (1985). To show that he was preju-
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diced by Inserni's failure to investigate defenses or to discover
potentially favorable evidence, Rivera must demonstrate that any
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1The allegations in Rivera's brief are far more specific
than those made under oath in his affidavit. Ordinarily, asser-
tions made in briefs are insufficient to raise a cognizable issue
of fact. Because of Rivera's pro se status, however, we have
considered the allegations in his brief as well. See United
___ ______
States v. Michaud, 925 F.2d 37, 41 (1st Cir. 1991).
______ _______
4
such defenses or evidence likely would have changed either
Inserni's recommendation that Rivera plead guilty, or the outcome
of a trial. Id. at 59. Moreover, Rivera stated under oath at
___
his Rule 11 hearing that he was satisfied with Inserni's repre-
sentation. As these sworn statements are presumptively true,
Rivera must give a credible reason for his retraction. See
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Hernandez-Hernandez v. United States, 904 F.2d 758, 762 (1st Cir.
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1990); United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984).
_____________ ____
Rivera claims that Inserni did not conduct an adequate
investigation of a list of witnesses Rivera gave him when Inserni
was appointed. Rivera says those witnesses could have refuted
the testimony of government witnesses as to his involvement in
the so-called "curtain" episode, his actual statements upon
arriving at the hotel after a union meeting at a local restau-
rant, and his whereabouts or other details concerning his actions
on the day of the fire. Rivera also says that Inserni did not
interview witnesses who might have helped determine whether
Rivera had induced Escudero to start the fire. He suggests that
union members who attended the meeting at a local restaurant on
the day of the fire, and a delegate named Muniz who travelled
with Escudero and Rivera to the meeting, could have shed light on
that issue.
Rivera states that Francisco Velez Muniz and Emilio
Lanzo Santiago would have "controverted" the statements he
allegedly made in the hotel kitchen before and after the union
5
meeting. However, Velez's statement, submitted with the habeas
petition, says that Velez saw Rivera at the hotel, the day of the
fire, pounding his fist on a table and declaring "[t]oday there
is going to be blood and fire in the Hotel, we are going to burn
everything that we find in our way." Lanzo's statement described
three men who left the hotel's south ballroom together shortly
before Lanzo discovered the fire in the south ballroom. Accord-
ing to other documents in the record, Lanzo's descriptions fit
Escudero, Rivera and Jimenez.
With respect to the list of other potential witnesses,
Rivera says only that those witnesses would have refuted the
testimony of government witnesses on certain issues, e.g., the
____
"curtain" episode and Rivera's statements upon arriving at the
hotel. He neither states what their testimony would have been,
nor that they would be willing to testify; he presented no
affidavits from these "witnesses." Thus, the district court was
justified in not holding an evidentiary hearing. See Lincecum v.
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Collins, 958 F.2d 1271, 1280 (5th Cir.) (no evidentiary hearing
_______
required where habeas petitioner said that friends and relatives
would have testified as to allegedly mitigating circumstances
which petitioner did not otherwise describe where none of
alleged witnesses had submitted an affidavit showing that his or
her testimony would have helped petitioner), cert. denied, 113 S.
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Ct. 417 (1992); United States v. Green, 882 F.2d 999, 1003 (5th
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Cir. 1989) (similar). We note also that the suggested testimony
6
apparently would not have challenged the admissions by Escudero,
the government's chief witness. As the government agreed to
recommend a 25-year sentence instead of life,2 we decline to
____
speculate that either Inserni's recommendation or Rivera's
decision to plead guilty (or the outcome of a trial) would have
been different, given Escudero's admissions, let alone Rivera's
pre-plea admissions.
Finally, no evidentiary hearing was required on the
claim that Inserni should have interviewed union members who
attended the union meeting at a local restaurant with Rivera and
Escudero the day of the fire. Rivera says that the union members
could have helped determine whether Rivera had induced Escudero
to start the fire. The record suggests that Muniz may have
suggested to Escudero that he set a fire among the boxes in the
south ballroom and that previously Muniz had instructed Escudero
to set other fires at the hotel which had caused minor property
damage. However, the discovery that Muniz or others had in-
structed Escudero to start other fires, or instructed Escudero to
start this fire, would not have relieved Rivera of aider and
abettor liability for having himself affirmatively encouraged
Escudero to start the fire several hours before. See, e.g.,
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218 U.S.C. 844(i) authorizes a maximum penalty of death or
life imprisonment. However, before plea negotiations began, the
government announced that it would not seek the death penalty.
Thus, at the time the government agreed to recommend a 25-year
sentence, its maximum alternative recommendation under the
statute would have been life imprisonment.
7
Pearson v. United States, 192 F.2d 681 (6th Cir. 1951) ("one who
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with knowledge of the commission of a crime assists in its
execution may not escape the penalty merely because another is
the dominating or controlling actor"); see Asher v. United
___ _____ ______
States, 394 F.2d 424, 430-31 (9th Cir. 1968) (similar); United
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States v. Garguilo, 310 F.2d 249, 253 (2d Cir. 1962) (similar).
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Thus, Inserni's failure to interview these witnesses would not
have provided Rivera with a viable defense to "aiding and abet-
ting." See United States v. Porter, 924 F.2d 395, 397 (1st Cir.
___ _____________ ______
1991) (no "prejudice" absent showing that failure to investigate
or interview witnesses deprived defendant of "viable defense")
(direct appeal).
Nor does Rivera suggest a sound basis for discrediting
his sworn statement at his plea hearing that he was satisfied
with Inserni's representation. Rivera appears to have known what
Inserni's investigative efforts were before the hearing. Thus,
this is not a case where lack of knowledge explains why a state-
ment made under oath should now be discredited. Compare United
_______ ______
States v. Giardino, 797 F.2d 30, 32 (1st Cir. 1986) (petitioner's
______ ________
stated satisfaction with counsel's performance preceded peti-
tioner's knowledge of counsel's misrepresentations).3
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3Rivera claims that Inserni never investigated his personal
background (e.g., education, social background, marital status,
____
etc.) so as to mount an effective defense. Such information is
most relevant at sentencing. See Thomas v. Kemp, 796 F.2d 1322,
___ ______ ____
1323 (11th Cir.), cert. denied, 479 U.S. 996 (1986). Rivera
_____ ______
makes no showing that the presentence report did not fully
8
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present this information to the sentencing judge.
9
B. The Guilty Plea
B. The Guilty Plea
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Rivera claims that his plea was not voluntary and
knowing. Inserni allegedly did not explain the charges adequate-
ly, pressured him, misrepresented the facts, and caused him to
plead guilty despite his innocence. Finally, Rivera alleges, the
sentencing judge became involved in the plea bargaining process.
Rivera's allegations are conclusively refuted by the record.
Moreover, assuming their truth, his specific allegations would
provide no basis for relief, hence no evidentiary hearing was
required. See Lema v. United States, 987 F.2d 48, 51-52 (1st
___ ____ _____________
Cir. 1993).
1. Failure to Explain Charges
1. Failure to Explain Charges
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Rivera's affidavit attests that Inserni never explained
the charges, the "technicalities" of the case, the elements of
his offense or how they applied to his case. His brief says that
Inserni never explained the aiding and abetting charge. Rivera
concedes that Inserni explained the "fire count" to him. Fur-
thermore, when Rivera initially appeared before a magistrate on
January 30, 1987, he was given a copy of the indictment charging
that he knowingly and intentionally procured the malicious
destruction of property by fire. In his plea petition, Rivera
acknowledged his understanding of the charges; that among the
acts that made him think he was guilty was his "instigation" of
Escudero to set the fire; and that Inserni had explained the
10
language in the indictment and the elements of the offense. At
the Rule 11 hearing, Rivera stated under oath that he had had
ample opportunity to discuss the case with Inserni; he knew what
the indictment said; he knew he was being charged with "procur-
ing" the fire; he understood the charge; and he agreed with the
government's summary of the evidence against him, referencing his
comments to Escudero that a fire had to be set to pressure
management.4 Thus, the record conclusively shows that Rivera
knew and understood the charge against him.
2. Counsel's Alleged Coercion
2. Counsel's Alleged Coercion
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Rivera charges that Inserni coerced his plea despite
his protestations of innocence. Rivera's affidavit states that
Inserni told him that, if he rejected the government's offer,
murder charges would be filed in relation to a federal officer
who died in the fire; that the government had threatened to seek
the death penalty if he did not plead guilty; and that, immedi-
ately before the plea hearing, Inserni reminded him that the
government would file murder charges that day if Rivera did not
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4At the Rule 11 hearing, Judge Fust read the charge and
paraphrased or read the language of both 18 U.S.C. 2 and
844(i); he also verified that, in light of the charge of procur-
ing and the harsh sentence which could be imposed under the
statute, Rivera still wanted to plead guilty. After Rivera
responded affirmatively, Judge Fust asked: "So, I gather, then,
that you understand the charge; do you have any doubts?" To
this, Rivera responded: "Yes, sir. No, sir." This clearly was
meant to convey that Rivera understood the charge and had no
doubts about pleading guilty.
11
plead guilty. Consequently, he alleges, during the plea hearing
he was afraid, nervous and unable to understand what was said.
Rivera does not allege that the government would have
had no basis for filing a murder charge against him. Indeed,
Rivera pled guilty to second degree murder in a Commonwealth
court. In the federal case, Escudero pled guilty to causing the
federal officer's death. Thus, the threat, even if made, was not
improper. See Bordenkircher v. Hayes, 434 U.S. 357, 362-65
___ _____________ _____
(1978) (prosecutor may threaten more serious charges if defendant
does not plead guilty, provided the evidence would support
charges). The record refutes Rivera's contentions.
The record shows that Rivera was aware at the time he
pled guilty that the government had announced that it would not
seek the death penalty. In connection with his change of plea,
Rivera initialed each page of a change-of-plea petition,
apparently prepared by Inserni, which specifically stated in a
handwritten entry that the maximum punishment was life imprison-
ment ("cadena perpetua"). The first handwritten entry had been
crossed out, however, and the only legible letters ("de") suggest
that Inserni first began to write "death" but then wrote "life
imprisonment."5 At the plea hearing, the court basically adopt-
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5Since the court had the plea petition before it when the
hearing began, we assume that it had been filled out and signed
previously. (We note, however, that the hearing began at 9 a.m.,
whereas the petition was stamped as filed at 1:10 p.m.). The
record contains no evidence that the court had informed the
parties before the plea hearing that it would not impose the
12
ed the government's position, indicating that it would not impose
the death penalty. Under oath at the hearing, moreover, Rivera
acknowledged that he knew that the government was not seeking the
death penalty, and also told the court that no one had threatened
him or coerced him into pleading guilty.6
Although Rivera now claims that he was too nervous and
confused to understand what was happening at the plea hearing and
that Inserni told him what answers to give, later events belie
his claim, including the fact that two months later, at sentenc-
ing, Rivera made an impassioned statement of remorse, which left
little doubt that he still believed himself guilty as stated
under oath at the plea hearing. Moreover, Rivera made no subse-
quent attempt (apart from the present) to inform the court of
Inserni's alleged lies and coercion, nor did he seek new counsel
in his later efforts to reduce his sentence. Rather, Inserni
brought Rivera's direct appeal of his sentence in 1987, his Rule
35(b) motion to reduce sentence in 1989, and his motion for
reconsideration, which ultimately led to the sentence reduction.
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death penalty. Thus, although correctly reflecting the parties'
position, the statement in the plea petition that life imprison-
ment would be the maximum penalty would appear to have been
overstated since the court had not yet acceded. See 18 U.S.C.
___
34.
6Rivera alleges that his counsel in the Commonwealth case
vehemently opposed Inserni's urgings that Rivera plead guilty,
thereby attempting, apparently, to support his claim that Inserni
had coerced him to plead guilty. Rivera submitted no affidavit
from local counsel, nor does he explain its absence. Moreover,
Rivera pled guilty to the Commonwealth charges.
13
In the years following his plea and sentencing, Rivera's letters
to Inserni do not question Inserni's representation until late
1989, and even then had nothing to do with any alleged coercion
or lies by Inserni.
As Rivera suggests no credible basis for disbelieving
his sworn statements at the plea hearing, no evidentiary hearing
was required. See Ouellette v. United States, 862 F.2d 371, 375-
___ _________ _____________
76 (1st Cir. 1988) (no evidentiary hearing required on claim that
counsel's misrepresentation caused defendant to plead, guilty
where, despite many chances to bring alleged misrepresentations
to court's attention, petitioner did not try to do so until his
2255 motion almost two and one-half years after sentencing;
"failure . . . to voice to the court any concern about the course
of events is directly at odds with [petitioner's] contention that
the record does not contradict his position"); United States v.
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Cermark, 622 F.2d 1049, 1051-52 (1st Cir. 1980) (similar).
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3. Judicial Participation in Plea Bargaining
3. Judicial Participation in Plea Bargaining
_________________________________________
At the plea hearing, Rivera indicated under oath that
he had not been threatened or induced (except as stated in the
plea agreement) to plead guilty and that he understood that the
government's 25-year recommendation did not bind the court. In
the plea agreement, signed before the court indicated that it
would not impose the death penalty, Rivera acknowledged that the
14
court could impose any sentence authorized by law.7 Likewise,
in his plea petition, Rivera acknowledged that the court could
impose the same punishment on him as if convicted by a jury, that
sentencing was solely for the court, and that the court had not
suggested what the actual sentence would be.
Rivera now claims that Inserni told him that Judge
Fust would not accept a guilty plea unless Rivera submitted a
"confession" accepting "some guilt." In his brief, Rivera
appears to argue that the judge actually was involved in the plea
bargaining process, and not that Inserni had misrepresented the
situation to him.8 Ultimately, this allegation depends on a
slip of the tongue at the outset of the plea hearing, when the
judge adverted to Rivera's plea petition as "a confession, which
you subscribed under oath." When Inserni reminded the court that
the plea petition was not under oath, Judge Fust immediately
stated that what he had before him was Rivera's plea petition.
We confess confusion concerning Rivera's allegations.
Rule 11 mandates that the court, before accepting a guilty plea,
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7Even assuming, as his affidavit states, that Rivera did not
see the plea agreement until just before the plea hearing, the
judge emphasized orally to Rivera that the government's recommen-
dation was not binding on the court.
8Prefatory remarks in Rivera's brief, however, state that
Inserni pressured him to plead guilty, requiring "confessions
admitting to some guilt based on supposed requests from the
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Court, . . . ." (Emphasis added.) In arguing the issue, Rivera
seems to settle on a claim that the court pressed Inserni to urge
Rivera to plead guilty, and that is the argument we address here.
15
inquire into the nature of the government's proof, the defen-
dant's understanding and voluntariness, and the existence of a
factual basis for the plea. See Fed. R. Crim. P. 11(c),(d),(f).
___
Thus, we attribute Rivera's allegations to misunderstanding.
See, e.g., Rodriguez v. United States, 964 F.2d 840, 841 (8th
___ ____ _________ ______________
Cir. 1992) (judge's exploration of factual basis for plea in
bench conference with counsel at plea hearing was not interven-
tion in plea negotiations); Fama v. United States, 901 F.2d 1175,
____ _____________
1178 (2d Cir. 1990) (court's rejection of first plea agreement,
based on concerns about voluntariness and factual basis for plea,
not impermissible participation in plea negotiations).
Beyond this, Rivera's allegations are vague, conclusory
and speculative. He neither alleges nor otherwise substantiates
that he was promised a 25-year sentence if he pled guilty, though
he seems to imply as much; he does not claim that, absent court
pressure, Inserni would not have recommended the plea; nor does
he say he was told to admit guilt or suffer specific untoward
consequences, or that he believed the court was threatening
adverse consequences unless he pled guilty. Thus, his allega-
tions did not raise a factual issue as to whether the judge took
part in plea negotiations.9
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9Furthermore, letters he wrote to Inserni after sentencing
suggest that Rivera's recollection concerning plea negotiations
is less than reliable and that he is confusing the court with the
United States Attorney. In a letter to Inserni a year after he
was sentenced, Rivera wrote: "You know very well that when Lopez
Romo [U.S. Attorney] spoke to you in order to get a plea bargain,
16
Finally, Rivera's suggestion that the court urged his
guilty plea in exchange for a 25-year sentence is refuted by
Rivera's later conduct. Had he believed that the court was
behind the government's 25-year recommendation, he would have
known on June 22, 1987, when he was sentenced to 99 years, that
the judge had reneged. Yet neither on direct appeal nor later
did Rivera raise the judicial intervention claim, nor does he now
claim that he wanted to do so but was prevented by counsel or
circumstances.
C. Newly Discovered Evidence
C. Newly Discovered Evidence
_________________________
In 1988 and 1989, Escudero testified at a preliminary
hearing, and in a Commonwealth bench trial, against union members
charged with arson and murder in connection with the hotel fire.
The trial judge acquitted the defendants, perhaps because he did
not credit Escudero's testimony. During the course of the
proceedings, Escudero allegedly testified that he had lied "many"
times to federal officials investigating the fire; that he had
not planned, agreed to or discussed starting a fire at the hotel
____________________
I made a statement which you took and the U.S. Attorney didn't
accept, and it was when I asked you what you had to say. And you
answered me you must accept the facts for him to accept it and in
this way reach a plea agreement." Subsequent letters by Rivera
refer to Judge Fust rather than U.S. Attorney Lopez Romo as the
one who would not accept Rivera's first "confession." In 1989,
Rivera wrote: "I would like you to obtain a copy of my first
guilty plea, which I [gave] to you and which Judge Fust suppos-
edly didn't want to accept as guilty and that was when we had to
do another so that he would arrive at the 25-year sentence, which
later was not fulfilled . . . ."
17
with Rivera "with the intention of destroying the hotel" while
travelling with Rivera to the hotel (though he acknowledged that
Rivera had said something to a security guard at the hotel about
"wreck[ing]" or "everybody's going to get screwed here"); Rivera
had encouraged others to "make a curtain" around Escudero when he
set the fire so that he would not be seen; and other union
members had induced Escudero to start the fire. Rivera argues
that Inserni would have discovered this evidence had he inter-
viewed Escudero, and would not have advised a plea.10
We are unpersuaded. First, in the form presented to
us, the transcripts, apparently comprising hundreds of pages in
their entirety, consist of selected snippets of Escudero's
testimony. Moreover, although some consecutive pages of testimo-
ny are provided, others are isolated and clearly exclude material
required for a full understanding of the testimony in context.
In other instances,no clearmeaning can begleaned intranslation.11
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10In the district court, Rivera moved for a "new trial" on
the basis of newly discovered evidence pursuant to Fed. R. Crim
P. 33 standards. The court noted that Rivera had not had a trial
and that his motion was late in any event. Since it found
Rivera's claim meritless under Rule 33, the court did not reach
the question whether Rivera's claim could be brought as a 2255
action. See Pelegrina v. United States, 601 F.2d 18, 19 & n.2
___ _________ ______________
(1st Cir. 1979). We need not address the legal issue either,
since the claim lacks merit.
11Rivera belatedly submitted an uncertified translation of
portions of Exhibit 30. Although Rivera did not attach a certif-
icate of service to the translation, the clerk of this court
served a copy on the government, and the government has not
objected to its inclusion in the record.
18
Second, the proffer of Escudero's testimony does not
purport to state that Rivera did not encourage Escudero to start
a fire, without Rivera's participation, with the purpose of
causing less significant property damage. Nor does it gainsay
that Rivera made statements at other times that day, or took
other actions, that encouraged Escudero to set the fire. The
fact that others initially urged Escudero to set the fire would
not relieve Rivera of liability for his own criminal actions.
Finally, since Rivera has not demonstrated entitlement
to an evidentiary hearing on the claim that his plea was invalid,
the later evidence, such as it is, that Escudero minimized
Rivera's involvement in the fire, is immaterial in view of the
district court's valid determination that Rivera's plea was
supported by the government's evidence. See United States v.
___ ______________
Kearney, 682 F.2d 214, 221-22 (D.C. Cir. 1982) ( 2255 motion,
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based on ground that key testimony was coerced and perjured, was
denied where other unchallenged evidence conclusively established
guilt).
D. Sentencing Disparity
D. Sentencing Disparity
____________________
Finally, we reject the claim that Rivera, allegedly
less culpable than Jimenez, should not have received a longer
term of imprisonment. This claim unsuccessfully attempts to
resurrect issues previously addressed on direct appeal. See
___
Jimenez-Rivera, 842 F.2d at 548-50.
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19
Affirmed.
Affirmed.
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20
