USCA1 Opinion
February 2, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1354
UNITED STATES,
Appellee,
v.
JOSE RAMON COTAL-CRESPO,
Defendant - Appellant.
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No. 94-1355
UNITED STATES,
Appellee,
v.
ANTONIO DE JESUS-DE JESUS,
Defendant - Appellant.
____________________
No. 94-1356
UNITED STATES,
Appellee,
v.
IVAN RODRIGUEZ-BOCACHICA,
Defendant - Appellant.
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ERRATA SHEET
The opinion of this Court issued on January 30, 1995, is
amended as follows:
On page 8, second full paragraph, first line, delete the
apostrophe in "Defendants'."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1354
UNITED STATES,
Appellee,
v.
JOSE RAMON COTAL-CRESPO,
Defendant - Appellant.
____________________
No. 94-1355
UNITED STATES,
Appellee,
v.
ANTONIO DE JESUS-DE JESUS,
Defendant - Appellant.
____________________
No. 94-1356
UNITED STATES,
Appellee,
v.
IVAN RODRIGUEZ-BOCACHICA,
Defendant - Appellant.
____________________
APPEALS 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
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Rachel Brill, with whom Benicio S nchez-Rivera, Federal
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Public Defender, Carlos A. V zquez-Alvarez, Assistant Federal
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Public Defender, and Mariangela Tirado, were on joint brief for
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appellants.
Warren V zquez, Assistant United States Attorney, with whom
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Jorge E. Vega-Pacheco, Acting United States Attorney, was on
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brief for appellee.
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January 30, 1995
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TORRUELLA, Chief Judge. The issue to be decided in
TORRUELLA, Chief Judge.
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this appeal is whether the district court complied with the
procedural safeguards mandated by Criminal Rule 11 prior to
accepting the three defendants' guilty pleas. We conclude that
the plea hearing conducted by the district court, while perhaps
somewhat less than ideal, adequately met the requirements of Rule
11. We therefore affirm.
BACKGROUND
BACKGROUND
On February 17, 1993, a federal grand jury in Puerto
Rico indicted Jos Ram n Cotal-Crespo, Antonio De Jes s-De Jes s
and Iv n Rodr guez-Bocachica, in Count I, of conspiring to
possess with intent to distribute multi-kilograms of cocaine, in
violation of 21 U.S.C. 846. In addition, the indictment
alleged, in Counts II and III, that Cotal-Crespo used a
communication facility (a telephone) in facilitating the
commission of a drug trafficking offense, in violation of 21
U.S.C. 843(b). On March 3, 1993, the defendants entered pleas
of not guilty.
On June 8, 1993, the date their trial was scheduled to
begin, defendants requested a change of their respective pleas to
guilty. Defendants did not enter a plea agreement with the
government. The district court held a change of plea hearing and
subsequently accepted defendants' guilty pleas. Sentencing was
scheduled for September 9, 1993.
On August 11, 1993, defendants filed a pro se, joint
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motion requesting withdrawal of their guilty pleas. The district
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court appointed each defendant new counsel and the motion was
argued on March 4, 1994. The district court denied the joint
motion in an Opinion and Order issued the same day. Cotal-Crespo
was eventually sentenced to 120 months on Count I and to 48
months on Counts II and III, to be served concurrently.
Rodr guez-Bocachica and De Jes s-De Jes s were each sentenced to
120 months on Count I. Pending before this Court is defendants'
consolidated appeal of the denial of their motion to withdraw
their guilty pleas.
DISCUSSION
DISCUSSION
Defendants advance two arguments in support of their
contention that they should have been permitted to withdraw their
guilty pleas pursuant to Criminal Rule 11. First, they contend
that the district court failed to inform them of the nature of
the charges against them and determine that they understood those
charges. In support of this contention, defendants maintain that
they believed that the eight kilograms of cocaine they were
caught with could be split amongst them for sentencing purposes
and that they were consequently prejudiced by the district
court's failure to explain the nature of the conspiracy charge.
Second, defendants contend that the district court failed to
inform them of the consequences of their guilty pleas. They
assert, inter alia, that the district court did not explain to
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them that by pleading guilty they waived their constitutional
rights to a jury trial, to remain silent, and to confront
witnesses against them.
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I. The Legal Framework
I. The Legal Framework
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A. Rule 32(d)
A. Rule 32(d)
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A defendant may withdraw a guilty plea prior to
sentencing only upon a showing of "fair and just reason" for the
request. See United States v. Pellerito, 878 F.2d 1535, 1537
___ _____________ _________
(1st Cir. 1989); see also Fed. R. Crim. P. 32(d). There are
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several factors to consider in determining whether a defendant
has met this burden, the most significant of which is whether
the plea was knowing, voluntary and intelligent within the
meaning of Rule 11. United States v. Allard, 926 F.2d 1237, 1243
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(1st Cir. 1991). The other factors include: 1) the force and
plausibility of the proffered reason; 2) the timing of the
request; 3) whether the defendant has asserted his legal
innocence; and 4) whether the parties had reached a plea
agreement. Pellerito, 878 F.2d at 1537. In this case,
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defendants focus their argument on the alleged Rule 11 violations
-- contending that these violations establish that their pleas
could not have been knowing, voluntary and intelligent.
B. Rule 11
B. Rule 11
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By entering a guilty plea, a defendant effectively
waives several constitutional rights. For that waiver to be
valid, due process requires that the plea amount to a voluntary
and "intentional relinquishment or abandonment of a known right
or privilege." McCarthy v. United States, 394 U.S. 459, 466, 89
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S. Ct. 1166, 22 L. Ed. 2d 418 (1969) (quoting Johnson v. Zerbst,
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304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 2d 1461 (1938));
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Allard, 926 F.2d at 1244. Rule 11 was intended to ensure that a
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defendant who pleads guilty does so with an "understanding of the
nature of the charge and the consequences of his plea."
McCarthy, 394 U.S. at 467.
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Rule 11 provides in pertinent part:
(c) Advice to Defendant. Before
accepting a plea of guilty or nolo
contendere, the court must address the
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defendant personally in open court and
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inform the defendant of, and determine
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that the defendant understands, the
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following:
(1) the nature of the charge to which
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the plea is offered, 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, the fact that the court is required
to consider and applicable sentencing
guidelines but may depart from those
guidelines under some circumstances . . .
and
* * *
(3) that the defendant has the right
to plead not guilty or to persist in that
plea if it has already been made, the
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right to be tried by a jury and at that
_________________________________________
trial the right to the assistance of
_________________________________________
counsel, the right to confront and cross-
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examine adverse witnesses, and the right
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against compelled self-incrimination; and
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(4) that if a plea of guilty or nolo
contendere is accepted by the court there
will not be a further trial of any kind
so that by pleading guilty or nolo
contendere the defendant waives the right
to trial; and
(5) if the court intends to question
the defendant under oath, on the record,
and in the presence of counsel about the
offense to which the defendant has
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pleaded, that the defendant's answers may
later be used against him in a
prosecution for perjury or false
statement.
(d) Insuring that the Plea is Voluntary.
The court shall not accept a plea of
guilty or nolo contendere without first,
by addressing the defendant personally in
open court, determining that the plea is
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voluntary and not the result of force or
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threats or of promises apart from a plea
agreement.
Fed. R. Crim. P. 11(c),(d) (emphasis added).
We have distinguished between "technical" violations of
Rule 11 and violations of the rule's "core concerns," and held
that a violation that "implicates one of the rule's 'core
concerns' mandates that the plea be set aside." United States v.
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Medina-Silverio, 30 F.3d 1, 3 (1st Cir. 1994) (citing Allard, 926
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F.2d at 1244). Rule 11's core concerns are: 1) absence of
coercion; 2) understanding of the charges; and 3) knowledge of
the consequences of the guilty plea. Allard, 926 F.2d at 1244-
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45.1
In determining whether there has been a core violation,
we review the totality of the circumstances surrounding the Rule
11 hearing, rather than apply a "talismanic test." See id. at
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1245 (citing United States v. Dayton, 604 F.2d 931, 939 (5th Cir.
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1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1080, 63 L.Ed.2d
____________
320 (1980)). What is critical is the substance of what was
communicated by the trial court, and what should reasonably have
been understood by the defendant, rather than the form of the
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1 See infra n.5.
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communication. See Medina-Silverio, 30 F.3d at 3 (emphasizing
___ _______________
that there is no "formula of 'magic words' in meeting the
requirements of Rule 11"). At a minimum, Rule 11 requires that
the trial court address the defendant personally in open court to
ascertain that his plea is "voluntary and intelligent." See id.
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at 2-3 (citing Fed. R. Crim. P. 11(c)).
In the absence of a total failure to address one of
Rule 11's core concerns, the question is whether irregularities
in the plea-taking proceeding affected the defendant's
"substantial rights." Fed. R. Crim. P. 11(h). Other than for
errors of law, we will overturn the trial judge's decision not to
allow the withdrawal of a guilty plea only for "demonstrable
abuse of discretion," and the trial court's subsidiary findings
of fact in connection with the plea-withdrawal motion are
reviewed only for clear error. Allard, 926 F.2d at 1245 (citing
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Pellerito, 878 F.2d at 1538).
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II. The Nature of the Charges
II. The Nature of the Charges
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Defendants contend that the trial court failed to
determine that they understood the nature of the charges against
them, as required by Rule 11(c)(1). See United States v. Ruiz-
___ _____________ _____
Del Valle, 8 F.3d 98, 102 (1st Cir. 1993). Defendants maintain
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that they believed that the eight kilograms of cocaine could be
"somehow split among the three for sentencing," and, therefore,
assert that they were prejudiced by the trial court's failure to
explain that each of them would be held responsible for the
cocaine found in their collective possession, regardless of any
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stated intention to later split the drugs.
There are two central difficulties with this argument.
First of all, the amount of drugs for which each defendant is
held responsible is an issue relevant to sentencing, not to a
particular defendant's guilt. See United States v. Musa, 946
___ ______________ ____
F.2d 1297, 1305 (7th Cir. 1991); United States v. Young, 927 F.2d
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1060, 1065 (8th Cir.), cert. denied, __ U.S. __, 112 S. Ct. 384,
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116 L. Ed. 2d 334 (1991).2 Secondly, the trial court personally
addressed each defendant and discussed with him the maximum and
minimum penalties provided by law for his offense. After fully
explaining the guideline ranges, the court informed each
defendant that the minimum sentence on Count I is 120 months.
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When asked if they understood this, each defendant answered in
the affirmative. In addition, the trial court personally
addressed each defendant and asked him to "tell his story" with
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2 Defendants rely heavily on the following statement by Cotal-
Crespo's attorney during the plea hearing.
THE COURT: It is a 120-month minimum.
The base offense level will be 32, but
you say that has nothing to do with the
minimum.
MR. LAWS: The minimum allowable is
120, and at the time of sentencing we
will argue to the Court to reduce it.
But at this time that is what we have
before the Court.
Defendants maintain that this statement illustrates that they
believed the amount of drugs could be divided for purposes of
sentencing. This may be true, but it also reveals that Cotal-
Crespo's attorney recognized that the amount of drugs
attributable to each defendant was a question for sentencing, not
the plea hearing.
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respect to the charges against him. In telling their respective
stories, none of the defendants gave the slightest indication
that they disputed the amount of drugs involved or their role in
the transaction vis-a-vis the total amount of drugs.
Defendants also argue that they must be allowed to
withdraw their guilty pleas because the trial court did not read
or explain the charges to them. Our review of the plea hearing
transcript reveals that the trial court did not read the charges
nor did it explain the law of conspiracy.
It is not necessary that the explanation of the charges
come directly from the court, however, if it can be discerned
from a review of the proceeding that the defendant nevertheless
understood the charges. See Allard, 926 F.2d at 1246 (citing
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Dayton, 604 F.2d at 943). See also United States v. Musa, 946
______ ________ _____________ ____
F.2d 1297, 1305 (7th Cir. 1991); United States v. Darling, 766
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F.2d 1095, 1099 (7th Cir.) (citing cases), cert. denied, 474 U.S.
____________
1024, 106 S. Ct. 579, 88 L. Ed. 2d 561 (1985); United States v.
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Cusenza, 749 F.2d 473, 476 (7th Cir. 1984); United States v.
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Gray, 611 F.2d 194, 200 (5th Cir.), cert. denied, 446 U.S. 911,
____ ____________
100 S. Ct. 1840, 64 L. Ed. 2d 264 (1980); United States v.
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Coronado, 554 F.2d 166, 173 (5th Cir.), cert. denied, 434 U.S.
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870, 98 S. Ct. 214, 54 L. Ed. 2d 149 (1977). Thus, where the
prosecutor's statement or the defendant's description of the
facts sets forth all elements of the offense and the conduct of
the defendant that constitutes the offense, "the defendant's
admission that the allegations are true is sufficient evidence
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that he understands the charge." Darling, 766 F.2d at 1099. See
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Allard, 926 F.2d at 1246.
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In this case, each defendant stated at the plea hearing
that he went, together with the other two defendants, to buy the
drugs. In addition, Cotal-Crespo admitted to making phone calls
with respect to the drug transaction. Thus, each defendant's
admission of the events underlying the transaction accurately
described the elements of a violation of 21 U.S.C. 846 -- an
agreement to buy a large amount of drugs3 -- and Cotal-Crespo's
admission described the elements of a violation of 21 U.S.C.
843(b). Moreover, each of the defendants agreed with the
prosecutor's detailed summary of the facts the government would
prove at trial, which also included a description of all the
elements of both charges.
The manner in which the charge is explained and the
method for determining the defendant's understanding of the
charge will vary from case to case depending upon the complexity
of the charges, the capacity of the defendant, and the attendant
circumstances. Allard, 926 F.2d at 1245. See also Darling, 766
______ ________ _______
F.2d at 1098. "[W]hile the subtleties of conspiracy law may be
the bane of criminal law students, the basic principle is easily
understood: a group of people agreeing to do something illegal."
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3 The Supreme Court has recently held that, in order to
establish a violation of section 846, the government need not
prove the commission of any overt acts in furtherance of the
conspiracy. United States v. Shabani, __ U.S. __, 115 S. Ct.
______________ _______
382, 385-86, 130 L. Ed. 2d 225 (1994). Accord United States v.
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Paiva, 892 F.2d 148, 155 (1st Cir. 1989).
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United States v. Carter, 815 F.2d 827, 829 (1st Cir. 1987). We
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find nothing in the record to indicate that the defendants did
not understand the drug conspiracy charge.4 Rather, the plea
hearing indicates that the defendants knew exactly what they were
charged with and voluntarily made the decision to plead guilty.
III. Consequences of Guilty Plea
III. Consequences of Guilty Plea
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The defendants also contend that the trial judge failed
to inform them of the consequences of their guilty pleas.
Specifically, they claim that the court failed to determine that
they understood and waived their rights to remain silent, to a
jury trial, and to confront witnesses against them. In addition,
they contend that the court did not explain the possibility of
departure from the guidelines or counsel the defendants about the
possibility of a later prosecution for perjury based upon their
statements at the Rule 11 hearing. We necessarily turn to an
examination of the plea colloquy.
The trial court began by asking each defendant whether
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4 Contrary to defendants' assertions, our decision in United
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States v. Ruiz-Del Valle, 8 F.3d 98 (1st Cir. 1993), is
______ _______________
distinguishable. In that case we found the change of plea
hearing defective as to the firearms count for two reasons: 1)
the charge was neither read nor explained to the defendant by the
trial court and the government made only a fleeting mention of
the firearms count in its outline of the evidence; and 2) the
defendant made a statement during the plea hearing which should
have put the trial court on notice that she did not understand
the firearms charge. Id. at 103. We also held in Ruiz-Del Valle
__ ______________
that the defendant should be allowed to withdraw her guilty plea
because it would be a miscarriage of justice not to in light of
the trial court's subsequent finding in the case of defendant's
husband that there was an insufficiency of the evidence on the
firearms count. Id. at 104. These exceptional circumstances are
__
not present in the instant case.
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he had read and understood the petition questions, and whether he
had consulted with his attorney regarding those questions and his
answers. Each defendant answered in the affirmative. The court
then asked the standard questions to determine whether the
defendants were competent to plead and whether they were
satisfied with their attorneys. The court asked each defendant
whether he remembered reading and answering questions about his
right to a jury trial and whether he understood that if he pleads
guilty he will be found guilty without a trial. The defendants
responded in the affirmative to all these questions.
Next, the court asked each of the defendants to give
their "story" with respect to the charges against them, which
each defendant did. Then the government gave a detailed summary
of the evidence it would prove at trial and each defendant
indicated his agreement with the government's recitation of the
pertinent evidence. The court then informed each defendant of
the maximum and minimum penalties provided by law for the charged
offenses and received their assurances that they understood their
potential sentences. Finally, the court asked each defendant
whether, knowing the possible penalties, including the mandatory
minimum of 120 months, they wanted to plead guilty. Each
defendant answered in the affirmative. The court did not
specifically ask the defendants whether they knew and understood
their rights to remain silent and to confront witnesses against
them, nor did it mention the possibility of departure or a
perjury charge.
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It is abundantly clear from the transcript of the
hearing that the defendants understood the nature of the charges
against them, understood their right to a jury trial, understood
their potential sentences, agreed with the prosecutor's
recitation of what the government would prove at trial, and, most
importantly, acknowledged, with no perceptible hesitation, their
guilt based on those allegations. Moreover, there was no need to
discuss departure from the guidelines because all the parties
agreed that there was a statutory minimum of 120 months. The
narrow question for decision, therefore, is whether the failure
of the trial court to specifically mention the right to remain
silent, the right to confront witnesses, and the possibility of a
perjury charge, standing alone, mandates that defendants be
permitted to withdraw their guilty pleas. We conclude, based on
the totality of the circumstances, that it does not.
The district court explained, and determined on the
record that the defendants understood many of the "consequences"
of their guilty pleas. This is, therefore, not a case of a
"total failure" to address one of Rule 11's core concerns. See
___
Allard, 926 F.2d at 1244-45 (citing McCarthy, 394 U.S. at 471-
______ ________
72.5 The question, therefore, is whether the district court's
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5 We note with interest the experience of the Fifth Circuit,
which recently overruled its long held position that a "total
failure" to address one of Rule 11's core concerns warrants a per
___
se reversal. See United States v. Johnson, 1 F.3d 296, 297 (5th
__ ___ _____________ _______
Cir. 1993) (en banc). Under its prior jurisprudence, the Fifth
Circuit distinguished between the total and partial failure to
address Rule 11's core concerns, holding that the former required
per se reversal while the latter was judged under the harmless
___ __
error standard of Rule 11(h). See, e.g., United States v.
___ ____ ______________
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failure to inform the defendants of all of the consequences of
their pleas, as delineated by Rule 11, "affected defendants'
substantial rights." See Fed. R. Crim. P. 11(h). For the
___
reasons explained below, we conclude that Rule 11's core concern
that defendants understand the consequences of their plea was
adequately addressed in this case and that the defendants'
substantial rights were not violated. We therefore hold that the
district court's failure to explicitly address all of Rule 11's
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Pierce, 893 F.2d 669, 679 (5th Cir.1990). Although we have
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phrased the analysis in somewhat different fashion, our
jurisprudence in this area is similar to the approach rejected by
the Fifth Circuit in Johnson. See generally, Allard, 926 F.2d at
_______ _____________ ______
1244-45.
In Johnson, the court reasoned that the genesis for the
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total/partial failure dichotomy was the Supreme Court's 1973
decision in McCarthy, which antedated the amendment of Rule 11
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with section (h). See Johnson, 1 F.3d at 300. In the Fifth
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Circuit's view, the per se reversal rule for core violations
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"should have been supplanted by the 1983 addition of section (h)
to Rule 11." Id. The court therefore held that, henceforth, it
__
would, regardless of the type of alleged Rule 11 violation,
engage in a straightforward, two-question 'harmless error'
analysis, asking, first, whether the sentencing court varied from
the procedures required by Rule 11, and, second, if it did,
whether the variance affected the substantial rights of the
defendant. Id. In determining whether a Rule 11 error is
__
harmless, the court stated that it would "focus on whether the
defendant's knowledge and comprehension of the full and correct
information would have been likely to affect his willingness to
plead guilty." Id. at 301. The Fifth Circuit qualified its
__
opinion, however, by noting that it is difficult to imagine a
situation where a trial court's entire failure to mention a core
concern would not "affect substantial rights." Id. at 301 n.26.
__
At least at first blush, we find the Fifth Circuit's opinion
in Johnson persuasive. Because this is not a "total failure"
_______
case, however, we need not decide just how persuasive. Moreover,
we think it would be imprudent to do so considering that the
parties in this case did not brief the issue and, in any case, it
is an issue best left to the full court's review.
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requirements was harmless error.
The record of the plea hearing is replete with evidence
that the defendants understood the charges against them, faced up
to them, and chose voluntarily to plead guilty. It is clear also
that the defendants understood that they had the right to persist
in their innocence and go to trial, and that they had read and
understood the petition questions, which explained that they had
the right to remain silent and to confront witnesses against
them. Moreover, the trial court meticulously explained, and
ensured on the record that the defendants understood, the maximum
and minimum statutory penalties and their sentencing guideline
ranges. Each defendant stated on the record that he understood
that his minimum sentence would be 120 months.
Finally, we are mindful of the traditional factors
relevant to the review of a change of plea request.6 First,
defendants waited two months before deciding that they did not
understand the consequences of their guilty pleas. Second,
defendants have not asserted their legal innocence. Third,
defendants have not argued, much less attempted to show, that the
knowledge that they had the right to remain silent and to
confront the witnesses against them at trial would have
materially affected their decisions to plead guilty.
Defendants argue that our decision in Medina-Silverio
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requires reversal. In that case, however, we held only that:
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6 Although the traditional factors are somewhat dwarfed in this
case by the alleged core Rule 11 violations, they nevertheless
remain relevant to our totality of the circumstances analysis.
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Where a district court neither conducts a
direct personal interrogation, nor
advises the defendant of his rights, all
substantially as required under Rule 11,
there can be no sufficient basis for
finding that the guilty plea was
voluntary, intelligentor otherwise valid.
Medina-Silverio, 30 F.3d at 3. Thus, a trial court's reliance
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solely on answers provided by a defendant in a written document
______
is insufficient for purposes of Rule 11. In this case, in
addition to answers provided in a written document, however, the
court personally and meticulously addressed each of the
defendants with respect to the alleged facts underlying the
charges against him, his right to a jury trial and the maximum
and minimum sentences.
CONCLUSION
CONCLUSION
In 1968, the Supreme Court explained that Rule 11 was
designed, at least in part, to produce a complete record to
enable reviewing courts to determine, based on a cold transcript,
whether a plea was voluntary. The Court thus commented that:
[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. Although we conclude that the Rule 11
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hearing in this case was adequate, we are nevertheless compelled
to remind district courts that, for the sake of judicial economy
and fundamental fairness, the best way to ensure that Rule 11 is
complied with is to explicitly comply with Rule 11.
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The judgment of the district court is affirmed.
affirmed
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