USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2132
UNITED STATES OF AMERICA,
Appellee,
v.
BRUCE RAINERI,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
__________________________
____________________
Before
Selya and Boudin, Circuit Judges,
______________
and Carter,* District Judge.
______________
____________________
Dorothy F. Silver, by Appointment of the Court, for appellant.
_________________
Jean B. Weld, Assistant United States Attorney, with whom Paul M.
____________ _______
Gagnon, United States Attorney, was on brief for the United States.
______
____________________
December 9, 1994
____________________
____________________
*Of the District of Maine, sitting by designation.
BOUDIN, Circuit Judge. On April 6, 1992, Bruce Raineri
_____________
("Raineri") was indicted together with five other defendants:
Gary Neal, William Kenney, Charles Flynn, Richard Ferguson
and Brian Raineri. The lengthy indictment charged various of
the defendants with a series of offenses arising out of the
planning and execution of a string of armed robberies in New
Hampshire during 1991. The three charges against Raineri all
related to his alleged participation in a single armed
robbery of the home of a grocery chain owner named
Fitzpatrick during the summer of 1991, apparently in the hope
of obtaining the store proceeds.
In the indictment, count 14 charged Raineri with
conspiracy to obstruct interstate commerce by robbery
involving actual or threatened force and violence. 18 U.S.C.
1951. Count 24 charged Raineri with using or carrying
firearms during and in relation to the conspiracy. 18 U.S.C.
924(c)(1). Count 28 charged Raineri with possessing
firearms (specifically, a rifle and shotgun) after having
previously been convicted for a crime punishable by more than
one year's imprisonment. 18 U.S.C. 922(g), 924(e)(1).
On June 17, 1992, Raineri pled guilty to all three
charges based on a plea agreement with the government. The
inducement offered in the plea agreement was the government's
commitment to move for a departure under U.S.S.G. 5K1.1 if
(in the government's judgment) Raineri provided substantial
-2-
-2-
assistance. In the plea hearing pursuant to Fed. R. Crim. P.
11, Raineri told the court that his plea was voluntary and
was based on no inducement other than the plea agreement.
The prosecutor provided a proffer of evidence for each of the
counts and Raineri stated on the record, without
qualification, that the description was correct.
As to penalties, the court asked Raineri if he was aware
of the maximum penalties provided for the three offenses, and
Raineri replied: "Ten years, 20 years, and five years." The
court then said:
Count fourteen is 20 years and a fine of $10,000 or
both. Count Twenty-four is five years
imprisonment, which must be consecutive to the
crime of violence. Count Twenty-eight is ten years
and a fine of $10,000 or both. Do you understand
that?
Raineri replied: "Yes, I do." There was no reference to
supervised release or restitution. Neither defense counsel
nor the prosecutor expressed any disagreement with the
district court's description of penalties.
On October 2, 1992, Raineri's counsel filed motions to
withdraw his guilty plea, to continue his trial (trial for
several other defendants who had not pleaded guilty was
scheduled for October 5), and to permit counsel to withdraw.
As reasons for the requested withdrawal of the guilty plea,
Raineri's motion said in conclusory terms that he was not
guilty, that he had not understood the charges against him or
his exposure under the Sentencing Guidelines, and that he was
-3-
-3-
suffering at the time of his plea from lack of medicine to
counteract his drug dependency.
On October 5, 1992, the district court denied Raineri's
motion to withdraw his guilty plea but appointed for him new
counsel, who also now represents Raineri on this appeal. The
district court then proceeded to try three co-defendants, the
other two having pleaded guilty. The co-defendants who were
tried--Neal, Kenney and Flynn--were subsequently convicted on
a number of charges, and this court largely affirmed. United
______
States v. Neal, 36 F.3d 1190 (1994). The convictions
______ ____
included charges relating to the August 3, 1991, armed
robbery of the Fitzpatrick home in which Raineri had been
implicated.
In March 1993, Raineri's new counsel filed new motions
seeking withdrawal of the guilty plea. The reasons now
offered were that Raineri had not been mentally competent to
plead guilty because he was then suffering from lack of
methadone; that the government had failed to disclose at
sentencing its additional (alleged) promise that Raineri
would be given immediate access to methadone if he pleaded
guilty; and that he had not been adequately represented by
prior counsel. Faced with these claims, the court scheduled
an evidentiary hearing for April 15, 1993.
At the April 15 hearing, Raineri testified; he described
his alleged defenses (e.g., that he had not been at the scene
____
-4-
-4-
of the break-in and had never possessed the rifle and shotgun
attributed to him) and said that the intended crime was
burglary of an unoccupied home rather than armed robbery of
individuals. He also said that he pleaded guilty to get
methadone and that he had not known that the five-year
sentence under count 24 was mandatory. Finally, Raineri
explained that he had delayed from June to October 1992 in
seeking to withdraw his plea because of difficulties in
reaching his then-counsel. Raineri's former counsel
testified at length about his representation, admitting that
he had not returned some phone calls from Raineri during the
summer of 1992.
On April 20, 1993, Raineri's counsel filed an amended
memorandum of law urging another basis for withdrawing the
guilty plea. Counsel explained that Raineri's presentence
report had been received in March 1993, and it disclosed for
the first time that Raineri had three previous convictions
for violent felonies or serious drug offenses. Raineri had
been advised at the plea hearing that the penalty under count
28 was a maximum of 10 years' imprisonment, $10,000 fine or
both; but his triple felony record meant that he was subject
to a minimum of 15 years' imprisonment and the maximum fine
was $25,000. 18 U.S.C. 922(g), 924(e)(1). The government
responded that in order to "remedy any possible defects," it
-5-
-5-
was moving to dismiss count 28 of the indictment under Fed.
R. Crim. P. 48(a).
On April 25, 1993, the district court entered an order
granting the motion to dismiss count 28 pursuant to Rule
48(a). The court rejected as untrue Raineri's claim that the
government had induced his plea by promising to place him
immediately in a methadone treatment program. It found that
his original counsel had not provided ineffective assistance.
Finally, the court found a lack of good cause to permit a
withdrawal of the guilty pleas pursuant to Fed. R. Crim. P.
32(d):
Here, the timing (3-3/2 months after entry of
plea); (lack of) force and plausibility of reasons;
(unpersuasive) assertion of innocence; the finding
of no breach of the plea agreement; and the finding
that the defendant's plea on June 17, 1992, can
still be regarded as voluntary, intelligent, and
otherwise in conformity with Rule 11, Fed. R. Crim.
P.; requires the further finding that "no fair and
just reason" exists such as to permit the
withdrawal of the defendant's pleas. United States
_____________
v. Tilley, 964 F.2d 66, 72 (1st Cir. 1992).
_________
On September 27, 1993, the court held a sentencing
hearing. At Raineri's behest, his brother Brian testified.
He implicated Bruce in the conspiracy to rob Fitzgerald's
home, but said Bruce had not been present at the house. He
also said that no one had expected the house to be occupied
or a gun to be used, although in fact the house was occupied
and co-conspirator Kenney turned out to be carrying a
handgun. Finally, Brian testified that the cooperation that
-6-
-6-
he provided in testifying at the October 1992 trial of the
co-defendants was also supposed to inure to the benefit of
Bruce. The government presented testimony that any departure
in favor of Bruce Raineri was to be based on his own
cooperation, not that of his brother, and that Bruce
Raineri's attempted withdrawal of his guilty plea made him
useless to the government as a trial witness against the non-
pleading defendants. Other government evidence, largely
hearsay but still properly considered at sentencing,
indicated that Bruce Raineri had transported his brother and
the stolen property after the break-in was completed, and
that he and his brother moved a rifle and shotgun from the
van to another car.
Raineri himself testified at the sentencing hearing. He
admitted helping to plan the break-in and accompanying his
brother to a rendezvous point. He denied that a rifle or
shotgun had been carried or that he had known about any
weapon. He said that at the time of his guilty plea he had
been "in a severe state of withdrawal from methadone" and had
expected the methadone treatment to recommence "upon the
guilty plea." He also said that he knew that the sentence
for carrying a firearm under count 24 would be consecutive,
but not that it was mandatory.
At the end of the sentencing hearing, the court found,
based on the testimony at the co-defendants' trial, that guns
-7-
-7-
had been carried in the van by the Raineri brothers. The
court also found that Raineri had obstructed justice by lying
to the court and was not entitled to a reduction for
acceptance of responsibility. Raineri was then sentenced to
60 months' imprisonment on count 14, 60 months' imprisonment
on count 24 to be served consecutively, and five years'
supervised release, and he was ordered to make restitution in
the amount of $5,988. This appeal followed.
I.
Raineri's first and most powerful claim on appeal is
that his original guilty plea was not "knowing or voluntary
and otherwise in conformity with Rule 11(c)(1) because he was
not properly informed of the consequences of his plea." Rule
11 prescribes numerous steps that must be followed before a
defendant is allowed to plead guilty. As to penalties--the
issue with which we are immediately concerned--the rule says
that before accepting the guilty plea, the court must address
the defendant personally in open court and inform the
defendant of, and determine if the defendant understands,
the mandatory minimum penalty provided by
law, if any, and the maximum possible
penalty provided by law including the
effect of any special parole or
supervised release term, . . . and when
applicable, that the court may also order
the defendant to make restitution to any
victim of the offense.
Fed. R. Crim. P. 11(c)(1).
-8-
-8-
One might expect that whatever the complexity of the
Sentencing Guidelines, it would be easy accurately to advise
the defendant of the statutory penalties. But as this case
shows, the statutory penalties themselves are sometimes
complicated; the defendant may be charged with multiple
counts; and the penalties may depend on information (such as
prior convictions) that is not automatically available to the
district judge at the time of the plea. Accordingly,
district judges often rely heavily, although not exclusively,
on the prosecutor to provide the court with a description of
statutory penalties or at least to advise the court if it
misstates the terms.
Here, the prosecutor did provide a statement of
statutory penalties in the plea agreement, the district court
followed this script, and the result was a set of mistakes.
Most important, Raineri was incorrectly told that the penalty
for count 28, the possession of firearms charge, was a
maximum of 10 years' imprisonment and a $10,000 fine.
Because Raineri apparently had three prior felonies involving
violence or serious drug offenses, he was subject to a
mandatory minimum of 15 years' imprisonment and the maximum
fine was increased to $25,000. It appears that the district
court, the prosecutor and Raineri's then defense counsel were
all unaware that Raineri was subject to this enhanced
penalty.
-9-
-9-
Whether Raineri was adequately counselled on the penalty
for count 24 is debatable. The district court told him that
the penalty was "five years imprisonment, which must be
consecutive to the crime of violence", so there is no doubt
that Raineri knew that he was subject to a consecutive five-
year sentence. Raineri denies that he understood that this
five-year term was mandatory, while the government points to
the term "must" as implying that the term is mandatory. The
district court made no findings on the point, apparently
because Raineri's counsel did not separately urge this
alleged misunderstanding as a basis for setting aside the
plea.
Finally, the court did not expressly advise Raineri that
supervised release might be imposed or of his liability to
pay restitution. Both warnings are required by the language
of Rule 11(c)(1) quoted above. The result is three separate
admitted omissions or mistakes in the advice required to be
given by the rules (the misstatement of the fine and
imprisonment levels under count 28; the failure to mention
supervised release terms; and the failure to mention
restitution). A possible fourth mistake may exist (failure
to explain the mandatory character of the five-year sentence
under count 24), depending on how the court's warning is
read.
-10-
-10-
The legal effect of a Rule 11 violation is more
difficult to state concisely. Ordinarily, a defendant who
pleads guilty has no automatic right to withdraw a plea even
before sentencing. See, e.g., United States v. Buckley, 847
___ ____ _____________ _______
F.2d 991, 998 (1st Cir. 1988), cert. denied, 488 U.S. 1015
____________
(1989). Rule 32(d) provides that "the court may permit
withdrawal of the plea upon a showing by the defendant of any
fair and just reason," and we have said that decisions by the
district court under this standard are reviewed only for
abuse of discretion. See United States v. Doyle, 981 F.2d
___ _____________ _____
591, 594 (1st Cir. 1992). Recently, in United States v.
______________
Parrilla-Torado, 22 F.3d 368, 371 (1st Cir. 1994), this court
_______________
said that the exercise of discretion under Rule 32(d) depends
on "the overall 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, or otherwise legally suspect.
Id. at 371 (omitting footnote and citations).
___
Yet "discretion" may be somewhat more limited where
there is an outright violation of Rule 11 rather than merely
second thoughts by a defendant prompting him to reconsider
his plea. Originally, a line of decisions emanating from
-11-
-11-
McCarthy v. United States, 394 U.S. 459 (1969), suggested
________ ______________
that the district court had to allow the withdrawal of a
guilty plea where the earlier plea hearing did not conform to
Rule 11. In response, Rule 11 was itself amended in 1983 to
add Rule 11(h), which is entitled "Harmless Error" and
provides: "Any variance from the procedures required by this
rule whichdoesnotaffect substantialrightsshallbedisregarded."
In this case, Raineri was told, or at least ought to
have understood from what he was told, that he faced
potential imprisonment of 35 years and a maximum fine of
$20,000. His actual exposure was worse than what he was told
(a minimum of 20 years and a maximum of 45), but what he
received was less--indeed far less--than the maximum of which
he had been inaccurately warned. He received only ten years'
imprisonment, five years' supervised release and no fine but
about $5,000 in restitution. The question is what should be
done where the defendant is not advised of the full penalties
to which he may be subject but actually gets the benefit of
the lesser penalty.
Harmless error analysis usually poses the question
whether the error influenced the decisionmaker or whether the
ultimate outcome would have been the same if the error had
not been committed, but this is not necessarily the proper
perspective in a case such as our own. It is true that
Raineri might not have pled guilty if he had been correctly
-12-
-12-
told that a far larger penalty threatened him. But one might
ask why the defendant is entitled to complain if the actual
punishment is no worse than what he was told, and what he was
told was even less than the law allows. Arguably, such a
defendant ought to be pleased with the error--unless, for
extraneous reasons, he has in the meantime changed his mind
about making the plea.
Rule 11(h) did not adopt a "but for" test of harmless
error; it speaks of error affecting the "substantial rights"
of the defendant, a general phrase that allows a measure of
interpretation. The Advisory Committee notes to Rule 11(h)
provide, as an illustration of harmless error, an instance in
which "the judge understated the maximum penalty somewhat,
but the penalty actually imposed did not exceed that
indicated in the warnings." There is some case law that
supports the view that a defendant should not be heard to
complain if he ultimately gets the benefit of the lesser
sentence that was inaccurately described to him at the time
of the plea, see, e.g., United States v. Bashara, 27 F.3d
_________ _____________ _______
1174, 1179-80 (6th Cir. 1994); United States v. Bachynsky,
_____________ _________
934 F.2d 1349, 1359-60 (5th Cir.), cert. denied, 112 S. Ct.
____________
402 (1991), but the law is admittedly not uniform in all
circuits or perfectly settled. See United States v. Whyte, 3
___ _____________ _____
F.3d 129, 130 (5th Cir. 1993).
-13-
-13-
We think that a defendant who gets the benefit of such
an inaccurately described lesser sentence is normally not
prejudiced, but that there can be no absolute rule because
such misadvice may not always be harmless. For example,
imagine a defendant who is wrongly told at the Rule 11
hearing that the maximum penalty for his crime is five years
when in fact the maximum penalty is 15 years. The defendant
might fairly expect, given his own past history and limited
role in the offense, that the maximum sentence (whatever it
might be) would not be likely to be imposed. If he then pled
guilty and thereafter received a five-year sentence, he might
reasonably think that the misinformation had prejudiced him
in a rather concrete way. Cf. United States v. Whyte, 3 F.3d
___ _____________ _____
at 130.
In our case, there is no indication that the
misinformation given to Raineri at the Rule 11 hearing led
him to expect a lesser penalty than he actually received.
Raineri had an extensive criminal record and therefore little
basis to expect lenient treatment, apart from any departure
_____
motion the government might make if he provided substantial
assistance. Absent a departure motion, we see no reason why
Raineri should have expected that his sentence would be
substantially less than 15 years (here, 10 in prison and 5 on
supervised release), a figure that is less than half of the
maximum amount of which he had been warned.
-14-
-14-
The same reasoning applies to the district judge's
failure to inform Raineri of the possibility of supervised
release and of restitution, rather than a fine. Courts have
commonly held that such errors are harmless when the
defendant receives a combined sentence of imprisonment and
supervised release that is less than the maximum term of
imprisonment earlier described. See, e.g., United States v.
_________ _____________
Gracia, 983 F.2d 625, 628 (5th Cir. 1993). The same rule is
______
followed where the defendant is required to pay restitution
in an amount less than the potential fine of which he was
warned. See, e.g., United States v. Padin Torres, 988 F.2d
_________ _____________ ____________
280, 283-84 (1st Cir. 1993).
-15-
-15-
II.
Raineri's second claim of error is that the district
court "abused its discretion and acted beyond its authority
under Rule 48(a)" in granting the government's motion to
dismiss count 28 after Raineri had pled guilty. Ordinarily a
defendant is not entitled to appeal a dismissal under Rule
48(a). However, Raineri argues that the wrongful dismissal
undercut the plea agreement and that he was entitled on that
ground to withdraw his guilty plea. The district court's
refusal to allow him to withdraw his plea is, of course,
reviewable at this time together with any legal issues
bearing on that refusal.
If count 28 had been dismissed with prejudice, we would
summarily reject Raineri's argument as a rather mechanical
claim that he did not get what he bargained for. It is quite
true that Raineri's bargain included a plea of guilty to
count 28, but a dismissal of that count with prejudice would
be an even better outcome for Raineri as far as count 28 is
concerned. To the extent that the dismissal helped to
preserve his guilty plea on other counts, the dismissal of
count 28 might disadvantage him, but it is hard to see why
the dismissal would thereby be wrongful or the disadvantage
one with which a court should be concerned.
The difficulty in this case is that the government did
not ask for a dismissal with prejudice nor did the district
-16-
-16-
court say that the dismissal was with prejudice. Customarily
Rule 48(a) dismissals are without prejudice and permit the
government to reindict within the statute of limitations.
See, e.g., United States v. Matta, 937 F.2d 567, 568 (11th
__________ _____________ _____
Cir. 1991). Surprisingly, Raineri's counsel does not urge
this defect, possibly for fear of conceding that Raineri
could be reprosecuted on count 28. But we think that the
issue is so patent, and the threat of unfairness to Raineri
is so severe, that the matter would raise a "plain error"
issue, even if it were not intimately related to the Rule
48(a) issue raised by Raineri.
A defendant who pleads to a set of charges may or may
not believe that the guilty plea will produce a lesser
penalty; but one thing the defendant who agrees to plead on
all counts does expect is that there will be no future trial
on any of these counts. A defendant willing to plead guilty
to all counts might well be unwilling to plead guilty to some
of them while leaving others available to the government for
future prosecution. We have no reason to think that if the
government had offered to accept a plea from Raineri on
counts 14 and 24 and said that it reserved the right to
prosecute on count 28 at a later date, that he would have
pleaded guilty to any of the counts.
"[A] court of appellate jurisdiction may . . .
direct the entry of such appropriate judgment . . . as may be
-17-
-17-
just under the circumstances." 28 U.S.C. 2106. It is
possible that this court could itself order that the
dismissal be modified to reflect that it is a dismissal with
prejudice. See, e.g., United States v. Rossoff, 806 F. Supp.
_________ _____________ _______
200, 202-03 (C.D. Ill. 1992) (holding that a court may
dismiss under Rule 48(a) with prejudice if retrial would be
fundamentally unfair). The government would have little
equity in opposing such a directive. Alternatively, we might
rule now, as part of our holding, that any future prosecution
of Raineri on count 28 would constitute harassment and would
be barred--a determination that would be likely to give
Raineri substantial protection. See United States v.
___ ______________
Salinas, 693 F.2d 348 (5th Cir. 1982).
_______
Nevertheless, the choice to forego permanently a
prosecution is ordinarily made by the executive branch. See,
____
e.g., Wayte v. United States, 470 U.S. 598, 607 (1985).
____ _____ ______________
Thus, while a dismissal of count 28 with prejudice is a quid
pro quo for retaining the guilty pleas on counts 14 and 24,
we think that there is no reason to compel the government to
accept a dismissal with prejudice if it wants instead to
surrender the guilty pleas and give the defendant the trial
he is demanding. Accordingly, on this single issue we
propose to remand to require the government to make an
appropriate election.
-18-
-18-
III.
Raineri's remaining assertions of error require less
discussion. One of them concerns the district court's
decision to reject Raineri's claim that his original counsel
provided ineffective assistance. Prior to the Supreme
Court's decision in Strickland v. Washington, 466 U.S. 668
__________ __________
(1984), we reviewed a district judge's determination as to
competence only for clear error. See United States v.
___ ______________
DiCarlo, 575 F.2d 952, 954-55 (1st Cir.), cert. denied, 439
_______ ____________
U.S. 834 (1978). Since Strickland, the standard of review
__________
may be more rigorous where the issue is not a matter of
historical fact but of deciding how much competence is
enough. See United States v. McGill, 11 F.3d 223, 226 n.2
___ _____________ ______
(1st Cir. 1993). Raineri's claim fails under any standard we
might apply.
In this instance, Raineri's new counsel offers two
separate claims of incompetence. The first is that Raineri's
counsel failed to advise Raineri properly as to the penalties
to which he was subject, and Raineri points specifically to
the failure to identify the 15 year minimum applicable to
count 28. Hill v. Lockhart, 474 U.S. 52, 57 (1985). Here,
____ ________
even if Raineri could show incompetence on this point, he
could not show prejudice, which is also required. The
failure of counsel to advise Raineri accurately of the
penalty on count 28 was not prejudicial to Raineri because
-19-
-19-
count 28 was dismissed and that dismissal will be with
prejudice if the guilty pleas are allowed to stand.
Raineri's brief offers, as the second instance of
alleged incompetence, the asserted failure of original
defense counsel "to conduct a reasonable investigation into a
potential line of defense . . . ." No such "line of defense"
is identified, although Raineri's new counsel may have in
mind the possibility that the rifle and shotgun were not
present in the van and that Kenney's possession of a handgun
was unknown to and unforeseeable by Raineri. Raineri's brief
simply asserts, as the sole evidence of inadequate
representation, that the time sheets of Raineri's original
defense counsel show "that the attorney spent only 1.8 hours
. . . reviewing applicable law" and this research took place
prior to counsel's first meeting with the defendant.
Counsel's time records might provide a basis for further
inquiry but the records do not, standing alone, prove either
that counsel was incompetent or that the incompetence
prejudiced defendant. Perhaps Raineri told his lawyer when
they first met that he was guilty as charged on all counts
and provided sufficient detail so that counsel saw no point
in further investigation of the merits and turned his
attention to securing a plea agreement providing for a
substantial downward departure if Raineri provided full
assistance. On this record we know only that Raineri's
-20-
-20-
counsel originally negotiated what appeared to be favorable
plea bargain, and Raineri squandered the opportunity by
refusing at the last moment to provide full cooperation.
This brings us to Raineri's fourth and final claim of
error. Raineri now argues that the government was obliged to
move for a downward departure because Raineri did in fact
provide substantial assistance to the government. The
government's plea agreement expressly said here (as it
commonly does) that the substantial-assistance decision was
one to be made solely by the prosecutor. But in certain
limited situations, the government's failure to move for a
downward departure may be the subject of judicial review.
Wade v. United States, 112 S. Ct. 1840, 1844 (1992); United
____ _____________ ______
States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992).
______ ______
We will assume arguendo that, as he now claims, Raineri
________
gave the government a considerable amount of information that
may have been useful to it. Possibly, under a dictionary
definition of the term, the assistance could be called
"substantial." But Raineri was not automatically entitled to
a dictionary definition where, in the very same document, the
government reserved to itself the authority to decide what
assistance was substantial. The government may decide to
make such a motion (and the district court to grant it if
made) based on quite limited help or results, United States
_____________
v. Torres, 33 F.3d 130, 133 (1st Cir. 1994); but since by
______
-21-
-21-
statute the motion is discretionary with the government, see
18 U.S.C. 3553(e), the government may choose to insist on
quite a lot of assistance if it wants to do so.
Whatever the limitations on the government's authority
to refuse to make a departure motion, it is obvious to us
that the government was entitled to expect Raineri to be
available to testify at his co-defendants' trial if the
government wanted to use him. It is equally clear that his
last-minute attempt to deny his guilt after earlier admitting
it undermined his value as a witness. This was not the kind
of "substantial" assistance that the government was entitled
to demand. Sullivan v. United States, 11 F.3d 573, 575 (6th
________ _____________
Cir. 1993) (holding that, absent bad faith or
unconstitutional motive, a prosecutor may decline to seek a
substantial-assistance reduction for any rational reason).
Finally, we have considered whether guilty pleas should
be set aside--even though none of the individual arguments
made by Raineri is persuasive--under some type of per se rule
or because of a threatened miscarriage of justice. On the
former point, we think that there may well be Rule 11
hearings so fundamentally defective that harm must be assumed
or deemed irrelevant. Cf. United States v. Medina Silverio,
___ _____________ ________________
30 F.3d 1, 2-4 (1st Cir. 1994) (almost complete absence of
Rule 11 colloquy). But just as there are many fair trials
but few perfect ones, so flaws are also to be expected in
-22-
-22-
Rule 11 proceedings as they, and the penalties to be
described, grow ever more complicated. Where the basic
structure of the Rule 11 proceeding is observed, and the
individual errors are shown to be harmless, we think that
Rule 11(h)'s explicit forgiveness of harmless error should
normally be respected.
The outcome would be quite otherwise if we were
persuaded that a miscarriage of justice had resulted.
Despite the emphasis placed by Rule 11 on advising a
defendant of foregone trial rights and prospective penalties,
most laypersons would probably think that a court taking a
plea ought to be concerned beyond all else with the
voluntariness of the plea and the existence of a reasonable
basis for thinking that the defendant was actually guilty.
We would view with special concern any defect in the
proceedings that led us to believe that a plea was coerced or
that there was no factual basis for the plea.
Here, voluntariness in the ordinary sense is not in
doubt. Raineri claimed that the plea was induced by
methadone withdrawal and a false promise of immediate relief
by methadone treatment following the plea. But the district
court did not accept the claim, and its findings are
controlling in the absence of clear error. Tilley, 964 F.2d
______
at 70-71. Indeed, there is substantial reason to believe
that the claim is false--for example, Raineri did not
-23-
-23-
complain of the lack of methadone when interviewed by the
probation officer after the guilty plea--but in any case
Raineri does not now question the district court's resolution
of the issue.
It is also clear that there was a factual basis for
Raineri's guilty pleas. He himself admitted guilt on each
count and agreed with the government's description of the
evidence against him, which included the presence of a rifle
in the van. Even in his retraction, he confessed to
conspiracy to engage in burglary but denied the presence of
guns in the van. At the co-defendants' trial an informant
testified that the Raineris had possessed guns in the van and
transferred them from one vehicle to another. Raineri's
claim of innocence is an element in the Rule 34 equation but
it does not come close to a showing that a miscarriage of
justice has occurred.
The case is remanded to permit the government to elect
whether to consent to a modified order dismissing count 28
with prejudice. If the government consents, then the guilty
pleas and sentences on counts 14 and 24 will remain
undisturbed. If the government does not consent, then the
district court is directed to vacate the judgment of
conviction and the sentences on counts 14 and 24 and to allow
the guilty pleas to be withdrawn. The government would then
-24-
-24-
remain free to reindict on count 28 or to request the
district court to vacate its order dismissing count 28.
It is so ordered.
________________
-25-
-25-
