USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1228
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS E. PARRILLA-TIRADO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Lydia Lizarribar-Masini for appellant.
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Ernesto Hernandez-Milan, Assistant United States Attorney,
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with whom Guillermo Gil, United States Attorney, and Jose A.
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Quiles-Espinosa, Senior Litigation Counsel, were on brief, for
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appellee.
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April 28, 1994
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SELYA, Circuit Judge. Having rethought his guilty
SELYA, Circuit Judge.
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plea, defendant-appellant Luis E. Parrilla-Tirado (Parrilla)
moved to withdraw it pursuant to Fed. R. Crim. P. 32(d). The
district court denied the motion and thereafter imposed sentence.
Parrilla appeals. We affirm.
I. PROCEEDINGS BELOW
I. PROCEEDINGS BELOW
On April 24, 1991, appellant and a companion, Angel M.
Concepcion-Roberto (Concepcion), were apprehended after a high-
speed chase. The authorities discovered a firearm on the front
passenger seat of their car.1 On September 18, 1991, a grand
jury returned a two-count indictment. Count 1 charged appellant
with violating 18 U.S.C. 922(g)(1) (1988), a statute that
renders it unlawful for a convicted felon, among other things, to
"transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm," and also charged Concepcion
with assisting the crime's commission in violation of the aiding
and abetting statute, 18 U.S.C. 2(a) (1988). Count 2 reversed
the defendants' roles, charging that Concepcion knowingly
transported and/or possessed the firearm in violation of section
922(g)(1), and that appellant aided and abetted him.
Appellant was arraigned before a magistrate judge in
February of 1992. Notwithstanding the structure of the
indictment, the Assistant United States Attorney (AUSA)
inexplicably told the magistrate that appellant was being
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1The record reflects that Concepcion had been driving the
vehicle and that appellant had occupied the front passenger seat.
2
prosecuted exclusively on count 1. Consequently, the magistrate
arraigned appellant only on that count. He pled not guilty.
Four months later, appellant, through counsel,
negotiated a non-binding plea agreement with the government, see
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Fed. R. Crim. P. 11(e)(1)(A), under which he agreed to admit his
guilt on count 1 and the government agreed to seek dismissal of
the charge leveled against him in count 2. In due course, the
district court allowed appellant's change of plea. In September
1992, the probation office compiled and delivered the presentence
investigation report (PSI Report). In December, after having
been afforded an opportunity to scrutinize the PSI Report,
appellant moved to withdraw his plea. The district court denied
the motion, primarily on the ground that appellant's asserted
reasons lacked "force and plausibility." Soon thereafter, the
court sentenced appellant on count 1 and dismissed count 2.
Appellant now asserts that no consideration existed
within the plea bargain to support the guilty plea, and,
therefore, that he should have been allowed to withdraw it. This
assertion rests on two theses: (1) that the AUSA indicated at
arraignment that count 2 did not involve appellant; and (2) that
the two counts were, in all events, multiplicitous, and,
consequently, pleading guilty to one count effectively disposed
of the other.
II. ANALYSIS
II. ANALYSIS
We first set in place the framework under which motions
to withdraw pleas must be analyzed, and then turn to the
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specifics of appellant's asseverational array.
A. The Framework.
A. The Framework.
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Trial judges are the judiciary's infantry: they man
the front lines and, therefore, possess special insight into the
dynamics of the cases over which they preside. In deference to
that insight, we review the district court's decision to grant or
deny a request to withdraw a guilty plea solely for abuse of
discretion. See United States v. Doyle, 981 F.2d 591, 594 (1st
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Cir. 1992); United States v. Pellerito, 878 F.2d 1535, 1538 (1st
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Cir. 1989).
Although a motion to withdraw a guilty plea before
sentencing is determined under a less stringent standard than a
motion made after sentencing, see Fed. R. Crim. P. 32(d) advisory
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committee's note, a defendant does not have an automatic right to
withdraw his plea even at that comparatively early stage. See
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United States v. Buckley, 847 F.2d 991, 998 (1st Cir. 1988),
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cert. denied, 488 U.S. 1015 (1989); United States v. Kobrosky,
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711 F.2d 449, 454 (1st Cir. 1983). Rather, such a motion can be
granted before sentencing only upon an affirmative showing of a
"fair and just reason." Fed. R. Crim. P. 32(d). The devoir of
persuasion as to the existence of such a reason rests with the
defendant. See United States v. Gonzalez, 970 F.2d 1095, 1100
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(2d Cir. 1992); see also Fed. R. Crim. P. 32(d) advisory
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committee's note.
To gauge whether the asserted ground for withdrawal
meets the Rule 32(d) standard, a court must look at the overall
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situation, most prominently (1) the plausibility of the reasons
prompting the requested change of plea; (2) the timing of the
defendant's motion; (3) the existence or nonexistence of an
assertion of innocence; and (4) whether, when viewed in light of
emergent circumstances, the defendant's plea appropriately may be
characterized as involuntary, in derogation of the requirements
imposed by Fed. R. Crim. P. 11,2 or otherwise legally suspect.
See Doyle, 981 F.2d at 594; Pellerito, 878 F.2d at 1537. And
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there is a final barrier that must be surmounted: even if a
defendant appears at first blush to meet the strictures of this
four-part test, the nisi prius court still must evaluate the
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proposed plea withdrawal in relation to any demonstrable
prejudice that will accrue to the government if the defendant is
permitted to alter his stance. See Doyle, 981 F.2d at 594;
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Pellerito, 878 F.2d at 1537.
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B. Applying the Framework.
B. Applying the Framework.
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We run the gauntlet of relevant factors, discussing
them in sequence.
1. Plausibility of the Asserted Reasons. A defendant
1. Plausibility of the Asserted Reasons.
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bent on withdrawing a guilty plea ordinarily must demonstrate a
plausible reason for doing so. See United States v. Tilley, 964
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F.2d 66, 72 (1st Cir. 1992). In this context, plausibility must
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2Three facets of Rule 11 are especially important in this
respect. Rule 11(c) prescribes, in exquisite detail, the advice
that a court must give to a defendant who indicates a desire to
enter a guilty plea. Rule 11(d) prescribes a procedure for
ensuring that any plea is voluntary in nature. Rule 11(e)
outlines a series of safeguards referable to plea agreements
between accuser and accused.
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rest on more than the defendant's second thoughts about some fact
or point of law, see United States v. Nichols, 986 F.2d 1199,
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1203 (8th Cir. 1993), or about the wisdom of his earlier
decision, see United States v. Austin, 948 F.2d 783, 787 (1st
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Cir. 1991). We do not think that either of appellant's proffered
reasons can vault this hurdle.
a. Refined to bare essence, appellant's flagship claim
a.
is that, because the government did not intend to prosecute him
under count 2, he received nothing of value in exchange for his
plea to count 1. This argument prescinds from a presentable
premise: after all, we frequently have said that plea agreements
are contractual in nature. See, e.g., United States v. Atwood,
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963 F.2d 476, 479 (1st Cir. 1992); United States v. Hogan, 862
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F.2d 386, 389 (1st Cir. 1988). But this analogy can only be
carried so far. Any time a defendant pleads guilty, he receives
some built-in benefits, cf., e.g., Corbitt v. New Jersey, 439
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U.S. 212, 224 n.14 (1978) (discussing leniency usually accorded
to defendants who plead guilty as opposed to those who stand
trial); U.S.S.G. 3E1.1 (making available reduction in offense
level for acceptance of responsibility), and so long as the
government does not make a material misrepresentation, renege on
a promise, or breach the plea agreement, see, e.g., Santobello v.
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New York, 404 U.S. 257, 262 (1971), we do not believe that any
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further consideration is essential to support a guilty plea.
In any event, appellant received the full benefit of
his bargain in this case. The indictment made manifest, and the
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plea agreement confirmed, the grand jury's decision to charge
appellant with two crimes, not one. Although appellant had not
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been arraigned on count 2, that was a matter of mere mechanics.
He could have been arraigned, and, ultimately, prosecuted, at
virtually any time.3 Thus, count 2 remained a viable option and
the dismissal of it benefitted appellant. Accordingly,
appellant's first asserted reason for seeking to withdraw his
plea lacks force.
b. As an alternative reason, appellant asserts that
b.
the dismissal of count 2 did not amount to valuable consideration
because the two counts of the indictment in reality comprised a
single charge. This assertion mischaracterizes the components of
the indictment and the relationship of the counts inter sese.
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We do not dispute the basic proposition on which this
assertion is founded. Indeed, it is apodictic that no person
shall "be subject for the same offence to be twice put in
jeopardy of life or limb." U.S. Const., amend. V. To this end,
the Double Jeopardy Clause shields a defendant from a second
prosecution for the same offense after either an acquittal or a
conviction, and also shields a defendant from multiple
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3To be sure, an overlong period of delay between indictment
and arraignment might vitiate the prospects for future
prosecution. See U.S. Const. amend. VI; see also United States
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v. Mala, 7 F.3d 1058, 1061 (1st Cir. 1993). But the delay here,
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as of the time appellant negotiated the plea agreement, was not
overly protracted. And in any event, even an extraordinary
period of delay in arraigning a defendant does not automatically
annul an indictment, but merely serves, if and when raised, to
trigger an analysis of relevant factors that eventually may lead
to a dismissal of the charge. See, e.g., Barker v. Wingo, 407
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U.S. 514, 530 (1972); Mala, 7 F.3d at 1062 n.3.
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punishments for the same offense. See Jones v. Thomas, 491 U.S.
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376, 380-81 (1989); United States v. Rivera-Martinez, 931 F.2d
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148, 152 (1st Cir.), cert. denied, 112 S. Ct. 184 (1991). Thus,
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an indictment may be regarded as repugnant to the Double Jeopardy
Clause if it charges a single offense in more than a single
count. See United States v. Lilly, 983 F.2d 300, 302 (1st Cir.
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1992).
The Supreme Court has spoken to this topic in
unambiguous terms:
The applicable rule is that where the same
act or transaction constitutes a violation of
two distinct statutory provisions, the test
to be applied to determine whether there are
two offenses or only one, is whether each
provision requires proof of a fact which the
other does not.
Blockburger v. United States, 284 U.S. 299, 304 (1932). If,
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applying the Blockburger test, the crimes charged are discrete
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offenses, the defendant may be prosecuted for both offenses even
though they arise out of the same conduct, but if the crimes
charged have the same elements, or if one is a lesser included
offense of the other, double jeopardy at some point will bar the
door. See United States v. Dixon, 113 S. Ct. 2849, 2857, 2860
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(1993); United States v. Colon-Osorio, 10 F.3d 41, 45-46 (1st
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Cir. 1993).
Under Blockburger, appellant's claim fails. Count 1 of
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the indictment requires a showing that appellant, after having
been convicted of a felony, transported or possessed the firearm
discovered by the police. See 18 U.S.C. 922(g)(1). Count 2
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requires a showing that Concepcion, rather than appellant, had
been convicted of a prior felony, that Concepcion, rather than
appellant, knowingly transported or possessed the firearm, and
that appellant, rather than Concepcion, aided and abetted. On
the allegations contained in that count, appellant could not have
been convicted under section 922(g)(1), but only under the
separate aiding and abetting statute, 18 U.S.C. 2(a). Plainly,
then, the elements of the two offenses are distinct rather than
identical. Hence, there is no multiplicitousness. See Colon-
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Osorio, 10 F.2d at 45.
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2. Timing. The timing of a motion to withdraw a
2. Timing.
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guilty plea is significant. Delayed requests, even if made
before sentencing, are generally regarded with disfavor. See
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Pellerito, 878 F.2d at 1541. The rule of thumb is that the
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longer a defendant waits before moving to withdraw his plea, the
more potency his motion must have in order to gain favorable
consideration. See Doyle, 981 F.2d at 595.
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In this case, appellant waited roughly six months
before he moved to withdraw his plea. And, moreover, his belated
change of heart followed not long after the PSI Report a
document which contained, inter alia, information suggesting that
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a stiff sentence loomed arrived at the court's doorstep.4 In
appellant's case, then, a simple chronology of events serves to
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4The PSI Report not only suggested a guideline sentencing
range of 188-235 months, but also indicated that grounds for an
upward departure might exist. Appellant filed his motion to
withdraw shortly after having had an opportunity to examine the
report.
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cast a long shadow over the legitimacy of his professed reasons
for seeking to change course. Courts need not accept a
defendant's explanations uncritically. See generally United
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States v. O'Brien, 14 F.3d 703, 708 (1st Cir. 1994) (reminding us
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that "[t]here are limits to coincidence").
3. Claim of Innocence. In determining whether a
3. Claim of Innocence.
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proposed plea withdrawal is fair and just, a defendant's
assertion of innocence may weight the scales in favor of
withdrawal, and conversely, the absence of a claim of innocence
weights the opposite pan of the scales. See Doyle, 981 F.2d at
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596; Kobrosky, 711 F.2d at 455. Appellant derives no comfort
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from this tenet. In his motion papers, he did not profess his
innocence. Thus, this factor cuts sharply against allowing
appellant's motion to withdraw his guilty plea.
4. Other Considerations. Other considerations can, of
4. Other Considerations.
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course, influence whether a defendant should be allowed to
withdraw a guilty plea. Here, however, we discern no
miscellaneous considerations that counsel in favor of permitting
appellant to withdraw his plea. To the contrary, the record
discloses that appellant entered the plea voluntarily, with full
knowledge of the terms of the plea agreement, see Austin, 948
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F.2d at 787, and under circumstances wherein the plea evidenced
an intentional relinquishment of a known right.
Furthermore, despite the AUSA's misstatement at
arraignment, the key facts were at appellant's disposal from the
very outset. The indictment itself was crystal clear. The plea
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agreement was pellucid in its description of the two counts.
Then, too, the court explained matters fully during the change-
of-plea hearing and appellant assured the court that he
understood both the agreement (which he had signed) and the
consequences of the ensuing plea. He also assured the court that
he entered into the plea and the plea agreement of his own free
will.
We will not paint the lily. It is the policy of the
law to hold litigants to their assurances. As we wrote in an
analogous case, "[w]e will not permit a defendant to turn his
back on his own representations to the court merely because it
would suit his convenience to do so." Pellerito, 878 F.2d at
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1539. So it is here.
III. CONCLUSION
III. CONCLUSION
We need go no further.5 Given reasons for withdrawal
that are lacking in plausibility, an extended time lapse between
the original plea and the motion to withdraw, the absence of any
assertion of innocence, the district court's scrupulous adherence
to the dictates of Rule 11, and the totality of the attendant
circumstances, we discern no hint of discretion abused in the
court's refusal to permit appellant to withdraw his guilty plea.
To be blunt, appellant had no entitlement to a second bite of the
fig and we will not afford him one.
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5Because appellant has utterly failed to present a fair and
just reason for plea withdrawal, we need not discuss possible
prejudice to the government. See Doyle, 981 F.2d at 596 n.6;
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Buckley, 847 F.2d at 998 n.5.
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Affirmed.
Affirmed.
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