USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 94-1880
UNITED STATES,
Appellee,
v.
SALVADOR RIBAS-DOMINICCI,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Pamela A. Wilk, with whom Peter Goldberger, Alan Ellis, and Law
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Offices of Alan Ellis, P.C. were on brief for appellant.
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Miguel A. Pereira, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa,
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Senior Litigation Counsel, were on brief for appellee.
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March 24, 1995
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BOWNES, Senior Circuit Judge. Defendant-appellant
BOWNES, Senior Circuit Judge.
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Salvador Ribas-Dominici appeals the denial of his motion to
withdraw his plea of guilty. Ribas, a lawyer, engineer, and
self-styled military procurement expert, was indicted in the
District Court of Puerto Rico on five counts of stealing,
converting, and selling property of the United States in
violation of 18 U.S.C. 641.1 We first summarize the
essential facts.
I.
I.
In 1987 the United States Department of Defense
awarded a contract to Quality Manufacturing, Inc., a
corporation owned and controlled by Ribas, for the
manufacture of 1,692,120 pairs of military trousers. The
contract price was $24,197,316. Under the contract terms,
the government made fourteen progress payments between
October, 1987 and October, 1990 totalling approximately
$9,600,000. The indictment alleges that the United States
received from Ribas' corporation - "Quality" - goods and
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1. 18 U.S.C. 641 sets forth criminal sanctions for:
Whoever embezzles, steals, purloins,
or knowingly converts to his use or the
use of another, or without authority,
sells, conveys or disposes of any record,
voucher, money, or thing of value of the
United States or of any department or
agency thereof, or any property made or
being made under contract for the United
States or any department or agency
thereof; . . .
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services amounting to approximately $9,200,000.
(Introductory allegation 8.) The indictment alleges that
"title or ownership" of the items manufactured under the
contract passed to the United States not later than final
inspection and approval by government inspectors.
(Introductory allegation 9.) The district court, in its
opinion rejecting the plea-withdrawal motion, found that
"[t]itle to the trousers passed to the United States on
August 28 and September 4, 1991." The government claimed to
have evidence that would prove that Ribas had been
specifically instructed not to dispose of any of the
trousers.
Count One of the indictment charges that Ribas did
willfully and knowingly steal, convert, and sell to a third
party 16,135 pairs of trousers worth approximately
$227,000.00, which were the goods and property of the United
States. Count Two alleges the same as to 4,200 pairs of
trousers worth approximately $59,000. Count Three charges
the same as to 10,019 pairs of trousers worth approximately
$141,000. Count Four alleges the same crime as to 600 pairs
of trousers with a value of approximately $8,000. Count
Five, the final count, charged the theft and sale to a third
party of 336 pairs of trousers worth approximately $4,500.
On the morning that trial was scheduled to commence
Ribas signed a plea agreement and pled guilty to Counts Four
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and Five of the indictment. The government dismissed the
first three counts. Ribas was represented by counsel
throughout the plea bargaining process, and the Rule 11
proceedings. Two weeks after the plea and before sentencing,
Ribas' original counsel moved to withdraw his appearance on
the ground that Ribas had retained new counsel. At about the
same time, the new counsel informed the prosecutor that a
motion to withdraw the guilty plea would be filed. This was
done less than a month after the plea. A two-day hearing was
held on the withdrawal motion, which was denied by the
district court in a thirty-five page memorandum order. For
the reasons that follow, we reverse the district court and
remand for trial.
II.
II.
Because defendant's motion for withdrawal of plea
was made before sentencing, Fed. R. Crim. P. 32(d) is
implicated. It provides:
If a motion for withdrawal of a plea
of guilty or nolo contendere is made
before sentence is imposed, the court may
permit withdrawal of the plea upon a
showing by the defendant of any fair and
just reason. At any later time, a plea
may be set aside only on direct appeal or
by motion under 28 U.S.C. 2255.
This circuit has built a formidable body of
precedent covering the withdrawal of a guilty plea. We start
with a rule that is so obvious, it may be overlooked: a
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defendant has no absolute right to withdraw a guilty plea.
United States v. Tilley, 964 F.2d 55, 72 (1st Cir. 1992).
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In a very recent case, United States v. Jose Ramon
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Cotal-Crespo, No. 94-1354 (1st Cir. Jan. 30, 1995), we
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reiterated the principles that govern the issue of whether a
guilty plea may be withdrawn. We stated the factors that
should be considered in determining whether there is "a fair
and just reason" for withdrawing the plea. The most
significant is, "whether the plea was knowing, voluntary and
intelligent within the meaning of Rule 11." Id., slip op. at
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5. Other factors to be considered are "the force and
plausibility of the proffered reason; the timing of the
request; whether the defendant has asserted his legal
innocence; and whether the parties had reached a plea
agreement." Id.
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In discussing Rule 11 we said:
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
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States, 394 U.S. 459, 466, 89 S. Ct.
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1166, 22 L. Ed. 2d 418 (1969) (quoting
Johnson v. Zerbst, 304 U.S. 458, 464, 58
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S. Ct. 1019, 82 L. Ed. 2d 1461 (1938)).
Id. We pointed out that technical violations of Rule 11 do
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not count, but that a violation of one of the Rule's core
concerns mandates that the plea be set aside. And we
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specified three core concerns: "1) absence of coercion; 2)
understanding of the charges; and 3) knowledge of the
consequences of the guilty plea." Id., slip op. at 7. We
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reiterated that under the law of this circuit, in determining
whether there has been a core violation, "we review the
totality of the circumstances surrounding the Rule 11
hearing." Id. "What is critical is the substance of what
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was communicated by the trial court, and what should
reasonably have been understood by the defendant, rather than
the form of the communication." Id. We ended our
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restatement of basic principles by noting that our standard
of review is abuse of discretion, and that the trial court's
findings of fact are reviewed only for clear error. Id.,
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slip op. at 8.
On the question whether there is an abuse of
discretion in a Rule 11 setting we have observed:
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.
United States v. Raineri, 42 F.3d 36, 41 (1st Cir. 1994). We
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also noted:
Finally, we have considered whether
guilty pleas should be set aside . . .
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.
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Id. at 45.
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III.
III.
Our review of the Rule 11 plea proceedings
discloses two serious errors. First, was the following
statement by the
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court:
THE COURT: For this to be an offense
the Government has to prove that this
conduct described in the indictment was
done willfully and knowingly, was entered
into willfully and knowingly by you.
That means that the Government has to
prove that at some point in time you had
some reasonable understanding that what
you were about to do and actually did was
wrong, was marginal conduct, was
questionable, was of the kind of thing
that if somebody would find out you could
be in the predicament that you are now
in. In other words, that you had a --
had or should have had a pretty good
understanding that this was wrong and
against the law and you decided to do it
that way. That is an element. Do you
understand that?
THE DEFENDANT: Yes, sir.
The opening sentence of the statement by the court
was not incorrect. It told the defendant that the government
had to prove that the "conduct described in the indictment
was done willfully and knowingly, was entered into willfully
and knowingly by you." The meaning of willfully and
knowingly was, however, misstated by the court in the balance
of its explanation. Willfully and knowingly in the criminal
context does not mean that all the government had to prove
was that defendant had "some reasonable understanding" that
what he did "was marginal conduct, was questionable." Nor
was the government's burden of proof limited to showing that
defendant "had or should have had a pretty good understanding
that this was wrong and against the law." The government had
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to prove in the context of this case that defendant knew that
the trousers belonged to the government when he sold them to
others. See United States v. McRee, 7 F.3d 976, 980 (11th
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Cir. 1993); United States v. Lanier, 920 F.2d 887, 895 (11th
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Cir. 1991). Significantly, there was no mention of intent or
mens rea in the first statement by the court.
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At the end of the plea hearing this colloquy took
place:
THE COURT: May I ask you something,
Mr. Ribas, just tell me in your own words
what was the mental process, if you will,
that led you to do these two sales to
this Tiendas Militares?
THE DEFENDANT: Well, your Honor, at
the time the company was having very
serious financial difficulties and we
were attempting to raise cash to continue
the operations and continue getting to be
a viable organization. And although it
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has happened that it is a crime, at that
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instant I was not consciously stealing
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and selling, but, obviously, I made a
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mistake that is typified as a crime.
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(Emphasis added.)
THE COURT: But you do accept now,
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that when you look into retrospect into
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the whole situation, obviously, you did
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something wrong and against the law,
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without a doubt? (Emphasis added.)
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THE DEFENDANT: Yes, sir.
THE COURT: I understand. You have no
doubt about that part now?
THE DEFENDANT: Excuse me, sir?
THE COURT: You have no doubt about
that part now?
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THE DEFENDANT: No, sir.
THE COURT: Perhaps you were -- you
acted too fast and you looked the other
way, that's what happened in this case?
THE DEFENDANT: Yes, sir.
THE COURT: Okay, I understand.
Very well. The Court is going to accept
the plea of guilty entered by the
defendant as to Counts Four and Five.
Judgment of guilty will be entered.
Presentence Report will be ordered. And
I will give you a sentencing date.
In Morrisette v. United States, 342 U.S. 246
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(1952), it was decided unanimously that criminal intent was
an essential element of an offense under 18 U.S.C. 641, the
same statute that Ribas was accused of violating. Part of
Justice Jackson's opinion was an historical exegesis of the
role of intent in criminal law. His words read as eloquently
now as they did forty-odd years ago. One small sample will
suffice:
The contention that an injury can
amount to a crime only when inflicted by
intention is no provincial or transient
notion. It is as universal and
persistent in mature systems of law as
belief in freedom of the human will and a
consequent ability and duty of the normal
individual to choose between good and
evil.
Id. at 250 (footnote omitted). Morrisette was convicted
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under the statute for collecting bomb casings from a U.S.
military range and selling them as scrap metal. He argued
that he did not have the requisite intent because he thought
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that the casings were abandoned. The district court had held
that the statute did not require a showing of intent. The
Court, in reversing, concluded that the statute did demand a
showing of intent because the statute did not cover
"unwitting, inadvertent, and unintended conversions." Id. at
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270. The Court went on to point out: "Knowing conversion
adds significantly to the range of protection of government
property without interpreting it to furnish unwitting
conversions." Id. at 272. It is clear that intent was the
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critical element of the offense with which Ribas was charged.
The colloquy between the court and Ribas at the
conclusion of the plea hearing should have alerted the court
that Ribas was claiming that, at the time the trousers were
sold to third parties, he did not intend to commit a crime.
He told the court: "And although it has happened that it is
a crime, at that instant I was not consciously stealing and
selling, but, obviously I made a mistake that is typified as
a crime." Upon hearing this, the court, instead of asking
him what his intent was at the time, suggested that looking
back in retrospect Ribas now knew that he "obviously did
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something wrong and against the law." But what Ribas knew at
the time of the plea hearing does not establish criminal
intent at the time the trouser sales were made. Ribas had
suggested to the court that he did not intend to commit the
crime charged. This was tantamount to asserting his
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innocence. Instead of accepting the plea the court should
have, at the very least, inquired as to Ribas' intent at the
time the trousers were sold.
We recognize that Ribas was an attorney and an
engineer, which means that he was well educated and
presumably intelligent. This, however, cannot erase the
manifest errors made by the district court in two critical
areas of the Rule 11 colloquy. The element of scienter is
very important in a case in which the property is lawfully in
the possession of the defendant, and whether or not a crime
has been committed depends almost entirely on the defendant's
understanding of what he was entitled to do with the
property. This can be and usually is a complicated matter
when one is dealing with government contracts and procurement
regulations. In a somewhat similar case in the Fifth Circuit
brought under 18 U.S.C. 641, the court reversed defendants'
convictions. After pointing out that this kind of case was
civil, rather than criminal in nature, the court stated:
The government indicted appellants on the
theory that the title vesting clause
truly vested title, and gave full
ownership rights to the government for
materials upon which progress payments
had been advanced. The title vesting
provision of the Federal Acquisition
Regulations creates no more than a
security interest in the government's
favor, and cannot be, under the facts of
this case, a basis for prosecution under
18 U.S.C. 641. Appellants' convictions
are REVERSED.
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United States v. Hartec Enterprises, Inc., 967 F.2d 130, 134-
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35 (5th Cir. 1992). We of course do not intimate that Hartec
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applies to the case before us. We quote it only to emphasize
that during the plea colloquy a proper explanation of the
scienter element is more than mere formality.
We think that the two erroneous statements by the
district court combined to create a core violation of Rule 11
and were so fundamentally defective as to require reversal.
United States v. Raineri, 42 F.3d at 41 and 45.
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We are fully cognizant of the case of United States
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v. Japa, 994 F.2d 899, 903-04 (1st Cir. 1993), in which we
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held that the omission of an intent inquiry by the district
court, combined with the failure of the prosecutor to provide
in the proof statement any reference to a critical fact in
one of the counts of the indictment, did not affect a
substantial right of the defendant under Fed. R. Crim. P.
11(A). Japa is readily distinguishable. Count Two of the
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indictment in Japa charged that defendant did knowingly and
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intentionally possess 500 grams of cocaine "and did so within
1,000 feet" of a school. Japa was not asked during the plea
hearing whether he intended to possess and distribute cocaine
within 1,000 feet of a school. We noted that the presentence
report stated that defendant's apartment was within 1,000
feet of a school yard, and that defendant did not object to
this statement. Another factor in our ruling was that
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defendant admitted in response to a question by the court in
Count One (conspiracy) that he and the other alleged
conspirator possessed and intended to distribute 500 grams of
cocaine. The admitted facts made it clear that the cocaine
referred to in Counts One and Two was the same and that the
distribution would start at defendant's apartment. We
followed United States v. Zorilla, 982 F.2d 28, 30-31 (1st
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Cir. 1992), and held:
that information in the presentence
report and/or adduced at the probable
cause hearing was sufficient to satisfy
the elements of the crime charged even
though the district court judge failed to
establish a factual basis for the plea at
the hearing.
Japa, 994 F.2d at 904.
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In the case before us there is nothing in the
presentence report indicating that Ribas intended to convert
and steal the trousers from the United States. We have
reviewed carefully the extensive testimony and affidavits
adduced at the hearing on the motion to withdraw the guilty
plea. We are satisfied that there is no basis for finding
that the guilty plea was involuntary due to pressure or
turmoil. The evidence shows that the defendant consistently
claimed that he was innocent of any wrong-doing. Indeed, his
protestations of innocence continued through the sentencing
hearing. This is not a case in which claims of innocence
have been conjured up after the fact for purposes of taking
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advantage of some technical inadequacy in the plea colloquy.
Nor is this a situation where the motion to withdraw the plea
has its genesis in the sentence. Rather, unlike the
defendantin Japa,Ribasmovedtowithdrawhispleabeforesentencing.
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Finally, we note that the government would not seem
to be prejudiced by the delay in starting trial. Our review
of the record shows that the evidence in this case will
mainly be documentary. The government does not have to rely
on the vagaries of the memory of witnesses. The key evidence
will be the written contracts between Ribas and the
government and the applicable procurement regulations.
CONCLUSION
CONCLUSION
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We find that there was a fair and just reason for
allowing Ribas to withdraw his plea. See Fed. R. Crim. P.
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32(d).
The judgment of the district court is vacated and
the case is remanded for trial, which shall be held before
another judge.
So Ordered.
So Ordered.
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