United States v. Ruiz-Del Valle

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-1842

UNITED STATES,

Plaintiff, Appellee,

v.

CARMEN RUIZ-DEL VALLE,
A/K/A MARIA SOTO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

Before

Torruella, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Lydia Lizarribar-Masini for appellant.

Miguel A. Pereira, Assistant United States Attorney, with whom

Charles E. Fitzwilliam, United States Attorney and Jose A. Quiles-

Espinosa, Senior Litigation Counsel, were on brief for appellee.

November 3, 1993

BOWNES, Senior Circuit Judge. After executing a
BOWNES, Senior Circuit Judge.

plea agreement, defendant-appellant, Carmen Ruiz del Valle

(Ruiz), pled guilty to counts two, five and six of a super-

seding indictment on January 22, 1992. Counts two and five

charged that defendant, along with her common law husband,

Arturo Reyes Diaz (Reyes), and Orlando Col n Santiago, with

aiding and abetting each other, and with possessing with

intent to distribute 5,152 and 3,566 grams of heroin in

violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. Count

six charged that defendant and Reyes used and carried fire-

arms during and in relation to a drug trafficking crime in

violation of 18 U.S.C. 924(c)(1). This count carries a

minimum mandatory sentence of five years.

There are two issues: whether defendant should be

allowed to withdraw her guilty plea to the firearms charge

(count six); and whether the district court erred in sentenc-

ing defendant on the other two counts by adding two points to

her base offense level because she played a leadership role

in the offense.

THE FACTS

In order to understand the first issue the facts

must be related in detail. In the late afternoon of August

25, 1991, a suitcase arrived at the International Airport in

San Juan. It had been delivered by an American Airlines

flight from the Dominican Republic. Because the suitcase had

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arrived from a foreign country, it was deposited in the U.S.

Customs area for inspection.

The inspecting Customs Officer noted that the

suitcase left Kennedy Airport in New York City on August 23

destined for San Juan. By mistake the suitcase was not

unloaded at San Juan and was taken to the carrier's final

destination, the Dominican Republic. The suitcase was re-

turned to San Juan, its original destination, on August 25.

The suitcase had an American Airlines claim tag with the name

of Maria Soto, and there was a passenger identification tag

bearing the same name. Because the suitcase had a strong

chemical odor, the Customs Inspector opened it and found

seven packages that field-tested positive for heroin. The

total amount of heroin weighed 5,152.1 grams. Special Agent

Rodolfo Salcedo of the Customs Service was notified.

Agent Salcedo immediately tried to find the owner

of the suitcase. He ascertained that an airport baggage

handler, Wilfredo Ortiz, had tried to retrieve the suitcase,

but was told that only the owner could do so. Ortiz was

interviewed by Agent Salcedo and DEA agents. He gave them

essentially the following information. On August 25, defen-

dant, accompanied by Reyes and a small child, went to Ortiz's

home. Defendant identified Reyes as her husband. Defendant

told Ortiz that an American Airlines employee, whom she had

phoned, told her that the suitcase had arrived. She offered

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Ortiz $15,000 if he helped her retrieve the suitcase from the

Customs area. Defendant then drove Ortiz to the airport,

gave him five dollars, and told him that after obtaining the

suitcase he was to take a taxi to the Laguna Gardens parking

lot where she and Reyes would be waiting for him. As already

noted, Ortiz was unable to obtain the suitcase.

Defendant drove Ortiz back to his residence.

During the drive defendant asked Ortiz when his next working

day was. Ortiz told her it was Tuesday, August 27. Defen-

dant told Ortiz that she would look for him on that date.

Also, during the drive back to Ortiz's home, Reyes stated

that the suitcase contained "seven big eggs" wrapped in

plastic containing drugs. In a subsequent conversation,

presumably by telephone, Ortiz told defendant that he knew an

American Airlines employee who could retrieve the suitcase

for a fee. Defendant said that she would pay Ortiz $15,000,

and the American Airlines employee $10,000. Ortiz then asked

defendant what was in the suitcase, and defendant told him it

contained heroin.

On August 28, DEA Agent Victor Ayala, acting as an

undercover agent, was telephonically introduced to defendant

as the American Airlines employee who could retrieve the

suitcase. During the recorded telephone conversation, defen-

dant agreed to pay Ayala $10,000 for delivering the suitcase.

Ayala inquired about the contents of the suitcase and was

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told that it contained heroin. Defendant and Ayala agreed to

meet at the San Juan Airport so she could give him her bag-

gage claim ticket.

In the early afternoon of August 28, defendant and

Reyes came to the airport. Agent Ayala, who was accompanied

by Ortiz, was given a baggage claim ticket with the name

"Soto/ Maria." Defendant told Ayala not to worry about his

money, that it was secure. Ayala told defendant that she

would be called as soon as he obtained the suitcase. About

three hours later Ayala called defendant and told her that he

had the suitcase. This telephone call was recorded. Defen-

dant talked to Ortiz and told him that her husband and anoth-

er person would pick up the suitcase and deliver the money.

Defendant also talked to Ayala and told him that if he was a

cop, she would chop his head off.

About two and a half hours later there was another

recorded telephone call between Ayala and defendant. At the

start of the phone call defendant told Ayala that the money

man had just arrived and to call back in two minutes. This

was done, and the second phone call was duly recorded. It

was agreed that defendant would pay Ayala the $10,000 and

pick up the suitcase the next day about 10:30 a.m. The

exchange of money for the suitcase was to take place in front

of Wendy's Restaurant at the airport.

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The next day, at about 10:45 a.m., the other two

defendants named in the indictment, Reyes and Col n, pulled

up and parked in front of Wendy's as agreed. Reyes was

driving. Col n got out of the car and gave Agent Ayala a bag

in which there was a twelve-can container of Pepsi Cola with

six cans of Pepsi and $10,000 in cash. Col n told Agent

Ayala to put the suitcase on the back seat of the car. After

this was done, Col n was arrested. Reyes tried to flee by

driving away. After a three minute chase, he was stopped and

arrested. During his attempted flight, Reyes threw the

suitcase out of the window of the car.

The next day, August 29, at about 7:35 p.m., Cus-

toms and DEA agents, acting pursuant to a duly authorized

warrant, searched the condominium apartment held in the name

of defendant and jointly occupied by her and Reyes. No one

was in the apartment at the time of the search. Found in the

apartment and seized were 3,566 grams of heroin, assorted

drug paraphernalia, including scales and three weapons with

the ammunition necessary for their use. The firearms were a

twelve-gauge shotgun, altered to make it a hand-held weapon,

a Winchester rifle, model 94, and a pistol.

PROCEDURAL HISTORY

As already noted, defendant pled guilty on Janu-

ary 22, 1992. She was sentenced on June 15, 1992, and filed

a notice of appeal from the sentencing on June 19.

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Unlike defendant Ruiz, her husband, Reyes, opted

for a bench trial. For reasons that will become apparent,

the record of that trial is part of the record in this case.

Reyes was tried on August 20, 1992, on counts one, two, five,

six, seven, and eight. Count one charged conspiracy with

intent to distribute multi-kilo quantities of heroin; counts

two and five charged possession with intent to distribute the

same multi-kilo amounts of heroin. Counts six, seven, and

eight were firearms counts charging violations of 18 U.S.C.

924(c)(1). These counts carried minimum mandatory sentences

of five years.

Reyes did not plead guilty to counts one, two, and

five, but neither did he contest them. His entire defense

was concentrated on the firearms counts. On this he was

successful. The same district court judge who accepted

defendant's guilty pleas presided at the bench trial of her

husband. Because it is important to our resolution of this

case we quote the pertinent portion of the district court's

rulings and findings in the case against Reyes:

It is clear from the cases which
have just been summarized that the objec-
tive of 924(c)(1) is to penalize drug
transactions which could easily escalate
into violence. Such is not the situation
at hand. It may be true that the fire-
arms were located at the apartment for
the purpose of protecting a drug business
which was admittedly conducted in the
apartment, but the mere presence of fire-
arms is not sufficient for a conviction,
for there must be a nexus between the

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firearm and the facilitation of the tran-
saction at issue.

The defendant did not arrange to
meet the undercover agent at the apart-
ment; they met at the airport. At the
time of the search the apartment was
vacant and no drug business was being
conducted.

There are other firearm statutes
whose purpose is to deter the possession
of firearms without a permit. Section
924(c)(1) was not drafted for that pur-
pose.

Even though the defendant has also
been charged with a conspiracy to dis-
tribute a controlled substance, the exis-
tence of such a conspiracy is not suffi-
cient to support a conviction for a fire-
arm which was not proven to be part of
the commission of the felony. United

States v. Pietri, 683 F.2d 877, Fifth

Circuit 1982 (sufficient evidence to
support convictions where conspirators
met with undercover agent with revolver
concealed in pant leg).

Wherefore, in view of the foregoing,
the Court hereby finds that there is
insufficient evidence for convictions as
to Counts Six, Seven and Eight, which are
the firearms counts.

United States v. Reyes Diaz, 797 F. Supp. 96, 97 (D. Puerto

Rico 1992).

On October 9, 1992, defendant Ruiz moved in the

district court to withdraw her guilty plea on count six, the

firearms charge. The district court quite properly ruled

that it lacked jurisdiction to entertain such a motion. Fed.

R. Crim. P. 32(d) provides, that, after sentencing, "a plea

may be set aside only on direct appeal or by motion under 28

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U.S.C. 2255." Because in her notice of appeal defendant

Ruiz questioned the evidentiary basis for her plea of guilty

to the firearms count, the issue whether she should be al-

lowed to withdraw her guilty plea to that count is properly

before us, as the government concedes.1

ANALYSIS

We start with the Rule 11 plea hearing. Although

defendant has not directly attacked the manner in which the

plea hearing was conducted, an examination of the plea hear-

ing is logically the first step in the review process. This

is so even if a claim of non-compliance with Rule 11 was not

presented to the trial court. United States v. Parra-Ibanez,

936 F.2d 588, 593 (1st Cir. 1991). In United States v.

Padin-Torres, 988 F.2d 280 (1st Cir. 1993) we noted, citing

to Parra-Ibanez: "Rule 11 objections, so far as they affect

the 'knowing' character of the plea are treated with extra

solicitude." See also United States v. Mateo, 950 F.2d 44,

45 (1st Cir. 1991) (a Rule 11 challenge will not be consid-

ered waived since Rule 11 protects not only rights of the

defendant but also the "'fairness, integrity [and] public

reputation of judicial proceedings.'"). In United States v.

Daniels, 821 F.2d 76, 81 (1st Cir. 1987), we noted that,

1. The government's statement of issue one is:
I. Whether Appellant's Request to Withdraw Her
Voluntary Plea of Guilty to Count Six of the
Superseding Indictment Should be Granted.

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because the "fairness, integrity [and] public reputation of

judicial proceedings" is at stake in Rule 11 proceedings,

appellate courts have sometimes considered Rule 11 violations

sua sponte.

There are certain basic duties that a district

court must fulfill in conducting a Rule 11 hearing. Under

the Rule, the court must address the defendant personally and

determine that the defendant understands the nature of the

charges to which the plea is offered. Fed. R. Crim. P.

11(c)(1). The Supreme Court in commenting on the require-

ments of Rule 11 has stated:

Thus, in addition to directing the
judge to inquire into the defendant's
understanding of the nature of the charge
and the consequences of his plea, Rule 11
also requires the judge to satisfy him-
self that there is a factual basis for
the plea. The judge must determine "that
the conduct which the defendant admits
constitutes the offense charged in the
indictment or information or an offense
included therein to which the defendant
has pleaded guilty." Requiring this
examination of the relation between the
law and the acts the defendant admits
having committed is designed to "protect
a defendant who is in the position of
pleading voluntarily with an understand-
ing of the nature of the charge but with-
out realizing that his conduct does not
actually fall within the charge."

McCarthy v. United States, 394 U.S. 459, 467 (1969) (quoting

Fed. R. Crim. P. 11, advisory committee's note).

Our cases stress that the district court must make

sure that the plea is voluntary and that the defendant under-

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stands the charges against her. In Mack v. United States,

635 F.2d 20, 25 (1st Cir. 1980), we stated: "Insuring that

the plea is truly voluntary means that the court must resolve

all doubts and questions arising about the guilty plea." It

is axiomatic that the procedures followed by the district

court in accepting a plea are crucial in later determining

whether the plea was truly understanding and voluntary.

United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir. 1983).

In United States v. Allard, 926 F.2d 1237, 1245 (1st Cir.

1991), we pointed out: "The plain language of the rule [Fed.

R. Crim. P. 11(c)] requires the court both to inform the

defendant of the nature of the charge and make a determina-

tion that he understands it." In reviewing the record of a

change of plea hearing, we bear in mind that there is no

"talismanic test" for determining compliance with the re-

quirements of the rule. "We must look at the circumstances

of the case to determine whether the district court informed

the defendant of the charges, and determined that the defen-

dant understood them." United States v. Zorrilla, 982 F.2d

28, 30 (1st Cir. 1992), cert. denied, 113 S. Ct. 1665 (1993).

We find the change of plea hearing as to the fire-

arms count, which is the only one at issue, defective for two

reasons. First, the charge was not read to defendant, nor

was it explained to her by the court. It is true that both

defendant and her attorney assured the court that she under-

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stood all of the charges against her. But this does not

excuse the judge from personally explaining the charges to

the defendant and then questioning her to be sure that she

understands them. This was especially so here because in its

outline of the evidence the government alluded only once to

the firearms count. The prosecutor stated: "Subsequently, a

search of the defendant Ruiz Del Valle's apartment produced

three weapons and additional heroin in the amount of 3,566

grams." This is hardly sufficient to explain the firearms

count.

The second reason we think the plea hearing violat-

ed Rule 11 was that the court was, or should have been, put

on notice by a statement by the defendant that she either did

not understand the firearms charge or felt that the presence

of a weapon in her apartment was not a crime. The statement

made by defendant was: "I knew that there was a weapon in

the room, but I did not buy that weapon and I did not use

it." Beyond ascertaining that the word "room" meant defen-

dant's apartment, no further inquiry was made. The court's

failure to inquire of defendant and the prosecutor about the

firearms charge was of special significance here because the

court later decided on facts that were identical that there

was insufficient evidence for conviction of defendant's

husband on the firearms charges. In fact, the defendant's

statement that she did not buy the weapon or use it, should

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have, under the court's rationale in the husband's case,

prompted the court to refuse to accept defendant's plea on

the firearms count.

We wish to make it clear that we are not passing on

the legal or factual correctness of the district court's

opinion. For purposes of this appeal we consider the opinion

only because it reflects the understanding of the judge as to

whether the evidence was sufficient for a conviction on the

firearms count. He found that it was not. His understanding

of the requirements of 18 U.S.C. 924(c)(1) was that "the

mere presence of firearms is not sufficient for a conviction,

for there must be a nexus between the firearm and the

facilitation of the transaction at issue." The court also

found it material that "[A]t the time of the search the

apartment was vacant and no drug business was being conduct-

ed." Finally, the court held:

Even though the defendant has also been
charged with a conspiracy to distribute a
controlled substance, the existence of
such a conspiracy is not sufficient to
support a conviction for a firearm which
was not proven to be part of the commis-
sion of the felony.

Our review of the record in defendant's case and

the trial transcript in her husband's case convinces us that

as far as the firearms counts are concerned both defendant

and her husband stood on equal footing. Both of them occu-

pied the condominium apartment, although it was in defen-

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dant's name. There was no evidence as to who owned the

weapons found in the apartment. Reyes did not testify at his

bench trial. We emphasize that the judge who accepted defen-

dant's guilty pleas was the same one who later found her

husband not guilty on the firearms counts. We can only

conclude that if defendant had gone to trial, as her husband

did, that she would also have been found not guilty.

The question for the appellate court on a direct

appeal of a post-sentence request for a plea withdrawal is

whether there has been a miscarriage of justice. United

States v. Allard, 926 F.2d at 1243. Or to put another cast

on it, was there "an omission inconsistent with the rudimen-

tary demands of fair procedure"? United States v. Japa, 994

F.2d 899, 904 (1st Cir. 1993). See also Hill v. United

States, 368 U.S. 424, 428 (1962).

We conclude that defendant should be allowed to

withdraw her plea for two reasons: the court's failure to

follow the requirements of Rule 11 violated the demands of

fair procedure; and the court's subsequent findings and

rulings in the husband's case makes the imposition of the

minimum mandatory sentence of five years for the firearms

count a miscarriage of justice in defendant's case.

This holding is based on the unique facts of this case.

We are not suggesting that where one defendant has pled

guilty and the other defendant goes to trial and is acquit-

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ted, that the pleading defendant has a basis for withdrawing

her plea. In this case, there probably would have been no

motion by defendant to withdraw her plea were it not for the

district court's decision on the firearms charges in her

husband's case. The reason, however, for allowing defendant

to withdraw her plea was not the court's decision in her

husband's case; the reason was the district court's failure

to follow the mandate of Rule 11 in accepting defendant's

plea to the firearms count.

We must warn defendant, as we did her counsel at

oral argument, that the withdrawal of her guilty plea on the

firearms count is not a guarantee of acquittal on that count.

All that defendant is entitled to is a new trial on the

firearms count. New facts may emerge and different legal

rulings may be made. We specifically point out that under 18

U.S.C. 924(c)(1) if the firearm is a "short-barreled rifle"

or a "short-barreled shotgun," the minimum mandatory sentence

is ten years. We do not know whether the rifle or shotgun

found in defendant's apartment fall within this category and

only bring this to defendant's attention.

LEADERSHIP ROLE DETERMINATION

The other issue is a challenge to the court's

finding that defendant played a leadership role in the thwar-

ted attempt to possess and distribute heroin. Because "role

in the offense" determinations are fact-bound, the standard

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of review is clear error. United States v. Rodriguez Alvara-

do, 985 F.2d 15, 19 (1st Cir. 1993); United States v.

Schultz, 970 F.2d 960, 963-64 (1st Cir. 1992), cert. denied,

113 S. Ct. 1020 (1993); United States v. Sostre, 967 F.2d

728, 732 (1st Cir. 1992). We find that the district court

did not commit clear error in finding that defendant was the

leader in the scheme. The evidence from which such a finding

could be made can be summarized as follows: defendant was

the one who contacted Ortiz in an attempt to retrieve the

suitcase; the suitcase claim ticket was in the name of Maria

Soto, an obvious alias; defendant was the one who offered to

pay Ortiz $15,000 for retrieving the suitcase from the Cus-

toms area; and defendant was the one who negotiated with

undercover Agent Ayala about recovering the suitcase.

The leadership role finding of the district court

and the upwards adjustment to the base offense is affirmed.

CONCLUSION

1. Defendant may withdraw her guilty plea on the

firearms count.

2. The sentence of the defendant on the drug

counts is affirmed.

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