USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-2182
UNITED STATES OF AMERICA,
Appellee,
v.
CAMILLE BELLE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Aldrich and Campbell, Senior Circuit Judges.
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Chris H. Mangos for appellant.
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Camille Belle on supplemental brief pro se.
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Geoffrey E. Hobart, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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JANUARY 24, 1997
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ALDRICH, Senior Circuit Judge. The record in this
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case calls for our writing something of a primer on
acceptance-of-plea hearings. First, the background. Camille
Belle (Belle), together with her husband and son, were
arrested on a criminal complaint in February 1994. By a
superseding indictment in June 1994 she was charged, inter
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alia, with various drug offenses, including conspiracy from
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1987 to the date of arrest. In January 1995 she retained new
counsel, and her (separate) trial date was set for May 22.
On the morning of that day Belle told the court she wished to
plead. A plea agreement was drawn, and, after a hearing, her
plea to six of the eight counts of the indictment was
accepted.
On September 7, 1995 a Presentence Report (PSR) was
released, with objections due by September 21. On September
19, supported by a one page affidavit of counsel, Belle moved
for leave to vacate her plea, and for a competency
evaluation. These motions were denied the following day.
Thereafter she filed objections to the PSR. A sentencing
hearing was held on September 28. After, in a two hour
address, Belle had informed the court of her views as to how
the agents had treated her during the "reverse sting"
operations that had led to her indictment, she was sentenced
to a minimum-mandatory term of ten years. She appeals.
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Belle's primary complaint is that her Rule 11 plea
hearing was inadequate. Of present relevance the following
occurred (numerals ours).
THE COURT: [1] Are you presently under a
doctor's care?
BELLE: Yes, your Honor.
THE COURT: [2] What did she say?
THE CLERK: Yes, your Honor.
THE COURT: [3] Does the illness that you're
being treated for affect your
ability to understand the nature of
these proceedings?
BELLE: No.
THE COURT: [4] Have you taken any medicine or
pills or drugs today?
BELLE: Yes, your Honor.
THE COURT: [5] Is the ingestion of any of
those items, medicines or pills or
drugs, does it affect your ability
to understand the nature of these
proceedings?
BELLE: No.
THE COURT: [6] Have you ever been under
psychiatric care?
BELLE: No, your Honor.
THE COURT: [7] Counsel, do you know any
reason why the Court should not
accept the plea of guilty?
MR. BALLIRO: I do not, your Honor.
THE COURT: [8] Have you had sufficient time
to discuss this matter fully with
your attorney?
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BELLE: Yes.
THE COURT: [9] Are you satisfied with his
representation of you?
BELLE: Yes.
After this exchange, the court found that "the plea of guilty
has been knowledgeably offered with an understanding of its
possible consequences."
In United States v. Parra-Ibanez, 936 F.2d 588,
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594-95 (1st Cir. 1991), after recognizing that the
voluntariness of the plea is a core requirement of Fed. R.
Crim. P. 11, we quoted with approval from United States v.
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Cole, 813 F.2d 43, 46 (3d Cir. 1987) that once the court "has
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been informed that the defendant has recently ingested drugs
or other substances capable of impairing his ability to make
a knowing and intelligent waiver of his constitutional
rights," this subject must be pursued. We repeated this
admonishment in Carey v. United States, 50 F.2d 1097, 1099
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(1st Cir. 1995). Even without these authorities this would
seem manifest.
We cannot understand how, having been informed by
the affirmative answer to question 4, that Belle may have
just ingested drugs, the court would not have asked the
obvious. Her opinion, 5, and that of her counsel, 7, to the
effect that some, unidentified, substance had not interfered
with her mental abilities, was, at best, secondary evidence.
It is not to be forgotten that defendant and counsel are
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concerned parties who want the plea accepted. Their views
are important, and we certainly do not, at least initially,
(see post), question the good faith or general ability of
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counsel, but the purpose of a plea hearing is to obtain
impartial findings upon available basic facts. We are not
persuaded by a discomforted government's argument that these
opinions excused the court "from engaging Belle in an
extended colloquy about her various ailments." Rather, the
court's inquiry was conspicuously deficient.
This conclusion may not of itself warrant the
withdrawal of the plea. Apart from the red flag answer to
question 4 the record as a whole fully warranted the court's
conclusion that the plea was voluntary. Can we then conclude
from the record as a whole that this error was harmless
(e.g., the PSR)? See Carey, 50 F.3d at 1099. Here, however,
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we run into a singular situation. According to Belle's
counsel, on May 22 when her plea was accepted (and after his
being with her for some time), there was no reason why her
plea should not be accepted. (Question 7). According to
this same counsel, by his September affidavit in support of
her motion to withdraw her plea, on May 22 she was "confused,
disoriented and lacking in comprehension as to the effect of
her agreement to plead guilty."
While this affidavit may raise serious questions as
to counsel, it surely weakens the reliability of his
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statement to the court as to defendant's state of mind on May
22. This, together with the court's failure to ask the
obvious question after 4, prevents us from determining that
the Rule 11 error was harmless.
As we did in Parra-Ibanez, 936 F.2d at 598, we
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remand to the district court for an evidentiary hearing, its
findings and recommendations to be forwarded to the clerk of
this court. This hearing should include findings on the
companion matters sought to be raised before us, ante. Our
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jurisdiction to continue.
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