USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1051
UNITED STATES OF AMERICA,
Appellee,
v.
JOS A. MARRERO-RIVERA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Cyr, Senior Circuit Judge,
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and Keeton,* District Judge.
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Linda Backiel for appellant.
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W. Stephen Muldrow, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, Senior
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Litigation Counsel, Edwin O. V zquez, Deputy Chief, Criminal Division,
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and Nelson P rez-Sosa, Assistant United States Attorney, were on brief
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for appellee.
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September 8, 1997
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*Of the District of Massachusetts, sitting by designation.
CYR, Senior Circuit Judge. Appellant Jos A. Marrero
CYR, Senior Circuit Judge.
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Rivera ("Marrero") contends that the district court erred in
denying his motion to withdraw his guilty plea, see Fed. R. Crim.
___
P. 32(e), and miscalculated the quantity of cocaine for which he
was held criminally responsible at sentencing. We affirm the
district court judgment.
I
I
BACKGROUND
BACKGROUND
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Appellant Marrero, owner and operator of a small
"cafeter a," employed one Jes s Flette Hidalgo ("Flette").1
After unwittingly negotiating with undercover DEA agents and a
confidential informant, Flette agreed to supply them with ten
kilograms of cocaine, then transmitted a message to Marrero's
beeper stating that "ten jet skis" should be prepared. Flette
later emerged from the Marrero business establishment carrying a
box containing one kilogram of cocaine. Shortly thereafter,
Marrero was arrested in possession of the beeper to which Flette
had transmitted the "ten jet skis" message.2
Marrero initially entered a "not guilty" plea to the
charge of conspiring with Flette to possess, with intent to
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1The record is silent as to the work Flette was required to
perform for Marrero.
2The government contended that the one kilogram contained in
the box was a sample, intended to demonstrate the quality of the
ten kilograms to be supplied.
Three months after pleading guilty, Marrero first asserted
that he had not known what was in the box which he left at the
cafeteria for Flette following his receipt of the "ten jet skis"
message on the beeper.
2
distribute, ten kilograms of cocaine in violation of 21 U.S.C.
841(a)(1), 846. Thereafter, Marrero's lead counsel, Jos Aguayo,
Esquire, advised that a plea agreement would be in Marrero's best
interests and tried to persuade him to plead guilty. Later, on
July 19, 1996, confronted with a 5:00 p.m. deadline for informing
the government whether he would change his plea, and after
consulting with a second attorney, Marrero ultimately decided to
plead guilty.3
A. The Rule 11 Hearing
A. The Rule 11 Hearing
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On July 22, 1996, Marrero pled guilty pursuant to a
plea agreement and the district court conducted a comprehensive
Rule 11 hearing. See Fed. R. Crim. P. 11. The court inquired,
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inter alia, into Marrero's educational and employment background.
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Marrero stated that he had read, signed, and understood the plea
agreement, after discussing it with counsel. He further acknowl-
edged that he was satisfied with Attorney Aguayo's represen-
tation, that he understood the indictment discussed with him by
counsel,4 and that he understood his legal rights as explained by
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3Even after meeting with both counsel, however, Marrero had
remained determined to proceed to trial. At around 3:30 or 4:00
p.m., Marrero and Aguayo went to a local bar for about an hour
while a potential defense witness decided whether he would
testify without a subpoena.
4Count 1 alleged that Marrero and Flette "did unlawfully,
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willfully, and intentionally combine, conspire, confederate, and
agree together with each other, to commit offenses against the
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United States, to wit: willfully, knowingly and unlawfully
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attempting to possess with intent to distribute multi-kilogram
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amounts, that is, ten (10) kilograms of cocaine, a schedule II
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narcotic drug controlled substance, that is, conspiracy to
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violate Section 841(a)(1) of Title 21, United States Code.
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All in violation of Title 21, United States Code, Section
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3
the court.
The district court then went through the indictment in
abbreviated fashion.5 Marrero acknowledged that he understood the
potential penalties attending the conspiracy charge and explicit-
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ly agreed that he was criminally responsible for conspiring with
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Flette to distribute ten kilograms of cocaine. He assured the
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court that he had not been coerced or intimidated into pleading
guilty; that he had read and signed the "Government's Version of
the Facts" appended to the plea agreement, and, after discussing
it with Attorney Aguayo, acknowledged that the actual events were
as recited by the government.
The prosecutor then described the factual predicate for
the guilty plea, including the meeting between Flette and the
undercover agents, at which it was "agreed that Jesus Flette and
persons working with him would provide 10 kilograms of cocaine to
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846."
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(Emphasis added.)
5The Rule 11 colloquy regarding the indictment proceeded
essentially as follows:
[Court]: "Now, in Paragraph 1 of the plea
agreement, you agree to plead guilty to Count
One of the indictment, charging a violation
of Title 21, U.S. Code, Section 846 and
841(a)(1). Is that so?"
[Marrero]: "Yes, sir."
[Court]: "And Count One charges you with
conspiring with others to unlawfully attempt-
ing [sic] to possess with intent to
distribute multi-kilograms, that is, 10
kilograms of cocaine . . . that is, a
conspiracy to violate Section 841(a)(1) of
Title 21. Is that so?"
[Marrero]: "Yes, sir."
4
the undercover DEA agents." The prosecutor stated that "[a]
beeper message was sent to a pager company, indicating that the
ten jet skis should be prepared because the buyers were ready."6
Further, the prosecutor described how Flette had entered the
Marrero cafeteria and left with the box of cocaine, and how, when
arrested, Marrero was carrying the beeper bearing the "ten jet
skis" message from Flette. Finally, the prosecutor represented
that Flette would establish that Marrero had "willingly and
knowingly conspired with Jesus Flette and others to distribute 10
kilograms of cocaine and in fact did distribute the one kilogram
of cocaine." At this point, Marrero agreed with the government's
version of the relevant events as described by the prosecutor.
The district court accepted the guilty plea after determining
that it was voluntary, knowing, and intelligent.
B. The Rule 32(e) Hearing
B. The Rule 32(e) Hearing
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Shortly after the presentence-investigation interview,
and some three months after the Rule 11 hearing, Marrero moved to
withdraw the guilty plea, see Fed. R. Crim. P. 32(e), claiming
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that it was: (1) involuntary, in that he had succumbed to a
sense of helplessness and futility when confronted with Attorney
Aguayo's advice that the benefits of the plea agreement
outweighed the risks of conviction at trial; (2) not "intelli-
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6The Government's Version of the Facts described the beeper
message as: "Jesus Flete then sent a message to a beeper service
to be forwarded to the beeper of the defendant, Jose Marrero-
Rivera. That message stated that the ten 'jet skis' (referring
to the ten kilos of cocaine) should be prepared." (parenthetical
in original).
5
gently" made, as it had been premised on several incorrect
assumptions, including that he was guilty of conspiracy simply
because he had received and retained the box for his employee,
Flette, even though he had no contemporaneous knowledge as to
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what was in the box; (3) not "knowingly" made, in that he had
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delegated to counsel the responsibility for reviewing and inter-
preting the plea agreement, and thought that once he had agreed
to change his plea he would have to sign the plea agreement and
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provide affirmative responses during the change-of-plea colloquy;
(4) not adequately supported by the Government's Version of the
Facts, or the prosecutor's summary during the Rule 11 hearing,
because there was no demonstration that Marrero had known that
the box he had held in his hands contained cocaine; and (5),
predicated on an inadequate Rule 11 inquiry, in that the district
court neither asked, nor determined, whether Marrero had
understood the mens rea element for the crime of conspiracy.
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At the ensuing Rule 32(e) hearing, Attorney Aguayo
testified that he had explained the plea agreement to Marrero,
but did not coerce him to sign it. Upon inquiry by the district
court, as to whether Aguayo had "explain[ed] the nature of the
charges" and "the issue about . . . the requirement the
government had to prove his knowing participation in the
conspiracy," Aguayo replied that he had done so and that he had
"explained . . . very clearly that . . . in order for the Court
to accept a plea of guilty there had to be a basis in fact for
it." Marrero responded by introducing notes, used by Aguayo
6
during their change-of-plea conference, describing Marrero's
admission as follows: "What I did . . . A person came to my
business and left a package for Jesus Flette. The package
contained cocaine."
The district court found a sufficient factual predicate
for the guilty plea, citing in particular the Government's
Version of the Facts, with which Marrero had agreed and which
explicitly noted that the "ten jet skis" message from Flette to
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Marrero meant ten kilograms of cocaine. See supra note 6. The
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court construed this to mean that Marrero thereby acknowledged
not only the true purport of the beeper message, but admitted
that he had so understood the message at the time he received it.
Further, the court considered its earlier Rule 11 inquiry
adequate to support a reliable determination that Marrero had
understood the conspiracy indictment and the plea agreement, and
expressly had agreed that he was criminally responsible for
conspiring to sell ten kilograms of cocaine. Finally, the
district court found nothing, either in the plea agreement or the
Rule 11 hearing transcript, which warranted a finding that
Marrero had not understood what he was admitting to at the Rule
11 hearing. Accordingly, the district court denied the motion to
withdraw the guilty plea.
II
II
DISCUSSION
DISCUSSION
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A. Plea Withdrawal Before Sentencing
A. Plea Withdrawal Before Sentencing
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1. Legal Framework
1. Legal Framework
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7
We begin with bedrock principles. There is no absolute
right to withdraw a guilty plea prior to sentencing. See United
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States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir. 1989), cert.
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denied, 502 U.S. 862 (1991). Rather, a defendant may be allowed
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to withdraw a guilty plea before sentencing only for a "fair and
just reason." See United States v. Cotal-Crispo, 47 F.3d 1, 3
___ _____________ ____________
(1st Cir.), cert. denied, 116 S. Ct. 94 (1995); see also Fed. R.
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Crim. P. 32(e) ("the court may permit the plea to be withdrawn if
the defendant shows any fair and just reason"). The burden of
persuasion rests with the defendant. United States v. Isom, 85
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F.3d 831, 834 (1st Cir. 1996); United States v. Parrilla-Tirado,
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22 F.3d 368, 371 (1st Cir. 1994).
The district court must consider several factors in
determining whether the burden of persuasion has been met by the
defendant, the most significant being whether the plea was
voluntary, intelligent and knowing, within the meaning of Rule
11. Cotal-Crispo, 47 F.3d at 3; United States v. Allard, 926
____________ _____________ ______
F.2d 1237, 1243 (1st Cir. 1991). Other relevant considerations,
see pp. 22-25, include: (1) the plausibility and weight of the
___
proffered reason; (2) the timing of the request; (3) whether the
defendant asserted legal innocence; and (4) whether the parties
had reached, or breached, a plea agreement. Isom, 85 F.3d at
____
834; Cotal-Crispo, 47 F.3d at 4. Finally, assuming the defendant
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carries the burden of persuasion on the aforementioned consider-
ations, the district court must weigh in the balance any
demonstrable prejudice to the government were the defendant
8
allowed to withdraw the plea. Isom, 85 F.3d at 835; Pellerito,
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878 F.2d at 1537.
At the outset, it is particularly important to note the
difficult appellate terrain which the present challenge to the
district court's Rule 32(e) determination must traverse; that is,
the factfinding underlying the plea withdrawal ruling may not be
set aside for anything less than "clear error." See, e.g.,
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Pellerito, 878 F.2d at 1538 ("Confronted with an attempt at plea
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retraction, the trial judge must make an idiocratic,
particularistic, factbound assessment an assessment which is
facilitated because the judge has overseen pretrial proceedings,
conducted the Rule 11 inquiries, accepted the original guilty
plea, and heard at first hand the reasons bearing upon its
withdrawal.").
If the district court's account of the evi-
dence is plausible in light of the record
reviewed in its entirety, the court of
appeals may not reverse it even though
convinced that had it been sitting as the
trier of fact, it would have weighed the
evidence differently. Where there are two
permissible views of the evidence, the
factfinder's choice between them cannot be
clearly erroneous.
Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st
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Cir. 1990) (citing Anderson v. City of Bessemer City, 470 U.S.
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564, 573-74 (1985) (bench trial findings))). Moreover, we accord
considerable deference to the firsthand assessment ultimately
made by the district court, which must be affirmed absent a
demonstrable abuse of discretion. See United States v. Sanchez-
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Barreto, 93 F.3d 17, 23 (1st Cir. 1996), cert. denied, 117 S. Ct.
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9
711 (1997) (Rule 32(e) findings).
2. Core Rule 11 Concerns
2. Core Rule 11 Concerns
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We first inquire whether certain "core" Rule 11
concerns were met. Rule 11 was "intended to ensure that a
defendant who pleads guilty does so with an 'understanding of the
nature of the charge and the consequences of his plea.'" Cotal-
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Crispo, 47 F.3d at 4 (quoting McCarthy v. United States, 394 U.S.
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459, 467 (1969)); United States v. Medina-Silverio, 30 F.3d 1, 2
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(1st Cir. 1994); see also Fed. R. Crim. P. 11(c). Accordingly,
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the Rule 11 hearing should "produce a complete record of the
factors relevant to that determination so as 'to eliminate any
need to resort to a later factfinding proceeding in this highly
subjective area.'" Allard, 926 F.2d at 1244 (quoting McCarthy,
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394 U.S. at 469).7
A total failure to address any "core concern" mandates
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that a guilty plea be set aside. See Isom, 85 F.3d at 835;
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United States v. Gray, 63 F.3d 57, 60 (1st Cir. 1995); Medina-
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Silverio, 30 F.3d at 3. Otherwise, we consider whether any
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particular defect in the Rule 11 hearing affected the defendant's
"substantial rights." See id.; Fed. R. Crim. P. 11(h); see also
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United States v. Martinez-Martinez, 69 F.3d 1215, 1219 (1st Cir.
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1995) (Rule 11(h) "harmless error" rule excuses "minor and
technical violations"), cert. denied, 116 S. Ct. 1343 (1996);
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7We have identified three "core" Rule 11 concerns: (1)
voluntariness i.e., absence of coercion; (2) understanding of
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the charge; and (3) knowledge of the consequences of the guilty
plea. See Medina-Silverio, 30 F.3d at 2.
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10
United States v. Raineri, 42 F.3d 36, 41-42 (1st Cir. 1994)
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(harmless error analysis usually looks to whether error
influenced decisionmaker or ultimate outcome, but these are not
only proper considerations under Rule 11(h); "substantial rights"
not violated where defendant was not properly informed of maximum
penalty but received lesser sentence than maximum), cert. denied,
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515 U.S. 1126 (1995). In determining whether there was a total
failure to address a core Rule 11 concern, we review all "the
circumstances surrounding the Rule 11 hearing . . . [with a view
to determining] what was communicated by the trial court, and
what should reasonably have been understood by the defendant,
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rather than the form of the communication." Cotal-Crispo, 47
____________
F.3d at 4-5 (citations omitted) (emphasis added).
(a) Voluntary Plea
(a) Voluntary Plea
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Marrero maintains that Aguayo pressured him into
accepting the plea agreement at the last minute, even though
Marrero was still "inclined to go to trial" within an hour or so
before the deadline for changing his plea. Marrero paints a
vivid picture: "definitely anxious . . . more anxious than
usual," waiting at a local bar, with his attorney, to learn
whether or not a potential witness would agree to testify without
a subpoena, before deciding at the eleventh hour to accede to his
attorney's importunings to accept the plea bargain tendered by
the government.8 Furthermore, as he did at the Rule 32(e)
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8During the Rule 32(e) hearing, Aguayo testified that while
waiting at the bar he had a beer, but could not recall whether
Marrero did. As Marrero has not alleged that he had anything to
11
hearing, Marrero contends that Aguayo's description of the
prospective sentence was overly rosy,9 whereas his estimation of
the prospects for success at trial was unduly pessimistic.10
Notwithstanding Marrero's resourceful challenge, there was no
clear error or abuse of discretion in the finding that the guilty
plea was voluntary.
At the Rule 11 hearing, the district court
appropriately inquired whether Marrero was acting freely and
whether anyone had coerced him into pleading guilty. Marrero
reassured the district court under oath that he was pleading
freely and that no one had attempted to coerce him. Aguayo
corroborated these representations. Accordingly, Marrero's sworn
responses were reasonably credited by the district court, as
"[i]t is the policy of the law to hold litigants to their
assurances." Parrilla-Tirado, 22 F.3d at 373; see also United
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States v. Martinez-Molina, 64 F.3d 719, 733 (1st Cir. 1995)
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(statements at plea hearing "carry a strong presumption of
verity" (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977))).
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drink, however, there is no suggestion in the record that the
guilty plea was rendered involuntary in this regard.
9For example, Marrero points to Aguayo's suggestion that
there was a "drug program" pursuant to which Marrero might be
able to reduce his sentence by a year, that he would be eligible
for "good-time" credits, and that he could spend the final 10% of
his prison stay in a half-way house.
10Marrero also faults Aguayo's failure to advise him of a
possible defense (i.e., that Marrero lacked the requisite mens
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rea for conspiracy), and for failing to mention either the
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possibility that Flette's testimony might be vulnerable on cross-
examination or that certain favorable jury instructions might be
given.
12
Moreover, Marrero's belated representation that he
believed he had to answer all questions in the affirmative during
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the Rule 11 colloquy cannot be credited, on its face, without
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virtually displacing the "clear error" standard of review
governing the appellate inquiry. Cf. United States v. Butt, 731
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F.2d 75, 80 (1st Cir. 1984) (even where appellant represents
that, upon advice of counsel, he uttered false statements at Rule
11 hearing, those statements will be presumed true unless the
contrary allegations state a claim for ineffective assistance of
counsel and include credible, valid grounds for departing from
the normal presumption).
Similarly, there is no affirmative evidence that
Marrero acted involuntarily. Consequently, even assuming counsel
persuaded him that a guilty plea would best serve Marrero's
interests, the resultant plea would not have been rendered
"involuntary." See Miles v. Dorsey, 61 F.3d 1459, 1470 (10th
___ _____ ______
Cir. 1995), cert. denied, 116 S. Ct. 743 (1996); Williams v.
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Chrans, 945 F.2d 926, 933 (7th Cir. 1991) ("'Advice even
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strong urging' by counsel does not invalidate a guilty plea.")
(quoting Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir.), cert.
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denied, 429 U.S. 489 (1976)), cert. denied, 502 U.S. 1208 (1992).
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Nor can the mere fact that Marrero and counsel may have
undervalued the merit of any potential defense render the Rule 11
plea involuntary. See United States v. Muriel, 111 F.3d 975,
___ ______________ ______
981 (1st Cir. 1997) ("This court has not allowed defendants,
absent coercion or mistake, to renege on plea agreements on the
13
basis that they have miscalculated their risks and benefits or
have belatedly discovered a new defense."). Rather, in
determining whether to arrive at a plea agreement, criminal
defendants, with the assistance of counsel, must compare the
merit of their defenses with the strength of the government's
case, as well as the penalties likely to be imposed pursuant to a
plea agreement or following trial. Were it otherwise, and
belatedly-realized mistakes in their pre-plea assessments were
deemed sufficient, without more, to warrant plea withdrawals,
"plea agreements and the pleas entered pursuant to them [would be
rendered] meaningless." Allard, 926 F.2d at 1243.
______
Often the decision to plead guilty is heavily
influenced by the defendant's appraisal of
the prosecution's case against him and by the
apparent likelihood of securing leniency
should a guilty plea be offered and accepted.
Considerations like these frequently present
imponderable questions for which there are no
certain answers; judgments may be made that
in the light of later events seem
improvident, although they were perfectly
sensible at the time. . . . A defendant is
not entitled to withdraw his plea merely
because he discovers long after the plea has
been accepted that his calculus misappre-
hended the quality of the State's case or the
likely penalties attached to alternative
courses of action.
Brady v. United States, 397 U.S. 742, 756-57 (1970).
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Finally, the strategic decision to plead guilty was not
rendered involuntary by the anxieties and time pressures
confronting Marrero. The unenviable position in which Marrero
found himself is common among criminal defendants, and hardly
exceptional enough to evince an overbearing of his will or to
14
have precluded a rational assessment of the available options.
See id. at 750 (no evidence defendant was so gripped by fear of
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possible death penalty as to preclude rational weighing of
advantages of trial with advantages of guilty plea); Dorsey, 61
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F.3d at 1470 ("Although deadlines, mental anguish, depression,
and stress are inevitable hallmarks of pretrial plea discussions,
such factors considered individually or in aggregate do not
establish that petitioner's plea was involuntary."); Pellerito,
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878 F.2d at 1541 ("Criminal prosecutions are stressful
experiences for nearly all concerned . . . . The relevant
question for plea withdrawal is . . . whether the decision to
plead was voluntary, i.e., a product of free will.").
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(b) Knowing and Intelligent Plea
(b) Knowing and Intelligent Plea
____________________________
The main focus of the Rule 32(e) claim in relation to
the second core concern is that Marrero did not understand, nor
was he informed about, the mens rea requirement for the
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conspiracy charge viz. that the government had to be able to
____
prove he knew, at the time, that the box he left for Flette
contained cocaine and constituted a one-kilogram sample of the
ten kilograms to be delivered to the buyers. In a closely
related contention, Marrero insists that there was no adequate
factual predicate for the guilty plea since he simply admitted to
_______
having knowingly held the box for Flette and that the box
contained cocaine, but that he did not know, at the time he held
__ ___ ____ __ ____
the box, that it contained cocaine.
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There was no "clear error" in the district court
15
finding that Marrero understood the nature of the cocaine
conspiracy charge at the Rule 11 hearing. Marrero acknowledged
under oath that he had read, discussed with counsel, and
understood the indictment. He endorsed the factual summary of
the offense given by the government at the Rule 11 hearing. Both
the indictment and the government's version of the facts plainly
referred to the requisite mens rea for conviction of the
____ ___
conspiracy offense.11 Thus, Marrero was explicitly informed of
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the mens rea requirement for the conspiracy charge.12
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Nor are we unmindful that Marrero claims to have been
undone by the nuances of conspiracy law. But while a layman
might not be expected to understand, ab initio at least, exactly
__ ______
what he need have known to be found culpable as a conspirator,
there can have been little question as to the point in time by
__
which the requisite culpable knowledge need have been acquired;
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to wit, before the defendant's conspiratorial involvement, if
any, terminated. In truth then, the contention Marrero now
raises concerning whether his guilty plea was "intelligent" is
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11The indictment, see supra note 4, was replete with
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language affording Marrero notice of the requisite knowledge and
intent. See also supra note 5. Moreover,the prosecutor's
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summary of the facts, see supra pp. 4-5, stated that Flette's
___ _____
testimony would establish that Marrero "willingly and knowingly
conspired" with Flette to distribute ten kilograms of cocaine,
and did distribute one kilogram.
12The record evidence further reflects that Marrero is an
adult male, age 37, who completed high school and went on to
become a commercial airline pilot. At the time of his arrest,
Marrero owned and operated his own small cafeteria business. The
district court found that Marrero was alert and understood the
Rule 11 proceedings.
16
not, as he would have it, dependent upon his understanding of the
intricacies of conspiracy law, but on the commonsense, near-
universal understanding that one cannot be held criminally
responsible for agreeing to cooperate with another in effecting a
lawful enterprise. Thus, the upshot of the present contention is
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that Marrero pled guilty to a felony cocaine charge, carrying a
potential life-imprisonment term, knowing all the while that he
had never agreed to distribute cocaine.
At bottom, therefore, what Marrero points to as clear
error is the district court finding both at the Rule 11 and
the Rule 32(e) hearing that Marrero conspired with Flette to
sell ten kilograms of cocaine, knowing that the object of their
agreement was unlawful. Even so, it was not essential that the
________
evidence establish that Marrero knew the box contained cocaine.
Rather, it was only necessary to establish an evidentiary founda-
tion upon which the district court reasonably could find that
Marrero and Flette knowingly agreed to supply ten kilograms of
cocaine. See, e.g., United States v. De La Cruz, 996 F.2d 1307,
___ ____ _____________ __________
1311 (1st Cir.) (although defendant never saw or possessed
cocaine, and there was no direct evidence that he knew of its
existence, a combination of circumstantial factors presence at
scene, suspicious conduct, subordination to drug leader,
possession of cellular phone and beeper allowed jury to draw
inference that scienter elements of conspiracy were present),
cert. denied, 510 U.S. 936 (1993). Among the evidentiary
_____ ______
considerations which sufficed, in combination, to support such a
17
showing, were Marrero's repeated admissions at the Rule 11
__________
hearing that he had conspired with Flette to distribute ten
kilograms of cocaine; the employer-employee relationship between
Marrero and Flette; the beeper message Marrero received from
Flette to prepare "ten jet skis"; the government agents'
representations; the kilogram of cocaine seized by the agents;
and Marrero's acknowledgement that the government's version of
the facts, see supra pp. 4-5, was correct. Furthermore, although
___ _____
it is conceivable that Marrero did not know the box contained co-
caine, there is no dispute that it did contain cocaine.
___
Therefore, given the undisputed physical evidence, and
Marrero's admission that he did conspire with Flette to
distribute ten kilograms of cocaine, the district court's
findings, both at the Rule 11 hearing and the Rule 32(e) hearing,
were not only entirely plausible, but far more plausible than the
scenario belatedly suggested by Marrero, even assuming he never
knew the box contained cocaine. See Sanchez-Barreto, 93 F.3d at
___ _______________
23; Cumpiano, 902 F.2d at 152.
________
The effort to establish that Marrero did not know the
box contained cocaine is impeded by two additional obstacles.
First, Marrero must persuade us that the district court's
contrary assessment constituted an abuse of discretion. See
___
Sanchez-Barreto, 93 F.3d at 23. Second, after repeatedly repre-
_______________
senting at the Rule 11 hearing that he did conspire with Flette
___
to distribute ten kilograms of cocaine, the plausibility of his
present contention is seriously diminished by his continuing
18
failure, even at this late date, to attempt to articulate a
theory upon which it might be determined, given the evidence
relied upon by the government at the Rule 11 hearing, that he did
not conspire with Flette. Thus, whether or not Marrero knew the
___
box contained cocaine at the time he left it for Flette, there
was ample basis for the district court rationally to conclude
that he did, as well as an abundant evidentiary foundation at the
Rule 11 hearing for finding the guilty plea "intelligent" and
"knowing," especially in light of Marrero's assurances to the
district court that he had discussed the nature of the conspiracy
charge with Aguayo and understood it. On this record, the
district court's firsthand assessment that Marrero's guilty plea
was knowingly and intelligently made did not constitute an abuse
of discretion. See id.
___ ___
Finally, after reviewing the entire record, we can
discern nothing that might have indicated to the district court,
in any way, that Marrero either did not understand, or had been
misinformed by counsel regarding, any element of the conspiracy
charge lodged against him. Rather, all responses given by
Marrero during the Rule 11 colloquy were entirely consistent with
a correct and comprehensive understanding of the conspiracy
charge and its elements. See Isom, 85 F.3d at 833, 836 (holding
___ ____
that nothing in record indicated that defendant lacked
understanding of charges); United States v. Ramos, 810 F.2d 308,
_____________ _____
314 (1st Cir. 1987) (no doubts raised as to competence to plead
until plea-withdrawal motion); Marquis v. United States, 698 F.2d
_______ _____________
19
13, 16 (1st Cir. 1983) (no indication at Rule 11 hearing that
plea was involuntary or product of misunderstanding); contrast
________
Gray, 63 F.3d at 60 (defendant represented that he was confused
____
about consequences of guilty plea); United States v. Ribas-
______________ ______
Dominicci, 50 F.3d 76, 79 (1st Cir. 1995) (responses during Rule
_________
11 colloquy "should have alerted the court that [defendant] was
claiming that, at the time the trousers were sold to third
parties, he did not intend to commit a crime"); United States v.
_____________
Ruiz-Del Valle, 8 F.3d 98, 103 (1st Cir. 1993) (charge neither
______________
read nor explained, and defendant made statement that should have
put court on notice that she did not understand firearms charge);
United States v. Valencia, 923 F.2d 917, 921 (1st Cir. 1991)
______________ ________
(defendant expressed confusion about jurisdictional element of
charge); Mack v. United States, 635 F.2d 20, 24-25 (1st Cir.
____ _____________
1980) (where defendant stated first that he had been coerced, a
contradictory statement that plea was voluntary could not simply
be accepted by district court "Once Mack stated that the plea
was not made of his own free will, the court was required to
undertake a more searching inquiry." (citations omitted)).
(c) Evidentiary Predicate For Guilty Plea
(c) Evidentiary Predicate For Guilty Plea
_____________________________________
For similar reasons, we reject the further claim that
the factual predicate for the guilty plea was inadequate. First,
Marrero conceded that the government could prove, beyond a
reasonable doubt, that he "willingly and knowingly conspired"
with Flette and others to distribute ten kilograms of cocaine and
that they actually distributed one kilogram to the undercover
20
agents. The district court was entitled to credit these sworn
judicial admissions. Parrilla-Tirado, 22 F.3d at 373 ("[i]t is
_______________
the policy of the law to hold litigants to their assurances.").
The district court record further supports a finding
that Marrero had the requisite culpable state of mind. The
government's version of the facts stated that Marrero had
received a beeper message to prepare "ten jet skis," specifically
____________
noting that "jet skis" meant cocaine. Marrero explicitly stated
______ ____ ___ ____ _____ _______
that he had read the government's version of the facts, discussed
it with counsel, and acknowledged its truth.
Marrero nonetheless contends on appeal that the record
does not indicate that he understood that the government's
__
rendition of "jet skis" (as a code term for "cocaine") purported
to describe what Marrero, as distinguished from Flette,
understood the term to mean. In addition, he now notes that
there is no record evidence that "jet skis" was a prearranged
code, and denies having known that it meant anything other than
aquatic jet skis.
_______
The factual predicate for the requisite mens rea may be
____ ___
inferred from all the evidence alluded to at the Rule 11 hearing.
See United States v. Japa, 994 F.2d 899, 903-04 (1st Cir. 1993)
___ _____________ ____
(factual predicate for mens rea met even though court failed to
____ ___
ask during Rule 11 colloquy, with regard to one count, whether
defendants had requisite intent, where intent reasonably could be
inferred from their admission of intent in relation to another
count); Cotal-Crispo, 47 F.3d at 4-5 ("What is critical is the
____________
21
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 communication.") (citations omitted).
Altogether aside from the fact that Marrero has not
attempted to explain to us why he would have received a beeper
message from Flette to prepare "ten jet skis," absent any record
indication or contention that either he or Flette dealt in
aquatic "jet skis," there is no suggestion from Marrero,
plausible or otherwise, as to why the undercover agents would
have offered Flette $18,000 for each "jet ski."13 More to the
point, were we to postulate that the term "jet skis" did refer to
the aquatic variety, we would be at a total loss ourselves to
explain the uncontested fact that the box Flette delivered to the
undercover agents contained cocaine. Accordingly, we conclude
that the district court reasonably found that Marrero understood
that the beeper message he received from Flette referred to
cocaine, particularly in light of Marrero's Rule 11 admissions.
See, e.g., supra note 13.
___ ____ _____
Finally, Marrero maintains that he did not understand
the conspiracy charge and that once he understood it he realized
____________________
13Marrero explicitly acknowledged the correctness of the
Government's Version of the Facts, which states that the agents
offered to buy "ten jet skis" at $18,000 each. Thus, there was
no clear error in the district court's finding that Marrero
understood, at the time he received it, that the "jet skis"
message referred to cocaine. In addition, of course, the
indictment to which Marrero pled guilty did not speak in code,
but plainly alleged, as an overt act, that Flette had sent a
beeper message to Marrero "providing instructions regarding the
sale of ten (10) kilograms of cocaine."
22
he was not guilty. See Parrilla-Tirado, 22 F.3d at 373 (asser-
___ _______________
tion of innocence weighs in favor of withdrawal). He relies on
notes made by Aguayo during their Rule 11 conference, indicating
that Marrero had admitted that the box he left for Flette
contained cocaine. Although Aguayo stated at the Rule 32(e)
hearing that he had explained to Marrero the nature of the charge
and that there had to be a factual basis for it, Aguayo was not
asked to explain precisely how he had described the requisite
factual basis. See supra p. 6.
___ _____
We cannot permit Marrero to exploit this putative
omission on direct appeal absent a fully developed record, as it
amounts to a Sixth Amendment "ineffective assistance" claim. See
___
United States v. Lopez-Pineda, 55 F.3d 693, 697 (1st Cir.)
______________ ____________
(inadequate record precludes review of "ineffective assistance"
claim on direct appeal; collateral review remains open), cert.
_____
denied, 116 S. Ct. 259 (1995); United States v. Tuesta-Toro, 29
______ _____________ ___________
F.3d 771, 776 (1st Cir. 1994) (collateral proceeding under 28
U.S.C. 2255 is proper forum for fact-bound "ineffective assis-
tance" claim, where record is insufficiently developed for direct
review), cert. denied, 115 S. Ct. 947 (1995); see also United
_____ ______ ___ ____ ______
States v. McDonald, F.3d , , 1997 WL 464957 * (1st
______ ________ ___ ___ ____
Cir. August 20, 1997). Further factual development is plainly
necessary as the present claim implicitly presumes that Aguayo
________
rendered ineffective assistance. Although there could be little
doubt that an "ineffective assistance" claim would lie were it
made to appear that defense counsel failed to explain, prior to a
23
Rule 11 hearing, that the defendant could not be convicted of
conspiracy under 21 U.S.C. 841(a)(1), 846, unless he had
knowingly conspired to distribute cocaine, we are not about to
_________
presume professional ineptitude on the part of counsel.
3. Other Relevant Factors
3. Other Relevant Factors
______________________
Since the district court conducted a comprehensive Rule
11 hearing during which Marrero repeatedly stated that he was
satisfied with Aguayo's representation, understood the charges
and the consequences of his guilty plea, freely acknowledged
having agreed with Flette to distribute ten kilograms of cocaine
as alleged in the indictment and that he had not been coerced
into pleading guilty, the Rule 11 record fully supported the
district court's determination that the guilty plea was knowing,
intelligent and voluntary. See Sanchez-Barreto, 93 F.3d at 23
___ _______________
("We have found no abuse of discretion in disallowing plea
withdrawals where Rule 11 safeguards were scrupulously followed
by the district court."); Ramos, 810 F.2d at 314 ("That the
_____
district court thoroughly complied with Rule 11 also weighs
heavily against appellant.").
Furthermore, the change of heart by Marrero came more
than fourteen weeks after the Rule 11 hearing. Given the
principal ground on which the Rule 32(e) motion is based
essentially that Aguayo had pressured him into pleading guilty
and had not explained to him that he need have known that the
object of the alleged conspiracy was to distribute cocaine we
think the extended delay in seeking to vacate the guilty plea
24
likewise diminishes its plausibility. "The rule of thumb is that
the longer a defendant waits before moving to withdraw his plea,
the more potency his motion must have in order to gain favorable
consideration." Parrilla-Tirado, 22 F.3d at 373. See also,
_______________ ___ ____
e.g., Isom, 85 F.3d at 839 (two months, too long); Cotal-Crispo,
____ ____ ____________
47 F.3d at 8 (same); Ramos, 810 F.2d at 313 (thirteen days, too
_____
long). Although Marrero asserts that it is difficult to find
legal representation in Puerto Rico in August, and points out
that the Rule 32(e) motion was filed prior to the presentence
report and sentencing, contrast United States v. Gonzalez-
________ ______________ _________
Vazquez, 34 F.3d 19, 22-23 (1st Cir. 1994) (defendant moved to
_______
withdraw plea after presentence report suggested he would receive
a stiff sentence); Parrilla-Tirado, 22 F.3d at 373 (same), these
_______________
other considerations alone do not warrant setting aside the
district court's firsthand assessment that there was no fair and
just reason for allowing Marrero to withdraw his guilty plea.
See Cotal-Crispo, 47 F.3d at 3.
___ ____________
B. Calculation of Drug Quantity
B. Calculation of Drug Quantity
____________________________
In another vein, Marrero challenges the finding that he
was criminally responsible for ten kilograms of cocaine. He
contends that the district court failed to consider whether he
had either the intent or the ability to distribute the negotiated
quantity of cocaine ten kilograms. See U.S.S.G. 2D1.1,
___
comment. (n.12) (1995) ("If, however, the defendant establishes
_________ ___________
that he . . . did not intend to provide, or was not reasonably
capable of providing the agreed-upon quantity . . ., the court
25
shall exclude from the offense level determination the amount of
controlled substance that the defendant establishes that he . . .
did not intend to provide or was not reasonably capable of
providing.") (emphasis added). Marrero further maintains that
even assuming he knew the box contained one kilogram of cocaine,
it was not "reasonably foreseeable" that the one kilogram was a
sample for a ten-kilogram sale, and therefore he should not have
been found culpable for the total amount negotiated by Flette.
See U.S.S.G. 1B1.3(a)(1)(B), comment. (n.2) (1995).
___
There can have been no clear error, see United States
___ _____________
v. Miranda-Santiago, 96 F.3d 517, 524 (1st Cir. 1996), as the
________________
district court correctly found that Marrero had admitted, both in
the plea agreement and during the Rule 11 hearing, that he was
responsible for ten kilograms of cocaine as charged in the
indictment. See supra note 2. The district court was entitled
___ _____
to credit these sworn admissions. See Parrilla-Tirado, 22 F.3d
___ _______________
at 373; Martinez-Molina, 64 F.3d at 733; Carter, 815 F.2d at 829;
_______________ ______
Butt, 731 F.2d at 80.
____
Finally, the claim that Marrero did not intend to
produce, or was not capable of producing, ten kilograms of
cocaine, fails as well, since there was no attempt to demonstrate
that he and Flette were not reasonably capable of delivering the
amount agreed upon with the undercover agents. See U.S.S.G.
___
2D1.1 comment. (n.12) (1995). Accordingly, Marrero's admissions
afforded ample support for the district court finding that he was
criminally responsible for ten kilograms.
26
III
III
CONCLUSION
CONCLUSION
__________
For the foregoing reasons, the district court judgment
is affirmed, without prejudice to appellant's right to renew the
________
ineffective assistance claim in a collateral proceeding.
27
