United States v. Martinez Molina

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1249

UNITED STATES,
Appellee,

v.

CARLOS MARTINEZ-MOLINA,
Defendant - Appellant.

No. 94-1250

UNITED STATES,
Appellee,

v.

LUIS MALDONADO-RODRIGUEZ,
Defendant - Appellant.

No. 94-1251

UNITED STATES,
Appellee,

v.

ALFONSO RODRIGUEZ-RESTO,
Defendant - Appellant.

No. 94-1252

UNITED STATES,
Appellee,

v.

ANGEL RODRIGUEZ-RODRIGUEZ,
Defendant - Appellant.

No. 94-1253

UNITED STATES,
Appellee,

v.

ANGEL FELICIANO-COLON,
Defendant - Appellant.

No. 94-1254

UNITED STATES,
Appellee,

v.

LUIS MAYSONET-MACHADO,
Defendant - Appellant.

No. 94-1255

UNITED STATES,
Appellee,

v.

RAFAEL E. VELEZ-MATOS,
Defendant - Appellant.

No. 94-1325

UNITED STATES,
Appellee,

v.

VICTOR NOBLE-CANALES,
Defendant - Appellant.

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No. 94-1631

UNITED STATES,
Appellee,

v.

EDDIE TRAVIESO-OCASIO,
Defendant - Appellant.

No. 94-1791

UNITED STATES,
Appellee,

v.

OSCAR PAGAN-GARCIA,
Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. H ctor M. Laffitte, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Cyr, Circuit Judges.

Teodoro M ndez-Lebr n, by Appointment of the Court, for

appellant Carlos Mart nez-Molina.
Laura Maldonado-Rodr guez, Assistant Federal Public

Defender, with whom Benicio S nchez-Rivera, Federal Public

Defender, was on brief for appellant Luis Maldonado-Rodr guez.
Ram n Garc a, by Appointment of the Court, on brief for

appellant Alfonso Rodr guez-Resto.
Eric B. Singleton for appellant Angel Rodr guez-Rodr guez.

Frank Pola, Jr., by Appointment of the Court, for appellant

Angel Feliciano-Col n.
Manuel San Juan, by Appointment of the Court, for appellant

Luis Maysonet-Machado.

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Miriam Ramos-Grateroles, by Appointment of the Court, for

appellant Rafael E. V lez-Matos.
Thomas R. Lincoln, by Appointment of the Court, with whom

Law Offices of Thomas R. Lincoln, was on brief for appellant

V ctor Noble-Canales.
Mar a H. Sandoval for appellant Eddie Travieso-Ocasio.

Lydia Lizarribar-Masini for appellant Oscar Pag n-Garc a.

Joseph C. Wyderko, Attorney, Department of Justice, with

whom Guillermo Gil, United States Attorney, and Esther Castro-

Schmidt, were on brief for appellee.

August 30, 1995

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TORRUELLA, Chief Judge. Appellants and four co-
TORRUELLA, Chief Judge.

defendants were arrested at the Barbosa Park in Santurce, Puerto

Rico, after a Drug Enforcement Administration ("DEA") agent

observed them participating in what appeared to be a drug

transaction. The defendants moved to suppress evidence obtained

pursuant to the arrest on the grounds that the arrests and

subsequent searches were made without probable cause. The

district court denied their motions, and the appellants entered

conditional guilty pleas. Several appellants subsequently

claimed that their guilty pleas were coerced and moved to

withdraw them. The district court denied these motions as well.

Appellants now appeal the denial of the motions to

suppress and motions to withdraw their guilty pleas. For the

following reasons, we affirm in part and reverse in part.

STATEMENT OF FACTS
STATEMENT OF FACTS

We recite the facts adduced at a suppression hearing in

the light most favorable to the district court's ruling to the

extent that they derive support from the record and are not

clearly erroneous. United States v. Sealey, 30 F.3d 7, 8 (1st

Cir. 1994).

On July 1, 1993, at approximately 2:30 p.m., DEA Agent

Carlos Rivera ("Agent Rivera") was driving past Barbosa park when

he noticed eight or nine men grouped around a concrete bench near

one of the park's basketball courts. Seven or eight vehicles

were parked in a row alongside the group of men. Appellant Luis

Maldonado-Rodr guez ("Maldonado") was talking on a cellular phone

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and another man in the group had a cellular phone attached to his

waist. Agent Rivera observed that the men were not dressed to

play basketball and did not appear to have coolers, sodas, or

alcoholic beverages. Agent Rivera testified that although he did

not know any of the men by name, he had occasionally seen

Maldonado near a drug distribution spot in a local housing

project.

Agent Rivera parked his car in the adjoining parking

lot and began to surveil the group through binoculars. Besides

Maldonado, the group included appellants Alfonso Rodr guez-Resto

("Rodr guez-Resto"), Eddie Travieso-Ocasio ("Travieso"), Angel

Feliciano-Col n ("Feliciano"), V ctor Noble-Canales ("Noble"),

Luis Maysonet-Machado ("Maysonet"), and Rafael E. V lez-Matos

("V lez"). Codefendants Enrique Romero-Carri n ("Romero"),

Carlos Rub n Tejada-Morales ("Carlos Tejada"), Angel David

Tejada-Morales ("Angel Tejada") were also present.1

About ten minutes later, Agent Rivera saw a black

Nissan Pathfinder drive up and park behind Maldonado's Red Suzuki

jeep. The passenger of the black Pathfinder (the "Passenger")2

exited the vehicle and conversed with Maldonado, Travieso,

Feliciano, and Romero. The Passenger then removed a large

handbag from the rear of the black Pathfinder and placed it

between a white GMC van and a gray Mercury Cougar parked side-by-

1 Romero, Carlos Tejada, and Angel Tejada are not parties to
this appeal.

2 The driver and passenger of the black Pathfinder were never
identified.

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side next to the basketball court. The Passenger removed a

second handbag from the black Pathfinder and placed it next to

the first.

Agent Rivera then drove through the parking lot to get

a closer look. As he passed by, he saw Maldonado, Travieso,

Feliciano, Romero, and the Passenger gathered around the

handbags. Agent Rivera testified that the Passenger was handling

square-shaped packages that appeared to contain cocaine. Agent

Rivera also noticed that the sliding door of the white GMC van

was open, although he could not see anything inside.

After returning to his previous surveillance post,

Agent Rivera saw Noble, Maysonet, Carlos Tejada, and Angel Tejada

standing near the black Pathfinder. Agent Rivera also observed

Travieso and Romero apparently arranging something in the rear of

a black Pontiac station wagon. Agent Rivera did not observe them

carry anything to the black station wagon. Several minutes

later, the black Pathfinder left the parking lot. Agent Rivera

then left his surveillance post and called his office for backup.

Around the same time as Agent Rivera returned to his post,

appellant Angel Rodr guez-Rodr guez ("Rodr guez-Rodr guez")

arrived in a black Chevrolet Lumina, joined the group for three

or four minutes, and then left.

Appellants Oscar Pag n-Garc a ("Pag n") and codefendant

Roberto Maldonado-Torres ("Maldonado-Torres") arrived in a red

Ford Mustang about five minutes later. Agent Rivera observed

Travieso approach the Mustang and lean his body inside the

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vehicle as if he were looking for something. Travieso removed an

object (which Agent Rivera could not identify) from the red

Mustang and headed towards the gray Toyota Tercel. When he

returned, he took a green handbag from the red Mustang and

brought it to the rear of that vehicle. Pag n exited the

driver's side of the red Mustang and opened its trunk. Agent

Rivera testified that the trunk remained open for several

seconds, but that he was unable to discern what happened to the

green handbag. A few seconds later, Maldonado-Torres exited from

the passenger's side of the red Mustang and accompanied Travieso

and Pag n as they joined the group near the bench. Shortly

thereafter, Rodr guez-Rodr guez returned to the parking lot in

the black Lumina and rejoined the group.

Several minutes later, Rodr guez-Resto and Romero left

the parking lot in the black Pontiac station wagon. By this

time, several other DEA agents had joined Agent Rivera. Agent

Rivera followed the black station wagon as it circled the park

while the other agents continued to surveil the parking lot.

Agent Rivera testified that Rodr guez-Resto and Romero appeared

to him to be conducting countersurveillance in an effort to

ferret out any "tails."3 After Rodr guez-Resto and Romero

returned to the parking lot, Agent Rivera joined the other agents

at his prior surveillance post.

3 Specifically, Agent Rivera testified that Rodr guez-Resto and
Romero were "buscando rabo . . . which indicates that they were

looking around, checking on surveillance to see who's watching
them . . . . [T]hey're looking through their rear view mirrors,
looking all over the place to see who's watching them."

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A few moments later, appellant Carlos Mart nez-Molina

("Mart nez") arrived in a black Toyota Supra and the six DEA

Agents decided to intervene. The Agents, all clad in DEA

jackets, identified themselves as law enforcement personnel and

moved in to detain the group. V lez, Mart nez, Romero, and

Maldonado-Torres were all detained as they attempted to flee the

scene. Mart nez discarded an airplane ticket while fleeing.

Agent Rivera also found an abandoned cellular phone nearby. The

Agents also seized airline tickets from Feliciano, Pag n, Noble,

Maysonet, Carlos Tejada, and Angel Tejada. All of the seized

tickets had been issued under false names for a flight from

Puerto Rico to New York later that afternoon. Rodr guez-Resto,

Travieso, Noble, Pag n, Carlos Tejada, Angel Tejada, and Romero

were all found to be carrying over $1,000 in cash.

Agent Rivera testified that after all fourteen men had

been arrested, he observed suitcases in three of the vehicles:

the red Suzuki, the white van, and the black station wagon. He

also testified that twelve yellow, U.S.D.A. Agricultural

inspection stickers were in plain view on the front seats and

dashboards of six of the vehicles. Agent Rivera testified that,

based on his experience in law enforcement, he knew that drug

smugglers commonly used these stickers to bypass agricultural

inspection at the airport. The Agents then searched all of the

vehicles. Seven of the vehicles contained two suitcases each,

for a total of fourteen suitcases. The Agents also found two

handbags in the black station wagon, including the green handbag

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Travieso had removed from the red Mustang. The Agents found

$3,000 in cash in the black Lumina and an unused airline ticket

for a flight on the previous day in a Red Mazda Protege.

The men were all handcuffed and taken to the DEA

offices. The Agents obtained a search warrant for the suitcases

and handbags after a drug detection dog indicated the probable

presence of narcotics in eleven of the suitcases and both

handbags. Each of the eleven suitcases contained thirty to forty

kilograms of cocaine. Neither handbag was found to contain

cocaine.

PROCEDURAL HISTORY
PROCEDURAL HISTORY

The defendants all moved to suppress the evidence

seized from their persons and vehicles. The district court

denied the motions to suppress, and all ten appellants entered

conditional guilty pleas to possession with intent to distribute

cocaine, in violation of 21 U.S.C. 841(a). In exchange for each

appellant's written plea agreement, the government agreed to

limit each appellant's relevant conduct to fifteen kilograms for

the purpose of sentencing. The plea agreements were part of a

"package deal" and were contingent on all of the defendants in

this case accepting the plea offer and entering a plea of guilty.

The plea agreements provided that "should any of the defendants

decide to change his plea according to the offer, the plea is

automatically withdrawn as to all of the defendants." Carlos

Tejada, Angel Tejada, and Romero had elected to go to trial and

were excepted from this requirement.

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All ten appellants entered their guilty pleas on

October 20, 1993. Later that day, the jury trial commenced for

codefendants Carlos Tejada, Angel Tejada, and Romero. At the

conclusion of the government's case, the court granted Carlos

Tejada's motion for acquittal. On October 27, 1994, the jury

acquitted Angel Tejada and convicted Romero.

On November 16, 1993, Rodr guez-Resto moved to withdraw

his guilty plea. Travieso and V lez both moved to withdraw their

guilty pleas on January 31, 1994, the day of the sentencing

hearing. The district court denied all three motions.4

THE MOTIONS TO SUPPRESS
THE MOTIONS TO SUPPRESS

I. Lawfulness of Arrests
I. Lawfulness of Arrests

Nine appellants -- Maldonado, Rodr guez-Resto,

Rodr guez-Rodr guez,5 Feliciano, Maysonet, V lez, Noble,

4 The district court also denied the motions to withdraw the
guilty pleas of three other defendants. These defendants,
however, do not appeal this issue.

5 Nothing was seized from the person of Rodr guez-Rodr guez.
Rather, he seeks to suppress the cash found in his Black Lumina.
In this regard, he argues that his arrest was unlawful and
accordingly the search of the vehicle was not a valid search-
incident-to-arrest. See New York v. Belton, 453 U.S. 454, 460-61

(1981).

The government, however, no longer attempts to justify the
vehicle searches as incident to lawful arrest, contending instead
that there was probable cause to search the vehicles. "Under the
'automobile exception,' the only essential predicate for a valid
warrantless search of a motor vehicle by law enforcement officers
is probable cause to believe that the vehicle contains contraband
or other evidence of criminal activity." United States v. McCoy,

977 F.2d 706, 710 (1st Cir. 1992) (citations omitted).
Therefore, provided there was probable cause to search the
vehicle at the time of Rodr guez-Rodr guez' arrest, the search
was valid even if the arrest was not, as the police would have
had an independent basis for searching the vehicle, apart from

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Travieso, and Pag n -- argue that they were arrested without

probable cause, and that therefore the items seized during their

arrest should have been suppressed.

A. Standard of Review
A. Standard of Review

With respect to a motion to suppress, we review a

district court's findings of fact only for clear error. Sealey,

30 F.3d at 9; United States v. Maguire, 918 F.2d 254, 257 (1st

Cir. 1990), cert. denied, 499 U.S. 950 (1991). This deferential

standard is appropriate because the district court has a superior

sense of what actually transpired during an incident by virtue of

its ability to see and hear the witnesses who have firsthand

knowledge of the events. United States v. Zapata, 18 F.3d 971,

975 (1st Cir. 1994). Questions of law, however, are subject to

de novo review. Id.

B. Applicable Law
B. Applicable Law

Law enforcement officers may effect warrantless arrests

provided that they have probable cause to believe that the

suspect has committed or is committing a crime. United States v.

Watson, 423 U.S. 411, 416-18 (1976); Gerstein v. Pugh, 420 U.S.

103, 113-14 (1975). "[P]robable cause is a fluid concept --

turning on the assessment of probabilities in particular factual

contexts," Illinois v. Gates, 462 U.S. 213, 232 (1983), and as

such "must be evaluated in light of the totality of

any exploitation of illegal conduct. Id. at n.4. See also Brown

v. Illinois, 422 U.S. 590, 599 (1975); United States v. Pimental,

645 F.2d 85, 86 (1st Cir. 1981). Therefore, in addressing
Rodr guez-Rodr guez' motion to suppress, we need not decide
whether his arrest was unlawful.

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circumstances." United States v. Torres-Maldonado, 14 F.3d 95,

105 (1st Cir. 1994) (quoting United States v.

Uricoechea-Casallas, 946 F.2d 162, 165 (1st Cir. 1991)).

Moreover, in order to establish probable cause, the government

"need not present the quantum of proof necessary to convict."

Id. at 105 (quoting Uricoechea-Casallas, 946 F.2d at 165). See

also United States v. Morris, 977 F.2d 677, 684 (1st Cir. 1992)

(same), cert. denied, 113 S. Ct. 1588 (1993); United States v.

Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987) (same). Rather, it

need only show that at the time of the arrest, the facts and

circumstances known to the arresting officers were sufficient to

warrant a prudent person in believing that the defendant had

committed or was committing an offense. Torres-Maldonado, 14

F.3d at 105; see also Beck v. Ohio, 379 U.S. 89, 91 (1964).

Of course, probable cause must exist with respect to

each person arrested, and "a person's mere propinquity to others

independently suspected of criminal activity does not, without

more, give rise to probable cause to search that person." Ybarra

v. Illinois, 444 U.S. 85, 91 (1979) (citing Sibron v. New York,

392 U.S. 40, 62-63 (1968)); see also United States v. Diallo, 29

F.3d 23, 25 (1st Cir. 1994). Rather, "some additional

circumstances from which it is reasonable to infer participation

in criminal enterprise must be shown." United States v. Burrell,

963 F.2d 976, 986 (7th Cir.), cert. denied, 113 S. Ct. 357 (1992)

(quoting United States v. Hillison, 733 F.2d 692, 697 (9th Cir.

1984)).

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In assessing the significance of a defendant's

association to others independently suspected of criminal

activity, the Hillison court looked to whether the known criminal

activity was contemporaneous with the association and whether the

circumstances suggest that the criminal activity could have been

carried on without the knowledge of all persons present. See

Hillison, 733 F.2d at 697 (citations omitted). Other courts have

focused on the nature of the place in which the arrest occurred

and whether the individual himself was behaving suspiciously or

was merely "tainted" by another. See United States v. Tehrani,

49 F.3d 54, 59 (2d Cir. 1995).

A survey of the relevant caselaw makes clear, however,

that it is often difficult to determine precisely what additional

factors are sufficient to create the requisite inference of

participatory involvement. In Ybarra, 444 U.S. at 90-91,

officers had a warrant to search a bar and its bartender for

heroin. They conducted a patdown search of Ybarra, a bar patron,

despite the fact he had made no gestures suggesting criminal

conduct, no attempts to conceal contraband, and no suspicious

statements. In declaring the search invalid, the Court noted

that the officers "knew nothing more about Ybarra except that he

was present, along with several other customers, in a public

tavern at a time when the police had reason to believe that the

bartender would have heroin for sale." Id. at 91. See also

Swint v. City of Wadley, Alabama, 51 F.3d 988 (11th Cir. 1995)

(holding that the legitimate search and seizure of one suspect in

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a public place cannot be bootstrapped into probable cause for a

broadbase search of the business establishment and its patrons).

Similarly, in Sibron v. New York, 390 U.S. 40, 62

(1968), the Court held that probable cause was not established by

the mere fact that the defendant spoke to a number of known

narcotics addicts over a period of eight hours where the

arresting officer was completely ignorant regarding the content

of the conversation and saw nothing pass between the defendant

and the addicts. See also United States v. Chadwick, 532 F.2d

773, 784 (1st Cir. 1976), aff'd on other grounds 433 U.S. 1

(1977) (mere act of picking up suspected drug traffickers at the

train station and helping them load a contraband-laden footlocker

into car does not, without more, constitute probable cause);

United States v. Di Re, 332 U.S. 581, 593 (1948) (holding that

"[t]he argument that one who 'accompanies a criminal to a crime

rendezvous' cannot be assumed to be a bystander, forceful enough

in some circumstances, is farfetched when the meeting is not

secretive or in a suspicious hide-out . . . and where the alleged

substantive crime is one which does not necessarily involve any

act visibly criminal").

In contrast, the cases in which courts find that

probable cause exists generally involve substantially more than a

momentary, random, or apparently innocent association between the

defendant and the known criminal activity. For instance, in

United States v. Patrick, 899 F.2d 169 (2d Cir. 1990), the court

upheld the search of a male defendant (Patrick) who crossed the

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border from Canada into New York at about the same time as a

woman (Taylor) who was found to be carrying narcotics. Id. at

170. When the two entered the Immigration Office, there were no

other travellers present, and both defendants told the same

unusual story: they had accidentally crossed the border by bus

and were simply returning to the United States. Id. at 171.

When cocaine base was found in the woman's purse, the man was

also arrested. Id. at 172. Distinguishing Ybarra, the court

found that the fact that the man and woman had simultaneously

entered the Immigration Office at a time when no others were

present and that both told the same unusual story "provided an

adequate basis for the officials to reasonably believe that

Patrick was not just a mere innocent traveling companion but was

travelling and acting in concert with Taylor in transporting the

cocaine." Id.

Similarly, in United States v. Halliman, 923 F.2d 873,

881-82 (D.C. Cir. 1991), police officers suspected that a group

of narcotics traffickers was living at and operating out of

several rooms at the Holiday Inn. Id. at 875. Pursuant to a

valid search, the officers seized a substantial amount of cocaine

and arrested defendant Halliman. Id. at 876-77. Subsequently,

two men entered the hotel lobby and headed for the rooms that had

just been searched. The night manager informed police that the

two men were "in the group" of narcotics traffickers who had been

frequenting the hotel for the past month. The men stopped in

front of one of the rooms in which the cocaine had been seized

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and contemplated the broken lock. The police then arrested them

and seized the cocaine they were carrying. Id. at 877. In

upholding the arrest, the court distinguished Ybarra by noting

that "the police here were aware of more than a momentary,

casual, or random association among the defendants, the location,

and Halliman." Id. at 882.

In Hillison, 733 F.2d at 697, the defendant registered

at a hotel under an alias and occupied a room adjacent to two men

known to be engaged in narcotics trafficking. The three men

visited back and forth between the two rooms and used their

automobiles interchangeably. The court found probable cause to

arrest the defendant based on his close association with the drug

traffickers over the course of three days, noting that "it taxes

credulity to assert that [the defendant] spent as much time in

[the drug-traffickers'] company . . . without knowing about their

drug dealing activity." Id.

In United States v. Holder, 990 F.2d 1327, 1329 (D.C.

Cir. 1993), the court found probable cause to arrest a defendant

found at the scene of a narcotics transaction. The court's

analysis focused on the fact that the transaction occurred in a

private apartment where the drugs were openly on display. The

court distinguished Ybarra, stating that while Ybarra's "presence

in a public tavern was ostensibly innocent, [the defendant's]

presence in a private apartment just a few feet from a table full

of cocaine can hardly be so described. . . . The logical

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inference . . . was that [he] was either a party to the

distribution of drugs or a customer." Id.

With these principles in mind, we turn to the claims of

each appellant.

C. Analysis
C. Analysis

1. Travieso, Maldonado, and Feliciano
1. Travieso, Maldonado, and Feliciano

We first consider the claims of appellants Travieso,

Maldonado, and Feliciano. The record indicates that although the

men were in a park near a basketball court, they were neither

dressed to play nor visibly equipped for a social gathering.

Agent Rivera also witnessed Maldonado talking on a cellular

phone, which we have previously noted to be a "known tool[] of

the drug trade." United States v. de la Cruz, 996 F.2d 1307,

1311 (1st Cir.), cert. denied, 114 S. Ct. 356 (1993). While

these facts might not be enough alone to constitute probable

cause, they do weigh in our evaluation of the "totality of the

circumstances." More significant, however, are Agent Rivera's

subsequent observations. He testified that after the black

Pathfinder arrived, the Passenger removed two handbags from the

vehicle and placed them between the white van and gray Cougar.

Agent Rivera testified further that Travieso, Maldonado, and

Feliciano all gathered around as the Passenger handled what

appeared to be packages of cocaine.6 We think that these facts

6 Appellants argue that Agent Rivera must have fabricated this
testimony because the handbags seized did not contain cocaine and
the packages of cocaine were all ultimately found in locked
suitcases for which the appellants had no keys. Agent Rivera
suggested on cross-examination, however, that the Passenger

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would lead a prudent person to believe that a large-scale cocaine

transaction was transpiring and that Travieso, Maldonado, and

Feliciano were involved. We accordingly hold that their arrests

were supported by probable cause.

2. Rodr guez-Resto, Maysonet, V lez, and Noble
2. Rodr guez-Resto, Maysonet, V lez, and Noble

We now consider whether the arrests of appellants

Rodr guez-Resto, Maysonet, V lez, and Noble were supported by the

requisite probable cause. All four argue that they were

improperly arrested for their "mere propinquity to others

independently suspected of criminal activity." Ybarra, 444 U.S.

at 91. Although a close call, we disagree.

While we acknowledge that the facts here are not

clearly analogous to any of the cases discussed above, they are

completely distinguishable from Ybarra and its progeny in that

they indicate more than a "momentary, casual, or random

association" between these four defendants, the location of the

arrest, and those independently suspected of criminal activity.

Applying the first factor enunciated by the Hillison court, we

note that the connection between Rodr guez-Resto, Maysonet,

V lez, and Noble and the suspected criminal activity was

contemporaneous: all four were among the original group of men

that initially attracted Agent Rivera's attention by using a

probably took the handbags with him when he left in the black
Pathfinder. Because this interpretation of the events is
supported by the record, we cannot find the district court's
reliance on it to be clearly erroneous.

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cellular telephone and gathering in street clothes in a public

park. See Hillison, 733 F.2d at 697.

With regard to the second Hillison factor, we think it

strains credulity to suggest that the cocaine transaction was

being carried on without the knowledge of all persons present.

Id. Admittedly, Rodr guez-Resto, Maysonet, V lez, and Noble were

not among the group that gathered around as the Passenger

allegedly handled the packages of cocaine. Nevertheless, Agent

Rivera's testimony clearly indicates that they were part of the

group suspected of narcotics violations. Agent Rivera testified

that the group was bunched tightly and moved towards the

Pathfinder when it arrived, suggesting that they knew or were

expecting its occupants. Furthermore, their lack of either

athletic gear or picnic accoutrements made it less likely that

they were at the park for an unrelated and innocent activity, and

therefore suggested that they were not ignorant of the criminal

activity transpiring around them. Although these facts do not

conclusively rule out the "innocent bystander" explanation, we

think that they reasonably imply participatory involvement. As

the Supreme Court has explained, the evidence "must be seen and

weighed not in terms of library analysis by scholars, but as

understood by those versed in the field of law enforcement."

Gates, 462 U.S. at 232 (quoting United States v. Cortez, 449 U.S.

411, 418 (1981)). We do not think officers in the field are

required to divorce themselves from reality or to ignore the fact

that "criminals rarely welcome innocent persons as witnesses to

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serious crimes and rarely seek to perpetrate felonies before

larger-than-necessary audiences." United States v. Ortiz, 966

F.2d 707, 712 (1st Cir.1992), cert. denied, 113 S. Ct. 1005

(1993).7 Accordingly, we find that the arrests of Rodr guez-

Resto, Maysonet, V lez, and Noble were supported by probable

cause.8

7 Although this observation was made with regard to a
sufficiency-of-the-evidence challenge, we think it also applies
in probable cause determinations.

8 Additional facts strengthen the probable cause finding against
V lez and Rodr guez-Resto.

V lez fled when the Agents approached, and as the Supreme
Court has held, flight at the approach of law enforcement
officers, when coupled with specific knowledge relating the
suspect to evidence of a crime, is a proper factor to be
considered in the decision to make an arrest. See Sibron, 392

U.S. at 66-67; see also United States v. Romero-Carri n, No. 94-

1792, 1995 WL 258843, at *1 (1st Cir. May 9, 1995) (related case
in which we held that codefendant Romero's flight "evinced a keen
consciousness of guilt"); United States v. Paleo, 967 F.2d 7, 9

(1st Cir. 1992); United States v. Cruz, 910 F.2d 1072, 1077 (3d

Cir. 1990), cert. denied, 498 U.S. 1039 (1991).

With regard to Rodr guez-Resto, Agent Rivera testified that he
participated in a countersurveillance effort along with
codefendant Romero. It is well settled that countersurveillance
efforts are indicative of knowing participation in criminal
activity. E.g., United States v. Delgado, 4 F.3d 780, 788 (9th

Cir. 1993); United States v. Iafelice, 978 F.2d 92, 95 (3d Cir.

1992); United States v. Taylor, 956 F.2d 572, 578 (6th Cir. 1992)

(reasonable suspicion could be inferred where defendant "had
glanced furtively in every direction as if conducting
'countersurveillance'"). Here, Agent Rivera testified that
Romero and Rodr guez-Resto were "looking around . . . looking
through their rear view mirrors, looking all over the place to
see who's watching them." These observations, while arguably
consistent with innocent driving, were sufficient to allow a
trained officer to infer that Romero and Rodr guez-Resto were
conducting countersurveillance and accordingly support our
probable cause determination. See Iafelice, 978 F.2d at 95

(countersurveillance could be inferred where defendants were
driving very slowly, looking all around, and staring at the
occupants of all the cars they passed).

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3. Pag n
3. Pag n

Appellant Pag n also claims that he was arrested for

his "mere propinquity" to the others. We disagree. Although

Pag n arrived after the black Pathfinder had left, his

interaction with Travieso was sufficient for the officers to

infer his participatory involvement in a drug transaction.

Travieso was among the four who had gathered around when the

Passenger handled the suspicious packages taken from the handbags

retrieved from the back of the black Pathfinder. From this,

Agent Rivera could reasonably have concluded that Travieso was

intimately involved with the suspected drug transaction. Agent

Rivera testified that when Pag n arrived in the red Mustang,

Travieso immediately came over and inserted his entire torso into

the car as if he were "searching for something inside the

vehicle." Agent Rivera testified that Travieso then removed an

object which he could not identify from the red Mustang.

Travieso then extracted a green handbag and brought it to the

rear of the red Mustang. Agent Rivera testified that Pag n then

exited the vehicle, headed to the rear, and opened the trunk. A

few seconds later, the trunk was closed and Agent Rivera could no

longer see the green handbag. Pag n then accompanied Travieso,

and they joined the group near the bench. We think that these

events fairly imply participatory involvement. When Pag n

arrived, Agent Rivera already had good reason to suspect that

Travieso was in possession of handbags containing cocaine. When

Travieso immediately retrieved two objects from Pag n's vehicle,

-22-

one of which was a handbag which he apparently transferred to the

trunk, Agent Rivera reasonably could have concluded that Pag n

was also a knowing participant in the drug transaction.9 We

accordingly find that Pag n's arrest was supported by probable

cause.

II. Lawfulness of the Vehicle Searches
II. Lawfulness of the Vehicle Searches

Appellants challenge the searches of seven of the

eleven vehicles: the black Toyota Supra, the gray Nissan, the

Red Suzuki, the white GMC van, the red Mazda Protege, the gray

Cougar, and the black Lumina.10

The Supreme Court has ruled that an automobile may be

searched without a warrant if the police have probable cause to

believe that it contains contraband, evidence of a crime, or

other matter that may lawfully be seized. California v. Acevedo,

500 U.S. 565 (1991); United States v. Ross, 456 U.S. 798 (1982).

As in other contexts, probable cause to search a vehicle exists

where the facts and circumstances known to the arresting officers

are sufficient to cause a person of reasonable caution to believe

the search is justified. United States v. Infante-Ruiz, 13 F.3d

498, 502 (1st Cir. 1994) (citing 3 Charles Alan Wright, Federal

Practice and Procedure: Criminal 2d 662 at 579 (1982)). That

9 Moreover, the immediacy of Travieso's actions with respect to
Pag n's arrival suggest that Travieso was expecting Pag n and
knew his vehicle contained the handbags.

10 The searches of the remaining vehicles are either not
challenged or are challenged in such a vague and perfunctory
manner that we deem the challenge waived on appeal. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494

U.S. 1082 (1990).

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is, there must have been particular facts indicating that, at the

time of search, the vehicle or a container within it carried

contraband, evidence of crime, or other seizable matter. Id.

Before addressing whether probable cause existed as to

each vehicle, we note that before they intervened, the arresting

officers had probable cause to believe that the tightly gathered

group in the parking lot was engaged in a large-scale cocaine

transaction. Moreover, when the Agents approached, four members

of the group attempted to flee, suggesting their knowing

participation in illegal activity. Upon searching the arrested

men, the Agents found large amounts of cash and seven plane

tickets for a flight to New York later that afternoon, all issued

under false names. Six suitcases were in plain view in three of

the vehicles. Additionally, six of the vehicles contained

U.S.D.A. stickers, commonly used by smugglers to bypass

agricultural inspection at the airport. From these observations,

a reasonable law enforcement officer could conclude that most, if

not all, of the men were conspiring to transport narcotics into

New York, and that they were using the vehicles parked at the

scene to bring the narcotics to the airport.

A. The black Supra and the gray Nissan
A. The black Supra and the gray Nissan

Mart nez claims that his black Supra and gray Nissan

were unlawfully searched. Initially, we note that Mart nez owned

two of the vehicles present at the park, and the police were

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aware of this fact.11 This suggests that his presence with the

other defendants at the park was by design rather than

coincidence and significantly discounts any theory that he had

merely stopped by to chat with some friends. Additionally, when

the Agents intervened, Mart nez fled, discarding a plane ticket

in the process. Moreover, U.S.D.A. Agriculture stickers were in

plain view in the vehicles. We think that these facts would lead

a reasonably prudent person to believe that Mart nez was using

his vehicles to facilitate the narcotics conspiracy. We

accordingly find that the searches of his vehicles were lawful.

B. The red Suzuki
B. The red Suzuki

Maldonado maintains that the search of his red Suzuki

jeep was unlawful. We disagree. Agent Rivera testified that two

suitcases and two U.S.D.A. stickers were in plain view in the

vehicle. Putting these observations in the context of the other

observations and events, we think the officers were well

warranted in believing that the vehicle was being used to

facilitate the narcotics conspiracy. We accordingly find that

the search of the red Suzuki was supported by probable cause.

C. The white GMC van
C. The white GMC van

Feliciano challenges the search of his white GMC van.

Initially, we note that upon searching Feliciano, the Agents

found an airline ticket issued under a false name, suggesting his

involvement in the drug transaction. Moreover, when Agent Rivera

11 Before searching the vehicles, the police identified their
owners by questioning the defendants and running computer checks
on the license plates.

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observed the Passenger handling the suspicious packages, he was

squatting between Feliciano's van and the gray Mercury Cougar.

Agent Rivera also noted that the sliding door of the van was open

at this time. After intervention, the agents observed that two

suitcases lay in plain view in the vehicle. These facts all

suggest more than a random connection between the vehicle and the

suspected narcotics trafficking and in light of the circumstances

were sufficient to warrant the officers in believing that the

vehicle contained contraband. We accordingly find that the

search of the van was supported by probable cause.

D. The red Mazda Protege
D. The red Mazda Protege

V lez maintains that the search of the red Mazda

Protege was unlawful. We disagree. Two U.S.D.A. stickers were

in plain view near the dashboard, thus linking the vehicle to the

suspected narcotics trafficking and warranting the Agents' belief

that it contained contraband. We accordingly find that the

search of the red Mazda Protege was supported by probable cause.

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E. The gray Cougar and the black Lumina
E. The gray Cougar and the black Lumina

Rodr guez-Rodr guez maintains that the search of the

gray Cougar was invalid. We disagree. The Passenger's handling

of the suspicious packages occurred between the gray Cougar and

the white GMC van. Moreover, the Agents observed that two

U.S.D.A. stickers lay in plain view in the Cougar. In light of

the circumstances, we think that these observations were

sufficient to warrant the officers in believing that the vehicle

was being used to transport narcotics to the airport. We

accordingly find that the search of the gray Cougar was supported

by probable cause.

Rodr guez-Rodr guez also challenges the search of the

black Lumina. While this presents a somewhat closer call, we

think the search was supported by the requisite probable cause.

Admittedly, Rodr guez-Rodr guez arrived in the black Lumina after

the Pathfinder had left the area. He joined the group for only a

few minutes, left in the black Lumina, and returned shortly

thereafter. The Agents did not observe anything being placed in

or withdrawn from the vehicle.

Nevertheless, before searching the vehicles, the Agents

determined that Rodr guez-Rodr guez owned the gray Cougar,12 in

which the Agents had observed U.S.D.A. stickers. This was

sufficient to warrant the Agents' belief that Rodr guez-Rodr guez

was intimately involved in the suspected narcotics trafficking.

12 The black Lumina was owned by the sister of appellant Pag n.
It is not clear from the record when the Agents learned this.

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Thus, before searching the black Lumina, the Agents reasonably

suspected Rodr guez-Rodr guez of drug trafficking and knew that

he was independently associated with two vehicles at the scene of

the arrest: the one in which he arrived and the one he owned.

These facts, in conjunction with Agent Rivera's previous

observations and the cash and tickets already seized, were

sufficient to warrant the Agents' belief that the black Lumina

was being used to transport narcotics. See McCoy, 977 F.2d at

711 (where officers have probable cause to believe that the

suspects used the vehicle in criminal activity, they may

reasonably infer the vehicle contains contraband). We

accordingly find that the search of the black Lumina was

supported by probable cause.

MOTIONS TO WITHDRAW GUILTY PLEAS
MOTIONS TO WITHDRAW GUILTY PLEAS

Rodr guez-Resto, V lez, and Travieso all contend that

the district court erred in denying their motions to withdraw

their guilty pleas.

Other than for errors of law, we will overturn the

trial judge's decision to deny a motion to withdraw a guilty plea

only for "demonstrable abuse of discretion." United States v.

Allard, 926 F.2d 1237, 1245 (1st Cir. 1991) (citing United States

v. Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989)). The trial

court's subsidiary findings of fact in connection with the

plea-withdrawal motion are reviewed only for clear error. Id.

It is well settled that a defendant may withdraw a

guilty plea prior to sentencing only upon a showing of "fair and

-28-

just reason" for the request. United States v. Cotal-Crespo, 47

F.3d 1, 3 (1st Cir. 1995) (citing Pellerito, 878 F.2d at 1537);

see also Fed. R. Crim. P. 32(d). To gauge whether the asserted

ground for withdrawal meets the Rule 32(d) standard, a court must

look at the totality of the circumstances, especially whether the

defendant's plea was knowing, voluntary, and intelligent within

the meaning of Rule 11. See Cotal-Crespo, 47 F.3d at 3-4; United

States v. Doyle, 981 F.2d 591, 594 (1st Cir. 1992); Pellerito,

878 F.2d at 1537. Other factors the court may consider include

(1) the plausibility of the reasons prompting the requested

change of plea; (2) the timing of the defendant's motion; and (3)

the existence or nonexistence of an assertion of innocence.

Cotal-Crespo, 47 F.3d at 3-4. Lastly, even where a defendant

appears to meet the strictures of this four-part test, the court

still must evaluate the proposed plea withdrawal in relation to

any demonstrable prejudice that will accrue to the government if

the defendant is permitted to change his plea. United States v.

Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994) (citing Doyle,

981 F.2d at 594; Pellerito, 878 F.2d at 1537).

All three appellants contend that their codefendants

and attorneys coerced them into accepting the package plea

agreement at joint meetings immediately prior to the plea

hearings. It is beyond dispute that a guilty plea is involuntary

and therefore invalid if it is obtained "by actual or threatened

physical harm or by coercion overbearing the will of the

defendant." Brady v. United States, 397 U.S. 742, 750 (1970).

-29-

The Supreme Court has also explained that "a prosecutor's offer

during plea bargaining of adverse or lenient treatment for some

person other than the accused might pose a greater danger of

inducing a false guilty plea by skewing the risks a defendant

must consider." Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8

(1978) (dictum). This concern applies to package plea agreements

because, "[q]uite possibly, one defendant will be happier with

the package deal than his codefendant(s); looking out for his own

best interests, the lucky one may try to force his codefendant(s)

into going along with the deal." United States v. Caro, 997 F.2d

657, 659-60 (9th Cir. 1993). Package plea deals therefore impose

special obligations: the prosecutor must alert the district court

to the fact that codefendants are entering a package deal, Fed.

R. Crim. P. 11(e)(2); United States v. Daniels, 821 F.2d 76, 78-

79 (1st Cir. 1987); see also Caro, 997 F.2d at 659-60, and the

district court must carefully ascertain the voluntariness of each

defendant's plea. See United States v. Buckley, 847 F.2d 991,

1000 n.6 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989);

Daniels, 821 F.2d at 79-80; see also Caro, 997 F.2d at 60.

Here, it is clear from the record that the district

court was fully aware of the package nature of the defendants'

plea agreements. We nevertheless must determine whether the

district court conducted a proper voluntariness inquiry, or

otherwise erred in concluding that none of the three appellants

had asserted a "fair and just reason" for withdrawing his plea.

A. Rodr guez-Resto
A. Rodr guez-Resto

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Before ruling on his motion to change his plea, the

district court heard testimony from Rodr guez-Resto, his

attorney, and Mart nez' attorney. Rodr guez-Resto testified, in

effect, that his attorney would not let him plead not guilty

because it would have destroyed the package deal negotiated for

all of the defendants. Both attorneys testified that Rodr guez-

Resto's guilty plea was entirely voluntary and was in no way

coerced by the threat of nullifying the package deal. In fact,

they testified, they were concerned about the voluntariness of

package plea agreements and consulted with Assistant United

States Attorney Pereira, who stated: "Look, if your client wants

to go to trial, there are three defendants that will go to trial

anyway. So he can go to trial and the agreement will stand for

the rest of the defendants." Both attorneys testified that when

Rodr guez-Resto was informed that he could go to trial without

jeopardizing the package agreement, he again reiterated his

desire to plead guilty.

After hearing this testimony, the district court denied

Rodr guez-Resto's motion to withdraw, stating that his testimony

simply was not credible. The district court found that his

guilty plea had been entered voluntarily and that his claim of

coercion merely reflected second thoughts about the wisdom of his

decision after learning that two codefendants had been acquitted

at trial. These findings are amply supported by the record and

therefore do not constitute clear error. Moreover, we note that

at the original plea hearing, the district court specifically

-31-

asked Rodr guez-Resto whether anyone had forced him to plead

guilty, to which he responded no. Such statements in open court

during a plea hearing "carry a strong presumption of verity."

Blackledge v. Allison, 431 U.S. 63, 74 (1977). Accordingly, we

hold that the district court properly denied Rodr guez-Resto's

motion to withdraw his guilty plea.

B. V lez and Travieso
B. V lez and Travieso

Both V lez and Travieso maintain that they were coerced

into accepting the package plea agreement. We need not reach the

issue of whether their pleas were in fact coerced because we find

that the district court failed to conduct a full and direct

voluntariness examination in open court, thereby compromising one

of Rule 11's "core concerns" and undermining the validity of

their guilty pleas.13 See Allard, 926 F.2d at 1244-45

(explaining that Rule 11's core concerns are 1) absence of

coercion, 2) understanding of the charges, and 3) knowledge of

the consequences of the guilty plea).

Rule 11(d) states: "The court shall not accept a plea

of guilty or nolo contendere without first, by addressing the

defendant personally in open court, determining that the plea is

voluntary and not the result of force or threats or of promises

apart from a plea agreement." Fed. R. Crim. Proc. 11(d)

13 The district court divided the ten appellants into two groups
of five for the purpose of conducting their plea colloquies.
Rodr guez-Resto was in the first group, and V lez and Travieso
were in the second. Thus, V lez and Travieso were not asked
exactly the same questions that Rodr guez-Resto was asked.

-32-

(emphasis added). Here, the district court conducted only a

partial inquiry into the voluntariness of Travieso's and V lez'

guilty pleas. Specifically, it asked them whether they had

"entered into [the] plea agreement without compulsion or any

threats or promises by the -- from the U.S. Attorney or any of

its agents." It did not, however, ask whether the defendants

were pleading guilty voluntarily or whether they had been

threatened or pressured by their codefendants into accepting the

package plea agreement. Under these circumstances, the district

court's inquiry was incomplete because, regardless of whether

Travieso's and V lez' guilty pleas were actually coerced by their

codefendants, the literal answer to the court's question could

still have been "yes." Admittedly, all the defendants

acknowledged in their written plea agreements that they had not

been threatened or pressured into entering their guilty pleas,

and all testified at the plea hearings that they had answered the

questions in the plea agreements truthfully after consultation

with their attorneys. In many situations, however, "reliance on

'a written document is not a sufficient substitute for personal

examination [by the court].'" United States v. Medina-Silveria,

30 F.3d 1, 3 (1st Cir. 1994) (quoting James W. Moore, 8 Moore's

Federal Practice 11.-05[2] (1994)) (other citations omitted).

The Supreme Court has similarly expressed the importance of

direct interrogation by the district court judge in determining

whether to accept the defendant's guilty plea:

To the extent that the district judge
thus exposes the defendant's state of

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mind on the record through personal
interrogation, he not only facilitates
his own determination of a guilty plea's
voluntariness, but he also facilitates
that determination in any subsequent
post-conviction proceeding based upon a
claim that the plea was involuntary.
Both of these goals are undermined in
proportion to the degree the district
judge resorts to "assumptions" not based
upon recorded responses to his inquiries.

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

Where a district court has only partially addressed one

of Rule 11's core concerns, we must reverse a determination that

there was no fair and just reason to set the plea aside unless

the irregularities in the plea proceeding do not affect

"substantial rights" of the defendant. See Cotal-Crespo, 47 F.3d

at 7 (discussing application of Rule 11(h)'s harmless error

standard when plea-taking errors result in a "partial failure" to

address one of Rule 11's core concerns). Because package-type

plea agreements increase the risk that one defendant will coerce

another to plead guilty, the district court was obligated to

ascertain carefully whether the defendants were in fact entering

their pleas without compulsion. See Daniels, 821 F.2d at 79-80;

United States v. Buckley, 847 F.2d at 1000 n.6. Here, the

district court made no effort whatsoever to determine whether

Travieso's and V lez' pleas were coerced. Under these

circumstances, we cannot say that they lacked a fair and just

reason for plea withdrawal, especially since the court's lapse

arguably affected their substantial rights. The advisory

committee's notes make clear that Rule 11(h) "was not intended to

-34-

allow district courts to ignore Rule 11['s] express commands."

Medina-Silveria, 30 F.3d at 4 (citation omitted). Rather, Rule

11(h)'s harmless error provision is intended to excuse "minor and

technical violation[s]" and cannot be invoked where the court's

deviation effectively "nullif[ies] important Rule 11 safeguards."

Fed. R. Crim. Proc. 11(h) advisory committee's note to 1983

amendment. V lez' and Travieso's guilty pleas must therefore be

set aside and the case must be remanded for further Rule 11

proceedings or trial.

INEFFECTIVE ASSISTANCE OF COUNSEL
INEFFECTIVE ASSISTANCE OF COUNSEL

On the morning of the suppression hearing, Pag n's

attorney moved for a continuance because her presence was

required at another hearing. The court denied the motion, noting

that a continuation would be logistically implausible because of

the large number of defendants, attorneys, and witnesses present

for the hearing. After consulting with Pag n, his attorney asked

Travieso's attorney to cover for her during the suppression

hearing. Pag n's attorney returned shortly after the court had

begun ruling on the motions to suppress. After denying the

motions, the court agreed to allow the defendants to file motions

to reconsider and to provide Pag n's counsel with a transcript of

the hearing. Although the court later extended the deadline for

filing motions, Pag n never sought reconsideration.

Pag n now contends that the court erred by denying his

motion for a continuance, and that as a result of this error, he

was denied effective assistance of counsel. We need not wax

-35-

longiloquent on this contention. United States v. Talladino, 38

F.3d 1255, 1261 (1st Cir. 1994). Initially, we note that Pag n

points to nothing in the record that would suggest that the

district court abused its discretion in denying the continuance.

See United States v. Rodr guez-Cort s, 949 F.2d 532, 545 (1st

Cir. 1991) (refusal to grant a continuance is reviewed for abuse

of discretion, and only "unreasonable and arbitrary insistence

upon expeditiousness in the face of a justifiable request for

delay" constitutes an abuse of discretion). Moreover, Pag n's

ineffective-assistance-of-counsel claim is utterly untenable

given the extensive cross-examination conducted by the defense

counsel for his eleven codefendants. Additionally, we note that

even after receiving the transcripts of the hearing, Pag n's

counsel did not move for reconsideration, suggesting that she was

then satisfied with the record developed by the other attorneys.

In fact, Pag n still has not explained what additional questions

his counsel would have asked Agent Rivera at the suppression

hearing. We accordingly reject Pag n's ineffective-assistance-

of-counsel claim.14

We have explored the other claims raised by the

appellants and find them equally meritless.

Affirmed in part, reversed in part.
Affirmed in part, reversed in part.

14 Although we ordinarily refrain from entertaining ineffective-
assistance-of-counsel claims on direct review, see United States

v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), we have elected to

reach Pag n's claim because the record is sufficiently well
developed to permit ajudication and the claim is bound up in the
claim for denial of a continuance -- a claim that is properly
before us.

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