Appellant Rafael Navedo appeals from a judgment of conviction entered upon a jury verdict returned in the Southern District of New York on March 19, 1974 after a two day jury trial before Charles L. Brieant, Jr., District Judge, finding Navedo guilty of conspiring to sell narcotics in violation of 21 U.S.C. § 846 (1970) (Count One); carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c)(2) (1970) (Count Two); and assaulting a federal officer in violation of 18 U.S.C. § 111 (1970) (Count Three).1

Of the several claims of error raised on appeal, the only one that warrants discussion is the alleged abuse of discretion on the part of the trial judge in refusing to permit Navedo to plead guilty to the count charging a conspiracy to sell cocaine. For the reasons below, we hold on the facts of this case that there was no abuse of discretion. We affirm.

There was evidence at trial from which the jury could have found that the following occurred early in April 1973.2

On April 5, Navedo met in a Bronx apartment with an undercover agent who showed Navedo $3000. This was the price agreed upon for the agent's purchase of four ounces of cocaine from Navedo. The agent asked Navedo for the cocaine. Navedo left the apartment. He returned shortly with a man whom he introduced as Roy. At Navedo's direction, Roy took out of his pocket a plastic bag of white powder. He handed it to Navedo who gave it to the agent. Navedo requested the agent to test it. The agent opened the package, looked at the contents, closed the package and put it in his pocket.3 The agent in the meanwhile had given the $3000 to Roy who counted it and handed it to Navedo.

On April 17, the agent called Navedo and discussed the possible purchase by the agent of twelve ounces of cocaine from Navedo. After some dickering as to price, Navedo agreed to accept $8,500 for the twelve ounces. They arranged to meet later that evening at a social club in the Bronx to complete the sale. Upon the agent's arrival at the club, he was let in by Navedo who introduced him to a woman, Migdalia Reyes.4 At Navedo's direction, Reyes left the club, drove to another location where she obtained the substance Navedo had directed her to obtain and brought it back to the club in the proverbial brown paper bag. Shortly thereafter Navedo, having agreed with the agent to complete the sale at the same Bronx apartment where the April 5 sale had taken place, left the club with a man (later identified as Roy) who drove him in a pickup truck to the location of the apartment where the sale was to be completed. As Navedo and Roy started to get out of the truck, a police officer left his surveillance car and approached Navedo who jumped back into the truck. The officer, with his gun drawn, ran to the side of the truck and shouted "Stop, Police". As the truck started to move, the officer saw Navedo pointing a gun at him. The officer fired a shot from his service revolver. Navedo dropped his gun to the pavement.5 Roy accelerated the truck and drove away with Navedo. The surveilling officers were unable to follow the truck immediately. The substance that Navedo was attempting to sell to the agent was never recovered.

Navedo was arrested later that day or the next. In an interview with an Assistant United States Attorney, after being advised of his rights, Navedo stated that he had sold what he believed to be cocaine to the agent on April 5 and had negotiated a further sale to the agent on April 17.

We turn directly to the claim that the trial judge abused his discretion in refusing to permit Navedo to plead guilty to the conspiracy count prior to trial.

After having pleaded not guilty to the three counts of the indictment before Judge Brieant on October 15, 1973, Navedo was presented before Judge Brieant for a change of plea to the conspiracy count on December 11, 1973. Represented by counsel and with the consent of the government, he offered to plead guilty to Count One in satisfaction of the three count indictment. After conducting the usual inquiry regarding the voluntariness of the proposed plea, the judge then questioned Navedo directly, as required by Fed.R.Crim.P. 11, to determine whether there was a factual basis for the guilty plea.6 Since Navedo's answers to the judge's questions raised doubts in the judge's mind as to whether the plea ought to be accepted, he reserved decision. He requested and obtained from the government a memorandum in support of the plea, together with copies of Navedo's pre-arraignment statements to the Assistant United States Attorney. After studying these papers, the judge on January 25, 1974 refused to accept the guilty plea on the ground that there was an insufficient factual basis to establish that Navedo had conspired with at least one other person who specifically had intended to engage in a narcotics conspiracy. The case proceeded to trial on March 18, 1974. On the following day, the jury convicted Navedo on three counts and acquitted Reyes on the conspiracy count.

Whatever may have been established by the evidence at trial and whatever inferences such evidence may support as a matter of hindsight, our inquiry on this appeal in determining whether the trial judge abused his discretion must focus upon what was before the judge at the time he was asked to accept Navedo's guilty plea. Fed.R.Crim.P. 11; McCarthy v. United States,394 U.S. 459, 471 (1969); Irizarry v. United States, 508 F.2d 960, 962, 968 (2 Cir. 1974).7

We hold that, at the time Judge Brieant was asked to accept Navedo's guilty plea, "the record did not show, nor did the defendant acknowledge, that he understood the elements of the conspiracy offense to which he (sought to enter) a guilty plea." Irizarry, supra, 508 F.2d at 966, citing United States v. Landry, 463 F.2d 253 (9 Cir. 1972). The chief deficiency in the factual basis stemmed from Navedo's persistence in minimizing his role in the transactions of both April 5 and April 17, the latter identified by Navedo as "(t)he time he (Roy) got away from the cops." Navedo repeatedly described Roy as the boss the one who carried the cocaine, who introduced the agent and who received the money. Navedo insisted that he was merely an underling who accompanied Roy because he was paid $50 but did not know why he was told to accompany him.8

All else aside, Navedo's adamancy in minimizing his role and magnifying that of Roy in both transactions produced a record that raised grave doubts that there was a factual basis upon which the judge could find that Navedo had knowledge of the existence of a conspiracy or an intent to participate in the unlawful enterprise. That, among other gaps in the showing, was sufficient9 to justify Judge Brieant's good faith belief that in refusing to accept the plea he was complying with the command of Rule 11 that "(t)he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea."10

In holding as we do, we do not say that rejection of a guilty plea under Rule 11 may never constitute an abuse of discretion. We recognize that the District of Columbia Circuit has so held in cases distinguishable on their facts from the instant case. United States v. Gaskin, 485 F.2d 1046 (D.C.Cir. 1973) (guilty plea rejected because defendant refused to admit that he committed the crime); Griffin v. United States, 405 F.2d 1378 (D.C.Cir. 1968) (guilty plea rejected because defendant's statements suggested possibility of self-defense). Whether we would reach the same conclusion on the same or similar facts, we leave to another day.

All we hold here is that on the facts of this case the district court did not abuse its discretion in refusing to accept the plea of guilty to the conspiracy count.

We have considered Navedo's other claims of error and find them without merit.

Affirmed.

This case appears before us in a most unusual posture. In the ordinary appeal following a guilty plea the defendant seeks to set aside that plea, claiming that he is innocent, and that his plea was coerced. Navedo, however, admits his guilt and claims that his trial was coerced. He asserts that he was deprived of the shorter sentence usually attendant upon a plea by the district court's refusal to accept his admission of guilt. Because he will be required to serve at least an additional year in prison as a result, I believe a statement of my reasons for disagreeing with my brothers is in order.

As I understand the majority, they would uphold the rejection of Navedo's guilty plea simply because they believe that his statements at the allocution justified Judge Brieant's doubts as to the requisite factual basis.1 It is clear, however, that a factual basis can be found in the very same evidence which led to Navedo's conviction after trial. The lower court's failure to find such grounds resulted not from anything which Navedo said, but rather from a misunderstanding of the responsibilities which Rule 11 imposes upon the district judge. Accordingly, I would reverse.

The record makes clear that the trial judge failed to find the requisite factual basis for the guilty plea because, as he candidly acknowledged, he focused exclusively on the April 5 transaction. Navedo had believed that the powder delivered on that day was cocaine. Because Navedo portrayed himself as Roy's underling in his responses to the Rule 11 queries, however, the court concluded that Roy may have known that the substance delivered was in fact procaine. Judge Brieant consequently refused to accept Navedo's plea, because he believed a sufficient showing had not been made that at least one other conspirator had the specific intent to sell narcotics.

In his colloquy with defense counsel after the verdict, however, Judge Brieant with commendable frankness conceded that he would have found a factual basis if he had considered the events surrounding the proposed sale on April 17:

(O)n the 17th . . . the facts are such that the jury could have inferred . . . that he in truth did agree with Roy to deliver true cocaine . . . and that he sent somebody for cocaine and that there was a brown paper bag which the jury could have inferred had cocaine in it, and that he committed the overt act of going there in the truck to complete the deal . . .

. . . I must tell you that I never knew until the trial unfolded that there were two separate dates and that these discussions and this brown paper bag and all this other evidence we have been exposed to in the last two days was present in this case at all . . . He wanted to plead to the first count. Perhaps in hindsight I should have let him, but I thought I was doing right at the time.

It is perplexing that the court was unaware of the second sale at the time it rejected the plea, since there were ample indications that the case involved two separate transactions. In its memorandum in support of the plea the Government plainly referred to a second proposed sale.2 Moreover, both Navedo's post-arrest statement and the indictment referred to the April 17 transaction. The reason for the oversight, it is apparent, was the judge's misconception that Rule 11 requires the defendant alone to furnish the factual basis for the plea:

I won't take a guilty plea unless the man himself gives me all the elements, and he didn't do so.

Because Navedo's allocution failed to delineate the second transaction precisely, the court confined its consideration to the events of April 5.

Rule 11, however, clearly contemplates independent inquiry by the court in satisfying itself that there exists a factual basis for the plea. Notes of the Advisory Committee on Criminal Law to Rule 11, Fed.R.Crim.P. (specifically mentioning inquiry of government attorney as a source); Irizarry v. United States of America, supra n. 1, 508 F.2d at 963; Davis v. United States, 470 F.2d 1128 (3d Cir. 1973). Indeed, this case illustrates the danger of relying exclusively on information supplied by the defendant himself. A defendant may attempt to minimize his culpability during his allocution because he knows that the same judge will be imposing his sentence. A simple question directed to the Government "What evidence would you present at trial?" would counteract the defendant's natural tendency to distort available evidence. In this case it would also have obviated the need for trial, and saved Navedo at least a year in the penitentiary.

Accordingly, I am of the view that Judge Brieant abused his discretion in rejecting Navedo's plea without good cause. United States v. Gaskins, 158 U.S.App.D.C. 267, 485 F.2d 1046 (1973); Griffin v. United States, 132 U.S.App.D.C. 108, 405 F.2d 1378 (1968). I certainly appreciate the difficulties which confront a trial judge who must decide whether to accept or to reject a plea of guilty. But that should not lead us to ignore the clear facts of this case. Not even the most cautious judge could entertain a suspicion that Navedo's plea was not intelligently and voluntarily offered. This is simply a case where a factual basis existed for the plea, but the trial judge failed to discover it because he did not fully grasp the facts and the applicable law. It is unfair and inappropriate to subject a defendant to additional incarceration for such reasons.